Digests

Gee v. M.N.R.

A-81-01

2002 FCA 4, Strayer J.A.

9/1/02

17 pp.

Appeal from Applications Judge's decision ((2001), 8 C.C.E.L. (3d) 308) allowing application for judicial review from decision of Canadian Humans Rights Commission (CHRC)--Respondent commenced work with Department of National Revenue in 1989--In 1993 filed complaint with CHRC, alleging harassment or discriminatory behaviour by Douglas McLean who had been immediate supervisor until late summer 1991--CHRC dismissing complaint on basis more than one year elapsed since events of which complained --In December 1993 internal investigation finding 8 allegations well-founded--In 1995 respondent filed another complaint with CHRC, providing further information from internal investigation--Complaint again dismissed on basis more than one year elapsed since events complained of-- Respondent of view not placing higher than fifth on eligibility list for AU-03 position in 1991 because of discriminatory comments on evaluation made by supervisor--In 1995 respondent meeting with new Assistant Deputy Minister, signing Memorandum of Agreement, acknowledging personal difficulties endured by respondent, witnessing parties agreed to resolution of all matters arising out of respondent's complaint of harassment, agreeing to appoint respondent to AU-03 position without competition, but subject to right of appeal, and releasing Revenue Canada from any other claims or cause of action arising from facts--33 appeals launched-- Appellant conceding before Public Service Commission Appeal Board could not defend appointment--Board allowed appeals--Respondent lost AU-03 position, reverted to AU-02 position--Transferred to Consulting and Audit Canada where worked at lesser rate of pay than AU-03 position until April 1998 when promoted to position earning more than AU-03 position--In 1998 respondent filed another complaint with CHRC--CHRC decided to deal with complaint even though act complained of occurred more than one year before receipt of complaint, but decided pursuant to Canadian Human Rights Act (CHRA), s. 44(3)(b)(i) no further proceedings warranted --Applications Judge holding CHRC treated agreement as release, gave it legal effect as barrier to any subsequent complaint to CHRC--Characterized CHRC's decisions to dismiss as refusal to consider complaint because barred by Memorandum of Agreement--In his view Agreement contrary to public policy as "contracting out" of protection of CHRA, and CHRC erred in giving it any effect--Whether erred in holding CHRC should not have considered Memorandum of Agreement and in awarding costs on solicitor-client basis-- Appeal allowed--Standard of review for exercise of discretion provided in s. 44(3)(b)(i) that of reasonableness--In absence of clear reasons, Court looking at material before CHRC and result reached to see if rational basis for result--Applications Judge confined consideration to words of letter reporting CHRC's decision and to Agreement referred to therein--But other material before CHRC relevant to exercise of its discretion--CHRC had regard to all circumstances including alleged discrimination, harassment, internal investigation, acknowledgement of fault by Department, attempt to resolve all outstanding problems with Memorandum of Agreement-- While agreement improvident, misleading because foreseeable appeals would be taken, not unreasonable for CHRC to have regard to Department's explanation as to why could not defend appointment--Also legitimate for CHRC to have regard to fact already twice dismissing related complaints dealing with same acts of harassment, discrimination, which were foundation of 1998 complaint although latter included complaints as to appellant's conduct subsequent to Memorandum of Agreement--Language of CHRC's decision that of consideration of complaint and of decision not to direct further proceedings--If intended to reject complaint on grounds complainant released her rights, CHRC would have said so, and would not have dealt with complaint--Open to CHRC to consider other important features of agreement, providing rational basis for its conclusion--So-called "release" part of settlement of ongoing dispute over conditions of employment--Memorandum of Agreement dealt with settlement of same complaints already twice dismissed by CHRC--Parties not contemplating at that time that subject-matter of those complaints could be source of yet another complaint to CHRC--Applications Judge holding as agreement legally cannot exist, irrelevant consideration for CHRC in dismissing complaint--Even assuming agreement not to file another complaint about matters already subject of unsuccessful complaints to CHRC contrary to public policy, CHRC not treating paragraph of agreement as having that effect--Instead considered complaint, sent it for investigation decided no further proceedings warranted--Therefore must have ignored that portion of agreement which Applications Judge held was contrary to public policy, but had regard to remainder of Agreement--CHRC not required to ignore whole contract--No evidence before CHRC compelling it to ignore agreement as coercive, fraudulent or made in bad faith--Instead rational basis for CHRC's conclusion--Costs as awarded set aside, but costs not awarded against respondent as put to cost of litigation in part because of lack of clarity in CHRC's decision--Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 44(3)(b)(i) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64.