Judgments

[2002] 2 F.C. 430

T-1672-00

2001 FCT 1115

International Longshore & Warehouse Union (Marine Section), Local 400 (Applicant)

v.

Helen Oster and Canadian Human Rights Commission (Respondents)

and

Canadian Human Rights Tribunal (Intervener)

Indexed as: International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster (T.D.)

Trial Division, Gibson J.—Vancouver, September 18; Ottawa, October 15, 2001.

Human Rights — Worker alleging discrimination by union on ground of sex contrary to CHRA, s. 9 — Sought employment through union as cook/deckhand — Referred to shipping company but turned down on ground of lack of separate sleeping accommodation for women — Union failing to protest rejection — Commission referring complaint to CHRT despite late filing — Tribunal finding union obliged at law, under collective agreement not to be party to discriminatory act — Standard of review of CHRT decisions established by S.C.C. not altered by amendments to Act, subsequent case law — Tribunal made no reviewable error in finding complainant unqualified for dispatch, person dispatched better qualified — Findings of fact by Tribunal reasonably open to it.

Administrative Law — Judicial Review — Certiorari — Union seeking to set aside Tribunal’s decision upholding worker’s sexual discrimination complaint — Worker seeking job as cook/deckhand, rejected by shipping company as vessel lacking separate sleeping accommodations for women— Whether discriminatory standard justified — Applicable standard of review of Tribunal’s decisions correctness as to questions of law, reasonableness simpliciter for questions of mixed law and fact, patent unreasonableness in respect of fact-finding, adjudication in human rights context — Not modified by amendments to Canadian Human Rights Act, recent case law — Tribunal applying correct legal test in finding union discriminated against complainant, failed to accommodate her — Administrative tribunal need not recite all evidence in reasons for decision — Findings of fact by Tribunal neither erroneous nor made in perverse, capricious manner.

This was an application for judicial review of a decision of the Canadian Human Rights Tribunal upholding a complaint by the respondent, Helen Oster, that the International Longshore & Warehouse Union had discriminated against her on the ground of sex contrary to section 9 of the Canadian Human Rights Act. The respondent, who had experience working on commercial fishing vessels as a deckhand, began registering with the Union for employment as a cook/deckhand in January of 1992. On March 8, 1994, she was in the office of the then-president of the Union, David Crain, now deceased, when the latter telephoned Norsk Pacific Marine Services to refer her for a position as cook/deckhand aboard a tug, the Texada Crown. Mr. Crain was advised that the respondent would not be an acceptable referral because the tug did not have separate sleeping accommodations for women. He apparently did not protest against the position taken by the company representative with whom he spoke. The respondent had filed an earlier complaint against the Union with the Canadian Human Rights Commission in October 1994, but did not mention the incident that was the object of the complaint giving rise to this application for judicial review, which was filed only on June 20, 1997. The Commission advised the Tribunal that it was requesting an inquiry into the complaint, despite the long delay since the event giving rise to the complaint and the intervening death of Mr. Crain. The Tribunal found that there was no evidence supporting the conclusion that it was impossible to accommodate the complainant without imposing undue hardship. It concluded that the Union had an obligation both at law and under the collective agreement not to be a party to a discriminatory act and had a duty to respond in a way that was consistent with its obligations to accommodate the complainant. In the result, it upheld the respondent’s complaint and provided relief against the Union. Three main issues were raised on this application: (1) the standard of review of the Tribunal’s decisions, (2) the late filing of the complaint and (3) whether the Tribunal erred in its findings with respect to discrimination and accommodation.

Held, the application should be dismissed.

(1) In the case of Canada (Attorney General) v. Mossop, the Supreme Court of Canada acknowledged the “superior expertise” of a human rights tribunal relating to fact-finding and adjudication in a human rights context. In another recent case, that Court delineated the factors to be taken into account in applying a pragmatic and functional approach to determination of the appropriate standard of review. Applying the guidance provided by these cases, it could be said that the standard of review of decisions of the Canadian Human Rights Tribunal is correctness in respect of questions of law, reasonableness simpliciter in respect of questions of mixed law and fact, and patent unreasonableness as to fact-finding and adjudication in a human rights context. The standard of review of questions of law and questions of fact-finding and adjudication in a human rights context by the Tribunal have not been modified by amendments to the Canadian Human Rights Act made since the Mossop decision, or by recent decisions of the Supreme Court of Canada or of the Federal Court Trial Division regarding the pragmatic and functional approach to determination of the standard of review.

(2) The Commission undertook to “deal” with the complaint even though it was “based on acts or omissions the last of which occurred more than one year … before receipt of the complaint” in the words of paragraph 41(1)(e) of the Act. The Commission’s decisions to extend the statutory time limit on filing of a complaint and, following an investigation, to refer the complaint to the Tribunal were judicially reviewable by the Court. Judicial review was not sought. The discretion conferred on the Commission by paragraph 41(e) of the Act is incompatible with the notion that section 41 should be interpreted as if it created a legal right not to be investigated in specific circumstances. The position adopted by the Tribunal could lead to an anomalous result since the Court could judicially review a time extension by the Commission and affirm it, and yet the same decision of the Commission would be open to substantive review by the Tribunal in case the Commission referred the complaint to it. Parliament did not intend such a result. The Tribunal erred, against a standard of correctness, in assuming jurisdiction over the Union’s preliminary objections. Having decided not to seek judicial review before the Court of the Commission’s discretionary decision to extend the time limit under paragraph 41(1)(e) of the Act, the Union was precluded from adopting the alternative recourse that it chose, by raising the same issues that it could have raised on judicial review, before the Tribunal. Even if the Tribunal erred in assuming jurisdiction in relation to the timeliness issues, its decision with respect to them was not determinative of this appplication for judicial review.

(3) The Tribunal did modify the test for discrimination in employment and, against a standard of correctness, which is the appropriate standard in the determination of the legal test, made no reviewable error in so modifying the test. Against that standard, the Tribunal made no reviewable error in determining that the respondent was not qualified to be dispatched and was not dispatched and that the person who was dispatched was better qualified and lacked the feature on which the complaint was based. The application of the appropriate legal test for discrimination in employment to the facts of this matter is a mixed question of law and fact. The Tribunal also found that the Union had a “discriminatory standard”, that is, a practice of discouraging women from seeking employment on tugs where accommodations were “a little too close quartered”. However, that finding was not central to a determination that the Union discriminated in employment against the respondent on the basis of sex. The Tribunal was cognizant of the role of the Union as contrasted with those of the potential employer and the respondent and took into account the relevant obligations of each of them. The evidence before the Tribunal as to the interest, or lack thereof, expressed by the respondent at the relevant time was also acknowledged by the Tribunal and not ignored in its analysis regarding a bona fide occupational requirement defence. The Tribunal did not recite the evidence regarding the circumstances where two deckhand/cooks might occupy the same sleeping quarters at the same time. However, an administrative tribunal need not recite all of the evidence before it in its reasons for decision. The findings of fact made by the Tribunal were reasonably open to it. They were not made in a perverse or capricious manner or without regard to the totality of the evidence that was before the Tribunal.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 9, 41(1) (as am. by S.C. 1995, c. 44, s. 49), 48.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 48.2 (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 48.4(1) (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 49(5) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 66; S.C. 1998, c. 9, s. 27), 50(2) (as am. idem), 53(2) (as am. idem), (3) (as am. idem).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5).

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Canada Post Corp. v. Barrette, [1999] 2 F.C. 250 (1998), 15 Admin. L.R. (3d) 134; 157 F.T.R. 278 (T.D.).

NOT FOLLOWED:

Canada (Canadian Human Rights Commission) v. Canadian Broadcasting Corp. (re Vermette) (1996), 120 F.T.R. 81 (F.C.T.D.).

CONSIDERED:

Canada (Department of National Health and Welfare) v. Chander (1997), 131 F.T.R. 301 (F.C.T.D.).

REFERRED TO:

Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; [1992] 6 W.W.R. 193; (1992), 71 B.C.L.R. (2d) 145; 13 B.C.A.C. 245; 141 N.R. 185; Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (1999), 180 D.L.R. (4th) 95; 176 F.T.R. 161 (T.D.); Canadian Broadcasting Corp. v. Graham (1999), 170 F.T.R. 142 (F.C.T.D.); Canada Post Corp. v. Canadian Human Rights Commisson et al. (1997), 130 F.T.R. 241 (F.C.T.D.); affd (1999), 245 N.R. 397 (F.C.A.); Canada Post Corp. v. Canada (Attorney General), [2000] F.C.J. No. 245 (T.D.) (QL); Brine v. Canada (Attorney General) (1999), 19 Admin. L.R. (3d) 1; 48 C.C.E.L. (2d) 121; 175 F.T.R. 1 (F.C.T.D.); Prinesdomu v. Teleglobe Canada Inc. (1999), 171 F.T.R. 4 (F.C.T.D.); Florence Shakes v. Rex Pak Ltd. (1981), 3 C.H.R.R. D/1001; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; (1999), 176 D.L.R. (4th) 1; [1999] 10 W.W.R. 1; 127 B.C.A.C. 161; 66 B.C.L.R. (3d) 253; 46 C.C.E.L. (2d) 206; 244 N.R. 145.

