BETWEEN:
WING TSE
Applicant
- and -
FEDERAL EXPRESS CANADA LTD.
Respondent
REASONS FOR ORDER
DAWSON J.
[1] Mr. Wing Tse brings this application for judicial review of the August 25, 2004 decision of the Canadian Human Rights Commission ("Commission") not to deal with his complaint made on March 1, 2004, against his former employer, Federal Express Canada Ltd. ("Federal Express"). The Commission decided, pursuant to paragraph 41(1)(e) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 ("Act"), not to deal with that complaint because it was based upon acts which occurred more than one year before the filing of the complaint.
BACKGROUND FACTS
[2] These reasons are issued contemporaneously with my reasons in court file T-894-04 ("accompanying reasons"). In that proceeding, Mr. Tse sought judicial review of the Commission's decision of April 8, 2004, which dismissed another complaint Mr. Tse had brought against Federal Express. In that complaint ("second complaint"), Mr. Tse alleged that, while he was employed by Federal Express, it retaliated against him because he had previously filed a human rights complaint against it ("first complaint") and also discriminated against him by treating him in an adverse and differential manner because of his national or ethnic origin. The two applications for judicial review were ordered to be heard together.
[3] The chronology of events, as relevant to the Commission's decision not to deal with the March 1, 2004 complaint ("third complaint") is as follows:
1. April 5, 2002: the second complaint is filed.
2. November 13, 2002: Federal Express terminates Mr. Tse's employment.
3. January 21, 2003: after Mr. Tse had exhausted three levels of internal appeal, Federal Express upholds Mr. Tse's dismissal.
4. January 19, 2004: Mr. Tse writes to the Commission advising of his intent "to allege that Federal Express Canada Ltd. has terminate[d] my employment in retaliation for previously filing [the first complaint] on January 10, 2000 and [the second complaint]".
5. January 22, 2004: an intake analyst with the Commission writes to Mr. Tse advising that, due to the time limit contained in paragraph 41(1)(e) of the Act, it is unlikely that the Commission would deal with the issues raised by Mr. Tse in his January 19, 2004 letter.
6. March 1, 2004: Mr. Tse signs and submits his third complaint to the Commission alleging that he was dismissed in retaliation for his prior complaints and alleging that Federal Express did not accommodate his disability.
7. April 8, 2004: The Commission dismisses the second complaint.
8. June 30, 2004: Mr. Tse is sent a copy of the investigator's report in connection with his third complaint.
9. July 11, 2004: Mr. Tse writes to the Commission, responding to the investigator's report.
10. July 21, 2004: The Commission sends Mr. Tse a copy of Federal Express' response to his complaint.
11. August 7, 2004: Mr. Tse provides his responsive submissions to the Commission.
12. August 25, 2004: The Commission decides not to deal with the third complaint.
THE COMMISSION'S DECISION
[4] The members of the Commission noted that, before rendering their 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 filling [sic] of the complaint".
Sections 41 and 42 of the Act are set out in the Appendix to these reasons.
[5] While fuller reasons were not provided by the Commission, the Federal Court of Appeal confirmed in Canadian Broadcasting Corporation v. Paul (2001), 198 D.L.R. (4th) 633 (F.C.A.), at paragraph 43, that "the Courts have found the Commission's reasons in the Investigation Report itself". In the context of considering the adequacy of the reasons provided by the Commission to satisfy subsection 42(1) of the Act, Mr. Justice Richard, as he then was, concluded that:
In circumstances, such as here, where the Commission has accepted the recommendation of the officer, it is appropriate that the officer's analysis and recommendation, both of which were disclosed to the applicant, be considered in determining whether the Commission has complied with ss. 42(1) of the Act.
See: Hardman v. Atomic Energy of Canada Ltd., [1997] F.C.J. No. 477 (T.D) at paragraph 13.
[6] I turn therefore to review the investigator's report. The investigator noted that, at the time of the termination of his employment, Mr. Tse had an active complaint with the Commission. However, the investigator assigned to that complaint did not learn of Mr. Tse's dismissal until November 12, 2003, when a witness advised him of it. On December 3, 2003, that investigator interviewed Mr. Tse and his notes do not reflect that Mr. Tse mentioned losing his job. Also on December 3, 2003, Mr. Tse faxed a list of witness names to the investigator, but again made no mention of losing his job.
[7] The investigator investigating the third complaint noted that Mr. Tse had appealed internally within Federal Express the decision to terminate his employment and, on January 21, 2003, the dismissal was upheld. Mr. Tse first informed the Commission in a fax dated January 19, 2004, that he believed the termination of his employment constituted retaliation for his earlier human rights complaints against Federal Express. The investigator noted that this was some 14 months after the termination of Mr. Tse's employment.
[8] The investigator considered that Mr. Tse was advised that the one-year limit begins with the last alleged date of discrimination. In this case, that would have been the date of termination of employment on November 13, 2002. However, Mr. Tse advised the Commission that he believed that the one-year time frame should begin at the conclusion of the appeals process and, if so, his complaint would be filed within time.
[9] The investigator considered Federal Express' submissions that, in addition to challenging his dismissal internally, Mr. Tse had filed a complaint of unjust dismissal under section 240 of the Canada Labour Code, R.S.C. 1985, c. L-2. The hearing of that claim commenced in November 2003 and was ongoing. Federal Express claimed that Mr. Tse was getting a full and fair hearing in that forum. Federal Express also observed that, having filed two previous claims with the Commission, Mr. Tse was well aware of the Commission's process, yet he chose not to file a complaint regarding his dismissal until January 2004. Federal Express maintained that it would be fundamentally unfair to allow this process to proceed because Mr. Tse had ample opportunity in the year after his dismissal to raise the issue with the Commission, given that an investigation into an existing complaint was ongoing during this time period. Federal Express also noted that, given the timing of the filing of this complaint, it believed the complaint was trivial, frivolous, vexatious and made in bad faith.
[10] The investigator noted that she tried to contact Mr. Tse for additional information for the preparation of her report, but Mr. Tse did not return voicemail messages that were left for him.
[11] In her analysis, the investigator noted that the last alleged act of discrimination occurred in November 2002. At that time, Mr. Tse had an ongoing human rights complaint. Notwithstanding that, he did not mention the termination of his employment to the person investigating that complaint, nor did he express any desire to file a complaint of retaliatory conduct. Mr. Tse first contacted the Commission to file such a complaint on January 19, 2004, some 14 months after the last alleged incident of discrimination. The investigator recommended, pursuant to section 41(1)(e) of the Act, that the Commission not deal with Mr. Tse's complaint because the complaint was based on acts or omissions, the last of which occurred more than one year before receipt of the complaint.
THE ISSUES
[12] Mr. Tse frames the issues to be as follows:
1. The Commission failed to exercise its authority under section 43 of the Act to relentlessly pursue the facts.
2. The Commission failed to observe the principle of natural justice and procedural fairness through a continuous lack of comprehension.
3. The Commission relied solely on the investigator's report without examining the underlying evidence.
4. The Commission relied solely on the investigator's conclusion, leaving the applicant with a reasonable apprehension of bias.
5. The Commission based its decision on an erroneous and perfunctory investigation which was made in a dismissive manner without regard for the material set before it.
6. The Commission's use of power led to an improper purpose and took into account wrong considerations, failed to consider relevant materials, and lacked the requirement of neutrality and thoroughness.
[13] In my view, Mr. Tse's submissions, as expanded in oral argument, are appropriately considered under two headings: first, did the Commission comply with the requirements of procedural fairness; second, was the Commission's decision patently unreasonable?
[14] Mr. Tse did not challenge the adequacy of the Commission's reasons.
STANDARD OF REVIEW
[15] To the extent Mr. Tse raises issues of procedural fairness, it is not necessary to determine the standard of review on the pragmatic and functional analysis. In C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paragraph 100, the Supreme Court held that the standard to be applied to the review of an alleged breach of the duty of procedural fairness is correctness.
[16] To the extent this application for judicial review raises any issue other than that of procedural fairness, a number of decisions of this Court have addressed the issue of the standard of review to be applied to a decision of the Commission about whether to deal with a complaint, notwithstanding that the complaint is based on acts or omissions which occurred more than one year before the making of the complaint. In those cases, the Court has concluded the applicable standard of review is patent unreasonableness. See, for example, Cape Breton Development Corp. v. Hynes (1999), 164 F.T.R. 32 at paragraph 15; Price v. Concord Transportation Inc. (2003), 238 F.T.R. 113 at paragraph 42; Johnston v. Canada Mortgage and Housing Corp., [2004] F.C.J. No. 1121 at paragraph 8; and Davey v. Canada (2004), 257 F.T.R. 316 at paragraph 12. I accept patent unreasonableness to be the appropriate standard of review to the decision about whether to deal with the complaint, notwithstanding that it was brought out of time.
[17] In the accompanying reasons, I found the standard of review to be applied to a decision of the Commission, made pursuant to paragraph 44(3)(b) of the Act, to dismiss a complaint was reasonableness simpliciter. These different standards of review reflect the different nature of the decision under review, and are consistent with the remarks of Mr. Justice Décary, for the Federal Court of Appeal, in Canada Post Corp. v. Barrette, [2000] 4 F.C. 145, at paragraph 22, where he wrote:
It is true that the courts have repeatedly held that they would not intervene lightly with decisions of the Commission made in the performance of its screening function under section 44 of the Act and even less so when the decisions are made in the performance of the Commission's preliminary screening function under section 41 of the Act.
ANALYSIS
[18] Mr. Tse's written submissions are, in total, as follows:
18. As noted in the Statement of Fact, the Appellant worked full time since October, 1989 and was terminated in November 2002.
19. Due to continuous systemic harassment the Appellant sought relief through the company's internal process, but with no avail. The Appellant then filed his first CHRC complaint, File W50023 in 2000. The commission's investigation process lacked thoroughness and was made in a dismissive manner without regard for the material set before it, in particular the neglect of the investigator to contact ANY witnesses.
20. Even with a more thorough investigation on CHRC File number 20020114, the Commission failed to examine the underlying evidence before them and solely relied on the investigator's recommendation to dismiss the complaint.
21. As a result of the continuous harassment from Federal Express Canada, Ltd the Appellant was on long term medical leave which depleted all of his savings, his wife's RRSPs and put him in financial ruin. The Appellant's two children suffered unnecessary stress and embarrassment. The Appellant's son's grades in school dropped, his daughter became very agitated, while attending SFU full time, and his family Doctor referred both children to attended [sic] sessions with a psychologist. The Appellant's Doctor also referred him to Dr. Mistry, psychiatrist and is still under his care.
(i) Did the Commission fail to afford procedural fairness to Mr. Tse?
[19] Mr. Tse's concerns in this regard are whether the Commission relied upon an investigation that lacked the requisite degree of thoroughness, whether the Commission was entitled to rely upon the report of the investigator, and whether the Commission's actions give rise to a reasonable apprehension of bias.
[20] As noted in the accompanying reasons, the Federal Court of Appeal has held that procedural fairness does not require that members of the Commission examine the complete record of the investigation. Rather, they are entitled to rely upon the investigator's report so long as the investigator's report is disclosed to the parties, the parties are provided with the opportunity to make all relevant representations in response to the investigator's report, and those responsive representations are considered by the Commission when it makes its decision. In addition, the investigator who prepares the report must conduct a thorough investigation. Interference is warranted on judicial review where an investigator fails to investigate obviously crucial evidence. See, for example, Tahmourpour v. Canada (Solicitor General), 2005 FCA 113; [2005] F.C.J. No. 543 at paragraph 8 and following.
[21] In the present case, having regard to the information Mr. Tse provided to the Commission when he submitted his complaint, I can find no obviously crucial evidence that the investigator failed to consider. Mr. Tse has not established that the investigation failed to meet the test of thoroughness considered by the Federal Court of Appeal in Tahmourpour.
[22] Similarly, by providing a copy of the investigator's report to the parties, receiving their responsive considerations, and having those responsive submissions before it when it reached its final decision, the Commission followed a procedure that complied with procedural fairness.
[23] Mr. Tse's allegation of reasonable apprehension of bias flows from the fact that he disputes the correctness of the investigator's comments that he did not return voicemail messages that were left for him, and the fact that both the complaint summary and the investigator's report failed to set out that his complaint was based not just on section 14.1 of the Act, but also on sections 2 and 15 of the Act. This latter omission does appear to be an error made by the Commission.
