Date: 20050201
Docket: T-1249-04
Citation: 2005 FC 162
Toronto, Ontario, February 1st, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
JEROME KATCHIN
Applicant
and
CANADIAN FOOD INSPECTION AGENCY
Respondent
REASONS FOR ORDER AND ORDER
[1] The Canadian Human Rights Commission decided not to deal with Dr. Jerome Katchin's human rights complaint against his employer, the Canadian Food Inspection Agency (CFIA), because it concluded that the complaint was based on acts which occurred more than one year before the filing of the complaint.
[2] Dr. Katchin asserts that the Commission's decision should be set aside for three reasons. First, he says that his complaint alleged ongoing discrimination that continued up to the date on which the complaint was filed with the Commission. As a result, the complaint was filed within the one year period contemplated in the Canadian Human Rights Act, and should have been dealt with by the Commission. In the alternative, in the event that the complaint was filed out of time, Dr. Katchin says that the Commission erred in declining to exercise its discretion to deal with the complaint in any event. Finally, Dr. Katchin says that the conduct of the Commission created the legitimate expectation on his part that the complaint would be dealt with, even though he did not initially file the complaint in the form prescribed by the Commission.
[3] After hearing from the parties, I advised them that I was allowing the application as I was satisfied that the Commission erred in concluding that Dr. Katchin's complaint was filed out of time. These are my reasons for that decision.
Preliminary Objection Regardingthe Content of the Application Record
[4] Given that the matter can be determined on the basis of the documents that were before the Commissioners of the Canadian Human Rights Commission when they made their decision not to deal with the complaint, it is not necessary to deal with the CFIA's objection regarding the content of Dr. Katchin's application record.
Relevant Statutory Provision
[5] The Commission's decision refusing to deal with Dr. Katchin's complaint was made under paragraph 41(1)(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, which provides:
| 41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that ... (e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. |
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41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte don't elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants_...
e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances.
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Dr. Katchin's Human Rights Complaint
[6] On July 31, 2003, Dr. Katchin filed a human rights complaint with the Commission in which he alleged that he had been subjected to discrimination in the course of his employment, on the basis of his national or ethnic origin, his race, his religion, his marital status and his perceived sexual orientation.
[7] Dr. Katchin's complaint describes a long history of harassment and other forms of discriminatory conduct on the part of his co-workers and those that he came into contact with in the course of his employment. The complaint also alleges a failure on the part of CFIA management to deal with the poisoning of Dr. Katchin's work environment in an appropriate fashion. Finally, the complaint alleges that the CFIA retaliated against Dr. Katchin for his having raised a number of issues relating to the professional ethics of CFIA veterinarians.
[8] It should be noted that at this stage, these are mere allegations, nothing having yet been proven.
[9] Dr. Katchin's complaint describes a number of specific incidents in some detail, including an incident allegedly occurring at a staff relations workshop on May 25, 2002. In addition, the complaint describes the verbal abuse that Dr. Katchin alleges he was subjected to on a regular basis.
[10] According to the complaint, this verbal abuse continued up until the time that the complaint was filed in July of 2003, and consisted of comments directed at Dr. Katchin in which he was called names such as "Hebe", "Homo" and "Jew Boy".
[11] Dr. Katchin states in his complaint that the name calling and innuendos continued after the May 25, 2002 incident, albeit somewhat less frequently. The complaint specifically refers to one example occurring shortly before the complaint was filed, in which Dr. Katchin was asked why he had never married. Before Dr. Katchin could respond, a co-worker allegedly interjected, saying that it was because he was waiting for "Mr. Right".
The Canadian Human Rights Commission's Section 41 Investigation
[12] After Dr. Katchin's complaint was filed, the Commission assigned an investigator to assist in determining whether the Commission should deal with the complaint. After consulting with Dr. Katchin and the CFIA, the Investigator prepared a brief report, which concluded with the recommendation that the Commission not deal with the complaint because it was based on acts the last of which occurred more than one year before the complaint was filed.
[13] The summary of the complaint set out in the investigation report notes that Dr. Katchin's complaint alleges that the discriminatory practicecontinued up to July of 2003. However, in the next section, the investigator addresses what it says were the reasons for the delay in filing the report. The investigator notes that Dr. Katchin contacted the Commission in May of 2003, with respect to the May 2002 incident, but goes on to observe that he did not actually sign the complaint form until July 31 of 2003.
[14] The investigation report then reviews the respondent's claim that it would be prejudiced if the complaint were dealt with because of the delay, following which, the investigator goes on to analyze the case.
[15] In fact, the "analysis" portion of the investigation report contains little in the way of real analysis, consisting as it does of a series of conclusions. The relevant portion of the investigator's analysis states:
13. This complaint is out of time.
14. The last alleged discriminatory conduct was on 25 May 2002, not up to July 2003 as claimed by the complainant.
15. The complaint form was signed on 31 July, 2003, beyond the one year time limit.
[16] There is no explanation in the investigation report of how the investigator came to the conclusion that the last act of allegedly discriminatory conduct took place on May 25, 2002 and not in July of 2003 as indicated on the face of Dr. Katchin's complaint.
The Canadian Human Rights Commission's Decision
[17] The investigation report was disclosed to Dr. Katchin and the CFIA, each of whom were provided with the opportunity to submit their comments regarding the report.
[18] In his further submissions, Dr. Katchin pointed out that his complaint alleged that the discriminatory conduct continued up until July of 2003. According to Dr. Katchin, the last event that he was complaining about actually took place in early July of 2003, and not in May of 2002 as was stated in paragraph 14 of the investigation report.
[19] The CFIA's additional submissions did not address the question of when the last discriminatory practiceallegedly took place.
[20] After reviewing the investigation report and the further submissions filed by the parties, the Commission decided that it would not deal with Dr. Katchin's complaint because it was based upon acts which occurred more than one year before the filing of the complaint.
Issue
[21] While Dr. Katchin raised three issues in his application, I am satisfied that the only issue that I need address is whether the Commission erred in its conclusion that Dr. Katchin's complaint was based upon acts which occurred more than one year before the filing of the complaint.
Standard of Review
[22] It is also not necessary to deal with the parties' conflicting submissions regarding the appropriate standard of review to be applied with respect to the Commission's factual determination as to whether the complaint was filed within the one year period prescribed in the Canadian Human Rights Act. Even applying the most highly deferential standard of review, the decision cannot stand.
Analysis
[23] Dr. Katchin's human rights complaint says that he has been the victim of numerous discriminatory practices in the course of his employment with the CFIA, which practices allegedly continued up until July of 2003. This was the same month in which he filed his human rights complaint with the Commission.
[24] The complaint clearly refers to Dr. Katchin having been subjected to ongoing verbal harassment in the period between May of 2002 and July of 2003. Dr. Katchin provided a specific example of a comment made to him by a co-worker during this period that appears to relate to his perceived sexual orientation.
[25] Dr. Katchin's supplementary submissions indicate that this incident allegedly took place in early July of 2003.
[26] In the face of this, the investigator concluded that the last incident of discriminatory conduct alleged by Dr. Katchin occurred on 25 May 2002, and not up to July of 2003 as Dr. Katchin claimed.
[27] This conclusion was adopted by the Commission in its decision not to deal with Dr. Katchin's complaint.
[28] As counsel for the respondent quite properly conceded, it is impossible to ascertain how it was determined that Dr. Katchin's complaint was filed out of time on the basis of the information that was put before the Commissioners. Given that Dr. Katchin's complaint clearly refers to ongoing discrimination continuing up to the time that the complaint was filed, the Commission's conclusion that the last discriminatory practice referred to in the complaint allegedly took place in May of 2002 is patently unreasonable, and cannot stand.
Conclusion
[29] The language of section 41 of the Canadian Human Rights Act is mandatory. That is, the Commission is required to "deal with" a complaintunless the case falls within one of a number of enumerated exceptions, none of which are relevant here.
[30] Having concluded that Dr. Katchin's complaintwas filed in time, it follows that the Commission must, therefore, deal with the complaint. This does not mean that the Commission must refer the complaint to the Canadian Human Rights Tribunal for a hearing, but only that the Commission must proceed to carry out an investigation into the merits of Dr. Katchin's allegations, in order to determine whether further inquiry by the Tribunal is warranted.
[31] As a consequence, the application is allowed. The June 4, 2004 decision of the Canadian Human Rights Commission is set aside, and the matter is remitted to the Commission with the direction that it deal with Dr. Katchin's complaint.
Costs
[32] Having heard the parties on the issue of costs, I am persuaded that costs should follow the event.
ORDER
THIS COURT ORDERS that:
The application for judicial review is allowed, with costs. The June 4, 2004 decision of the Canadian Human Rights Commission is set aside, and the matter is remitted to the Commission with the direction that it deal with Dr. Katchin's human rights complaint.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1249-04
STYLE OF CAUSE: JEROME KATCHIN
Applicant
and
CANADIAN FOOD INSPECTION AGENCY
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JANUARY 28, 2005
REASONS FOR ORDER AND
ORDER BY: MACTAVISH J.
APPEARANCES BY:
Mr. Christopher Rootham
For the Applicant
Ms. Sonia Barrette
For the Respondent
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP
Ottawa, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent