Federal Court Decisions

 

 

Date: 20061123

Docket: T-1145-05

T-1146-05

 

Citation: 2006 FC 1424

Ottawa, Ontario, November 23, 2006

PRESENT:     The Honourable Barry Strayer

 

 

BETWEEN:

JUNE STEVENS

Applicant(s)

and

 

ATTORNEY GENERAL OF CANADA

Respondent(s)

 

BETWEEN:

JACKI MCCALLUM

Applicant(s)

and

 

CANADIAN HUMAN RIGHTS COMMISSION

Respondent(s)

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

Introduction

[1]               These two applications for judicial review were heard together and involve almost identical facts.  In each case judicial review is sought of a decision of the Canadian Human Rights Commission (Commission) dated June 1, 2005, pursuant to paragraph 41(1)(e) of the Canadian Human Right Act (Act), R.S., 1985, c. H-6, not to deal with the complaint of the Applicants because “the complaint is based on acts which occurred more than one year before the filing of the complaint”. 

 

Facts

[2]               The Applicants set out the following allegations in their complaints.  They are both Applicants are employees of the Canadian Food Inspection Agency (CFIA) in Calgary as Fair Labelling and Food Safety Inspectors.  Like other such inspectors they had been transferred to the CFIA from Industry Canada where they had had the classification of PM-03.  Certain PM-03s in the Edmonton, Vancouver and Victoria Offices of the CFIA filed a grievance for acting pay arguing that they were doing the duties of a BI-02 which was a superior classification for Manufacturer Food Specialists.  According to the Applicants they were invited to join this grievance but declined at the time because they felt that they were not in an “acting position” for a different job but rather that their enhanced duties would in due course be accurately reflected in a new job description.  At that point the occupants of these positions in the Edmonton, Vancouver and Victoria Offices were all male.  In July, 2002 this grievance was successful and resulted in elevated pay for those who grieved.  Subsequently two male inspectors from Kelowna who had filed separate grievances were also given the same settlement as were male colleagues from Edmonton and Vancouver who had never filed a grievance.

 

[3]               The Applicants say that they also filed grievances on September 5, 2002 to receive the same benefits as the above-mentioned colleagues.  They only learned on January 5, 2004 that a male and female colleague in Winnipeg were given similar or better settlements compared to those of July, 2002.  As a result these two Applicants are now the only ones in the West being paid at the EG-03 classification which is inferior to the other Food Inspectors in the whole of the Western region.

 

[4]               The Applicants consider that they are being discriminated against on the basis of gender as it is only the inspectors of the Calgary Office, which has only female inspectors, in the Western region not to receive the benefits of reclassification and compensation.

 

[5]               The two Applicants each filed a complaint with the Commission setting out the above facts.  The complaints were similarly worded and each ended with this paragraph:

The delay in filing this complaint from when the settlement was first awarded in July 2002 is because we were not immediately made aware of all details and because we have [been] trying, unsuccessfully, to resolve this issue internally through the previously mentioned grievances and through letters to West Area Executive Director.

 

 

[6]               In her affidavit June Stevens says that her complaint was dated December 21, 2004.  The complaint of Jacki McCallum is dated January 4, 2005.  The Commission’s initial and identical response to each complaint was signed by its Deputy Secretary General and dated February 16, 2005.  The letter refers to the complaints as being filed on January 10, 2005 (although there is no affidavit evidence to this effect).  It states:

… Your complaint is based on alleged acts that took place from July 2002 to September 2002.  You initially contacted the Commission on November 26, 2004, over two years after the last alleged act of discrimination.  Section 41(1)(e) of the CHRA states that the Commission may refuse to deal with a complaint where 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.  Your complaint will be presented to the Commission with a recommendation that, pursuant to section 41(1)(e) of the CHRA, the Commission not deal with the complaint.

 

Paragraph 41(1)(e) of the Act provides as follows:

 

[7]               In reply to this response June Stevens wrote a letter to the Commission dated February 18, 2005 in which she stated the following:

I must apologize for my initial complaint not being clearer with respect to the dates of the incidents.  My complaint is not specifically with the mediated settlement which occurred in July 2002.  It is with respect to the actions of the Agency subsequent to this settlement.

 

This includes awarding the settlement to two male colleagues of which we were not aware until later in 2003 and the appointing of other colleagues to acting positions of which we were not aware until January 2004.  It was the sum of these actions that prompted this complaint.  Consequently the date of the alleged conduct should be July 2002 to January 2004, if not ongoing.

 

The grievance we filed in September 2002 was based on the mediated settlement while this complaint is based [on] remedies being offered to our colleagues and not to us.

