BETWEEN:
and
Heard at Toronto, Ontario, on March 13, 2008.
Judgment delivered from the Bench at Toronto, Ontario, on March 13, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Docket: A-82-07
Citation: 2008 FCA 101
CORAM: LÉTOURNEAU J.A.
NADON J.A.
SHARLOW J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
FIONA JOHNSTONE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on March 13, 2008)
[1] This is an appeal from the decision of Justice Barnes allowing an application for judicial review of a decision of the Canadian Human Rights Commission made under paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, screening out Ms. Johnstone’s complaint (2007 FC 36). We are all of the view that this appeal should be dismissed.
[2] The reasons given by the Commission for screening out the complaint indicate that the Commission adopted a legal test for prima facie discrimination that is apparently consistent with Health Sciences Association of British Columbia v. Campbell River & North Island Transition Society, 2004 BCCA 260, but inconsistent with the subsequent decision of the Canadian Human Rights Tribunal in Hoyt v. C.N.R., [2006] C.H.R.D. No. 33. We express no opinion on what the correct legal test is. We say only that the Commission’s reasons raise a serious question as to what legal test the Commission actually applied in deciding as it did. In our view that is a valid basis for finding the decision of the Commission to be unreasonable, and justifies the order of Justice Barnes referring the matter back to the Commission for reconsideration.
[3] The appeal will be dismissed with costs.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-82-07
(AN APPEAL OF THE JUDGMENT OF THE HONOURABLE MR. JUSTICE BARNES, OF THE FEDERAL COURT, DATED JANUARY 16, 2007, IN FEDERAL COURT FILE NO. T-1523-05)
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. FIONA
JOHNSTONE
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 13, 2008
REASONS FOR JUDGMENT OF
THE COURT BY: (LÉTOURNEAU, NADON & SHARLOW JJ.A.)
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
JOSEPH CHENG |
FOR THE APPELLANT
|
Andrew Astritis |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
Deputy Attorney General of Canada
|
FOR THE APPELLANT
|
& YAZBECK LLP Barristers & Solicitors Ottawa, Ontario |
FOR THE RESPONDENT |