Ottawa, Ontario, this 10th day of November, 2005
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
Applicant
and
THE CANADIAN HUMAN RIGHTS COMMISSION
and THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] The Canadian Human Rights Commission refused to deal with Mrs. Tamachi's complaint of discrimination by Human Resources Development Canada on the grounds that it was filed too late. The law does not oblige the Commission to deal with complaints of events that occurred more than one year earlier. Mrs. Tamachi has sought judicial review of that decision on the basis that her complaint to the Commission was timely when it was filed in October 2003. Subsidiarily, if the complaint was filed too late, the Commission had discretion to extend the time and its refusal to do so was patently unreasonable.
[2] In August 2000, Human Resources Development Canada denied Mrs. Tamachi's application for Canada Pension Plan disability benefits because she had not made enough contributions. She sought redress by following the review and appeal procedures prescribed by the Canada Pension Plan Act. It was only in August 2003 that the Pension Appeals Board made a final negative decision against her. She filed her complaint with the Commission two months later. Although the merits of that complaint are not before the Court, by way of background it should be stated that her major, but not only, complaint is that she was denied a pension because she is married. She believes she has been discriminated against because if she were divorced there could have been credit splitting with her husband, which would have made up her personal short fall in contributions.
ISSUES
[3] The prime issue is whether the one year contemplated by section 41 of the Canadian Human Rights Act (the Act) began to run in August 2000 when her application for a disability pension was initially denied or from August 2003 when the Pension Appeals Board dismissed her appeal.
[4] Subjected to section 40 of the Act, which has no application here, the Commission shall deal with any complaint unless it appears to it that:
| 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. |
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. |
[5] If Mrs. Tamachi's complaint was not timely when filed, then consideration will have to be given to whether the Commission should have, in its discretion, extended the time.
DISCUSSION
[6] Although it does not say so in its one page decision, it is clear from the record, and asserted during argument at the hearing, that the Commission considered that the one year began to run in August 2000, when Mrs. Tamachi's claim was initially refused by Human Resources Development Canada.
[7] We have to consider what recourses were available to Mrs. Tamachi at that time. Had she sought judicial review from this Court, she likely would have been turned down on the grounds that she had not exhausted the review and appeal procedures available to her under the Canada Pension Plan Act. The Supreme Court has held that Federal Boards and Tribunals are normally entitled to deal with all issues raised, including Charter issues, even if the governing Statute does not oust the inherent superintending power of the Court. Courts should not get involved, except when other recourses are exhausted. As Bastarache J. speaking the Court said in Nova Scotia(Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504 at paragraph 29: "...Canadians should be entitled to assert the rights and freedoms that Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts."
[8] More recently in Vaughan v. Canada, [2005] 1 S.C.R. 146, the Supreme Court, in dealing with the Public Service Staff Relations Act, concluded that the language of the Statute, and the context of the dispute did not amount to an explicit ouster of Federal Court jurisdiction. Nevertheless, it held that the Court should not, as a matter of judicial discretion, get involved. The Commission is in no different position.
[9] Following the initial unfavourable decision, Mrs. Tamachi not only did what she was entitled to do, but which logic demanded. She sought reconsideration from the Minister. When she did not succeed, she went to a Review Tribunal. Having failed there, she sought and obtained leave to appeal to the Pension Appeals Board. It must be kept in mind that under section 84 of the Canada Pension Plan Act, both the Review Tribunal and the Pension Appeals Board, unlike the Federal Court on judicial review, are entitled to determine any question of law or fact as to whether any benefit was payable and whether she was eligible, as she claims, for a division of "unadjusted pensionable earnings". If she had succeeded, the Review Tribunal or the Pension Appeals Board would have rendered the decision she claims Human Resources Development Canada should have rendered in the first place. If she received her pension because her husband was allowed to transfer some of his contributions to her account, she would have had no basis of complaining that she was discriminated against because she is married.
