Jean Pierre v. Canada (Citizenship and Immigration)

Jean Pierre v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2015-12-29
Neutral citation
2015 FC 1423
File numbers
T-2038-14
Decision Content
Date: 20151229
Docket: T-2038-14
Citation: 2015 FC 1423
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 29, 2015
PRESENT: The Honourable Mr. Justice Gascon
BETWEEN:
GANDHI JEAN PIERRE
Applicant
and
CITIZENSHIP AND
IMMIGRATION CANADA
Respondent
JUDGMENT AND REASONS
I. Overview [1] The applicant, Gandhi Jean Pierre, is an immigration officer for Citizenship and Immigration Canada [CIC]. In May 2013, he sent a letter to the Human Rights Commission [Commission] advising it that he was going to file a discrimination complaint against his employer. Mr. Jean Pierre alleges that he was discriminated against between June 2005 and May 2012. In particular, he claims to have suffered discrimination in 2009, then between November 2010 and October 2011 during a selection process for the position of pre-removal risk assessment officer [PRRA] at CIC. In May 2012, Mr. Jean Pierre obtained some documents following an access to information request. Those documents, in his view, show that libellous, defamatory and discriminatory comments made by his employer undermined his chance to be hired into a new position at another federal government agency.
[2] In August 2014, after analyzing and considering the representations of Mr. Jean Pierre and CIC, the Commission decided to not deal with Mr. Jean Pierre’s complaint pursuant to paragraph 41(1)(e) of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA]. In the Commission’s view, Mr. Jean Pierre filed his complaint with the Commission after the expiration of the one-year period following the last act on which the complaint was based.
[3] Today, Mr. Jean Pierre is requesting judicial review of that decision by the Commission refusing to deal with his complaint. He argues that the decision breached the rules of procedural fairness and was unreasonable. He is seeking an order from this Court setting aside the Commission’s decision and remitting the matter to a different decision-maker at the Commission for redetermination.
[4] The issues are as follows:
What are the appropriate standards of review? Did the Commission breach the duty of fairness it owed to Mr. Jean Pierre and its duty to comply with the rules of procedural fairness in examining his complaint? Was the Commission’s decision to not deal with Mr. Jean Pierre’s complaint unreasonable?
[5] For the following reasons, Mr. Jean Pierre’s application for judicial review must fail because the Court has concluded that the Commission did not breach any rule of procedural fairness in the conduct of this case and that its decision to not deal with Mr. Jean Pierre’s complaint was not unreasonable and was a possible, acceptable outcome in the circumstances.
II. Background A. Facts [6] Mr. Jean Pierre is an immigration officer who has been working at CIC since September 1998. Other than this immigration officer position, Mr. Jean Pierre also held the position of acting PRRA officer in the PRRA division of CIC from November 2010 to the end of October 2011.
[7] On May 23, 2013, Mr. Jean Pierre sent a letter to the Commission stating that he was going to file a discrimination complaint against his employer. In that letter, Mr. Jean Pierre undertook to submit his evidence within 10 days. On June 7, 2013, the Commission sent Mr. Jean Pierre an information kit and a form to complete to formally file his complaint. The Commission requested that the complaint be filed by July 8, 2013. On that date, Mr. Jean Pierre did indeed send the Commission the completed complaint kit and a letter dated July 5, 2013.[1]
[8] In the complaint form and his letter of July 5, Mr. Jean Pierre alleged that he had been discriminated against between June 2005 and May 25, 2012. In particular, he claimed that he had suffered discrimination in 2009 after failing a selection process for a PRRA officer position. In November 2009, a notice of interest for a supervisor’s position was sent to all employees except him. He says that he was promoted to a PRRA officer position in October 2010 but was demoted after a year as a result of discriminatory actions by his CIC superiors at the time, Mses. Giroux and Clément. These actions took place from November 2010 to October 2011. In October 2011, Mr. Jean Pierre informed Mses. Giroux and Clément’s manager of the impact of their actions on his health. In January 2012, Mr. Jean Pierre was eliminated at the last stage of a selection process for a hearing officer position to meet the possible needs of the Enforcement Division of the Canada Border Services Agency [CBSA]. On May 25, 2012, he received some documents following an access to information request to the CBSA. Those documents, in his view, show that libellous, discriminatory comments were made about him by his superiors at CIC and undermined his chance to be hired into a new position at the CBSA.
[9] On August 15, 2013, the Commission informed Mr. Jean Pierre that it had reviewed his complaint and believed that paragraphs 41(1)(a), (d) and (e) of the CHRA could apply. The Commission told Mr. Jean Pierre that there would be a report with respect to these issues and that he could provide representations in this regard. On September 24, 2013, Mr. Jean Pierre sent his position statement on the relevant paragraphs of the CHRA to the investigator assigned by the Commission. With respect to paragraph 41(1)(e), Mr. Jean Pierre indicated that he had complied with the time limit because he became aware of the last discriminatory practice on May 25, 2012, when he received documents following his access to information request to the CBSA. He adds that he suffered two severe depressions, which totalled three months of medical incapacity. On October 29, 2013, CIC communicated its position on the relevant paragraphs of the CHRA. CIC maintained that Mr. Jean Pierre had already filed a number of grievances for similar reasons to those alleged in his new complaint and that Mr. Jean Pierre’s complaint to the Commission was filed after the one-year statutory time limit had expired.
[10] In a report dated February 12, 2014, the Commission’s investigator, Caroline Audet, citing paragraph 41(1)(e) of the CHRA, recommended that the Commission not deal with Mr. Jean Pierre’s compaint because it involved acts that occurred more than one year before the complaint was filed and Mr. Jean Pierre did not provide a reasonable explanation for the late filing. Ms. Audet’s report was sent to the parties on February 17, 2014, and they were invited to provide submissions not exceeding 10 pages.
[11] On March 17, 2014, Mr. Jean Pierre sent submissions totalling 38 pages to the Commission. On April 15, 2014, the Commission advised Mr. Jean Pierre that it could not accept his submissions because they exceeded the prescribed 10-page limit. Mr. Jean Pierre asked to be exempted from the 10-page limit, but the Commission refused. On June 9, 2014, Mr. Jean Pierre provided his 10-page submissions responding to the Feb. 12 investigation report. He argued, among other things, that he had filed his complaint within the one-year time limit, that Ms. Audet’s decision was unreasonable and that she had fettered her discretion by not verifying the attenuating circumstances. For its part, CIC sent its submissions to the investigator in July 2014.
[12] On August 29, 2014, the Commission decided under paragraph 41(1)(e) of the CHRA to not deal with Mr. Jean Pierre’s complaint because it was filed after the expiration of the one-year time limit prescribed by the Act.
B. The Commission’s decision [13] The letter informing Mr. Jean Pierre of the Commission’s decision states that, after reviewing the investigation report and all the submissions sent subsequently, the Commission decided to not deal with the complaint. The record of the decision gives as a reason that the complaint was filed more than one year after the last discriminatory practice on which it was based. The Commission determined that it would not deal with the complaint because Mr. Jean Pierre did not do everything that a reasonable person would do in the circumstances to proceed with the complaint. The Commission also noted that, although Mr. Jean Pierre’s health may have played a role in his ability to pursue the complaint, there was not enough evidence indicating that his health prevented him from proceeding with the complaint.
[14] The Commission’s decision was based essentially on Ms. Audet’s recommendation of February 12, 2014. In her report, Ms. Audet was of the opinion that the last discriminatory practice underlying Mr. Jean Pierre’s complaint had occurred in October 2011 and that therefore Mr. Jean Pierre should have filed his complaint by October 2012. The investigator stated that Mr. Jean Pierre should have known prior to receiving the access to information documents on May 25, 2012, that he may have been subjected to discriminatory practices. In fact, Ms. Audet noted in her report, it is clear that Mr. Jean Pierre knew that there were problems at his work because he had already filed a number of complaints and recourses with other administrative agencies and courts in respect of the episodes of discrimination that he claims to have suffered. Some of these complaints referred, inter alia, to the actions of his superiors at CIC, Mses. Giroux and Clément.
[15] Moreover, Ms. Audet determined that the letter of May 23, 2012, sent by Mr. Jean Pierre was not in itself a complaint. The complaint in an acceptable format for the Commission was not received until July 9, 2013. Mr. Jean Pierre did not give any reason other than his fear of reprisals by his employer for not contacting the Commission prior to May 2013. Ms. Audet did not consider Mr. Jean Pierre’s reasons sufficient to explain the late filing of the complaint.
[16] According to the information that Mr. Jean Pierre and CIC provided to the investigator and that Ms. Audet noted in her February 2014 report, Mr. Jean Pierre filed the first complaint in June 2009 with the Public Service Staffing Tribunal [PSST] regarding allegations of fraud, abuse and discrimination that he experienced when working at CIC. That complaint was resolved through mediation. In December 2009, Mr. Jean Pierre also filed a grievance dealing with the rejection of his application in a selection process. That grievance remains outstanding. In March 2010, Mr. Jean Pierre filed a complaint against his union representative with the Public Service Labour Relations Board [PSLRB]. That complaint was dismissed in February 2012.
[17] In his complaints, Mr. Jean Pierre mentioned, inter alia, that between November 2010 and October 2011, Mses. Giroux and Clément (who were, respectively, his manager and his supervisor at CIC) had discriminated against him when he was acting as a PRRA officer. In fact, in October 2011, he informed their manager of the impact of this behaviour on his health. In January 2012, Mr. Jean Pierre also filed an unfair labour practice complaint with the PSLRB against Mses. Giroux and Clément and his employer. This complaint was finally dismissed in May 2015. Moreover, Mr. Jean Pierre filed another complaint with the PSST regarding the employment opportunity that he applied for with another federal agency, i.e. the CBSA. The PSST dismissed this complaint in August 2013, and the Federal Court upheld the decision in April 2015 in Gandhi v Canada (Border Services Agency), 2015 FC 436 [Gandhi], including the arguments that Mses. Giroux and Clément and the assessment board discriminated against Mr. Jean Pierre and deprived him of an employment opportunity at the CBSA.
[18] In his submissions of September 24, 2013, sent to the Commission, Mr. Jean Pierre also stated that he had suffered two severre depressions, which totalled three months of incapacity without, however, specifying the period of time. In her report of February 12, 2014, Ms. Audet in fact referred to Mr. Jean Pierre’s statements that his work situation was causing health problems for him. In its decision of August 29, 2014, the Commission also noted Mr. Jean Pierre’s health but found that there was not enough evidence to conclude that this prevented Mr. Jean Pierre from proceeding with his complaint before the Commission.
C. Relevant provisions [19] The relevant statutory provisions are found at section 41 of the CHRA and read as follows:
Commission to deal with complaint
Irrecevabilité
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
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) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
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) 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;
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) the complaint is beyond the jurisdiction of the Commission;
c) la plainte n’est pas de sa compétence;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
d) la plainte est frivole, vexatoire ou entachée de mauvaise foi;
(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.
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.
D. Standard of review [20] Mr. Jean Pierre submits that the questions of procedural safeguards do not require deference on the part of the Court. Similarly, he adds that the question dealing with the fairness of the interpretation of paragraph 41(1)(e) of the CHRA also falls within the correctness standard because of the quasi-constitutional nature of this question (Canada (Attorney General) v Johnstone, 2014 FCA 110 [Johnstone] at para 37 and 45-52). In the alternative, Mr. Jean Pierre argues that the Commission’s decision was unreasonable because it is not consistent with a large and liberal interpretation that furthers the purpose of the CHRA and it does not adhere to the rule of law (Johnstone at para 61-63; Public Mobile Inc v Canada (Attorney General), 2011 FC 130 at para 62 and 64).
[21] On behalf of the respondent Minister, the Attorney General of Canada [AGC] agrees in part with Mr. Jean Pierre’s opinion and also submits that questions involving the fairness of the procedure adopted by the Commission in deciding whether to deal with complaints under subsection 41(1) of the CHRA are to be reviewed on a standard of correctness (Panula v Canada (Attorney Gemeral), 2014 CanLII 13154 [Panula] at para 17; Boshra v Canada (Attorney General), 2011 FC 1128 [Boshra] at para 47; Khapar v Air Canada, 2014 FC 138 [Khapar] at para 45). The AGC submits, however, that the reasonableness standard applies to decisions by the Commission to not deal with complaints under subsection 41(1) of the CHRA and to its findings of fact (Panula at para 16; Boshra at para 45; Khapar at para 46).
[22] The Court agrees with the AGC’s opinion on the standard of review that governs the interpretation and application of paragraph 41(1)(e) of the CHRA. The interpretation of this provision is, indeed, within the Commission’s experise, and the Court has, incidentally, recognized on multiple occasions that, in this regard, the Commission is therefore subject to the reasonableness standard of review (Khapar at para 46; Panula at para 16; Boshra at para 45).
[23] In Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61 [Alberta Teachers] at para 30-34, the Supreme Court confirmed that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (at para 30; Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at para 54; Canada (Human Rights Commission) v Canada (Attorney General), [2011] SCC 53 at para 18). In that case, the Court concluded that a timelines question is not a constitutional question; nor is it a question regarding the jurisdictional lines between two or more competing specialized tribunals (Alberta Teachers at para 33). A timelines question is specific to the tribunal’s administrative scheme and engages considerations and gives rise to consequences that fall squarely within the tribunal’s specialized expertise.
[24] In this case, the time limit mentioned in paragraph 41(1)(e) of the CHRA relates to the Commission’s investigation process, which its commissioners have extensive knowledge of. In the Court’s view, there is no doubt that these considerations fall under the Commission’s expertise, which is focused on balancing the rights of parties, and that therefore they mandate the reasonableness standard.
[25] In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. The reasons of a decision are considered reasonable if they “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Dunsmuir at para 47; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at para 16). In this context, the Court must show respect for and deference to an administrative tribunal’s decision and cannot substitute its own reasons. It may however, if necessary, look to the record for the purpose of assessing the reasonableness of the decision (Newfoundland Nurses at para 15).
[26] With respect to questions of procedural fairness, it is well established that the appropriate standard of review is correctness (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). The Court agrees with Mr. Jean Pierre on this point. The question is not really whether the decision was correct but whether the process followed by the decision-maker was ultimately fair (Majdalani v Canada (Minister of Citizenship and Immigration), 2015 FC 294 at para 15; Krishnamoorthy v Canada (Minister of Citizenship and Immigration), 2011 FC 1342 at para 13).
E. Preliminary issues [27] The AGC raises two preliminary issues.
[28] First, in accordance with rule 303(1)(a) of the Federal Courts Rules, SOR/98-106 [Rules], the respondent on an application for judicial review should be the person directly affected by the order sought, other than a tribunal. In this case, the AGC submits that the respondent should therefore be Her Majesty the Queen in Right of Canada (through the AGC) as the representative of the Minister of Citizenship and Immigration. The AGC is also requesting that the style of cause be amended accordingly.
[29] The Court concurs with the AGC on the issue of the parties to the dispute. Based on rule 303(1)(a), the respondent directly affected by the order sought is Mr. Jean Pierre’s employer. Because the Department of Citizenship and Immigration appears in Schedule I to the Financial Administration Act, RSC 1985, c F-11, it should be represented by Her Majesty the Queen in Right of Canada under subsection 2(1) of the Public Service Labour Relations Act, SC 2003, c 22 in this case. The style of cause will therefore be amended accordingly.
[30] Second, the AGC submits that a number of facts mentioned in Mr. Jean Pierre’s affidavit, as well as exhibits to his affidavit, were not presented to the Commission and therefore were not part of the tribunal record. Accordingly, the Court should not consider these exhibits on this judicial review. Specifically, the AGC opposes the filing of exhibits CF-2, CF-3, CF-4, CF-5 (the last eight pages), CF-13, CF-18, CF-19 and CF-21, which were not before the Commission and therefore not part of the record that the Commission transmitted to the Court under rules 317 and 318.
[31] The Court does not completely agree with the AGC’s position and is of the opinion that it should accept and consider some of the documents presented by Mr. Jean Pierre on this judicial review. It is well established that, in principle, the evidentiary record that must be filed with the Court on a judicial review application is limited to the one that was before the administrative tribunal when it issued its decision. However, there are some exceptions to this principle, particularly where the additional evidence is related to allegations of a breach of procedural fairness. Indeed, where a breach of procedural fairness is alleged, the Court may accept evidence that can assist it in determining the issue (Khapar at para 65; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 at para 20).
[32] Mr. Jean Pierre recognizes that exhibits CF-18, CF-19 and CF-21 dealing with his health problems and medical reports relate to the evidence that the Commission was seeking in order to make its decision on Mr. Jean Pierre’s compliance with the one-year time limit and on the application of paragraph 41(1)(e) of the CHRA. Specifically, Exhibit CF-18 is a report from the CHOC organization dated September 2012, referring to psychological consultations undertaken in 2012 by Mr. Jean Pierre at that entity. Exhibit CF-19 groups together different medical reports about Mr. Jean Pierre’s inability to work in 2012. Exhibit CF-21 contains a medical opinion regarding two days of absence in February. Mr. Jean Pierre had not submitted these exhibits to the decision-maker, and therefore they cannot be part of the record before the Court to determine the reasonableness of the Commission’s decision on the interpretation of section 41(1)(e) of the CHRA. However, the Court considers that, in some respects, these exhibits are also linked to the procedural fairness arguments advanced by Mr. Jean Pierre. Thus, the Court agrees that the documents contained in exhibits CF-2, CF-3, CF-18, CF-19 and CF-21 may be considered as having been filed by Mr. Jean Pierre in support of his allegations of a breach of procedural fairness by the Commission and, as such and in this context, they may be admitted before the Court on this application for judicial review.
[33] However, other exhibits about the merits of Mr. Jean Pierre’s complaint do not involve the issue of procedural fairness in any way, and therefore the Court cannot consider them for the purposes of this application. That is the case for exhibits CF4, CF-5 (the last eight pages) and CF-13.
III. Analysis A. Did the Commission breach the duty of fairness it owed to Mr. Jean Pierre and its duty to comply with the rules of procedural fairness in examining his complaint? [34] Mr. Jean Pierre submits that the Commission repeatedly breached its duty of procedural fairness, in particular by not permitting documentary evidence at the first stage of the complaint process and in the submissions requested by the Commission to assess the applicability of paragraphs 41(1)(a), (d) and (e) of the CHRA. In addition, after the investigator’s report was produced, Mr. Jean Pierre could file submissions, but the limit was ten pages at that time, including exhibits, based on the standards put in place by the Commission. Mr. Jean Pierre submits that a serious offer to adequately document his submissions implied that the evidence was supplementary to the ten pages of submissions.
(1) Mr. Jean Pierre’s position [35] Mr. Jean Pierre argues that the procedure adopted by the Commission should have been flexible and that the Commission should have examined the specific circumstances of his case (Sanofi-Synthelabo Canada Inc v Apotex Inc, 2005 FC 390; Ching-Chu v Canada (Citizenship and Immigration), 2007 FC 855 at para 25; Djilal v Canada (Citizenship and Immigration), 2014 FC 812 at para 36; Toussaint v Canada (Attorney General), 2010 FC 810 at para 54). Mr. Jean Pierre contends that by following its procedure rigidly and limiting the number of pages of the submissions, the Commission interfered with his right to freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms [Charter] and that the Commission did not consider section one of the Charter to explain that the procedure was reasonable (R v Oakes, [1986] 1 SCR 103 at para 63-71). Mr. Jean Pierre notes that the proportionality considerations raised in Oakes apply in the administrative context (Canadian Broadcasting Corporation v Warden of Bowden Institution, 2015 FC 173 at para 36, 37, 38, 50). He also states that the Supreme Court has already ruled on the importance that must be given to freedom of expression (Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at para 105). Mr. Jean Pierre claims that because of the page limit imposed by the Commission, he was unable to present all the facts relevant to his case (Forster v Canada (Attorney General), 2006 FC 787 at para 78).
[36] Moreover, Mr. Jean Pierre complains about the fact that the Commission indicated in its decision that it had concerns about the documentary evidence submitted while repeating a number of times that evidence was not necessary at the initial stage of screening complaints made to the Commission. In addition, according to Mr. Jean Pierre, the Commission did not inform him of its reservations and did not give him the opportunity to make full submissions (Standinghorn v Atcheynum, 2007 FC 1137 [Standinghorn] at para 28-29, 40; Kaur v Canada (Citizenship and Immigration), 2013 FC 1023 [Kaur] at para 20; Itota v Canada (Citizenship and Immigration), 2013 FC 1058 [Itota] at para 10; Keqaj v Canada (Citizenship and Immigration ), 2008 FC 388 [Keqaj] at para 58). Mr. Jean Pierre adds that he had a legitimate expectation that evidence was not necessary at this initial stage of the Commission’s process (Apotex Inc v Canada (Attorney General), [2000] 4 FCR 264 at para 123).
[37] Finally, Mr. Jean Pierre contends that the Commission did not meet the factors in the Baker decision with respect to procedural fairness (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 22-28). The Commission should have taken the facts alleged by Mr. Jean Pierre as proven (Love v Office of the Privacy Commissioner of Canada, 2014 FC 643 at para 14, 31, 51, 66). In short, says Mr. Jean Pierre, the Commission could dismiss the complaint only if it was a plain and obvious case (Bredin v Canada (Attorney General), 2006 FC 1178 at para 23-24 and 42 [Bredin FC]). Considering the Commission’s numerous abusive and derogatory acts, its decisions and omissions constitute an abuse of power in Mr. Jean Pierre’s view (Brown v Canada (Attorney General), 2009 FC 758 at para 34).
[38] The Court does not share Mr. Jean Pierre’s opinion and finds that the Commission did not breach the duty of fairness it owed to Mr. Jean Pierre. “At common law, the minimum level of procedural fairness required of an administrative tribunal has at least three requirements: notice of the case to be met, the opportunity to make submissions, and an unbiased decision maker” (Standinghorn at para 40). In this case, the Commission met each of those criteria.
[39] Mr. Jean Pierre was given at least two distinct opportunities to provide information after being told that paragraphs 41(1)(a), (d) and (e) of the CHRA could apply to his complaint. The first time was after the Commission’s letter dated August 15, 2013, asking him for his position statement and his evidence on those paragraphs in the context of Ms. Audet’s investigation; then a second time after he received the investigator’s report dated February 12, 2014. Each time, Mr. Jean Pierre responded, first with his letter of September 24, 2013, then with his submissions of June 9, 2014.
(2) Mr. Jean Pierre’s observations and submissions [40] With respect to the submissions that preceded Ms. Audet’s report, the Commission first indicated to Mr. Jean Pierre that he had to limit his position statement and his evidence sent to the investigator to the factors referred to in paragraphs 41(1)(a), (d) and (e) of the CHRA. The invitation sent by the Commission indicated clearly what the Commission’s concerns were at this initial stage of the complaint process (Kaur at para 20; Itota at para 10; Keqaj at para 58). The Commission’s instructions at this stage of the procedure were clear: Mr. Jean Pierre had to provide the information and documentary evidence required in relation to paragraphs 41(1)(a), (d) and (e) of the CHRA. Nothing more. It was incumbent on Mr. Jean Pierre to provide satisfactory explanations for the late filing of the complaint and to convince the Commission to agree to deal with his complaint (Bredin v Canada (Attorney General), 2008 FCA 360 [Bredin FCA] at para 18). Moreover, it is agreed and established that the Commission does not examine either the substance of the discrimination or the merits of the case at this preliminary stage of a complaint (Good v Canada (Attorney General), 2005 FC 1276 at para 21; Khapar at para 64). In fact, the limits imposed by the Commission did not restrict the submissions and documentary evidence that Mr. Jean Pierre could put forward to respond to whether paragraphs 41(1)(a), (d) and (e) of the CHRA applied to his case.
[41] Mr. Jean Pierre responded to this invitation from the Commission by submitting his letter of September 24, 2013. It is true that, in its instructions on the position statement, the Commission indicated that it would not consider evidence related to allegations concerning the merits of the complaint and the discrimination raised by Mr. Jean Pierre. Mr. Jean Pierre could, however, file evidence in connection with paragraphs 41(1)(a), (d) and (e), and specifically the issue of the time limit, provided that he complied with the parameters imposed by the Commission.
[42] With respect to the submissions that followed the investigator’s report, the instructions showed that Mr. Jean Pierre could include exhibits with his submissions, subject to the ten-page limit imposed by the Commission at this stage. This Court has confirmed that the Commission’s procedure of putting a cap on the length of submissions at this stage of the complaint process is reasonable (Donoghue v Minister of National Defence, 2010 FC 404 [Donoghue] at para 28; Boshra at para 50-52). Such instructions do not raise the issue of procedural fairness.
[43] Accordingly, in fact, Mr. Jean Pierre was actually able to file submissions both before and after he received the final version of Ms. Audet’s report. The Commission applied its usual procedure and usual internal policy to Mr. Jean Pierre’s complaint. In this case, the Court is of the opinion that these two opportunities provided to Mr. Jean Pierre were more than sufficient to comply with procedural fairness and do not constitute an abuse of power.
[44] The Court does not agree with Mr. Jean Pierre that he was [translation] “muzzled” by the Commission’s process. Certainly, in his submissions following Ms. Audet’s report, Mr. Jean-Pierre could present only ten pages of submissions rather than the 38 pages he had initially sent in March 2014. That represented more than 50 paragraphs of submissions to weed out, according to Mr. Jean Pierre. However, it does not appear to the Court that by being limited to ten pages, Mr. Jean Pierre was unable to put forward the arguments and file the necessary evidence to respond to the issues that the Commission had to consider under paragraphs 41(1)(a), (d) and (e) of the CHRA. The fact that Mr. Jean Pierre was unable to present documents on the merits of his discrimination complaint does not mean that he could not present documents pertaining to the issues raised by those three paragraphs. Moreover, Mr. Jean Pierre did not show in his submissions to this Court what arguments he was, in short, prevented from making after reducing his submissions from 38 to 10 pages. The degree of elaboration and detail was certainly different, and some of the paragraphs initially written by Mr. Jean Pierre had to be removed in his submissions of June 9, 2014, but the Court is satisfied that Mr. Jean Pierre had the opportunity to make his submissions and to be heard.
(3) Mr. Jean Pierre’s medical condition [45] In addition, in terms of his medical condition and health problems, Mr. Jean Pierre indicated in his letter of September 24, 2013, and in his submissions of June 9, 2014, that he had had two severe depressions totalling three months of incapacity and that he had consulted the CHOC intervention group. The additional evidence adduced by Mr. Jean Pierre on this judicial review does not show a breach of procedural fairness. In this Court, Mr. Jean Pierre submitted two new medical and therapy certificates (exhibits CF-18, CF-19 and CF-20), but the information they contain essentially repeats what was already before the Commission and available at the time of Ms. Audet’s investigation. Moreover, both Ms. Audet’s report and the Commission’s decision refer to Mr. Jean Pierre’s health problems.
[46] Thus, in his submissions of September 24, 2013, and June 9, 2014, Mr. Jean Pierre had the opportunity to present his arguments that the last alleged discriminatory practice did not date back to October 2011 and that he did not become aware of the statements made by Mses. Giroux and Clément, which he described as discriminatory and libellous, until May 25, 2012. The Commission considered Mr. Jean Pierre’s submissions but did not agree with them. Instead, the Commission adopted the findings in Ms. Audet’s report regarding the date of the last discriminatory practice that the complaint was based on. Paragraph 41(1)(e) speaks of “acts or omissions” that the complaint is based on, and the last act described by Mr. Jean Pierre occurred in October 2011, according to the investigator. Ms. Audet therefore received and mentioned Mr. Jean Pierre’s submissions with respect to May 2012, but she did not accept them and explained the reasons for that in her decision. There was no breach of procedural fairness here.
(4) Other arguments of Mr. Jean Pierre [47] Mr. Jean Pierre submits that he had a legitimate expectation that evidence was not necessary. However, the Commission’s instructions did not say that evidence was not required; rather, they stipulated that evidence was not necessary solely with respect to the allegations of discrimination and human rights. In fact, the jurisprudence has established that the Commission does not examine the merits of a complaint at this preliminary stage (Good at para 21; Khapar at para 64). Mr. Jean Pierre, however, had ample opportunity to adduce evidence in connection with paragraphs 41(1)(a), (d) and (e) of the CHRA by following the procedure and the page limits established by the Commission. The fact that Mr. Jean Pierre misunderstood or misinterpreted the Commission’s instructions about his position statement to be filed as part of the preparation of the investigation report does not constitute a breach of procedural fairness by the Commission.
[48] Mr. Jean Pierre also argues that the Commission was required to to take all of his submissions as proven unless the contrary was shown (Love at para 14, 31, 51, 66). The Court does not concur. In that decision cited by Mr. Jean Pierre, the Court indicated that allegations of fact contained in a complaint must be presumed true and taken as true (Love at para 31). They are not submissions made in the context of an investigation under subsection 41(1) of the CHRA. The investigator and the Commission took as proven the facts that Mr. Jean Pierre’s complaint was based on but not the explanations he gave for failing to comply with the one-year time limit. Also, the Commission did not err in this regard. It simply did not decide on the truth of the facts contained in Mr. Jean Pierre’s complaint. Rather, it determined that his explanations about the time period in which he filed his complaint were not acceptable. Its discretion to decide whether to deal with a complaint made that option available, and there was no breach of procedural fairness in this context.
[49] The Court recognizes that it is possible, in some cases, for decision-makers to fetter their discretion by refusing to exercise it (Ching-Chu at para 25; Djilal at para 36; Toussaint at para 54; Brown at para 34). However, in this case, that is not what the Commission did because the ultimate goal of the investigation was to determine whether it should deal with Mr. Jean Pierre’s complaint. The Commission examined the unique circumstances of the case before making its decision and providing explanations as to why it would not exercise its discretion. The Commission mentioned Mr. Jean Pierre’s written submissions quoted in Ms. Audet’s report. It should be noted again that Mr. Jean Pierre had a number of opportunities to present written submissions to the Commission and to present the relevant facts (Fortster at para 78) before and after Ms. Audet’s report.
[50] Lastly, Mr. Jean Pierre raises a breach of his Charter-protected right of freedom of expression. He argues that, in deciding whether an administrative decision breaches a Charter right, “the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives. If the decision is disproportionately impairing of the guarantee, it is unreasonable” (Canadian Broadcasting Corporation at para 37). In this case, the jurisprudence has already established that the procedure adopted by the Commission in terms of dismissing a complaint does not breach procedural fairness. Therefore, it follows that it does not breach the right of freedom of expression.
[51] A page limit imposed by an administrative body cannot be considered an unreasonable limit on freedom of expression. Indeed, there is no breach of freedom of expression where an applicant (as is the case here) can address the Commission a number of times, even if he or she must do it in a specific framework. The right to respond and procedural fairness remain subject to the authority of an administrative tribunal to be master of its own procedures (Beno v Canada (Attorney General), 2002 FCT 142 at para 101; Baier v Alberta, 2007 SCC 31 at para 20; Montréal (City) v 2952-1366 Inc, 2005 SCC 62, at para 79). In To-Thanh-Hien v Canada (Attorney General), 2004 FC 1497 at para 50, the Court concluded that “[i]t is clear that the Applicant had the opportunity to respond to the Supplementary Investigation Report. The fact that she was not permitted to augment her response does not change that fact. A tribunal is entitled to establish limits on what it will accept, as an aspect of managing its own procedures.” Moreover, in Boshra, the Court recognized that the fact that the Commission limits the length of an applicant’s submiss