Federal Court Decisions

 

 

 

Date: 20070330

Docket: T-381-06

Citation: 2007 FC 335

BETWEEN:

 

SUSAN COMSTOCK

Applicant

 

-and-

 

PUBLIC SERVICE ALLIANCE OF CANADA;

TREASURY BOARD OF CANADA

Respondents

 

 

 

REASONS FOR ORDER

GIBSON J.

 

INTRODUCTION

[1]               These reasons follow the hearing on the 19^th of February, 2007, of an application for judicial review of two decisions of the Canadian Human Rights Commission (the “Commission”) in which the Commission rejected two complaints by Susan Comstock (the “Applicant”), one against each of the Respondents, on the ground that “... the complaints are beyond the jurisdiction of the Commission as no link to a prohibited ground of discrimination was established”.  The decisions were communicated to the Applicant in a single letter dated the 3^rd of February, 2006.[1]

 

[2]               At the opening of the hearing before the Court, counsel for the Respondent, Treasury Board of Canada raised the issue of the application of Rule 302 of the Federal Courts Rules[2] to this proceeding.  That rule reads as follows:

 

Counsel before the Court were in agreement that the two decisions before the Court involve the same Applicant and essentially the same factual background.  No counsel objected to an Order of the Court allowing this judicial review of two decisions, essentially a single “order”, to proceed, as contemplated by Rule 302.  Accordingly, an Order to that effect issued on the same day the hearing was conducted.  All parties were represented before the Court.

 

BACKGROUND

[3]               The Applicant was, at the time her affidavit before the Court was sworn, which is to say the 30^th of March, 2006, a member of the federal public service of long-standing.  She was then employed as a senior inter-governmental relations officer in the Department of Indian Affairs and Northern Development, sometimes referred to as the “Department of Indian and Northern Affairs”,

 

 

 

in Toronto, Ontario.  She has extensive formal education.

 

[4]               The Applicant attests:

...

2.  My religious faith is of utmost importance to me as a human being, deeply affecting and informing my personal characteristics, needs, capacities, and life circumstances.  My self-determination, fulfillment and autonomy as a human being are integrally linked to my religion.

 

3.  So intrinsic to my being as a person is faithful belief and practice of my Christian religion that having been a lifelong Anglican, I left the Anglican Church of Canada because of its ambiguous position with respect to the blessing of homosexual relationships.  On August 7, 2004, I was received and confirmed as a Roman Catholic by Reverend Father James Adams of the Parish of St. John in the City of Toronto...

 

4. The Catholic Church has well-documented, well known and long-standing affirmation of traditional marriage and the obligations of its members...[3]

 

 

[5]               The Applicant was, at all relevant times, a unionized employee in the federal public service.  The terms and conditions of her employment were governed by a collective agreement between the Respondent the Public Service Alliance of Canada (“PSAC”) and the Respondent Treasury Board of Canada (“Treasury Board”). 

 

[6]               The Applicant attests that she became aware of PSAC’s “Policy 31” with respect to sexual orientation when PSAC distributed a memorandum in June, 2004, prior to a federal election, advising its members of its position on equal marriage rights for same-sex couples.  PSAC’s Policy 31 reads in part as follows:

...

The Public Service Alliance of Canada deplores discrimination against lesbians, gay men and bisexuals and urges all levels of government not only to prohibit discrimination on the basis of sexual orientation, but also to recognize and protect lesbian and gay relationships and families.

 

The Alliance has taken a leading role in negotiating collective agreement provisions which begin the process of providing protection on the basis of sexual orientation.  As well, it has defended these rights at arbitrations and adjudications, and pursued these issues to the Courts.  The Alliance is committed to achieving contractual recognition and protection of the relationships and the families of all members. 

 

The Alliance believes that heterosexism (the presumption that everyone is heterosexual and that heterosexuality is superior to other forms of loving) has constructed a social edifice which denies the existence of lesbians, gay men and bisexuals, of their relationships and their families.  The Alliance believes that fear and hatred of lesbians, gay men and bisexuals is passively and actively encouraged when institutions do not speak out against overt and covert discrimination against lesbians, gay men and bisexuals.  To remain silent in the face of discrimination is to suggest tacit approval of harassment, intimidation and violence against gay men, lesbians and bisexuals.

 

The Alliance recognizes that a single individual may experience multiple grounds of discrimination at the same time, and that lesbians, gay men and bisexuals will experience the world differently depending on their sex, race, age, class, disability, language and other factors.  The Alliance is committed to obtaining human rights protection on multiple and intersecting grounds of discrimination.[4]

...

 

[7]               The Applicant found, in her words, the “discriminatory memorandum” of June 2004 from PSAC to be offensive.  The memorandum listed a range of things that PSAC members could do to support its Policy 31 in the context of the up-coming federal election in which same-sex “marriage” was an issue.  She attests:

...Just as one example, note the use of the words, “support for human rights” in the context of a memorandum advocating for a Bill on same-sex “marriage” implies that opposition to same-sex “marriage” equates with a lack of support [for] human rights.

 

 

[8]               The Applicant further attests:

The Respondent union discriminated against me on the basis of my religion through its Policy 31.  In this policy, the Respondent union indicates that it “will create a Union in which there is zero tolerance of homophobia and heterosexism.”  This discriminates against me because of my deeply-held religious beliefs with respect to sexuality, marriage and family.  Clearly my religious beliefs would be characterized as, if not homophobic (although wrongly), at least heterosexist.  The expressed goal of this policy is to eradicate from the membership of the Respondent union any views that conflict with this policy statement.  This has the effect, at the very least, of making me a moral and social outcast within my union, and creating the impression or belief that my contribution in the workplace on the union as a human being is unwelcome, inferior, and of little or no positive value...

 

 

[9]               Against the foregoing, the Applicant applied to Treasury Board to have her compulsory dues to PSAC, a not inconsiderable sum, donated to her church.  The authority for such a diversion is reflected in section 11.04 of the collective agreement between PSAC and Treasury Board.  That article reads as follows:

An employee who satisfies the Employer to the extent that he or she declares in an affidavit that he or she is a member of a religious organization whose doctrine prevents him or her as a matter of conscience from making financial contributions to an employee organization and that he or she will make contributions to a charitable organization registered pursuant to the Income Tax Act, equal to dues, shall not be subject to this article [compulsory check-off], provided that the affidavit submitted by the employee is counter-signed by an official representative of the religious organization involved.[5]

[emphasis added]

 

 

[10]           Treasury Board, as the “Employer” for the purposes of the above section, rejected the Applicant’s application.  It found that the Roman Catholic Church does not have doctrine that prevents its members as a matter of conscience from making financial contributions to employee organizations and that the teachings of the Roman Catholic Church support the right of workers to join together in associations to promote human rights and to further other interests in the common good.  It further found that the Roman Catholic Church has a long history in Canada of supporting working people in the struggle to promote and safe-guard their rights.  In support of this conclusion, Treasury Board cited a letter from Reverend Fr. Thomas A. Lynch, Dean of Studies, St. Augustine’s Seminary of Toronto, dated October 26, 2005.[6] 

 

[11]           The Applicant’s complaints to the Commission followed.

 

The Complaints

[12]           By reference to the Tribunal Record that was before the Commission, the Applicant’s complaint against the Treasury Board was filed on the 22^nd, of April, 2005.  That complaint and Treasury Board’s “defence” is summarized in the following terms in the report by an investigator to the Commission:

The complainant alleges that the respondent [Treasury Board] treated her in an adverse differential manner on a prohibited ground of discrimination (religion) by not allowing her to divert her union dues to the charitable institution of her choice (The Roman Catholic Church) as provided by an exemption in the collective agreement, contrary to Section 7 of the Canadian Human Rights Act.  The complainant asked the respondent to transfer her dues to the Roman Catholic Church because she opposes her union’s support of same-sex rights.

 

The respondent denies discriminating against the complainant or treating her in an adverse differential manner in the course of her employment on the ground of religion or any other prohibited ground.  The respondent refused to divert the complainant’s union dues to the Roman Catholic Church because it was not satisfied by the evidence provided by the complainant that she met the requirements to obtain the exemption.

 

 

[13]           Once again, by reference to the Tribunal Record that was before the Commission, the Applicant’s complaint against PSAC was dated the 25^th of April, 2005.  The summary of the Applicant’s complaint in the report by an investigator to the Commission, is in the following terms:

The complainant alleges that the respondent practises systemic discrimination against her as a Roman Catholic and all Roman Catholics through the application of its Policy 31 relating to sexual orientation, contrary to Section 10 of the Canadian Human Rights Act.

 

No direct reference to PSAC’s “defence” is made in the report by the investigator.

 

 

THE DECISIONS UNDER REVIEW

[14]           The Commission had before it when it took the decisions under review, “Analysis Reports” from a Commission investigator.  Those reports are included in the very succinct Tribunal Record that is before the Court.  The investigator, in his or her report, made identical recommendations in respect of both complaints.  The recommendations conform with the decisions under review.

 

[15]           In support of his or her recommendation regarding the complaint by PSAC, the investigator provided the following brief analysis:

The evidence does not show how her [the applicant’s] freedom of religion and conscience was compromised by this policy.  The Supreme Court of Canada expressed that the freedom of religion is the freedom to undertake practices and harbour beliefs.  The evidence does not show that her [the Applicant’s] freedom of religion is therefore compromised by the PSAC Policy. 

 

The fact that she opposes the union’s political or social causes does not force her to act in a way contrary to her beliefs or her conscience.  Other avenues are available in the work place:  expression of opinion, refusal to be a member of the union, provoke debate in a democratic fashion to have the union challenged and possibly be voted out.  The link to the ground therefore does not appear to be established.

 

The complainant alleged that her freedom of expression was infringed by the PSAC in their decision to support gay and lesbian rights in Policy 31.  However, the complainant indicated that she attempted to have a motion on the issue of religious freedom.  It suffice to say, for the purpose of this complaint, that freedom of expression is not a prohibited ground under the Canadian Human Rights Act. 

 

Presumably the “...motion on the issue of religious freedom” was attempted to have been brought in the context of a PSAC meeting. 

 

[16]           In the context of the complaint against Treasury Board, the investigator’s brief analysis is in the following terms:

The complainant recognized that she could not benefit from the exemption.  The evidence, which is not contradicted on this issue, confirms that the respondent properly construed the conditions of the exemption of article 11.04 of the collective agreement.

 

The complainant also alleged that her freedom of religion and conscience was compromised by the PSAC Policy 31 and other related principles in support of same-sex rights and marriage.  The evidence does not show how her freedom of religion and conscience was compromised by this policy.

 

The complaint did not present evidence relating to any infringement to her freedom of religion or conscience by having to pay dues to the union.  The fact that she opposes the union’s political or social causes does not force her to act in a way contrary to her beliefs or her conscience.  Other avenues are available in the work place:  expression of opinion, refusal to be a member of the union, provoke debate in a democratic fashion to have the union challenged and possibly be voted out.  The link to the ground therefore does not appear to be established.

 

[17]           As earlier indicated in these reasons, by letter dated the 3^rd of February, 2006, the Commission determined to dismiss each of the Applicant’s complaints on the ground that they are beyond the jurisdiction of the Commission as no link to a prohibited ground of discrimination was established.

 

RELEVALENT PROVISIONS OF THE CANADIAN HUMAN RIGHTS ACT

[18]           Subsection 3(1), the opening words of section 7, paragraph (b) and the closing words of that section, and the opening words of subsection 41(1) and paragraph (c) of that subsection of the Canadian Human Rights Act[7] read as follows:

 

THE ISSUES

a) Preliminary Issues

[19]                       The Court has earlier noted that whether this judicial review proceeding was properly constituted in light of Rule 302 of the Federal Court Rules was raised.  Also, as earlier noted, an Order of the Court issued on the date of hearing to ensure that the proceeding was properly constituted. 

 

[20]                       Through the Applicant’s affidavit appropriately filed herein, the Applicant attempted to substantially expand upon the Tribunal Record and to introduce opinion and argument.  An affidavit filed on behalf of Treasury Board, to a much lesser extent, also attempted to expand the Record before the Court.  Following submissions by counsel, none of the affidavit material before the Court was struck, however, the Court undertook to counsel that it would give no weight whatsoever to material expanding or attempting to expand on the Tribunal record and would ignore argument and opinion reflected only in the affidavits before the Court. 

 

[21]                       Finally, it was urged that the Applicant was introducing, before the Court, irrelevant arguments.  The Court concluded that it would decline to consider any argument based on

subsection 70 (2) of the Canada Labour Code[8], dealing, in part, with the diversion of compulsory union dues to a charitable organization of an employee’s choice on the basis of religious conviction or beliefs.  The Applicant, being an employee in the public service of Canada, the Canada Labour Code and its provisions simply have no application to the circumstances of this matter.

 

b) Substantive Issues

[22]                       In addition to what I have described above as preliminary issues, each of which I have  

dealt with rather summarily, counsel for the Applicant raised a rather daunting range of issues on

these applications for judicial review which I will paraphrase as follows:

-           first, did the Commission breach the Applicant’s rights to procedural fairness;

-           second, if procedural fairness considerations do not determine these applications in favour of the Applicant, what is the appropriate standard of review on the remaining issues;

-           third, did the Commission’s refusal to deal with the Applicant’s complaints constitute a refusal to exercise its jurisdiction and/or amount to an error in law;

-           fourth, did the Commission’s refusal to deal with the Applicant’s complaints constitute a breach of any or all of the following provisions of the Canadian Charter of Rights and Freedoms[9]; paragraph 2(a), (freedom of conscience and religion); paragraph 2(d), (freedom of association); section 7 (right to life, liberty and security of the person); and subsection 15(1), (discrimination on the basis of a prohibited ground, in this case, religion);

-           fifth, was the Applicant’s complaint against Treasury Board based upon a prohibited ground of discrimination;

-           sixth, was the Applicant’s complaint against PSAC based on a prohibited ground of discrimination; and

-           finally, is there inherent bias within the Commission with respect to any of the issues here before the Court such that the Applicant cannot have a reasonable expectation of a fair hearing on her complaints, thus requiring this Court to grant her relief outright.[10]

 

[23]                       Counsel for PSAC and Treasury Board addressed all of the substantive issues raised on behalf of the Applicant, albeit, some more summarily than others and, in some cases, by grouping some of the Applicant’s issues. 

 

SUBMISSIONS AND ANALYSIS

Standard of Review

[24]                       In what follows, I will address each of the issues raised on behalf of the Applicant, albeit, not necessarily in the order in which they appear above.

 

[25]                       All three counsel before the Court, citing Dr. Q v. College of Physicians and Surgeons of British Columbia[11] urged the application of a pragmatic and functional analysis to determine the appropriate standard of review of the decisions under review on their general merits.  Thus, four contextual factors must be taken into account:  first, the presence or absence of a privative clause or statutory right of appeal; second, the expertise of the tribunal relative to that of the reviewing court on the substantive issues in question; third, the purposes of the legislation and the particular provision in question; and finally, the nature of the question.

 

[26]                       On the facts and legislative framework underlying this matter, it was not in dispute that no privative clause applies with respect to the decisions under review, nor is there a statutory right of appeal from those decisions.  I thus conclude that the first factor is neutral in determining the appropriate standard of review of the decisions under review.

 

[27]                       With regard to the second factor, the expertise of the Commission relative to that of this

Court, the Commission having determined that the complaints did not fall within its jurisdiction, I conclude that that determination is a determination in law and thus, in the absence of other considerations, would warrant little deference.  That being said, there is here a special consideration.  The opening words of subsection 41(1) of the Canadian Human Rights Act require the Commission to deal with complaints before it “...unless it appears to the Commission...” that, on the facts of the matters, the complaint, and in this case, the complaints, is or are beyond its jurisdiction.

 

[28]                       In Canada Post Corp. v. Canada (Canadian Human Rights Commission) et al.[12], Justice Rothstein, then of this Court, wrote at paragraph 4 of his reasons:

...The decision is one for the Commission and the determination is set forth in subjective and not objective terms.  Thus, the scope for judicial review of such a decision is narrow.  Only considerations such as bad faith by the Commission, error of law or acting on the basis of irrelevant considerations are applicable.

 

On the basis of the foregoing, I am satisfied that the second factor augers in favour of substantial deference.

 

[29]                       The third factor, the purpose of the Canadian Human Rights Act as a whole, and of the particular provision at issue in the context of that purpose, juxtaposes the purpose of preventing discriminatory practices based on a number of enumerated grounds, with a subjective authority in the Commission to dismiss complaints that it considers to be beyond its jurisdiction, thus presumably, contributing to the preservation of the Commission’s limited resources to enable it to effectively deal with complaints that it finds within its jurisdiction.  I find that this factor augers in favour of substantial deference.

 

[30]                       The final factor, the nature of the question before the Commission, I conclude follows the determination on the second and third factors.

 

[31]                       Counsel for the Applicant urged that a pragmatic and functional analysis should lead to a conclusion that the general conclusions of the Commission on decisions such as those here under review should be correctness.  By contrast, each of counsel for the Respondents urged that the general standard of review should be reasonableness simpliciter. 

 

[32]                       Not surprisingly perhaps, no counsel before me cited Constable Sharon Thompson v. Royal Canadian Mounted Police[13], a very recent decision of my colleague Justice Blais on an application for judicial review of a decision of the Commission declining to deal with Constable

Thompson’s complaint against the Royal Canadian Mounted Police on the basis of paragraph 41(1)(e) of the Canadian Human Rights Act, a time-bar provision rather than, as here, a jurisdictional bar provision.  Justice Blais wrote at paragraphs 12 to 14 of his reasons:

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.                             

 

[33]                       Even more recently, in The Wikwemikong Tribal Police Services Board v. James Darin Corbiere[14], the Federal Court of Appeal reviewed its role on an appeal from a decision of this Court on judicial review of a decision of the Commission, such as that here under review.  After citing the following words of Justice Décary in Bell Canada v. Communciations, Energy and Paperworkers Union of Canada[15], where at paragraph 38, he stated:

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. ...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.

[emphasis added]

 

 

The Court went on at paragraphs [15] and [16] of its reasons to write:

Having found the correct standard of review, the role of an appellate court is to apply that standard directly to a decision of the Tribunal.  In a recent decision, Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans)...this Court reviewed its role on the appeal of a decision of the Federal Court on a judicial review application.  Writing for the panel, Rothstein J.A. (as he then was) stated:

 

However, in more recent cases, the Supreme Court has adopted the view that the appellate court steps into the shoes of the subordinate court in reviewing a tribunal’s decision.  ...The appellate court determines the correct standard of review and then decides whether the standard of review was applied correctly. ...In practical terms, this means that the appellate court itself reviews the tribunal’s decision on the correct standard of review.

 

In brief, because decisions of the Commission are entitled to some deference, the Court will only intervene when an unreasonable decision is made.  Accordingly, the Judge erred in reviewing the Commission’s decision on a correctness standard.  As such, this Court must apply the reasonableness simpliciter standard directly to the decision of the Commission.

[emphasis added]

 

                  

[34]                       I read this most recent decision of the Court of Appeal as directing that the appropriate standard in a general review of decisions of the Commission is reasonableness simplicter.  That being said, I remain equally satisfied that a breach of the duty of fairness on the part of the Commission or a clear error of law on its part should be reviewed on a standard of correctness.

 

Procedural Fairness and Inherent Bias

[35]                       Counsel for the Applicant urges by reference to Baker v. Canada (Minister of Citizenship and Immigration)[16], that five of the factors to be considered with respect to procedural fairness are:  first, the nature of the decision being made and the process followed in making it; secondly, the nature of the statutory scheme and the terms of the statute pursuant to which the body, here the Commission, operates; thirdly, the importance of the decision to the individual or

individuals affected; fourthly, the legitimate expectations of the person challenging the decision; and fifthly, the choices of procedure made by the Commission itself, particularly when its statutory

underpinning leaves to the decision-maker the ability to choose its own procedures or when the

agency has an expertise in determining what procedures are appropriate in the circumstances.

 

[36]                       Counsel for the Applicant urges that, by reference to the second, third and fourth factors just recited, it is clear that the Commission is specifically constituted to deal with complaints such as those of the Applicant here.  Counsel urges that the Applicant’s complaints were neither frivolous nor vexatious and were squarely within the Commission’s jurisdiction, notwithstanding its conclusions to the contrary.  Counsel urges that the Applicant, based on the foregoing, had a legitimate expectation of having her complaints determined fairly, without questioning the tenets of her religious belief.  Further, counsel urges that the importance and impact of the decision to the Applicant were fundamental to her “...dignity, self-esteem and work opportunities,...” all of which, given her special circumstances, created a duty on the Commission “...to go beyond a mere referral to the investigator’s report and to explain [for itself the reasons for] its ultimate decision”.  Here, it was not in dispute that the Commission provided no explicit reasons for its decision, but rather relied on the presumption that, given the Commission’s acceptance of the investigator’s recommendations, the investigator’s reports to the Commission and his or her analysis, constituted the Commission’s reasons.

 

[37]                       Counsel for the Applicant further urges that an important requirement of procedural fairness is that the Commission have an adequate and fair basis upon which to evaluate whether

there was sufficient evidence to warrant referring the Applicant’s complaints to a Tribunal.  Counsel urges that there was not here such an adequate and fair basis since the Commission itself is on public record as having advocated for the substantive issues to which the Applicant has sincerely held opposing beliefs on religious grounds and that she could not therefore have a reasonable expectation of a fair hearing of her grievances, particularly when the Commission chose to refer both complaints to a single investigator and that investigator was an employee of the Commission and therefore under its influence. 

 

[38]                       It was not in dispute before the Court that if the Commission erred in any regard to these allegations, its decisions must be set aside. 

 

[39]                       In Miller v. Canada (Canadian Human Rights Commission) (Re Goldberg)[17], Justice Dubé, on an application for judicial review of a decision of the Commission dismissing the applicant’s complaint against the Commission itself, wrote at paragraph 22 of his reasons:

The rule of procedural fairness requires that a complainant know the substance of the case against him or her.  The complainant is not entitled to every detail but he should be informed of the broad grounds of the case... .  The complainant is not entitled to the investigator’s notes of interviews or the statements obtained from persons interviewed.  He must be informed of the substance of the case and he has every right to expect that the investigator’s report fully and fairly summarize[s] the evidence obtained in the course of his investigation... .  He must be given the opportunity to respond.  He is also entitled to the disclosure of an opposing party’s comments when those comments contain facts which differ from those set out in the investigative report... .  In order to constitute a reviewable error, the complainant must demonstrate that the information was wrongly withheld and that such information is fundamental to the outcome of the case.

[citations omitted]

 

 

 

 

[40]                       To the same effect, see Slattery v. Canada (Canadian Human Rights Commission)[18] and

Murray v. Canada (Revenue Agency)[19].

 

[41]                       Against the foregoing, on the evidence before the Court and on a standard of review of correctness, I cannot conclude that the Applicant was denied procedural fairness in this matter unless the Applicant is correct in her concern regarding inherent bias on the part of the Commission and its investigator.  There was no evidence before the Court to support a bald assertion that the Commission allows its own policies and views on human rights issues to influence it in the disposition of particular cases before it.  Nor is there any evidence before the Court that investigators employed by the Commission themselves are influenced by the Commission or by whatever might be their own positions on policy issues having a significant human rights component.  In the absence of evidence, once again on a standard of review correctness, I cannot conclude that the Applicant was denied procedural fairness.

 

[42]                       Further, I cannot conclude that the Applicant’s concerns regarding inherent bias are borne out by the investigator’s reports and recommendations that were before the Commission and are before the Court, by the fact that he or she was called on to investigate both of the Applicant’s complaints or by any other consideration.

 

 

 

Refusal to Exercise Jurisdiction

[43]                       Counsel for the Applicant urges that the Commission had a prima facie duty to deal with

the complaints of the Applicant.  For this proposition, counsel cites Brine v. Canada (Attorney

General)[20] where my colleague, Justice Lemieux, under the subheading “The Commission’s role” wrote at paragraphs 38 and 39 of his reasons:

[38]  The role of the Commission has been authoritatively determined by the Supreme Court of Canada in Cooper v. Canadian Human Rights Commission... .  In Cooper, that Court had an opportunity to consider and build upon two of its previous judgments analyzing the functions of the Commission, namely Syndicat des Employés de Production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission),...and Canada (Attorney General) v. Mossop,... .

 

In my view, the reasons for judgment of La Forest J. in Cooper,..., establish the following propositions as to the Commission’s role and functions:

(1)     It is an administrative and screening body with no appreciable adjudicative role...;

(2)     It is the statutory body entrusted with accepting, managing and processing complaints of discriminatory practices...;

(3)     When deciding whether a complaint should proceed to be inquired into by a Human Rights Tribunal, the Commission fulfills a screening function somewhat analogous to that of a judge at a preliminary inquiry.  It is not the job of the Commission to decide if the complaint is made out.  Rather, its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all of the facts.  The central component of the Commission’s role, then, is that of assessing the sufficiency of the evidence before it...; and

(4)     The Commission has the power to interpret and apply its enabling statute but does not have a jurisdiction to address general questions of law... .

[citations omitted]

 

[44]                       Against the foregoing, I find no basis whatsoever to conclude that, accepting for the purposes of this issue that the Commission had a prima facie duty to deal with the complaints of the Applicant, the Commission failed to fulfill that duty.  It dealt with the complaints against Treasury Board and PSAC.  It is beyond doubt that the investigator designated by the Commission investigated the Applicant’s complaints and fully understood that those complaints were, in the mind of the Applicant, based on religion.  Whether or not the investigator’s conclusions in recommending that the Applicant’s complaints be rejected as beyond the jurisdiction of the Commission in that they had no link to a prohibited ground of discrimination, remains for analysis later in these reasons.

 

Violations of the Applicant’s Charter Rights

            a)  Introduction

[45]                       Counsel for the Applicant urges that the decisions under review violate the Applicant’s rights under paragraphs 2(a) and 2(d), section 7 and subsection 15(1) of the Canadian Charter of Rights and Freedoms, supra.  Counsel further urges that the violations are not saved by section 1 of the Charter. 

 

[46]                       For ease of reference, the provisions of the Charter that are at issue read as follows:

 

            b)  Freedom of conscience and religion

[47]                       In relation to paragraph 2(a), freedom of conscience and religion, counsel urges that “religion” is defined broadly as indicated in Syndicat Northcrest v. Amselem[21], where Justice Iacobucci, for the majority, wrote at paragraph 39:

...Defined broadly, religion typically involves a particular and comprehensive system of faith and worship.  Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

 

[48]                       Counsel urges that the Applicant has clearly met the foregoing test to establish that her complaints to the Commission that are at issue are based on her religious belief and that it follows that the analysis of her claims provided to the Commission by the investigator and his

recommendations drawn from that analysis, and adopted by the Commission, offend against the Applicant’s freedom of religion. 

 

            c)  Freedom of Association

[49]                       Counsel urges that the policies and actions of PSAC, further, clearly offend against the Applicant’s freedom of association where “freedom” has been characterized by the Supreme Court of Canada in Her Majesty the Queen v. Big M Drug Mart Ltd.[22] Justice Dickson, as he then was there wrote, for the majority, at page 336:

Freedom can primarily be characterized by the absence of coercion or constraint.  If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free.  One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint.

 

[50]                       Counsel urges that the Applicant is compelled or coerced to support the policies of PSAC and to contribute to the activities of PSAC in advocating those policies, was restrained by Treasury Board when she sought to divert her union dues to a charity of her choice, the Roman Catholic Church, which shares her fundamental beliefs regarding marriage, and was fundamentally denied her freedom of association when the Commission rejected her complaints. 

 

d)  Denial of Liberty

[51]                       In relation to section 7 of the Charter, counsel urges that the Applicant was denied “liberty” by the decisions under review in that she was denied inherently personal choices which are encompassed within the concept of “liberty”.  Counsel refers to Siemens v. Manitoba (Attorney General)[23] where Justice Major, for the Court, cited from Godbout v. Longueuil (City)[24] at paragraph 45 of his reasons:

...The autonomy protected by s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.

 

 

Counsel urges that the Applicant’s beliefs and values here at issue certainly implicate basic choices going to the core of what it means for the Applicant to enjoy individual dignity and independence.

 

            e)  Equality

[52]                       In relation to subsection 15(1) of the Charter, counsel for the Applicant notes that the Supreme Court of Canada has ruled that the purpose of that section is to:  “...prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.”[25] 

 

[53]                       Against the foregoing, counsel urges that the Applicant’s subsection 15(1) rights had simply not been respected.

 

f)  Protection by section 1

[54]                       Counsel urged that the decisions under review, against the background of the Applicant’s complaints and the actions of Treasury Board and PSAC, are simply not protected by section 1 of the Charter.

 

g)  The Charter and the complaint against PSAC

[55]                       Counsel for  PSAC submits that, as the Applicant did not raise Charter issues in her

complaint to the Commission in respect of PSAC or in the course of her follow-up submissions to the Commission, it is not now open to her to raise those issues in the context of this judicial review proceeding.  Counsel for Treasury Board supports the position of PSAC.

 

[56]                       In Regional Cablesystems Inc. v. Wygant[26], I wrote at paragraphs 12 and 13 of my reasons:

As a general rule, this Court will not review a decision such as that of the Adjudicator which is here under review on an issue that was not raised before the tribunal.  In Toussaint v. Conseil canadien des relations de travail et al..., Justice Décary, for the Court, wrote at paragraph 5:

 

...Even if we admit, for the purposes of argument, that this question could have been argued in this case before an arbitrator and subsequently before the Board, it was not argued, and it has been clearly established that in the context of an application for judicial review this court cannot decide a question which was not raised before the administrative tribunal...

[citation omitted]

...

An exception to the foregoing general principle arises where the issue not argued before the tribunal is a jurisdictional issue. ...