[24] The test for reasonable apprehension of bias is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [a decision-maker], whether consciously or unconsciously, would not decide fairly". See: Comm. for Justice v. Nat. Energy Board, [1978] 1 S.C.R. 369 at page 394.
[25] In my view, an informed person looking realistically and practically at the dispute as to whether voicemail messages were returned, and at the failure to reference additional sections of the Act in the complaint summary and investigator's report, would not conclude that it was likely that the Commission would not decide fairly whether or not to allow Mr. Tse's complaint to proceed.
(ii) Was the Commission's decision patently unreasonable?
[26] A patently unreasonable decision is one where the defect in the tribunal's decision is immediately apparent on the face of the tribunal's decision. A patently unreasonable decision will be clearly irrational, or not in accordance with reason. In C.U.P.E, supra at paragraph 164, Mr. Justice Binnie, writing for the majority of the Court, explained that:
However, applying the more deferential patent unreasonableness standard, a judge should intervene if persuaded that there is no room for reasonable disagreement as to the decision maker's failure to comply with the legislative intent. In a sense, like the correctness standard, the patently unreasonable standard admits only one answer. A correctness approach means that there is only one proper answer. A patently unreasonable one means that there could have been many appropriate answers, but not the one reached by the decision maker.
[27] In order to determine the reasonableness of the decision, the first question to be decided is whether Mr. Tse's complaint was, in fact, made beyond the one-year time limit prescribed by paragraph 41(1)(e) of the Act. It is not disputed that Mr. Tse first contacted the Commission concerning his intent to file a complaint on January 19, 2004, and that he formally filed his complaint on March 1, 2004. What is in dispute is whether the relevant date for commencing the time period was the date of termination, November 13, 2002, or the date on which Mr. Tse exhausted the internal levels of appeal, January 21, 2003.
[28] This issue has previously been decided by the Federal Court of Appeal against Mr. Tse's position.
[29] In Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 at paragraph 28, the Federal Court of Appeal agreed with a decision of the Commission that discharge from employment is an act that takes place, and is completed, at a specific point in time. Continued insistence by the employer that the decision to dismiss was justified does not have the effect of making the act of discharge a continuing discriminatory practice.
[30] The Federal Court of Appeal reiterated this view in Lever v. Canada (Human Rights Commission), [1988] F.C.J. No. 1062. There, the Court held that where a complaint arose out of employment, after the date of discharge no later event could give rise to complaints relating to employment.
[31] As for when Mr. Tse's complaint was actually filed, in Johnston, supra, at paragraph 7 the Court held that the clock for the one-year time limit runs to the date on which a written complaint is filed, not the date when a complainant first contacts the Commission regarding a complaint. In the present case, however, it makes little difference which date is used. Whether one looks at the January 19, 2004 date or the March 1, 2004 date, in either instance the complaint was filed beyond the one-year time limit.
[32] The Commission, therefore, was correct in finding on undisputed facts the complaint to have been brought out of time. The Commission does, however, have jurisdiction to consider claims that have been filed beyond the one-year time limit. Notwithstanding the jurisdiction, the Commission chose not to consider Mr. Tse's claim. Was that a patently unreasonable decision?
[33] In this regard, there was evidence before the Commission, commented on by the investigator, that Mr. Tse never mentioned his discharge during the course of the investigation of his second complaint. Further, Mr. Tse's complaint of unjust dismissal under the Canada Labour Code was referred to and was noted to be ongoing. At the time the investigator completed her report, there had been approximately ten days of hearing before the Labour Board.
[34] On this evidence, I cannot find that it was patently unreasonable for the Commission to have declined to accept Mr. Tse's complaint.
[35] The only aspect of Mr. Tse's case that causes any concern is his assertion, made to the Commission in response both to the investigator's report and to the response of Federal Express, that he did not submit his complaint earlier because a representative of the Commission told him not to. More specifically, Mr. Tse says that while speaking with a representative of the Commission regarding the investigator appointed to investigate the second complaint, Mr. Tse was told that "I was not the only case, they had hundreds and hundreds of cases to deal with, and when my time comes the investigator will contact me". He was also told at that time not to file a new complaint because "I already had an active case". The concern that arises is whether this evidence was ignored so that the Commission's decision was made without regard to the evidence before it.