 

 

On February 22, 2005 Jacki McCallum sent a virtually identical letter to the Commission.

 

[8]               In the meantime, the CFIA had been advised by the Commission of the complaints and had been invited to make submissions which it did on March 2, 2005 in respect of each complaint.  In each case, the CFIA simply stated its agreement with the “recommendation” of Commission staff that it should not proceed with these complaints because of them being out of time by virtue of paragraph 41(1)(e).  CFIA also mentioned that the complainants had filed grievances with the employer as well.

 

[9]               The two complainants each sent a reply to the Commission responding to CFIA’s submissions.  June Stevens’ letter is dated March 31, 2005 and Jacki McCallum’s letter is dated April 5, 2005.  The letters are virtually identical.  The critical paragraphs are as follows:

The Agency mentions in their reply that we have availed ourselves of the right to file grievances.  We, reiterate, that this complaint is based on the actions of the Agency subsequent to the filing of these grievances.  In addition, filing of these grievances does not preclude us from the right to pursue this course of action.

 

We understand that the Commission may await the outcome of these grievances prior to proceeding with our complaint.  However, were we to wait for the outcome of the grievances before filing this complaint, we would exceed the time limitation for filing.

 

We wrote Mr. Phil Amundson, Executive Director West Area several letters over a period of many months asking why acting assignments and settlements were [given] to everyone in the West Area except us.  It wasn’t until when we copied the President and Executive Director of Operations that we were afforded the courtesy of a reply and that reply only deferred us to the grievances.

 

Had we received a more timely reply from Mr. [Amundson] , we would have been able to file this complaint much sooner.  This complaint was filed only after trying to resolve this directly with our employer, who has chosen not to provide any type of explanation for our existing situation.  This complaint is not frivolous and was filed only after much contemplation, deliberation and review of the facts before us. 

 

 

[10]           On June 1, 2005 the Commission issued its decision in each case in identical terms.  The operative part of the decision is as follows:

Before rendering its decision, the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report.  After examining this information, the Commission decided, pursuant to paragraph 41(1)(e) of the Canadian Human Rights Act, not to deal with the complaint because:

 

·                     the complaint is based on acts which occurred more than one year before the filing of the complaint.

 

Accordingly, the file on this matter has now been closed.

 

 

[11]           It is this decision which is under review.  The Applicants contend that:

(1)          the Commission wrongly applied paragraph 41(1)(e) of the Act by wrongly identifying the last act or omission as being in September, 2002, the date when the complainants filed their grievances; and

(2)          the Commission failed to exercise its discretion under that paragraph to allow a longer period of time for the filing of their complaints.

 

Analysis

[12]           I must first consider what standard of review applies to judicial review of each of these decisions in question.  Some seven weeks ago, Justice Edmond Blanchard of this Court considered at length the standard of review of identical questions, in Bredin v. Canada (Attorney General), [2006] F.C.J. No. 1478.  Notwithstanding that a judicial review judge is expected to consider de novo the standard of review in every case, I do not think that more Canadian trees need to be devoted to this exercise in the present case.  The precise nature of the questions to be decided, and the statutory authority under which they were to be made, were identical in Bredin, above, to this case and I do not believe I can improve on the thoroughness of Justice Blanchard’s analysis.  In short, he concluded that with respect to the first question, that is what act or omission would start the time limit in paragraph 41(1)(e) to run, the standard is that of reasonableness.  With respect to the second, the exercise or failure to exercise the Commission’s discretion, the standard of review should be patent unreasonableness.  (See Bredin, above, at para. 47.)

 

[13]           I respectfully adopt his reasoning and his conclusions. 

 

[14]           With respect to the first decision in question, namely the selection of the last acts or omissions relevant to the complaint for the purpose of starting the time limitation to run, I have concluded that the decision of the Commission here is unreasonable.  In its decision of June 1, 2005 the Commission stated that it based its conclusion on “the report disclosed to you” and any submissions filed in response to that report.  The “report” in question appears to be the letter from the Deputy Secretary General of the Commission to the complainants dated February 16, 2005 in which it is stated that “your complaint is based on alleged acts that took place from July 2002 to September 2002”.  Yet the complainants in their subsequent letters (Stevens, February 18, 2005 and McCallum, February 23, 2005) as quoted above explained that their complaints were not about the mediated settlement of July, 2002 nor about their own grievances filed in September, 2002 which had not in fact been dealt with as of yet.  In this and in their subsequent letters (Stevens, March 31, 2005 and McCallum, April 4, 2005) as quoted above they explained that their complaint was based on their inability to get any satisfactory answer from their employer as to why unlike all the male inspectors and one other female inspector in Winnipeg they, in the only Western Office staffed by female inspectors, had not been given the reclassification and/or compensation.  It is their contention that it was only by January 5, 2004, that they learned that Winnipeg, the only remaining Agency office in the West not to get a settlement, had got one.  It is their contention that it was only then that they finally realized that as female inspectors in Calgary they would not get a favourable treatment.  It is not for me to determine the validity of these allegations but it was the Commission’s duty to consider them which it has not done.  In its decision of June 1, 2005 it only referred to the “report” of its Deputy Secretary General of February 16, 2005 and to submissions received.  That report focused entirely on the events of 2002 without any regard to subsequent events and the Commission, while it says that it considered these submissions of the complainants, shows no evidence of ever having turned its mind to the complainants’ allegations covering the period up to January, 2005.  Thus the Commission made a decision without considering important relevant factors and such decision is unreasonable.

 

[15]           It is true that in the Bredin case, above, the Commission’s refusal to deal with a complaint due to the passage of time was held to be reasonable.  In that case, however, it was found, based on an investigation by the Commission and the submissions of the parties, that a clear decision had been made and communicated to the complainant and she did not file her complaint until some two years later.  That is distinguishable from the present case where, in spite of many inquiries by the complainants to the West Area Executive Director of the Agency, he failed to respond for a long time and then finally told them they should content themselves with their grievances.  The complainants argue that even then it was not clear to them that they were going to be excluded from favourable treatment until they found out what had happened at the Winnipeg Office in January, 2004. 

 

[16]           With respect to the second decision, involving the failure by the Commission to exercise its discretion under paragraph 41(1)(e) to extend the time limit for more than a year, I am satisfied that this was patently unreasonable in that there is no evidence that the Commission ever considered its duty to exercise its discretion.  There is no mention whatsoever in its decision of June 1, 2005 of the discretionary power.  Further, in the “report” which the Commission supposedly relied on there is no discussion as to why the discretion should not be exercised in favour of these complainants. 

 

[17]           The Respondent now argues that, even accepting that the last relevant act or omission was the decision taken by the Agency with respect to its Winnipeg Office, communicated to the complainants on January 5, 2004, they were still out of time in filing a complaint which the Commission says did not reach it until January 10, 2005.  If the Commission genuinely puts it mind to the complaint as it has been explained by the complainants, and if it should determine that the last relevant acts or omissions were on January 5, 2004 or indeed some time earlier, it is the obligation of the Commission to exercise consciously its discretion as to whether to extend the time.  In exercising this discretion it must balance the magnitude of any delay against the deprival of these complainants of any right to have their complaint of gender discrimination considered by the Commission.  It is also incumbent upon the Commission in exercising this discretion to consider whether any prejudice has been caused to other parties by such delay.  In its submission of March 2, 2005 the CFIA, while agreeing with the suggestion of the Commission that the complaint should be rejected for lack of timeliness, does not so much as suggest that it might suffer any prejudice by the delay of a few days or a few months.  The Commission might also wish to take into account, in balancing delays against injustice, the time which the CFIA has taken since July, 2002 to seek equity amongst its Food Inspection Officers in the Western region.

Disposition

[18]           The application for judicial review will therefore be allowed with costs.  The decisions of the Commission of June 1, 2005 in respect of each Applicant shall be set aside and the matters referred back to the Commission for reconsideration in accordance with these reasons. 

 

 

JUDGMENT

            THIS COURT ADJUDGES that the decisions of the Canadian Human Rights Commission of June 1, 2005 be set aside, and the matters referred back to the Commission for reconsideration in accordance with these reasons. 

 

            THIS COURT FURTHER ADJUDGES that the Applicants are awarded costs.

 

 

 

“ B. L. Strayer ”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1145-05

 

STYLE OF CAUSE:                          JUNE STEVENS v. ATTORNEY GENERAL OF CANADA

 

 

PLACE OF HEARING:                    Calgary, Alberta

 

DATE OF HEARING:                      November 9, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Justice Strayer

 

DATED:                                             November 23, 2006

 

 

 

APPEARANCES:

 

Ms. June Stevens	APPLICANT
Ms. Stacey Dej	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Ms. June Stevens Calgary, AB	APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Edmonton, AB	FOR THE RESPONDENT

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1146-05

 

STYLE OF CAUSE:                          JACKI MCCALLUM v. ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                    Calgary, Alberta

 

DATE OF HEARING:                      November 9, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Justice Strayer

 

DATED:                                             November 23, 2006

 

 

 

APPEARANCES:

 

Ms. Jacki McCallum	APPLICANT
Ms. Stacey Dej	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Ms. Jacki McCallum Calgary, AB	APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Edmonton, AB	FOR THE RESPONDENT