Judgments

[1996] 1 F.C. 704

T-673-93

The Attorney General of Canada (Applicant)

v.

Michael Merrick (Respondent)

and

The Canadian Human Rights Commission (Intervenor)

Indexed as: Canada (Attorney General) v. Merrick (T.D.)

Trial Division, MacKay J.—Halifax, January 11; Ottawa, December 4, 1995.

Administrative law — Judicial review — Certiorari — Judicial review of CHRC decision to consider complaint concerning act occurring more than one year before complaint filed — Procedural fairness principles not breached — Standard for review of exercise of administrative tribunal’s discretionary power — Commission considering investigator’s recommendation, respondent’s response — Employer not filing evidence — Record not supporting allegation Commission ignoring own guidelines, prejudice to CF — Commission exercising statutory discretion on proper principles — Considering all relevant evidence including presumed prejudice to CF, respondent’s rebuttal.

Human rights — Judicial review of CHRC decision to consider complaint concerning act occurring more than one year before complaint filed — Respondent alleging mandatory retirement policy of Armed Forces discrimination based on age — Respondent retiring in 1986, filing complaint in 1992, shortly after HRT holding CF’s retirement policy violating CHRA — S. 41(e) requiring Commission to deal with any complaint unless based on acts occurring more than one year, or such time as Commission considering appropriate, before receipt of complaint — Impugned decision not retroactive application of subsequently developed criteria — Outcome of appeal from HRT decision, Commission’s ultimate decision herein, speculation — Commission complying with own guidelines — In absence of evidence from employer, considering prejudice to CF cited in investigator’s report, respondent’s rebuttal — Considering all relevant evidence.

Armed forces — Mandatory retirement policy — Whether discrimination based on age, contrary to CHRA, s. 7 — QR & O, enacted under National Defence Act, establishing mandatory retirement policy for non-commissioned members — Respondent filing complaint against CF six years after retirement, shortly after retirement policy found in violation of CHRA: Martin v. Canada (D.N.D.) — CHRC not breaching procedural fairness rules in considering out-of-time complaint — As to delay, respondent entitled to assume provisions of National Defence Act, QR& O not inconsistent with CHRA.

This was an application for judicial review of the Canadian Human Rights Commission’s decision to consider a complaint concerning an act that had occurred more than one year before the complaint was filed. The respondent alleged that the mandatory retirement at age 50 policy of the Canadian Armed Forces constituted discrimination on the basis of age, contrary to Canadian Human Rights Act, section 7. The complaint was filed six years after the respondent retired, and not long after a Canadian Human Rights Tribunal held, in Martin v. Canada (Dept. of National Defence), that the CF retirement policy violated the Act. Paragraph 41(e) of the Act provides that the Commission shall deal with any complaint filed unless the complaint is based on acts the last of which occurred more than one year, or such period of time as the Commission considers appropriate, before receipt of the complaint. The investigator’s report cited prejudice to the CF’s defence because of the difficulty in obtaining a retroactive medical evaluation and in locating witnesses and recommended that the Commission not deal with the complaint because it was based on acts which had occurred more than one year before the complaint was filed. In response, the respondent made further submissions concerning the availability of his former superior, his continuing association with the CF, through his work with a civilian contractor and his service in the supplementary reserve. The CF did not make any submissions.

The issues were: (1) whether the Commission’s decision gave retroactive effect to a declaratory change in the application of the law as determined in another case; (2) whether the Commission had breached the principles of procedural fairness by failing to comply with its own policies on extension of time and failing to consider the prejudice to the CF; (3) whether the Commission’s decision was unreasonable, made without reference to relevant considerations and based on irrelevant considerations.

Held, the application should be dismissed.

(1) The Commission’s decision to deal with the complaint was not a retroactive application of the subsequently developed criteria enunciated in Martin. The appeal in Martin has yet to be concluded and the Commission’s ultimate decision herein was mere speculation. The Commission’s decision may be subject to judicial review.

It is inappropriate, in light of the standards evolving for deference to tribunals, to impose standards which have developed for considering extensions of time in Court proceedings. The exercise of the Commission’s discretion should be judged against its own guidelines for considering an extension of time, and against other circumstances applicable to a given case.

(2) The Commission did not deny fair process to the CF. The CHRC policy for considering late filed complaints requires that the report to the Commission cover prejudice to the respondent occasioned by the delays, the length of the delay and the explanation offered, and the public interest in the complaint. The record did not support the allegation that the Commission did not comply with its own policies. The report referred to factors that fell within the Commission’s policies for considering late filed complaints. Nor did the record demonstrate that prejudice to the CF arising from late filing of the complaint was ignored. It was referred to in the investigator’s report and disputed in the respondent’s response thereto. Finally, if there is a presumption of prejudice to the employer if an extension of time to file a complaint is allowed, there is no responsibility on the part of the Commission to rebut such a presumption. In the absence of any evidence from the employer, the Commission considered the investigator’s recommendation and the respondent’s response.

(3) The Commission exercised its discretion on proper principles, having considered all the relevant evidence presented to it. It had regard to the presumed prejudice to the CF that the investigator assumed would result from proceeding to deal with the complaint, and the respondent’s denial thereof. There was evidence neither of actual prejudice to the CF nor in regard to the public interest, except that of the complainant, before the Commission. Its decision was neither unreasonable, nor without reason.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 41(e).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

National Defence Act, R.S.C., 1985, c. N-5, s. 12(1).

Queen’s Regulations and Orders for the Canadian Forces (1968 Revision), art. 15.31.

CASES JUDICIALLY CONSIDERED

APPLIED:

Lukian v. Canadian National Railway Co. (1994), 80 F.T.R. 38 (F.C.T.D.); Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R. 241.

DISTINGUISHED:

Saskatchewan Human Rights Commission v. Kodellas (1989), 60 D.L.R. (4th) 143; [1989] 5 W.W.R. 1 (Sask. C.A.); Motorways Direct Transport Ltd. v. Canada (Canadian Human Rights Commission) (1991), 50 Admin. L.R. 222; 36 C.C.E.L. 201; 92 CLLC 17,001; 43 F.T.R. 211 (F.C.T.D.); Canada (Attorney General) v. Canada (Canadian Human Rights Commission) (1991), 4 Admin. L.R. (2d) 251; 36 C.C.E.L. 83; 91 CLLC 17,016; 43 F.T.R. 47 (F.C.T.D.); R. v. Wigman, [1987] 1 S.C.R. 246; (1987), 38 D.L.R. (4th) 530; [1987] 4 W.W.R. 1; 33 C.C.C. (3d) 97; 56 C.R. (3d) 289; 75 N.R. 51; R. v. Thomas, [1990] 1 S.C.R. 713; (1990), 75 C.R. (3d) 352; 108 N.R. 147.

CONSIDERED:

Martin v. Canada (Dept. of National Defence) (1992), 17 C.H.R.R. D/435 (Can. Trib.); Canada (Attorney General) v. Martin, [1994] 2 F.C. 524 (1994), 72 F.T.R. 249 (T.D.); Canada (Attorney General) v. Canadian Human Rights Commission and Boone (1993), 60 F.T.R. 142 (F.C.T.D.).

REFERRED TO:

Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Canada (Attorney General) v. Bernard, [1995] F.C.J. No. 1614 (T.D.) (QL).

APPLICATION for judicial review of a CHRC decision pursuant to its discretion under Canadian Human Rights Act, paragraph 41(e) to consider a complaint filed six years after the act complained of had occurred. Application dismissed.

COUNSEL:

Margaret N. Kinnear and Major Randy Smith for applicant.

J. Helen Beck for intervenor.

APPEARANCE:

Michael Merrick on his own behalf.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Canadian Human Rights Commission, Ottawa, for respondent and intervenor.

The following are the reasons for order rendered in English by

MacKay J.: This is an application for judicial review pursuant to section 18.1 of the Federal Court Act,[1] by the Attorney General of Canada, in regard to a decision of the Canadian Human Rights Commission (the Commission or the CHRC). That decision, dated February 11, 1993, made pursuant to paragraph 41(e) of the Canadian Human Rights Act,[2] (the CHR Act or the Act), was to consider a complaint filed on September 25, 1992 by the respondent, Michael Merrick, even though the act complained of had occurred more than one year before the receipt of the complaint, that is, beyond the one-year time limit for filing a complaint unless a longer time is allowed by the CHRC.

The applicant seeks an order of certiorari to quash the Commission’s decision and an order of prohibition to permanently enjoin the Commission from investigating or further dealing with the respondent’s complaint against the Canadian Armed Forces (the CF), by which he alleged that his mandatory retirement in 1986 constituted discrimination on the basis of age, contrary to section 7 of the CHR Act.

By order of Noël J., dated June 30, 1994, the Commission was added as an intervenor with the right to file affidavit evidence, to file an application record, to make submissions at the hearing of this application, and to appeal any decision of this Court to the Court of Appeal. When this application came on for hearing in Halifax, the CHRC was represented and made comprehensive submissions, and the respondent Michael Merrick was present and made submissions on his own behalf. The application was heard together with an application by the Attorney General of Canada in regard to a similar decision by the CHRC in relation to a complaint filed by Mr. Frank Bernard in somewhat similar circumstances, though there was less delay in that case in filing the complaint (Court file T-1927-93 [[1995] F.C.J. No. 1614 (QL)]). That second application is also decided and reasons for the court’s order dismissing that application are now filed. The two applications have somewhat different facts but they raise essentially similar issues and they are now similarly decided. In both cases, orders go dismissing the applications for judicial review, for these reasons relating to the Merrick case, and for similar reasons now filed in the Bernard case.

Background

The respondent, Michael Merrick, was born on August 3, 1936. He joined the Royal Canadian Air Force, now the Canadian Armed Forces, in 1960 at the age of 23, and remained employed as a non-commissioned member, a supply technician, for 26 years, serving at the rank of Sergeant in 1986. On August 9, 1985, the CF advised Mr. Merrick by letter, signed by the Director General Personnel, Careers, that he would be mandatorily retired on August 3, 1986, the date that he reached the age of 50. He was, in fact, effectively retired on September 4, 1986, a month later than originally scheduled.

Article 15.31 of the Queen’s Regulations and Orders for the Canadian Forces (1968 Revision) (the QR & O), governing the mandatory retirement policy of the CF for non-commissioned members, was enacted under subsection 12(1) of the National Defence Act.[3] Those regulations provide for various retirement ages depending on several factors: the date the member enrolled, the member’s age, rank and place on the merit list, and the needs of the service. As a Sergeant, the respondent Merrick fell within Table “C” of article 15.31 of the QR & O, which provided at the relevant time that a non-commissioned member holding the rank of Sergeant or higher would be retired at the earlier of 30 years of service or 50 years of age.

Some six years after his retirement Mr. Merrick contacted the Commission on August 21, 1992, and he filed a complaint against the CF on September 25, 1992, alleging that his mandatory retirement in 1986 constituted discrimination on the basis of age, contrary to section 7 of the CHR Act.

That was not long after a Canadian Human Rights Tribunal held in Martin v. Canada (Dept. of National Defence)[4] that the CF retirement policy violated the CHR Act. The Tribunal found that the CF retirement policy did not constitute a bona fide occupational requirement, and that the proper statutory wording had not been used to exempt it from the provisions of the CHR Act.

An investigator named by the CHRC prepared a “report prior to investigation”, dated September 29, 1992, recommending that the Commission not deal with the respondent’s complaint pursuant to paragraph 41(e) of the Act because it was based on acts which occurred more than one year before the filing of the complaint, and in the investigator’s view there were reasons why the Commission should not exercise its discretion. By letter dated November 30, 1992, the Commission notified the Human Rights Coordinator for the CF (the Coordinator) of the respondent’s complaint and the investigator’s recommendation, and invited the CF to make submissions. Copies of the respondent’s complaint form and the investigator’s report, with its recommendation not to deal with the complaint, were enclosed. The CHRC also sought any further submissions from Mr. Merrick in response to the investigator’s recommendation. The Commission advised both the CF and the complainant that a final decision would be made after consideration of timely submissions. I note that the covering letter to the CF Coordinator, as did a similar letter to Mr. Merrick, specifically sets out that “The Commission may decide to accept, change or reject [the] recommendation”.

By letter, dated December 23, 1992, Mr. Merrick made further submissions in response to the investigator’s report correcting some errors of fact made by the investigator and urging that his complaint be considered by the CHRC and not be dismissed on the basis of an interview with the investigator simply because it was filed late. The CF did not make any submissions in response to the letter from the Commission.

Subsequently, the Coordinator for the CF received a letter from the Commission, dated February 11, 1993, advising that after reviewing the matter the Commission had decided to exercise its discretion to extend the time limit within which the complaint may be filed and to deal with it, pursuant to paragraph 41(e) of the Act. In accordance with Commission practice no reasons were given for that decision.

Issues

The Attorney General questions the decision of the CHRC to permit filing of and to deal with Mr. Merrick’s complaint. It is urged that the Commission erred in law by accounting for irrelevant considerations or not accounting for relevant considerations, and by ignoring the one-year time limit in paragraph 41(e) of the Act without a reasonable basis for so doing. It is also urged that the CHRC breached the rules of procedural fairness in agreeing to deal with the complaint notwithstanding the extreme delay in filing it.

In written submissions the Attorney General urges that the effect of the Commission’s decision is “to give a declaration retroactive effect”, contrary to common law principles; it permits the respondent Merrick to challenge past conduct, which was consistent with prevailing legislation and practice at the time, on the basis of a subsequent declaration of invalidity in another case. By so doing the decision is said to have erred in law and to be contrary to the rules of procedural fairness.

When this application was heard, together with that concerning the complaint of Mr. Bernard, the last issue, concerning a perceived retroactive effect of the Martin decision, was argued by the Attorney General only in replying to the Commission’s submissions dealing with written argument on the issue as set out in the applicant’s memorandum of fact and law. I deal with this issue after brief reference to the discretion here vested by statute in the Commission. Then I turn to the issue of fairness of the process followed by the CHRC, and finally to the applicant’s principal argument concerning alleged errors in law by the Commission’s decision which is said to be without a reasonable basis.

The statutory discretion in issue

It is well settled that in exercising the statutory discretion vested under paragraph 41(e) of the CHR Act, the Commission acts primarily in an administrative capacity. Paragraph 41(e) provides as follows:

41. 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.

It is also settled that the Court should not interfere with the exercise of discretion by a statutory authority where it has been exercised in good faith, in accordance with the principles of natural justice, and without placing reliance upon considerations irrelevant or extraneous to the statutory purpose.[5]

Recently, the standard for review, specifically in the context of the Commission’s exercise of discretion to proceed with a complaint, was commented upon by Jerome A.C.J. in Lukian v. Canadian National Railway Co.[6] as follows:

Generally, when Courts are called upon to review the exercise of an administrative tribunal’s discretionary power, they will be reluctant to interfere since tribunals, by virtue of their training, experience, knowledge and expertise, are better suited than the judiciary to exercise those powers. Provided the Commission’s decision is within the discretion given to it, the Court will not interfere with the manner in which it was exercised, unless it can be shown the discretion was exercised contrary to law. What the law requires is the Commission to consider each individual case before it, to act in good faith, to have regard to all relevant considerations and not be swayed by irrelevant ones, and to refrain from acting for a purpose contrary to the spirit of its enabling legislation or in an arbitrary or capricious manner.

In sum, this Court should intervene in this case only if it is persuaded that the Commission has erred in law or has acted unreasonably.

Review of past retirements and the perceived retroactive application of the decision in Martin

I deal first with the effect of the Commission’s decision as perceived by the Attorney General, that is, giving retroactive effect to a declaratory change in the application of the law as determined in another case. Permitting this, it is urged, defeats the principle of finality of judgments, exposes the employer, after a six-year delay, to questioning of decisions made in the past, when no question was then raised, in light of subsequent developments in standards and criteria. It is said this would expose the CF to similar liability, questioning decisions in more than 10,000 other cases of mandatory retirement settled after 1978 when the Commission was created and before the Martin decision.

The Attorney General urges that the test adopted by the Supreme Court of Canada in the context of criminal appeals based on decisions rendered in subsequent cases is an appropriate standard to consider in this case. That test requires that the appellant be in the judicial system when the later judgment is rendered, in the sense of having launched an appeal, or made application for leave to appeal, or have been granted leave to do so in accord with normal criteria. That test was enunciated in R. v. Wigman,[7] and R. v. Thomas.[8] It is urged that the test was intended to balance the demand for providing perfect justice to those whose circumstances were determined upon earlier conviction that is said to be in error as a result of subsequent overruling of authority, and the demands of practical necessity for some finality in the criminal process (see Wigman, at page 257). That principle is said to be as relevant to administrative proceedings as it is to criminal matters. In this case, it is urged that the complainant, Mr. Merrick, does not meet the test established by the Supreme Court for he was not in the administrative system concerning complaints under the CHR Act at the time the Martin decision was rendered. Moreover, he does not meet the normal judicial standards for an extension of time, i.e., there is no evidence that he had an intent to apply within the required time limit, and no adequate explanation of delay in applying later than the one-year limitation set in paragraph 41(e). His explanation for delay is that, having been subject to military law throughout his career in the CF it had not earlier occurred to him, and he was unaware of others in the CF acting, to question decisions made under military regulations through the process of the CHRC. In my view, it could be said of his position that he was entitled to assume that the law applicable to the military, under the National Defence Act and QR & O, would not be inconsistent with the CHR Act.

In my opinion, the test enunciated by the Supreme Court of Canada in Wigman is not relevant. It relates to access to an appeal in the judicial process by one whose status has already been determined in that process. It concerns the appropriate limits of the doctrine of res judicata, a doctrine not here applicable. Further, it would seem inappropriate in my opinion, in light of the standards evolving for deference to tribunals, for this Court to impose standards which it has developed for considering extensions of time in proceedings before this Court. Here the Commission has developed standards or guidelines of its own for considering an extension of time. The exercise of the Commission’s discretion should be judged against those guidelines and other circumstances applicable to a given case. I return to those guidelines later in these reasons.

In any event, I am not persuaded that the decision of the Commission to deal with the complaint of Mr. Merrick can be considered as the retroactive application of subsequently developed criteria as enunciated in the decision in Martin. That perception appears to underlie the submissions of the Attorney General on this issue. But the decision in Martin is still under question on appeal. What the outcome of that will be cannot be more than speculation at this stage. Moreover, the same characterization, i.e., speculation, is apt at this stage in considering the outcome of the Commission’s decision to deal with Mr. Merrick’s complaint. Whatever its ultimate decision may be, that decision may be subject to judicial review in due course.

The decision of the Commission was made in the exercise of discretion vested under the statute by Parliament. The matter here raised concerns the question whether that exercise can be found to be in error or without reason as the Attorney General submits.

Fairness of the Commission’s process

The applicant urges that the CHRC breached the principles of procedural fairness in reaching its decision. It did comply with the basic principle of fairness in ensuring, before its decision, that the pre-investigation report of its officer was sent to the CF and to Mr. Merrick with an opportunity for each of them to comment and for Mr. Merrick’s comments, the only ones received, to be considered with the report. That practice clearly complied with the principle of fairness as discussed generally, in regard to the Commission’s consideration of investigator’s reports, by Mr. Justice Sopinka in Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission).[9]

Here the failure to meet proper fairness standards is said by the Attorney General to arise from failure of the Commission to comply with its own policies on extension of time and failure to consider the prejudice to the CF when the Commission determined to permit late filing and to deal with the complaint.

The CHRC policy in relation to late filing of complaints includes the following guidelines.

Extending the time limit is a discretionary option which the Commission may exercise in special circumstances. It is not automatic ….

…

In determining whether it is appropriate in particular circumstances to recommend for investigation a complaint that is based on acts or omissions which occurred over a year before filing the complaint, three factors are considered.

…

The report to the Commission must cover each of the following three factors:

—   Prejudice to the respondent occasioned by the delays:

Examples of things to consider under this factor:

—   whether witnesses or documentary evidence are likely to be unavailable;

—   whether the respondent has acted in a way which indicates that he/she/it has relied on the fact that no complaint was laid within one year;

—   whether the respondent knew that discrimination was alleged and that a complaint was likely to be filed.

—   The length of the delay itself and the explanation offered by the complainant:

Examples of things to consider  under this  factor:

—   whether other procedures have been exhausted without the complainant obtaining satisfaction;

—   whether the complainant has been misled by Com­ mission staff or by his or her lawyer or union;

—   whether the complainant has been led to believe that the action would be settled (although one should consider the time elapsed before filing the complaint after the complainant knew or ought to have known that settlement  was not likely);

—   whether the complainant was reasonably deterred from filing a complaint by threats of retaliation;

—   whether the complainant has been reasonably pre­ vented from taking action due to illness or other major life crisis.

—   The public interest in the complaint itself;

Examples of things to consider under this factor:

—   the extent of loss of equal opportunity which the complainant as an individual has suffered;

—   whether there are other avenues of recourse open to the complainant;

—   whether the case will aid in clarifying the law through recognition of policy principles by courts or Tribunals;

—   whether the case will have a significant social impact because it affects a group or class rather than an individual.

In the investigator’s report prior to investigation the following comments are included.

6. The Complainant did not grieve the decision to terminate his employment, nor did he make a request for an extension of term of service.

7. The Complainant only came forward with a complaint on 21 August 1992, six years after he was effectively released. When this was pointed out to him, he insisted on filing nevertheless, stating that he wanted it recorded officially that he now wished to contest this decision.

8. Documents submitted by the Complainant showed that he had been hospitalised twice in the months preceding his release. It would be difficult to obtain a retroactive medical evaluation of the Complainant’s capability to perform his duties.

9. The Complainant acknowledges that several of the individuals with whom he served, or who would have knowledge of the circumstances surrounding his termination of employment have since retired, or have been posted to various locations. Bringing the complaint into time would be likely to cause prejudice to the Respondent’s defence.

Recommendation

10. It is recommended that pursuant to section 41(e) of the Act, the Commission resolve not to deal with the complaint because it is based on acts which occurred more than one year before the filing of the complaint.

In his submission in relation to the report prior to investigation, Mr. Merrick took issue with some facts alleged in the report. Included among his comments were: that he had requested of his superior, without success, that he be permitted to continue his service; that his reported hospitalization had occurred after, not before, his retirement; and that medical evaluation of his past continuing ability to perform military duties ought not to be difficult to obtain from National Defence headquarters up to his retirement and thereafter from his continuing employment in civilian work servicing CF aircraft, similar to the work he had done while in the service, and from his continuing military attachment through the supplementary ready reserve for the CF.

The record does not support the applicant’s allegation that the Commission did not comply with or that it ignored its own policies for considering late filed complaints. Those policies outline factors to be considered and the report prior to investigation does refer to factors in this case that fall within those policies. Those guidelines or policies were themselves known to the Commission. There is simply no evidence they were ignored.

Nor does the record demonstrate that prejudice to the CF arising from late filing of the complaint was here ignored. It is referred to in the report of the investigator, and disputed in the comments on that report by Mr. Merrick. Clearly those references were before the Commission when it made its decision.

Counsel for the Commission referred to Saskatchewan Human Rights Commission v. Kodellas[10] and Motorways Direct Transport Ltd. v. Canada (Canadian Human Rights Commission),[11] as cases illustrative of a principle that only severe prejudice established after long delays would warrant upsetting a Commission decision to proceed to consider a late complaint. In my view, neither case is particularly helpful for both deal with circumstances where the delay was caused essentially by the processes of the commissions concerned, a circumstance not here present.

In another respect, it is urged by the applicant that the statutory time limit for filing a complaint implies prejudice for one who is adversely affected by late filing. In Canada (Attorney General) v. Canada (Canadian Human Rights Commission),[12] Mr. Justice Muldoon speaks of one aspect of the time limit in the following terms:

Whom did Parliament intend to benefit? The limit— permeable as it is in terms of the Commission’s consideration of what is appropriate—appears to be of direct benefit to a respondent employer, such as S.O.S. in this case. It is just too plain for elaboration that if the employer is to be deprived of the benefit which Parliament provided, the Commission must give some cogent signal or demonstration of why it considered it to be appropriate so to deprive the employer.

I distinguish that case as one concerned with delay arising from the Commission’s own process, not with delay by the complainant, and there the Commission proceeded to deal with the complaint without first determining whether to permit late filing under paragraph 41(e). Nevertheless, his Lordship’s comments lend credence to the Attorney General’s submission that the provision limiting time for complaints gives rise to a presumption that one affected by late filing would suffer prejudice, a presumption which it is said is not here rebutted by the Commission. I note again that the investigator’s reference to potential prejudice to the CF was rebutted by Mr. Merrick in his comments to the Commission and that no response was made by the CF which declined the opportunity to set before the Commission any evidence of how it perceived it would be prejudiced.

In Canada (Attorney General) v. Canadian Human Rights Commission and Boone,[13] my colleague Mr. Justice Teitelbaum dealt with the argument that prejudice to the employer could be assumed when a complaint was filed late, in that case some sixty days beyond the one-year limit under paragraph 41(e). His Lordship there said as follows.[14]

The main submission made by the applicant, if I properly understand it, is that if there is a complaint filed and it is filed more than one year after the incident, then the employer, in this case the CF, does not have to show a prejudice as there is a presumption that there is a prejudice if the complaint is allowed to proceed.

I do not follow this reasoning.

The law states that all complaints filed with the Commission must be investigated by the Commission. Pursuant to s. 41 there are only four cases when the Commission may refuse, not shall refuse, to continue with the investigation. One of the reasons is found in s. 41(e).

Section 41(e) states, as I interpret the subsection, that if the complaint is filed more than a year after the incident complained of occurred, then the Commission, before proceeding with the complaint, must hold a ”hearing” and with the discretion afforded to it, may decide to continue to investigate the complaint.

In order for the Commission to make such a decision, it must allow the ”employer” to make submissions as to why the Commission should not continue with the investigation. That is, procedural fairness requires the Commission to consider the submissions. After this is done, the Commission, considering all the evidence put before it, decides that it is in its discretion whether or not to allow the investigation to continue.

One may therefore say that the applicant is correct in saying that a complaint filed outside of the year stipulated in the Act is presumed to cause a prejudice to the employer, but since this is a rebuttable presumption the Commission holds a hearing, considers all the relevant evidence put before it and decides to investigate or not.

In this case the Commission followed a process similar to that followed in Boone. It sought comments from the parties to the complaint in relation to the report prior to investigation completed by its investigator. It considered the only submission made in response, and it determined to deal with the complaint on the basis of the evidence before it. In my view, if there be a presumption of prejudice to the employer if an extension of time to file a complaint is allowed, there is no responsibility on the part of the Commission to rebut such a presumption. Rather, in the absence of any evidence from the employer, the Commission considered the recommendation of its investigator and the response of Mr. Merrick which denied prejudice to the CF in the circumstances of his case. That rebuttal concerned the availability of his former superior in the service, and his continuing association with the CF, through his work with a civilian contractor and his continuation in the supplementary reserve. In my opinion it cannot be said that the Commission denied fair process to the CF in reaching the decision that it did.

A reasonable basis for the Commission’s decision?

I turn to the main argument of the Attorney General, that is that the Commission’s decision was unreasonable, made without reference to relevant considerations and taking into account irrelevant considerations. In the final analysis the argument is that no appropriate reasons support the Commission’s decision.

The applicant submits that paragraph 41(e) is intended for cases with extenuating circumstances, and that the employer should be able to rely on the one-year time limit unless there are very good reasons for extending the time limit. It is urged that the Commission has acted unreasonably since there were no such circumstances in the respondent’s case. Moreover, several relevant considerations were said not to have been taken into account: the prejudice to the CF that would result from allowing the Commission to proceed in this case, the lack of a credible explanation for the six-year delay, the lack of public interest in entertaining the complaint, and the public interest in refusing to deal with the complaint. It is said that if the Commission were to proceed in this case, the CF would be prejudiced as witnesses have likely been posted or retired from the CF given the significant passage of time, and more importantly, it may expose the CF to further proceedings and potential liability in more than 10,000 other instances of mandatory retirement.

In this case, it is clear from the record that the Commission exercised its discretion under paragraph 41(e) of the Act, rendering its decision in February 1993 to grant the extension of time, based on the respondent’s complaint form, dated September 25, 1992, the investigator’s “report prior to investigation”, dated September 29, 1992, the Commission’s notification letter, dated November 30, 1992, and Mr. Merrick’s response to the report.

In my view, the Commission made its decision having regard to the presumed prejudice to the CF that the investigator assumed would result from proceeding to deal with the complaint, and Mr. Merrick’s denial of that prejudice. There was no evidence before the Commission of actual prejudice to the CF. Nor was there evidence in regard to the public interest, except that of the complainant, before the Commission when it made its decision. I am satisfied that the Commission exercised its discretion on proper principles having considered all the relevant evidence presented to it. I am not persuaded that its decision can be said to be unreasonable, or without reason in the circumstances in this case.

Conclusion

For the reasons set out, I am not persuaded that the CHRC erred in law, or that in reaching its decision it breached principles of procedural fairness, or that its decision can be considered as unreasonable in the sense of being without a ”reasonable basis".

When this application and that of Mr. Bernard (Court file T-1927-93) were heard, counsel for the Attorney General suggested the Court might conclude that the two cases be treated differently and by implication the decision concerning the complaint of Mr. Merrick might warrant intervention by the Court by reason of the extended delay in filing the complaint, when compared with the considerably lesser delay in the Bernard case. The Commission may determine to treat the cases differently on the merits, including the delays in filing complaints, but that is not a determination for the Court on judicial review of the decisions to permit late filing and to deal with the complaints. I find no basis in principle, on the arguments presented, to reach different results in review of the Commissions’s decisions.

An order goes dismissing this application for judicial review.

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