Docket:
T-1231-13
Citation: 2014 FC 351
Ottawa, Ontario, April 10, 2014
PRESENT: The Honourable Mr. Justice Rennie
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BETWEEN:
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MARIA SNOOK
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Applicant
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and
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CANADA POST CORPORATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I.
Background
[1]
The Canadian Human Rights Commission (CHRC or
the Commission) decided not to reactivate a complaint before it filed by the
applicant, Maria Snook. It did so because it determined that the allegations
of discrimination in the complaint had been addressed through an internal
review procedure available to Ms. Snook under the collective agreement between
Ms. Snook’s union and Canada Post Corporation (Canada Post). In reaching this
conclusion, the Commission exercised a discretion given to it under section 41(1)(d)
of the Canadian Human Rights Act (RSC, 1985, c H-6) (the Act).
That section provides:
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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
[…]
(d) the
complaint is trivial, frivolous, vexatious or made in bad faith;
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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 :
[…]
d) la plainte
est frivole, vexatoire ou entachée de mauvaise foi;
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[2]
Ms. Snook has brought this application pursuant
to section 18(1)(d) of the Federal Courts Act for judicial review of
that decision.
II.
The Facts
[3]
The applicant’s complaint was filed before the Commission
in April, 2011. She alleged that her employer, Canada Post, discriminated
against her by reason of disability and infringed section 7 of the Act.
At that time, the Commission decided not to deal with the complaint pending
disposition of an internal grievance in respect of the same issue. Ms. Snook
was advised that she could return to the Commission and reactivate her
complaint at the conclusion of the grievance.
[4]
Ms. Snook had been sent home March 29, 2010
because, in her supervisor’s view, no suitable work could be found for her.
She remained off work until July 2, 2010 when she began training for a new,
permanent position, which she began on July 19, 2010.
[5]
The gravamen of Ms. Snook’s complaint before the Commission was that, in sending
her home, without work, during that period of time, Canada Post breached its
duty to accommodate and contravened section 7 of the Act. Notably,
during the period from March 29, 2010 to July 2, 2010, Canada Post assigned
work to others which she could have performed. Accommodation, therefore, was
available to her.
[6]
The matter proceeded through the internal
grievance procedure at Canada Post as follows.
[7]
First, the partied requested mediation. Mediation
failed.
[8]
Next, the parties proceeded to arbitration. The
union representative for Ms. Snook, Mr. Craig Dyer, and the Canada Post
representative, Ms. Ellen Campbell, presented their positions to the
arbitrator. A settlement was reached and an award on consent was issued by the
arbitrator on May 31, 2012. The award provided:
Grievance #126-07-01131 is considered settled
based on this consent award.
The hearing was scheduled to be heard by
Arbitrator Mac Lellan on May 29, 2012. At the joint request of the parties,
mediation talks were undertaken and an agreement was reached, whereby the
grievor is to be paid for seventy (70) days at 8 hours a day from March 29,
2010 to July 2, 2010. This is to be paid at the Relief Letter Carrier rate of
pay for 2010.
There are no damages awarded under the
collective agreement.
[9]
The issue of damages was before both the
mediator and the arbitrator. The evidence of Ms. Ellen Campbell, Labour
Relations Officer for Canada Post was that the arbitrator indicated, based on
what he had heard from the parties, that he would not award damages in excess
of lost wages if the matter proceeded.
[10]
This evidence is un-contradicted.
[11]
It is common ground that the effect of the award
was to fully reimburse Ms. Snook for all wages and benefits she would have
earned had she worked between March 29, 2010 and July 2, 2010, the same period
of time covered by the CHRA complaint. However, following the arbitral
award, Ms. Snook returned to the Commission and requested that her
discrimination complaint be reactivated, which the Commission declined to do.
It chose to not reactivate the file because the grievance and arbitration was
in respect of “essentially the same human rights issues as raised in the
complaint.” Secondly, and importantly, the Commission observed that:
At the mediation, the complainant decided to
reject the respondent’s offer of compensation for damages in exchange for
withdrawing the present complaint. She apparently felt that accepting the
offer would in some way condone the respondent’s alleged discriminatory
treatment of her and might imply that the respondent could treat other disabled
employees in the same way. However, the present complaint appears to be a
private dispute between the parties and does not raise allegations of systemic
discrimination. The amicable settlement of a grievance cannot be construed as
an admission of liability or wrongdoing on the part of either party.
[12]
The crux of the applicant’s argument before this
Court is that as the arbitrator could not award damages under the collective
agreement, and the Canadian Human Rights Tribunal (Tribunal) can, the internal
recourse proceedings were not an adequate alternative and did not provide
redress for the discriminatory conduct of Canada Post. Further, she argues
that the decision to settle on the terms reflected in the consent award was
that of her union, and not her own. In Ms. Snook’s view, the personal injury
to her dignity, which section 7 strives to protect, was never settled, and only
an award of damages could provide adequate compensation.
III.
Analysis
[13]
The issue before this Court is whether the
decision of the Commission was reasonable. In Kwon v Federal Express Canada
Ltd, 2014 FC 268, Justice Richard Mosley surveyed the jurisprudence with
respect to the standard of review of decisions of the Commission under section
41(1)(d) of the Act and concluded, at paragraph 13, that it was one of
reasonableness. I agree.
[14]
Three principles regarding the assessment of reasonableness
in the context of a workplace grievance and settlement are relevant here.
First, an arbitrator determining workplace grievance issues has the power to
apply and determine human rights obligations and broad authority to provide
remedies for breach of a collective agreement: Parry Sound (District) Social
Services Administration Board v OPSEU, Local 324, 2003 SCC 42, [2003] 2 SCR
157. Second, in British Columbia (Workers' Compensation Board) v Figliola,
2011 SCC 52, [2011] 3 S.C.R. 422, the Supreme Court of Canada made clear that the
reasonableness inquiry was informed by public interest considerations, such as
the importance of finality in decision making. Third, reasonableness is not
synonymous with complete satisfaction and vindication on all issues from the perspective
of one of the parties. As Justice André Scott (now of the Court of Appeal )
observed in Lawrence v Canada Post Corporation, 2012 FC 692 at paras
44-47, the fact that damages or letters of apology were not included in a
settlement does not mean that they were never discussed, concluding that “[b]y
its very nature, a settlement is a compromise.”
[15]
This latter observation is particularly apt in
this case. Damages were discussed in the mediation. Canada Post offered to
pay damages to Ms. Snook in return for the withdrawal of her CHRA Act
complaint. However, Ms. Snook rejected the offer. In her affidavit of August
12, 2013, Ms. Snook said that:
Any consideration of such a bribe from CPC by
me to suppress their abuse of the Charter rights of me and on behalf of all
employees would not be in the best interest of the public trust. It would be
unethical of me to put a price on the principles of fundamental justice which I
consider to be priceless. The ransom money offered by CPC to me for withdrawal
of my complaints before the Canadian Rights Commission was denied.
[16]
The applicant is to be commended for her
adherence to principles and the welfare of her co-workers. However, here, as
in life, adherence to principles often come at a cost, and in this case, the
decision to reject an offer that was put on the table in the context of the
mediation and settlement forms an important part of the factual background
underlying the reasonableness inquiry. Moreover, the Commission’s reasons for
rejecting Ms. Snook’s request to reactivate her complaint expressly refer to
the damages offer she declined, providing for an intelligible, transparent, and
justifiable basis upon which to base the Commission’s decision.
[17]
The circumstances of this case are analogous to
those before Justice James O’Reilly in Verhelle v Canada Post Corporation,
2010 FC 416. In that case it was argued that the refusal of the Commission to
proceed with a complaint in the face of an arbitral award was unreasonable
because it did not expressly address two of the multiple grievances before the
arbitrator, nor did the award address lost pension and other benefits. In
dismissing the application, Justice O’Reilly focused the analysis on the
factual substratum of the
complaint and not the result. The issue was whether it was reasonable for the
Commission to conclude that “the essence of [the] dispute with Canada Post had
been dealt with by way of the grievance process.” In Ms. Snook’s case, the
“essence” of her dispute was also addressed by the grievance process, and the
Commission’s decision to not reactivate her application was reasonable as a
result.
[18]
The Commission based its decision on the
complete record before it, namely, the refusal by Canada Post to accommodate
her in the period from March 29, 2010 to July 2, 2010, her reinstatement to a
full time, permanent accommodated position, and the consent award, which made
her whole. The Commission also reviewed submissions from the applicant and
Canada Post on whether or not the grievance and arbitration process had
adequately addressed the human rights complaint which underpinned the
complaint. The Commission concluded that it had. As Justice James Russell
said in Chan v Canada (Attorney General), 2010 FC 1232, the question is if
the Commission “turned its mind” to whether the alternate procedure addressed
the human rights complaint.
[19]
In assessing the reasonableness of the decision
not to proceed with a complaint, it is important to understand that section
41(1)(d) of the Act performs a screening function. It allows the
Commission to determine whether the essence of a human rights complaint has
been otherwise adequately addressed through a parallel process. The Commission
is not under a duty to investigate every complaint, or to ensure that where an
alternative procedure has produced a remedy, it would mirror with precision the
remedies which might have been given by the Tribunal. Rather, the Commission
is to examine, on a prima facie basis, whether the grounds set out in section 41(1)(d) have been
met: English-Baker v Canada (Attorney General), 2009 FC 1253 at para 18.
IV.
Conclusion
[20]
The Commission decided against reactivating Ms.
Snook’s complaint after it was addressed through arbitration. The Commission’s
decision taken under section 41(1)(d) of the Act falls within the range
of acceptable outcomes which are defensible in light of the law and facts: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47. The reasons by
which the Commission reached that conclusion were intelligible, transparent and
justified in light of the facts. In other words, the Commission’s decision was
reasonable. I therefore dismiss the application for judicial review.
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