Date: 20151229

Docket: T-2038-14

Citation: 2015 FC 1423

[UNREVISED ENGLISH CERTIFIED TRANSLATION]

Ottawa, Ontario, December 29, 2015

PRESENT: The Honourable Mr. Justice Gascon

BETWEEN:

GANDHI JEAN PIERRE

Applicant

and

CITIZENSHIP AND IMMIGRATION CANADA

Respondent

JUDGMENT AND REASONS

I.                   Overview

[1]               The applicant, Gandhi Jean Pierre, is an immigration officer for Citizenship and Immigration Canada [CIC]. In May 2013, he sent a letter to the Human Rights Commission [Commission] advising it that he was going to file a discrimination complaint against his employer. Mr. Jean Pierre alleges that he was discriminated against between June 2005 and May 2012. In particular, he claims to have suffered discrimination in 2009, then between November 2010 and October 2011 during a selection process for the position of pre-removal risk assessment officer [PRRA] at CIC. In May 2012, Mr. Jean Pierre obtained some documents following an access to information request. Those documents, in his view, show that libellous, defamatory and discriminatory comments made by his employer undermined his chance to be hired into a new position at another federal government agency.

[2]               In August 2014, after analyzing and considering the representations of Mr. Jean Pierre and CIC, the Commission decided to not deal with Mr. Jean Pierre’s complaint pursuant to paragraph 41(1)(e) of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA]. In the Commission’s view, Mr. Jean Pierre filed his complaint with the Commission after the expiration of the one-year period following the last act on which the complaint was based.

[3]               Today, Mr. Jean Pierre is requesting judicial review of that decision by the Commission refusing to deal with his complaint. He argues that the decision breached the rules of procedural fairness and was unreasonable. He is seeking an order from this Court setting aside the Commission’s decision and remitting the matter to a different decision-maker at the Commission for redetermination.

[4]               The issues are as follows:

• What are the appropriate standards of review?
• Did the Commission breach the duty of fairness it owed to Mr. Jean Pierre and its duty to comply with the rules of procedural fairness in examining his complaint?
• Was the Commission’s decision to not deal with Mr. Jean Pierre’s complaint unreasonable?

[5]               For the following reasons, Mr. Jean Pierre’s application for judicial review must fail because the Court has concluded that the Commission did not breach any rule of procedural fairness in the conduct of this case and that its decision to not deal with Mr. Jean Pierre’s complaint was not unreasonable and was a possible, acceptable outcome in the circumstances.

II.                Background

A.                Facts

[6]               Mr. Jean Pierre is an immigration officer who has been working at CIC since September 1998. Other than this immigration officer position, Mr. Jean Pierre also held the position of acting PRRA officer in the PRRA division of CIC from November 2010 to the end of October 2011.

[7]               On May 23, 2013, Mr. Jean Pierre sent a letter to the Commission stating that he was going to file a discrimination complaint against his employer. In that letter, Mr. Jean Pierre undertook to submit his evidence within 10 days. On June 7, 2013, the Commission sent Mr. Jean Pierre an information kit and a form to complete to formally file his complaint. The Commission requested that the complaint be filed by July 8, 2013. On that date, Mr. Jean Pierre did indeed send the Commission the completed complaint kit and a letter dated July 5, 2013.[1]

[8]               In the complaint form and his letter of July 5, Mr. Jean Pierre alleged that he had been discriminated against between June 2005 and May 25, 2012. In particular, he claimed that he had suffered discrimination in 2009 after failing a selection process for a PRRA officer position. In November 2009, a notice of interest for a supervisor’s position was sent to all employees except him. He says that he was promoted to a PRRA officer position in October 2010 but was demoted after a year as a result of discriminatory actions by his CIC superiors at the time, Mses. Giroux and Clément. These actions took place from November 2010 to October 2011. In October 2011, Mr. Jean Pierre informed Mses. Giroux and Clément’s manager of the impact of their actions on his health. In January 2012, Mr. Jean Pierre was eliminated at the last stage of a selection process for a hearing officer position to meet the possible needs of the Enforcement Division of the Canada Border Services Agency [CBSA]. On May 25, 2012, he received some documents following an access to information request to the CBSA. Those documents, in his view, show that libellous, discriminatory comments were made about him by his superiors at CIC and undermined his chance to be hired into a new position at the CBSA.

[9]               On August 15, 2013, the Commission informed Mr. Jean Pierre that it had reviewed his complaint and believed that paragraphs 41(1)(a), (d) and (e) of the CHRA could apply. The Commission told Mr. Jean Pierre that there would be a report with respect to these issues and that he could provide representations in this regard. On September 24, 2013, Mr. Jean Pierre sent his position statement on the relevant paragraphs of the CHRA to the investigator assigned by the Commission. With respect to paragraph 41(1)(e), Mr. Jean Pierre indicated that he had complied with the time limit because he became aware of the last discriminatory practice on May 25, 2012, when he received documents following his access to information request to the CBSA. He adds that he suffered two severe depressions, which totalled three months of medical incapacity. On October 29, 2013, CIC communicated its position on the relevant paragraphs of the CHRA. CIC maintained that Mr. Jean Pierre had already filed a number of grievances for similar reasons to those alleged in his new complaint and that Mr. Jean Pierre’s complaint to the Commission was filed after the one-year statutory time limit had expired.

[10]           In a report dated February 12, 2014, the Commission’s investigator, Caroline Audet, citing paragraph 41(1)(e) of the CHRA, recommended that the Commission not deal with Mr. Jean Pierre’s compaint because it involved acts that occurred more than one year before the complaint was filed and Mr. Jean Pierre did not provide a reasonable explanation for the late filing. Ms. Audet’s report was sent to the parties on February 17, 2014, and they were invited to provide submissions not exceeding 10 pages.

[11]           On March 17, 2014, Mr. Jean Pierre sent submissions totalling 38 pages to the Commission. On April 15, 2014, the Commission advised Mr. Jean Pierre that it could not accept his submissions because they exceeded the prescribed 10-page limit. Mr. Jean Pierre asked to be exempted from the 10-page limit, but the Commission refused. On June 9, 2014, Mr. Jean Pierre provided his 10-page submissions responding to the Feb. 12 investigation report. He argued, among other things, that he had filed his complaint within the one-year time limit, that Ms. Audet’s decision was unreasonable and that she had fettered her discretion by not verifying the attenuating circumstances. For its part, CIC sent its submissions to the investigator in July 2014.

[12]           On August 29, 2014, the Commission decided under paragraph 41(1)(e) of the CHRA to not deal with Mr. Jean Pierre’s complaint because it was filed after the expiration of the one-year time limit prescribed by the Act.

B.                 The Commission’s decision

[13]           The letter informing Mr. Jean Pierre of the Commission’s decision states that, after reviewing the investigation report and all the submissions sent subsequently, the Commission decided to not deal with the complaint. The record of the decision gives as a reason that the complaint was filed more than one year after the last discriminatory practice on which it was based. The Commission determined that it would not deal with the complaint because Mr. Jean Pierre did not do everything that a reasonable person would do in the circumstances to proceed with the complaint. The Commission also noted that, although Mr. Jean Pierre’s health may have played a role in his ability to pursue the complaint, there was not enough evidence indicating that his health prevented him from proceeding with the complaint.

[14]           The Commission’s decision was based essentially on Ms. Audet’s recommendation of February 12, 2014. In her report, Ms. Audet was of the opinion that the last discriminatory practice underlying Mr. Jean Pierre’s complaint had occurred in October 2011 and that therefore Mr. Jean Pierre should have filed his complaint by October 2012. The investigator stated that Mr. Jean Pierre should have known prior to receiving the access to information documents on May 25, 2012, that he may have been subjected to discriminatory practices. In fact, Ms. Audet noted in her report, it is clear that Mr. Jean Pierre knew that there were problems at his work because he had already filed a number of complaints and recourses with other administrative agencies and courts in respect of the episodes of discrimination that he claims to have suffered. Some of these complaints referred, inter alia, to the actions of his superiors at CIC, Mses. Giroux and Clément.

[15]           Moreover, Ms. Audet determined that the letter of May 23, 2012, sent by Mr. Jean Pierre was not in itself a complaint. The complaint in an acceptable format for the Commission was not received until July 9, 2013. Mr. Jean Pierre did not give any reason other than his fear of reprisals by his employer for not contacting the Commission prior to May 2013. Ms. Audet did not consider Mr. Jean Pierre’s reasons sufficient to explain the late filing of the complaint.

[16]           According to the information that Mr. Jean Pierre and CIC provided to the investigator and that Ms. Audet noted in her February 2014 report, Mr. Jean Pierre filed the first complaint in June 2009 with the Public Service Staffing Tribunal [PSST] regarding allegations of fraud, abuse and discrimination that he experienced when working at CIC. That complaint was resolved through mediation. In December 2009, Mr. Jean Pierre also filed a grievance dealing with the rejection of his application in a selection process. That grievance remains outstanding. In March 2010, Mr. Jean Pierre filed a complaint against his union representative with the Public Service Labour Relations Board [PSLRB]. That complaint was dismissed in February 2012.

[17]           In his complaints, Mr. Jean Pierre mentioned, inter alia, that between November 2010 and October 2011, Mses. Giroux and Clément (who were, respectively, his manager and his supervisor at CIC) had discriminated against him when he was acting as a PRRA officer. In fact, in October 2011, he informed their manager of the impact of this behaviour on his health. In January 2012, Mr. Jean Pierre also filed an unfair labour practice complaint with the PSLRB against Mses. Giroux and Clément and his employer. This complaint was finally dismissed in May 2015. Moreover, Mr. Jean Pierre filed another complaint with the PSST regarding the employment opportunity that he applied for with another federal agency, i.e. the CBSA. The PSST dismissed this complaint in August 2013, and the Federal Court upheld the decision in April 2015 in Gandhi v Canada (Border Services Agency), 2015 FC 436 [Gandhi], including the arguments that Mses. Giroux and Clément and the assessment board discriminated against Mr. Jean Pierre and deprived him of an employment opportunity at the CBSA.

[18]           In his submissions of September 24, 2013, sent to the Commission, Mr. Jean Pierre also stated that he had suffered two severre depressions, which totalled three months of incapacity without, however, specifying the period of time. In her report of February 12, 2014, Ms. Audet in fact referred to Mr. Jean Pierre’s statements that his work situation was causing health problems for him. In its decision of August 29, 2014, the Commission also noted Mr. Jean Pierre’s health but found that there was not enough evidence to conclude that this prevented Mr. Jean Pierre from proceeding with his complaint before the Commission.

C.                Relevant provisions

[19]           The relevant statutory provisions are found at section 41 of the CHRA and read as follows:

D.                Standard of review

[20]           Mr. Jean Pierre submits that the questions of procedural safeguards do not require deference on the part of the Court. Similarly, he adds that the question dealing with the fairness of the interpretation of paragraph 41(1)(e) of the CHRA also falls within the correctness standard because of the quasi-constitutional nature of this question (Canada (Attorney General) v Johnstone, 2014 FCA 110 [Johnstone] at para 37 and 45-52). In the alternative, Mr. Jean Pierre argues that the Commission’s decision was unreasonable because it is not consistent with a large and liberal interpretation that furthers the purpose of the CHRA and it does not adhere to the rule of law (Johnstone at para 61-63; Public Mobile Inc v Canada (Attorney General), 2011 FC 130 at para 62 and 64).

[21]           On behalf of the respondent Minister, the Attorney General of Canada [AGC] agrees in part with Mr. Jean Pierre’s opinion and also submits that questions involving the fairness of the procedure adopted by the Commission in deciding whether to deal with complaints under subsection 41(1) of the CHRA are to be reviewed on a standard of correctness (Panula v Canada (Attorney Gemeral), 2014 CanLII 13154 [Panula] at para 17; Boshra v Canada (Attorney General), 2011 FC 1128 [Boshra] at para 47; Khapar v Air Canada, 2014 FC 138 [Khapar] at para 45). The AGC submits, however, that the reasonableness standard applies to decisions by the Commission to not deal with complaints under subsection 41(1) of the CHRA and to its findings of fact (Panula at para 16; Boshra at para 45; Khapar at para 46).

