LORRAINE ROCH
Complainant
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CANADIAN HUMAN RIGHTS COMMISSION
Commission
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MALTAIS TRANSPORT LTÉE AND GAÉTAN MALTAIS
Respondents
MOTION FOR DISMISSAL FILED BY THE RESPONDENT MALTAIS TRANSPORT LTÉE
MEMBER: Michel Doucet
2003 CHRT 33
03/10/22
TRANSLATION
[1] On July 7, 2003, the Canadian Human Rights Tribunal received from Mr. Robert Brunet, Counsel for the Respondent, Maltais Transport Ltée, a motion for dismissal based on an alleged lack of factual or legal nexus between the Complainant, Lorraine Roch, and the Respondent, Maltais Transport Ltée.
[2] On September 25, 2003, the Canadian Human Rights Commission filed its submissions against this motion. The Complainant, Lorraine Roch, and the Respondent, Gaétan Maltais, did not make any submissions regarding this motion.
[3] In its motion, the Respondent, Maltais Transport Ltée claims that, in this case, there is no nexus either in fact or law, between it and the Complainant. It also claims that it never approved, permitted, encouraged or tolerated the alleged actions of the Respondent Gaétan Maltais. It claims that no legal nexus exists between it and Gaétan Maltais. Maltais Transport Ltée argues that there is no allegation in the complaint accusing it of anything and that it cannot be held responsible for the actions or conduct of Gaétan Maltais even though the latter was at one point a shareholder, administrator and officer of Maltais Transport Ltée.
[4] The Tribunal, at this point in the procedure, is not required to rule on the validity or invalidity of the Respondent's allegations. The purpose of this motion is to decide whether to summarily dismiss the complaint against Maltais Transport Ltée.
[5] To properly understand the Tribunal's jurisdiction for hearing such a motion for dismissal, it is necessary to refer to the legislative framework of the Canadian Human Rights Act1 including sections 41, 44, 49, 50 and 53. These sections provide for:
[6] The procedure, as set out in the Act, provides that the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that, among other things, the complaint is trivial, frivolous, vexatious or made in bad faith. If the Commission decides to accept the complaint, it appoints an investigator to investigate into it.
[7] The investigator files his or her report with the Commission as soon as possible after completing the investigation. Upon receipt of the report, the Commission, if it is satisfied that an inquiry into the complaint is warranted, may request the Chairperson of the Canadian Human Rights Tribunal to institute an inquiry into the complaint. The Commission informs the parties in writing of its decision to refer the complaint to the Tribunal.
[8] Upon receipt of the Commission's request, the Chairperson of the Tribunal shall institute an inquiry by assigning a member to inquire into the complaint. After due notice to the Commission and the parties, the member inquires into the complaint, giving the parties the opportunity to appear at the inquiry, present evidence and make representations. At the conclusion of the inquiry, the member may either dismiss the complaint if he or she finds it is not substantiated or make an order pursuant to 53(2) of the Act.
[9] The motion for dismissal, in this case, asks the Tribunal to make an order that would set aside the Commission's decision to refer the complaint against the Respondent to the Tribunal for an inquiry. As we have just seen, according to the Act, it is the Commission that first decides if the complaint is to be dealt with and which, after reviewing the investigator's report, decides if it is justified and, if such is the case, refers the complaint to the Tribunal. Can the Tribunal, at this point in the procedure, interfere with the Commission exercising its discretion?
[10] In Eyerley v. Seaspan International Limited, decided on August 2, 2000, the Chairperson of the Tribunal, Anne Mactavish, stated in paragraph 4:
It is not for this Tribunal to consider the jurisdiction or conduct of the Canadian Human Rights Commission. These matters are within the exclusive purview of the Trial Division of the Federal Court. Therefore, I have no intention of discussing the issue of Seaspan's challenge to the jurisdiction of the Commission.
[11] Likewise, in International Longshore & Warehouse Union (Maritime Section), Local 400 v. Oster2, Mr. Justice Gibson stated the following:
In the result, I conclude that the Tribunal erred against a standard of correctness, in assuming jurisdiction with respect to the Union's preliminary objections. The Union, having decided not to seek judicial review before this Court of the Commission's discretionary decision to extend the time limit under paragraph 41(1)(e) of the Act, was simply precluded from adopting the alternative recourse that it chose, that being to raise precisely the same issues that it could have raised on judicial review, before the Tribunal.
[12] As a result of the legislative framework described above and the cases cited, I am of the view that the Tribunal does not have the jurisdiction to hear the motion of the Respondent, Maltais Transport Ltée. The appropriate recourse would have been for the Respondent to seek judicial review of the Commission's decision to deal with the complaint and to refer it to the Tribunal before the Federal Court. After the decision is made to refer the complaint to the Tribunal, the member assigned by the Chairperson will inquire into the complaint and will give the parties full and ample opportunity to appear, present evidence and make representations. He will then decide the questions of law or fact necessary to determining the matter, including the issue of whether the Respondent, Gaétan Maltais, has engaged in a discriminatory practice and if this practice, if so determined, was committed in the course of employment
, as set out in section 65(1) of the Act. Again, in the event that it is determined that a discriminatory practice occurred and that this act was committed in the course of the employment of the Respondent (Gaétan Maltais), the Respondent Maltais Transport Ltée may present evidence at the hearing to escape the application of this section and may present evidence to establish the exceptions set out in section 65(2).
[13] The motion for dismissal filed by the Respondent, Maltais Transport Ltée, is therefore dismissed.
OTTAWA, Ontario
October 22, 2003