OTTAWA, ONTARIO, November 14, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Canadian Human Rights Commission dated March 17, 2006, wherein the Applicant’s complaint against the Respondent, Bell Canada, was dismissed. The Applicant, Janice Doerr, asks that the decision be quashed and that the matter be directed to the Canadian Human Rights Tribunal for an inquiry or, in the alternative, that the matter be returned to the Commission to conduct a new investigation. For the reasons that follow, I find that the application is dismissed, each party to bear its own costs.
[2] There has been a lengthy, acrimonious history between the Applicant and Respondent. To summarize:
1. The Applicant began employment with Bell Canada in April, 1981, in a position that required constant repetitive work at a computer keyboard.
2. In the mid 1980’s, the Applicant was involved in a car accident causing soft tissue injuries, which apparently contributed to her later difficulties. She apparently suffers from what is described as bi-lateral tendonitis.
3. In 1994, upon receiving medical advice, the computer portion of the Applicant’s duties was removed.
4. In 1995-1996, Bell Canada downsized its operations and required that the Applicant resume her duties with the computer. In 1997, the Applicant worked only sporadically.
5. Bell Canada terminated her employment in September, 1997, whereupon the Applicant instituted a grievance procedure. In February, 1999, an arbitrator made an award requiring that the Applicant be reinstated as of September, 1997, with compensation. Bell Canada was directed to seek another suitable position for the Applicant and to assign a different manager to her. The arbitrator remained seized of the matter in respect of the finding of a suitable different position.
6. The Applicant filed a complaint (the first complaint) with the Canadian Human Rights Commission on March 19, 1999, alleging that Bell Canada failed to provide a workplace free of harassment and terminated her employment because of her disability. The complaint alleged improper conduct in the period from April, 1997 to September 15, 1997. The complaint was filed more than one year after the latter date, however the issue of timeliness did not arise in view of the Commission’s disposition of the matter.
7. On August 20, 1999, the Commission provided an Investigator’s Report and recommended that the complaint not be dealt with pending final outcome of the arbitral process, that is the process in which an award was made in February 1999, subject to certain outstanding matters.
8. Difficulties between the parties continued. In November, 1999, the Applicant and Bell Canada executed handwritten Minutes of Settlement stating, among other things, that:
“...the parties wish to resolve the matters in dispute between them”
The Applicant was to return to work in a position that would accommodate her disability. Any issue as to such accommodation would be referred to the arbitrator who remained seized with the matter for that purpose.
9. The Applicant returned to work in late November, 1999, but matters did not go well. On May 23, 2002, Bell Canada again dismissed the Applicant. A second grievance was filed and subsequently submitted to the same arbitrator.
10. On May 23, 2003, one year after her second termination, the Applicant filed a second complaint with the Canadian Human Rights Commission. The allegations were failure of Bell Canada to accommodate the Applicant’s disability, failure to provide a harassment free workplace, termination by reason of disability and retaliation.
11. On August 12, 2003, the arbitrator made an award based on the issues as to whether Bell Canada met its obligation to accommodate the Applicant and, if not, what was the appropriate remedy. The arbitrator awarded compensation in lieu of reinstatement. The arbitrator remained seized of an issue respecting efforts of the Applicant to mitigate her damages, and in respect of implementation of the award. Bell Canada took the position that the August, 2003 award had dealt with the issues in the second complaint.
12. On April 15, 2004, an Investigator made a Report to the Commission in respect of the second complaint. The recommendation was that, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, R.S., 1985, c.H-6 s.44; 1998, c.9, s.24 , the Commission take no further proceedings in the complaint. The parties were invited to make submissions as to the Report. Bell Canada did so endorsing the recommendation. The Applicant made submissions to the effect that the arbitrator did not deal with all the issues raised in the complaint.
13. As a result, a Supplementary Report of the Investigator was delivered on September 22, 2004. That Report recommended that pursuant to section 41(1) of the Canadian Human Rights Act, the Commission deal with portions of the Complaint because it is not satisfied that the other procedure (arbitration) fully addressed the allegations of failure to provide a harassment free workplace and retaliation. On February 3, 2005, the Commission advised the parties that it accepted the recommendation. It was pointed out to the parties that an application for review could be made to the Federal Court. No such application was made.
14. On December 19, 2005, the Investigator submitted a Report to the Commission in respect of the second complaint recommending that pursuant to s.44(3)(b)(ii) of the Canadian Human Rights Act, issues of harassment and retaliation, as defined by the Commission on February 3, 2005, be dismissed. The parties were invited to make submissions and they did.
15. On March 17, 2006, the Commission issued its decision respecting the second complaint to dismiss the complaint on the basis that “the evidence does not support the complainant’s allegations”. The parties were advised that they could seek a review in this Court. The Applicant did, and this is that review.
Issues
[3] The Applicant raises three issues in her Memorandum of Argument:
(a) Did the Commission err in law in declining to have regard to the evidence outlined in the Applicant’s First Complaint?
(b) Did the Commission adopt a view of the factual allegations and evidence provided in support of the Second Complaint that was patently unreasonable in the circumstances? (The issue of the standard – patent unreasonableness or otherwise – will be discussed later in these Reasons.)
(c) Was the Commission obliged in law to conduct an investigation of the issues raised by the Applicant’s complaint of retaliation under section 14.1 of the Act?
[4] These issues require an examination of the following:
1. What precisely was the evidence and submissions that the Commission had before it for consideration in arriving at the decision of March 17, 2006, to discuss the Complaint and what are the issues raised in respect thereof?
2. What is the appropriate standard of review of the Court to apply to the decision of the Commission?
3. Having regard to the appropriate standard, what disposition will the Court make of this Application?
Each of the matters will now be examined.
1. Evidence and Submissions before the Commission
[5] The first Complaint the Applicant made was that submitted March 19, 1999. It dealt with Bell Canada’s conduct between April, 1997, and September 15, 1997, in particular, failure to provide a harassment free workplace and wrongful dismissal. The Commission was made aware of the fact that there was an ongoing arbitration. On August 30, 1999, the Commission sent a letter stating that, “...it is being recommended that the Commission not deal with these complaints pending final outcome of the arbitration process”. Comments were invited, but apparently none were made. The Commission does not appear to have done anything more with respect to this complaint.
[6] On May 23, 2003, the Applicant filed a second Complaint which was given a different file number by the Commission. The date of the alleged conduct at issue was given by the Applicant as May 24, 2002, the date of the Applicant’s second termination of employment. The Complaint makes reference to the first Complaint and says that the file was closed “...on the understanding that [she] could request that [it] be reopened”. No evidence as to such understanding can be found in the records before this Court.
[7] Counsel for the Applicant in oral argument makes specific reference to certain allegations made in the second Complaint, namely:
Paragraph 7: Bell Canada took the position that a return to work as an Associate in Similar Processing was remote and that additional forms of accommodation would not be “feasible”.
Paragraph 9: Bell Canada took the position that her employment would be terminated if she “did not locate alternate employment within Bell Canada during [a three month] time frame.
Paragraph 12: Bell Canada requested that I attend monthly meetings with members of its management.
[8] The Complaint ends with a concluding paragraph, 19, which counsel argues is just a summation and not a complete recitation of the Complainant’s evidence. It states:
19. In conclusion, I believe that the conduct to which I have been subjected violates my human rights as a person who suffers from a physical disability. Bell Canada has failed or neglected to locate and/or create a new position of employment which accommodates my physical disability. Throughout this process, I have been subjected to undue harassment and retaliation for asserting my right to accommodation of my physical disability in the workplace, culminating with the second termination of my employment. The decision of the Bell Canada to dispute my grievance, dated May 23, 2002, is further evidence of continuing harassment and retaliation.
[9] The Commission’s Investigator was apparently provided with the arbitrator’s award dated August 12, 2003, as the Investigator’s Report is dated April 15, 2004, recommending that the Commission take no further proceedings. The Report’s analysis and recommendation states:
Analysis
9. The arbitral award covered the same issues as those in the human rights complaint, therefore, the matter has been dealt with. The only outstanding aspect is that of compensation in which the parties are currently attempting to reach an agreement. Should difficulties arise, the arbitrator remains seized of this matter.
Recommendation
10. It is recommended, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act that the Commission take no further proceedings in the complaint because the situation has been redressed.
[10] Bell Canada supported this recommendation, the Applicant, apparently, did not. While there is no record of the Applicant’s submission as to the Report, there obviously was a submission made since the Commission asked the Investigator to revisit the matter and provide a Supplementary Report.
[11] As a result, a Supplementary Report dated September 22, 2004, was provided. The purpose was set out in paragraph 1:
1. The purpose of the supplementary report is to address the issue whether the allegations of discrimination have been redressed through the Arbitration awards dated August 12, 2003, and January 26, 2004.
[12] The Supplementary Report reviewed the award of the arbitrator:
7. The complainant’s grievances dealt with the following; termination of employment without just cause, failure to accommodate, and the respondent’s failure to pay the complainant full wages while she was looking for alternative employment.
8. The issue addressed during the first arbitration award dated August 12, 2003, was whether the respondent met its obligation to accommodate the complainant, and if not, what was the appropriate remedy. The arbitrator concluded that “accommodation was not pursued by Bell to the point of undue hardship...”. The arbitrator also stated that “The grievor also “is not without blame in the situation. In my view she too did not meet her obligations under the duty.” The arbitrator found that Bell did not fulfill its duty to accommodate.
9. The arbitrator considered s.53 of the Canadian Human Rights Act, in deciding the appropriate remedy, and awarded compensation in lieu of reinstatement because “the relationship between the employer and employee is one that cannot reasonably be expected to be viable in the future.”
[13] As a result, the following recommendation was made:
12. It is recommended, pursuant to subsection 41(1) of the Canadian Human Rights Act, that the Commission deal with the complaint because:
It is not satisfied that the other procedure has fully addressed the allegations of failure to provide a harassment-free workplace and retaliation.
[14] It is clear that the Supplementary Report distinguished between the issue of accommodation and said that this was disposed of by the arbitrator, and the issues of harassment and retaliation which had not, to the Investigator’s satisfaction, been dealt with.
[15] The Commission sent the Supplementary Report to the parties under cover of a letter dated September 24, 2004, inviting comment. Bell Canada sent a letter dated October 22, 2004, addressing only a request for an extension of time, no substantial comments were made. The Applicant made no comments. As a result, the Commission made a decision sent to the parties by letter dated February 3, 2005 stating:
“It is not satisfied that the other procedure has fully addressed the allegations of failure to provide a harassment-free workplace and retaliation.”
[16] The parties were advised that a review under section 18 of the Federal Courts Act, R.S., 1998, c. F-7, s.1; 2002, c. 8, s.14 could be sought. No party sought such a review.
[17] Thus, the Commission had made a final and binding determination that the issue of accommodation had been dealt with by the arbitrator, but the Commission would deal with issues of harassment and retaliation.
[18] On August 16, 2005, the Investigator wrote to Applicant’s lawyer, advising that a defence was expected from Bell Canada and that the Applicant’s rebuttal comments would then be requested. By letter dated October 20, 2005, the Investigator sent Bell Canada’s defence to Applicant’s counsel. That letter requested comments and detailed information. It said, in part:
An examination of Ms Doerr’s complaint reveals that the only mention of harassment and/or retaliation occurs in Para. 19 with the statement that “[t]hroughout this process, I have been subjected to undue harassment and retaliation for asserting my right to accommodation of my physical disability...” To enable me to carry out an investigation into these allegations, I shall require additional information on the harassment your client alleges she was subjected to – specifically, the person(s) who allegedly harassed her, as well as a description (including the date) of the specific incident(s) and/or comments. If possible, the names (and daytime telephone numbers) of any witnesses who can corroborate Ms Doerr’s allegations should be submitted at this time.
With respect to retaliation, please be advised that s.14.1 of the Canadian Human Rights Act stipulates that any allegations of retaliation must be as a result of a complainant (or his/her agent)having filed a previous complaint of discrimination with the Commission. Therefore, I ask that you provide detailed information on those specific instances in which Ms Doerr believed herself to have been retaliated against by the respondent as the result of her filing her original complaint in March 1999.
As noted above, you are invited to comment on the respondent’s position as stated in the enclosed letter. You may make whatever comments you deem both relevant and appropriate; however, I ask that you make a point of addressing the following:
(a number of specific points are raised)
[19] The Applicant’s lawyer responded by letter dated December 14, 2006, taking the position that all of the subject matter raised in the first complaint as well as the second, needed to be dealt with in the second complaint. It stated that the second complaint raised additional and more recent examples of harassment. As to retaliation, the letter states that Bell Canada disputed the Applicant’s grievances, “the merits of which were plain to be seen”, and that the only motive was that of retaliation.
[20] Five days later, on December 19, 2005, the Investigator (Ms. Craig) provided a Report which was sent to the parties for comment. As the recommendation made in this Report was ultimately accepted by the Commission, the Report, in effect, became the Commission’s reasons. The Report notes, in paragraphs 7 to 10, the arbitrator’s award of August 2003, and the Commission’s decision to proceed only on the issues of harassment and retaliation.
[21] The Report details the request for additional and detailed information and the Applicant’s failure to provide a substantive response. It says in paragraphs 11 to 14:
11. The complainant does not provide any specific examples in her complaint to substantiate her allegations either that the respondent failed to provide her with a harassment-free workplace or that it retaliated against her. Rather, the sole assertion of either harassment or retaliation is contained in paragraph 19 of her complaint which states “...I have been subjected to undue harassment and retaliation for asserting my right to accommodation of my physical disability in the workplace...The decision of the Bell Canada to dispute my grievance, dated May 23, 2002, is further evidence of continuing harassment and retaliation.”
12. Given the generalized statement regarding her allegations of both harassment and retaliation as noted in Para. 11 above, the complainant was asked to provide further details, including specific information on the nature and timing of the harassment and/or retaliation, as well as the names of the persons involved, either as the originator of the discriminator treatment or as a witness to it. The complainant, through her counsel, stated that she “has already provided the Commission and the Respondent with ample detailed evidence to support her allegations of harassment,” and he cited the two complaints she filed with the Commission on 19 March 1999 and 23 May 2003.
13. As noted in Para. 5 above, the complainant confirmed that she filed a second complaint rather than request that he first be reactivated following the arbitral decision. Her counsel notes that,
“being dissatisfied with the outcome of the arbitration process, [she] filed the Second Complaint, which is the subject matter of [the] current investigation. The Second Complaint is an extension of the First Complaint. It is our position that all of the subject matter raised in these two Complaints needs to be dealt with in the Second Complaint.”
14. It should be noted that the complainant’s first complaint was stood down in mid-October 1999 pending the resolution of alternate redress – in this case, arbitration. The complainant never requested that it be reactivated and, consequently, the file has remained closed and any allegations contained therein cannot be addressed further. It should also be noted that the allegations of harassment and failure to accommodate in the complainant’s first complaint involve the termination of her employment in September 1997 and, as such, they were already several years out of time when she filed her second complaint in May 2003.
[22] The Report concludes with an Analysis and Recommendation:
Analysis
35. As noted in Para. 26 above, the Canadian Human Rights Act specifies that retaliation complaints filed pursuant to s.14.1 must be associated with the filing of a previous complaint. The complainant failed to provide any such link between her allegations of retaliation in this complaint and the complaint she filed in March 1999.
36. Notwithstanding the fact that it was not linked to her previous complaint, the evidence does not support the complainant’s allegation that the respondent’s reason for disputing her grievances – “the merits of which were plain to be seen” – was retaliatory. The principles of natural justice include the notion of procedural fairness and therefore, proceedings should be conducted so they are fair to all the parties. As the complainant had a right to file a grievance when she believed the respondent had violated her collective agreement, so, too, did the respondent have a right to defend itself against her allegations. Clearly, this is not retaliation.
37. Without specific instances of harassment being provided, the evidence does not support the complainant’s allegation that the respondent failed to provide her with a harassment-free workplace.
Recommendation
38. It is further recommended, pursuant to s.44(3)(b)(ii) of the Canadian Human Rights Act, that the Commission dismiss the complaint
because the evidence does not support the complainant’s allegations.
[23] As on previous occasions, comments of the parties were invited. The comments were to be the last opportunity to comment on the merits of the Complaint. The Applicant’s lawyer in a letter dated January 9, 2006, to which was attached ten pages listing, in cryptic form, dates of events and particularizing certain incidents spanning a period from April 1, 1981 to November 24, 2005. That letter, at pages 1 and 2, contained the following by way of background:
With respect to paragraphs 5 and 6 of the Report, we believe that Ms. Craig’s summary of the background surrounding the First and Second Complaints (that is, your File Nos. T49079 and T49080) is factually inaccurate. We wish to point out that the Second Complaint was filed because Bell Canada had committed new acts of discrimination, harassment and retaliation in the intervening time since our client filed her First complaint. We have no other recourse but to file a new complaint. We take the position that the First Complaint was still alive, despite the passage of some four (4) years. The fact is that the parties continued during this time to attempt to implement the original Award of Arbitrary W. Raynor. If we had attempted to re-open the First Complaint we believe that the Commission would have declined our request on this basis. When the parties efforts to work to a resolution failed, and the Respondent terminated our client’s employment for a second time, we filed the Second Complaint. In the Second Complaint, at paragraph 1, our client expressly or impliedly makes clear that she wishes to re-open the First Complaint concurrently with the subject matter which gave rise to the Second Complaint.
With respect to Ms. Craig, she is entirely incorrect when she states that our client filed the Second Complaint with allegations identical to those of the First Complaint. While the nature of the alleged violations of the Canadian Human Rights Act remained the same, the material facts and evidence offered in support of the Second Complaint are entirely new. The fact remains, however, that the subject matter of the First and Second Complaints are intertwined, and reflect the unlawful acts and omissions of the Respondent in relation to our client.
[24] Bell Canada responded to comments made by Applicant’s lawyer by letter dated January 27, 2006, referring to the Commission’s decision to restrict the complaint to issues of harassment and retaliation.
[25] The Applicant’s lawyer sent a further, unprompted, letter dated February 1, 2006, to the Commission providing a “further argument”.
Our further argument is as follows:
While it is not expressly alleged that the Respondent retaliated against our client because she filed a complaint under the Canada Human Rights Act (the “Act”), it is open for the Commission to make a finding of fact in this regard. The fact of the matter is that our client’s first complaint was never dealt with by the Commission. It remained unresolved on the date that our client’s employment was terminated by the Respondent for the second time. In the circumstances, it may be viewed that this act by the Respondent was retaliation for her having filed a complaint under the Act. As previously indicated, the termination was prompted by our client’s continuing request for accommodation and a workplace free of discrimination. Viewed this way, we believe that there is a sufficient basis upon which to ground the allegation of retaliation.
[26] On February 2, 2006, the Applicant’s lawyer sent a yet further unprompted letter providing copies of two decisions, that of the Ontario Divisional Court in Jones v. Amway of Canada Inc. 2002 CarswellOnt 1191 and that of the Federal Court in Dubois v. Canada (Attorney General) 2005 FC 1017 commenting upon those decisions.
[27] Bell Canada made no comments as to these last two letters.
[28] On March 17, 2006, the Commission communicated its decision to dismiss the complaint because “the evidence does not support the complainant’s allegations”. The Commission did not make mention of any of the letters from the parties commenting on the Report, or the subsequent letters from the Applicant’s lawyer.
Objections to the Decision and Decision Making Process
[29] Applicant’s counsel, in argument, raised the following objections to the Commission’s decision and how it was arrived at:
1. The Commission failed to have regard to the first complaint and issues of harassment raised in that complaint;
2. The Commission failed to have regard to the issues of harassment and retaliation raised in the second complaint;
3. The Commission failed to have regard to the findings of the arbitrator in the 2003 award as to harassment and retaliation; and
4. The Investigator failed to conduct any kind of inquiry into the matter and simply decided the matter “on the pleadings”.
[30] Respondent’s counsel says as to these matters:
1. The first complaint is a closed matter. It was late in filing in the first place, no request was ever made to reactivate it. References to the first complaint made after a delay of several years do not have the effect of reactivating the complaint;
2. The Commission decided that only issues as to harassment and retaliation would be considered in the second complaint. The issues as to accommodation were dealt with in the arbitrator’s award of 2003. No party sought judicial review of that decision;
3. The specific instances raised in the second complaint in paragraphs 7, 9 and 12 all have to do with accommodation and the Commission correctly ignored them. Only paragraph 19 speaks to harassment and retaliation. Those paragraph 19 allegations are too vague and despite requests by the Commission for substantiation, all the Applicant could say was that Bell Canada’s defence to her grievances were harassing and retaliating. Bell Canada is quite entitled to defend a grievance;
4. The Commission had before it materials addressing the first complaint, the second complaint and the 2003 arbitrator’s award. The Investigator’s Report of December 2005, mentions each of these. Sufficient regard was had to each; and
5. The Commission was under no duty to have regard to the evidence as opposed to comments, if any, raised in Applicant’s lawyer’s letter of January 9, 2006, commenting on the Report. In any event, such evidence, if any, is inadequate.
[31] In order to consider these questions, the Court must first consider the standard of review.
Standard of Review
[32] The Federal Court of Appeal in Sketchley v. Canada (Attorney General) 2005 FCA 404 [Sketchley] at paragraph 45 has directed that Courts are to apply a pragmatic and functional approach to decisions made by the Commission under section 44 of the Canadian Human Rights Act. At paragraph 50, it emphasized that such a review must be considered anew in each instance.
[33] In this instance, the Commission had to make the following determinations:
1. Can a Complainant in a second complaint require the Commission to refer to particulars of harassment and retaliation made in a first complaint when that first complaint was adjourned pending arbitration and no formal request for revival was made?
2. Can the Commission review allegations made in the second complaint so as to determine if they were disposed of by way of arbitration?
3. To what extent must an Investigator conduct an independent inquiry if it can be determined that, following a request for particulars and evidence, the matter can be determined upon the materials already before the Commission?
4. What regard, if any, is to be given to particularization and evidence supplied by way of comment upon a Report subsequent to its delivery.
5. To what extent must the Investigator, and if necessary, the Commission, set out in the Report and Decision, its deliberation and reasoning as to each of the foregoing?
[34] Framed in this way, it can be seen that some of the issues deal with procedural fairness and natural justice. As the Supreme Court of Canada has said in Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 the question of standard of review does not arise in respect of these issues. If the procedure was unfair and did not comply with natural justice, the decision must be set aside.
[35] Other issues, such as whether an allegation is directed to accommodation or harassment or retaliation is clearly within the particular expertise of the Commission. Those decisions are entitled to considerable deference.
[36] Justice Mactavish of this Court recently conducted an extensive exercise in determining the standard of review in circumstances very similar to those here, in Loyer v. Air Canada, 2006 FC 1172. While I am mindful of the Federal Court of Appeal’s caution in Sketchley, supra, that every instance must be considered on its own, the analysis in Loyer is directed to circumstances that are very similar to those at issue here. That analysis is one that I agree with completely and adopt in the circumstances here. The appropriate standard of review is that of reasonableness when it comes to a determination based on evidence and in the exercise of discretion. Should an error of law have arisen, the standard would be that of correctness.
Was there Reviewable Error
[37] Turning first to the question of fairness and natural justice, it is clear that the Commission afforded the Applicant and her lawyer ample opportunity to state what the incidents of harassment and retaliation were and to indicate any evidence in support. Ample opportunity was afforded to the Applicant to make out her case. There was no procedural unfairness or denial of natural justice.
[38] As to the Commission’s determination as to the second complaint, the December 2005 Report, paragraphs 4 and 5 clearly state that the Applicant was aware that revival was an issue, yet failed, after an interval of four years to instigate any revival request. The Applicant’s lawyer’s letter of January 9, 2006, in the background portion previously referred to, equivocates as to the point, but acknowledges that a request for revival would have failed. It says the second complaint was filed because new acts of discrimination, harassment and retaliation were committed. The Commission made no reviewable error in not considering the first complaint as forming a continuing basis for allegations before it in the second complaint.
[39] As to allegations raised in the second complaint, the Commission determined, in a decision not challenged by either party, that issues directed to accommodation had been dealt with in the arbitration. These are matters clearly within the expertise of the Commission. The Commission made no reviewable error in determining what incidents relate to accommodation and what issues relate to harassment or retaliation.
[40] The Applicant’s lawyer’s letters submitted to the Commission after the Report was issued, endeavoured to put evidence and particulars as to harassment and retaliation, and further argument to the Commission. None of this was referred to in the decision of the Commission. These submissions constitute, in effect, a new or amended form of complaint. The Canadian Human Rights Act section 41(1)(e) provides that any complaints based upon acts occurring more than one year previous need not be dealt with unless the Commission in its discretion decides to do so. At some point the time for making submissions such as these must end. The Applicant was afforded ample opportunity to put these matters forward earlier, before the Report was prepared. Comments as to the Report itself should not be considered as an opportunity to make new or revised submissions or shore up what is apparently lacking. The Commission made no reviewable error in not explicitly referring to these submissions in its decision.
[41] Further, the Commission decided that the fact that Bell Canada defended itself in respect of the second grievance made by the Applicant, did not constitute retaliation. This may be considered a mixed question of fact and law. Certainly, in law, no Court would quarrel with the right of a party to defend itself in such a proceeding. Whether the manner in which such a defence was conducted constitutes retaliation is a matter of fact and within the Commission’s expertise to make a determination. No reviewable error has been made in respect of such determination.
[42] In sum, therefore, the Commission made no reviewable error and was reasonable in respect of its decision of March 17, 2006.
Costs
[43] The parties have agreed that, regardless of the outcome, each will bear its own costs.
JUDGMENT
FOR THE REASONS GIVEN HEREIN:
1. The application is dismissed; and
2. Each party will bear its own costs.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-707-06
STYLE OF CAUSE: Janice Doerr
v. Bell Canada
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 8, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: HUGHES, J.
DATED: November 14, 2006
APPEARANCES:
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John McNair |
FOR THE APPLICANT |
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Mireille Bergeron |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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McKenzie Lake Lawyers, LLP London, Ontario |
FOR THE APPLICANT |
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Bell Canada (in house counsel) Montreal, Quebec |
FOR THE RESPONDENT |