Ottawa, Ontario, March 7, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
Applicant
and
Let the attached edited version of the transcript of my Reasons for Order delivered orally from the bench at Saskatoon, Saskatchewan, on February 6, 2007, be filed to comply with section 51 of the Federal Court Act.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-726-05
STYLE OF CAUSE: CAMECO CORPORATION
v.
JAMES W.H. MAXWELL
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: February 6, 2007
TRANSCRIPT OF REASONS
APPEARANCES:
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Ms. C.A. Sloan
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No one contra
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SOLICITORS OF RECORD:
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Ms. C.A. Sloan McKercher Mckercher & Whitmore Saskatoon, Saskatchewan
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John H. Sims, Q.C. Deputy Attorney General of Canada |
Page 1
Court File No. T-726-05
FEDERAL COURT
B-E-T-W-E-E-N:
CAMECO CORPORATION,
APPLICANT
- and-
JAMES W.H. MAXWELL,
RESPONDENT
****************************************************
EXCERPT OF THE JUDICIAL REVIEW
Held at Saskatoon, Saskatchewan on
Tuesday, February 6th, 2007
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Madam Justice Layden-Stevenson - Presiding
APPEARANCES:
Ms. C.A. Sloan,
McKercher McKercher & Whitmore
Saskatoon, Saskatchewan COUNSEL FOR THE APPLICANT
No one contra,
Page 2
1 (Reconvened at 10:35 a.m.)
2 COURT CLERK: The hearing is now resumed.
3 THE COURT: Be seated please. I hope
4 you bear with me while I cross-reference from
5 records to notes to submissions. These are my
6 reasons in the matter of Cameco Corporation
7 and James W.H. Maxwell.
8 Cameco Corporation, which I
9 will refer to as Cameco, seeks judicial review
10 of a decision of the Canadian Human Rights
11 Commission, which I will refer to as the
12 Commission.
13 The Commission decided to
14 deal with the complaint of the Respondent,
15 James W.H. Maxwell, notwithstanding that Mr.
16 Maxwell had also launched a grievance under
17 the provisions of a collective agreement. Mr.
18 Maxwell did not file a Respondent's record,
19 although he did appear at the hearing. He
20 explained that he was operating under the
21 mistaken assumption that it was the Commission
22 that would be filing the record. Cameco took
23 no objection to Mr. Maxwell's failure in this
24 respect.
25 In its written submission,
Page 3
1 Cameco contends that the Commission failed to
2 observe procedural fairness and based its
3 decision on an erroneous finding of fact that
4 it made in a perverse or capricious manner or
5 without regard to the material before it. At
6 the hearing, the allegation of breach of
7 procedural fairness was abandoned and Cameco's
8 argument was to the effect that the Commission
9 ought to have followed the recommendation of
10 its screening officer. I am not persuaded
11 that the Commission erred as alleged, nor am I
12 persuaded that the Commission's decision was
13 unreasonable. Consequently, the application
14 will be dismissed.
15 The facts giving rise to
16 this matter are as follows. In November of
17 2004, Mr. Maxwell filed a complaint with the
18 Commission regarding his employer, Cameco. At
19 the time, he had been a Cameco industrial
20 mechanic contract employee since 2000.
21 Although consistently employed on a temporary
22 basis, he had actively searched out and
23 applied for a number of permanent positions
24 with Cameco. Each time, he was passed over
25 allegedly without explanation. Eventually he
Page 4
1 decided to check his file in Cameco's human
2 resources department. There, he discovered a
3 foreman's employee evaluation form dated two
4 years earlier which stated, and I'm quoting:
5 "As a temporary employee, Jim's
6 contribution helped. However, he
7 missed his final two contracted weeks
8 due to some pretty serious health
9 problems. I doubt he will be fit for
10 maintenance in an industrial work
11 environment in the future. Not
12 recommended for permanent work force."
13 Apparently, upon request, this form would have
14 been passed on to potential employers. Mr.
15 Maxwell took strong exception to the form's
16 contents. He felt that the foreman was not
17 qualified to opine on his medical condition.
18 His most recent contract position had been
19 completed without him having taken any sick
20 leave. Nonetheless, new permanent positions
21 were awarded to younger men whose
22 qualifications and experience were ostensibly
23 inferior to those of Mr. Maxwell. He believed
24 that he was a victim of discrimination on the
25 basis of his age, 57, and health.
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1 By correspondence dated
2 December 20th, 2004, the Commission's
3 screening officer advised Mr. Maxwell that she
4 would recommend to the Commission that it not
5 handle the complaint. The letter in part
6 stated:
7 "We understand that there is a
8 grievance process available to the
9 Complainant and that the process will
10 deal with the allegations raised in
11 this complaint. Section 41(1)(a) of
12 the Canadian Human Rights Act states
13 that the Commission may refuse to deal
14 with the complaint where 'the alleged
15 victim of the discriminatory practice
16 to which the complaint relates ought
17 to exhaust grievance or review
18 procedures otherwise reasonably
19 available'."
20 Enclosures to the correspondence included
21 copies of Mr. Maxwell's complaint form
22 detailing the basis of the complaint, the
23 complaint summary, and the Commission's
24 correspondence to Cameco which mirrored that
25 forwarded to Mr. Maxwell. The parties were
Page 6
1 informed that the Commission would determine
2 whether the recommendation would be accepted.
3 Both parties were invited to make submissions
4 to the Commission regarding the recommendation.
5 In its submissions, Cameco
6 affirmed its support for the recommendation.
7 Mr. Maxwell, for his part, advised that a
8 grievance had been filed. He enclosed a
9 status report from his union representative
10 which stated, and I'm quoting:
11 "This is to inform you that we as a
12 union have taken all steps that we can
13 to try to solve Jim Maxwell's
14 grievance. The company, Cameco, still
15 denies the fact that Jim has a
16 grievance at all. They have stated
17 that they do not have to deal with
18 Human Rights in any form. I have
19 asked them to give us a reason why
20 they will not award Jim a full-time
21 position. They then stated that they
22 do not have to give reasons for their
23 actions."
24 Mr. Maxwell's submissions were disclosed to
25 Cameco and it was provided the opportunity to
Page 7
1 respond. In doing so, Cameco voiced its
2 concern that the company had not yet received
3 confirmation from the union as to whether it
4 wanted to proceed to arbitration, the final
5 stage of the grievance process. It enclosed a
6 copy of its letter of August 12th, 2004 to the
7 union representative which stated as follows:
8
9 "The collective agreement permits the
10 use of temporary employees as per
11 article 9.10. Mr. Maxwell's term was
12 ended because his services were no
13 longer required at Key Lake.
14 Temporary employee means that their
15 term is finite. The company is under
16 no obligation to employ them longer
17 than necessary. This is explained to
18 them very clearly in their initial
19 letter of offer.
20 In our previous discussions on
21 this subject, you have been unable to
22 state which of the Human Rights
23 prohibited grounds that the company
24 may have violated. You have insisted
25 that the CBA [collective bargaining
Page 8
1 agreement] itself violates Human
2 Rights legislation as it does not
3 recognize the seniority of temporary
4 employees. We suggest that this be
5 discussed at the bargaining table or
6 in a union management forum.
7 You have failed to provide the
8 company with any evidence that would
9 suggest we have violated the
10 collective bargaining agreement or any
11 form of Human Rights legislation.
12 Therefore, this grievance at stage 3
13 is denied."
14 The Commission decided to deal with the
15 complaint. It stated:
16 "The submissions from the Respondent
17 [Cameco] and the Complainant [Maxwell]
18 have led the Commission to conclude
19 that the grievance procedure will not
20 address the issue of discrimination on
21 the grounds of age and disability."
22 The pertinent provision of the Canadian Human
23 Rights Act is paragraph 41(1)(a) which
24 provides:
25 "(1) subject to section 40, the
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1 Commission shall deal with any
2 complaint filed with it unless in
3 respect of that complaint it appears
4 to the Commission that
5 (a) the alleged victim of the
6 discriminatory practice to which the
7 complaint relates ought to exhaust
8 grievance or review procedures
9 otherwise reasonably available."
10 The jurisprudence of the Federal Court of
11 Appeal and the Federal Court establishes that
12 the applicable standard of review regarding
13 the Commission's determination under section
14 41 of the CHRA is that of reasonableness.
15 There is no privative clause or statutory
16 right of appeal, although judicial review is
17 available. It is generally recognized that
18 the Commission has a level of expertise in
19 these matters. The legislation is
20 quasi-constitutional and addresses equality.
21 The Commission is granted considerable latitude
22 when performing its screening function. The
23 particular question entails two questions,
24 whether there is a grievance or review
25 procedure reasonably available, a question of
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1 mixed law and fact, and whether the
2 Complainant ought to exhaust the procedure, a
3 question of opinion or discretion.
4 See Gardner v. Canada AG
5 (2005), 339 N.R. 91 (F.C.A.); Bell Canada v.
6 Communication, Energy and Paperworkers Union
7 of Canada [1999] 1 F.C. 113 (F.C.A.); Latif v.
8 Canadian Human Rights Commission and R.G.L.
9 Fairweather, [1980] 1 F.C. 687 (F.C.A.);
10 Canada Post v. Wighton (2006), 147 A.C.W.S.
11 (3d) 659, 2006 FC 275; Johnson v. Maritime
12 Telegraph and Telephone Company 2004 FC 951,
13 F.C.J. No. 1171; MacLean v. Marine Atlantic
14 Inc., [2003] F.C.J. No. 1854 (F.C.).
15 As I understand the position
16 taken by Cameco at the hearing, it claims that
17 the Commission ought not to have decided to
18 deal with the matter because the grievance
19 process had not been completed. It asserts
20 that the submissions before the Commission
21 indicated that the complaint was actively
22 being dealt with under the grievance
23 procedures contained in the collective
24 agreement and that the Commission erred when it
25 concluded that the grievance process did not
Page 11
1 include reference to the Human Rights
2 legislation. At the arbitration stage, the
3 arbitrator would have to give effect to the
4 Human Rights legislation. In my view,
5 Cameco's submissions disclose nothing other
6 than disagreement with the Commission's
7 decision.
8 As stated previously, in
9 view of the Rule 318 certification of the
10 Canadian Human Rights Commission regarding the
11 materials produced to Cameco which,
12 "constitute all the material that was before
13 the CHRC when it made its decision" in regard
14 to Mr. Maxwell's complaint, Cameco abandoned
15 its position that the Commission considered
16 evidence not disclosed to Cameco. In sum,
17 Cameco is dissatisfied because its
18 interpretation of the documents lead it to
19 conclude that the Human Rights complaint was
20 subsumed in the grievance procedure. The
21 Commission viewed it differently. The record
22 before the Commission contained both the status
23 report of the union representative and the
24 third level grievance determination of the
25 general superintendent of Cameco. I have
Page 12
1 referred to the contents of those documents
2 earlier. Suffice it to say, that based on
3 those documents, it was not unreasonable for
4 the Commission to conclude that "the grievance
5 procedure will not address the issue of
6 discrimination on the grounds of age and
7 disability."
8 Cameco was provided
9 disclosure and cross disclosure as well as an
10 opportunity to make responsive submissions at
11 each stage. Indeed, Cameco had the final say
12 before the Commission rendered its decision.
13 There was no breach of procedural fairness
14 here.
15 Cameco appears to have lost
16 sight of the fact that the decision under
17 section 41 is made at a very early stage. The
18 Commission's determination to deal with the
19 complaint does not constitute a finding of
20 discrimination. Mr. Justice Rothstein's
21 comments in Canada Post Corp v. Canada (CHRC)
22 (1997), 130 F.T.R. 241 (F.C.T.D.), aff'd
23 (1999), 245 N.R. 397 (F.C.A.) leave to appeal
24 dismissed, [1999] SCCA No. 323, at paragraph 3
25 are opposite :
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1 "A decision by the Commission under
2 section 41 is normally made at an
3 early stage before any investigation
4 is carried out. A lengthy analysis of
5 the complaint at this stage is, at
6 least to some extent, duplicative of
7 the investigation yet to be carried
8 out. A time consuming analysis will,
9 where the Commission decides to deal
10 with the complaint, delay the
11 processing of the complaint. If it is
12 not plain and obvious to the Commission
13 that the complaint falls under one of
14 the grounds for not dealing with it
15 under section 41, the Commission
16 should, with dispatch, proceed to deal
17 with it."
18 Cameco did not argue or suggest that the
19 arbitrator possessed exclusive jurisdiction in
20 relation to this dispute. Rather, it stated
21 that the grievance process is the preferred
22 avenue because it is better and quicker, and there
23 is no need to put everyone through it twice.
24 The Canadian Human Rights
25 Act, paragraph 41(1)(a), indicates that
Page 14
1 Parliament contemplated circumstances wherein
2 overlap between grievance procedures and the
3 procedures in the Canadian Human Rights Act
4 for dealing with complaints of discriminatory
5 practices could occur. In the event of such
6 conflict, it is for the Commission to determine
7 whether the grievance procedure ought to be
8 exhausted before the Commission investigates, if
9 it decides to investigate. That is precisely
10 what the Commission did. Its decision is not
11 unreasonable.
12 For the foregoing reasons,
13 the application for judicial review will be
14 dismissed and an order will so provide.
15 Mr. Maxwell, because you are
16 a self-represented litigant, you are not
17 entitled to costs that would cover your legal
18 fees because you haven't paid a lawyer. In
19 the normal course, had you filed a Respondent's
20 record, you would have been entitled to the
21 disbursements associated with the filing of
22 that record, but you have not filed a
23 Respondent's record, so in those circumstances
24 there is no way that I can award you costs of
25 this application, notwithstanding that you
Page 15
1 have been successful.
2 MR. MAXWELL: Madam Justice, I appreciate
3 that, I understand that situation.
4 THE COURT: All right. So no costs will
5 be awarded.
6 MS. SLOAN: Thank you, Madam Justice.
7 THE COURT: Thank you very much.
8 COURT CLERK: This hearing is now
9 concluded.
10 (Adjourned at 10:55 a.m.)
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1 OFFICIAL QUEEN'S BENCH COURT REPORTER'S CERTIFICATE:
2 I, Karen Hinz, CSR, Official Queen's Bench Court
3 Reporter for the Province of Saskatchewan, hereby
4 certify that the foregoing pages contain a true and
5 correct transcription of my shorthand notes taken
6 herein to the best of my knowledge, skill, and
7 ability.
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12 __________________________, CSR
13 Karen Hinz, CSR
14 Official Queen's Bench Court Reporter
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