Date: 20040514
Docket: T-1675-03
Citation: 2004 FC 703
Ottawa, Ontario, this 14th day of May, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
STUART KIDD
Applicant
and
GREATER TORONTO AIRPORTS AUTHORITY
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Stuart Kidd, the applicant, seeks judicial review of the decision of the Canadian Human Rights Commission (the "Commission"), dated March 6, 2003. In that decision, the Commission refused to deal with Mr. Kidd's human rights complaint, pursuant to s. 41(1)(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "CHRA"), since it was not brought within one year of the alleged discriminatory events. As I have concluded that the Commission's reasons for declining to deal with the complaint are inadequate, the decision is quashed and remitted for reconsideration in accordance with the reasons below.
Background
[2] Mr. Kidd's employment was terminated by the Greater Toronto Airports Authority (the "respondent") on March 30, 2000. He had worked there for just over 22 years as a Millwright Helper. His performance had suffered due to alcoholism in the latter years.
[3] The applicant participated in treatment programs for his alcoholism in December 1995, December 1997, and in February and March of 1999. Following the applicant's completion of this last treatment program in early 1999, the respondent imposed certain conditions on his continued employment and informing the applicant that breach of such conditions would result in his termination. The conditions included completion of an aftercare program, regular attendance at work and random alcohol and drug testing for a twelve month period, beginning in April 1999. The applicant did not object to these conditions and returned to work on March 22, 1999.
[4] Approximately one year later, on March 16, 2000, the respondent held a meeting with Mr. Kidd to congratulate him on his attendance record and good performance at work. By this time, the applicant had completed the aftercare program and received negative results in six random alcohol and drug tests.
[5] The day following this meeting, on March 17, 2000, the applicant underwent a seventh alcohol and drug test. The results of this test came back negative for alcohol, but positive for marijuana. When confronted by his employer, Mr. Kidd admitted that he had smoked marijuana a few evenings before the test. Since he had violated the conditions imposed a year earlier, the respondent terminated Mr. Kidd's employment, effective March 24, 2000. He received written notice of this termination on March 30, 2000.
[6] The applicant's employment relationship was governed by a collective agreement between the respondent and the applicant's union, the Public Service Alliance of Canada ("PSAC"). Mr. Kidd therefore grieved his termination and the matter was referred to arbitration. An arbitrator heard the grievance over two days in May 2001 and released his decision on
May 15, 2001, dismissing the applicant's grievance and upholding his discharge from employment.
[7] The applicant and PSAC believed that the arbitrator had improperly applied the correct legal tests and standards with respect to accommodation of disability to the point of undue hardship pursuant to the CHRA and therefore appealed the arbitral award by way of judicial review proceedings before the Ontario Divisional Court. On March 12, 2002, the Divisional Court dismissed the application for judicial review. PSAC also applied for leave to appeal to the Ontario Court of Appeal. Such application was dismissed on May 24, 2002.
[8] Mr. Kidd was first in contact with the Commission in February 2002. His complaint alleging that the respondent had discriminated against him in employment due to a disability and had failed to accommodate him to the point of undue hardship contrary to sections 7, 10 and 15(2) of the CHRA was signed on April 29th and filed in May 2002.
[9] On September 19, 2002 an investigator designated by the Commission to investigate the complaint under s. 43(1) of the CHRA issued her report and recommendation that the applicant's complaint be dealt with by the Commission, in the exercise of its discretion under s. 41(1)(e). The investigator determined that the arbitration procedure had not adequately addressed the applicant's allegation of discrimination, that the delay in signing the complaint was incurred due to Mr. Kidd's efforts to pursue other redress procedures and that his complaint was not trivial, frivolous, vexatious or made in bad faith.
The Decision under Review
[10] Notice of the Commission's decision was provided to the applicant in a letter dated March 6, 2003 which, in essence, merely recited the words of the enactment, s. 41(1)(e) of the CHRA, to explain why the Commission chose not to deal with the complaint : "the complaint was based on acts which occurred more than one year before the complaint was filed".
[11] Issue
1. Did the Commission violate s. 42(1) of the CHRA or breach the principles of procedural fairness in failing to provide adequate reasons for its decision?
Analysis
[12] The dispositive issue in this case is whether the reasons of the decision-maker are inadequate and violate the principles of procedural fairness or do not meet the standard required of s. 42(1) of the CHRA, or both. I find that the reasons are inadequate on both grounds and will allow this judicial review. As it is impossible to know from the Commission's reasons why it determined that the investigator's recommendations should not be followed and why the limited discretion afforded to it by s. 41(1)(e) would not be exercised, I will not comment upon the merits of the applicant's case, this being one of the central tasks for which the Commission has been established pursuant to the CHRA.
[13] Section 41(1) of the CHRA provides as follows:
| 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.
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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) 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) 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) la plainte n'est pas de sa compétence;
d) la plainte est frivole, vexatoire ou entachée de mauvaise foi;
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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[14] The applicant argues that the Commission breached the common law duty of fairness and also the obligation imposed by s. 42(1) to provide reasons for its decision because the reasons of the Commission make no reference whatsoever to the factors or considerations that led to its conclusion. The respondent argues that the Commission did not breach the principles of procedural fairness in failing to provide adequate reasons for decision, taking into account
s. 42(1) of the CHRA.
[15] Section 42(1) of the CHRA states:
| 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. |
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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.
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[16] In my view, the decision letter in this case fails to meet the standard that has been established in the jurisprudence for s. 42(1) and also is insufficient as reasons for the decision under review pursuant to the principles of procedural fairness. On both grounds, the Commission here erred in providing inadequate reasons for its decision.
[17] The Federal Court of Appeal in Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.) stated the following at paragraphs 17-19 regarding the provision of reasons by administrative decision-makers:
The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the decision maker on the relevant factors and evidence. In the words of the Supreme Court of Canada:
Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at p. 845.
Reasons also provide the parties with the assurance that their representations have been considered.
In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine whether the decision maker erred and thereby render him or her accountable to that body. This is particularly important when the decision is subject to a deferential standard of review.
[Emphasis added]
[18] The emphasized portion of the quotation from the Federal Court of Appeal above is applicable to the present case. While I have not completed a standard of review analysis, since I am not undertaking to review the substance of the Commission's decision and the issue of adequacy of reasons falls within the parameters of the principles of procedural fairness, it is well-established that a decision pursuant to s. 41(1)(e) is subject to a great deal of curial deference. See for example: Canada Post Corp. v. Barrette, [2000] 4 F.C. 145 (C.A.), Bell Canada v. Communications, Energy and Paperworkers Union of Canada (1998), 167 D.L.R. (4th) 432 (F.C.A.) and Cape Breton Development Corp. v. Hynes, [1999] F.C.J. No. 340 (T.D.)(QL). In Via Rail, supra, the Federal Court of Appeal recognized that in situations where a great amount of deference is to be afforded to an administrative decision-maker, then knowing and understanding the rationale for the decision becomes even more critical, not just for the applicant, but also for a reviewing court.
[19] In coming to the conclusion that the reasons in the circumstances of this case are inadequate, I have reviewed the jurisprudence of this Court cited by the respondent. In my view, for reasons that I set out below, the decisions referred to by the respondent are distinguishable from the applicant's situation.
[20] In Maclean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (F.C.)(QL), the applicant received reasons which, although brief, told the applicant why the Commission had decided to dismiss his complaint. The Commission's reasons in that case stated that the applicant's complaints were dismissed under s. 44(3)(b)(i) of the CHRA because "...the differentiation was justifiable in the circumstances. It was not a discriminatory practice for the respondent to provide different categories of benefits to those employees who were more likely to be affected than others".
[21] In the present case, the applicant did not receive the same level of reasoning that the applicant was given by the Commission in Maclean, supra. As is clear from the quote above in Maclean, the Commission did not simply state that pursuant to s. 44(3)(b)(i ) the differentiation used by the applicant's employer was justifiable in the circumstances, but proceeded to explain why this was so. Maclean, supra, is a good example of how a tribunal's articulation of the "why" for a decision need not be an overly onerous endeavour for the administrative decision-maker, as in that case, it was completed by one additional sentence.
[22] It should be noted that the Commission's decision in Maclean, supra, contradicted an investigator's report that favoured sending the applicant's complaints to further inquiry. The Court commented that it is well established that the Commission is not bound by an investigator's recommendation(s) and therefore, the Commission must be presumed to have considered such recommendation in reaching its decision. I do not dispute the Commission's authority to disagree with the recommendation of an investigator or that the Commission is presumed to have examined such report and recommendation. However, when the reasons disclose no rationale for the Commission's decision not to exercise its discretion to deal with the complaint beyond the one year limitation period, the existence of a contradictory recommendation from an investigator makes the inadequacy of the reasons more readily apparent.
[23] The decision of Lever v. Canada (Canadian Human Rights Commission), [1988] F.C.J. No. 1062 (C.A.)(QL) was rendered relying on Supreme Court of Canada jurisprudence that, at that time, had held that the principles of procedural fairness did not generally require that an administrative body must give reasons for or explain its decision. This position has been modified, if not reversed, by the reasoning in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[24] Next, in the decision of Allen v. Canada (Human Rights Commission) (1992), 59 F.T.R. 155, Justice McGillis found that when an applicant has been "fully informed" of the "actual reason" for the decision made by the Commission, then such was in compliance with s. 42(1) of the CHRA. At page 159 she stated as follows:
There is a mandatory obligation imposed on the Commission by subsection 42(1) of the Canadian Human Rights Act (the Act) to provide a written notice of its decision to the complainant setting out the reasons for its decision. In this case, the Applicants received two letters from the Commission, each of which explained that the complaint was not based on a proscribed ground of discrimination under the Act and was therefore beyond the jurisdiction of the Commission. In the second letter sent to the Applicants, the Commission stated that student status does not constitute a ground of discrimination under the Act.
In informing the Applicants in writing that it could not deal with the complaint because student status is not a ground of discrimination under the Act, the Commission complied with subsection 42(1) of the Act. Even if the Commission did not elaborate in detail on its rationale for arriving at this conclusion, the Applicants were nevertheless fully informed of the actual reason for the decision made by the Commission. There has therefore been no breach of subsection 42(1) of the Act. [See Tsai v. Human Rights Commission (Canada) (1988), 91 N.R. 374 (F.C.A.) and Lever v. Canadian Human Rights Commission (1988), 10 C.H.R.R. D-6488 (F.C.A.)]
[Emphasis added]
[25] In Allen, supra, the Commission's written notice of decision revealed its rationale for decision and although not detailed, it nonetheless set out the actual reason for the decision. This did not occur in the present case, since the Commission merely referred to the wording of the provision on which it relied, namely s. 41(1)(e), without explaining why it disagreed with the investigator's recommendation or why its discretion to deal with the complaint as provided by the words "...or such longer period of time as the Commission considers appropriate in the circumstances," was not warranted in the applicant's case.
[26] I refer to the words of Justice Heneghan in Price v. Concord Transportation Inc., [2003] F.C.J. No. 1202 (F.C.)(QL) where she commented that "...section 41(1)(e) recognizes that a black-and-white time bar would not be appropriate. The Commission's fact finding expertise is fairly and appropriately put to work by the added discretion to extend such time limitation if the Commission considers it "appropriate in the circumstances"." In Price, supra, the decision-maker provided a brief explanation as to why the complaint should not be dealt with under s. 41(1)(e) and the adequacy of its reasons for decision was not challenged.
[27] In Hardman v. Atomic Energy of Canada Ltd., [1997] F.C.J. No. 477 (T.D.)(QL), Justice Richard, as he then was, commented on the standard of reasons required of the Commission to satisfy section 42(1) of the CHRA. He stated as follows at paragraphs 13-14 of that decision:
In circumstances, such as here, where the Commission has accepted the recommendation of the officer, it is appropriate that the officer's analysis and recommendation, both of which were disclosed to the applicant, be considered in determining whether the Commission has complied with ss. 42(1) of the Act. As stated in Allen et al. v. Canadian Human Rights Commission et al. (1992), 59 F.T.R. 155 at 159, even if the Commission did not elaborate in detail on its rationale for arriving at this conclusion, the applicant was nevertheless fully informed of the actual reason for the decision made by the Commission.
In these circumstances, I am satisfied that the Commission has complied with ss. 42(1).
[28] In my view, given that the Commission in the present case did not accept the investigator's report and did not provide any explanation, even a brief one, for its determination, beyond paraphrasing the legislative provision, this decision in Hardman, supra, can be distinguished from the applicant's situation. Moreover, the decision in Hardman relied upon Allen, supra, and I have noted above why the standard articulated in Allen has not been met.
[29] Finally, on this issue, the respondent has submitted that in the event that the reasons of the Commission are found not to meet the requirements of the duty of fairness, then this judicial review should not be allowed on the ground that the applicant did not request more detailed reasons from the Commission. According to the respondent, the applicant should have requested more detailed reasons as to why the Commission did not think it appropriate in the circumstances to proceed with his complaint and in the absence of such request, costly judicial review proceedings should not be encouraged by allowing the judicial review on this ground alone.
[30] The authorities relied on by the respondent in support of this argument, Marine Atlantic Inc. v. Canadian Merchant Service Guild, [2000] F.C.J. No. 1217 (C.A.)(QL) and Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1301 (T.D.)(QL), do not support him in this regard. In Marine Atlantic, supra, the person affected failed to request reasons in the context of a decision where the decision-maker had provided no purported reason for its decision. In such a situation, the Court held that requiring that an individual request such reasons was not unduly onerous. Moreover, the Court acknowledged that there may be circumstances in which the obligation of an administrative body to provide reasons is plain and obvious. In my opinion, s. 42(1) of the CHRA makes it plain and obvious that reasons are required and such reasons were so provided. There was no onus on the applicant to request better reasons.
[31] Liang, supra, is distinguished from the present case as the Court there had the benefit of an immigration officer's notes in the tribunal record, which shed light on the very brief reasons issued by the decision-maker. In this case, the tribunal record certified pursuant to Rule 317 of the Federal Court Rules, 1998, SOR/98-106 does not provide any further elaboration for the reasons of the Commission.
[32] I am satisfied that a reviewable error of law has occurred, in that the reasons do not meet the minimal threshold of adequacy as established by the common law principles of procedural fairness as well as the minimal threshold established by s. 42(1) of the CHRA. Such error warrants the intervention of this Court.
[33] The respondent also argues that the Commission had the discretion to determine, pursuant to s. 41(1)(d) of the CHRA, that it would not investigate the applicant's complaint because it was frivolous or vexatious in light of the arbitrator's decision and the Ontario Divisional Court decision. In my view, whether such ground for refusal to deal with the complaint was open to the Commission does not arise in this judicial review proceeding, since the Commission did not state that s. 41(1)(d) of the CHRA was a ground on which it had decided not to deal with the complaint. The brief reasons of the Commission merely state that it had decided, pursuant to s. 41(1)(e) of the CHRA, not to deal with Mr. Kidd's complaint because it was based on acts which allegedly occurred more than one year before the complaint was filed. There is no further reason given, and therefore, the respondent's ex post facto supplement to the reasons for decision of the Commission will not be considered by this Court.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed, the decision of the Commission is set aside and the matter is remitted for reconsideration in accordance with these reasons. Costs to the applicant.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1675-03
STYLE OF CAUSE: STUART KIDD AND GREATER TORONTO
AIRPORTS AUTHORITY
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 3, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: May 14, 2004
APPEARANCES:
Andrew Raven FOR THE APPLICANT
Mark D. Contini FOR THE RESPONDENT
SOLICITORS OF RECORD:
ANDREW RAVEN FOR THE APPLICANT
Raven, Allen, Cameron & Ballantyne
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario