BETWEEN:
and
PUBLIC SERVICE ALLIANCE OF CANADA
Hearing held at Ottawa, Ontario, on December 6, 2005.
Judgment rendered at Ottawa, Ontario, on December 12, 2005.
REASONS FOR JUDGMENT: NOËL J.A.
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
Docket: A-171-05
Citation: 2005 FCA 413
CORAM: NOËL J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
PUBLIC SERVICE ALLIANCE OF CANADA
Respondent
REASONS FOR JUDGMENT
[1]
This is an
appeal from a judgment of the Federal Court allowing an application for
judicial review of a decision by the Canadian Human Rights Commission (the
Commission) on the ground that the Commission did not observe the rules of
procedural fairness.
[2] More specifically, the Court held that the Commission had not given sufficient reasons for its decision, and thus had not complied with subsection 42(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act):
|
42. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision. |
42. (1) Sous réserve du paragraphe (2), la Commission motive par écrit sa décision auprès du plaignant dans les cas où elle décide que la plainte est irrecevable. |
Facts
[3]
In July
1992, Revenue Canada (now the Canada Revenue Agency and the Canada Border
Services Agency) transferred to the Government of Quebec a group of employees
belonging to the clerical and regulatory employee professional group (CR). On
July 29, 1998, six years after these employees were transferred, a tribunal
established pursuant to the Act found that the salary of employees in the CR
group, including the employees transferred in 1992, was discriminatory.
[4] On May 9, 2003, the Public Service Alliance of Canada (the respondent) filed a complaint with the Commission alleging that the agreements concluded by the Treasury Board governing the transfer of federal employees to the provincial government were in violation of sections 7 and 10 of the Act. The respondent submitted that the effect of the agreements was to perpetuate salary discrimination against the transferred employees and nullify the right of those employees to benefit from the relief granted in the decision rendered by the tribunal in July 1998.
[5] The respondent’s complaint was filed with the Commission more than four years after the tribunal’s decision. No explanation was given. The respondent simply said:
[translation]
The above complaints concern the discriminatory effect of the transfer of federal Public Service employees to provincial institutions . . . Recently, we learned of similar situations involving employees transferred from Revenue Canada to the Government of Quebec. In our view, the situation of those employees should be assessed in the light of the investigation of the outstanding complaints . . . We know that this new complaint deals with certain events which go back several years. Nevertheless, this new complaint is identical in nature to the outstanding complaints and there is nothing to justify excluding the complaint from the ongoing investigation. (Investigation Report, Appeal Book, p. 25.)
[6] After analysis, the Commission investigator came to the conclusion that the respondent had not provided any good reason for its delay in filing its complaint. In his investigation report, he recommended that the Commission not rule on the complaint pursuant to paragraph 41(1)(e) of the Act, as the complaint was based on facts which had occurred more than a year before it was filed with the Commission.
[7] The parties had an opportunity to comment on the Commission investigator’s report. The parties’ comments and the investigator’s report had been submitted to the Commission when it rendered its decision on the respondent’s complaint.
[8] On May 3, 2004, the Commission dismissed the complaint on the ground that it was not to deal with it under paragraph 41(1)(e) of the Act. The Commission’s decision reads as follows:
Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided not to deal with the complaint because: it pertains to acts which occurred more than one year before the complaint was filed.
[9]
On March
23, 2005, the Federal Court allowed the application for judicial review of this
decision on the ground that the Commission had failed to comply with the
principle of procedural fairness as it had not given sufficient reasons for its
decision.
[10]
That is
the judgment a quo.
Analysis and decision
[11]
In my
view, the trial judge wrongly held that the Commission’s decision was not
supported by sufficient reasons to meet the requirements of
subsection 42(1) of the Act.
[12]
It is true
that in Kidd v. Greater Toronto Airport Authority, [2004] F.C.J.
No. 859 (affirmed on appeal, Kidd v. Greater Toronto Airport Authority,
[2005] F.C.A. 81), it was held that the Commission had to do more than
paraphrase the Act in order to meet its duty to set out its reasons. However,
as the trial judge noted, that was a case in which the Commission had refused
to follow the investigator’s recommendation.
[13] In the case at bar, the Commission noted that it had reviewed the investigator’s report and disposed of the matter in accordance with his recommendation. It has already been held several times that, in so doing, the Commission approves and adopts the reasons relied on by the investigator (S.E.P.Q.A. v. Canada (C.H.R.C.), [1989] 2 S.C.R. 879, at page 899; Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 11, at paragraph 30;
Candu (Minister of National Revenue) v.
Gee, (2002)
F.C.A. 4, at paragraph 15; Hardman v. Atomic Energy of Canada Ltd.,
[1997] F.C.J. No. 477, at paragraph 13).
[14]
The trial
judge distinguished these cases. She appears to have been of the view that the
reasons given by the investigator were sufficient in themselves to explain the
dismissal of the complaint, but she questioned the fact that the Commission had
approved them. In her view, [translation]
“The fact that the Commission read the investigator’s report does not mean the
Commission endorsed it” (reasons, paragraph 11). With respect, that is an
error of law.
[15]
Assuming arguendo
that the wording of the reasons gave rise to the ambiguity mentioned by the
trial judge, namely as to whether the Commission had approved the
investigator’s reasons, the decision must be interpreted so as to validate the
reasons, not so as to make them illegal.
[16]
In the
case at bar, it may be infered that, by adopting the investigator’s recommendation,
after indicating that it had reviewed his report, the Commission approved the
reasons given by the investigator. This reading is the only legitimate one in
the light of the case law, which has approved this approach for a great many
years.
[17] The duty of the Commission to set out reasons for its decision involves explaining to the complainant why his or her complaint will not be dealt with. When such explanations are confined to the investigation report, the Commission by affirming them, enables the complainant to see why the complaint was dismissed. Further, the respondent cannot seriously contend that it did not know precisely why its complaint was dismissed.
[18] For these reasons, I would allow the appeal with costs, set aside the judgment of the Federal Court and, in accordance with the judgment that should have been rendered, I would dismiss the application for judicial review with costs.
I concur.
M. Nadon J.A.
I concur.
J.D.Denis Pelletier J.A.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-171-05
Appeal from order by the Honourable Madam Justice Tremblay-Lamer, dated March 23, 2005, in docket T-1097-04
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. PUBLIC SERVICE ALLIANCE OF CANADA
PLACE OF HEARING: Ottawa
DATE OF HEARING: December 6, 2005
REASONS FOR JUDGMENT BY: Noël J.A.
CONCURRED IN BY: Nadon J.A.
Pelletier J.A.
DATED: December 12, 2005
APPEARANCES:
Jan Brongers FOR THE APPELLANT
James Cameron FOR THE RESPONDENT
SOLICITORS OF RECORD:
John, Sims FOR THE APPELLANT
Deputy Attorney General of Canada
Ottawa, Ontario
Raven, Allen FOR THE RESPONDENT
Cameron, Ballantyne & Yazbeck
Ottawa, Ontario