Federal Court Decisions

 

 

Date: 20070202

Docket: T-1075-06

Citation: 2007 FC 119

Ottawa, Ontario, February 2, 2007

PRESENT:     The Honourable Mr. Justice Blais

 

 

BETWEEN:

 

CONSTABLE SHARON THOMPSON

Applicant

and

 

ROYAL CANADIAN MOUNTED POLICE

Respondent

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, against a decision of the Canadian Human Rights Commission (the Commission), dated May 24, 2006, by which the Commission declined to deal with the applicant’s complaint against the respondent Royal Canadian Mounted Police (the RCMP), pursuant to paragraph 41(1)(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act).

[2]               For the following reasons, I am satisfied that the application for judicial review should be allowed.

 

BACKGROUND

[3]               Constable Sharon Thompson (the applicant) has been a member of the RCMP since 1986. Between December 1997 and June 2002, the applicant was assigned to the Eastern European Organized Crime Enforcement Unit, which was amalgamated into the Combined Forces Special Enforcement Unit in January 2000. Chief Superintendent Benedetto Soave was the officer in charge of both units at all material times.

 

[4]               On October 1, 2004, the applicant filed a formal harassment complaint against Chief Superintendent Soave pursuant to section 40 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10. The applicant alleged in her complaint that she was the victim of harassment in the workplace resulting from the actions of Chief Superintendent Soave while she was under his command, as he repeatedly touched her in an unwanted manner despite her requests that he cease this behaviour.

 

[5]               An investigation was launched in October 2004; an interim report was completed and communicated to the applicant on December 13, 2004, at which point she states that she was told her complaint had been substantiated and that proceedings against Chief Superintendent Soave would be implemented by way of formal discipline. The very next day, on December 14, 2004, Chief Superintendent Soave announced his intention to retire, effective April 27, 2005.

 

[6]               The investigation into the applicant’s complaint continued and a final report was submitted to Assistant Commissioner Séguin on April 1, 2005. The report concluded that all allegations were founded and that formal disciplinary actions should be undertaken against Chief Superintendent Soave.

 

[7]               On April 27, 2005, Chief Superintendent Soave retired from the RCMP with no disciplinary action having been taken against him. During the spring and summer of 2005, counsel for the applicant wrote to the RCMP to enquire as to what steps were being taken to provide a response to the substantiated allegations of harassment. On August 4, 2005, the applicant received a letter from Assistant Commissioner Séguin informing her that the RCMP did not intend to take any further actions in this matter.

 

[8]               On September 19, 2005, the applicant filed a complaint with the Commission, against both the RCMP and Mr. Benedetto Soave, alleging that she had been subjected to harassment and discrimination in the workplace on the basis of sex. As relates to the RCMP specifically, she alleged that its failure to take remedial action after concluding that her complaint was founded, was in itself a breach of the Act.

 

DECISION UNDER REVIEW

[9]               In its decision dated May 24, 2006, the Commission declined to deal with the applicant’s complaint against the RCMP (Commission File No. 20052548) and Mr. Benedetto Soave (Commission File No. 20060002), on the basis that the complaint was based on acts or omissions the last of which occurred more than one year before the filing of the complaint. No further explanation was provided. Since the complaint was dismissed under subsection 41(1) of the Act following a recommendation of the Director of Pre-Complaint Services, no investigation was undertaken on the merit of the complaint.

 

[10]           In this application, the applicant now seeks judicial review of the Commission’s decision to decline to deal with her complaint against the RCMP.

 

ISSUE FOR CONSIDERATION

[11]            The sole issue for consideration in this case is whether the Commission made a reviewable error in dismissing the applicant’s complaint against the RCMP on the basis of paragraph 41(1)(e) of the Act?

 

PERTINENT LEGISLATION

Canadian Human Rights Act, R.S.C. 1985, c. H-6

 

STANDARD OF REVIEW

[12]           In Price v. Concord Transportation Inc., [2003] F.C.J. No. 1201, 2003 FC 946 at paragraphs 37 to 42, Madam Justice Elizabeth Heneghan proceeded with a pragmatic and functional analysis to determine the proper standard of review for a decision of the Commission under paragraph 41(1)(e) of the Act. She wrote:

[37] In this case, the purpose of the legislative scheme of the Act as a whole is to prevent discrimination and provide redress when it does occur. However, the Act recognizes, through several provisions which provide certain screening functions, that this purpose must be applied with certain limitations on which complaints will proceed to the Tribunal stage. Particular to the present situation, section 41(1)(e) reflects the concern that complaints are to be brought forward in a timely manner.

[38] The general function of a time limitation period in any piece of legislation relates to gathering credible evidence, the concept of certainty for defendants and due diligence on the part of plaintiffs. Parliament recognized that including such a time limitation was an important aspect of furthering expediency in the complaint process and fairness to the party responding to a charge of discrimination. Further, section 41(1)(e) recognizes that a black-and-white time bar would not be appropriate. The Commission's fact finding expertise is fairly and appropriately put to work by the added discretion to extend such time limitation if the Commission considers it "appropriate in the circumstances".

[39] There is no privative clause in the Act. The purpose that a section 41(1) decision plays in the entire legislative scheme must be kept in mind, that is to act as a screening function, to prevent claims that, for various, enumerated reasons, should not be permitted to go forward. The nature of the decision under review points to a more deferential standard of review.

 

[40] Further, the discretionary statutory language of the Act, in section 41 and other sections which enable the Commission to perform its screening function, was the subject of comment by the Federal Court of Appeal in Bell Canada, [1998] F.C.J. No. 1609, supra at paragraph 38:

 

The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out ... [in subsections 44(2), 44(3)(a) and 44(3)(b)] involve in varying degrees questions of fact, law and opinion ..., but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.

 

	[41] Finally, the expertise of the Commission in respect to fact finding is well-established in the jurisprudence: see Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. The determination under section 41(1)(e) falls squarely within such expertise. Deference is also warranted on this ground.
	[42] Therefore, after applying the pragmatic and functional analysis, 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.

 

[13]            Justice Heneghan's reasoning in Price has been applied in subsequent decisions of this Court (see e.g. Dupéré v. Canada (House of Commons), [2006] F.C.J. No. 1262, 2006 FC 997 at paragraph 52). The applicant submits that the existing jurisprudence can be distinguished on the facts. In Price for example, the issue was whether the Commission erred by not exercising its discretion to consider the complaint, even though it was out of time. In Dupéré, the decision of the Commission was found to be patently unreasonable for having relied on an investigator’s report replete with factual errors.  In this case, we are concerned with whether the Commission properly appreciated the factual evidence before it in reaching its decision. As this is essentially a question of fact, I find the reasoning in Price to be perfectly relevant and see no need to distinguish it on the facts of this case.

 

[14]           Therefore, I see no reason to proceed with an independent pragmatic and functional analysis, but choose instead to adopt the conclusion of Justice Heneghan in Price that the proper standard of review is patent unreasonableness.

 

PRELIMINARY MOTION

[15]           The applicant filed a late motion document to strike documents included in the respondent’s book of authorities, as well as paragraphs 18 and 20 of the respondent’s memorandum of fact and law.

 

[16]           Neither the motion record of the applicant nor that of the defendant was in compliance with rule 364(2)(e) of the Federal Courts Rules, SOR/98-1-6.

 

[17]           Nevertheless, I have examined the material filed and, in my view, the motion should be dismissed. The documents in question are the RCMP’s “Interpersonal Conflict and Harassment in the Workplace Policy” and the RCMP’s “Policy on Code of Conduct Investigations”, two documents in force at the time of the Commission’s decision.

 

[18]           Furthermore, these documents have only a peripheral impact on the particular issue before the Court. There is thus no prejudice to either party to keep these documents in the file.

 

[19]           Therefore, the applicant’s motion is dismissed, without costs.

 

ANALYSIS

[20]           As noted above, the sole issue for consideration in this case is whether the Commission made a reviewable error in dismissing the applicant’s complaint against the RCMP on the basis of paragraph 41(1)(e) of the Act.

 

[21]           The language of subsection 41(1) of the Act is in no way ambiguous – it states that the Commission “shall deal with any complaint”, unless one of the conditions in paragraphs a) through e) is met. As Mr. Justice Andrew W. Mackay noted at paragraph 16 of his decision in Cape Breton Development Corp. v. Hynes, [1999] F.C.J. No. 340, (1999) 164 F.T.R. 32:

It is also to be noted that the decision here in question is a preliminary decision.  The Commission is bound to accept for consideration a complaint filed in accord with s.41, unless there are exceptional circumstances as set out in paragraphs (a) to (e) of that section.  Where a complaint is filed more than a year after the act or situation giving rise to the complaint, the Commission is bound to consider whether it should be dealt with, under paragraph (e).  Even if it does decide to do so, that is a preliminary decision that precedes the designation of an investigator to investigate the complaint.  The decision in question here is not a decision on the merits of the complaint.

 

[22]            While subsection 41(1) of the Act does not guarantee any particular result, it clearly states that the Commission is statutorily required to proceed with an investigation, unless the complaint falls within one of the grounds listed in paragraphs a) through e).  In the case before us, in deciding not to proceed with an investigation, the Commission relied on paragraph 41(1)(e), which states that:

 

[23]           In addition, the Federal Court of Appeal in Canada Post Corp. v. Canada (Human Rights Commission), [1997] F.C.J. No. 578, 130 F.T.R. 241, held at paragraph 3 that, because a decision under section 41 “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”.  

 

[24]           Determining whether a complaint is out of time appears to this Court to be a fairly straightforward exercise. One must identify the actions or omissions forming the basis of the complaint and the date at which they are alleged to have occurred, and calculate whether they took place within the one year preceding the filing of the complaint before the Commission. As noted by the applicant, the determination of the date of the alleged discrimination in the preliminary screening process is made on the basis of information contained in the written complaint and the written submissions of the parties; there is thus no witness testimony to entertain and no need for the Commission to make credibility assessments. This is acknowledged by the respondent who states in his memorandum that a determination under paragraph 41(1)(e) of the Act is a purely factual exercise.

 

[25]           In her complaint, the applicant alleged sexual harassment on the part of Chief Superintendent Soave, based on a series of events that took place between 1997 and 2002. As the complaint was filed in September 2005, the Commission was well within its right to decline to investigate these allegations against Mr. Soave, on the basis that the alleged acts occurred more than one year before the complaint was filed.

 

[26]            The second prong of her complaint, however, was with regards to the failure of the RCMP to take appropriate remedial actions after investigating and substantiating the allegations of sexual harassment. More notably, the RCMP allowed Chief Superintendent Soave to retire from the RCMP without undergoing any disciplinary action and to continue to represent the RCMP after his retirement. As such, the applicant alleges that the RCMP has failed in its obligations as an employer under section 7 of the Act. This failure to act was reflected in the lack of disciplinary measures undertaken against Chief Superintendent Soave following the issuance of the report in April 2005, and the letter from Assistant Commissioner Séguin dated August 4, 2005, informing her that the RCMP did not intend to take any further action in this matter. These allegations against the RCMP were clearly articulated at paragraphs 21 and 22 of the applicant’s complaint form, and reiterated in greater details in the letters sent to the Commission by the applicant’s counsel, dated February 23, 2006 and April 26, 2006. As the alleged acts and omissions occurred in the spring and summer of 2005, they clearly fall within the one year preceding the filing of the complaint in September 2005.

 

[27]           In a letter to the Commission dated April 10, 2006, Tabatha Tranquilla, Human Rights Advisor for the RCMP, stated that the final report submitted to Assistant Commissioner Séguin concluded that all allegations were founded and that formal disciplinary actions should be undertaken against Chief Superintendent Soave. The letter also confirmed the date at which the investigation was launched and the date the final report was issued. However, Ms. Tranquilla noted that, as Chief Superintendent Soave resigned before any disciplinary action could be taken, the RCMP had no further jurisdiction under which to apply disciplinary measures and could take no further action against him.

 

[28]           While an investigation into this complaint by the Commission might very well have revealed that the RCMP was in fact powerless to act in time, this is irrelevant for our purposes, since no investigation on the merit was ever undertaken by the Commission, which dismissed the complaint solely on the technical ground that the allegations raised against the RCMP were out of time, as they were based on acts or omissions, the last of which occurred more than one year before receipt of the complaint.

 

[29]           The applicant submits, and I concur, that based on the information before it, there was no rational basis upon which the Commission could have determined that the complaint against the RCMP was out of time, as the alleged acts and omissions clearly occurred less than one year before the complaint was filed. As such, I find that the decision of the Commission was patently unreasonable and should be set aside.

 

JUDGMENT

 

1.                  The application is allowed;

2.                  The matter is sent back to the Commission that shall deal with the complaint in light of these reasons;

3.                  Costs in favour of the applicant.

 

 

 

“Pierre Blais”

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

DOCKET:                                          T-1075-06

 

STYLE OF CAUSE:                          CONSTABLE SHARON THOMPSON

                                                            v.

                                                            ROYAL CANADIAN MOUNTED

                                                            POLICE

                                                           

 

PLACE OF HEARING:                    TORONTO, ONTARIO

 

DATE OF HEARING:                      JANUARY 30, 2007

 

REASONS FOR JUDGMENT AND JUDGMENT :         BLAIS J.

 

DATED:                                             FEBRUARY 2, 2007

 

 

 

APPEARANCES:

 

CAROLINE V. JONES	FOR THE APPLICANT
GILLIAN PATTERSON	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

PALIARE ROLAND TORONTO, ONTARIO	FOR THE APPLICANT
JOHN H.SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO	FOR THE RESPONDENT