T-1373-97
Canada Post Corporation (Applicant)
v.
André Barrette (Respondent)
and
The Canadian Human Rights Commission (Intervener)
T-1375-97
Canada Post Corporation (Applicant)
v.
Murray Nolan (Respondent)
and
The Canadian Human Rights Commission (Intervener)
Indexed as: Canada Post Corp.v. Barrette (T.D.)
Trial Division, Evans J."Toronto, October 27 and December 16, 1998.
Administrative law — Judicial review — Decision of Canadian Human Rights Commission to investigate discrimination complaints — CHRC rejecting employer's request it exercise discretion under CHRA, s. 41(e) not to deal with complaint as out of time — Despite general reluctance to intervene before administrative process complete, Court may terminate Commission's investigation of complaint when benefits of determining question at this stage outweigh costs accompanying early judicial intervention — CHRA, s. 41 providing CHRC shall deal with any complaint filed unless, in respect of that complaint, it appears to Commission that it falls within one or more of 5 listed categories — Commission has prima facie duty to deal with complaint, discretion to deal with complaint to which one of paras. of s. 41 applies — CHRC must decide whether complaint within exception — Confirming court should not subject to close scrutiny CHRC's decision to deal with complaint — Since purpose of statutory scheme to reduce inequality, Court reluctant to conclude CHRC erred by taking too narrow view of exceptions — Closer judicial scrutiny justified if CHRC deciding not to deal with complaint, as normally final disposition of matter.
Human rights — Judicial review of CHRC's decision to investigate complaints of discrimination on ground of disability though out of time — CHRA, s. 41(e) providing CHRC shall deal with any complaint filed unless complaint based on acts, omissions, last of which occurring more than one year, or such longer period of time as CHRC considering appropriate in circumstances, before receipt of complaint — Respondent, Nolan, filing complaint 10 months outside one-year period that applies unless CHRC exercising discretion to extend — Court can only set aside CHRC's decision to proceed with complaint under s. 41(e) if satisfied CHRC manifestly refusing to exercise discretion, or exercise of discretion patently unreasonable — (1) (i) Investigator's report, on which CHRC based decision to proceed outside time limit, deficient as not covering issue of public interest in complaint as required in Compliance Manual — But failure to comply with non-statutory formal requirement not error of law — (ii) While neither CHRC's letter of decision nor s. 41 report providing positive rationale for exercise of s. 41(e) discretion, no statutory duty on CHRC to give reasons for proceeding in face of s. 41 objection; duty of fairness not imposing on CHRC duty to give complete statement of reasons for deciding to conduct investigation — CHRC neither erring in law nor abusing discretion when deciding to extend time by two months to enable it to deal with respondent, Barrette's, complaint — (2) CHRC's failure to refer to issue of whether should investigate complaint apparently made in bad faith, not leading to inference CHRC not considering it — Court should not impose stringent procedural standards on CHRC at this early stage — (3) As Nolan's complaint asserting discrimination on ground contained in CHRA, and limited facts before CHRC, its decision to proceed to investigation not patently unreasonable.
Estoppel — Whether doctrine of issue estoppel applies to prevent Canadian Human Rights Commission from investigating complaints already subject of unsuccessful grievance — S. 41(a) (exempting CHRC from requirement to deal with complaint where grievance, review procedures not exhausted) showing Parliament had in mind possibility of overlap between CHRC, grievance procedures, and gave CHRC discretion not to investigate until procedures exhausted — Would have expressly so stated had it intended to also give CHRC discretion not to investigate when procedures exhausted — Even assuming arbitrator's decision can estop CHRC from investigating, only possible to decide whether doctrine should apply after careful consideration of all circumstances — Cannot require CHRC at preliminary stage of investigation to engage in extensive investigation of facts, law to determine whether to apply doctrine of issue estoppel — Question should be addressed only after CHRC investigating complaint — CHRC may not refuse to investigate complaint on ground complainant pursued matter before labour arbitrator who decided grievance against complainant.
This was an application for judicial review of the Canadian Human Rights Commission's decision to investigate the respondents' complaints of discrimination on the grounds of disability.
While employed as a letter carrier, Nolan was convicted of indecent exposure in 1984 and 1990, and of exposing himself in a public place in 1995. Canada Post discharged him on February 17, 1995, on the ground that his behaviour was unacceptable. He grieved his discharge on the ground that he had been dismissed for off-duty misconduct that was irrelevant to his ability to do his job satisfactorily. An arbitrator denied his grievance on January 15, 1996. On October 17, 1996, Nolan filed a complaint alleging that in dismissing him Canada Post had discriminated against him on the basis of disability, in particular a psychological disorder manifested by a compulsion to expose himself and masturbate in public when under stress.
Barrette was unable to perform the duties of his super-visory position as a result of hypertension. He was transferred to another position, but lost his employment seniority with Canada Post. In December 1993, he grieved Canada Post's refusal to restore him to his previous supervisory position. Noting that Barrette had "practically dictated" the letter signed by his doctor stating that he was no longer suffering from a permanent disability, on June 10, 1996 an arbitrator dismissed his grievance. Barrette signed a complaint to the Commission on August 26, 1996, some 14 months after the last instance of alleged discrimination.
In each case, the Commission rejected a request by Canada Post that it exercise its discretion under Canadian Human Rights Act, section 41 not to deal with the complaint as out of time. Paragraph 41(e) exempts the Commission from the duty to investigate a complaint made more than a year after the last incident complained of, "or such longer period of time as the Commissioner considers appropriate in the circumstances".
The issues were: (1) whether it is appropriate for the Court to intervene in the administrative process before the Commission has even started its investigation thereby possibly culminating in an adjudication of the parties' rights; (2) whether the Commission failed to exercise according to law its discretion under paragraph 41(e) to investigate the complaints, even though they were filed more than a year after the last incidents of discrimination on which the complaints were based; (3) whether the Commission erred in law in proceeding to investigate Barrette's complaint, even though it was made in bad faith; (4) whether the Commission exceeded its jurisdiction by deciding to investigate Nolan's complaint, which was based on a ground of discrimination that is not prohibited by the Act, namely a criminal conviction; and (5) whether the Commission erred in law by failing to consider whether either of the complaints was barred by issue estoppel as a result of the arbitration awards.
Held, the application should be dismissed.
(1) Despite a general reluctance to intervene before completion of the administrative process, the Court may terminate the Commission's investigation of a complaint when the benefits of determining a question at this stage of the process, including saving the object of the complaint from unnecessarily having to mount a response to it, outweigh the costs that typically accompany early judicial intervention. The Commission has a prima facie duty to deal with a complaint, and a discretion to deal with a complaint to which one of the paragraphs of section 41 applies, and whether a complaint falls within one of those exceptions is left to the Commission to decide. This confirms that the Court should not subject to close scrutiny the Commission's decision to deal with a complaint.
