Judgments

[2000] 4 F.C. 145

A-36-99

(T-1373-97)

Canada Post Corporation (Appellant)

v.

André Barrette (Respondent)

and

The Canadian Human Rights Commission (Intervener)

Indexed as: Canada Post Corp. v. Barrette (C.A.)

Court of Appeal, Décary, Létourneau and Noël JJ.A. —Montréal, April 10; Ottawa, April 20, 2000.

Human rights — Grievances under Canada Labour Code dismissed by arbitrator — Grievor then complaining of discrimination in contravention of CHRA — Preliminary screening process set out in CHRA, s. 41 — CHRC failing to consider one of appellant’s arguments for not dealing with respondent’s complaint — CHRC failing to take preliminary screening process seriously — Doubtful that CHRC understands employer’s rights, Commission’s duty at preliminary screening stage.

The respondent filed four grievances against his employer, Canada Post Corporation, under the Canada Labour Code. The four grievances were dismissed by an arbitrator appointed under the Code. The respondent then filed a complaint with the Canadian Human Rights Commission, alleging that Canada Post had discriminated against him on the ground of disability, in contravention of section 7 of the Canadian Human Rights Act. It was agreed that the last instance of alleged discrimination by Canada Post occurred some 14 months before the filing of the complaint. Canada Post advised the Commission that the issues raised by the complainant had already been addressed in an arbitration award, and that the Commission should dismiss the complaint. It reiterated its position in two other letters, referring expressly to paragraphs 41(1)(a) and (b) of the Act. In a third letter, dated April 9, 1997, Canada Post reiterated its position in a much more detailed fashion, adding three new grounds, one of which, based on paragraph 41(1)(d) of the Act, was that the complaint was vexatious in that it was seeking to keep alive a labour dispute which had been resolved. The Commission nevertheless decided to deal with the complaint. The decision letter referred to Canada Post’s other letters, but not to the April 9 letter, nor to the paragraph 41(1)(d) argument raised therein. The application for judicial review brought by Canada Post was dismissed. This was an appeal from that decision.

Held, the appeal should be allowed.

Per Décary J.A.: It was abundantly clear that the decision of the Commission to deal with the complaint was based on a staff recommendation which predated Canada Post’s April 9 letter. It explains why the Commission in its decision neither referred to, nor addressed, the paragraph 41(1)(d) argument raised by Canada Post. The Judge below misapprehended the evidence when he found that the decision expressly stated that the April 9 letter had been considered. The matter should therefore be returned to the Commission for reconsideration.

The Commission apparently does not take very seriously the preliminary screening process set out in section 41 of the Act. While there is no duty to investigate at that stage, the Commission is asked no more than to investigate 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. 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 submissions on their merit, as required by the statute, at the preliminary screening stage, albeit in a summary way. Unless the Commission turns its mind to the issues raised by the person against whom the complaint is made, in this case the employer, it neglects a duty imposed by law.

A letter sent to Canada Post by the Commission after the decision to deal with the complaint had been made was troubling in that the decision maker inappropriately chastised Canada Post for having invoked the provisions of subsection 41(1) at the first opportunity provided by the Act. It also indicated that the Commission accepts to deal as a matter of routine with complaints by persons who have pursued alternative redress. The letter raised 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.

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 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).

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Labour Code, R.S.C., 1985, c. L-2, s. 57.

Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 41(1) (as am. by S.C. 1995, c. 44, s. 49), 44(1),(2), (3) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64; S.C. 1998, c. 9, s. 24).

APPEAL from the Trial Division decision (Canada Post Corp. v. Barrette, [1999] 2 F.C. 250 (1998), 15 Admin. L.R. (3d) 134; 157 F.T.R. 278) dismissing an application for judicial review of the Canadian Human Rights Commission’s decision to deal with the respondent’s complaint. Appeal allowed.

APPEARANCES:

Paula M. Rusak for appellant.

Odette Lalumière for intervener.

SOLICITORS OF RECORD:

Matthews, Dinsdale & Clark, Toronto, for appellant.

Canadian Human Rights Commission, Ottawa, for intervener.

The following are the reasons for judgment rendered in English by

[1]        Décary J.A.: The Court is being asked in this appeal to examine the role and duties of the Canadian Human Rights Commission (the Commission) when exercising its discretion under subsection 41(1) of the Canadian Human Rights Act[1] (the Act) to refuse to even deal with a complaint. It will be convenient to reproduce immediately the text of the subsection:

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

(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;

(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;

(c) the complaint is beyond the jurisdiction of the Commission;

(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or

(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.

as well as that of subsections 44(1), (2) and (3) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64; S.C. 1998, c. 9, s. 24] to which reference will be made later:

44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.

(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied

(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or

(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,

it shall refer the complainant to the appropriate authority.

(3) On receipt of a report referred to in subsection (1), the Commission

(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied

(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and

(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or

(b) shall dismiss the complaint to which the report relates if it is satisfied

(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or

(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).

[2]        In the case at bar, Canada Post Corporation (Canada Post) had asked the Commission not to deal with a complaint filed by Mr. Barrette, an employee with Canada Post, on grounds related to paragraphs (a), (b), (d) and (e) of subsection 41(1). The Commission denied Canada Post its request and decided to deal with the complaint. An application for judicial review was then made by Canada Post to the Trial Division of this Court. The application was dismissed by Mr. Justice Evans (who was then sitting at the Trial Division) in a decision reported at [1999] 2 F.C. 250 (T.D.).

[3]        A recital of the most relevant facts will be useful.

[4]        Mr. Barrette filed four grievances under the provisions of the Canada Labour Code [R.S.C., 1985, c. L-2] (the Code). The grievances all related to the same set of circumstances occurring in late 1993 and early 1994. Essentially, the grievor claimed that he was suffering from hypertension or high blood pressure such that he could no longer perform work which included the supervision of employees. At his own request he was relieved of his supervisory duties. Canada Post then attempted to accommodate him. He was trained for another position and then assigned to a vacant position on November 22, 1993. Immediately after the assignment the grievor went on certified sick leave, providing evidence that he was “unfit for any duty” until March 1994. On December 22, 1993, he filed a grievance alleging a failure on the part of Canada Post to accommodate him. In March 1994, he was cleared to return to work by his doctor and on threat of discipline he reported for his new position. On March 24, 1994, he filed three other grievances alleging various breaches of the Collective Agreement.

[5]        On June 10, 1996, the four grievances were dismissed by an arbitrator appointed under section 57 of the Code. In his decision, the arbitrator found that Mr. Barrette had:

… practically dictated Dr. McFarthing’s latest certificate, to the effect that he could return to Supervisory duties, when in fact they both were aware that his hypertension was not under control ….[2]

[6]        The arbitrator also found:

… the grievor readily admitted he was not in fact ready to return to supervisory duties, but that he obtained the certificate because “his back was against the wall” and he was “desperate” ….[3]

[7]        Before the arbitrator, Mr. Barrette further admitted that Canada Post was not able to verify with Dr. McFarthing the extent to which he, the grievor, could supervise employees since he had withdrawn his consent to Dr. McFarthing releasing his medical information to Canada Post.

[8]        The arbitrator dismissed the grievance on the ground that Mr. Barrette:

… ha[d] failed to present sufficient evidence to establish that the condition which resulted in his having been removed from his position is no longer present or is no longer a bar to him being able to perform the essential duties of a Supervisor at Canada Post ….[4]

[9]        The arbitrator then went on to make comments, which he recognized to be “purely obiter”, with respect to the alleged discrimination and the alleged failure to accommodate under the Canadian Human Rights Act.

[10]      Dissatisfied with the arbitrator’s decision, Mr. Barrette complained to the Commission on July 3, 1996. He signed his complaint on August 26, 1996 with the Commission. The complaint alleged that Canada Post had “discriminated against [him] by refusing to accommodate [him] and by denying [him] job opportunities on the ground of disability (hypertension and sleep apnea) in contravention of section 7 of the Canadian Human Rights Act”.[5] It is agreed that the last instance of alleged discrimination by Canada Post occurred sometime in June 1995, some 14 months before the filing of the complaint.

[11]      Canada Post advised the Commission, on January 20, 1997, that since “the issues raised by the complainant have already been addressed in an arbitration award”, the Commission should dismiss the complaint.[6]

[12]      Canada Post reiterated its position in a letter dated February 4, 1997,[7] and again in a letter dated February 28, 1997,[8] which letter referred expressly to paragraphs 41(1)(a) and (b) of the Act.

[13]      On April 9, 1997, Canada Post sent another letter,[9] reiterating its position in a much more detailed fashion and adding three new grounds: (1) the complaint was late; (2) the complaint had been made in bad faith because the complainant was basing his complaint “on medical opinion he has previously sworn under oath was untrue”, and (3) the complaint was vexatious in that it was seeking to keep alive a labour dispute which had been resolved.

[14]      On May 1st, 1997, the Director, Complaint, Anti-Discrimination Programs Branch of the Commission approved a “Section 40/41 Analysis” prepared by two officers of the Commission. The analysis had been signed by these officers on March 27, 1997. The analysis, which was obviously prepared before the submissions filed by Canada Post on April 9, 1997, describes as follows the arguments raised by Canada Post:

3.   The respondent has not provided a defence and requests that the Commission refuse to deal with the complaint under section 41 (a) or (b) of the Canadian Human Rights Act (CHRA) because the complainant’s allegations were fully addressed through their grievance procedure and dismissed by the arbitrator; or that it dismiss the complaint based on the findings of that arbitrator. The respondent refuses to proceed without a formal ruling on the matter.

[15]      The position of Mr. Barrette is described as follows:

4.   Section 41 (a) and (b) of the Act provides the Commission with the discretion not to deal with a complaint where it believes the victim ought to exhaust grievance or review procedures reasonably available; or where it feels the matter could be more appropriately dealt with under a procedure provided for under another Act of Parliament. In the current case, the complainant has already exhausted the grievance procedures available to him but was not satisfied with [sic] the results in that it dismissed its grievance. He also feels it did not fully address the issue of accommodation or all of the issues contained in his complaint as they would be in the context of an investigation under the CHRA. For example, no verification of the actual search for, or the availability of modified duties was done and the adjudicator did not address whether there was any other option to his losing his status as a full time employee.

[16]      The analysis also raised the issue of the lateness of the complaint and ended up recommending that:

The Commission resolves:

pursuant to paragraphs (sic) 41(e) of the Canadian Human Rights Act, to deal with the complaint … even though the act complained of occurred more than one year before the receipt of the complaint.[10]

[17]      On May 29, 1997, the Commission decided to deal with the complaint. The decision letter mentioned that the Commission had reviewed Canada Post’s “submissions dated January 20, 1997 [and] February 4 and 28, 1997”. No mention was made of Canada Post’s April 9, 1997 submissions. The reasons for decision read as follows:

Pursuant to paragraph 41(e) of the Canadian Human Rights Act, the Commission has resolved to deal with the complaint because:

the last alleged incident occurred on June 18, 1995;

the complainant’s grievance was denied at arbitration on June 10, 1996;

the complainant contacted the Commission on July 3, 1996, and signed his complaint on August 26, 1996;

although the complaint was signed 14 months after the last alleged incident, beyond the time limit for filing a complaint, the Commission is satisfied that the complainant was seeking other avenues of redress during that time;

the respondent has not demonstrated that the delay in filing this complaint will cause any actual prejudice to its capacity to mount a defence to the allegations.[11]

[18]      On June 6, 1997, the Director General, Anti-Discrimination Programs Branch of the Commission sent the following letter to Canada Post:[12]

At its meeting of May 20 and 21, 1997, the Commission considered complaints filed against Canada Post Corporation by André Barrette and Murray Nolan. Both complaints were filed more than one year after the last alleged acts of discrimination, and were presented with the recommendation that the Commission exercise its discretion to deal with the complaints. This was necessary because Canada Post Corporation had refused to allow investigation to proceed without a formal decision from the Commission to deal with the complaints. As you will have been advised by now, the Commission accepted the staff recommendation in both cases.

The decision of the Commission might well have been predicted by Canada Post Corporation. Both complainants approached the Commission within the one-year time limit. Both pursued alternative redress, and signed complaints after the completion of that process. As you no doubt are aware, in such circumstances the Commission typically agrees to deal with the complaints even though they are filed more than one year after the alleged incidents that gave rise to them.

The practice of having staff proceed with the investigation of complaints when they are out of time was initiated to cut down on the total time required to process complaints. Most respondents agree that considerable savings in time and resources are realized by beginning the investigation immediately (and I believe that Canada Post has also experienced this).

It is worth noting that in both these complaints Canada Post Corporation provided information in its submissions that, if provided in investigation and accepted by the Commissioners, could lead to dismissal of the complaints. As you know, the Commission’s Revised Complaints Process provides the respondent with an opportunity to submit its best defence immediately upon receipt of the allegations. If either of these complaints had been dealt with under the Revised Complaints Process, the defence would have been shared with the complainant, who would then have been asked to provide a rebuttal. In the absence of any startling new information, each complaint could have been completed and presented to the Commission for a decision on the merits within about six months.

By way of contrast, the time elapsed between the filing of the complaint and the Commission’s decision to deal with it was, in the Nolan complaint, seven months, and in the Barrette complaint, nine months. We find ourselves at the beginning of a process that could easily have been finished by now.

I trust that the above will provide the basis for reflection, and, ultimately, changes that will see complaints processed in a more efficient manner. I look forward to your response.

Nowhere in the letter is there any mention of the paragraph 41(1)(d) argument raised by Canada Post on April 9, 1997.

[19]      The above recital makes it abundantly clear that the decision of the Commission is based on a staff recommendation which predates Canada Post’s letter of April 9, 1997 and it explains why the Commission did not in its decision refer to, nor address, the paragraph 41(1)(d) argument raised by Canada Post. The Judge below misapprehended the evidence when he found, at pages 275-276 of his reasons, that:

Contrary to Canada Post’s assertion, the letter of decision from the Commission explicitly states that the decision was made on the basis of, among other things, Canada Post’s lengthy submissions in response to the section 41 report. However, it is the case that the Commissions’s letter did not address Canada Post’s submissions with respect to the issue of bad faith, which was one of the three main points made in those submissions.

…

Nonetheless, I am unable to infer from the Commission’s failure to refer to this issue in its letter that the Commission did not consider it, especially when the letter expressly states that the Commission had taken into consideration the letter from Canada Post containing its submissions.

[20]      My conclusion is by no means disturbed by the statement made in an affidavit by a secretary in the Legal Services Branch of the Commission to the effect that the April 9, 1997 letter was “placed before the Commissioners for their consideration”.[13] That statement, which is made on information and belief, is based on a review of the relevant file some two months after the decision was issued. It stays shy of affirming that the Commissioners did in fact consider the letter which is said to have been placed before them. If anything, the very need for this affidavit confirms that the Judge below was wrong to find that the decision expressly stated that the April 9, 1997 letter had been considered.

[21]      In the circumstances, the matter cannot but be returned to the Commission for reconsideration.

[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]      I would allow the appeal and set aside the decision of the Trial Judge. Proceeding to render the judgment that ought to have been rendered below, I would allow the application for judicial review, set aside the decision of the Commission dated May 29, 1997 and send the matter back for reconsideration by the Commission in accordance with these reasons. No costs were asked.

Létourneau J.A.: I agree.

Noël J.A.: I agree.

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