Date: 20020109
Docket: A-81-01
Neutral citation: 2002 FCA 4
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
MINISTER OF NATIONAL REVENUE
Appellant
and
MARIANNA GEE
Respondent
Heard at Toronto, Ontario on Thursday, November 22, 2001
JUDGMENT delivered at Ottawa, Ontario on Wednesday, January 9, 2002
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A.
Date: 20020109
Docket: A-81-01
Neutral citation: 2002 FCA 4
CORAM: STRAYER J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
MINISTER OF NATIONAL REVENUE
Appellant
and
MARIANNA GEE
Respondent
REASONS FOR JUDGMENT
STRAYER J.A.
Introduction
[1] This appeal involves an issue as to the extent to which, if any, the Canadian Human Rights Commission may take into account a settlement between an employer and an employee of a claim of harassment prior to the employee filing a complaint with the Commission concerning the same matter.
Facts
[2] The respondent commenced work with the Department of National Revenue, the appellant herein, in 1989. From the commencement of employment until late summer 1991 her immediate supervisor was Douglas McLean. During this time she identified a number of instances of alleged harassment or discriminatory behaviour by her supervisor. She pursued various internal remedies and also filed a complaint with the Canadian Human Rights Commission ("CHRC") in February, 1993. The CHRC dismissed that complaint under paragraph 41(1)(e) of the Canadian Human Rights Act (RS 1985, c. H-6) on the basis that more than one year had elapsed since the events of which she complained. In December 1993 she filed an internal harassment complaint against McLean, an internal investigation was conducted, and of the 24 allegations 8 were determined to be well-founded: 6 as harassment, 1 as discrimination, and 1 as abuse of authority. (See applications judge's findings paras. 6, 7).She subsequently filed another complaint with the CHRC in January, 1995 providing further information from the internal investigations. In February, 1995 the CHRC again dismissed her complaint on the basis that more than one year had elapsed from the events complained of and that, as remedial action had been taken by the employer an extension of the time limit under paragraph 41(1)(e) was not warranted.
[3] The respondent was nevertheless not satisfied with the steps being taken by the employer to meet her concerns. Those concerns arose out of the fact that she had applied for an AU-03 position in October, 1991. She was placed fifth on the list of those eligible for appointment which was not high enough to gain her a permanent appointment. In her view she was not placed higher because of discriminatory comments on her evaluation made by her supervisor. As no remedy satisfactory to the respondent had been provided, a meeting was held in October of 1995 with the new Assistant Deputy Minister, the Regional Staff Relations Officer, and a representative of her union, the Professional Institute of Public Servants. This meeting resulted in a Memorandum of Agreement which provided as follows:
MEMORANDUM OF AGREEMENT
BETWEEN: Mrs. Marianna Gee and the Department of National Revenue
(hereafter referred to as Revenue Canada)
Revenue Canada recognizes the personal difficulties endured by Mrs. Marianna Gee that prompted her to bring a complaint of personal harassment against her former supervisor, Mr. Douglas McLean. The parties, as outlined above, agree to the resolution of all matters arising out of Mrs. Gee's complaint of harassment and the results of the investigation, under the following terms of settlement:
1. Revenue Canada agrees, subject to the right of appeal pursuant to the Public Service Employment Act, to appoint Mrs. Gee to a position of Audit Unit Manager, AU 03, without competition.
2. Revenue Canada further agrees to grant Mrs. Gee twenty (20) days of "Other Leave With Pay".
3. The parties agree that this settlement will be kept confidential and will be applied without publicity or precedent, and will not prejudice any position that the parties may adopt in the future in similar and/or identical matters.
4. Mrs. Gee accepts the terms of this settlement as full and final compensation and satisfaction for the incidents alleged in the said complaint, and forever releases and discharges Revenue Canada from any other claims or cause of action arising from these facts. (Appeal Book p. 147)
This Memorandum was signed by the Assistant Deputy Minister on behalf of the appellant and by the respondent, both in November, 1995. The union representative never did sign the agreement.
[4] It will be noted that the Agreement acknowledged "the personal difficulties endured by Mrs. Marianna Gee . . .", it witnessed that the parties agreed "to the resolution of all matters arising out of Mrs. Gee's complaint of harassment . . .", and it agreed that the appellant would appoint the respondent to a position of Audit Unit Manager, AU 03 without competition, but "subject to the right of appeal pursuant to the Public Service Employment Act . ..".
[5] In fact there were subsequently 33 appeals launched under the Public Service Employment Act by other employees against the respondent's appointment without competition to the AU 03 position. Before the Public Service Commission Appeal Board the appellant department conceded that it could not defend the appointment. To do so it would have to be able to conduct a formal assessment of the respondent's qualifications compared with those of the 33 opposing appellants. At this same hearing the respondent's union, the Professional Institute of the Public Service supported the appellants against the respondent, arguing that discrimination or harassment (which they admitted occurred here) should not be cured by making an appointment without competition which would be contrary to the merit principle. As a result on May 7, 1996 the Board allowed the appeals. The respondent lost her AU-03 status and reverted to an AU-02 position at a lower salary. She immediately went on stress leave after the Board's decision. In September, 1996 she was transferred to a position with Consulting and Audit Canada where she worked at a lesser rate of pay than the AU-03 position would have provided until April, 1998 when she was promoted to a position as Chief Auditor with the result that she was then earning more than she would have earned in the employ of the appellant department in the AU-03 position which she had temporarily occupied and then lost.
[6] On April 15, 1998 the respondent filed another complaint with the CHRC, again complaining of discrimination practised against her by the appellant department after her original appointment there in November, 1989. She reiterated the substance of previous complaints to the CHRC including her failure to be appointed to an AU-03 position in 1991 due in her view to a discriminatory evaluation. She summarized her pursuit of internal remedies including grievances and described the meeting in October, 1995 at which there was an understanding later reduced to the Memorandum of Agreement quoted above. She said that at that meeting a departmental representative assured her that the department would defend her appointment without competition should there be any appeals. She then described the positions taken at the Appeal Board hearing as set out above, her subsequent demotion to an AU-02 position and her deployment to a permanent position in Consulting and Audit Canada.
[7] This complaint was investigated by a CHRC investigator who submitted a report which recommended as follows:
It is recommended that the Commission deal with this complaint even though the act complained of occurred more than one year before the receipt of the complaint.
It is recommended that no further proceedings are warranted by the Commission as the situation that gave rise to the complaint has been redressed in that a Memorandum of Agreement has been signed between the complainant and the respondent.
(Appeal Book p. 238)
This report was given to both parties who made representations in respect of it and the Commission then had before it the investigation report and the submissions to which were attached a number of other documents. These submissions and other documents before the Commission will be referred to below where relevant to the analysis.
[8] On April 23, 1999 the Commission wrote to the respondent to inform her of its decision. The operative paragraphs are as follows:
Before rendering its decision, the Commission reviewed the reports disclosed to you previously and any submission(s) filed in response to the reports. After examining this information, the Commission decided, pursuant to 41(1)(e) of the Canadian Human Rights Act, to deal with your complaint (P47628), even though the act complained of occurred more than one year before the receipt of the complaint.
The Commission further decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, that no further proceedings are warranted in view of the agreement reached between the parties.
(Appeal Book p. 304).
Subparagraph 44(3)(b)(i) authorizes the Commission, upon receipt of an Investigation Report, to
| (b) . . . dismiss the complaint to which the report relates if it is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted . . . . |
(b) . . . rejette la plainte, si elle est convaincue (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié . . . . |
|
[9] The respondent sought judicial review of that decision of the Commission on the ground that the Commission committed a reviewable error in dismissing the complaint on the basis of the agreement reached between the parties in November, 1995. In the Trial Division the applications judge took the view that the Commission had treated the agreement as a release and had given it legal effect as a barrier to any subsequent complaint to the Commission. This he characterized as "contracting out" of the protection of the Act, a matter which is prohibited by general principles of law. The Commission, in his view, relied on an irrelevant consideration, an unlawful agreement. He therefore granted the order requested quashing the CHRC decision and referring the matter back to the CHRC or to a designated tribunal ". . . on the merits of the evidence before it, and in the absence of the parties' Memorandum of Agreement . . . .". He ordered the CHRC "in any event, to write to Ms. Gee a letter from its Chief executive officer, endorsed by its counsel, sincerely attesting to her lack of fault in this whole matter from start until this date . . . .". He also ordered costs against the CHRC on a solicitor and client basis. Solicitor-client costs were not requested in the notice of application for judicial review nor did the respondent request such costs at the hearing. Counsel affirmed that the learned applications judge did not alert the appellant to the fact that he was going to consider granting costs on this basis.
[10] The appellant appeals both the quashing of the CHRC decision and the award of costs on a solicitor-client basis.
Issues
[11] The appeal therefore raises a question as to whether the learned applications judge was correct in holding that the Memorandum of Agreement should not have been taken into consideration on any basis by the CHRC, and in awarding costs on a solicitor-client basis.
Analysis
[12] It should first be noted that, in the decision under review involving this appellant the Commission was acting under subparagraph 44(3)(b)(i) which authorizes it to dismiss a complaint if it is satisfied "that having regard to all the circumstances . . . an inquiry . . . is not warranted . . ." (quoted in para. 8 supra). (In his reasons the applications judge dealt also with a decision made by the Commission under paragraph 41(c) that it was without jurisdiction to hear a complaint against the respondent's union. As far as I can tell that was not a matter before the applications judge and it is not before us).
[13] This Court has on various occasions noted the deference which should be shown to the Commission in respect of its decisions, after receipt of an Investigation Report, as to whether to dismiss the complaint or refer it to a tribunal. For example, it was stated in Bell Canada v. Communications, Energy and Paperworkers Union of Canada ([1999] 1 F.C. 113 (C.A.)):
Exercise of discretion
[38] The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 42 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.
More recently this Court in Zundel v. Attorney General of Canada et al ((2000) 267 N.R. 92 at para. 5) endorsed a Trial Division decision ([1999] 4 F.C. 289, at paras. 46-49) that the standard of judicial review of a decision of the Commission under section 44, to refer a matter after investigation to a tribunal, should be that of a determination as to whether there was a rational basis for the decision. In Bradley v. Attorney General of Canada ((1999) 238 N.R. 76) this Court held that the standard of review of a decision taken by the Commission under subsection 44(3) of the Act to dismiss a complaint instead of appointing a conciliator was that of reasonableness. I respectfully concur with my colleagues in this respect and accept that the standard of review for the exercise of the discretion provided in subparagraph 44(3)(b)(i) to dismiss a complaint is that of reasonableness. This is the standard to be applied in the present case. For the reasons which follow, I disagree, with respect, with the applications judge who characterized the decision here of the Commission to dismiss as being a refusal to consider the complaint because it was barred by the Memorandum of Agreement of November, 1995. In his view such agreement was invalid as contrary to public policy, being a "contracting out" of the Canadian Human Rights Act, and the Commission therefore erred in law in giving it any effect. As will be explained, I believe the Commission did have regard to the complaint and therefore we must see if its resulting decision that further action was not warranted had a rational basis.
[14] It should be observed at this point that we are involved in the present proceedings because the Commission did not take the trouble to express itself clearly in the letter it sent to the respondent informing her of its decision, as quoted above in paragraph 8 to the effect that "no further proceedings are warranted in view of the agreement reached between the parties". It is true that neither tribunals nor courts are normally obliged to set out their reasons fully. Nevertheless a careful and extended explanation of reasons is not only a matter of importance to the parties but also a salutary discipline for the decision-maker to ensure that it has a good reason for the result reached. A lack of clear reasons gives rise to the very kind of wasteful litigation which is before us now.
[15] In the absence of clear reasons, however, the Court must look at the material before the Commission and the result reached and see if there is a rational basis for that result. In the present case there was an investigation by a Commission Investigator and a report to the Commission with a recommendation. Attached to that report were submissions made by the parties in respect of the contents of the report, which they had the opportunity to review before it was submitted to the Commission, together with a number of other related documents arising out of the long history of this situation. It will be noted that the Investigator in his recommendations (quoted above at paragraph 7 ) suggested no further proceedings were warranted because "the situation that gave rise to the complaint has been redressed in that a Memorandum of Agreement has been signed . . .". Although the Commission did not adopt the reference to "redress" in its decision it accepted the recommendation. Unless the Court is "to intervene lightly in the decisions of the Commission . . .", a practice which this Court recognized in Bell Canada v. Communications, Energy and Paperworkers Union (supra) was not the intention of Parliament, I do not believe we should set aside the Commission decision just because it is not well expressed.
[16] Before looking at the other material before the Commission, it must be recognized that reliance was not placed on that material in the argument before the applications judge. He therefore confined his consideration to the words of the letter reporting the Commission's decision and to the Agreement referred to in that letter. However before us the argument was put on a broader basis ; namely that the Commission had before it considerable background material that could explain its decision, of which the Agreement was in reality only one element. Rightly or wrongly, it is not uncommon for arguments to change dramatically between the trial and appeal stage and this is accepted in modern jurisprudence as long as the new arguments are based on the same evidence as was before the court of first instance. That is the case here.
[17] In fact we can see from the report of the Investigator and the attachments to that report that the Commission had before it a number of "circumstances" of the kind which would be relevant to the exercise of its discretion to dismiss the complaint as set out in subparagraph 44(3)(b)(i) as follows. (References in brackets are to page numbers in the appeal book). The original acts of discrimination complained of occurred in 1991 and 1992. Since then the alleged discriminatory conduct complained of is a failure to "take appropriate corrective or remedial action" (233). An internal investigation of her harassment complaint had been carried out in about 1992 or 1993 (238, 263) and the Department had acknowledged to her that harassment had occurred (238, 263-4). The Discriminatory Performance Review prepared by her supervisor in July, 1991 was, as a result of her grievance and the investigation, rewritten on January 7, 1993 (238). She filed a complaint with the Commission on February 25, 1993 and the Commission declined to deal with it on the basis that it was out of time (that is, the acts or omissions complained of occurred more than one year prior to the complaint, as provided in paragraph 41(e) of the Act). After the internal investigation in 1994 had established harassment and discrimination, and after what the complainant considered to be an unsatisfactory response from the Department, she filed another complaint with the Commission in January, 1995. Again, on February 7, 1995 the Commission declined to deal with her complaint (8). It was against this background that the Memorandum of Agreement (supra, paragraph 3 ) was signed in November, 1995. It will be noted that the Memorandum begins with a preamble in which Revenue Canada "recognizes the personal difficulties endured by Mrs. Marianna Gee that prompted her to bring her complaint of personal harassment . . . .". The complainant has contended throughout that she would have been appointed to an AU-03 position in October, 1991 if there had not been a discriminatory negative assessment on her file from her supervisor. The appellant, however, in its submission to the Commission, stated that even if she had been given a score for her references equal to the higher ranking candidates it would only have raised her from the ranking of fifth to fourth candidate, and in fact no offers were made to candidates three and four (248). With respect to her complaint that the appellant did not comply with paragraph 1. of the Memorandum of Agreement in which it agreed "subject to the right of appeal" to appoint her to an AU-03 position without competition, she complains that after 33 appeals were filed against her appointment the Department declined to support her appointment before the Public Service Commission Appeal Board. The appellant, on the other hand, in its submissions to the Commission said that as a result of the appeals being filed "the Department was not in a position to defend merit without an assessment process. This was conveyed to the complainant however she declined to participate in a comparative assessment process. The Department was therefore, unable to provide this to the appeal hearing . . . ." (249). The Commission would also be aware from the complainant's own submissions that after the appeals resulted in her losing her AU-03 position, she was successfully transferred to Consulting and Audit Canada where, since April, 1998 she had been earning more than she would have earned in the AU-03 position of whose loss she complains (244). It was against this background that the Investigator had reported to the Commission that
the situation that gave rise to the complaint has been redressed in that a memorandum of agreement has been signed between the parties. (239)
While the recommendation is not worded as clearly as the Court would wish, and the decision of the Commission refers only to the agreement, I believe it is a fair interpretation of the situation that the Commission had "regard to all the circumstances of the complaint . . .". Those circumstances included not only the alleged discrimination and harassment complained of, but also the fact that there had been an internal investigation, an acknowledgement of fault on the part of the Department, and an attempt to resolve all outstanding problems with the Memorandum of Agreement of November, 1995. While it may be argued that that agreement was improvident and misleading because it promised the respondent an appointment without competition subject to appeal, where it must have been foreseeable that an appeal or appeals would be taken, it was not in my view unreasonable for the Commission to take it at its face value and to have regard to the Department's explanation as to why, in the face of a refusal by the respondent to submit to an assessment process, the Department could not defend the appointment before the Public Service Commission Appeal Board. It surely was also legitimate for the Commission to have regard to the fact that it had already on two occasions dismissed related complaints by the respondent. The earlier complaints of 1993 and 1995 dealt with the same acts of harassment and discrimination which were the foundation of the 1998 complaint although in addition the 1998 complaint included complaints as to the conduct of the appellant subsequent to the Memorandum of Agreement.
[18] The learned applications judge took this reference to the Memorandum of Agreement in the Commission's decision to mean that the Commission had refused to consider the complaint because the complainant had waived any right she might have to complain under the Canadian Human Rights Act. He regarded this as a contract contrary to public policy which should have been treated as void.
[19] With respect, I do not understand that to be the Commission's decision. It will first be noted that the Commission adopted the recommendation of its Investigator which was twofold: "that the Commission deal with the complaint even though more than one year had elapsed since the events complained of, and that it conclude that no further proceedings were warranted . . . ." The language is that of a consideration of the complaint and of a decision not to direct further proceedings such as a tribunal hearing. If the Commission intended to reject the complaint on the grounds that the complainant had released her rights, it presumably would have said so and would not have "dealt with" the complaint.
[20] In fact as has been noted there were other important features in the agreement apart from the paragraph in which the respondent released Revenue Canada "from any other claims or cause of action arising from these facts". The preamble "recognizes the personal difficulties endured by Mrs. Marianna Gee . . .", an important admission of fault. It also states that the parties
agree to the resolution of all matters arising out of Mrs. Gee's complaint of harassment and the results of the investigation . . . ."
Paragraph 1 provides that the respondent would be appointed to an AU-03 position without competition, "subject to the right of appeal". While the respondent seemingly considers this promise to have been illusory and made in bad faith there was certainly material before the Commission to indicate that the Department was unable to defend her appointment before the Appeal Board because of her own unwillingness to engage in an assessment process. Paragraph 2 of the Agreement granted the respondent 20 days of leave with pay. These are all matters which it was open to the Commission to take into account and which, in my view, provide a rational basis for the conclusion it reached.
[21] With respect to paragraph 4 of the Agreement, the so-called release or waiver, I find it difficult to characterize this, as the learned applications judge did, as an agreement to opt out of the protection of the Canadian Human Rights Act. It was not, for example, a contract of employment or collective bargaining agreement whereby the employee individually or collectively agreed to forego the protections against discrimination provided by that Act. It was, instead, part of a settlement of an ongoing dispute over conditions of employment where the complainant had already unsuccessfully made two complaints to the Canadian Human Rights Commission, which had dismissed her complaints because of delay in filing. The last of these complaints had been dismissed some ten months before the Memorandum of Agreement. That Memorandum dealt with a settlement of the same complaints relating to events of 1991-93 and it could hardly have been in contemplation of the parties at that time that the subject-matter of those complaints could be the source of yet another complaint to the Commission.
[22] The learned applications judge held that this was "an agreement which should not, and legally cannot, exist" (AB 22). Therefore as a non-existent contract it was clearly an irrelevant consideration for the Commission in dismissing the complaint. He relied principally on the decision of McIntyre J. of the Supreme Court of Canada in Ontario Human Rights Commission v. Etobicoke ([1982] 1 S.C.R. 202 at 213-14). But it should be noted that McIntyre J. relied principally on statements in Halsbury's Laws of England. In the fourth edition, volume 9, page 29, paragraph 421 it is stated:
421. Contracting out. As a general rule, any person can enter into a binding contract to waive the benefits conferred on him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that it would be contrary to public policy to allow such an agreement. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement; and, in certain circumstances, it is expressly provided that any such agreement shall be void.
By way of example of an exception to the general rule, an agreement between an employer and employee whereby the latter agrees to waive a statutory duty imposed on the former in the interests of safety is generally not binding on the employee.
This would suggest that in each situation one must examine the terms of the contract to see whether they are contrary to public policy. Even assuming that an agreement not to file another complaint, about matters already the subject of unsuccessful complaints to the Commission, would be contrary to public policy, the Commission did not treat paragraph 4 of the Memorandum of Agreement as having that effect. Instead it considered the complaint, sent it for investigation, and then simply decided that no further proceedings were warranted. It must therefore have ignored that portion of the Agreement which the learned applications judge held to be contrary to public policy but had regard to the remainder of the Agreement. I see nothing in the Etobicoke case or the passage from Halsbury's relied on therein as requiring the Commission to ignore the whole contract. The contract was addressed to the settlement of a dispute in which the employer recognized fault on its part and promised the extraordinary remedy of an appointment without competition. I do not think there was such evidence before the Commission as should have compelled it to ignore that agreement as being coercive, fraudulent, or made in bad faith. The applications judge suggests in paragraphs 36 and 37 of his reasons that the agreement was invalid for reasons of this nature. He was of the view that the Commission by treating the agreement as valid and enforceable "addressed a question of law beyond its jurisdiction". Yet at paragraph 39 he in effect faulted the Commission for treating the contract as relevant as it was "an agreement which should not, and legally cannot, exist". That is, the Commission was entitled to decide a question of law as to the invalidity of the contract but not as to its validity. In the circumstances we need not decide the limits of the Commission's powers to instruct itself on legal issues.
[23] I am instead of the view that there was a rational basis for the conclusion reached by the Commission.Its decision, notwithstanding the unsatisfactory way in which it was formulated , but having regard to all the circumstances the Commission was entitled to take into account, cannot be regarded as unreasonable.
Costs
[24] Having come to this conclusion, the costs as awarded must be set aside and no further consideration is required of this issue.
[25] Although the appellant should succeed on this appeal and would normally be entitled to costs, I am taking into account that the respondent has been put to the cost of this litigation in part because of the lack of clarity in the decision of the Commission. I would therefore not award costs against her.
Disposition
[26] The appeal should be allowed, the decision of the applications judge set aside, and no costs should be awarded.
(s) "B.L. Strayer"
J.A.
I agree
Marshall Rothstein
I agree
Karen R. Sharlow
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-81-01
STYLE OF CAUSE:
MINISTER OF NATIONAL REVENUE
and
MARIANNA GEE
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: NOVEMBER 22, 2001
REASONS FOR JUDGMENT : STRAYER J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A.
DATED: JANUARY 9, 2002
APPEARANCES:
Mr. Gérald L. Chartier FOR THE APPELLANT
Ms. Gloria Mendelson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPELLANT
Deputy Attorney General of Canada
Ottawa, Ontario
Gloria Mendelson, M.A. , L.L.B. FOR THE RESPONDENT
Winnipeg, Manitoba