[36] It is not necessary for an administrative decision-maker to mention every piece of evidence received that is contrary to their decision. Thus, as in this case, a decision-maker may simply say that it considered all of the submissions before it. However, the more important the evidence is that is not mentioned and analysed, the more likely it is that a reviewing court will infer from the failure to mention the evidence that the decision-maker ignored the evidence and made its determination without regard to the evidence. It if therefore, necessary to consider whether Mr. Tse's assertion that he was told not to complain is something the Commission ought to have dealt with and explained in reasons.
[37] Mr. Tse does not appear to have provided this information to the Commission until after he received the investigator's report and the response of Federal Express, notwithstanding the January 22, 2004 letter from the intake analyst warning that, due to the time constraint, it was unlikely that the Commission would deal with his complaint. Such advice from the intake analyst made it pertinent for Mr. Tse to provide this information together with his late filed complaint.
[38] When it reached its decision not to deal with the complaint, the Commission had before it the investigator's report that was unequivocal that the investigator assigned to the second complaint did not learn of Mr. Tse's dismissal until November 12, 2003, one year after the dismissal. It is, in my view, inconsistent with Mr. Tse's assertion that he did not file a complaint because he was told not to because he had an ongoing complaint, that he did not advise the investigator of that complaint of his dismissal. In light of this evidence before the Commission that was inconsistent with Mr. Tse's assertion, made only in reply, that he had been told not to complain, I do not infer from the failure of the Commission to refer to this assertion that it made its decision without regard to the evidence.
[39] Accordingly, for the reasons previously given I do not find it to have been patently unreasonable for the Commission to have determined not to accept Mr. Tse's complaint.
CONCLUSION
[40] The application for judicial review will therefore be dismissed.
[41] While Federal Express sought costs in its written submissions, it made no submissions concerning costs at the hearing. Federal Express shall, therefore, have seven days from the date of receipt of these reasons to serve and file submissions with respect to costs. Mr. Tse shall similarly then have seven days from receipt of Federal Express' submissions to serve and file his responding submissions with respect to costs. Federal Express shall then have four days to serve and file any reply submissions.
[42] Following consideration of those submissions, an order will issue dismissing the application for judicial review and dealing with the issue of costs.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
May 2, 2005
APPENDIX
Sections 41 and 42 of the Canadian Human Rights Act:
| 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(2) The Commission may decline to deal with a complaint referred to in paragraph 10(a) in respect of an employer where it is of the opinion that the matter has been adequately dealt with in the employer's employment equity plan prepared pursuant to section 10 of the Employment Equity Act.
41(3) In this section, "employer" means a person who or organization that discharges the obligations of an employer under the Employment Equity Act.
42. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision. 42(2) Before deciding that a complaint will not be dealt with because a procedure referred to in paragraph 41(a) has not been exhausted, the Commission shall satisfy itself that the failure to exhaust the procedure was attributable to the complainant and not to another. |
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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.
41(2) La Commission peut refuser d'examiner une plainte de discrimination fondée sur l'alinéa 10a) et dirigée contre un employeur si elle estime que l'objet de la plainte est traité de façon adéquate dans le plan d'équité en matière d'emploi que l'employeur prépare en conformité avec l'article 10 de la Loi sur l'équité en matière d'emploi. 41(3) Au présent article, « _employeur_ » désigne toute personne ou organisation chargée de l'exécution des obligations de l'employeur prévues par la Loi sur l'équité en matière d'emploi. 42. (1) Sous réserve du paragraphe (2), la Commission motive par écrit sa décision auprès du plaignant dans les cas où elle décide que la plainte est irrecevable. 42(2) Avant de décider qu'une plainte est irrecevable pour le motif que les recours ou procédures mentionnés à l'alinéa 41a) n'ont pas été épuisés, la Commission s'assure que le défaut est exclusivement imputable au plaignant.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1630-04
STYLE OF CAUSE: WING TSE
- and -
FEDERAL EXPRESS CANADA LTD.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 5, 2005
REASONS FOR ORDER: DAWSON J.
DATED: May 2, 2005
APPEARANCES:
Mr. Wing Tse on his own behalf
Ms. Andrea L. Zwack for the Respondent
SOLICITORS OF RECORD:
Heenan Blaikie for the Respondent
Vancouver, British Columbia