Elkayam v. Canada (Attorney General)

Elkayam v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2005-03-17
Neutral citation
2005 FCA 101
File numbers
A-370-04
Decision Content
Date: 20050317
Docket: A-370-04
Citation: 2005 FCA 101
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
AMRAM ELKAYAM
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Montréal, Quebec, on March 16, 2005.
Judgment delivered at Montréal, Quebec, on March 17, 2005.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: DÉCARY J.A.
LÉTOURNEAU J.A.
Date: 20050317
Docket: A-370-04
Citation: 2005 FCA 101
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
AMRAM ELKAYAM
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] This is an appeal from a decision of Mr. Justice Lemieux of the Federal Court, dated June 25, 2004. Lemieux J. dismissed the application for judicial review filed by the appellant against a decision by the Canadian Human Rights Commission (the Commission), which, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act (the Act), dismissed his discrimination complaint against the Department of National Defence. On May 30, 2003, the Commission dismissed the appellant's complaint, stating the following:
[TRANSLATION] Pursuant to paragraph 44(3)(b) of the Act, the Commission has decided to dismiss the complaint because:
- the additional evidence does not support the complainant's allegation that the respondent differentiated adversely in relation to him in the course of employment on the grounds of his religion and age; and
- the respondent did everything possible to resolve the situation.
[2] After carefully examining the relevant case law concerning the power exercised by the Commission under paragraph 44(3)(b) of the Act, according to which the Commission is entitled to a high degree of deference in the exercise of its discretion to dismiss a complaint on receipt of an investigation report, Lemieux J. expressed the opinion that the evidence on record supported the Commission's decision.
[3] Furthermore, Lemieux J. found that the delay incurred between the date of filing of the complaint and the date of the decision by the Commission was not at all unreasonable. In his opinion, the delay was the result of mediation and conciliation attempts, as well as the desire of the Commission to ensure that the investigation into the complaint was as complete as possible.
[4] In my opinion, Lemieux J. did not err in refusing to intervene. First, given the standard of review applicable to a Commission decision rendered pursuant to paragraph 44(3)(b) of the Act, i.e., patent unresonableness (see this Court's decisions in: Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113; Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 1655; and Murray v. Canada (Human Rights Commission), [2003] F.C.J. No. 763), Lemieux had good reason to decline to intervene.
[5] Second, it is my opinion that the judge's finding on the passage of time between the filing of the complaint and the date of the decision was not in the least unreasonable. In support of his arguments on this point, the appellant relied on case law that is, in my opinion, irrelevant. Specifically, the appellant referred to the decision of the Supreme Court of Canada in R. v. Askov, [1990] 2 S.C.R. 1199. Since that decision concerns subsection 11(b) of the Canadian Charter of Rights and Freedoms (the Charter), which applies only in criminal or penal matters (see R. v. Wigglesworth, [1987] S.C.J. No. 71), it cannot be used in support of the appellant's arguments.
[6] As for the appellant's arguments based on Quebec's Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the Quebec Charter) and the case law arising from it, we need only point out that the Quebec Charter is only concerned with matters within the legislative jurisdiction of the Province of Quebec. Such is not the case here.
[7] Turning, finally, to the appellant's arguments concerning the validity, operation or constitutional effect of subsection 3(1) of the Act, I am of the opinion that they are groundless.
[8] I would accordingly dismiss the appeal with costs.
"Marc Nadon"
J.A.
"I concur.
Robert Décary J.A."
"I concur.
Gilles Létourneau J.A."
Certified true translation
Michael Palles
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-370-04
Appeal from an order rendered on June 25, 2004, by Lemieux J. of the Federal Court in T-1097-03.
STYLE OF CAUSE:
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 16, 2005
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: DÉCARY J.A.
LÉTOURNEAU J.A.
DATED: March 17, 2005
APPEARANCES:
Amram Elkayam
FOR HIMSELF
Mariève Sirois-Vaillancourt
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Amram Elkayam
Longueuil, Quebec
FOR HIMSELF
John H. Sims, Q.C.
Deputy Attorney General of Canada
Montréal, Quebec
FOR THE RESPONDENT