[22]           The Court agrees with the AGC’s opinion on the standard of review that governs the interpretation and application of paragraph 41(1)(e) of the CHRA. The interpretation of this provision is, indeed, within the Commission’s experise, and the Court has, incidentally, recognized on multiple occasions that, in this regard, the Commission is therefore subject to the reasonableness standard of review (Khapar at para 46; Panula at para 16; Boshra at para 45).

[23]           In Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61 [Alberta Teachers] at para 30-34, the Supreme Court confirmed that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (at para 30; Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at para 54; Canada (Human Rights Commission) v Canada (Attorney General), [2011] SCC 53 at para 18). In that case, the Court concluded that a timelines question is not a constitutional question; nor is it a question regarding the jurisdictional lines between two or more competing specialized tribunals (Alberta Teachers at para 33). A timelines question is specific to the tribunal’s administrative scheme and engages considerations and gives rise to consequences that fall squarely within the tribunal’s specialized expertise.

[24]           In this case, the time limit mentioned in paragraph 41(1)(e) of the CHRA relates to the Commission’s investigation process, which its commissioners have extensive knowledge of. In the Court’s view, there is no doubt that these considerations fall under the Commission’s expertise, which is focused on balancing the rights of parties, and that therefore they mandate the reasonableness standard.

[25]           In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. The reasons of a decision are considered reasonable if they “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Dunsmuir at para 47; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at para 16). In this context, the Court must show respect for and deference to an administrative tribunal’s decision and cannot substitute its own reasons. It may however, if necessary, look to the record for the purpose of assessing the reasonableness of the decision (Newfoundland Nurses at para 15).

[26]           With respect to questions of procedural fairness, it is well established that the appropriate standard of review is correctness (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). The Court agrees with Mr. Jean Pierre on this point. The question is not really whether the decision was correct but whether the process followed by the decision-maker was ultimately fair (Majdalani v Canada (Minister of Citizenship and Immigration), 2015 FC 294 at para 15; Krishnamoorthy v Canada (Minister of Citizenship and Immigration), 2011 FC 1342 at para 13).

E.                 Preliminary issues

[27]           The AGC raises two preliminary issues.

[28]           First, in accordance with rule 303(1)(a) of the Federal Courts Rules, SOR/98-106 [Rules], the respondent on an application for judicial review should be the person directly affected by the order sought, other than a tribunal. In this case, the AGC submits that the respondent should therefore be Her Majesty the Queen in Right of Canada (through the AGC) as the representative of the Minister of Citizenship and Immigration. The AGC is also requesting that the style of cause be amended accordingly.

[29]           The Court concurs with the AGC on the issue of the parties to the dispute. Based on rule 303(1)(a), the respondent directly affected by the order sought is Mr. Jean Pierre’s employer. Because the Department of Citizenship and Immigration appears in Schedule I to the Financial Administration Act, RSC 1985, c F-11, it should be represented by Her Majesty the Queen in Right of Canada under subsection 2(1) of the Public Service Labour Relations Act, SC 2003, c 22 in this case. The style of cause will therefore be amended accordingly.

[30]           Second, the AGC submits that a number of facts mentioned in Mr. Jean Pierre’s affidavit, as well as exhibits to his affidavit, were not presented to the Commission and therefore were not part of the tribunal record. Accordingly, the Court should not consider these exhibits on this judicial review. Specifically, the AGC opposes the filing of exhibits CF-2, CF-3, CF-4, CF-5 (the last eight pages), CF-13, CF-18, CF-19 and CF-21, which were not before the Commission and therefore not part of the record that the Commission transmitted to the Court under rules 317 and 318.

[31]           The Court does not completely agree with the AGC’s position and is of the opinion that it should accept and consider some of the documents presented by Mr. Jean Pierre on this judicial review. It is well established that, in principle, the  evidentiary record that must be filed with the Court on a judicial review application is limited to the one that was before the administrative tribunal when it issued its decision. However, there are some exceptions to this principle, particularly where the additional evidence is related to allegations of a breach of procedural fairness. Indeed, where a breach of procedural fairness is alleged, the Court may accept evidence that can assist it in determining the issue (Khapar at para 65; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 at para 20).

[32]           Mr. Jean Pierre recognizes that exhibits CF-18, CF-19 and CF-21 dealing with his health problems and medical reports relate to the evidence that the Commission was seeking in order to make its decision on Mr. Jean Pierre’s compliance with the one-year time limit and on the application of paragraph 41(1)(e) of the CHRA. Specifically, Exhibit CF-18 is a report from the CHOC organization dated September 2012, referring to psychological consultations undertaken in 2012 by Mr. Jean Pierre at that entity. Exhibit CF-19 groups together different medical reports about Mr. Jean Pierre’s inability to work in 2012. Exhibit CF-21 contains a medical opinion regarding two days of absence in February. Mr. Jean Pierre had not submitted these exhibits to the decision-maker, and therefore they cannot be part of the record before the Court to determine the reasonableness of the Commission’s decision on the interpretation of section 41(1)(e) of the CHRA. However, the Court considers that, in some respects, these exhibits are also linked to the procedural fairness arguments advanced by Mr. Jean Pierre. Thus, the Court agrees that the documents contained in exhibits CF-2, CF-3, CF-18, CF-19 and CF-21 may be considered as having been filed by Mr. Jean Pierre in support of his allegations of a breach of procedural fairness by the Commission and, as such and in this context, they may be admitted before the Court on this application for judicial review.

[33]           However, other exhibits about the merits of Mr. Jean Pierre’s complaint do not involve the issue of procedural fairness in any way, and therefore the Court cannot consider them for the purposes of this application. That is the case for exhibits CF4, CF-5 (the last eight pages) and CF-13.

III.             Analysis

A.                Did the Commission breach the duty of fairness it owed to Mr. Jean Pierre and its duty to comply with the rules of procedural fairness in examining his complaint?

[34]           Mr. Jean Pierre submits that the Commission repeatedly breached its duty of procedural fairness, in particular by not permitting documentary evidence at the first stage of the complaint process and in the submissions requested by the Commission to assess the applicability of paragraphs 41(1)(a), (d) and (e) of the CHRA. In addition, after the investigator’s report was produced, Mr. Jean Pierre could file submissions, but the limit was ten pages at that time, including exhibits, based on the standards put in place by the Commission. Mr. Jean Pierre submits that a serious offer to adequately document his submissions implied that the evidence was supplementary to the ten pages of submissions.

(1)               Mr. Jean Pierre’s position

[35]           Mr. Jean Pierre argues that the procedure adopted by the Commission should have been flexible and that the Commission should have examined the specific circumstances of his case (Sanofi-Synthelabo Canada Inc v Apotex Inc, 2005 FC 390; Ching-Chu v Canada (Citizenship and Immigration), 2007 FC 855 at para 25; Djilal v Canada (Citizenship and Immigration), 2014 FC 812 at para 36; Toussaint v Canada (Attorney General), 2010 FC 810 at para 54). Mr. Jean Pierre contends that by following its procedure rigidly and limiting the number of pages of the submissions, the Commission interfered with his right to freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms [Charter] and that the Commission did not consider section one of the Charter to explain that the procedure was reasonable (R v Oakes, [1986] 1 SCR 103 at para 63-71). Mr. Jean Pierre notes that the proportionality considerations raised in Oakes apply in the administrative context (Canadian Broadcasting Corporation v Warden of Bowden Institution, 2015 FC 173 at para 36, 37, 38, 50). He also states that the Supreme Court has already ruled on the importance that must be given to freedom of expression (Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at para 105). Mr. Jean Pierre claims that because of the page limit imposed by the Commission, he was unable to present all the facts relevant to his case (Forster v Canada (Attorney General), 2006 FC 787 at para 78).

[36]           Moreover, Mr. Jean Pierre complains about the fact that the Commission indicated in its decision that it had concerns about the documentary evidence submitted while repeating a number of times that evidence was not necessary at the initial stage of screening complaints made to the Commission. In addition, according to Mr. Jean Pierre, the Commission did not inform him of its reservations and did not give him the opportunity to make full submissions (Standinghorn v Atcheynum, 2007 FC 1137 [Standinghorn] at para 28-29, 40; Kaur v Canada (Citizenship and Immigration), 2013 FC 1023 [Kaur] at para 20; Itota v Canada (Citizenship and Immigration), 2013 FC 1058 [Itota] at para 10; Keqaj v Canada (Citizenship and Immigration ), 2008 FC 388 [Keqaj] at para 58). Mr. Jean Pierre adds that he had a legitimate expectation that evidence was not necessary at this initial stage of the Commission’s process (Apotex Inc v Canada (Attorney General), [2000] 4 FCR 264 at para 123).

[37]           Finally, Mr. Jean Pierre contends that the Commission did not meet the factors in the Baker decision with respect to procedural fairness (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 22-28). The Commission should have taken the facts alleged by Mr. Jean Pierre as proven (Love v Office of the Privacy Commissioner of Canada, 2014 FC 643 at para 14, 31, 51, 66). In short, says Mr. Jean Pierre, the Commission could dismiss the complaint only if it was a plain and obvious case (Bredin v Canada (Attorney General), 2006 FC 1178 at para 23-24 and 42 [Bredin FC]). Considering the Commission’s numerous abusive and derogatory acts, its decisions and omissions constitute an abuse of power in Mr. Jean Pierre’s view (Brown v Canada (Attorney General), 2009 FC 758 at para 34).

[38]           The Court does not share Mr. Jean Pierre’s opinion and finds that the Commission did not breach the duty of fairness it owed to Mr. Jean Pierre. “At common law, the minimum level of procedural fairness required of an administrative tribunal has at least three requirements: notice of the case to be met, the opportunity to make submissions, and an unbiased decision maker” (Standinghorn at para 40). In this case, the Commission met each of those criteria.

[39]           Mr. Jean Pierre was given at least two distinct opportunities to provide information after being told that paragraphs 41(1)(a), (d) and (e) of the CHRA could apply to his complaint. The first time was after the Commission’s letter dated August 15, 2013, asking him for his position statement and his evidence on those paragraphs in the context of Ms. Audet’s investigation; then a second time after he received the investigator’s report dated February 12, 2014. Each time, Mr. Jean Pierre responded, first with his letter of September 24, 2013, then with his submissions of June 9, 2014.

(2)               Mr. Jean Pierre’s observations and submissions

[40]           With respect to the submissions that preceded Ms. Audet’s report, the Commission first indicated to Mr. Jean Pierre that he had to limit his position statement and his evidence sent to the investigator to the factors referred to in paragraphs 41(1)(a), (d) and (e) of the CHRA. The invitation sent by the Commission indicated clearly what the Commission’s concerns were at this initial stage of the complaint process (Kaur at para 20; Itota at para 10; Keqaj at para 58). The Commission’s instructions at this stage of the procedure were clear: Mr. Jean Pierre had to provide the information and documentary evidence required  in relation to paragraphs 41(1)(a), (d) and (e) of the CHRA. Nothing more. It was incumbent on Mr. Jean Pierre to provide satisfactory explanations for the late filing of the complaint and to convince the Commission to agree to deal with his complaint (Bredin v Canada (Attorney General), 2008 FCA 360 [Bredin FCA] at para 18). Moreover, it is agreed and established that the Commission does not examine either the substance of the discrimination or the merits of the case at this preliminary stage of a complaint (Good v Canada (Attorney General), 2005 FC 1276 at para 21; Khapar at para 64). In fact, the limits imposed by the Commission did not restrict the submissions and documentary evidence that Mr. Jean Pierre could put forward to respond to whether paragraphs 41(1)(a), (d) and (e) of the CHRA applied to his case.

[41]           Mr. Jean Pierre responded to this invitation from the Commission by submitting his letter of September 24, 2013. It is true that, in its instructions on the position statement, the Commission indicated that it would not consider evidence related to allegations concerning the merits of the complaint and the discrimination raised by Mr. Jean Pierre. Mr. Jean Pierre could, however, file evidence in connection with paragraphs 41(1)(a), (d) and (e), and specifically the issue of the time limit, provided that he complied with the parameters imposed by the Commission.

[42]           With respect to the submissions that followed the investigator’s report, the instructions showed that Mr. Jean Pierre could include exhibits with his submissions, subject to the ten-page limit imposed by the Commission at this stage. This Court has confirmed that the Commission’s procedure of putting a cap on the length of submissions at this stage of the complaint process is reasonable (Donoghue v Minister of National Defence, 2010 FC 404 [Donoghue] at para 28; Boshra at para 50-52). Such instructions do not raise the issue of procedural fairness.

[43]           Accordingly, in fact, Mr. Jean Pierre was actually able to file submissions both before and after he received the final version of Ms. Audet’s report. The Commission applied its usual procedure and usual internal policy to Mr. Jean Pierre’s complaint. In this case, the Court is of the opinion that these two opportunities provided to Mr. Jean Pierre were more than sufficient to comply with procedural fairness and do not constitute an abuse of power.

[44]           The Court does not agree with Mr. Jean Pierre that he was [translation] “muzzled” by the Commission’s process. Certainly, in his submissions following Ms. Audet’s report, Mr. Jean-Pierre could present only ten pages of submissions rather than the 38 pages he had initially sent in March 2014. That represented more than 50 paragraphs of submissions to weed out, according to Mr. Jean Pierre. However, it does not appear to the Court that by being limited to ten pages, Mr. Jean Pierre was unable to put forward the arguments and file the necessary evidence to respond to the issues that the Commission had to consider under paragraphs 41(1)(a), (d) and (e) of the CHRA. The fact that Mr. Jean Pierre was unable to present documents on the merits of his discrimination complaint does not mean that he could not present documents pertaining to the issues raised by those three paragraphs. Moreover, Mr. Jean Pierre did not show in his submissions to this Court what arguments he was, in short, prevented from making after reducing his submissions from 38 to 10 pages. The degree of elaboration and detail was certainly different, and some of the paragraphs initially written by Mr. Jean Pierre had to be removed in his submissions of June 9, 2014, but the Court is satisfied that Mr. Jean Pierre had the opportunity to make his submissions and to be heard.

(3)               Mr. Jean Pierre’s medical condition

[45]           In addition, in terms of his medical condition and health problems, Mr. Jean Pierre indicated in his letter of September 24, 2013, and in his submissions of June 9, 2014, that he had had two severe depressions totalling three months of incapacity and that he had consulted the CHOC intervention group. The additional evidence adduced by Mr. Jean Pierre on this judicial review does not show a breach of procedural fairness. In this Court, Mr. Jean Pierre submitted two new medical and therapy certificates (exhibits CF-18, CF-19 and CF-20), but the information they contain essentially repeats what was already before the Commission and available at the time of Ms. Audet’s investigation. Moreover, both Ms. Audet’s report and the Commission’s decision refer to Mr. Jean Pierre’s health problems.

[46]           Thus, in his submissions of September 24, 2013, and June 9, 2014, Mr. Jean Pierre had the opportunity to present his arguments that the last alleged discriminatory practice did not date back to October 2011 and that he did not become aware of the statements made by Mses. Giroux and Clément, which he described as discriminatory and libellous, until May 25, 2012. The Commission considered Mr. Jean Pierre’s submissions but did not  agree with them. Instead, the Commission adopted the findings in Ms. Audet’s report regarding the date of the last discriminatory practice that the complaint was based on. Paragraph 41(1)(e) speaks of “acts or omissions” that the complaint is based on, and the last act described by Mr. Jean Pierre occurred in October 2011, according to the investigator. Ms. Audet therefore received and mentioned Mr. Jean Pierre’s submissions with respect to May 2012, but she did not accept them and explained the reasons for that in her decision. There was no breach of procedural fairness here.

(4)               Other arguments of Mr. Jean Pierre

[47]           Mr. Jean Pierre submits that he had a legitimate expectation that evidence was not necessary. However, the Commission’s instructions did not say that evidence was not required; rather, they stipulated that evidence was not necessary solely with respect to the allegations of discrimination and human rights. In fact, the jurisprudence has established that the Commission does not examine the merits of a complaint at this preliminary stage (Good at para 21; Khapar at para 64). Mr. Jean Pierre, however, had ample opportunity to adduce evidence in connection with paragraphs 41(1)(a), (d) and (e) of the CHRA by following the procedure and the page limits established by the Commission. The fact that Mr. Jean Pierre misunderstood or misinterpreted the Commission’s instructions about his position statement to be filed as part of the preparation of the investigation report does not constitute a breach of procedural fairness by the Commission.

[48]           Mr. Jean Pierre also argues that the Commission was required to to take all of his submissions as proven unless the contrary was shown (Love at para 14, 31, 51, 66). The Court does not concur. In that decision cited by Mr. Jean Pierre, the Court indicated that allegations of fact contained in a complaint must be presumed true and taken as true (Love at para 31). They are not submissions made in the context of an investigation under subsection 41(1) of the CHRA. The investigator and the Commission took as proven the facts that Mr. Jean Pierre’s complaint was based on but not the explanations he gave for failing to comply with the one-year time limit. Also, the Commission did not err in this regard. It simply did not decide on the truth of the facts contained in Mr. Jean Pierre’s complaint. Rather, it determined that his explanations about the time period in which he filed his complaint were not acceptable. Its discretion to decide whether to deal with a complaint made that option available, and there was no breach of procedural fairness in this context. 

