Date: 20040826
Docket: T-797-03
Citation: 2004 FC 1175
BETWEEN:
CONFÉDÉRATION DES
SYNDICATS NATIONAUX (CSN)
Applicant
and
LISE GOYETTE
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] The Confédération des syndicats nationaux (CSN) has applied to this Court for judicial review of the decision by the Canadian Human Rights Commission (the Commission), dated April 22, 2003, to deal with the complaint formally filed on September 6, 2002, by Lise Goyette against the CSN, pursuant to subsection 41(1) of the Canadian Human Rights Act (the Act).
[2] The Commission found that the third parties, the CSN and the Fédération des employées et employés de services publics (the Fédération) did not establish that prejudice was caused by the delay.
[3] Subsection 41(1) of the Act reads:
| Commission to deal with complaint
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 |
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Irrecevabilité
41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants : |
| (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; |
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a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts; |
| (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act; |
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b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale; |
| (c) the complaint is beyond the jurisdiction of the Commission; |
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c) la plainte n'est pas de sa compétence; |
| (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or |
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d) la plainte est frivole, vexatoire ou entachée de mauvaise foi; |
| (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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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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[4] In making that decision, the Commission went against the recommendation of its investigator, Michel Bibeau, its regional director in Quebec. Mr. Bibeau, in a investigator's report submitted to the parties for comment before the Commission made its decision, recommended under paragraph 41(1)(e) of the Act that the Commission not deal with the complaint because "[TRANSLATION] it is based on acts which occurred more than one year before the complaint was filed".
[5] After review, Mr. Bibeau decided to dismiss Ms. Goyette's complaint for the following reasons:
- the delay was too long in terms of the incidents raised;
- the complainant could not use that proceeding to reassess the facts of a file already decided because of the duplicate relief rule;
- the third parties would be prejudiced because many witnesses and documents were no longer available.
[6] Counsel for both parties sent the Commission their submissions on this recommendation by the investigator.
[7] Ms. Goyette's counsel refers to the total absence of prejudice to the CSN and explains the reasons for the late filing of the complaint. She also submits that the delay in filing the complaint against the CSN should not be considered on the basis that, in her opinion, the CSN had contracted joint and several obligations with the Syndicat des employés(e)s de Terminus Voyageur Colonial Ltée (CSN) (the Syndicat).
[8] Referring to the Syndicat, it would be worthy to note the factual and historical context of the complaint filed in 2002 by Ms. Goyette against the CSN.
[9] Ms. Goyette claims that between 1991 and 1993, the CSN had been involved with the Fédération and with the Syndicat in systematic discriminatory practices in seniority and pay equity matters against the primarily female operators at the Voyageur Bus Terminal, in Montréal, the result of a collective agreement negotiated in 1989 with the employer Voyageur Colonial Ltd. (Voyageur).
[10] The background is in Mr. Bibeau's report. A first complaint was filed in November 1991 by the operators at the Montréal Terminus. The Commission referred this matter to conciliation, which failed. On June 21, 1995, the Commission referred the file to the Human Rights Tribunal which established two panels to study the two aspects of the complaint filed in November 1991, which contemplated only Voyageur and the Syndicat.
[11] On October 14, 1997, a panel decided in favour of Ms. Goyette, who at the time was the only complainant before the Tribunal since she had refused to participate in a settlement dated July 23, 1997, between Voyageur, the Syndicat and the operators at the Montréal Terminus.
[12] This Tribunal found that the Syndicat was engaged in an act of systematic discrimination against the operators when it accepted and concluded the collective labour agreement signed on December 7, 1989, limiting them in their employment opportunities and advancement. This discriminatory act related to the application of departmental seniority. The Tribunal ordered the Syndicat to pay to the complainant certain amounts for salary, moral damages and interest, but without specifying the amounts and maintaining its jurisdiction to determine quantum. In an earlier decision, the Tribunal had determined that Ms. Goyette's complaint against the employer Voyageur was unfounded.
[13] The Syndicat brought the Tribunal's decision before the Federal Court through an application for judicial review which was dismissed by Pinard J. on November 5, 1999. The Syndicat appealed to the Federal Court of Appeal which dismissed the appeal on May 22, 2002, for reasons related to the Syndicat's bankruptcy.
[14] Ms. Goyette was never compensated by the Syndicat since on May 26, 2000, the Syndicat made an assignment in bankruptcy under the Bankruptcy and Insolvency Act. Earlier, in 1997, the Montréal Terminus had been sold by Voyageur to a provincial business and the Syndicat lost all of its members as a result.
[15] On July 6, 2000, the complainant's counsel asked the Tribunal to reconvene the parties because she wanted the decision to be enforced by the CSN despite the Syndicat's bankruptcy, to compensate her for what was due to her by her local Syndicat. On June 15, 2001, the Tribunal reconvened the parties to examine quantum and the CSN's involvement as a party to the action.
[16] On November 16, 2001, the Tribunal set the quantum but, relying on the rule of functus officio, decreed that it did not have jurisdiction to determine the CSN's liability.
[17] Ms. Goyette did not apply for a review of the Tribunal's decision. However, on December 4, 2001, she advised Mr. Bibeau that she wanted to file a discrimination claim against the CSN and the Fédération.
[18] In his remarks to the Commission in support of Mr. Bibeau's recommendation that the complaint filed by Ms. Goyette in 2002 not be decided, the CSN's counsel summarized the background given above; pointed out that the Fédération and the CSN are two distinct legal entities; that they are not liable for the decisions and actions of the Syndicat, referring to the case law of Quebec courts; that only the Syndicat was a respondent before the Tribunal and only it was contemplated by the Tribunal in its order for damages, and moreover that the Tribunal had found that the CSN and the Fédération were not contemplated by its judgment. The CSN's counsel also argued on actual prejudice and elaborated on the notion of duplicate relief.
ANALYSIS
[19] Before this Court, the CSN submits that the Commission, in deciding to address the complaint filed by Ms. Goyette in 2002, erred in law and exceeded its jurisdiction in three ways: first, by not granting it the benefit of the time limit in subsection 41(1)(e) of the Act; second, by not considering the Tribunal's decision in November 2001 that, according to the functus officio rule, it did not have the jurisdiction to determine the CSN's liability and, third, by failing to take it into account that Ms. Goyette secured redress from a judgment in her favour in 1997.
[20] When the Commission makes a decision under subsection 41(1) of the Act, it is exercising a discretionary power.
[21] The case law establishes the conditions for the intervention of the courts with regard to a decision like this by an administrative Tribunal.
[22] I refer to the following passage from the reasons of McIntyre J. in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at page 7, where he writes:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[23] Our Court properly applies this principle of deference when reviewing a decision by the Commission made pursuant to the power given to it by Parliament in subsection 41(1) of the Act.
[24] I refer to paragraphs 15 and 16 of MacKay J.'s decision in Cape Breton Development Corp. v. Hynes, [1999] F.C.J. No. 340 (F.C.T.D.)(QL), following an application for judicial review of a decision by the Commission to examine the complaint of the respondent, David Hynes, pursuant to paragraph 41(1)(e) of the Act notwithstanding the fact that his complaint was filed at the Commission more than one year after the occurrence of the act on which his claim was based:
¶ 15 It is well settled, as all parties agree, that decisions of the Commission under paragraph 41(e) are discretionary administrative decisions. Decisions of that nature are not readily set aside, and courts will not interfere, even if they might have exercised the discretion differently, where the discretion has been exercised in good faith, in accord with the principle of natural justice and procedural fairness, and where reliance has not been placed on considerations that are irrelevant or extraneous to the statutory purpose.
¶ 16 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. [notes omitted]
[25] In the matter of Cape Breton Development Corp., supra, MacKay J. reviewed the Corporation's arguments regarding the delay caused by the complainant and whether the exercise of discretionary power was based on a reasonable ground, elaborating on the criteria listed by a Human Rights Tribunal in Vermette v. Canada Broadcasting Corporation and on the issue of the merits of the complaint, a relevant factor established by the Federal Court of Appeal in Tsai v. Canada (Canadian Human Rights Commission) (1988), 91 N.R. 374 (F.C.A.), at page 377.
[26] Finally, I believe that the words of Décary J.A. in Canada Post Corporation v. Barrette, [2004] 4 F.C. 145 (C.A.) are relevant in this case. Mr. Barrette had filed a complaint of discrimination against the Canada Post Corporation after an arbitrator appointed under the Canada Labour Code dismissed four of his grievances.
[27] The Commission decided to address the complaint notwithstanding that it was not filed within the one-year time limit in accordance with paragraph 41(1)(e) of the Act and without reference by the Commission to the grounds raised by the Corporation to the effect that it did not have to examine the complaint since it had not been filed within the time limit, that the issues raised had been decided and that the complaint was vexatious.
[28] Décary J.A. set aside the Commission's decision and I reproduce paragraphs 22 to 25, 27 and 28 of his reasons which in my view apply in this case:
¶ 22 It seems to me, having read the memorandum of fact and law of the Commission and heard from its counsel, that the Commission does not take very seriously the preliminary screening process set out in section 41 of the Act. It is true that the courts have repeatedly held that they would not intervene lightly with decisions of the Commission made in the performance of its screening function under section 44 of the Act and even less so when the decisions are made in the performance of the Commission's preliminary screening function under section 41 of the Act. However, these judicial rulings were made on the assumption that the Commission did in fact perform its functions under these two sections and that it did not do so lightly.
¶ 23 Section 41 imposes a duty on the Commission to ensure, even proprio motu, that a complaint is worth being dealt with. There is obviously no duty to investigate at that stage and the Commission is asked no more than to examine on a prima facie basis whether the grounds set out in subsection 41(1) are present and, if so, to decide whether to nevertheless deal with the complaint.
¶ 24 With respect to the grounds set out in paragraphs 41(1)(a) to (e), a person against whom a complaint is made is expressly given two opportunities to raise them: one at the section 41 preliminary screening stage, the other at the section 44 screening stage (see paragraphs 44(2)(a) and (b) and subparagraphs 44(3)(a)(ii) and (b)(ii). The Commission may not simply ignore or routinely dismiss submissions made by a person at the preliminary screening stage on the ground that in any event that person still has the opportunity to reiterate its submissions at the screening stage. The person is entitled to expect the Commission to examine its submissions on their merit, as required by the statute, at the preliminary screening stage albeit, as I have indicated, in a summary way.
¶ 25 Unless the Commission turns its mind to the issues raised by the person against whom a complaint is made, in this case the employer, it neglects a duty imposed by law. An employer has a legal right to seek an early brushing aside of a complaint for the reasons set out in subsection 41(1). This is not to suggest that stringent procedural standards be imposed on the Commission at that stage nor that a close scrutiny of decisions made under subsection 41(1) be undertaken by the courts. This is only to say that the Commission must do its work diligently even at a preliminary stage where only a prima facie screening is required.
¶ 26 I must add that I am troubled by the letter sent to Canada Post after the decision to deal with the complaint had been made. Canada Post had the right to invoke the provisions of subsection 41(1) and the decision maker has no business chastising an employer for having raised an objection at the first opportunity provided by the Act. The arguments raised by Canada Post are serious and they deserve proper consideration, albeit on a prima facie basis. On the other hand, the letter indicated that the Commission accepts to deal as a matter of routine with late complaints by persons who have pursued alternative redress. This letter raises serious doubts as to whether the Commission properly understands what an employer's rights are, and what the Commission's duty is, at the preliminary screening stage.
¶ 27 A great amount of time has been devoted in first instance and before us to the issue of estoppel. Canada Post no longer asserts that the Commission is estopped from dealing with the complaint because the issues raised by the complaint have all been determined by the arbitrator. It alleges, rather, that the Commission should ask itself, in view of the fact that the grievances have been decided in another administrative forum and in view of the manner in which they were decided, whether it is worth pursuing the matter again albeit possibly under a different angle and whether in the circumstances it cannot be said that the complaint is "trivial, frivolous, vexatious or made in bad faith". Canada Post, in other words, has moved away from paragraphs 41(1)(a) and (b) and is now relying for all practical purposes on paragraphs 41(1)(d), the very paragraph the Commission has failed to take into consideration.
¶ 28 Clearly, in my view, the Commission must turn its mind to the decision of the arbitrator, not to determine whether it is binding on the Commission, but to examine whether, in light of that decision and of the findings of fact and credibility made by the arbitrator, the complaint may not be such as to attract the application of paragraph 41(1)(d).
[29] In my view, the Commission did not take very seriously the preliminary screening process set out in section 41 of the Act; the CSN had the right to expect that the Commission would examine the merits of its submissions, which it did not do.
[30] The comments of the Commission's investigator and the CSN's supporting submissions that his recommendation that the Commission dismiss the complaint raised issues which the Commission had to address at the time of its examination under subsection 41(1) of the Act:
1) the issue of res judicata in the sense that a Tribunal had decided that it did not have jurisdiction to decide on the CSN's liability;
2) that this liability could have been determined in the context of Ms. Goyette's complaint in 1991;
3) that Ms. Goyette sought the execution of a judgment already rendered by a Tribunal;
4) that the liability of the CSN in relation to the Syndicat falls under the Civil Code.
[31] None of these issues were addressed by the Commission.
[32] Moreover, in my opinion the Commission did not consider all of the factors relevant to exercising its discretionary power; it only considered the prejudice that the delay caused the CSN and the Fédération.
[33] I do not accept the argument advanced by Ms. Goyette's counsel that the CSN's proceeding is premature. In my opinion, Barrette, supra, suggests the opposite - an application for judicial review may be allowed if the Commission did not fulfill its preliminary screening process obligations under subsection 41(1) of the Act.
[34] For all of these reasons, this application for judicial review is allowed. The Commission's decision is set aside and the question of whether Ms. Goyette's complaint should be decided is referred to the Commission for redetermination in accordance with the judgment of the Court.
"François Lemieux"
Judge
OTTAWA, Ontario
August 26, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-797-03
STYLE OF CAUSE: CONFÉDÉRATION DES
SYNDICATS NATIONAUX (CSN)
and
LISE GOYETTE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 26, 2004
DATE OF REASONS: August 26, 2004
APPEARANCES:
Marie Pépin FOR THE APPLICANT
Esther St-Amour FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pépin et Roy FOR THE APPLICANT
Montréal, Quebec
Crochetière, Pétrin FOR THE RESPONDENT
Anjou, Quebec