[one citation and a sub-heading omitted]

 

[57]                       Counsel for PSAC further urges that it is trite law that Charter challenges can only be

brought against government actions or legislation[27].

 

[58]                       I adopt the submissions of PSAC and of Treasury Board, as they relate to the Charter claims against PSAC.  The Applicant’s Charter issues against PSAC are not properly before this Court.  In the result, I will not consider them on their substance.

 

 

 

h)  The Applicant’s Charter claims against Treasury Board

[59]                       Counsel for Treasury Board urges that Charter arguments should not be considered in a factual vacuum on judicial review in circumstances where they were not raised before the Commission.  Once again, counsel relies on this Court’s decision in Regional Cablesystems Inc. v. Wygant, supra, and the prior authority cited in the quotation from that decision that appears above.  Counsel notes that the Applicant alleged in her complaints before the Commission that her employer discriminated against her on the basis of religion in determining that she did not meet the criteria established in Article 11.04 of the Collective Agreement between PSAC and the Treasury Board that is relevant to this matter.  Counsel notes that the Applicant did not request that the Commission consider whether Article 11.04 violates her Charter rights, a claim that she could only have made against her employer, a federal government entity that is subject to the provisions of the Charter.

 

[60]                       I note that counsel for the Applicant put before the Court no reply submissions in respect of the positions taken by counsel for PSAC and Treasury Board on the Charter issues.

 

[61]                       Once again, I adopt the submissions of counsel for Treasury Board regarding the propriety of raising, on judicial review, Charter issues for the first time before this Court.  Once again, as in the case of PSAC, I will not further consider the Applicant’s Charter issues as they are raised against the Respondent Treasury Board.

 

 

 

Any Other Reviewable Error or Errors

[62]                       There remains, in particular, the issue raised on behalf of the Applicant that the Applicant’s complaints were each based on a prohibited ground.  I regard that issue as having been subsumed in the foregoing analysis.

 

[63]                       Counsel for the Respondent PSAC specifically urges that the investigations into the Applicant’s complaints here at issue were thorough and reasonable, were neutral as between the Applicant and the Respondents and led reasonably to the recommendations made to the Commission.  I agree.  Against a standard of review of reasonableness simpliciter, I am satisfied that, on the basis of all of the material that was before the Commission when it took the decisions under review, in particular, the analyses of the investigator that are quoted earlier in these reasons and that were before it, and on the basis of all of the material before the Court that it has been open to the Court to take into account, the decisions under review were both open to the Commission.

 

CONCLUSION 

[64]                       Based on all of the foregoing, the two applications for judicial review here before the Court will be dismissed.

 

COSTS

[65]                       In written submissions before the Court, all parties sought costs and in the normal course, costs would follow the result.  Before the Court, when consulted, counsel for PSAC and for Treasury Board, withdrew their requests for costs.  I regard the withdrawal of requests for costs on behalf of the Respondents as appropriate in all of the circumstances of this matter.  There will be no order as to costs.

 

 

“Frederick E. Gibson”

 

Ottawa, Ontario

March 30, 2007

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-381-06

 

STYLE OF CAUSE:                          SUSAN COMSTOCK v. PUBLIC SERVICE ALLIANCE OF CANADA, ET AL

 

 

PLACE OF HEARING:                    TORONTO, ONTARIO

 

DATE OF HEARING:                      FEBRUARY 19, 2007

 

REASONS FOR ORDER:               GIBSON J.

 

DATED:                                             MARCH 30, 2007

 

APPEARANCES:                             

 

Philip H. Horgan                                                                       FOR THE APPLICANT

Marian Awad

 

Andrew Raven                                                                         FOR THE RESPONDENT,

                                    PUBLIC SERVICE ALLIANCE OF CANADA

 

Gillian Patterson                                                                        FOR THE RESPONDENT,

                                                                                                TREASURY BOARD

 

SOLICITORS OF RECORD:         

 

Philip H. Horgan                                                                       FOR THE APPLICANT

Toronto, Ontario M5A 4K2                                                    

 

Raven, Cameron, Ballantyne & Yazbeck LLP                           FOR THE RESPONDENT,

Ottawa, Ontario K1P 5Z9                                                        PUBLIC SERVICE ALLIANCE OF CANADA

 

John H. Sims, Q.C.                                                                  FOR THE RESPONDENT,

Deputy Attorney General of Canada                                         TREASURY BOARD

Toronto