[49]           The Court recognizes that it is possible, in some cases, for decision-makers to fetter their discretion by refusing to exercise it (Ching-Chu at para 25; Djilal at para 36; Toussaint at para 54; Brown at para 34). However, in this case, that is not what the Commission did because the ultimate goal of the investigation was to determine whether it should deal with Mr. Jean Pierre’s complaint. The Commission examined the unique circumstances of the case before making its decision and providing explanations as to why it would not exercise its discretion. The Commission mentioned Mr. Jean Pierre’s written submissions quoted in Ms. Audet’s report. It should be noted again that Mr. Jean Pierre had a number of opportunities to present written submissions to the Commission and to present the relevant facts (Fortster at para 78) before and after Ms. Audet’s report.

[50]           Lastly, Mr. Jean Pierre raises a breach of his Charter-protected right of freedom of expression. He argues that, in deciding whether an administrative decision breaches a Charter right, “the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives. If the decision is disproportionately impairing of the guarantee, it is unreasonable” (Canadian Broadcasting Corporation at para 37). In this case, the jurisprudence has already established that the procedure adopted by the Commission in terms of dismissing a complaint does not breach procedural fairness. Therefore, it follows that it does not breach the right of freedom of expression.

[51]           A page limit imposed by an administrative body cannot be considered an unreasonable limit on freedom of expression. Indeed, there is no breach of freedom of expression where an applicant (as is the case here) can address the Commission a number of times, even if he or she must do it in a specific framework. The right to respond and procedural fairness remain subject to the authority of an administrative tribunal to be master of its own procedures (Beno v Canada (Attorney General), 2002 FCT 142 at para 101; Baier v Alberta, 2007 SCC 31 at para 20; Montréal (City) v 2952-1366 Inc, 2005 SCC 62, at para 79). In To-Thanh-Hien v Canada (Attorney General), 2004 FC 1497 at para 50, the Court concluded that “[i]t is clear that the Applicant had the opportunity to respond to the Supplementary Investigation Report. The fact that she was not permitted to augment her response does not change that fact. A tribunal is entitled to establish limits on what it will accept, as an aspect of managing its own procedures.” Moreover, in Boshra, the Court recognized that the fact that the Commission limits the length of an applicant’s submissions is not a breach of procedural fairness (Boshra at para 50-52).

[52]           For all these reasons, the Court concludes that there was no breach of the rules of procedural fairness in the Commission’s decision. The  tribunal record does not support a finding that Mr. Jean Pierre was unable to submit his position to the Commission effectively.

B.                 Was the Commission’s decision to not deal with Mr. Jean Pierre’s complaint unreasonable?

[53]           Mr. Jean Pierre also submits that the Commission’s decision is unreasonable. First, Mr. Jean Pierre contends that the Commission should have explained in its reasons why it agreed with the investigator’s report and that it had considered Mr. Jean Pierre’s objections. This lack of explanation has a negative impact on the transparency, intelligibility and reasonableness of the decision (Dunsmuir at para 47; Sandhu v Canada (Citizenship and Immigration), 2014 FC 834, at para 18; Baker at para 38-39; Turner v Canada (Attorney General) 2012 FCA 159 [Turner] at para 43, 45; Herbert v Canada (Attorney General), 2008 FC 969 [Herbert] at para 26-27).

[54]           Second, Mr. Jean Pierre submits that the Commission’s interpretation of paragraph 41(1) (e) of the CHRA is unreasonable because it dictates that the date for calculating the one-year time limit begins on the day that the last discriminatory practice occurred. According to Mr. Jean Pierre, the time limit should instead be measured from the date the person becomes aware of the existence of a fault (Van Lyman c Canada, 2011 FC 909 [Van Vlymen] at para 5-12; Bank of Montréal v Bail Ltée, [1992] 2 SCR 554 at para 99). Mr. Jean Pierre also submiits that the complaint was presented within the legal time limits because of the suspension of prescription of the time limits set out in article 2904 of the Civil Code of Québec (Caisse Desjardins de St-Hubert v Canada (Attorney General), 2014 FC 779 at para 31). Finally, according to Mr. Jean Pierre, the Commission fettered its discretion and did not enlarge its mind by failing to take into account all the relevant factors that would have allowed it to consider extending the time limit in this case (R v S (RD), [1997] 3 SCR 484 at para 42).

[55]           The Court does not agree. The Court is satisfied that the Commission’s reasons in this case were sufficient and do not make the Commission’s decision to not deal with Mr. Jean Pierre’s complaint unreasonable. Although the Court would perhaps have not reached the same conclusion, the Court is also of the opinion that the evidence is sufficient to support the Commission’s findings and that the Court’s intervention is not warranted in the circumstances.

(1)               Adequacy of reasons

[56]           The Court first concludes that the Commission’s reasons were adequate in this case and do not make the decision unreasonable. Because the decssion the Commission sent to Mr. Jean Pierre on August 29, 2014, was very short and adopted the recommendation in Ms. Audet’s report, the Court may, for the purposes of judicial review, consider that the investigator’s report forms part of the Commission’s reasons (Arias v Royal Canadian Mounted Police, 2014 CanLII 13155 [Arias] at para 13; Rhéaume v Canada (Attorney General), 2007 FC 919 [Rhéaume] at para 26; Khapar at para 73; Boshra at para 48; Bredin FC at para 57).

[57]           The Supreme Court’s decision in Newfoundland Nurses states that “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (at para 14). Accordingly, the Court must not substitute its reasons for the Commission’s but instead must examine the record to assess the reasonableness of the decision. In other words, “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met” (Newfoundland Nurses at para 16). The appropriate standard is the reasonableness of the decision, not perfection.

[58]           The Court is of the opinion that, considered as a whole, the Commission’s decision took into account all the relevant factors and was supported by a completely reasonable explanation in light of the evidence. It shows the line of analysis that the investigator and the Commission used to reach their conclusion. As such, the reasons for the decision are transparent, intelligible and reflect a review of all the evidence in the record.

[59]           Certainly, the jurisprudence has established that “the Commission must be cautious in determining whether a complaint warrants further inquiry” (Khapar at para 46). In addition, “the Commission should only decline to deal with a complaint in plain and obvious cases, because the Commission’s decision at the screening stage puts an end to the complaint” (Khapar at para 46). However, the Commission also has “ample discretion to decide when not to deal with a complaint at this preliminary stage” (Khapar at para 46).

[60]           In Mr. Jean Pierre’s case, the Commission’s reasons and record allow the Court to understand why it decided to not deal with the complaint filed by Mr. Jean Pierre. The Commission states in the reasons that the explanations provided by Mr. Jean Pierre do not show that he did everything a reasonable person would do in the circumstances to proceed with the complaint and that there was insufficient evidence of his health prior to the filing of the complaint. There is no indication that the Commission failed to consider the submissions or arguments put forward by Mr. Jean Pierre (Turner at para 43; Herbert at para 26-27).

(2)               Commission’s conclusions

[61]           It is also clear from the decision that the Commission considered the investigator’s report and the submissions of the parties. Ms. Audet reviewed but rejected Mr. Jean Pierre’s arguments. Mr. Jean Pierre suggested that there was another incident after May 25, 2012, but that he could not disclose it. The investigator noted it in her report but could not consider it without evidence. The investigator also took note of Mr. Jean Pierre’s submissions that he was not aware of the last discriminatory practice until May 25, 2012, but did not accept them. She explained that the receipt of documents or information as a result of his access to information request did not constitute a discriminatory practice as such. That conclusion is not unreasonable. Indeed, the facts referred to in the documents that Mr. Jean Pierre received date back to the fall of 2011 and to the alleged actions of Mses. Giroux and Clément, which Mr. Jean Pierre was well of. The facts identified by the investigator suggested that the last discriminatory practice dated back to October 2011. The Court considers that this finding is reasonable and supported by the evidence.

[62]           Perhaps Ms. Audet could have referred in more detail to certain statements made by Mr. Jean Pierre in his letter of September 24, 2013, regarding events that allegedly happened after May 2012 (for example, the clerical work that Mr. Jean Pierre was required to do and his superiors’ refusal to accept a recommendation from a supervisor). However, the fact that Ms. Audet did not expressly mention these elements in her report does not mean she did not consider them. An administrative tribunal is presumed to have considered all the evidence in the record and is not required to comment on it in detail (Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86 at para 36). Similarly, an administrative tribunal is not required to mention every argument raised by the parties or to refer to each constituent element (Newfoundland Nurses at para 16). In addition, the Court observes that these references made by Mr. Jean Pierre remain vague and general with respect to both the substance of the alleged acts and when they occurred.

(3)               Calculation of one-year period

[63]           The Court does not agree with Mr. Jean Pierre’s opinion that it was unreasonable on the part of the Commission to begin calculating the one-year period in October 2011, when the last discriminatory practice occurred. Certainly, there may be situations where a complainant is not aware of the discriminatory practice at the time it occured. In some cases, even though an act occurred in the past, the act referred to in the CHRA that triggers the period could arise once the person who is able to file the complaint becomes aware of it.

[64]           In this case however, based on the elements described by Mr. Jean Pierre in support of his complaint, the investigator found that the last relevant discriminatory practice occurred in October 2011, not on the date he received the documents after his access to information request. The investigator added that, where a complainant becomes aware of a discriminatory practice after the fact, the date of the discrimination is when the complainant should have known that he or she was discriminated against. In Mr. Jean Pierre’s case, the evidence showed that Mr. Jean Pierre was describing and referring to a discrimination situation that had lasted for a number of years and had led him to pursue a number of parallel recourses since 2009. The documents disclosed by the access to information request corroborated this state of affairs and also referred to the period of the fall of 2011 and the behaviour of Mses. Giroux and Clément that had already led Mr. Jean Pierre to pursue recourses in respect of them. According to the investigator, Mr. Jean Pierre [translation] “should have known before May 2012 that he was perhaps the subject of discriminatory practices. In fact, it is clear that he realized there was a problem at work prior to May 2012 because he had filed grievances against the [CIC] and a number of complaints with the PSST and the PSLRB beginning in 2009”. The investigator stated that it did not appear that [translation] “the complainant received any additional information in May 2012 about his allegations of discrimination that he should not have known before.”

[65]           Furthermore, in one of his complaints filed with the PSST, Mr. Jean Pierre alleged that Mses. Giroux and Clément and the assessment board had discriminated against him for the position he was seeking. In these circumstances, the Court is of the opinion that the conclusion of the Commission and the investigator is reasonable and supported by the evidence that was before the decision-maker. Accordingly, it was open to the investigator and the Commission to conclude that the last discriminatory practice dated back to October 2011 and that Mr. Jean Pierre was aware of the relevant factual elements regarding these discriminatory practices. In receiving the response to his access to information request in May 2012, he may have learned new information about the actions of the fall of 2011; but that does not make that response a new discriminatory practice under the CHRA. In the Court’s view, it was therefore not unreasonable for the investigator to write that Mr. Jean Pierre should have known prior to May 2012 that he had been discriminated against. This is not a similar situation to the decisions on time limits that Mr. Jean Pierre refers to where the complainants were not aware of the situation giving rise to the recourse they wished to institute (Van Vlymen at para 5-12).

[66]           The investigator’s report contained a number of comments that support the reasons why Mr. Jean Pierre should have been aware of the discriminatory practices and should have filed his complaint prior to May 2013. The Court does not consider this speculation but rather is of the opinion that they are reasonable conclusions on the evidence Ms. Audet had before her. It was sufficiently plain and obvious that Mr. Jean Pierre’s complaint should be dismissed (Bredin FC at para 24).

(4)               Date Mr. Jean Pierre filed his complaint

[67]           Moreover, even if  the Court assumed that the receipt of the response to the access for information request in May 2012 in fact constituted the last discriminatory practice within the meaning of the CHRA, Mr. Jean Pierre still filed his complaint beyond the maximum one-year period from that later date. Indeed, his letter of May 23, 2013, was not a complaint according to the Commission, and Mr. Jean Pierre’s complaint was not, in fact, received until July 9, 2013. Therefore, it also did not comply with the one-year period because it was filed more than six weeks too late.

[68]           Again, it was reasonable for the investigator and the Commission to determine that Mr. Jean Pierre did not file the complaint in an acceptable format until July 9, 2013. In this case, even though the Court may not have reached the same conclusion, it was open to the Commission to determine that it did not really receive Mr. Jean Pierre’s complaint until July 9, 2013, after the one-year time limit had expired. Moreover, in Good, the Court indicated, in discussing Johnston v Canada Mortgage and Housing Corp., 2004 FC 918, that “[t]he date when the complainant first contacts the Commission regarding a possible complaint does not stop the Clock for the one-year time limit”  (Good at para 26). In addition, in Rhéaume, at paragraph 33, the Court determined that a simple earlier correspondence with the Commission regarding the applicant’s intention to file a complaint did not constitute a complaint under the CHRA.

[69]           In this case, the Commission reasonably concluded that Mr. Jean Pierre’s formal complaint was received on July 9, 2013 (when he completed the usual requirements for a complaint), not May 23, 2013 (when Mr. Jean Pierre’s letter did not contain all the necessary information for a complaint in a form acceptable to the Commission). A complaint must be in a form acceptable to the Commission (Rhéaume at para 33, 37), and it was incumbent on Mr. Jean Pierre to comply with this requirement. It is clear in the circumstances that the Commission did not recognize the letter of May 23, 2013, as an acceptable complaint.

[70]           Accordingly, even if we adopt Mr. Jean Pierre’s dates, his complaint was also out of time under paragraph 41(1) (e) of the CHRA.

[71]           Mr. Jean Pierre also maintains that the Commission should have exercised its discretion to deal with the complaint even though it was late. The Commission decided to not exercise its discretion in the circumstances. Again, it was open to the Commission to do so. The Court is satisfied that this decision cannot be characterized as unreasonable because the Commission considered Mr. Jean Pierre’s submissions and explanations but simply did not accept them. The Commission’s decision on this point is supported by reasons and falls within a range of possible, acceptable outcomes (Dunsmuir at para 47). Once again, even if the Court may have preferred a different conclusion, that is not sufficient to make the Commission’s conclusion unreasonable.

[72]           The investigator also mentioned in her report that Mr. Jean Pierre had indicated that his work situation was causing health problems. And in its decision, the Commission expressly referred to Mr. Jean Pierre’s health problems but added that the evidence was insufficient to conclude that his health prevented him from making a complaint to the Commission. Thus, both the investigator and the Commission examined Mr. Jean Pierre’s allegation that he was incapacitated during part of the period preceding the filing of his complaint, but it did not accept the allegation. In the absence of evidence from Mr. Jean Pierre that this incapacity affected his ability to file a complaint within the prescribed time limit, this conclusion was not unreasonable. It is, in fact, well established that it is not for the Court to re-examine the evidence and reweigh its probative value on a judicial review (Gandhi at para 70).

[73]           The Commission considered the relevant factors in making its decision. Even though Mr. Jean Pierre claimed that he only became aware of the last discriminatory practice on May 25, 2012, it was reasonable for the investigator to determine that this factor did not justify an extension because Mr. Jean Pierre had nonetheless worked at resolving his problems in the workplace. The investigator did not accept Mr. Jean Pierre’s explanation that he feared reprisals from his employer because this was the fourth recourse he had taken against his employer regarding the allegations of discrimination that he says he suffered (and in particular the actions of Mses. Giroux and Clément). Mr. Jean Pierre had indeed filed complaints with the PSLRB and the CHRT, as Ms. Audet noted in her report. The Court is not persuaded that the conclusion of the investigator and the Commission in this regard does not fall within a range of possible, acceptable outcomes in the circumstances.

[74]           Moreover, the use of another recourse does not absolve complainants of their responsibility to file a complaint within the prescribed time limit (Arias at para 14).

[75]           Last, Mr. Jean Pierre cannot claim that his recourse was suspended under article 2904 of the Civil Code of Québec. Indeed, Mr. Jean Pierre cannot advance this new argument that his complaint was filed within the legal time limit because of the suspension of the prescription of the time period under article 2904 of the Civil Code of Québec because he did not raise this argument before the Commission (Alberta Teachers at para 22). He is estopped from doing so before this Court.

[76]           The Court is accordingly of the opinion that, in light of the evidence that was before the Commission, the decision to not deal with Mr. Jean Pierre’s complaint falls within a range of reasonable, possible outcomes in respect of the facts and law.

IV.             Conclusion

[77]           For all the foregoing reasons, Mr. Jean Pierre’s application for judicial review is dismissed. The Commission’s decision to not deal with Mr. Jean Pierre’s complaint is transparent and intelligible, and falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. In addition, in the process, the Commission complied with Mr. Jean Pierre’s right to procedural fairness.

JUDGMENT

THE COURT ORDERS AND ADJUDGES as follows:

1. The application for judicial review is dismissed, with costs.
2. The style of cause is amended to replace “Citizenship and Immigration Canada” with “Canada (Attorney General)” as the respondent.

“Denis Gascon”

Certified true translation

Mary Jo Egan, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		T-2038-14
STYLE OF CAUSE:		GANDHI JEAN PIERRE v CITIZENSHIP AND IMMIGRATION CANADA
PLACE OF HEARING:	mONTRÉAL, QUEBEC
DATE OF HEARING:	JUNE 25, 2015
JUDGMENT AND REASONS:	GASCON J.
DATED:	DECEMBER 29, 2015

APPEARANCES:

Gandhi Jean Pierre	FOR THE APPLICANT Self-represented
Chantal Labonté	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Gandhi Jean Pierre Montréal, Quebec	FOR THE APPLICANT Self-represented
William F. Pentney Deputy Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENT