Date: 20041029
Docket: T-537-04
Citation: 2004 FC 1496
Ottawa, Ontario, this 29th day of October, 2004
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
REGINALD W. DAVEY
Applicant
and
HER MAJESTY THE QUEEN
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision rendered by the Canadian Human Rights Commission (the "Commission") on February 12, 2004 denying the Applicant's request under the Canadian Human Rights Act (the "Act") to review the Applicant's complaint on the grounds that it was statute-barred.
[2] As a preliminary matter, the Respondents brought to the attention of the Court the fact that the Applicant was adducing evidence that was not before the Commission when it made its decision and that therefore, it should be ignored by the Court or that the Court should strike the evidence in question. The said evidence can be found at paragraphs 2 to 5 and Exhibits A, B and C of the Affidavit of the Applicant.
ISSUE
[3] Did the Commission err in refusing to consider the Applicant's claim on the grounds it was statute-barred by s. 41(1)(e) of the Act?
BACKGROUND
[4] The Applicant, Mr. Reginald W. Davey (Mr. Davey, or the "Applicant"), has been employed as an auditor by Canada Customs & Revenue Agency ("CCRA") in Calgary since May 1997. In August 2001 he applied for a promotion. After successfully completing the written test, he attended an interview. On October 19, 2001, he received a letter from the selection board chairman advising him that he had not met the minimum standards for the competition.
[5] While he immediately began pursuing internal redress procedures in order to ascertain why he had not been successful at obtaining the promotion, Mr. Davey did not actually contest the results of the competition on the grounds of discrimination until late October 2003, when he first filed a complaint with the Commission alleging he had been discriminated against on the basis of age (late fifties), race (Caucasian), colour (white) or gender (male).
DECISION UNDER REVIEW
[6] After its initial investigation into the Applicant's claim, the Commission advised Mr. Davey it would not deal with the complaint, because according to s. 41(1)(e) of the Act, Mr. Davey's complain was "based on acts or omissions the last of which occurred more than one year ... before receipt of the complaint."
SUBMISSIONS
The Applicant
[7] The Applicant argues that the Commission should have not taken such a rigid view of his case when it determined the claim was statute-barred. He states the only reason it took him so
long to file his complaint with the Commission was that he was pursuing his dispute through internal dispute resolution mechanisms and that it was only when he realized, first, that the hiring procedure had been conducted in a discriminatory fashion by CCRA, and, second, that the resolution procedures within CCRA would not compensate him adequately, that he brought his complaint to the Commission. During his oral arguments, the Applicant admitted that he was hoping for a successful result from the dispute resolution mechanisms and that it was only after receiving the negative result from CCRA that he decided to file a complaint with the Commission. He also admitted that the acts upon which the complaint was based were known to him since October 2001, though he did receive some additional information in September 2002.
[8] In his materials, the Applicant submits a detailed chronology of events from the time when he first requested to be provided with feedback on the competition results to the point when he realized any chance of successful resolution of the problem within the CCRA was unlikely.
[9] The Applicant submits that in light of the evidence that he made good faith efforts to follow CCRA's internal resolution procedures, and that the CCRA made no similar efforts in return, he should not be penalized for having brought his claim at the late point at which he did.
The Respondent
[10] As mentioned earlier, the Respondent first raises a preliminary argument: that portions of the affidavit of Mr. Davey contain material not before the Commission when it rendered its decision and that therefore the Court may not consider these portions of the record. Second, the Respondent submits that decisions of the Commission based on s.41(1)(e) refusals are to be reviewed according to a standard of patent unreasonableness pursuant to the decision of Justice Heneghan of this Court in Price v. Concord Transportation Inc., [2003] F.C.J. no. 1202.
[11] After briefly reviewing the role of the Commission, the Respondent claims that the Commission's decision was rational and reasonable on the face of the record. The Respondent concedes that the Commission does have the discretion to extend the time-frame within which a complaint is to be submitted and that the Commission did not actually provide reasons for why it felt, in this case, that the time-frame should not be extended; however, the Commission did, in its investigation report, thoroughly analyse the facts of this case against the factors to be taken into consideration when deciding whether to extend the time-frame.
STANDARD OF REVIEW
[12] Section 41(1) grants the Commission a large discretion in determining whether a claim should be accepted by it for investigation, and therefore, the Respondent's argument that such a decision should be reviewed only on a very deferential standard (i.e., patent unreasonableness) is correct. (See Price v. Concord Transportation Inc. [2003] F.C.J. No. 1202 at paragraphs 36 to 42.)
ANALYSIS
[13] Because of the particulars of this case and considering the preliminary matter brought up by the Respondent, the Court will not ignore or strike the evidence in question, taking in consideration the conclusion arrived at by the Commission. The Court considers the evidence as facts which exemplify the situation. That the Applicant spent most of the year between September 2001 and September 2002 attempting to resolve his situation via dispute resolution mechanisms confirms that he was aware of the information that could constitute a complaint before the Commission by September 2002 at the latest. Since the Applicant is self-represented, the documentation filed which originates from the Applicant, is an explanation of how the situation was viewed by the person concerned.
[14] The purpose of the Act is to prevent discrimination on the basis of certain grounds and in particular circumstances, as set out in s. 2 of the Act:
The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée.
[15] There are limits, however, on the types of claims the Commission may make, according to s. 41, which reads, in part:
41. (1) [...] 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) [...] 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.
[16] A review of the evidence makes it clear that it was not patently unreasonable for the Commission to refuse to hear the complaint on the grounds that it was based on acts that occurred more than one year prior to the Applicant making his claim. The investigation report does broach the issue of the delays allegedly experienced by Mr. Davey in the pursuit of his claim with CCRA; however, the events complained of took place between August and October 19, 2001, and although Mr. Davey was diligently pursuing alternate avenues of redress available to him under his collective agreement, and cannot be faulted for doing so, he did not contact the Commission, or otherwise raise the spectre of discrimination, until October 2003, well past the time-frame within which he ought to have done so.
[17] Mr. Davey did admit that the complaint with the Commission was not filed within the one (1) year period because he was hoping for a successful result from the internal dispute mechanism. Furthermore, he also admitted that he had the complete information to support the acts (of September and October 2001) upon which the complaint is based in September 2002 when a staffing manager told him about the contents of the references from supervisors which may have prejudiced his job promotion. It is not until August 2003 that the Applicant approached the Commission and only in October 2003 that the complaint is officially filed. This is two (2) years after the occurrence of the acts on which the complaint is based.
CONCLUSION
[18] There does not seem to be any basis for interfering with the decision of the Commission to decline further investigation into the Applicant's complaint. This decision was not patently unreasonable.
[19] This is also an unsuitable situation in which to award costs to the Respondent. The Applicant, as a self-represented litigant, has an understanding of the situation which does not reflect a full understanding of the law. Therefore, no costs shall be awarded.
[20] The application for judicial review is dismissed without costs.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review be dismissed without costs.
"Simon Noël" Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-537-04
STYLE OF CAUSE: REGINALD W. DAVEY v. HER MAJESTY THE
QUEEN ET AL
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: October 14, 2004,
REASONS FOR : The Honourable Mr. Justice S. Noël
APPEARANCES:
Mr. Reginald W. Davey FOR APPLICANT
(ON HIS OWN BEHALF)
Mr. Kerry Boyd FOR RESPONDENT
SOLICITORS OF RECORD:
Calgary, Alberta FOR APPLICANT
(ON HIS OWN BEHALF)
Morris Rosenberg, Deputy Attorney General of
Canada (Edmonton Regional Office)
Edmonton, Alberta FOR RESPONDENT