Federal Court Decisions

Date: 20061027

Docket: T-458-05

Citation: 2006 FC 1304

Ottawa, Ontario, October 27, 2006

PRESENT:     The Honourable Mr. Justice O'Reilly

BETWEEN:

MING FUNG ALOYSIUS CHENG

Applicant

and

CANADA POST CORPORATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               Mr. Ming Fung Cheng began working for Canada Post Corporation in 1987. In 1996, he injured his neck and back on the job. As a result, he was absent from the workplace for several months in 1997-98, and for a longer period from 1999 to 2003. In 2004, he complained to the Canadian Human Rights Commission that he was harassed in the workplace and that Canada Post had failed to accommodate his physical disability. In 2005, the Commission informed Mr. Cheng that it would not deal with any complaints arising before April 2003, and that it would not deal with his remaining complaints until he had exhausted the other remedies available to him. Mr. Cheng argues that the Commission erred in not responding to all of his complaints. However, I can find no basis for overturning the Commission’s decision and must, therefore, dismiss this application for judicial review.

I.           Issues

1. Did the Commission err when it decided not to deal with matters arising before April 2003?
   
   
2. Did the Commission err in requiring Mr. Cheng to exhaust his other remedies before it would consider his complaint?
   
   

II.  Analysis

[2]               Before addressing Mr. Cheng’s specific arguments, I must note that the Commission is accorded a great deal of deference in deciding whether to deal with a complaint: Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), at para. 38.

1.  Did the Commission err when it decided not to deal with matters arising before April 2003?

[3]               Mr. Cheng filed his complaint in April 2004. The Commission may decline to deal with allegations occurring more than one year before the complaint was filed: s. 41(1)(e), Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA).

[4]               Mr. Cheng argues that the Commission should have recognized that his complaint related to a continuous series of events and, accordingly, that matters occurring before the usual one-year time frame could not be severed from more recent developments. Further, he argues that he delayed filing his complaint while he was pursuing other remedies – namely, the grievance process under his collective bargaining agreement – as he was obliged to do. He suggests it would be unfair, in effect, to penalize him for taking the steps he was bound to follow.

[5]               When it decided to deal only with those matters arising after April 2003, the Commission followed the recommendation of an investigator assigned to Mr. Cheng’s file. The investigator reviewed all of the circumstances relevant to Mr. Cheng’s complaints, including the particulars of all of the grievance procedures Mr. Cheng had initiated. The investigator explained the basis of his recommendation by noting that there had been “two significant breaks in the continuum of alleged discriminatory incidents since 1997”.

[6]               Having reviewed Mr. Cheng’s complaint, I cannot find the Commission’s decision to be unreasonable. It is clear that Mr. Cheng was concerned about how he was treated after his initial injury.  He described the conduct of his employer during 1997, and the reasons for his absence from the workplace from October 1997 to May 1998. This appears to be a discrete set of circumstances and concerns. There follows a second category of complaints dealing with his employer’s conduct in 1998 and 1999, and his absence from the workplace from 1999-2003. Again, this seems to be a distinct set of concerns. Finally, Mr. Cheng’s complaint covers a series of events after his return to the workplace in 2003, beginning particularly in April 2003.

[7]               It appears to me that there are indeed breaks in the continuum of events in the workplace, making the earlier matters severable from the later ones. They involved different people, facilities and circumstances. They would involve different witnesses, many of whom had left the workplace, according to Canada Post. Further, they had already been the subject of numerous grievances, some of which remained outstanding at the time the Commission was considering Mr. Cheng’s complaint. In the circumstances, I cannot find that the Commission’s decision to deal only with the most recent events – those occurring during the year prior to the filing of his complaint – was unreasonable.

2.  Did the Commission err in requiring Mr. Cheng to exhaust his other remedies before it would consider his complaint?

[8]               The Commission may decline to deal with a complaint when there are other remedies reasonably available to the complainant (s. 41(1)(a), CHRA).

[9]               Again, the investigator explained his recommendation. He noted that, if it turns out at a later point that the relief Mr. Cheng sought by way of the grievance process relied is unavailable, the Commission could deal with his complaint then. In other words, Mr. Cheng will not be prejudiced if the Commission deals with his complaint at a later point.

[10]           I cannot find this approach to be unreasonable. Mr. Cheng’s complaint remains open while he pursues his grievance. I note that the grievance was filed in August 2004 and was denied at the first level. Presumably, further steps have been taken by now. If Mr. Cheng has not obtained any relief under the grievance process, it falls to the Commission to consider the merits of his complaint, as it undertook to do.

JUDGMENT

THIS COURT’S ORDER that:

1.                  The application for judicial review is dismissed;

“James W. O’Reilly”

Annex

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-458-05

STYLE OF CAUSE:                          CHENG v. CANADA POST CORPORATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      May 29, 2006

REASONS FOR JUDGMENT

 AND JUDGMENT:                         O’REILLY J.

DATED:                                             October 27, 2006

APPEARANCES:

SOLICITORS OF RECORD: