Carroll v. Canada (Attorney General)

Carroll v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-03-06
Neutral citation
2015 FC 287
File numbers
T-1420-14
Decision Content
Date: 20150306
Docket: T-1420-14
Citation: 2015 FC 287
Ottawa, Ontario, March 6, 2015
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
CECILIA CARROLL
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review pursuant to sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7. Ms Carroll challenges a decision of the Canadian Human Rights Commission [the Commission] which dismissed her complaint as “vexatious” within the meaning of paragraph 41(1)(d) of the Canadian Human Rights Act, RSC 1985, c H-6 [the Act].
[2] For the reasons that follow, I have concluded that the Commission’s decision was both procedurally unfair and unreasonable. This application is granted and the complaint referred back to the Commission.
I. Facts [3] The applicant was employed with the Department of Employment and Social Development Canada, formerly known as Human Resources and Skills Development Canada [the employer]. On February 8, 1993, she went on sick leave without pay due to back pain. She has never since returned to the workplace.
[4] In 2007, the employer contacted the applicant and demanded that she either return to work or retire on medical grounds. The employer informed her that she would otherwise be dismissed due to medical incapacity. The applicant replied that she would prefer to stay on long-term disability leave until she could receive medical clearance to return to work. Further action on the matter was postponed until 2011 due to issues which arose with the applicant’s superannuation plan.
[5] The employer renewed the request on October 5, 2011. Some later time that month, the applicant advised the employer that she would apply for medical retirement under duress, effective December 29, 2011.
[6] On October 7, 2011, the applicant filed a first level grievance with the employer. Under the “Grievance details” section of the complaint form, the applicant wrote the following:
I grieve the employer’s letter of October 5, 2011 which requests that I either return to work or in some manner, terminate my employment. This is intimidation and discrimination based on disability. It is contrary to the employer’s obligations under the collective agreement and the Canadian Human Rights Act.
[7] The applicant requested the following corrective action:
1. That the employer withdraw its request and not make similar requests in the future.
2. That I be accommodated by being allowed to remain on LWOP [leave without pay] status until I am able to return to work.
3. That I be made whole.
[8] On November 28, 2011, the employer denied the grievance. Among other things, the reply letter stated the following:
You have been on sick leave without pay since February 1993. Expecting you to make a decision in regards a separation option following more than eighteen years of sick leave without pay is neither discriminatory, an act of intimidation nor in contravention of your collective agreement or the Canadian Human Rights Act. Rather, requiring you to make a decision in regards a separation option is fully in accord with Treasury Board’s Directive on Leave and Special Working Arrangements. And, since you cannot return to work within the foreseeable future, you cannot be accommodated in the workplace.
[Emphasis added]
[9] That same day, the applicant filed a second level grievance. Her union representative submitted five pages of argument on her behalf alleging, in particular, that the Policy on Leave without Pay (afterwards replaced with the Directive on Leave and Special Working Arrangements) unlawfully discriminates against employees who are on leave for medical reasons and have been in receipt of SunLife disability benefits for over two years. This is because the employer targets only these employees, the representative argued. Employees on leave for other reasons are not similarly affected, nor are disabled employees who are not insured by SunLife.
[10] On December 8, 2011, the applicant contacted the Commission for the first time and explained that she wanted to file a complaint against the employer. She eventually filed a complaint on February 17, 2012. By letter dated March 5, 2012, the Commission informed her that she would have to exhaust the grievance procedures before it would consider her complaint.
[11] On March 26, 2012, the employer denied the second level grievance. Its letter repeated the text of the one which had denied her first grievance almost verbatim.
[12] On April 12, 2012, the applicant filed a third level grievance. Her union representative submitted a one page letter on her behalf which stated, among other things:
As previously pointed out, the Federal Courts have ruled the Treasury Board “leave Without Pay” policy as discriminatory. […] That fact remains and as the only authority referenced by the employer as the basis for forcing Ms. Carroll to apply for a medical retirement, the employer’s actions are inappropriate and a violation of a federal court ruling.
[13] On July 5, 2013, the employer denied the third level grievance. This time, the reply letter was different. It stated that the applicant never provided the employer with information about a potential return to work. Therefore, the employer could not accommodate her. The decision-maker continued:
Based on this information, I find that the Employer respected the intent of the Policy on Leave Without Pay (since replaced by the Directive on Leave and Special Working Arrangements) in this matter.
[Emphasis added]
[14] The decision-maker then considered whether the employer’s letter constitutes discrimination in relation to the “application of the Policy”. She wrote that
The intent of this Directive is for departments to manage paid and unpaid absences from work in a sound, consistent and effective manner. As you were approved for a medical retirement, it was clear that a return to work in a foreseeable future was not probable and as such, I believe the Employer applied the Policy correctly.
Furthermore, I could not find any evidence of any discrimination on the part of the Employer.
[Emphasis added]
[15] On July 30, 2013, the applicant received a letter from her union stating that it would not be referring her grievance for adjudication at the Public Service Labour Relations Board [PSLRB], and therefore that the grievance process had been exhausted.
[16] On September 9, 2013, the applicant faxed an updated complaint to the Commission. At the first paragraph of her complaint, she stated:
I am a person with a disability and feel that I was discriminated against due to my disability. I believe that Service Canada’s use of Treasury Board’s Directive on Leave and Special Working Arrangements is discriminatory against people with Disabilities.
[17] On October 28, 2013, the Commission sent a letter to the applicant advising that her complaint might be “vexatious” within the meaning of the Act because it had already been dealt with through another process. It further advised that the Commission would prepare a section 40/41 report to decide whether to deal with the complaint. Ms Carroll was provided with a questionnaire and invited to submit her answers to the Commission. Upon obtaining an extension of time, she did so on December 13, 2013.
[18] The section 40/41 report was prepared on February 6, 2014. In short, it recommended that the Commission dismiss the complaint. On February 13, 2014, the applicant received a copy of the report and was invited to make submissions in reply.
[19] On March 10, 2014, the Commission received submissions (six pages of detailed argument) sent on the applicant’s behalf by a lawyer. In particular, the applicant presented the following concerns:
Although she did raise all her human rights issues in her grievances, at no time did the employer specifically address all these issues. In particular, the employer never addressed the question of whether the policy itself was discriminatory. The grievances were decided by the employer without assistance from a third party. The employer is not an independent and impartial adjudicator for human rights matters. In Berberi v Canada (Attorney General), 2013 FC 99, the Federal Court held that the Commission should only filter out complaints in “plain and obvious cases”. It further noted that the Commission “cannot abdicate its responsibility to independently consider any decision that resulted from [another] process and the reasons for it”. This is not a plain and obvious case for dismissal. The section 40/41 report does not address the merits of the complaint, does not review the directive in question, does not consider the actions or motives of the employer, and does not investigate the complaint independently. The report inaccurately states that the complaint did not raise the question of whether the directive is discriminatory. In fact, the first paragraph of the complaint refers to the directive. The report states that the directive was issued by the Treasury Board, and so the complainant cannot have it overturned by filing a complaint against her employer. However, the employer applied this discriminatory directive with respect to the applicant. The origin of the directive is irrelevant. The employer’s use of this policy may be reviewed.
[20] That same day, the Commission also received brief submissions from the respondent expressing agreement with the report. It received more detailed submissions on April 11. On April 17, the Commission forwarded a copy of the respondent’s two sets of submissions to the applicant for her records.
[21] The Commission rendered a decision dismissing the complaint on April 30, 2014. On May 13, Ms Carroll received a copy of the decision. She then applied for judicial review.
II. Issues [22] This application raises two issues:
1. Did the Commission breach the duty of procedural fairness?
2. Did the Commission err by finding the complaint to be vexatious?
III. Standard of Review [23] The first question is reviewable on the standard of correctness: Dunsmuir v New Brunswick, 2008 SCC 9 at para 129; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]; and Mission Institution v Khela, 2014 SCC 24 at para 79. The Court must “undertake its own analysis of the question” and, if it concludes that the decision-maker behaved unfairly, override the decision-maker’s procedural choices: Dunsmuir, above, at para 50.
[24] The second issue touches upon a question of mixed fact and law involving the agency’s home statute. The standard of reasonableness applies: Dunsmuir, above, at para 54.
IV. Decision under Review A. The Commission’s Decision [25] The Commission’s decision, signed on April 30, 2014, reads as follows:
The Commission decided, for the reasons identified below, not to deal with the complaint, under paragraph 41(1)(d) of the Canadian Human Rights Act.
[26] The decision lists the documents which the Commission reviewed. These include the complaint forms, the section 40/41 report, the complainant’s submissions and the respondent’s submissions.
[27] Under the “Reasons for decision” section, the decision states the following, verbatim:
The Commission adopts the following conclusion set out in the Section 40/41 Report:
The complainant’s human rights allegations have been addressed by an alternate decision maker with authority to consider human rights issues. The allegations raised in the complaint before the Commission are the same as those addressed in the final level grievance response. Given that the alternate decision-maker dealt with the human rights issues raised in this complaint and that process was fair, the Commission must respect the finality of that decision and should not deal with this complaint. It is therefore plain and obvious that this complaint is vexatious within the meaning of section 41(1)(d) of the Act.
B. The Section 40/41 Report [28] The respondent submits that the section 40/41 report should be treated as constituting the Commission’s reasons. He argues that this is appropriate when the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, pointing to Vos v Canadian National Railway Company, 2010 FC 713 at para 36. The respondent is correct, so it is necessary to review that report.
[29] The report begins with a brief summary of the complaint and a background of the Commission’s actions up to that point in time. It then reproduces subsection 41(1) of the Act.
[30] The report then explains in detail the factors relevant to deciding whether a complaint is “vexatious” under paragraph 41(1)(d). At paragraph 10, it explains that: “The Commission can refuse to deal with a complaint if an independent decision-maker has already addressed the human rights issues. Section 41(1)(d) of the Act calls such complaints ‘vexatious’”.
[31] The report references relevant case law. In Boudreault v Canada (Attorney General), [1995] FCJ No 1055 (TD), the Federal Court concluded that the Commission cannot refuse to entertain a complaint simply because it has already been dealt with by another process. The Commission must review the evidence itself but it can use evidence gathered through the other process. However, in Canada Post Corp v Barrette, [2000] FCJ No 539 (FCA) [Barrette], the Federal Court of Appeal stated that the Commission must turn its mind to the decision of the alternative decision-maker and determine whether the complaint might attract the application of paragraph 41(1)(d).
[32] The report mentions that the Supreme Court considered this issue in two recent cases. In British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 [Figliola], the Court held that human rights tribunals must respect the finality of decisions rendered by other decision-makers with concurrent jurisdiction over human rights legislation, where “the previously decided legal issue was essentially the same as what is being complained of”. In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Court stated that, when a case has already been resolved through another process, the decision-maker must look at the circumstances to decide whether it would be fair to let the second process continue.
[33] The report lists several factors to be considered in deciding whether or not a complaint is vexatious. It then summarizes the positions of the parties.
[34] The report proceeds to analyze the complaint. At paragraph 39, the investigator states that “the complainant has pursued her human rights issues through the grievance process and the other process dealt with all of her human rights allegations.” As such, adjudication of the complaint would not advance the purposes of the Act.
[35] At paragraph 40, the investigator states that “[t]here is no significant difference between the grievance process and the Commission process and in particular, an adjudicator appointed under the Public Service Labour Relations Act has the authority to interpret and apply the Canadian Human Rights Act.”
[36] At paragraph 41, the investigator concludes that there is no evidence that the complaint was filed to “annoy, embarrass or harass the respondent”, but that it is “vexatious” because the allegations have been “fully addressed through the grievance process”.
[37] At paragraph 42, the investigator takes aim at the complainant’s submission that the Directive on Leave and Special Working Arrangements is discriminatory. He writes:
This is a new allegation that was not contained in the complaint form. It should be noted that the policy that the complainant feels is discriminatory is not an HRSDC policy but rather a Treasury Board policy. If the complainant is seeking to have the Directive invalidated, this cannot be achieved by filing a complaint against HRSDC.
[38] At paragraph 43, the investigator concludes that it is “plain and obvious that this complaint is vexatious within the meaning of section 41(1)(d) of the Act”.
V. Submissions of the Parties A. Did the Commission breach the duty of procedural fairness? [39] The applicant argues that the Commission breached the duty of fairness by failing to consider the submissions she provided, which disputed several key facts upon which the investigator relied. The Commission neither addressed these submissions nor provided any reasons for rejecting them. It merely adopted the conclusion of the section 40/41 report.
[40] In Kollar v Canadian Imperial Bank of Commerce, 2002 FCT 842 at para 36, the Federal Court acknowledged the importance of submissions provided in response to investigators’ reports. The applicant contends that, in the present case, the report mischaracterized the facts. Since her submissions disputed several of these facts, the Commission should have declined to endorse the report on the strength of her submissions, or should have exercised its discretion to hold an oral hearing to receive additional submissions.
[41] The applicant further argues that the Commission breached the duty of fairness by failing to give adequate reasons. It simply adopted a flawed report without providing its own reasons for decision. In Sketchley v Canada (Attorney General), 2004 FC 1151 at para 61 [Sketchley FC], the Court stated that judicial intervention is warranted where an applicant provides detailed submissions but the Commission does not address them in its decision. This case was upheld on appeal: 2005 FCA 404 [Sketchley FCA].
[42] The respondent counters that there is no basis to conclude that the Commission failed to consider the applicant’s submissions. The decision states that the Commission reviewed the complaint form, the section 40/41 report, the applicant’s submissions and the respondent’s submissions. Receiving a negative decision is an insufficient ground for concluding that submissions were not considered. The Commission was entitled to consider and weigh the evidence before it in the manner which it did.
[43] The respondent also contends that the Commission’s reasons were adequate. The investigator’s lengthy report constitutes the Commission’s reasons: Vos, above, at para 36; Sketchley FCA, above, at para 37.
[44] The respondent disputes the allegation that the report is flawed. The applicant’s disagreement with its findings does not mean that it is procedurally unfair. In order to be fair, the investigation had to be thorough and neutral. It was neutral because the investigator was not biased and kept an open mind: Canada (Attorney General) v Davis, 2010 FCA 134 at para 6 [Davis FCA]; Vos, above, at para 44.
[45] According to the respondent, thoroughness requires that the parties be given a reasonable opportunity to comment on the case: Davis FCA, above, at para 6. The applicant was given the opportunity to provide the investigator with information supporting her claim and to comment on his report. Moreover, the applicant was given copies of the respondent’s submissions and did not seek the opportunity to make further comments: Hérold v Canada Revenue Agency, 2011 FC 544 at para 42.
[46] The respondent argues that the evidence does not support the allegation that the grievance decision-makers were not impartial. In any event, the alleged lack of independence in the grievance process does not affect the fairness of the process followed by the Commission: Bergeron v Canada (Attorney General), 2013 FC 301 at para 43.
B. Did the Commission err by finding the complaint to be vexatious? [47] The applicant contends that the Commission erred in fact and in law when it found her complaint to be vexatious within the meaning of paragraph 41(1)(d). Even though the Commission has a discretionary power to screen complaints, that power must be exercised reasonably and that did not occur.
[48] In the applicant’s view, the decision is neither justified nor intelligible and does not fall within a range of reasonable outcomes. It was not reasonable for either the investigator or the Commission to find that the complaint was plainly and obviously vexatious.
[49] Furthermore, the applicant alleges that the Commission relied on numerous erroneous findings of fact, which rendered its decision indefensible. In particular:
1. The report found that the issues raised in the grievance were the same as those in the complaint – even though the applicant specifically noted in her submissions that the three grievance responses never addressed the issue of whether the directive itself is discriminatory.
2. The report found that a final decision had been rendered – when the case had never been heard on its merits and no decision was ever made by an independent or neutral body.
3. The report found that the decision-maker had the authority to interpret human rights legislation – when that power belongs to a PSLRB adjudicator, not to employer representatives in the grievance process.
4. The report found that the applicant raised new allegations which were not contained in the complaint form – when the applicant had in fact referred to those allegations in her complaint.
5. The report found that the employer was the wrong party to a complaint regarding a Treasury Board policy – when it is clear that the employer applies this policy to its workplace.
[50] The respondent counters that the Court must keep in mind the gate-keeping role of the Commission. Subsection 41(1) instructs the Commission to dismiss vexatious proceedings in order to avoid wasting institutional and party resources. Parliament has expressly conferred this discretion upon the Commission. Unless it is exercised without reasonable grounds, the courts should not intervene.
[51] The respondent continues that the Commission’s role during the screening stage is to assess the sufficiency of the evidence before it and to decide whether it is reasonable to proceed to the next stage. The Commission does not have to look behind the facts and determine if the complaint has been made out: Davis v Canada (Attorney General), 2009 FC 1104 at para 53 [Davis FC]; Vos, above, at para 39; Khapar v Air Canada, 2014 FC 138 at para 64.
[52] According to the respondent, the decision was reasonable. The section 40/41 report looked at the totality of the circumstances and determined that further inquiry by the Commission was not warranted. The evidence supports that decision.
[53] The respondent argues that the Sketchley decisions, on which the applicant relies for the proposition that the Treasury Board policy is discriminatory, are no longer good law on that point. They have been overtaken by the Supreme Court of Canada’s decision in Hydro-Québec v Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 [Hydro-Québec]. In that case, the Court considered the duty to accommodate an employee who was chronically absent due to medical issues and unanimously concluded that, if an employee is unable to resume her work in the foreseeable future, the employer has established undue hardship.
[54] The respondent recalls that the applicant has missed work for 18 continuous years. There is no prospect that she can return in the foreseeable future. Therefore, the grievance decisions were consistent with the law: Hydro-Québéc; Panula v Canada (Attorney General), 239 ACWS (3d) 165.
VI. Analysis [55] The decision under review contains several flaws that would justify the Court’s intervention. In light of the excellent submissions made by the parties, I will address all of the reasons for which this decision cannot stand.
A. Did the Commission breach the duty of procedural fairness? [56] In Davis FCA, above, at para 6, the Federal Court of Appeal identified the content of the duty of fairness in cases where the Commission relies on an investigator’s report:
The Commission must act in accordance with natural justice. This requires that the investigation report upon which the Commission relies be neutral and thorough and that the parties be given an opportunity to respond to it [references omitted].
[57] In addition, this Court recognized the twin requirements of neutrality and thoroughness in Vos, above, at para 44.
[58] In the case at bar, the applicant has not alleged that the investigation lacked neutrality. There is no evidence in the record that might support a finding that the investigator was biased or failed to keep an open mind.
[59] Rather, the applicant’s allegations of unfairness must be understood as going to the other requirement of an investigation: namely, thoroughness. Ms Carroll accuses the investigator of failing to consider the submissions she made before he wrote his report and the Commission of failing to consider the submissions she made as a response to that report. Likewise, her complaint that the Commission did not provide adequate reasons really challenges its failure to address her specific submissions. It is related to the allegation that she was ignored without good reason.
[60] What does thoroughness require? The Attorney General argues that an investigation is thorough if the parties are given an opportunity to comment on the investigator’s report, relying on Davis FCA, above, at para 6. However, that passage does not stand for that proposition. It states that an investigation must be “neutral and thorough and that the parties be given an opportunity to respond” to its findings [emphasis added]. The word “and” separates the requirement of thoroughness from the requirement that the parties be given a chance to state their case. These are discrete requirements – just like neutrality, which is also connected to thoroughness with the word “and”. If any one of these principles completely subsumed the others, the Court of Appeal would not have listed all three when elucidating the content of the duty of fairness.
[61] Various cases have spoken to the meaning of thoroughness. In Kollar, above, at para 36, Justice O’Keefe stated:
Therefore, I must now determine whether in the case before me, sufficient thoroughness existed. As part of that determination, I must be satisfied that the reports dealt with all of the most fundamental issues raised in the applicant’s complaint.
[62] Because the impugned report did not deal with the applicant’s complaint of sexual harassment, Justice O’Keefe determined that it was not thorough. Since the Commission had accepted the recommendations of that report, that deficiency tainted its decision as well: Kollar, above, at paras 39-40.
[63] Kollar was cited in Sketchley FC, above, where Justice Beaudry held that “failure to address the substance of the complaint will lead to the conclusion that the investigation was flawed for lack of thoroughness”, at para 51. The Court of Appeal agreed that the investigation lacked thoroughness because it had failed to examine a question and misapprehended the complainant’s request: Sketchley FCA, above, at paras 122-123. Justice Linden made clear that that defect contravened procedural fairness. Therefore, at para 125, he deemed it unnecessary to conduct substantive review of the Commission’s decision.
[64] Furthermore, in Vos, above, at para 44, Justice Lemieux stated: “One instance of lack of thoroughness is the failure to investigate crucial evidence”.
[65] Finally, in Davis FC, above, at para 56, Justice Harrington entertained the idea that, where the Commission ultimately decides to dismiss a complaint, thoroughness may require it to respond to submissions sent in reply to an investigator’s report. Since the Commission had referred the matter to the Tribunal in that case, he did not deem as unfair its failure to provide a response.
[66] However, the cases to which Justice Harrington referred did find that the Commission should have responded to submissions before dismissing complaints. For instance, in Herbert v Canada (Attorney General), 2008 FC 969 at para 26, Justice Zinn wrote that
…where these submissions allege substantial and material omissions in the investigation and provide support for that assertion, the Commission must refer to those discrepancies and indicate why it is of the view that they are either not material or are not sufficient to challenge the recommendation of the investigator; otherwise one cannot but conclude that the Commission failed to consider those submissions at all.
He made clear that such a failure is a procedural defect warranting judicial review.
[67] The case law clearly establishes that an investigation which does not deal with the substance of a complaint, fails to investigate a relevant question, or fails to consider crucial evidence is unfair because it is not thorough. That unfairness carries over to any eventual dismissal decision rendered by the Commission. Whether the complainant has been able to make submissions is irrelevant. If submissions were made but disregarded, that does not increase the thoroughness of the investigation – it decreases it.
[68] Two clarifications are in order. First, the law is unequivocal that investigators acting on behalf of the Commission must conduct thorough investigations in the sense just explained. However, complainants commonly make reply submissions to investigators’ reports, which are reviewed by the Commission before it makes a final decision. Does the thoroughness requirement extend to the Commission at that stage of the process, compelling it to give proper regard to these submissions before rendering a decision?
[69] It is my opinion that it does. As the Court of Appeal explained in Sketchley FCA, above, at para 37, the reason that the Commission is entitled to rely on an investigator’s report as the reasons for its own decision is that
…for the purpose of a screening decision by the Commission pursuant to section 44(3) of the Act, the investigator cannot be regarded as a mere independent witness before the Commission [...] for the purposes of the investigation, the investigator is considered to be an extension of the Commission [references omitted].
[70] Since a procedural duty attaches to the extension, it would be artificial to deny that it also attaches to the whole. The idea that an investigator must behave thoroughly, but that the Commission can afterwards toss thoroughness out the window, is entirely counterintuitive and would undermine the proper administration of the Act. It must be accepted that complainants should be treated fairly throughout the decision-making process. This is especially important because they are permitted to make submissions, whose content may vary, at various stages of that process. A requirement of thoroughness which survives the filing of the investigator’s report ensures that every submission made by a complainant is given the consideration it deserves.
[71] Davis FC, above, at para 56, and Herbert, above, at para 26, suggest that this is the correct approach. They state that procedural fairness prevents the Commission from endorsing an investigator’s report without responding to submissions which seriously challenge its findings. Although these cases do not explicitly say that this rule is an extension of the thoroughness requirement imposed on investigators, it would be natural to read them that way for the reasons just given.
[1] Of course, thoroughness will direct different behaviour from the investigator and the Commission. A thorough investigator must investigate every issue and collect relevant evidence – for example, by interviewing witnesses. The Commission does not have such an active role to play at the screening stage. What the Commission must do in each case is read the investigator’s report and the complainant’s submissions with diligence, in order to obtain a careful understanding of the circumstances before rendering a decision.
[72] Some recent cases suggest that decisions which disregard submissions ought to be overturned on substantive review. The idea is that decisions which do not address the relevant issues or evidence are unreasonable.
[73] In Berberi, above, at para 24, Justice Manson found that
…there is very little in the section 40/41 Report of the Commission to support any reasonable finding that the Commission turned its mind to any of the underlying reasons for the complaint, or that the grievance process did in fact even deal with the applicant’s complaints.
[74] On the strength of this finding, Justice Manson concluded that the Court’s intervention was warranted. But this was not because he viewed the decision as procedurally unfair – rather, at para 25, he concluded that “the reasons provided by the Commission through its investigator were not justified, transparent or intelligible”.
[75] Similarly, in Khapar, above, at para 78, Justice Kane accepted that “the Commission’s reasons must leave the complainant with the impression that it considered his allegations before rejecting them”. However, this figured in her analysis of the decision’s reasonableness, as opposed to its fairness.
[76] I note, however, that in Sketchley FCA, Justice Linden declined to conduct substantive review altogether upon finding that an investigation lacked thoroughness: see para 125. This, in my view, remains the correct approach. It is not necessary to modify it in light of the Supreme Court’s decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses]. What the Supreme Court held in that case is that inadequate reasons, by themselves, do not suffice to quash a decision that otherwise finds reasonable support in the record before the Court.
[77] In the case at bar, and others which are similar to it, a breach of procedural fairness will not be found simply because the Commission has offered reasons which are inadequate in the sense that they are brief or do not appropriately reference certain pieces of evidence. A breach of procedural fairness occurs when the Commission (or its investigator) clearly ignores the submissions made by a complainant.
[78] Reasons which omit any mention of these submissions might constitute evidence that they were ignored, yet the procedural flaw remains the fact that the decision-maker ignored submissions – not that he issued reasons of a poor quality. This procedural flaw might be proven through other means, although reference to the reasons will probably be the easiest method in most cases. In any event, this is a meaningful distinction between procedure and form, which allows the Court to reconcile Sketchley FCA with Newfoundland Nurses.
[79] Turning to the facts of this case, the applicant has made out her allegation of procedural unfairness. The investigator’s report, which also stands as the Commission’s reasons, convincingly illustrates that her various submissions were ignored.
[80] When answering questions sent to her by the Commission, the applicant explained that the employer never addressed one of her human rights issues – whether the Treasury Board directive is discriminatory – in its three responses to her grievances. Despite this, the investigator found that the grievance process had resolved all of the issues raised by the applicant.
[81] A cursory reading of these responses shows that the applicant is correct. The first and second responses – which are worded similarly – state that the employer did not discriminate against the applicant because its actions were “fully in accord” with the impugned policy. Likewise, the third response dismisses the complaint on the basis that “the Employer respected the intent” of the policy and “applied the Policy correctly”. The grievance adjudicators never entertained the idea that the policy might be discriminatory, and so that respecting it and applying it correctly might amount to discrimination. The situation is analogous to that in the Sketchley cases, where the investigator misapprehended the nature of a complaint alleging that a similar policy was discriminatory. Since the applicant clearly pointed to this distinction in her submissions, the Court can only reckon that the investigator did not give them any consideration.
[82] In addition, I reject the respondent’s argument that either the grievance adjudicators or the investigator implicitly considered the Hydro-Québec decision. Although the Court owes deference to administrative decision-makers, it need not pretend that they applied jurisprudence which they did not cite in their decisions. The Court can not impute ideas to decision-makers in the absence of any evidence. Moreover, Hydro-Québec addressed the question of undue hardship in workplace accommodation – not the question of whether policies such as the one at issue are discriminatory. The respondent misconstrues the applicant’s complaint. Hydro-Québec has not overturned the Sketchley cases on the actual issue before the Court.
[83] I observe that neither the grievance adjudicators nor the investigator reproduced or commented upon the text of the policy. That text is not even before the Court because it was never addressed at all in the decisions below. The task of the Court is not to determine whether the policy – of which it has no direct knowledge – is discriminatory. It is to determine whether the administrative decision-makers turned their mind to it. Plainly they did not.
[84] In fact, the investigator wrote that the allegation that the policy is discriminatory was not originally contained in Ms Carroll’s complaint. However, the first paragraph of her complaint states in plain English: “I believe that Service Canada’s use of the Treasury Board’s Directive on Leave and Special Working Arrangements is discriminatory against people with Disabilities”. It is difficult to understand how this statement could be misunderstood. The investigator either did not read it or read it so carelessly that he did not understand it. In Sketchley FCA, at para 122, misapprehension of a complaint was found to constitute a lack of thoroughness which justifies judicial review.
[85] The problems did not end when the investigator completed his duties. The applicant submitted six pages of argument in reply, pointing to blatant errors in the report and citing relevant case law (Berberi). This had no effect on the Commission, which simply endorsed the report and dismissed the complaint. In these circumstances, it would appear that the Commission utterly ignored the applicant’s submissions. That evinces want of thoroughness: Herbert, above, at paras 26 and 30-31. This flaw compounds the previous flaws and renders the decision untenable.
[86] I pause to note that the present case is distinguishable from Bergeron, where Justice Zinn found that the Commission did not err by failing to consider an allegation that another Treasury Board policy was discriminatory. He explained, at para 42, that he came to that conclusion because the applicant did not “seriously pursue” the question in that case. Here, Ms Carroll made repeated submissions on the question in her second and third level grievances, in her complaint form to the Commission and in her reply submissions to the section 40/41 report.
[87] In passing, I do not accept the applicant’s suggestion that the Commission should have afforded her an oral hearing before endorsing the report – just as I reject the respondent’s argument that she should have sought the opportunity to submit further reply submissions. The problem is not that the Commission did not receive submissions from the applicant: it received several and they were strong. The problem is that the Commission plainly disregarded these submissions. It is far from certain that the Commission would have given greater weight to oral submissions when it could already find everything that could have been said in the written record before it.
[88] For the above reasons, the decision was rendered unfairly. It must be quash