Date: 19990706
Docket: T-555-97
BETWEEN:
WALTER PRINESDOMU
Applicant
- and -
TELEGLOBE CANADA INC.
Respondent
REASONS FOR ORDER
NADON J.:
- [1] This is an application for judicial review of a February 26, 1997 decision of the Canadian Human Rights Commission ("CHRC") which dismissed the applicant"s complaint against the respondent.
| [2] The material facts can be summarized as follows. The applicant is a 56 year old man of Czech origin. He started work for the respondent in 1975 as a telecommunications technician. In 1978, he was promoted to technical supervisor. |
| [3] On December 5, 1994, all technical supervisors received a layoff notice effective December 12, 1994. The reason given by the respondent for the layoff was an organizational restructuring of its business. As a result, the first level of supervision was eliminated. |
| [4] The technical supervisors, including the applicant, were members of the Telecommunications Technical Supervisors Association ("TTSA"). The TTSA and the applicant did not accept the layoffs announced by the respondent on December 5, 1994. As a result, litigation ensued between the TTSA, its members and the respondent before the Canada Labour Relations Board. More particularly, the TTSA challenged the layoff notices as being unfair labour practices and requested the Canada Labour Relations Board to set aside the layoff notices and to reinstate the technical supervisors. |
| [5] The layoff notices of December 5, 1994 also caused litigation between the applicant and the TTSA. The applicant was unhappy with respect to the manner in which the TTSA handled the dispute before the Canada Labour Relations Board. |
| [6] On June 27, 1995, the applicant telephoned the Canadian Human Rights Commission ("CHRC") inquiring regarding a possible complaint against the respondent. On that day, Sharon Henry, a Human Rights Officer, wrote to the applicant in the following terms: |
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This letter will confirm our telephone discussion of today"s date, wherein you advised that your concerns respecting Teleglobe Canada Inc."s refusal to continue to employ you, on the ground of age, is still the subject of a grievance in progress. |
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Section 41 of the Canadian Human Rights Act stipulates that an alleged victim of discrimination must exhaust the grievance process before a complaint may be filed with the Canadian Human Rights Commission. |
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As I indicated to you, if your concerns are not resolved through your grievance at arbitration, you may contact us for further consideration at that time. |
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| [7] On June 28, 1995, the respondent, in exchange of the withdrawal by the applicant of all his complaints and grievances with respect to the December 5, 1994 layoff, offered him a position of telecommunications technologist at its Montreal II International Centre (Bonaventure) at a "protected" annual salary of $62,248.49 for the first year. The applicant, who rejected the position offered to him, initially explained this refusal to the CHRC as follows: |
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On or about June 29, 1995, the Respondent offered me the position of Telecommunications Technologist in Montreal. This position required me to join a different Union, provided considerable salary reduction, did not safeguard my seniority with respect to pending lay-offs within this Union and required me to relocate to Montreal: I did not accept this offer because the circumstances led me to believe it was not made in good faith and continued the pattern of discrimination against me. |
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| [8] Subsequently, the applicant explained his refusal as follows: |
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Further to the so called "reinstatement" offer I find it necessary to add that during my employment with Teleglobe Canada (or elsewhere) I have never held position of "Telecommunications Technologist", therefore cannot be reinstated to it. In fact, at the time of the termination of my employment I supervised team of 10 Telecommunications Technologists and been employed as a Technical Supervisor by Teleglobe Canada since 1977. Moreover, at the time this "offer" was made, at least 30% of the Telecommunications Technologists employed in Toronto Station were declared redundant and are no longer employed by Teleglobe. |
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| [9] Finally, the applicant gave a third explanation for not accepting the respondent"s job offer. That explanation is as follows: |
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With respect to the "salary protected" position I have to state that the protection was for one year and covered the basic salary only. The offer was made in bad faith as the position was specifically offered to me, contrary to the collective agreement between Teleglobe and the Canadian Overseas Telecommunication Union which specifies that each new position within the Union must be offered to the current or laid-off COTU members and posted for a specified period of time. |
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| [10] In March 1996, the TTSA and the respondent came to terms concerning the litigation that had arisen following the respondent"s organizational restructuring. The respondent agreed to pay a sum of $462,008.00 to be distributed among the technical supervisors. With respect to the applicant, paragraph 3 of the agreement entered into between the TTSA and the respondent provides as follows: |
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3. The parties recognize and take cognizance of the fact that Mr. Walter Prinesdomu has completely repudiated the agreement reached on June 28, 1995 regarding his reinstatement in the position of telecommunication technologist at the Montreal II International Center [sic]. Accordingly, the Corporation undertakes to pay Mr. Prinesdomu the gross amount of $59,660.00 as compensation for the loss of his employment as a result of the organizational restructuring upon completion by Mr. Prinesdomu of a full and final release. |
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| [11] On March 25, 1996, the applicant accepted the respondent"s offer of $59,660.00 referred to herein above and signed a release in the following terms: |
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For good and valuable consideration, I, the undersigned, Walter Prinesdomu, recognize that my employment with TÉLÉGLOBE CANADA INC. terminated or about December 5, 1994 and hereby give TÉLÉGLOBE CANADA INC., its directors, officers, principals, employees, agents and mandatories, a full and final release and discharge from all manner of actions, causes of actions, debts, accounts, covenants, contracts, complaints, grievances, suits or demands of any nature whatsoever which I have, had or could have now or in the future resulting directly or indirectly from my employment with TÉLÉGLOBE CANADA INC. or the termination of the said employment on or about December 5, 1994. |
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TÉLÉGLOBE CANADA INC. shall pay me the gross amount of $59,660.00 minus all amounts and deductions required by law. It is understood, however, that I may within the next fifteen (15) days elect to have any portion of the said gross amount paid directly into my registered retirement savings plan and that upon receipt of the necessary documents, TÉLÉGLOBE CANADA INC. shall make such payment into my registered retirement savings plan up to the maximum amount allowable by law. |
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It is fully understood and agreed that the payment which I will receive from TÉLÉGLOBE CANADA INC. is made without any admission or prejudice but solely for the purpose of setting all matters relating to my employment with TÉLÉGLOBE CANADA INC. or the termination of it. |
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| [12] On September 26, 1996, the applicant filed a complaint against the respondent with the CHRC. In his complaint, the applicant alleged that the respondent "has discriminated against me by refusing to continue to employ me because of my age and my national and ethnic origin contrary to section 7 of the Canadian Human Rights Act". The date of the respondent"s alleged conduct is stated to be December 1994 to March 1996. The particulars given by the applicant in his complaint are the following: |
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I am a 56 year old man of Czech origin. I started working for the respondent as a telecommunications technician on or about April 28, 1975. In September 1978, I was promoted to Technical Supervisor, a position I held until I and all other Technical Supervisors, members of Telecommunications Technical Supervisors Association were given lay-off notices on December 5, 1994 effective December 12, 1994. |
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On December 5, 1994, the respondent informed that a number of "Associate Manager" positions (non-union, essentially the same positions as previously held by the Technical Supervisors) were available to be filled by the laid-off Technical Supervisors. I submitted applications for three of the "Associate Manager" positions in Toronto, Burnaby and Lake Cowichan. On December 23, 1994 the respondent informed me that no further consideration would be given to my applications for the positions in Burnaby and Lake Cowichan; no explanation was provided. I learned later that all francophone Technical Supervisors were immediately rehired, the Toronto position was awarded to a junior TTSA member with considerably less experience and the other two remaining positions were filled by junior personnel, previously working as Telecommunications Technologists without management experience. |
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On December 29, 1994 the respondent informed me that a number of other positions were vacant an I was invited to apply. I submitted applications for two of these vacancies for which I was fully qualified. The respondent informed me on January 6, 1995 that I did not have the required qualifications for the positions of Coordinator and/or the Senior Benchmarking Analyst. However I was fully qualified for these positions. I believe I was rejected because of my age and my national or ethnic origin as only these attributes distinguished me from the successful applicants. I believe that the respondent, under the pretext of corporate restructuring undertook systematic elimination of long term older and non-francophone management and other employees who were either dismissed, demoted or forced to accept early retirement. At the same time the positions thus vacated were filled with mostly younger francophone employees, with some minor exceptions were young non-francophone employees were hired or promoted. A large majority of the new personnel either hired or promoted after February 1993 are francophone except for a few positions where specific knowledge of local operations was essential and not readily available from francophone employees. |
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On or about June 28, 1995 the respondent offered me the position of Telecommunications Technologist in Montreal. This position required me to join a different union, provided considerable salary reduction, did not safeguard m6y seniority with respect to pending lay-offs within this union and required me to relocate to Montreal. I did not accept this offer because the circumstances led me to believe it was not made in good faith and continued the pattern of discrimination against me. This offer was made conditional on my completely withdrawing all my complaints and grievances against the respondent and the Telecommunications Technical Supervisors Association; also a differential demand made to no other employees. |
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In March 1996 I applied for a vacant position of Station Engineer in Toronto, for which I had full qualifications. This application was rejected by the Toronto Station Manager Mr. Philippe Lemieux who explained that the required qualifications for this position were modified to allow junior personnel to qualify and the position was ultimately awarded to a junior employee. |
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Since February 1993 the respondent has displayed considerable preference in hiring and promoting younger and/or francophone employees while systematically eliminating older, long term employees of other origins. This preference does not entail a bona fide occupational qualification. The process has became known not only among the Teleglobe employees but also in the press as "ethnic cleansing". |
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| [13] The CHRC appointed Mr. Rae Raymond to investigate the applicant"s complaint. The investigator discussed the matter with the applicant and, on November 28, 1996, the applicant wrote to Mr. Raymond in the following terms: |
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Following our telephone conversation enclosed please find copy of final settlement between the Telecommunications Technical Supervisors Association and Teleglobe Canada Inc. The TTSA vigorously opposed to and succeeded in blocking my attempts to have a hearing at the Canada Labour Board regarding severe violations of the TTSA collective agreement and the Canada Labour Code with respect to unfair labour practices. |
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Further to the so called "reinstatement" offer I find it necessary to add that during my employment with Teleglobe Canada (or elsewhere) I have never held position of "Telecommunications Technologist", therefore cannot be reinstated to it. In fact, at the time of the termination of my employment I supervised a team of 10 Telecommunications Technologists and been employed as a Technical Supervisor by Teleglobe Canad since 1977. Moreover, at the time this "offer" was made, at least 30% of the Telecommunications Technologists employed in Toronto station were declared redundant and are no longer employed by Teleglobe. Two junior Technologists were also promoted (to Associate Manager Toronto Station and Station Engineer, Toronto) which further reduced the number of Telecommunications Technologists. |
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I can be reached by phone at XXX-XXX-XXXX. Please note that I am employed abroad and travel extensively, therefore my reply may be delayed. |
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Should you require additional information please contact me anytime. |
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| [14] On December 17, 1996, the investigator issued his report to the CHRC and recommended that "the Commission not deal with the complaint". The investigator indicated to the CHRC that the matter should be resolved as follows: |
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[P]ursuant to paragraph 41(d) of the Canadian Human Rights Act, not to deal with the complaint (T34893) of Walter Prinesdomu of Unionville, Ontario against Teleglobe Canada Incorporated dated September 1996, alleging discrimination in employment, on the grounds of age and national and ethnic origin, because the complainant has entered into an agreement with the respondent in which the complainant has agreed not to puruse [sic] a complaint. |
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| [15] Following receipt of a copy of the investigator"s report, the applicant wrote to Mr. Charles Théroux, the Assistant-Director of Complaints and Investigations for the CHRC on January 6, 1997. In his two page letter to Mr. Théroux, the applicant explains why, in his view, the investigator misunderstood the effect of the release which he signed on March 25, 1996. |
| [16] On January 16, 1997, Harry Kopyto, Legal Agent, acting on behalf of the applicant, wrote to Mr. Théroux setting out in broader terms, the reasons why the applicant believed that his complaint should be allowed to go further. |
| [17] On February 26, 1997, the CHRC wrote to the applicant advising him that the CHRC had concluded that his complaint was, in the circumstances, vexatious and would not be allowed to go forward. The letter reads, in part, as follows: |
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I am writing to inform you of the decision taken by the Canadian Human Rights Commission in your complaint against Teleglobe Canada Inc. (T34893). Before rendering its decision, the members of the Commission reviewed the report which was disclosed to you previously, as well as the submission dated January 16, 1997, signed by Harry Kopyto. |
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After examining this information, the Commissioners decided not to deal with the complaint. The reasons for the Commission"s decision are as follows: |
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Pursuant to paragraph 41(d) of the Canadian Human Rights Act, the Commission has resolved not to deal further with the complaint because: |
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on March 25, 1996, the complainant entered into an agreement with the respondent; |
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this agreement includes a term under which the complainant agrees to release and discharge the respondent from all actions, complaints and grievances arising from his employment; |
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on September 26, 1996, the complainant filed a complaint with the Commission arising from his employment with the respondent; |
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in the circumstances, it would be vexatious to pursue the investigation of this complaint. |
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| [18] The applicant submits that the release covered the employment relationship existing on or before December 5, 1994 and, as such, did not prevent him from bringing a complaint to the CHRC with respect to job applications that were made after the termination of his employment. |
| [19] The applicant submits that the CHRC misapprehended the evidence and drew inappropriate inferences amounting to errors that invalidated the decision in giving the release a prospective effect. |
| [20] The applicant submits that, should it be found that the release was drafted to cover future work applications, it should be found, on public grounds, to be unconscionable and a restraint of free trade and freedom of contract. |
| [21] In the alternative, the applicant argues that he signed the release under duress and that this should vitiate his contract. At the time the applicant signed the release, he had been laid off from work for some time, had faced the prospect of losing his job completely and was burdened with having two sons to support. The applicant also submits that the fact that the CHRC did not consider these circumstances to establish duress is a failure and constitutes a reviewable error. |
| [22] The applicant further submits that this Court should grant him his relief because, under the principle of detrimental reliance, he relied on the official communication by a member of the CHRC affirming his entitlement to file a complaint following the grievance process. |
| [23] In my view, the application cannot succeed. The applicant"s complaint was dismissed by the CHRC on the basis of section 41(d) of the Canadian Human Rights Act , R.S. 1985, c. H-6, which provides as follows: |
| 41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
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41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants_:
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| (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
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d) la plainte est frivole, vexatoire ou entachée de mauvaise foi;
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| [24] In Canada (Attorney General) v. Merrick, [1996] 1 F.C. 704, McKay J. had to consider an application for judicial review brought by the Attorney General of Canada attacking a decision made by the CHRC pursuant to paragraph 41(e)1 of the Canadian Human Rights Act. By its decision, the CHRC had decided to consider a complaint filed approximately 6 years after the act complained of had occurred. In concluding that he would not interfere with the impugned decision, MacKay J., at pages 712 and 713, makes the following remarks with which I agree entirely. |
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It is well settled that in exercising the statutory discretion vested under paragraph 41(e) of the CHR Act, the Commission acts primarily in an administrative capacity. Paragraph 41(e) provides as follows: |
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41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that |
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(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. |
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It is also settled that the Court should not interfere with the exercise of discretion by a statutory authority where it has been exercised in good faith, in accordance with the principles of natural justice, and without placing reliance upon considerations irrelevant or extraneous to the statutory purpose. |
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Recently, the standard for review, specifically in the context of the Commission's exercise of discretion to proceed with a complaint, was commented upon by Jerome A.C.J. in Lukian v. Canadian National Railway Co. as follows: |
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Generally, when Courts are called upon to review the exercise of an administrative tribunal's discretionary power, they will be reluctant to interfere since tribunals, by virtue of their training, experience, knowledge and expertise, are better suited than the judiciary to exercise those powers. Provided the Commission's decision is within the discretion given to it, the Court will not interfere with the manner in which it was exercised, unless it can be shown the discretion was exercised contrary to law. What the law requires is the Commission to consider each individual case before it, to act in good faith, to have regard to all relevant considerations and not be swayed by irrelevant ones, and to refrain from acting for a purpose contrary to the spirit of its enabling legislation or in an arbitrary or capricious manner. |
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In sum, this Court should intervene in this case only if it is persuaded that the Commission has erred in law or has acted unreasonably. |
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| [25] The evidence before me does not demonstrate that the CHRC either erred in law or acted unreasonably. The conclusion reached by the CHRC that "it would be vexatious to pursue the investigation of this complaint" is one that, in my view, was open to the CHRC. Whether or not I would have construed the release signed by the applicant in the way the CHRC and the investigator did, is not relevant. I am, however, satisfied that the CHRC"s interpretation and that of its investigator is not unreasonable. In any event, I am of the view that the CHRC"s interpretation of the release is correct. Put another way, it is my view that the release signed by the applicant covered the subject matter of his complaint. |
| [26] To conclude, I wish to say that on many occasions in regard to decisions made by the CHRC, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, this Court has made it clear that the CHRC has a wide discretion with which this Court should not lightly interfere. Although subparagraph 44(3)(b)(i) is drafted in terms not identical to those of paragraph 41(c), the approach taken by this Court under subparagraph 44(3)(b)(i) is applicable to the present matter. In Slattery v. Canadian Human Rights Commission, [1996] 205 N.R. 383, Hugessen J., for the Federal Court of Appeal, made the following comments: |
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We are all of the view that the Commission fully complied with its duty of fairness to the complainant when it gave her the investigator's report, provided her with full opportunity to respond to it, and considered that response before reaching its decision. The discretion of the Commission to dismiss a complaint pursuant to subparagraph 44(3)(b)(i) is cast in terms even broader than those which were considered by the Supreme Court of Canada in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission) where the content of the duty of fairness in such cases was described as follows by Sopinka J. for the majority: |
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I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. |
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The Commission was entitled to consider the investigator's report, such other underlying material as it, in its discretion, considered necessary and the representations of the parties. The Commission was then obliged to make its own decision based on this information. |
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In our view, the defects which the complainant alleges in the preparation of the investigator's report could not serve to vitiate the Commission's decision as long as these requirements were met. |
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The appeal will be dismissed with costs. |
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| [27] In Linton Roberts v. Canada Post Corporation, October 24, 1997, File A-352-96, Strayer J.A., for the Court of Appeal, made the following remarks concerning the approach to be taken by this Court in reviewing discretionary decisions of the CHRC. At page 2 of its reasons, the learned judge says the following: |
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In making its decision the Commission had before it the reports of its investigator together with the appellant"s lengthy written submission commenting on and objecting to various statements in those reports. It was the duty of the Commission to consider all this material in determining whether an inquiry before a Tribunal would be warranted. We have no reason to think that the Commission did not consider all this material including the appellant"s representations. The appellant asserted before us that there were certain errors in the investigator"s reports and he also had drawn most of these errors to the attention of the Commission. We do not consider any of these errors to be substantive or a basis for setting aside the decision of the Commission. In exercising its jurisdiction to decide whether a Tribunal should be appointed "having regard to all circumstances" the Commission can take into account many factors, including the quality of possible evidence, and it has a wide discretion with which a court should not lightly interfere. The trial judge correctly declined to intervene. |
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| [28] Consequently, I have not been persuaded that there is any basis to interfere with the decision made by the CHRC not to deal any further with the applicant"s complaint. As a result, the applicant"s application for judicial review shall be dismissed. |
Montreal, Quebec Marc Nadon
July 06, 1999 JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-555-97
STYLE OF CAUSE: WALTER PRINESDOMU
Applicant
- and -
TELEGLOBE CANADA INC.
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: June 30, 1999
REASONS FOR ORDER OF NADON J.
DATED: July 6, 1999
APPEARANCES:
| Walter Prinesdomu the Applicant on his own behalf |
| Me Dominique Monet for the Respondent |
SOLICITORS OF RECORD:
| Markham, Ontario the Applicant on his own behalf |
Martineau, Walker
| Montreal, Quebec for the Respondent |
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| 41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that [...](e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. |
41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants: [...]e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances. |