Ottawa, Ontario, August 11, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
CANADIAN HUMAN RIGHTS COMMISSION
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an Application for judicial review of a decision of the Canadian Human Rights Commission (Commission), dated October 28, 2005, (Decision) wherein the Commission concluded that, pursuant to section 41.(1)(e) of the Canadian Human Rights Act, P.S.C. 1985 c. H-6 (Act), it would not deal with the Applicant’s complaint (Complaint) as “the complaint is based on acts which occurred more than one year before the filing of the complaint.”
BACKGROUND
[2] The Applicant, Jeffery Legere, enlisted with the Canadian Forces in February 1989.
[3] In or about December 1991, he suffered a grand mal seizure. Following this initial seizure, he was diagnosed with cerebral arterio-venus malformation (Medical Condition).
[4] As a result of his Medical Condition, the Applicant was prone to seizures.
[5] As a part of his service with the Canadian Forces, the Applicant was required to train for and be prepared for military occupation. The standards set for a Canadian Force’s military occupation training and preparedness are referred to as the MOC Qualifications.
[6] The Applicant’s Medical Condition prevented him from meeting the MOC Qualifications.
[7] On or about August 21, 1997, a Canadian Forces Career Review Board recommended that the Applicant be released from the Canadian Forces beginning April 29, 1998, due to his medical condition.
[8] On or about February 26, 1998, the Applicant grieved his Pending Service Termination on the basis that it constituted discrimination (Grievance).
[9] On April 29, 1998, the Applicant’s service with the Canadian Forces was terminated in accordance with the Canadian Forces Career Review Board decision (Service Termination).
[10] The Service Termination occurred approximately nine months prior to the date on which the Applicant would have been eligible for a pension from the Canadian Forces.
[11] In or about January 2004, the Grievance was considered by the Canadian Forces and a decision was rendered by the Chief of Defence Staff on or about January 10, 2004, allowing the Applicant partial redress, in that he was granted leave to re-enrol in the Canadian Forces.
[12] The Applicant re-enrolled with the Canadian Forces on or about August 17, 2004 (Re-enrolment Date).
[13] Between the Service Termination and the Re-enrolment Date, the Applicant lost nearly six years of pension benefits (Lost Pension Benefits).
[14] Following the re-enrolment decision, the Applicant’s request for compensation with respect to the Lost Pension Benefits was referred to the Director Claims and Civil Litigation for the Canadian Forces (DCCL), to determine what, if any, compensation the Applicant would be entitled to with respect to the Canadian Forces’ discriminatory acts in terminating his service with the Canadian Forces.
[15] On or about June 22, 2004, the DCCL refused the Applicant’s request for compensation, including compensation with respect to the Lost Pension Benefits.
[16] The Applicant has never been compensated for the Lost Pension Benefits.
[17] On or about February 16, 2005, the Applicant filed the Complaint with the Commission pursuant to the Act.
[18] The Complaint alleges that the decision of the DCCL on June 22, 2004, to refuse the Applicant compensation for the Lost Pension Benefits constitutes a discriminatory act.
[19] The Complaint also alleges that the Canadian Forces, in refusing to pay the Applicant’s Lost Pension Benefits, continue to discriminate against him in respect of his disability.
[20] On or about October 28, 2005, the Complaint was rejected by the Commission on the basis that it was not brought within one year of the discrimination complained of and so was statute-barred.
RELEVANT LEGISLATION
[21] Section 41 of the Act states:
|
(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. |
ISSUE
[22] There is only one issue raised in this application.
1. Was the Complaint filed within one year of the discriminatory acts or omissions complained of?
ARGUMENTS
Applicant
Standard of Review
[23] The Commission has a discretion in performing its screening function under section 41.(1)(e) of the Act, which discretion has been judicially recognized. This Court has stated as follows:
the standard of review applicable to the Commission’s section 41.(1)(e) decision not to deal with a complaint that was over one year in the past, is a deferential one, that is, a standard of patent unreasonableness.
Price v. Concord Transportation Inc., [2003] F.C.J. No. 1202, 2003 FC 946 (T.D.).
[24] However, the Applicant submits that, after application of a pragmatic and functional analysis, it is evident that a lower standard of review applies in this case where the Commission is required to determine whether the act of discrimination complained of is the “last” occurrence of discrimination within the meaning of section 41.(1)(e).
Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, para. 26.
[25] The pragmatic and functional approach has been described by the Supreme Court of Canada as follows:
The pragmatic and functional approach involves the consideration of four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question – law, fact or mixed law and fact (citations omitted)
Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 R.C.R. 609, 2004 SCC 23, para. 16.
[26] The Act contains no privative clause. However, there is also no statutory right of appeal.
[27] The Applicant submits that, with respect to the fourth part of the pragmatic and functional approach, the present issue before the Court is one of mixed law and fact. The Commission was asked to determine whether the DCCL’s decision of June 22, 2004, was the “last act of discrimination” conducted by the Canadian Forces within the meaning of section 41.(1)(e) of the Act. This is more than a question of fact. The fact itself, that the DCCL made the decision on June 22, 2004, is indisputable. It is the legal effect of this fact in respect of the limitation period contained in the Act that the Commission considered. The Applicant says this is a question of mixed law and fact.
[28] Given that the question before the Commission was one of mixed law and fact, the Commission has no greater expertise on the issue of concern than this Court. In cases of pure fact, where a wide variety of evidence must be collected, and issues of relevance and credibility assessed, then the Commission most certainly is in a better position than the Court to make a decision. However, in this case, it is the application of the legal principles that is most important, and in that respect, this Court is in as good a position, if not better, to make a decision in respect of the timeliness of the Applicant’s claim.
[29] Finally, the underlying purpose of the Act is to prevent discrimination, and to provide redress where discrimination occurs. As such, the Act should be given a fair, large and liberal interpretation.
Canada (Human Rights Commission) v. Canadian Airlines International Ltd., [2004] F.C.J. No. 483, 2004 FCA 113.
[30] The Applicant urges the Court to conclude that an application of the pragmatic and functional approach in this case reveals that little deference is owed to the Commission on the Decision. As such, and in the absence of a statutory right of appeal, the Applicant submits that the applicable standard of review is reasonableness simpliciter.
Is the Applicant’s Complaint Statute-Barred?
[31] The Applicant points out that the Federal Court of Appeal has stated that a complaint should only be dismissed at the preliminary stage in the most obvious of cases:
A decision by the Commission under section 41 is normally made at an early stage before any investigation is carried out. Because a decision not to deal with the complaint will summarily end a matter before the complaint is investigated, the Commission should only decide not to deal with a complaint at this stage in plain and obvious cases... .
Canada Post Corp. v. Canada (Canadian Human Rights Commission), [1997] F.C.J. No. 578, para. 4, aff’d [1999] F.C.J. No. 705 (QL).
[32] The Applicant submits that the Commission erred in determining that the Applicant’s Complaint was with respect to events which occurred in 1998. The Commission’s Decision is patently unreasonable as it is plain and obvious that the Applicant’s Complaint is in respect of the DCCL decision of June 22, 2004. The Complaint was brought within 9 months of that decision, and well within the one year time limit imposed by section 41.(1)(e) of the Act. The June 22, 2004, decision of the DCCL stands alone as a separate act of discrimination.
[33] The Complaint is not in respect of the termination of the Applicant’s service with the Canadian Forces in 1998. That matter was redressed in January 2004. The Complaint is that, in deciding to deny the Applicant the Lost Pension Benefits in June 2004, the Canadian Forces discriminated against him on the basis of his medical condition.
[34] In the alternative, the Applicant submits that there is no evidence that the Commission considered the relevant test as to what constitutes a “last” occurrence of discrimination under section 41.(1)(e), and as a result the Commission erred in failing to consider evidence of discrimination in 2004.
[35] It is true that the Canadian Forces’ first act of discrimination towards the Applicant occurred in April 1998, when it terminated his service as a result of his medical condition and disability. It is not disputed that a complaint with respect to his termination from service in the Canadian Forces would have had to have been brought by April 1999.
[36] Between April 1998 and January 2004, however, the Canadian Forces continued to discriminate against the Applicant by refusing to reinstate him, so that he could fulfill the final nine months of service required to make him eligible for pension benefits.
[37] These discriminatory acts were addressed by the redress of the Grievance in January 2004. The Applicant has since been allowed to re-enroll in the Canadian Forces and has begun receiving a pension, following completion of the last nine months of his service.
[38] It was not until January 2004, that it was determined that the Applicant even had a right to pension benefits. Once the decision was made to redress his termination from the service, the question arose as to whether he was entitled to compensation for the Lost Pension Benefits in the intervening period. This question could not be considered until after January 2004, so the Applicant says it is difficult to see how determination of this question in June 2004, can be considered an act of discrimination occurring in 1998, as impliedly found by the Commission.
[39] The Applicant says, therefore, that the decision by the DCCL on June 22, 2004, to refuse to compensate him for the Lost Pension Payments constitutes a new act of discrimination. It is not a direct consequence of his termination from the service, but rather a fresh act of discrimination in itself. In effect, by making a decision that the Applicant was not entitled to compensation for the discrimination that he suffered, the DCCL refused to accommodate his disability.
[40] Stated simply, the Applicant says that the decision to terminate his service in 1998 was the first discriminatory act, and the decision by the DCCL to refuse compensation was the last discriminatory act.
[41] In the further alternative, the Applicant says the Commission failed to consider that the decision of the DCCL on June 22, 2004, was the last in a series of investigatory steps taken by the Canadian Forces. Nonetheless, it has been previously held that, the limitation period in such cases only begins to run once the last in a series of decisions is made.
Greenwood v. Alberta (Worker’s Compensation Board), [2000] A.J. No. 1360, 2000 ABQB 827.
Salter v. Newfoundland, [2001] N.H.R.B.I.D. No. 5.
[42] In Greenwood, the complainant brought his complaint against the Worker’s Compensation Board only several months after a WCB appeal tribunal upheld a much earlier decision of the WCB itself. The court in that case held that, had the complainant brought his complaint within six months of the WCB appeal tribunal decision, it would not have been statute-barred. The court reasoned as follows:
... the act of resolving a WCB claim can be prolonged by invoking the appeal procedures prescribed by the Workers’ Compensation Act. When a claimant appeals a decision of the WCB, such decision is transformed into an ongoing process of deciding.
(para. 67)
[43] As in Greenwood, the DCCL decision in the present case was the last part of the “ongoing process of deciding” whether the Applicant was entitled to accommodation in respect of the Lost Pension Benefits.
[44] The Applicant submits that the Greenwood case is reflective of the policy found at section 41.(1)(a) of the Act, namely, that a complainant must exhaust all alternate proceedings prior to filing a complaint.
[45] In any event, the Applicant points out that the discrimination in the present case is ongoing in that the Canadian Forces continue to refuse the Applicant compensation for the Lost Pension Benefits, or for any of its discriminatory acts.
Applicant’s Conclusions
[46] The Applicant submits that the Commission’s Decision to refuse to deal with his Complaint on the basis that it was based on acts which occurred more than one year before the filing of the Complaint is unreasonable or, alternatively, patently unreasonable. The Commission failed to consider relevant evidence (the June 22, 2004 decision of the DCCL) and failed to properly apply the test of what constitutes the “last” occurrence of discrimination within section 41.(1)(e) of the Act.
[47] The June 22, 2004 decision of the DCCL to deny him compensation for the Lost Pension Benefits was a separate act of discrimination from the original termination of his service. Any claim that the Applicant had in respect of the 1998 termination of his service has been addressed.
[48] In the alternative, the Applicant concludes that the Commission was unreasonable, or patently so, as a result of its failure to consider that the June 22, 2004 decision of the DCCL was the last part of an ongoing decision process, as in the Greenwood case.
[49] In any event, the Commission’s failure to conclude that the one year time limit in section 41.(1)(e) began to run on June 22, 2004 was unreasonable, or patently unreasonable. Given that the Complaint was filed on February 16, 2005, well within that one year time limit, the Applicant requests that the Decision be quashed, and that the matter be referred back to the Commission for investigation and hearing on its merits.
Respondent
[50] The Respondent points out that the legislative scheme of section 41(1) of the Act creates a second level of screening in determining whether the Commission will deal with a complaint.
[51] The standard of review for a decision of the Commission to dismiss a claim pursuant to subsection 41.(1)(e) of the Act is patent unreasonableness. A patently unreasonable decision is one where the defect of the decision is obvious on its face. A patently unreasonable decision will be clearly irrational or not in accordance with reason. In making the determination whether to extend the one year time limit, the Commission must weigh the evidence before it. The manner by which this is done is within the Commission’s discretion and the Respondent says it is not open to this Court to weigh the evidence differently.
Johnston v. Canada Mortgage and Housing Corp., [2004] F.C.J. No. 1121, paras. 8 and 11.
Good v. Canada (Attorney General), [2005] F.C.J. No. 1556, paras. 22-23.
Tse v. Federal Express Canada Ltd., [2005] F.C.J. No. 740, para. 26.
[52] This Court has recently and consistently held that it should not interfere with discretionary decisions of the Commission, even if it might have exercised the discretion differently, as long as the discretion is exercised in good faith, in accordance with principles of natural justice and procedural fairness, and where no reliance is placed on extraneous considerations.
Price v. Concord Transportation Inc., [2003] F.C.J. No. 1202, para. 42.
McEachran v. Ontario Power Generation, [2006] F.C.J. No. 84, para. 9.
[53] The Respondent says that the Commission acted reasonably in determining that the Applicant’s Complaint was out of time. It is clear that the Commission exercised its discretion in good faith, in accordance with principles of natural justice and procedural fairness, and that it did not rely on extraneous considerations.
Application of subsection 41.(1)(e) of the Act
[54] The Respondent points out that the purpose of subsection 41.(1)(e) of the Act is to ensure that complaints are brought in a timely fashion. This Court has held that the Commission does not have jurisdiction to deal with a time-barred complaint unless it first exercises its jurisdiction to do so pursuant to subsection 41.(1)(e) of the Act. At the preliminary screening stage, neither the merits nor the substance of the case are examined. The Commission only examines whether section 41.(1)(e) applies to prevent the complaint from proceeding;
Canadian Broadcasting Corp. (CBC) v. Canada (Canadian Human Rights Commission), [1993] F.C.J. No. 1334, paras. 26 and 45.
Zavery v. Canada (Human Resources Development), [2004] F.C.J. No. 1122, para. 11.
Price, supra, paras. 37 and 48.
Good, supra, paras. 21 and 29.
[55] The Applicant submitted his complaint on February 16, 2005. The Commission determined that the Applicant’s allegations related to acts that occurred in 1998. The Commission reviewed the Applicant’s and the Respondent’s written representations and decided not to deal with the Complaint pursuant to subsection 41.(1)(e) of the Act because it was based on acts which occurred more than one year before the filing of the Complaint.
[56] In his memorandum, the Applicant asserts that the Commission erred in determining that the Complaint was with respect to events which occurred in 1998, as it is plain and obvious that the Complaint is in respect of the DCCL decision of June 22, 2004, to deny the Applicant monetary compensation.
[57] On an analysis of the Complaint, however, the Respondent says it is far from clear that it was only in respect of the DCCL decision of June 22, 2004. In his Complaint, the Applicant refers to the Respondent’s failure to accommodate the Applicant’s request for an extension of time of his medical release date in 1998, so that he would become entitled to an immediate and indexed annuity, the delay of the grievance process, DCCL’s denial of compensation, and DCCL’s alleged denial of compensation for pension benefits between 1998 and 2004.
[58] If the Applicant felt that the grievance decision did not adequately provide a remedy, he could have brought an application for judicial review of the grievance decision. Instead, he filed a complaint with the Commission which he now alleges was only in relation to the DCCL decision of June 22, 2004, to deny him compensation for Lost Pension Benefits between 1998 and 2004.
Was the Commission’s Decision Patently Unreasonable?
[59] The Respondent says that the relevant date for commencing the time period is the matter in dispute. The Applicant contends that it should be June 22, 2004, the date of the DCCL decision; whereas the Commission has stated that it considers the appropriate date to be 1998, i.e. the date of medical release.
[60] The Applicant asserts that the Commission failed to consider that the decision of DCCL on June 22, 2004, was the last in a series of investigatory steps and that the limitation period only begins to run once the last in a series of decisions has been made. The Respondent says this is not an accurate reflection of the current state of the law. This Court has recently held that a complainant has one year from the time of his dismissal to file a formal written complaint with the Commission.
Good, supra, paras. 25-27.
Johnston, supra, para. 6.
[61] In Tse, the dates in dispute for the commencement of the limitation period were the date of termination or the date when Mr. Tse had exhausted the internal levels of appeal. This Court held that the relevant date for the commencement of the limitation period was the date of termination. Justice Dawson pointed out that this issue had previously been decided by the Federal Court of Appeal:
In Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 at paragraph 28, the Federal Court of Appeal agreed with a decision of the Commission that discharge from employment is an act that takes place, and is completed, at a specific point in time. Continued insistence by the employer that the decision to dismiss was justified does not have the effect of making the act of discharge a continuing discriminatory practice.
The Federal Court of Appeal reiterated this view in Lever v. Canada (Human Rights Commission), [1988] F.C.J. No. 1062. There, the Court held that where a complaint arose out of employment, after the date of discharge no later event could give rise to complaints relating to employment.
Tse, supra, paras. 29-30.
[62] The Applicant was medically released on April 29, 1998. Therefore, says the Respondent, he had one year from that date to file an official written complaint with the Commission (April 29, 1999). He failed to do so. The official Complaint was received by the Commission on February 16, 2005. In this case, the Commission reasonably determined that the allegations in the complaint were statute-barred. It is within the Commission’s discretion to reject a complaint for failure to respect the time limitation.
The Complaint was never addressed by DCCL
[63] The Respondent goes even further and points out that, in his decision of the Applicant’s Grievance on January 10, 2004, the Chief of Defence Staff referred the Applicant’s case to the DCCL for consideration of legal liability and any monetary settlement that might be appropriate for the failure to grant the Applicant’s request for an extension of the date of his medical release. In his referral to DCCL, the Chief of Defence did not request that the DCCL consider compensation for Lost Pension Benefits between 1998 and 2004. Further, the Applicant never requested that the DCCL consider compensating him for Lost Pension Benefits between 1998 and 2004.
[64] The DCCL’s decision of June 22, 2004, dealt with whether the Respondent was legally liable for denying the Applicant’s request for an extension of his release date. DCCL did not address whether compensation should be provided for the Lost Pension Benefits. Therefore, the Applicant brought a complaint to the Commission in relation to a decision to deny him Lost Pension Benefits between 1998 and 2004 that never occurred.
[65] The DCCL’s denial of monetary compensation has no bearing on the Applicant’s entitlement to Lost Pension Benefits between 1998 and 2004. At paragraph 18 of the Applicant’s memorandum he asserts that the DCCL’s decision to refuse to compensate him for the Lost Pension Benefits constitutes a new act of discrimination. DCCL is the Respondent’s legal advisor and, the Respondent argues, its decision to deny the Applicant any monetary compensation cannot be the foundation of an act of discrimination. As such, the Complaint of the DCCL decision has absolutely no merit whatsoever, and the date upon which the DCCL made its decision should not be taken into consideration when determining the commencement of the relevant time period for the filing of the Complaint with the Commission.
No Reasonable Explanation for Delay
[66] The Respondent further submits that for the Applicant to have his Complaint heard, he needs to provide the Commission with sufficient reasons for the delay. In his memorandum, he submits that he was bound by section 41.(1)(a) of the Act to exhaust all alternate recourses prior to filing his Complaint with the Commission. A reasonable interpretation of the legislation, however, would suggest otherwise. Subsection 41.(1)(a) of the Act does not say that potential complainants ought to exhaust grievance or review procedures before the Commission will deal with a complaint. Nowhere in the legislation does it state that a complainant must pursue alternate grievance or review procedures where doing so will force the potential complainant to miss the time limitation in 41.(1)(e) of the Act. As such, the decision to grieve prior to filing a complaint was solely that of the Applicant.
[67] Subsection 41.(1)(e) of the Act clearly states that the time limitation for filing a complaint is one year from the date of the alleged last incident of discrimination, or such longer period as the Commission considers appropriate in the circumstances. The Respondent says that this wording clearly indicates that the time limit is one year, and after one year a determination of this issue rests within the discretion of the Commission.
[68] In McEachran, the complainant failed to file a complaint within the one year time limitation because he was pursuing a grievance process. This Court upheld the Commission’s decision to dismiss the complaint because he should have filed a complaint with the Commission. In the present case, the Applicant should have filed a complaint with the Commission when he was denied an extension of his medical release date. It was at that point that the Commission would have determined whether section 41.(1)(a) of the Act applied and may have directed the Applicant to pursue his grievance before pursuing his complaint with the Commission. Instead, the Applicant interpreted section 41.(1)(a) in his own way, failed to file a complaint with, or contact the Commission and filed a grievance. As such, he cannot complain now about the Commission’s Decision.
McEachran, supra, paras. 7 and 10.
Respondent’s Conclusions
[69] The Respondent submits that the Commission acted reasonably and in good faith when it dismissed the Applicant’s Complaint on the ground of timeliness. As the decisions of the Commission pursuant to subsection 41.(1)(e) are discretionary administrative decisions, they should not be easily set aside, and the Court should not interfere, even if it might have exercised the discretion differently, where the discretion has been exercised in good faith, in accordance with the principle of natural justice and procedural fairness.
ANALYSIS
[70] I have to say at the outset that, even at a purely semantic level, the Commission’s Decision is difficult to understand.
[71] It is clear from the Applicant’s Complaint that the act or omission in question is the denial of benefits found in the DCCL letter of June 22, 2004. There is, of course, a history to that denial which the Applicant recites in the Complaint in order to assist the Commission in understanding the significance of the denial. But the Applicant’s Complaint is not in relation to that history. The Complaint is exclusively concerned with the denial of benefits contained in the DCCL letter of June 22, 2004.
[72] Section 41.(1)(e)of the Act is mandatory: “the Commission shall deal with any complaint filed ...” unless “the complaint is based on acts or omissions the last of which occurred more than one year ... before the receipt of the complaint.”
[73] The Commission refused to deal with the Complaint in this case because “the complaint is based on acts which occurred more than one year before the filing of the complaint.”
[74] This statement is certainly inaccurate if the Complaint itself is taken at face value, because the Complaint only relates to the June 22, 2004, denial of benefits. In order for the Commission’s Decision to make any sense, the Court would have to find that the words “based on” in subsection 41.(1)(e) of the Act mean not only the specific act or omission referred to in the Complaint, but also any act or omission that may have occurred in the historical sequence of events that led to the act or omission complained of.
[75] The Respondent has adduced no authority or argument that it was Parliament’s intent that section 41.(1)(e) should be interpreted in this way, and the subsection’s plain and obvious meaning should not be distorted by the kind of extended interpretation that the Respondent has placed before the Court.
[76] A complaint cannot be brought before the Commission before the act or omission complained of has occurred. The act or omission complained of in this case occurred on June 22, 2004. The Applicant could not have brought his Complaint before that date, as the Respondent appears to be suggesting. If he had, say, in the context of his earlier grievance raised this matter, he would have had to come to the Commission with a complaint about a possible denial of benefits that might or might not occur as a result of earlier acts of discrimination against him. Any such complaint would have been entirely speculative, and would have remained so in this case until the grievance was dealt with and the Applicant received the final decision on benefits from DCCL dated June 22, 2004.
[77] The cases relied upon by the Respondent (Tse, for example) which say that where a complaint arises out of employment, after the date of discharge no later event can give rise to complaints relating to employment are not, in my view, relevant to a set of facts where the complainant is reinstated and it then has to be determined what benefits go with that reinstatement. By reinstating the Applicant in this case, the Canadian Forces eradicated the earlier date of discharge so that the parties were left to deal, not with the consequences or discharge, but with the consequences of reinstatement. And this is why the Chief of Defence Staff referred the issue of benefits to DCCL. DCCL was not asked to render a decision on the consequences of discharge; it was asked to render a decision on the financial and pension consequences of reinstatement.
[78] The Respondent says that the Applicant was medically released on April 29, 1998, therefore “he had one year from that date to file an official written complaint with the Commission (April 29, 1999. He failed to do so.” This is tantamount to arguing that, at the time of release, it was incumbent upon the Applicant to go before the Commission with all possible consequences of his release even if, at that time, the Canadian Forces had not rendered a decision on what those consequences should be.
[79] The simple answer to this is that the Act requires no such thing of the Applicant. The wording of section 41.(1)(e) is, in my view, plain and obvious, and it compels the Commission to deal with a complaint based upon an act or omission that occurs less that one year prior to the complaint. The act or omission in this case was not the Applicant’s release, it was the decision on benefits made by the DCCL on June 22, 2004, that followed the Applicant’s reinstatement. Had that reinstatement not occurred, then it seems to me that the cases related to the date of discharge of employment might have had some relevance. But I fail to see how the date of release can continue to be the operate date in a situation where reinstatement has occurred and the parties are merely working out what the consequences of reinstatement should be.
[80] The Respondent also argues that “In his referral to DCCL the CDS did not request that the DCCL consider compensation for pension benefits between 1998 and 2004. Further, the Applicant never requested that the DCCL consider compensating him for pension benefits between 1998 and 2004.”
[81] The Applicant did not request DCCL to do anything because the Applicant was dealing with the Chief of Defence Staff who told the Applicant in his January 10, 2004 decision that he was referring various matters resulting from that decision elsewhere and that “I will also be forwarding your case to DCCL for consideration and direct response to you.”
[82] The Applicant was then informed directly by DCCL on January 30, 2004, that DCCL would be reviewing his file and would “make a determination with respect to legal liability and any monetary settlement that might be appropriate in this case.”
[83] So the Applicant was told that DCCL would review and then make a decision on the “legal liability” consequent upon his release and reinstatement. There were no words of limitation. There is nothing which says that “legal liability” will not include consideration of the Lost Pension Benefits, and there was nothing in the letter of the Chief of Defence Staff’s to the Applicant to suggest that DCCL would not be considering those benefits. “Legal liability” is legal liability. It could hardly mean anything else than the sum total of what the Canadian Forces were obliged to pay the Applicant as a consequence of his release and subsequent reinstatement.
[84] The letter of June 22, 2004, provides a blanket conclusion that “the crown is not legally liable for any wrongdoing related to your release from the Canadian Forces.”
[85] It has to be borne in mind that the June 22, 2004 letter is a lawyer’s letter that says as little as possible because of the possible legal consequences. For obvious reasons, it does not elaborate upon the various categories of “legal liability” that the Canadian Forces might be subject to. And it deliberately attempts to narrow the field of possible legal liability by confining matters to “your release from the Canadian Armed Forces.”
[86] But the Chief of Defence Staff specifically told the Applicant in his January 10, 2004 decision that “I have no authority to award you an annuity based on pro rota years of service. I will follow the CFGB recommendation to forward your case to DCCL for their consideration with respect to legal liability and any monetary settlement that might be appropriate.”
[87] In my view then, the DCCL were asked to consider any “legal liability and monetary settlement” that might flow from the Applicant’s release and his reinstatement following the January 10, 2004 decision of the Chief of Defence Staff.
[88] If the DCCL did not address the legal liability for the Canadian Forces to pay the Applicant his Lost Pension Benefits, then that is either an act or an omission it made on June 22, 2004, and the Applicant’s Complaint fell well within the prescribed time limit of section 41.(1)(e).
[89] Irrespective of the standard of review to be applied in this case (whether patent unreasonableness or reasonableness simpliciter), in my view, the Commission committed a reviewable error when it refused to consider the Applicant’s Complaint on its merits because the Complaint was not statute-barred.
JUDGMENT
THIS COURT ORDERS THAT:
1. The Decision of the Commission is quashed.
2. This application for judicial review is allowed.
3. The matter is referred back to the Commission which will now proceed to investigate the Complaint and deal with it on its merits.
4. The Applicant is awarded costs of this application.
“James Russell”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2097-05
STYLE OF CAUSE: JEFFERY LEGERE
v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: July 11, 2006
AND JUDGMENT: Justice Russell
APPEARANCES:
|
Matthew R. Letson
|
|
|
Jessica Harris
|
SOLICITORS OF RECORD:
|
Lawson & Creamer Saint John, N.B.
|
|
|
John H. Sims, Q.C. Ottawa, Ontario |