Date: 20050512
Docket: T-952-03
Citation: 2005 FC 665
BETWEEN:
DWIGHT S. HUGGINS
Applicant
and
CANADA POST CORPORATION
Respondent
[1] Dwight Huggins is different from most of Canada Post's employees in Montreal. He is different to the eye and different to the ear. He is black and only speaks English.
[2] In July 2001, he filed a complaint with the Canadian Human Rights Commission. He alleged that Canada Post had discriminated against him by failing to provide him with a workplace free from harassment on the grounds of race (black) and national or ethnic origin (English Canadian).
[3] The last of the incidents in question took place in May 1998. The investigator who was appointed to check into the matter recommended that the Commission not deal with the allegations because they had taken place more than one year before the complaint was filed, and because Mr. Huggins had not provided evidence to support his contention that he was unable to file the complaint earlier.
[4] The investigator's report was sent to both Mr. Huggins and to Canada Post. They were given the opportunity to comment thereon, and to comment on each other's comments. Both commented on the report, and Canada Post commented in turn upon Mr. Huggins' comments.
[5] The Commission agreed with the investigator and decided not to deal with the allegations. This is the judicial review of that decision.
THE INVESTIGATOR'S REPORT
[6] The basis of the investigator's report is section 41 of the Canadian Human Rights Act, 1985 R.S.C., c. H-6. The relevant portion of section 41(1) provides:
|
41. (1) ... 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) [...] 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. |
[7] It is common ground that the last incident occurred in May 1998. Canada Post carried out an investigation and informed Mr. Huggins the next month that it was of the view his complaint was without merit. Consequently, the investigator considered that the year should run from June 1998.
[8] According to the investigator, Mr. Huggins had not provided any evidence to support his contentions that he was unable to file the complaint earlier because of fears of retaliation against his wife, who also worked for Canada Post, or that he was precluded from filing a complaint due to illness. The investigator also noted that Canada Post objected to extending the normal one year limitation period because Mr. Huggins had tendered his resignation in May 1998 and only rejoined it approximately two years later. As a result, and given that he only filed the complaint three years after the alleged incidents, some relevant documents had been destroyed in the ordinary course, thus prejudicing its defence.
[9] The investigator recounted that Mr. Huggins had made an internal complaint in February 1998 on another matter, while both he and his wife were working for Canada Post; that he expressed concern that if he pursued a complaint with the Commission she would likely be dismissed; and that he was depressed. However, he had not provided any medical records to back up those allegations.
[10] When he applied to be re-hired, he wrote to Canada Post and said he had sought other employment opportunities and had a job for a while with the Montreal Gazette. He also "explored creative endeavours which I've always wanted to pursue".
[11] Mr. Huggins responded to the investigator's report by providing medical records and ambulance records. He also provided an affidavit from his wife about alleged incidents of harassment at her workplace.
[12] Canada Post replied to Mr. Huggins' letter by saying that he had provided nothing which would show that he was prevented from filing a complaint earlier. Indeed, he was cross-examined on his affidavit and had indicated that at one point in time after his resignation he wanted to put matters behind him, get on with his life and let matters lie as they were.
ISSUES
[13] The parties suggest two issues. One is the applicable standard of review, and the other is procedural fairness. Mr. Huggins submits that the issue should be characterized as procedural fairness and no deference is owed to the Commission because its decision is wrong in law.
ANALYSIS
[14] The starting point has to be section 41(1)(e) of the Act itself. The matter is timebarred unless the Commission in its discretion extends that time. Discretionary decisions are always accorded great deference in that, at the very least, they will not be interfered with unless clearly wrong or exercised on a wrong principle.
[15] There are three standards for judicial review: correctness, reasonableness simpliciter and patent unreasonableness. The pragmatic and functional approach as set out in such cases as Dr. Q. v. College of Physician and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, requires the Court to weigh a number of factors in order to determine whether a particular issue should receive exacting review (correctness), significant searching or testing (reasonableness simpliciter), or be left to the near-exclusive determination of the original decision-maker (patent unreasonableness). A question of procedural fairness is usually considered a question of law on which relief will be given if the decision is not correct. As Binnie J., speaking for the majority of the Supreme Court in CUPE v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, said at paragraphs 102 and 103:
102. The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.
103. On occasion, a measure of confusion may arise in attempting to keep separate these different lines of enquiry. Inevitably some of the same "factors" that are looked at in determining the requirements of procedural fairness are also looked at in considering the "standard of review" of the discretionary decision itself. Thus in Baker, supra, a case involving the judicial review of a Minister's rejection of an application for permanent residence in Canada on human and compassionate grounds, the Court looked at "all the circumstances" on both accounts, but overlapping factors included the nature of the decision being made (procedural fairness, at para. 23; standard of review, at para. 61); the statutory scheme (procedural fairness, at para. 24; standard of review, at para. 60); and the expertise of the decision maker (procedural fairness, at para. 27; standard of review, at para. 59). Other factors, of course, did not overlap. In procedural fairness, for example, the Court was concerned with "the importance of the decision to the individual or individuals affected" (para. 25), whereas determining the standard of review included such factors as the existence of a privative clause (para. 58). The point is that, while there are some common "factors", the object of the court's inquiry in each case is different.
[16] Mr. Huggins argues that the Commission must not have considered the additional evidence he supplied because it used the same language as the investigator did, i.e. that he had not provided "any evidence to support his contentions that he was unable to file the complaint because of fears of retaliation against his wife or that he was precluded from filing a complaint due to illness".
[17] If that is the case, his application must succeed. No matter whether an issue of procedural fairness or a question of a standard of review, if there is relevant evidence that the Commission should have considered, but did not, then judicial review should be granted.
[18] In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, (QL), Evans J., as he then was, said that the Court may infer that an administrative tribunal made an erroneous finding of fact "without regard to the material before it" to use the language of section 18.1 of the Federal Courts Act "from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding and pointed to a different conclusion from that reached by the agency".
[19] The Commission says it considered all the information on file before reaching its decision and, with all respect, I see no reason to disbelieve it, or to interfere with its decision.
[20] The question is not whether or not there was "any evidence" of medical problems or "any evidence" that there might be retaliation against his wife. The evidence Mr. Huggins provided was that he was treated for a "stiff neck". The evidence with respect to his wife, which is in the form of her own affidavit, alleges incidents which might be termed harassment, incidents which occurred both before and after May and June 1998, incidents which appear particular to her in her own right, rather than incidents which occurred because she was married to Mr. Huggins.
[21] These incidents certainly are not of such a nature that one should conclude that the Commission exercised its discretion unreasonably, upon a wrong principle, or in bad faith in refusing to extend time. The law was clearly set out by MacKay J. in Cape Breton Development Corp. v. Hynes (1999), 164 F.T.R. 32, where he said at paragraph 15:
It is well settled, as all parties agree, that decisions of the Commission under paragraph 41(e) are discretionary administrative decisions. [note omitted] Decisions of that nature are not readily set aside, and courts will not interfere, even if they might have exercised the discretion differently, where the discretion has been exercised in good faith, in accord with the principle of natural justice and procedural fairness, and where reliance has not been placed on considerations that are irrelevant or extraneous to the statutory purpose. [note omitted]
[22] Even in cases where timebar is not in issue, the Court is most reluctant to interfere with the discretion Parliament has given the Commission. As Décary J.A. said in Bell Canada v. Communications, Energy and Paperworkers' Union of Canada, [1999] 1 F.C. 113, at paragraph 38:
38. The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.
[23] For these reasons, the application for judicial review shall be dismissed with costs.
"Sean Harrington"
Judge
Ottawa, Ontario
May 12, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-952-03
STYLE OF CAUSE: DWIGHT S. HUGGINS
AND
CANADA POST CORPORATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MAY 9, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: MAY 12, 2005
APPEARANCES:
Piero Iannuzzi FOR APPLICANT
Dennis Griffin FOR RESPONDENT
Nicolas St-Pierre
SOLICITORS OF RECORD:
Piero Iannuzzi FOR APPLICANT
Montreal, Quebec
Fasken Martineau DuMoulin FOR RESPONDENT
Montreal, Quebec