A decision of the Canadian Human Rights Commission (CHRC) not to investigate a human rights complaint that had been the subject of grievances under the Public Service Labour Relations Act has been overturned on judicial review.
A government employee alleged discrimination on the basis of disability. She claimed her manager had harassed her by calling her at home on a Friday evening and directing her to report to a new work location effective the following Monday. She also alleged that her employer failed to accommodate her disability by directing her to report to the new location, which added 2 ½ to 3 hours to her daily commute.
She filed grievances under the PSLRA.
Subsection 41(1) of the Canadian Human Rights Act provides that the Commission can decline to deal with a complaint if appears to the Commission that:
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available.
The applicant’s union withdrew her grievances from the Public Service Labour Relations Board on the basis that they were non-adjudicable.
Section 42 of the CHRA states:
(1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.
(2) Before deciding that a complaint will not be dealt with because a procedure referred to in paragraph 41(a) has not been exhausted, the Commission shall satisfy itself that the failure to exhaust the procedure was attributable to the complainant and not to another.
The Commission refused to reactivate the complaint.
The Federal Court held:
Here, 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. The following facts demonstrate the deficiencies and errors made by the Commission on this front:
a) With respect to the grievance process initiated and undertaken by the PSLRB, it was withdrawn at the third level due to the union acting on behalf of the applicant deciding the grievances were “not adjudicable, for technical reasons, but not based on the merits of her grievances”. Therefore, the union withdrew the grievances and the applicant could not obtain adjudication on the merits;
b) The Commission found a “final decision” was made in respect of the grievances at the third level, but did not provide any analysis or reasons for this finding, nor comment on the merits of the grievances;
c) The Commission found that “the grievances were all denied. All the allegations were found to be unfounded”. This is not the case. The grievances were withdrawn, not concluded with any final decision on the merits of the grievances or the veracity of the applicant’s allegations;
d) The Commission admitted that “[n]o copies of the decisions with respect to the grievances were provided” (paragraph 25 of the investigator’s report); and
e) While the Commission in its report did state “the Respondent provided a summary of the final decisions on the grievances, which indicate that all the human rights allegations were addressed by the grievance procedure”, no reasons or analysis were given in respect of that summary report.
The court concluded that the reasons provided by the CHRC were “not justified, transparent or intelligible”:
While the Commission is certainly entitled to consider the grievance process and a decision made by a third party, it cannot abdicate its responsibility to independently consider any decision that resulted from that process and the reasons for it.