Section 41 was drafted so as to leave many issues to the discretion of the Commission: this is incompatible with the notion that it should be interpreted as if it created a legal right in employers and others against whom complaints are made not to be investigated in specified circumstances. The Commission still has a discretion to deal with the complaint if it so chooses. While individuals against whom complaints are made undoubtedly benefit from the existence of the exceptions in section 41, the exceptions may also be regarded as inserted to enable the Commission to allocate its limited resources in an appropriate manner. Moreover, since the purpose of the statutory scheme is to reduce inequality, and accordingly has been said to possess a quasi-constitutional status, a court should be reluctant to conclude that the Commission has erred by taking too narrow a view of the exceptions to its statutory duty to deal with complaints of discrimination. On the other hand, it is arguable that closer judicial scrutiny is justified when the Commission decides not to deal with a complaint, which will normally be a final disposition of the matter.
(2) Given that the purpose of the Act is to advance the value of equality, the Court should set aside a decision by the Commission to proceed with a complaint under paragraph 41(e) only if satisfied that the Commission manifestly refused to exercise its discretion, or the exercise of its discretion was patently unreasonable.
(i) Canada Post argued that the investigator's report, on which the Commission based the decision to proceed outside the one-year time limit with respect to Nolan's complaint, was deficient because it did not address all three issues that the Compliance Manual, a non-statutory document issued by the Commission in 1994, provides must be considered when the discretion to extend the time limit is being exercised: prejudice to the respondent caused by the delay, length of the delay and any explanation for it, and the public interest in the complaint itself. The investigator's report was silent as to the public interest in the complaint itself. This deficiency did not, however, constitute an error of law that would justify judicial intervention. Even if the Manual were issued under a statutory power, non-compliance with a formal requirement specifying the matters that must be covered in an investigator's section 41 report would not necessarily invalidate the subsequent decision of the Commission to investigate a complaint. Since the report "covers" two of the three factors identified in the Manual, it contains enough to amount to substantial compliance, especially given the preliminary nature of the report, and the fact that the employer will have an opportunity to make further submissions to the Commission before it decides whether or not to proceed with the complaint. A failure to comply with a non-statutory formal requirement of this nature much less constitutes an error of law. Canada Post's submission to the Commission after it received the section 41 report did not specify how it would be prejudiced by an extension of time. It could not now attack the decision on the ground that it suffered a prejudice that it did not mention to the Commission.
(ii) While neither the section 41 report nor the Commission's letter of decision provided a positive rationale for the Commission's exercise of discretion concerning Nolan under paragraph 41(e), there is no statutory duty on the Commission to give reasons for proceeding in the face of a section 41 objection, and the duty of fairness does not impose on the Commission a duty to give a complete statement of its reasons for deciding simply to conduct an investigation. In reviewing an exercise of discretion by the Commission, especially at this preliminary stage, the Court's role is very circumscribed. The Commission did not overlook matters so crucial to the decision that it should be set aside as erroneous in law.
For the above reasons, the Commission did not err in law or abuse its discretion when it decided to extend the time by two months to enable it to deal with Barrette's complaint.
(3) It could not be inferred from the Commission's failure to refer to the issue of bad faith in its letter that the Commission did not consider it, especially when the letter expressly stated that the Commission had taken into consideration the letter from Canada Post containing its submissions. For the Court to impose stringent procedural standards on the Commission, and to subject to close scrutiny the Commission's decisions at the section 41 or screening stage of the process, would unduly hamper the Commission's ability to discharge its statutory mandate expeditiously and effectively.
(4) The Commission had not investigated the circumstances of Nolan's dismissal; establishing the ground on which his employment was terminated raised questions of fact and law upon which it would be inappropriate to rule at this preliminary stage of the administrative process. Given that Nolan's complaint asserted discrimination on a ground contained in the Canadian Human Rights Act, and that there were very limited facts before the Commission, the Commission's decision to proceed to an investigation was not patently unreasonable. Nor was the Commission's failure to deal with Canada Post's submission on this issue fatal to the validity of its decision to deal with the complaint.
(5) The determination of human rights is tangential to the general jurisdiction of labour arbitrators over disputes arising from the collective agreement whereas the investigation and adjudication of complaints of discrimination is at the very core of the mandate of the human rights tribunals created by statute. Because of the public responsibilities conferred by legislatures on the statutory decision makers and the purpose-designed decision-making process, there has been considerable reluctance to apply the doctrine of issue estoppel to the adjudication of human rights complaints by the specialist tribunals. The case for applying the doctrine of issue estoppel at the section 41 stage, before the Commission has investigated the complaint seems even weaker. Paragraph 41(a) shows that Parliament had in mind the possibility of overlap between the Commission and grievance procedures available to the complainant, and gave to the Commission a discretion not to investigate if the complainant had not exhausted them. If it had intended also to give the Commission a discretion not to investigate when those procedures had been exhausted, it would have said so, rather than leaving the issue to be dealt with under the general jurisdiction clause in paragraph 41(c). Second, on the assumption that a decision of an arbitrator can ever estop the Commission or the Tribunal from reinvestigating, it will only be possible to decide whether the doctrine should apply in a given case after a careful consideration of all the circumstances, including: the jurisdiction of the arbitrator and the remedies available; the adequacy of the investigation and representation by the union and the possible existence of labour relations considerations that are extraneous to the statutory investigation and adjudication of human rights complaints; and the identity of the issues and the parties. Section 41 is intended to enable the Commission to screen out cases that are obviously unmeritorious on their facts or in law, or should not otherwise be dealt with at that time. It would be both unduly burdensome and productive of unnecessary delay to require the Commission to engage, at this preliminary stage of the process, in the extensive investigation and assessment of issues of fact and law that might be necessary before it could determine whether to apply the doctrine of issue estoppel. This question should be addressed only if the Commission has investigated the complaint, when "having regard to all the circumstances of the complaint" pursuant to subparagraphs 44(3)(a )(i) and (b)(i), it may decide either to request an adjudication by the Tribunal when warranted, or to dismiss the complaint.
It would be particularly inappropriate to require the Commission to consider the application of issue estoppel to Nolan who did not grieve his dismissal on the ground of discrimination by virtue of a disability, because this would raise yet another range of issues, such as why he did not rely on disability before the arbitrator, and whether it was reasonable for him not to have done so.
statutes and regulations judicially considered
Canada Labour Code, R.S.C., 1985, c. L-2, s. 22(1) (as am. by S.C. 1990. c. 8, s. 56), (2).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3(1), 7, 41, 44(3)(a)(i) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64), (b)(i) (as am. idem).
Employment Standards Act, R.S.O. 1980, c. 137.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).
Public Service Employment Act, R.S.C., 1985, c. P-33, s. 31.
cases judicially considered
applied:
British Columbia v. Tozer, [1998] B.C.J. No. 2594 (S.C.) (QL); Canada Post Corp. v. Canadian Human Rights Commisson et al. (1997), 130 F.T.R. 241 (F.C.T.D.); Boudreault v. Canada (Attorney General) (1995), 99 F.T.R. 293 (F.C.T.D.).
distinguished:
Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; (1995), 125 D.L.R. (4th) 583; 30 Admin. L.R. (2d) 1; 12 C.C.E.L. (2d) 1; 24 C.C.L.T. (2d) 217; 95 CLLC 210-027; 30 C.R.R. (2d) 1; 183 N.R. 241; 82 O.A.C. 321; Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267; 112 D.L.R. (4th) 683; 1 C.C.E.L. (2d) 161; 94 CLLC 14,024; 68 O.A.C. 284 (C.A.).
considered:
Canada (Attorney General) v. Canada (Canadian Human Rights Commission) (1991), 4 Admin. L.R. (2d) 251; 36 C.C.E.L. 83; 91 CLLC 17,016; 43 F.T.R. 47 (F.C.T.D.); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R. 1; Charlebois v. Canada (Canadian Human Rights Commission) (re Ottawa-Carleton Regional Transit Commission), [1998] F.C.J. No. 1335 (T.D.) (QL).
referred to:
Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.); Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574; (1994), 73 F.T.R. 161 (T.D.); Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 S.C.R. 3; (1996), 134 D.L.R. (4th) 1; 39 Admin. L.R. (2d) 1; 196 N.R. 212.
authors cited
Abramsky, R. H. "The Problem of Multiple Proceedings: An Arbitrator's Perspective" in Labour Arbitration Yearbook 1996-97, 45.
Adell, Bernard. "The Rights of Disabled Workers at Arbitration and under Human Rights Legislation" (1993), 1 Can. Lab. Law J. 46.
APPLICATION for judicial review of the Canadian Human Rights Commission's decision to investigate complaints of discrimination on the ground of disability even though arbitrators had dismissed both complaints, and the complaints were out of time. Application dismissed.
appearances:
Paula M. Rusak for applicant.
Odette Lalumière for intervener.
André Barrette on his own behalf.
Murray Nolan on his own behalf.
solicitors of record:
Matthews, Dinsdale & Clark, Toronto, for applicant.
Canadian Human Rights Commission, Legal Counsel, Ottawa, for intervener.
The following are the reasons for order rendered in English by
Evans J.:
A. Introduction
This is an application for judicial review by Canada Post Corporation (hereinafter Canada Post) under section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5) for an order setting aside a decision by the Canadian Human Rights Commission (hereinafter the Commission) to investigate complaints of discrimination by Mr. André Barrette, an employee of Canada Post, and Mr. Murray Nolan, a former employee (file nos. T-1373-97 and T-1375-97 respectively). The complainants, who are the respondents in this application, allege that Canada Post has discriminated against them on the ground of disability contrary to section 7 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (as amended) (hereinafter the CHRA).
The Commission was granted leave to intervene in both cases by an order of Tremblay-Lamer J. dated October 20, 1997 for the purpose of explaining the Commission's jurisdiction to deal with the complaints and the records before the Commission when it made its decisions.
While these applications for judicial review relate to different incidents and are factually distinct, they also raise some similar legal issues. Accordingly, the applications were joined as a result of an order of Richard J. (as he then was) dated May 1, 1998.
B. Factual Background
(i) Murray Nolan's complaint
Mr. Nolan began his employment with Canada Post in 1976 as a letter carrier. He was convicted of indecent exposure in 1984 and received an absolute discharge. He was convicted on two counts of indecent exposure in 1990, and was sentenced to three months in jail and placed on probation for two years.
Following his conviction in 1990, Canada Post advised Mr. Nolan that his employment as a letter carrier with Canada Post was terminated effective April 10, 1990. The termination letter stated that:
. . . on April 10, 1990, you were sentenced to two concurrent periods of imprisonment of three months each, the sentences were imposed following your plea of guilty to indecently exposing yourself to very young females in the Saint John area on February 15 and 18, 1990. As a result of your criminal act the Corporation has determined that your employment is terminated effective April 10, 1990. This action is taken to protect the Corporation, its employees and customers.
On November 12, 1991, Mr. Nolan was convicted of violating a term of his probation order by being alone in a car, a situation that for Mr. Nolan correlated to exhibitionism.
Mr. Nolan grieved the termination of his employment under the collective agreement. In a decision dated January 14, 1992, the arbitrator substituted for the termination a suspension without pay or benefits for one year effective from June 9, 1990, and ordered that he be reinstated as a letter carrier position effective June 10, 1991.
On February 6, 1995 Mr. Nolan was again convicted of exposing himself in a public place. In a letter dated February 17, 1995 Canada Post informed Mr. Nolan that he was discharged, on the ground that his behaviour was unacceptable, even though the act for which he was convicted occurred outside the work environment; Canada Post stated that it was concerned with its reputation in the community.
CUPW, the union representing Mr. Nolan, filed a grievance on March 15, 1995 alleging that he had been dismissed in breach of the collective agreement In a decision, dated January 15, 1996, an arbitrator found that, although committed off-duty, Mr. Nolan's conduct and the ensuing conviction would detrimentally affect the legitimate interests of Canada Post and would adversely affect his ability to continue in the workplace. The arbitrator also found that there was no evidence before him indicating that Mr. Nolan was unlikely to repeat his behaviour. Consequently, the arbitrator denied the grievance and upheld Canada Post's decision to discharge Mr. Nolan.
On receipt of this decision, Mr. Nolan complained to the Commission that, in dismissing him, Canada Post had discriminated against him on the basis of disability contrary to section 7 of the CHRA. In particular, he alleged that the conduct that had given rise to the convictions was the result of a psychological disorder which, in his case, manifested itself in a compulsion to expose himself and masturbate in public when under severe stress. Mr. Nolan signed his complaint form on October 17, 1996, some twenty months after his termination by Canada Post, the last alleged act of discrimination.
In a letter dated May 29, 1997, the Commission rejected a request from Canada Post that the Commission exercise the discretion conferred by several paragraphs of section 41 of the CHRA not to deal with the complaint, without an investigation. Of the several grounds urged by Canada Post for the Commission's not proceeding, the letter from the Commission referred to only one, namely that the complaint was out of time.
(ii) André Barrette's complaint
Mr. Barrette has been employed in Sudbury, Ontario by Canada Post since November of 1970. He started as a full-time postal clerk, and became an acting supervisor and a member of the Association of Postal Officials of Canada (APOC) in 1987. In February of 1988 he was appointed to the full-time position of supervisor in the Sudbury mail processing plant. Mr. Barrette stated that from September 1992 he started to suffer from health problems which were identified at the time as hypertension. His condition coincided with the de-mechanization of the Sudbury plant, and its return to manual mail sorting, and resulted in Mr. Barrette's inability to do his job properly.
In September 1993, Mr. Barrette met with Ms. Thiessen, a Vocational Rehabilitation Specialist employed by Canada Post, following a diagnosis provided by the medical consultant to Canada Post. The diagnostic report stated that Mr. Barrette was suffering from hypertension, a permanent medical condition that rendered him unfit to supervise other employees, as required by the position that he held. This conclusion was informed by a discussion between Canada Post's doctor and Mr. Barrette's psychiatrist.
On the basis of this information, and an interview with Mr. Barrette and his union representative, Ms. Thiessen looked for a position for which he was suited, with or without accommodation for his medical condition. Ms. Thiessen testified in the subsequent arbitration proceeding that, in these circumstances, she tries to find a position for an employee in any of the different bargaining units with comparable salary, hours and employee benefits. Ultimately, an alternative position was found for Mr. Barrette, and he did not lose his status as a full-time employee, and remains to this day employed as an acting postmaster. However, he lost his employment seniority with Canada Post.
Mr. Barrette grieved the refusal of Canada Post to restore him to his previous supervisory position because it was not satisfied that he was no longer suffering from the condition that had led to his removal from it. In a grievance filed on December 22, 1993 he alleged that Canada Post had discriminated against him on the basis of disability by refusing to accommodate him, and by denying him employment opportunities pursuant to section 7 of the CHRA. The union argued that Mr. Barrette's hypertension was also related to a sleep disorder. However, medical evidence was adduced by Canada Post which doubted whether the grievor's main problem, hypertension, aggravated by the supervision of employees, would be alleviated by treatment for this other disorder.
In an award dated June 10, 1996, the arbitrator concluded that the grievor had not established that there had been any change in the facts that resulted in Mr. Barrette's removal from his supervisory position. The arbitrator referred particularly to Mr. Barrette's evidence that he had dictated the note signed by his psychiatrist stating that he was fit to return to work, and to the fact that he had withdrawn his consent for the release of medical information to Canada Post by his psychiatrist.
The arbitrator determined that, once it was established that Mr. Barrette could not perform the duties of his position as supervisor because of his disability, Canada Post was not obliged to continue to employ him, apart from its duty reasonably to accommodate him, which it had discharged by deploying him to a comparable position for which he was suited.
Dissatisfied with this decision, Mr. Barrette complained to the Commission on July 3, 1996, some 14 months after the last instance of alleged discrimination by Canada Post in refusing to reinstate him to his supervisory position. He signed the complaint on August 26, 1996.
Relying on several paragraphs of section 41 of the CHRA, Canada Post requested the Commission not to investigate the complaint. However, in May 29, 1997 the Commission decided to proceed, but referred to only one of the grounds advanced by Canada Post, namely, that the Commission should not exercise its discretion to investigate a complaint that was out of time.
C. Legislative Framework
The provisions of the CHRA relevant to this proceeding are as follows:
3. (1) For all purposes of this Act, . . . disability . . . . are prohibited grounds of discrimination.
. . .
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
. . .
41. 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.
The collective agreement applicable to Mr. Nolan contained the following provision:
5.01. There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or stronger disciplinary action exercised or practised with respect to an employee by reason of age, race, creed, colour, national origin, political or religious affiliation, sex, physical or emotional handicap, sexual orientation, marital status, family status, conviction for an offence for which a pardon has been received, or membership or activity in the Union. [Underlining added.]
The arbitrations held to adjudicate the grievances of Mr. Nolan and Mr. Barrette were conducted under the Canada Labour Code, R.S.C., 1985, c. L-2, (as amended), Part I, the following subsections [subsection 22(1) (as am. by S.C. 1990, c. 8, s. 56)] of which have a bearing on these proceedings:
22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Court Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall
(a) be questioned, reviewed, prohibited or restrained, or
(b) be made the subject of any proceedings in any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,
on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction."
C. The Issues
Counsel for the applicant identified the following legal issues as arising from these facts.
1. Did the Commission fail to exercise according to law its discretion under paragraph 41(e) of the CHRA to investigate the complaints, even though they were filed more than a year after the last incidents of discrimination on which the complaints were based?
2. Did the Commission err in law in proceeding to investigate Mr. Barrette's complaint, even though it was made in bad faith?
3. Did the Commission exceed its jurisdiction by deciding to investigate Mr. Nolan's complaint, which was based on a ground of discrimination that is not prohibited by the Act, namely, a criminal conviction?
4. Did the Commission err in law by failing to consider whether either of the complaints was barred by issue estoppel as a result of the arbitration awards?
D. Analysis
The pervasive issue: prematurity
Before I consider these questions in any detail, however, it is important to tackle an overarching issue emphasized by counsel for the Commission in her submissions. This is the appropriateness of judicial intervention at this early stage of an administrative proceeding that may possibly culminate in an adjudication of the parties' rights by a Tribunal. I must emphasize that the applicants in these cases are seeking judicial intervention in the administrative process before the Commission has even started its investigation of the complaints.
As is well known, courts have become increasingly reluctant to intervene even at the later point in the process when, after considering an investigative report and the legal issues raised by a complaint, the Commission decides to refer a matter to the Tribunal, which will determine the parties' rights. A recent example is provided by Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.). This policy of judicial restraint is designed to avoid, for example, a multiplicity of proceedings that might otherwise arise from the same matter; to prevent unnecessary delays in the processing of complaints and the wasteful expenditure of agency resources; and to ensure that any legal rulings made in an application for judicial review are based on a factual record developed after an adjudicative hearing, and have the benefit of the Tribunal's view of the issues. Finally, of course, the Tribunal's decision may render moot the question that the applicant wished the Court to decide earlier.
Nonetheless, despite this general reluctance to intervene before the administrative process has run its course, the Court may terminate the Commission's investigation of a complaint when the benefits of determining a question at this stage of the process, including saving the object of the complaint from unnecessarily having to mount a response to it, outweigh the kinds of costs identified above that typically accompany early judicial intervention. However, in my opinion it will be the rare case in which a court will be satisfied that a cost-benefit analysis militates against delaying intervention until the matter has been the subject of an administrative adjudication by a specialized tribunal in accordance with the statutory scheme.
The language of section 41 confirms that the Court should not subject to close scrutiny the Commission's decision to deal with a complaint. Subject to section 40, which is not relevant here, the section 41 of the CHRA provides that "the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that" [emphasis added] it falls within one or more of five listed categories. In addition, as we shall see, some of the exceptions themselves are framed in language that requires the Commission to exercise discretion, either express or implicit, in light of the facts before it.
It is important to note here that the Commission has a prima facie duty to deal with a complaint, that it has a discretion to deal with a complaint to which one of the paragraphs of section 41 applies, and that whether a complaint falls within one of those exceptions is left to the Commission to decide.
Counsel for Canada Post, Ms. Rusak, submitted that the listed exceptions to the Commission's duty to deal with a complaint should be regarded as enacted for the benefit of employers and others against whom complaints are made, and that the Court should be vigilant to ensure that the Commission does not erode those statutory rights. For example, she said, when the Commission decides to deal with a complaint that it received more than a year after the last incident on which it was based, as it did in this case, it is depriving the person complained against of a prima facie legal immunity from investigation after twelve months have elapsed from the last incident of alleged discrimination. Accordingly, there is an onus on the Commission to justify its exercise of discretion to remove a statutory right.
I am unable to accept that this is an appropriate approach to section 41. For one thing, as I have noted, the section is drafted in a way that leaves many issues to the discretion or judgment of the Commission: this is incompatible with the notion that it should be interpreted as if it created a legal right not to be investigated in specified circumstances. The Commission still has a discretion to deal with the complaint if it so chooses. While individuals against whom complaints are made undoubtedly benefit from the existence of the exceptions in section 41, the exceptions may also be regarded as inserted to enable the Commission to allocate its limited resources in an appropriate manner.
Moreover, since the purpose of the statutory scheme is to reduce inequality, and accordingly has been said to possess a quasi-constitutional status, a court should be reluctant to conclude that the Commission has erred by taking too narrow a view of the exceptions to its statutory duty to deal with complaints of discrimination. On the other hand, it is arguable that closer judicial scrutiny is justified when the Commission decides not to deal with a complaint, which will normally be a final disposition of the matter.
With these preliminary observations in mind, I shall now consider the particular issues raised by these cases.
Issue 1: The timeliness of the complaints
Paragraph 41(e) exempts the Commission from the duty to investigate a complaint that was made more than a year after the last incident complained of, "or such longer period of time as the Commission considers appropriate in the circumstances" [emphasis added.] Given that the purpose of the Act is to advance the value of equality, the Court should only be prepared to set aside a decision by the Commission to proceed with a complaint under this paragraph if satisfied that the Commission manifestly refused to exercise its discretion, or its exercise was patently unreasonable because, for example, it was based on considerations that bore no rational relationship to the reasons for the grant of the discretion or overlooked matters that it equally obviously ought to have considered, or it gave unreasonably little weight to some factors and far too much weight to others.
Mr. Nolan
Mr. Nolan was terminated in February 1995, and first contacted the Commission three months later, in April 1995. At that time he was advised by an employee of the Commission to pursue the matter through the grievance procedure provided by the collective agreement. In giving this advice, the individual concerned no doubt had in mind the fact that paragraph 41(a) exempts the Commission from its duty to deal with a complaint if the complainant ought to have exhausted "grievance or review procedures otherwise reasonably available".
After receiving a negative decision from the arbitrator in January 1996, Mr. Nolan waited until April to contact the Commission again, and did not sign the complaint until October 1996, at which point Canada Post was advised of it. As counsel for the applicant pointed put, if Mr. Nolan had filed his complaint as soon as he received the arbitrator's decision he would still have been in time. Instead, he filed it 10 months outside the one-year period that applies unless the Commission exercises its discretion to extend it.
Counsel attacked the legality of the Commission's decision on several grounds.
(i) Inadequacies in the investigator's report
Chapter 4.2(4) of the Compliance Manual, a non-statutory document issued by the Commission in 1994, provides that, where an alternative grievance procedure is available, a complaint is not signed until that other remedy has been exhausted. However, where the redress is not immediately available, or the issue of timeliness under the CHRA may arise before the completion of the process, a formal complaint is signed straight away and held in abeyance pending the outcome of the other proceeding.
While applications for judicial review have been dismissed because the Commission complied with its own procedures, counsel produced no case in which an application was allowed solely on the basis of non-compliance. Indeed, a failure to comply with non-statutory guidelines issued for the guidance of officials in the exercise of their statutory powers does not in itself constitute reviewable error: Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2. Moreover, the language of the relevant passage in the Manual indicates that it was intended to be merely advisory, not mandatory in nature.
Although the Manual is not altogether clear on the point, I have assumed that the person against whom the complaint is made is notified when the complaint is formally filed, even though it is to be "held in abeyance" pending the complainant's exhaustion of the alternative remedy. However, I am not satisfied that the Commission failed to comply with the Manual. There is, for example, no evidence in the record about what was said when Mr. Nolan met the Commission official in April 1995. It is possible that at that meeting Mr. Nolan was advised to file a complaint which would be held in abeyance pending the outcome of the grievance, but refused. Neither the CHRA, nor the Manual states that, in these circumstances, a complaint filed later must be rejected.
Counsel for Canada Post also argued that the investigator's report, on which the Commission based the decision to proceed outside the one-year time limit, was deficient because it did not comply with Chapter 4.2(6) of the Manual. In particular, it did not address all three issues that the Manual provides must be considered when the discretion to extend the time limit is being exercised: the prejudice to the respondent caused by the delay, the length of the delay and any explanation for it, and the public interest in the complaint itself.
The investigator's report briefly set out the chronology relating to the complaint, and noted that the applicant had unsuccessfully grieved his termination. It also stated that there was no evidence that Canada Post would be prejudiced by an extension of time, and noted that its records relating to the termination were likely still to be available to it since they would have been used for the arbitration proceeding.
The report's statement of the chronology, and the reference to the applicant's prior resort to arbitration, satisfied the Manual's requirement that reports must "cover" the length of the delay and its cause.
By referring to the fact that Canada Post can be expected still to have its records available after the conclusion of the arbitration, the report clearly addressed the question of any prejudice to Canada Post that an extension of time would cause. However, counsel took issue with the conclusion that there was no prejudice, arguing that if Canada Post had known of the existence of the complaint earlier, it would have presented its case differently before the arbitrator and addressed the issue of disability. In my opinion, this objection does not demonstrate that the report did not "cover" the question of prejudice, especially since the letter of February 14, 1997 written on behalf of Canada Post to the Commission prior to the investigator's report did not mention any prejudice to the employer.
On the other hand, since the report is silent on the public interest in the complaint itself, the report cannot be said to have "covered" this issue as required by the Manual. Counsel put the point another way when she said that there is nothing in the report that provides a positive justification for extending the time under paragraph 41(e ).
However, I am not satisfied that this deficiency constitutes an error of law that would justify judicial intervention. Even if the Manual were issued under a statutory power, which it is not, non-compliance with a formal requirement specifying the matters that must be covered in an investigator's section 41 report would not necessarily invalidate the subsequent decision of the Commission to investigate a complaint. Since the report "covers" two of the three factors identified in the Manual it contains enough to amount to substantial compliance, especially given the preliminary nature of the report, and the fact that the employer will have an opportunity to make further submissions to the Commission before it decides whether or not to proceed with the complaint. Much less does a failure to comply with a non-statutory formal requirement of this nature constitute error of law.
(ii) The Commission's letter of decision to extend time
When the section 41 report was disclosed to the parties, Canada Post made detailed written submissions to the Commission addressing a number of issues. On the question of timeliness, Canada Post's principal submission was that the report did not provide a rationale for the Commission to proceed with this out-of-time complaint. The letter advising Canada Post that the Commission had exercised its discretion under paragraph 41(e) to proceed with the complaint contained no more by way of reasons than what was in the investigator's report. This letter also stated that, before rendering their decision, members of the Commission had taken into account both the section 41 report and the submissions of Canada Post.
Counsel for Canada Post argues that it can be inferred from this letter that the Commission failed to exercise its statutory discretion under paragraph 41(e) according to law, because it provided no rationale for proceeding with a complaint that was filed outside the one-year time limit. In support of this argument counsel noted that the one-year limitation period is a statutory benefit of which a respondent to a human rights complaint should not be deprived in the absence of good reason being shown.
In support of this contention, counsel relied on the following statement by Muldoon J. in Canada (Attorney General) v. Canada (Canadian human Rights Commission) (1991), 4 Admin. L.R. (2d) 251 (F.C.T.D.), where he said (at pages 273-274) when setting aside a decision by the Commission to proceed with an out-of-time complaint:
In failing to evince some deliberate exercise of power by its resolution, the commission simply does not exercise the power accorded to it under para. 41(e) . . . .
It is just too plain for elaboration that if the employer is to be deprived of the benefit which Parliament provided [scil. in paragraph 41(e) of the CHRA)], the commission must give some cogent signal or demonstration of why it considered it to be appropriate so to deprive the employer. But the commission is just moribund on that score. It did not even mention its own internal guidelines for extending the time . . . .
In my opinion, however, in the case at bar the Commission expressly addressed considerations relevant to the exercise of its discretion, including those contained in the Manual, such as the absence of any evidence of prejudice to the employer and the explanation for the complainant's delay in signing a formal complaint. Canada Post's submissions to the Commission after it received the section 41 report did not specify how it would be prejudiced by an extension of time. It cannot now attack the decision on the ground that it suffered a prejudice that it did not mention to the Commission prior to its decision.
It is true that neither the section 41 report, nor the Commission's letter of decision, provided a positive rationale for the Commission's exercise of discretion under paragraph 41(e). However, there is no statutory duty on the Commission to give reasons for proceeding in the face of a section 41 objection, and I do not think that the duty of fairness imposes on the Commission a duty to give a complete statement of its reasons for deciding simply to conduct an investigation. As for the argument that there is an onus on the Commission to provide a positive explanation to investigate an out-of-time complaint, I have already indicated that in my view the provisions of section 41 exempting the Commission in various circumstances from dealing with a complaint should not be regarded as enacted solely for the benefit of the person against whom a complaint has been made.
It is important to remember that, in reviewing an exercise of discretion by the Commission, especially at this preliminary stage of the process, the Court's role is very circumscribed. While it would no doubt have been helpful to have had a more detailed explanation of the Commission's decision to extend the time in which the complaint could be made, I cannot say that the Commission overlooked matters so crucial to the decision that it should be set aside as erroneous in law.
Mr. Barrette
The general factual matrix of the timeliness issue as it relates to Mr. Barrette is very similar to that in Mr. Nolan's case, as is Canada Post's objection to the Commission's proceeding to deal with it. However, since Mr. Barrette signed the complaint only two months beyond the normal one-year period, counsel understandably did not press her argument on this issue as vigorously as she did with respect to Mr. Nolan.
For the reasons that I have already given, the Commission did not err in law or abuse its discretion when it decided to extend the time by two months to enable it to deal with Mr. Barrette's complaint.
Issue 2: Did the Commission err in law in failing to dismiss Mr. Barrette's complaint under paragraph 41(e) on the ground that it was made in bad faith?
The basis of Canada Post's contention here is that the arbitrator who had heard Mr. Barrette's grievance against the employer's refusal to reinstate him to his former position had found, on the basis of Mr. Barrette's own testimony, that he had "practically dictated" the letter signed by his doctor stating that he was no longer suffering from a permanent disability. Moreover, Mr. Barrette had withdrawn his permission for the doctor to discuss his medical condition with Canada Post.
Counsel further alleged that, when it made its decision to proceed, the Commission did not have before it the submissions made by Canada Post in response to the investigator's section 41 report, to which it does not refer in its letter of decision. Indeed, the decision letter refers only to the timeliness issue and says nothing about the other matters raised by Canada Post, including the allegation of bad faith. In other words, the allegation is that the Commission failed to take into account relevant considerations when concluding that "it appears to the Commission" that the complaint was made in bad faith.
Contrary to Canada Post's assertion, the letter of decision from the Commission explicitly states that the decision was made on the basis of, among other things, Canada Post's lengthy submissions in response to the section 41 report. However, it is the case that the Commission's letter did not address Canada Post's submissions with respect to the issue of bad faith, which was one of the three main points made in those submissions.
Counsel for the Commission, Ms. Lalumière, said that the Commission was not obliged to deal with every aspect of the objections made pursuant to section 41; timeliness was the main bone of contention between Canada Post and the Commission, and it was sufficient that the letter dealt with that. Indeed, even when the Commission has conducted an investigation and has decided not to refer a complaint to a Tribunal, a decision that is effectively final as far as the complainant is concerned, the duty of fairness does not impose a standard of thoroughness that requires it to refer to every issue raised in the complaint: Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.).
I start with the proposition that the Commission is under no legal duty to give reasons for its decision to proceed to an investigation, desirable as it is as a matter of good administration and decency that reasons be provided. The question in this case is whether it is possible to infer from the fact that the Commission gave reasons that responded to one of Canada Post's submissions that it did not consider the others, including the question of bad faith. Ms. Lalumière's assurance that the Commission would want to examine this issue in the course of its investigation is not responsive to the concern stemming from the perceived inadequacy of the decision letter.
Nonetheless, I am unable to infer from the Commission's failure to refer to this issue in its letter that the Commission did not consider it, especially when the letter expressly states that the Commission had taken into consideration the letter from Canada Post containing its submissions. Again, I would stress that this challenge is being made at a very early stage in the administrative process, when it is a very long way from determining anyone's legal rights. Indeed, even before the matter reaches the adjudicative stage, Canada Post will have another opportunity to make submissions in response to the investigative report and recommendations. For the Court to impose stringent procedural standards on the Commission, and to subject to close scrutiny the Commission's decisions at the section 41 or screening stage of the process, would in my opinion unduly hamper the Commission's ability to discharge its statutory mandate expeditiously and effectively.
Issue 3: Did the Commission exceed its jurisdiction when it decided to investigate Mr. Nolan's complaint which was based on a ground of discrimination that is not contained in the CHRA, namely, criminal convictions?
Canada Post's argument here is that Mr. Nolan was dismissed on the basis of his convictions for indecent exposure. There has been no suggestion that he is unable to perform his work, as is generally the case when the real reason for an employee's dismissal is disability. Indeed, disability was not an issue in the arbitration, but only arose when he went to the Commission. Mr. Nolan is in effect seeking to re-litigate his dismissal based on his criminal convictions by asserting that he was dismissed on the ground of disability, and the Commission should have dismissed the complaint under paragraph 41(d), since it has no jurisdiction over adverse action taken by an employer on the ground of an employee's criminal record, except where a pardon has been granted.
Counsel relied on Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, where it was held that the Tribunal exceeded its jurisdiction by treating what was in essence a complaint of discrimination on the ground of sexual orientation, which was not then a prohibited ground of discrimination, as one of discrimination on the ground of family status, which was, and still is, a prohibited ground.
I do not think that there is anything in this point. There has been no investigation by the Commission of the circumstances of Mr. Nolan's dismissal; establishing the ground on which his employment was terminated raises questions of fact and law upon which it would be entirely inappropriate for me to rule at this preliminary stage of the administrative process. Given both that Mr. Nolan's complaint asserted discrimination on a ground contained in the CHRA, and that there were very limited facts before the Commission, it cannot be said that the Commission's decision to proceed to an investigation was patently unreasonable. Nor, for reasons given earlier, do I regard the Commission's failure to deal with Canada Post's submission on this issue as fatal to the validity of its decision to deal with the complaint.
Issue 4: Did the Commission err in law by failing to consider whether either of the complaints was barred by issue estoppel?
This is by no means the first case in which difficulties are perceived to have arisen from the fact that human rights issues may be litigated in more than one administrative forum. The statutory bodies with general responsibility in this area, namely human rights commissions and the specialized adjudicative tribunals to which they may refer complaints that they have investigated, do not enjoy an exclusive jurisdiction over allegations of unlawful discrimination. For instance, labour arbitrators generally have jurisdiction to hear and determine grievances alleging that an employer has breached the collective agreement by engaging in discriminatory conduct that violates human rights legislation.
Indeed, by giving the Commission a discretion not to investigate a complaint before the complainant has exhausted "grievance or review procedures", paragraph 41(a ) of the CHRA acknowledges both that the Commission does not have exclusive jurisdiction over complaints of discrimination contrary to the Act, and that it may be more appropriate for the complainant to have resort to those other procedures.
Counsel for Canada Post went on to argue that, once the Commission has decided not to investigate a complaint under paragraph 41(a), a complainant may not then return to the Commission after losing in a grievance arbitration. The discretion under this paragraph is exercisable on a one-time-only basis. In other words, once the Commission has decided to exercise its discretion not to deal with a complaint under paragraph 41(a), its jurisdiction over that complaint is ousted by the rendering of a decision by the arbitrator.
She supported this interpretation of paragraph 41(a) by contrasting its wording with that of paragraph 41(b), which also deals with concurrency of jurisdiction and exempts the Commission from its duty to deal with complaints that could more appropriately be dealt with "initially or completely" [emphasis added] by a procedure established by Parliament under another Act. The omission from paragraph 41(a ) of the adverb "initially" indicates, she argued, that Parliament intended that, once the matter had been dealt with through the grievance procedure, the Commission had no power to entertain the complaint. The reason for this difference, she suggested, was that courts defer to arbitral awards and that it would be contrary to the legislative policy of ensuring the expeditious resolution of workplace disputes through arbitration to permit the Commission to reopen issues that had already been resolved in that forum.
Since no formal complaint was made by either of the respondents in the cases before me until after their grievances had been dismissed by the arbitrators, paragraph 41(a) does not apply here, and consequently it is unnecessary for me to address this issue.
The aspect of the relationship between arbitral proceedings and complaints made under human rights legislation raised by the cases at bar is whether the doctrine of issue estoppel applies so as to prevent the Commission from investigating complaints that have already been the subject of an unsuccessful grievance.
While the facts of these cases have much in common, there is one difference between them that I should note at this stage. The arbitrator in Mr. Nolan's case did not consider whether he had been dismissed on the ground of disability, nor, of course, whether Canada Post had discharged its duty to accommodate a person with his disability. Mr. Nolan did not rely on Article 5.01 of the collective agreement between Canada Post and CUPW, which provides that there shall be no discrimination on specified grounds, including "physical or emotional handicap". The basis of his grievance was that he had been dismissed for off-duty misconduct that was irrelevant to his ability to do his job satisfactorily. Canada Post argued that it was bad faith on the part of Mr. Nolan not to raise the disability issue before the arbitrator, especially since, when he first approached the Commission, Mr. Nolan was advised to pursue his complaint through the grievance procedure.
Mr. Barrette, on the other hand, did grieve Canada Post's refusal to restore him to his former position, and to reinstate his seniority rights; the arbitrator held that Canada Post had discharged its duty to accommodate Mr. Barrette's medical condition.
Counsel for Canada Post did not assert that the respondents were barred by issue estoppel from investigating the complaint, because whether the doctrine applied to these cases would depend on a careful examination of all the circumstances. Rather, Ms. Rusak's objection was that the Commission took the view that issue estoppel was not relevant for the purpose of section 41. In her submission, the Commission exceeded its jurisdiction by deciding to investigate these complaints without first satisfying itself that Mr. Barrette was not simply seeking a second opportunity to relitigate an issue that had already been decided against him in another forum, and that Mr. Nolan was not seeking an opportunity to raise an issue before the Commission that he could and should have raised before the arbitrator.
Important and difficult issues are raised by the question of whether, and in what circumstances, a person should be prevented from relitigating essentially the same issue before tribunals with concurrent jurisdiction that operate under different mandates, from different perspectives and with different legal powers and procedures, and in proceedings involving different parties. In the context of human rights legislation, the essence of the problem is to balance the minimization of the costs of duplicative administrative proceedings against the need to ensure that the statutory bodies with primary responsibility for pursuing the public policy objective of reducing discrimination, here, the Commission and the Tribunal, are not prevented from discharging their mandate.
As counsel pointed out, the courts have recently demonstrated a concern to reduce the possibility of multiple claims in cases in which a matter appears to be within the jurisdiction of both the courts and an administrative agency. For instance, in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 it was held that a court had no original jurisdiction over a claim that the plaintiff's Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] rights had been infringed by the defendant, his employer, because the allegation if true, would have been a breach of the terms of a collective agreement and should have been pursued through arbitration. If dissatisfied with the arbitrator's award, the plaintiff's remedy would be to seek judicial review, not to launch a separate proceeding in court. The Court relied for this conclusion on the clauses in the labour relations statute conferring exclusive jurisdiction on arbitrators and rendering their awards final and binding.
Similarly, in Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267 (C.A.), it was held that the plaintiff was barred by issue estoppel from pursuing a claim for damages for wrongful dismissal by a decision of an employment standards officer who had dismissed a claim based on the same facts that he had made under the Employment Standards Act [R.S.O. 1980, c. 137]. In this case, unlike Weber, the courts and the employment standards officer had concurrent jurisdiction, so that the claimant could have decided to pursue his contractual claim, rather than his statutory remedy. However, having elected the latter and received an adverse decision, he was estopped from pursuing a claim against the employer for breach of contract; his only redress was to seek judicial review of the officer's decision.
Counsel argued that, if the Court in Weber was prepared to hold that the plaintiff was not entitled to pursue a Charter claim in two separate and successive proceedings before the arbitrator and then in court, a fortiori the Commission should not be able to investigate a complaint of a breach of the CHRA without considering whether it had already been adequately disposed of in the arbitration proceeding. If dissatisfied with the arbitrator's award, Mr. Nolan's only remedy was an application for judicial review. This conclusion is supported by the general policy of curial deference extended to arbitral awards in recognition of the legislative objective that grievances should be resolved expeditiously, informally and inexpensively by arbitrators with an understanding of labour relations.
I do not find these cases compelling on the issue before me. While they certainly indicate a judicial concern with avoiding the dangers of overlapping jurisdictions and duplicative litigation, they deal with a possible overlap between the jurisdiction of a court and an administrative agency, whereas this case concerns two administrative agencies. The effect of Weber is not, of course, to preclude a court from determining the Charter issue, but merely to route access to the court through the arbitrator, where the arbitrator's ruling would be reviewed on a standard of correctness. But to apply Weber by analogy to the cases at bar would have the effect of excluding the Commission from ever investigating a complaint that had been decided by an arbitrator, and referring it to a Tribunal for adjudication. Such a result would seem contrary to the statutory scheme, not least because the Commission has investigative powers and an experience in the area of human rights that arbitrators do not possess, as well as a quasi-constitutional statutory mandate to advance the public interest in combatting discrimination.
In British Columbia v. Tozer, [1998] B.C.J. No. 2594 (S.C.) (QL), MacKenzie J. thoroughly canvassed the relevant authorities and concluded that, under the applicable British Columbia legislation, a labour arbitrator's exclusive jurisdiction over disputes arising from a collective agreement does not extend to allegations of discrimination that constitute a breach of the Province's human rights legislation, and thus also fall within the jurisdiction of the statutory bodies established by it.
In reaching this conclusion, he noted that the determination of human rights is tangential to the general jurisdiction of labour arbitrators over disputes arising from the collective agreement, whereas the investigation and adjudication of complaints of discrimination is at the very core of the statutory bodies' mandate. I agree with this reasoning. Moreover, courts have not extended the deference normally shown to arbitrators' interpretations of collective agreements when the arbitrator is interpreting the provisions of human rights legislation that are incorporated in the agreement: Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 S.C.R. 3, at page 12.
Because of the public responsibilities conferred by legislatures on the statutory decision makers and the purpose-designed decision making process, there has been considerable reluctance to apply the doctrine of issue estoppel to the adjudication of human rights complaints by the specialist tribunals: see, for example, R. H. Abramsky, "The Problem of Multiple Proceedings: An Arbitrator's Perspective" Labour Arbitration Yearbook 1996-97, 45, at pages 46-54; Bernard Adell, "The Rights of Disabled Workers at Arbitration and under Human Rights Legislation" (1993), 1 Can. Lab. Law J. 46, at pages 56-67.
The case for applying the doctrine of issue estoppel at the section 41 stage, before the Commission has even investigated the complaint, seems to me to be even weaker. First, paragraph 41(a) shows that Parliament had in mind the possibility of overlap between the Commission and grievance procedures available to the complainant, and gave to the Commission a discretion not to investigate if the complainant had not exhausted them. If it had intended also to give the Commission a discretion not to investigate when those procedures had been exhausted, it would surely have said so, rather than leaving the issue to be dealt with under the general jurisdiction clause in paragraph 41(c).
Second, on the assumption that a decision of an arbitrator can ever estop the Commission or the Tribunal from reinvestigating or deciding a matter, or a particular issue, it will only be possible to decide whether the doctrine should apply in a given case after a careful consideration of all the circumstances. These would include, the jurisdiction of the arbitrator and the remedies available; the adequacy of the investigation and representation by the union and the possible existence of labour relations considerations that are extraneous to the statutory investigation and adjudication of human rights complaints; and the identity of the issues and the parties.
These do not seem to me the kinds of question that Parliament intended the Commission to decide before undertaking an investigation of a complaint on its merits. Section 41 is surely intended to enable the Commission to screen out cases that are obviously unmeritorious on their facts or in law, or should not otherwise be dealt with at that time. It would be both unduly burdensome and productive of unnecessary delay to require the Commission to engage at this preliminary stage of the process in the extensive investigation and assessment of issues of fact and law that might be necessary before it could determine whether to apply the doctrine of issue estoppel. This is a question that should be addressed, if at all, only after the Commission has investigated the complaint, when, "having regard to all the circumstances of the complaint" pursuant to subparagraphs 44(3)(a )(i) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64] and (b)(i) [as am. idem] of the CHRA, it may decide either to request an adjudication by the Tribunal when warranted, or to dismiss the complaint.
I echo the sentiments expressed by Rothstein J. in Canada Post Corp. v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241 (F.C.T.D.), where he said [at page 243] in connection with a section 41 challenge:
Because a decision not to deal with the complaint will summarily end a matter before the complaint is investigated, the Commission should only decide not to deal with a complaint at this stage in plain and obvious cases. The timely processing of complaints also supports such an approach. A lengthy analysis of a complaint at this stage is, at least to some extent, duplicative of the investigation yet to be carried out. A time consuming analysis will, where the Commission decides to deal with the complaint, delay the processing of the complaint.
Finally, it would be particularly inappropriate to require the Commission to consider the application of issue estoppel to Mr. Nolan, who did not grieve his dismissal on the ground of discrimination by virtue of a disability, because this would raise yet another range of issues, such as why he did not rely on disability before the arbitrator, and whether it was reasonable for him not to have done so.
In my view, therefore, the Commission may not refuse to investigate a complaint on the ground that the complainant has pursued the matter before a labour arbitrator, and that the arbitrator decided the grievance against the complainant. I find support for this conclusion in Boudreault v. Canada (Attorney General) (1995), 99 F.T.R. 293 (F.C.T.D.), where Tremblay-Lamer J. held that the Commission had wrongly refused to deal with a complaint when it based its decision, not on an assessment of the complaint, but on the fact that the complaint had already been the subject of a determination by an appeal board established under section 31 of the Public Service Employment Act, R.S.C., 1985, c. P-33 (as amended).
Paragraph 41(d) of the CHRA enables the Commission to refuse to deal with a complaint that has been the subject of an arbitration if the complaint appears to it to be trivial, frivolous, vexatious or made in bad faith. And where it considers it appropriate, the Commission may rely on the findings made by the arbitrator, and the evidence on which they are based, without investigating every issue from scratch. Thus, in Charlebois v. Canada (Canadian Human Rights Commission) (re Ottawa-Carleton Regional Transit Commission), [1998] F.C.J. No. 1335 (T.D.) (QL), Campbell J. held that the Commission had not breached its duty to investigate a complaint thoroughly because the investigator had chosen to rely on witness statements made in the context of a proceeding before the Canada Labour Relations Board.
For these reasons Canada Post's application for judicial review is dismissed.