[10] Notwithstanding the review and appeal process she was involved in until August 2003, the Commission states that she should have filed a complaint with it by August 2001. However, had she done so it would have been open to the Commission to refuse to deal with her complaint under subsections 41(a) and (b) of the Act because she had not exhausted grievance or review procedures otherwise reasonably available and because the complaint could be more appropriately dealt with initially or completely under the CanadaPension Plan Act.
[11] Mrs. Tamachi finds herself in an impossible position. If she complained before the Pension Appeals Board decision, she would have complained too soon. Having waited for that decision, she is now told that she complained too late. However, it has to be said that if she had filed within one year of the initial decision and if she had been turned down, the Commission would have been hard pressed not to extend the time limits. However, there is no reason for Mrs. Tamachi to rely upon a discretionary decision if, as a matter of law, she was entitled to do what she did.
STANDARD OF REVIEW
[12] It must be borne in mind that the question is not whether the Commission in its discretion should have extended the normal one year delay, but rather when the one year delay began to run. In order to determine that question, one has to take into account the necessary elements of her complaint and the facts. This is a mixed question of fact and law. Based on the decisions of the Supreme Court in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, I consider the standard of review is likely reasonableness simpliciter. It is certainly not the standard of patent unreasonableness, and it is not necessary in the circumstances of this case to consider whether the standard should be correctness.
[13] In my view, for the reasons above stated, the decision was not reasonable.
[14] The Commission relies upon a pre-Vaughan decision of this Court, Zavery v. Canada(Human Resources Development) (2004), 256 F.T.R. 124; F.C.J. No. 1122 (QL). That decision was cited for the proposition that the determination of timeliness is a discretionary decision which should not be set aside unless patently unreasonable. However, the Court was dealing with the issue of whether the Commission should have extended the year, not when time began to run. Mr. Zavery was also pursuing a process through the Privacy Commissioner which the Court considered irrelevant. However, in this case the review and appeal process pursued by Mrs. Tamachi was not irrelevant because in this case, unlike Zavery, a negative decision on her pension application was a constituent element of the alleged discrimination.
[15] It was also the issue of the discretion of the Commission to extend the year, rather than the determination when it began to run which was before the Court in Good v. Attorney General of Canada, 2005 FC 1276, [2005] F.C.J. No. 1556 (QL).
[16] Following the hearing on 8 November 2005, I informed Mrs. Tamachi that I would grant her judicial review and would issue reasons. Delays to appeal only run from the filing of this order and reasons. Therefore, as Mrs. Tamachi is not represented by counsel, no costs in the form of fees shall be granted. However, she is entitled to reasonable disbursements in accordance with Tariff B. Reasonable disbursements are only those necessarily incurred in pursuing the narrow issues before this Court, which were the starting point of the one year contemplated by section 41 of the Act, and the Commission's discretion to extend that time. Mrs. Tamachi had difficulty refraining from dealing with issues extraneous to this judicial review, such as whether she is actually entitled to a pension. For example, she gave notice of a constitutional question. This judicial review raises no constitutional question.
ORDER
THIS COURT HEREBY ORDERS that:
1. Judicial review of the decision of the Canadian Human Rights Commission dated 13 April 2004 is granted;
2. The matter is referred back to the Commission to be dealt with in accordance with these reasons;
3. The applicant shall have her costs, limited to reasonable disbursements.
"Sean Harrington"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1082-04
STYLE OF CAUSE: Mrs. Mumtajbanu Tamachi v. The Canadian Human Rights Commission and The Minister of Justice and Attorney General of Canada
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 7, 2005
AND ORDER: HARRINGTON J.
APPEARANCES:
| Mumtajbanu Tamachi |
(Self-Represented) FOR THE APPLICANT |
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| Tania Nolet Eric Peterson |
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
| Mumtajbanu Tamachi Peterborough, Ontario |
(Self-Represented) FOR THE APPLICANT |
|
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| John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENTS |