Toronto, Ontario, October 2, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Canadian Human Rights Commission dismissed Richard Loyer’s complaint against Air Canada because it found that the human rights issues raised by his complaint had been addressed through arbitration. The Commission was also of the opinion that, in all of the circumstances, further inquiry into Mr. Loyer’s complaint was not warranted.
[2] Mr. Loyer now seeks judicial review of the Commission’s decision, asserting, amongst other things, that the Commission’s investigation was insufficiently thorough, and that the substance of his human rights issues had not been dealt with through the arbitral process.
[3] For the reasons that follow, I am not persuaded that the Commission erred as alleged by Mr. Loyer. As a consequence, this application for judicial review will be dismissed.
Mr. Loyer’s Allegations of Discrimination
[4] Mr. Loyer worked as a pilot for Air Canada for some 30 years. In 1993, in the course of a routine Air Canada medical examination, he was found to have elevated liver enzymes, which can be indicative of alcoholism. Over the ensuing years, Mr. Loyer was re-examined on a number of occasions, and the level of his liver enzymes fluctuated from examination to examination. On some occasions they were found to be elevated, and on other occasions, particularly after a period of abstinence on the part of Mr. Loyer, his liver enzymes were found to have returned to normal.
[5] Mr. Loyer was ultimately diagnosed by Air Canada’s physicians as suffering from alcoholism, and was put on disability leave. A Transport Canada doctor also found that Mr. Loyer’s medical tests indicated that he abused alcohol. Transport Canada subsequently decided not to renew Mr. Loyer’s pilot’s licence, the result of which was that in April of 2003, Mr. Loyer was placed on leave without pay by Air Canada.
[6] In the meantime, Mr. Loyer’s personal physician determined that Mr. Loyer suffered from Epstein-Barr Syndrome, a symptom of which is reportedly elevated liver enzymes.
[7] In a human rights complaint against Air Canada filed with the Canadian Human Rights Commission in October of 2003, Mr. Loyer asserted that he was neither alcohol dependant, nor did he abuse alcohol. He further asserted that he had been adversely affected in his employment as a result of Air Canada’s erroneous perception that he was an alcoholic.
[8] Mr. Loyer also indicated in his complaint that he was seeking financial compensation from Air Canada, as well as an adjustment to his pension, so as to reflect the years that he would have worked, but for the flawed diagnosis. There was no indication in the complaint form that Mr. Loyer was seeking reinstatement as a pilot.
Other Proceedings Initiated by Mr. Loyer
[9] Mr. Loyer and his wife also commenced an action in the Superior Court of Ontario against Air Canada and five medical specialists employed or retained by the airline, in which they sought damages in the amount of $2,150,000, resulting, they say, from the alleged misdiagnosis of Mr. Loyer’s medical condition.
[10] Through his union, the Air Canada Pilots Association (“ACPA”), Mr. Loyer also filed a grievance in the Spring of 2003 in which he sought “grounded retirement”. In October and November of 2003, he filed two more grievances, one of which sought that he be reinstated as a pilot, and the other of which seemingly renewed his request for grounded retirement.
The Air Canada Insolvency
[11] In the meantime, on April 1, 2003, Air Canada made an application for protection from its creditors, pursuant to the provisions of the Companies Creditors Arrangement Act, R.S. 1985, c. C‑36 (“CCAA”). Justice Farley of the Superior Court of Ontario then issued an order temporarily staying all outstanding and future legal proceedings against Air Canada. This order was subsequently renewed from time to time.
[12] Air Canada’s major creditor evidently imposed a condition on its approval of the airline’s proposed restructuring plan that Air Canada had to emerge from creditor protection with a “clean slate”, free of outstanding grievances and claims.
[13] In order to satisfy this condition, Air Canada and ACPA established an expedited arbitration process to deal with outstanding grievances, including those brought by Mr. Loyer. This was known as the “Clean Slate Agreement”. By order of Justice Farley, Martin Teplitsky, Q.C. was appointed to deal with these grievances.
The June 10, 2004 Hearing
[14] Mr. Loyer’s grievances were scheduled to be heard on June 10, 2004. Mr. Loyer attended before Mr. Teplitsky on that date, along with Paul Middleton, amongst others. Mr. Middleton was Mr. Loyer’s union representative.
[15] It is common ground that Mr. Loyer’s grievance arbitration did not proceed that day, and that settlement discussions took place, which culminated in the preparation of Minutes of Settlement. These Minutes provided that Mr. Loyer would be entitled to grounded retirement, retroactive to January 28, 2003, which was the date on which his disability benefits had been exhausted. The Minutes also provided that Mr. Loyer’s retirement would be deemed to be effective on that date, subject to the approval of Air Canada’s Pension Committee.
[16] It is also clear from the Minutes of Settlement that the settlement was intended to be a global one, resolving all of the matters in dispute between Mr. Loyer and Air Canada. To this end, the Minutes provided that the settlement “addressed all matters in relation to the complaint filed with the Canadian Human Rights Commission”, and required that Mr. Loyer’s human rights complaint be withdrawn.
[17] It is also not in dispute that although Air Canada and union representatives signed the Minutes of Settlement, Mr. Loyer did not do so. What is hotly contested is whether Mr. Loyer verbally agreed to the terms of the settlement on June 10. Mr. Loyer maintains that he would never have agreed to the settlement because he wanted to be reinstated into his position as a pilot, whereas Air Canada contends that a verbal agreement had in fact been reached on that date.
The August 24, 2004 Hearing
[18] When no signed agreement was forthcoming from Mr. Loyer, the matter was brought back before Arbitrator Teplitsky on August 24, 2004. On that date, Mr. Teplitsky found that there had indeed been a settlement reached on June 10, 2004, and he issued an award incorporating all of the essential terms of the Minutes of Settlement.
[19] In concluding in his award that a settlement had been reached at the June hearing day, Mr. Teplitsky stated:
I have no doubt about the following:
(a) There is no dispute about the terms of the settlement;
(b) Captain Loyer gave clear instructions to effect the settlement;
(c) The settlement is reasonable in the circumstances; and
(d) Captain Loyer was acting as his wife’s agent in accepting the settlement.
[20] Although the investigation report makes passing reference to a concern on the part of Mr. Loyer as to the fairness of the process before Mr. Teplitsky, this issue was not pursued on this application.
No Section 48 Approval
[21] It is not disputed that the purported settlement of Mr. Loyer’s human rights complaint was never referred to the Canadian Human Rights Commission for approval, in accordance with section 48 of the Canadian Human Rights Act, R.S. 1985 c. H-6. There is also no dispute about the fact that the Commission never explicitly approved the settlement.
The Commission Investigation
[22] After receipt of Mr. Loyer’s human rights complaint, an investigation was carried out into the complaint by the Canadian Human Rights Commission, which culminated in an Investigation Report being issued on June 20, 2005.
[23] It should be noted that there is no indication that any meaningful investigation was conducted with respect to the substance of Mr. Loyer’s allegations of discrimination. Instead, after a brief review of the history of the various proceedings, the Investigator’s Report focused primarily on the events of June 10 and August 24, 2004.
[24] The Investigator started by reviewing Air Canada’s position that a settlement had been reached on June 10, 2004, referring specifically to the provisions of the Teplitsky award cited above.
[25] The Investigator then noted Mr. Loyer’s position that he had never agreed to settle the matter, observing that Mr. Middleton had confirmed that Mr. Loyer had indeed accepted the settlement offer made at the June 10 hearing. The Investigator further noted that Mr. Middleton had indicated that ACPA would not have signed off on the Minutes of Settlement without Mr. Loyer having first agreed to the terms of the settlement.
[26] Mr. Middleton is also reported to have stated that Mr. Loyer obtained “a very good deal”, that he had received a substantial financial settlement, and that he had been allowed to retire retroactive to the date on which his disability benefits had been exhausted.
[27] Mr. Middleton was also of the view that Mr. Loyer had received one of the best settlements that had been achieved through the “Clean Slate” process, and that his result was particularly good in light of the fact that, as a result of the insolvency, Air Canada pilots had been required to make wage concessions of up to 15%.
[28] The Investigator concluded the Report with the following by way of analysis:
The information provided by the respondent and the complainant’s union concerning the outcome of the complainant’s grievance suggests that the complainant’s human rights concerns were addressed by Arbitrator Teplitsky. The evidence indicates that Arbitrator Teplitsky turned his mind to the human rights aspects of the complaint, in determining his ruling.
It is recommended, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, that the Commission dismiss the complaint because:
- the complainant’s human rights issues have been addressed through arbitration; and
- having regard to all the circumstances of the complaint, further inquiry into the complaint is not warranted.
The Commission’s Decision
[29] The Investigator’s recommendation was accepted by the Commissioners of the Canadian Human Rights Commission, as is confirmed by a decision letter from the Commission’s Secretary dated November 21, 2005, the operative portions of which simply adopt the two reasons cited by the investigator. It is this decision that forms the subject matter of this application for judicial review.
Legislative Framework
[30] The Commission’s decision to dismiss Mr. Loyer’s human rights complaint was made pursuant to section 44 of the Canadian Human Rights Act, which provides, in part that:
|
44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
(3) On receipt of a report referred to in subsection (1), the Commission
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted... |
44. (1) L’enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l’enquête.
(3) Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
b) rejette la plainte, si elle est convaincue :
(i) soit que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci n’est pas justifié... |
Issues
[31] Mr. Loyer raises a number of issues on this application. These are:
1. Did the Canadian Human Rights Commission err in dismissing his complaint based upon the existence of an alternate redress mechanism, namely the Clean Slate process, given that the mere existence of an alternate redress process does not oust the jurisdiction of the Commission?
2. Did the Commission err in finding that Mr. Loyer’s human rights issues had been dealt with through the arbitration process?
3. Was the Commission’s investigation sufficiently thorough? and
4. Did the Commission err in law in dismissing Mr. Loyer’s human rights complaint based upon a settlement that it had not itself approved?
[32] Although not mentioned in his memorandum of fact and law, Mr. Loyer also argued at the hearing of this application that the Commission erred in making a finding of credibility with respect to whether he had agreed to settle his human rights complaint on June 10, 2004. According to Mr. Loyer, credibility findings are beyond the purview of the Commission at the investigation stage, and are the exclusive domain of the Canadian Human Rights Tribunal.
[33] It is well established that given the cursory nature of Commission decisions under section 44 of the Canadian Human Rights Act, investigation reports must be read as the Commission’s reasons: see Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404 at
¶ 37.
[34] With this in mind, I do not intend to address Mr. Loyer’s first issue, as it is clear from a review of the investigation report that the Commission did not dismiss his complaint based upon the mere existence of an alternate redress mechanism. Nor did the Commission decline jurisdiction, on the basis of a determination that its jurisdiction had been ousted by the existence of the Clean Slate process, as is alleged by Mr. Loyer. Although the “Background” section of the Investigator’s Report states that the effect of the Companies Creditors Arrangement Act proceedings was to extinguish the right to claim non-discretionary monetary remedies for incidents occurring prior to April of 2003, a review of the Report as a whole discloses that the basis for the Commission’s decision was its view that the human rights issues raised by Mr. Loyer’s complaint had been adequately addressed through the arbitral process.
[35] I also do not intend to deal with Mr. Loyer’s argument that the Commission erred in making a finding of credibility as to whether he had agreed to settle his human rights complaint. This argument was not raised in Mr. Loyer’s memorandum of fact and law. Moreover, I am not persuaded that the issue arises in this case, given that no specific credibility finding was made by the Investigator in this regard.
Standard of Review
[36] Both parties submit that the general standard of review to be applied to Commission decisions declining to refer complaints to the Canadian Human Rights Tribunal made pursuant to section 44(3)(b) of the Canadian Human Rights Act is that of reasonableness. However, Mr. Loyer says that issues relating to the thoroughness of the investigation engage questions of procedural fairness, and as such, are reviewable against the standard of correctness. He further submits that the other issues raised in his application involve questions of law, and are also reviewable against the correctness standard.
[37] It is true that, as a general proposition, subsection 44(3)(b) of the Canadian Human Rights Act confers a broad discretion on the Commission to decide whether a complaint should be screened out, or should proceed to a hearing before the Tribunal. As a result, the Court will only intervene if the Commission's conclusion is unreasonable, absent a breach of the duty of fairness or other errors of law: Tahmourpour v. Canada (Solicitor General), [2005] F.C.J. No. 543, 2005 FCA 113, at ¶ 6.
[38] That said, as the Federal Court of Appeal made clear in Sketchley, a reviewing court may not simply adopt the standard of review used by other judges reviewing other decisions made by the Commission under subsection 44(3)(b) of the Act. The precise nature of the questions at issue will vary from case to case. As a consequence, the expertise of the Commission may be engaged to a greater or lesser extent, having regard to the specific nature of the question or questions involved. It is thus essential for a reviewing court to conduct its own pragmatic and functional analysis in each case.
Identification and Nature of the Questions
[39] In identifying the appropriate standard of review, the first step for the Court is to identify the question or questions in dispute: Sketchley, at ¶ 59.
[40] The first issue raised by Mr. Loyer that I have found to actually arise on the facts of this case is whether the Commission erred in finding that his human rights issues had been dealt with through the arbitration process. While there is a strong factual component to this question, it also involves an understanding of what the human rights issues were that arose out of Mr. Loyer’s complaint, and the extent to which these issues may have been addressed by the Teplitsky award. As a result, I would characterize this issue as one of mixed fact and law.
[41] Regard must also be had to the Commission’s second reason for dismissing Mr. Loyer’s complaint, that is, its finding that having regard to all of the circumstances of the case, further inquiry into the complaint was not warranted. This involves a discretionary decision on the part of the Commission, and thus attracts a significant degree of deference.
[42] The next issue for the Court is whether the Commission erred in dismissing Mr. Loyer’s human rights complaint, based upon a settlement that it had not itself approved. This involves a consideration of the implications and requirements of section 48 of the Canadian Human Rights Act, and as such, involves a question of law.
[43] The final issue raised by Mr. Loyer is whether the Commission’s investigation was sufficiently thorough. An alleged lack of thoroughness in a human rights investigation engages questions of procedural fairness. In Sketchley, previously cited, at ¶ 52-53, the Court noted that the pragmatic and functional analysis does not apply where judicial review is sought based upon an alleged denial of procedural fairness. Rather, the task for the Court is to isolate any act or omission relevant to the question of procedural fairness, and to determine whether the process followed by the Commission satisfied the level of fairness required in all of the circumstances.
[44] That is, given that questions of procedural fairness are reviewed as questions of law, no deference is due: the decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has not: Sketchley, at ¶ 53.
[45] The pragmatic and functional analysis does, however, apply with respect to the other issues raised by this application, and thus it is necessary to consider the remaining factors in that analysis.
Presence or Absence of a Privative Clause or Statutory Right of Appeal
[46] There is no privative clause in the Canadian Human Rights Act, nor is there any statutory right of appeal. Thus the Act provides no guidance in ascertaining Parliament’s intent on the question of deference. However, as the Supreme Court of Canada noted in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19 at ¶ 27, silence on the matter of a privative clause is neutral, and does not necessarily imply a high standard of scrutiny.
Relative Expertise
[47] The next factor to consider is the expertise of the Commission relative to that of the Court, bearing in mind the nature of the questions involved in this case. In relation to the question of whether Mr. Loyer’s human rights issues had been adequately dealt with through the arbitration process, I am of the view that this is a matter falling squarely within the expertise of the Commission, whose mandate requires that it deal, on a daily basis, with the examination and resolution of human rights complaints.
[48] I am also satisfied that the Commission’s expertise in this area is superior to that of the Court. This militates in favor of according this aspect of the Commission’s decision considerable deference.
[49] The Commission’s determination that in all of the circumstances further inquiry into the complaint was not warranted is a discretionary decision: Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at 891. As the Federal Court of Appeal noted in Sketchley at
¶ 76, the number of human rights complaints received by the Commission far exceeds the number it may, for practical and monetary considerations, be able to refer to the Tribunal for hearing. In general, at least in the assessment of practical and monetary matters, the Commission is in a better position than the Federal Court to assess whether any given complaint should go further. This consideration further militates in favour of greater deference in relation to this aspect of the Commission’s decision.
Purpose of the Legislation and the Provision in Question
[50] The next step in the pragmatic and functional analysis involves a consideration of the purpose of the legislation in general, and the specific legislative authority under which the decision in question was made, in particular.
[51] The Canadian Human Rights Act is quasi-constitutional legislation enacted to give effect to the fundamental Canadian value of equality. Section 2 of the Act indicates that it is intended to prevent discrimination based on a series of enumerated grounds. As was noted in Sketchley, at ¶ 74, having regard to the nature of the legislation, any institution, organization or person given the mandate by law to delve into human rights issues should be subjected to some control by judicial authorities.
[52] In addition, the decision in question here was made in accordance with the Commission’s screening mandate under section 44(3) of the Act. The decision to dismiss a complaint at this stage effectively extinguishes a complainant’s ability to seek redress under the Act (subject to the availability of judicial review in this Court). This also suggests that a less deferential standard should be applied.
[53] That said, as the Federal Court of Appeal observed in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1998] F.C.J. No. 1609, [1999] 1 F.C. 113, (at ¶ 38), the Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report, which indicates that Parliament did not want the courts to intervene lightly in its decisions.
Conclusion as to the Applicable Standards of Review
[54] Weighing all of these factors, I am of the view that the Commission’s findings that Mr. Loyer’s human rights issues had been adequately dealt with through the arbitral process and that further inquiry into his complaint was not warranted should be reviewed against a standard of reasonableness.
[55] As was noted earlier, the issue of whether the Commission erred in dismissing Mr. Loyer’s human rights complaint, based upon a settlement that it had not itself approved involves a question of law. Although brief mention of this argument was made in Mr. Loyer’s submissions to the Commission, neither the Investigation Report nor the Commission explicitly addressed the issue. As a result, this Court must answer the question for itself.
[56] Similarly, the Court must come to its own conclusion as to the thoroughness of the Commission investigation.
[57] With this understanding of the applicable standards of review, I turn now to consider the arguments advanced on behalf of Mr. Loyer. Before doing so, however, comment should be made on the state of the record on this application.
Content of the Record
[58] At the commencement of the hearing I raised with the parties my concern that both sides had submitted substantial records, containing copious material which does not appear to have been before the Commission when it made its decision to dismiss Mr. Loyer’s complaint. Air Canada indicated that it did not intend to rely on the exhibits contained in one of the affidavits that it had filed, although it continued to rely on a second affidavit, which also appended a number of exhibits not contained in the record that was before the Commission. Mr. Loyer continued to rely on the supplementary documentation that he had filed.
[59] While such supplementary material can be admissible on judicial review in certain situations (where, for example, there is an allegation impugning the accuracy or completeness of the report: see Pathak v. Canada (Canadian Human Rights Commission) [1995] F.C.J. No. 555 (FCA)), it is not necessary to determine which, if any, of the documents are admissible here. Having carefully reviewed each of the documents in question, I am satisfied that none would have an effect on the outcome of this case.
Did The Commission Err In Finding That Mr. Loyer’s Human Rights Issues Had Been Dealt With Through The Arbitration Process?
[60] Dealing first with the Commission’s finding that Mr. Loyer’s human rights issues had been adequately dealt with through the arbitral process, a close review of the investigation report discloses that the Commission investigator did not make an express finding as to whether or not Mr. Loyer had agreed to the settlement on June 10, 2004. The investigator did, however, recognize that it was Mr. Loyer’s position that he had not agreed to settle his various claims, including his human rights complaint.
[61] Rather, the Investigator’s decision was based upon the finding that Arbitrator Teplitsky had specifically turned his mind to the matter of Mr. Loyer’s human rights complaint in making his award. This led the Investigator to conclude that Mr. Loyer’s human rights issues had been addressed through the arbitration process, and to the further finding that, having regard to all of the circumstances, further inquiry into the complaint was not warranted.
[62] While a more fulsome analysis of the situation on the part of the Investigator would have been desirable, the jurisprudence teaches us that where there is an absence of clear reasons, the Court must look at the material before the Commission, and the result reached, to see if there is a rational basis for the result: see, for example, Gee v. Canada (Minister of National Revenue), [2002] F.C.J. No. 12, FCA 4, at ¶ 15.
[63] In this case, there was evidence before the investigator that Mr. Loyer had received substantial financial compensation from Air Canada, as well as grounded retirement, effective the date that his disability benefits had been exhausted. This was consistent with the relief that Mr. Loyer had indicated in his human rights complaint that he was seeking from Air Canada. In this regard it should be recalled that Mr. Loyer did not indicate in his complaint that he wanted to be reinstated in his position as a pilot.
[64] Moreover, the relief obtained by Mr. Loyer was awarded to him during a period of intense financial pressure on the airline, and was evidently one of the best deals arrived at during the period of the Air Canada insolvency.
[65] As the investigator noted, Arbitrator Teplitsky did turn his mind to the matter of Mr. Loyer’s human rights complaint in imposing the award that he did. Thus there is a basis in the evidence for the investigator’s finding that Mr. Loyer’s human rights complaint had been dealt with through the arbitral process, notwithstanding the fact that the arbitrator had not engaged in a substantive examination of the issues raised by the complaint.
[66] As a result, having subjected the investigation report to a somewhat probing examination, the finding that Mr. Loyer’s complaint had been adequately dealt with through the arbitral process was one that was reasonably open to the Commission.
[67] Moreover, in all of the circumstances, and, in particular, in light of the fact that Mr. Loyer appeared to have achieved much of what he had been seeking by way of remedy in his human rights complaint through the arbitral process, the Commission’s finding that further inquiry into the complaint was not warranted was not unreasonable.
Was the Commission’s Investigation Sufficiently Thorough?
[68] Mr. Loyer also says that the Commission’s decision should be set aside, as the investigation into his complaint was not sufficiently thorough. In particular, Mr. Loyer asserts that the Investigator erred by failing to interview him regarding what had transpired at the June 10 meeting, particularly when others seem to have been interviewed.
[69] In addition, Mr. Loyer says that the investigation was inadequate because the investigator failed to interview others present at the June 10 hearing, apart from Mr. Middleton.
[70] Finally, Mr. Loyer says that the investigation was not sufficiently thorough as the investigator failed to interview his wife and the other individuals who were aware of his state of mind in the period after June 10, 2004, regarding the potential parameters of an acceptable settlement.
[71] The leading case regarding the degree of thoroughness required of Commission investigations is Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), aff'd (1996), 205 N.R. 383. In Slattery, the Federal Court held that an investigation may lack the legally required degree of thoroughness where, for example, the investigator makes an unreasonable omission, such as failing to investigate obviously crucial evidence.
[72] That said, in the Tahmourpour decision previously cited, the Federal Court of Appeal noted at ¶ 39 that an investigation into a human rights complaint cannot be held to a standard of perfection, and that a Commission investigator is not required to turn every stone. The Court further noted that the Commission's resources are limited and its case load heavy. As a consequence, the Commission is required to balance the interests of complainants in the fullest possible investigation and the demands of administrative efficacy.
[73] With this in mind, I am not persuaded that the Commission’s failure to interview the people identified by Mr. Loyer resulted in the investigation lacking the requisite degree of thoroughness. Insofar as the failure to interview Mr. Loyer himself is concerned, Mr. Loyer provided the Commission with copious submissions clearly articulating his position that he had never agreed to a settlement of his various legal proceedings, and indeed, his counsel conceded in argument that his client had been able to fully inform the investigator of his position.
[74] In addition, a review of the investigation report discloses that the investigator clearly understood Mr. Loyer’s position that he had never agreed to settle his complaint.
[75] Insofar as the Investigator’s failure to interview others present at the June 10 hearing is concerned, Mr. Loyer has not identified any other individuals who were present at the June hearing who might have been in a position to support his claim that he had not agreed to the settlement. Moreover, it is hard to imagine that any evidence could outweigh the powerful evidence before the investigator from Arbitrator Teplisky himself.
[76] That is, in his award, Mr. Teplitsky provided his own version of events, as a first hand witness to what had transpired at the June hearing. It will be recalled that Mr. Teplitsky stated that he had no doubt that Mr. Loyer had given clear instructions to effect the settlement. Given his role as a neutral third party, with no interest in the outcome of the proceeding, common sense surely dictates that Mr. Teplitsky’s statements would have been accorded significant weight.
[77] Finally, Mr. Loyer says that the investigator should have interviewed his wife, and two other individuals who would have confirmed that he had not intended to sign the Minutes of Settlement between June 10 and August 24, 2004.
[78] There is no suggestion that any of these individuals were present on June 10, and I am not persuaded that any of the three could have provided “obviously crucial evidence” as to what transpired on that date.
[79] As a result, I am not satisfied that the Commission’s decision should be set aside based upon any inadequacy in the investigation.
[80] This leaves the question of whether the Commission erred in dismissing Mr. Loyer’s human rights complaint, based upon a settlement that it had not approved in accordance with the provisions of section 48 of the Canadian Human Rights Act. This issue will be addressed next.
Did the Commission Err in Dismissing Mr. Loyer’s Human Rights Complaint Based Upon a Settlement That it had not Approved?
[81] Acknowledging that it is a very technical argument, Mr. Loyer nonetheless asserts that the Commission erred in law in dismissing his human rights complaint based upon a settlement that it had not approved.
[82] That is, Mr. Loyer says that the “settlement” that he ostensibly agreed to on June 10, 2004, was never referred to the Commission for approval, as is mandated by section 48 of the Canadian Human Rights Act, which provides that:
|
48. (1) When, at any stage after the filing of a complaint and before the commencement of a hearing before a Human Rights Tribunal in respect thereof, a settlement is agreed on by the parties, the terms of the settlement shall be referred to the Commission for approval or rejection.
(2) If the Commission approves or rejects the terms of a settlement referred to in subsection (1), it shall so certify and notify the parties.
(3) A settlement approved under this section may, for the purpose of enforcement, be made an order of the Federal Court on application to that Court by the Commission or a party to the settlement. |
48. (1) Les parties qui conviennent d’un règlement à toute étape postérieure au dépôt de la plainte, mais avant le début de l’audience d’un tribunal des droits de la personne, en présentent les conditions à l’approbation de la Commission.
(2) Dans le cas prévu au paragraphe (1), la Commission certifie sa décision et la communique aux parties.
(3) Le règlement approuvé par la Commission peut, par requête d’une partie ou de la Commission à la Cour fédérale, être assimilé à une ordonnance de cette juridiction et être exécuté comme telle. |
[83] Mr. Loyer says that it was improper for the Commission to have found that a settlement of his human rights complaint had been reached, when no Commission approval of such a settlement had ever been forthcoming.
[84] Here, once again, regard must be had to what the investigator’s findings actually were. That is, the investigator’s recommendation that Mr. Loyer’s human rights complaint be dismissed was based upon the finding that his human rights issues had been dealt with through an arbitral award, and not through a settlement. In these circumstances, I am not persuaded that there was a need to refer the matter to the Commission for approval in accordance with the provision of section 48 of the Act.
[85] If I am wrong in this regard, I am nevertheless of the view that section 48 should not be interpreted so as to nullify the Commission’s section 44 decision.
[86] Although section 48 uses mandatory language, the reality is that human rights cases settle all the time, without formal Commission sanction. On some occasions parties will be unwilling to share the terms of a settlement with the Commission, and, as a result, Commission approval will not always be possible. There will be other occasions where the Commission is not made aware that a settlement has been reached between the parties to a human rights complaint, with the result that compliance with the section will also not be forthcoming.
[87] There has been little judicial consideration of section 48 of the Canadian Human Rights Act. However, when the section is read in context, consistent with the aims of the Act as a whole, and in light of the public interest mandate of the Canadian Human Rights Commission, it is clear that the section is there to ensure that the Commissioners themselves have input into settlements, so as to ensure that the remedial goals of the Act are adequately addressed in the resolution of individual complaints.
[88] In this case, in deciding under the provisions of section 44 of the Act that no further inquiry into Mr. Loyer’s complaint was warranted in light of the resolution achieved through the arbitral process, the Commissioners were implicitly finding that the remedial goals of the legislation had been adequately addressed through the Teplitsky award.
[89] Having regard to the frequent admonition of the Supreme Court of Canada that the Canadian Human Rights Act is to be given a large and liberal interpretation, so as to ensure that the remedial goals of the legislation are best achieved, it would, in my view, be taking an unduly technical approach to the section to find that, in the circumstances of this case, the Commission was deprived of the jurisdiction to make a decision under section 44 of the Act as a result of the lack of strict compliance with section 48.
Conclusion
[90] For these reasons, Mr. Loyer’s application for judicial review is dismissed. Both parties agree that costs should follow the event, on the ordinary scale, and I so order.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application is dismissed, with costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2266-05
STYLE OF CAUSE: RICHARD LOYER v.
AIR CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 12, 2006
REASONS FOR JUDGMENT: Mactavish J.
APPEARANCES:
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Mr. Yavar Hameed
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Ms. Rachelle Henderson
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SOLICITORS OF RECORD:
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Mr. Yavar Hameed Barrister & Solicitor Ottawa, Ontario
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Ms. Rachelle Henderson Solicitor Dorval, Quebec |