APPLICATION for judicial review of a decision of the Canadian Human Rights Tribunal (T.D. 4/00; [2000] C.H.R.D. No. 3 (QL)) upholding a complaint by the respondent, Helen Oster, that the International Longshore & Warehouse Union (Marine Section), Local 400 had discriminated against her on the ground of sex contrary to section 9 of the Canadian Human Rights Act. Application dismissed.

APPEARANCES:

Leo McGrady, Q.C., for applicant.

Philippe Dufresne for respondents.

Gregory A. Miller for intervener.

SOLICITORS OF RECORD:

McGrady, Baugh & Whyte, Vancouver, for applicant.

Canadian Human Rights Commission, Ottawa, for respondents.

Canadian Human Rights Tribunal, Ottawa, for intervener.

The following are the reasons for order rendered in English by

Gibson J.:

Introduction

[1]        These reasons arise out of an application for judicial review brought by the International Longshore & Warehouse Union (Marine Section), Local 400 (the Union) wherein it seeks judicial review in respect of a decision of the Canadian Human Rights Tribunal (the Tribunal) dated August 9, 2000 [T.D. 4/00; [2000] C.H.R.D. No. 3 (QL)]. In its decision, the Tribunal upheld a complaint by Helen Oster (Ms. Oster), filed June 20, 1997, that the Union had discriminated against her on the ground of sex contrary to section 9 of the Canadian Human Rights Act[1] (the Act).

[2]        Ms. Oster’s complaint indicated that, in January of 1992, she began registering for employment with the Union as a cook/deckhand. The complaint read in part as follows:

On March 8, 1994, the Union President, David Crain, telephoned Norsk Pacific to refer me for a position as a cook/deckhand. He was advised that I would not be acceptable as a referral because the vessel in question did not have separate sleeping accommodations for women. The work required working alternating six-hour shifts and, therefore, crew members would not be in the cabin at the same time and there would not have been a problem for men and women to be assigned to the same sleeping quarters.

[3]        The Union seeks an order quashing the decision of the Tribunal, its costs and such further or other relief as this Court deems just.

Background

[4]        Under a similar heading in its reasons for the decision that is under review, the Tribunal wrote [at paragraphs 3-4]:

In her evidence, the Complainant [Ms. Oster] said that she first attempted to obtain a position as a cook/deckhand in January of 1992 through the Respondent’s [the Union’s] union hall. She had experience on commercial fishing vessels as a deckhand for which she qualified through a training course at the Pacific Marine Training Institute. She also had a certificate as a professional cook in culinary arts from Vancouver Community College. Her experience on fishing vessels began in 1988 and continued for three years. This included working with fishing gear, cleaning and storing fish and wheelhouse duties.

Over a period of some two-and-a-half years of her association with the Respondent, she received approximately seventy-five days’ work, some as a cook and others as a deckhand or an able bodied seaman. During this period, she was not a union member for which one can only qualify, according to the terms of the collective agreement, after having completed sixty consecutive days of work on one payroll. As a non-union member, the Complainant had to attend the hall to qualify for a dispatch recognizing that there are priorities in favour of union members, those with the most experience, and those who have been sitting in the hall the longest over accumulated days. There is a separate list called the “night list” reserved for non-union members on which list, the Complainant rose to second from the top in 1994. When a job is phoned in to the union hall, it is written on a chalkboard with a description of the position and at what time it is to be called. In order to get the job you have to be in the hall when it is called. Those seeking the position raise their hands and a person is chosen in accordance with established rules.

[5]        The events of March 8, 1994 that were the subject of Ms. Oster’s complaint can be briefly stated. Ms. Oster was in the office of the then President of the Union, David Crain, now deceased, when Mr. Crain telephoned Norsk Pacific to refer Ms. Oster for a position as a cook/deckhand aboard a tug, the Texada Crown, during a continuous 24-hour, 14-day run. Mr. Crain was apparently advised by the person with whom he spoke that Ms. Oster would not be an acceptable referral because the Texada Crown did not have separate sleeping accommodations for women. That being said, apparently the work that Ms. Oster and one other person would be required to perform involved alternating six-hour shifts and, Ms. Oster alleged, the two crew members would not be in the single sleeping cabin at the same time and therefore there would not have been a problem if a man and a woman were assigned to the same sleeping quarters.

[6]        Mr. Crain apparently did not protest against the position taken by the representative of Norsk Pacific Marine Services with whom he spoke.

[7]        Following the telephone conversation, there was apparently no discussion between Mr. Crain and Ms. Oster regarding her qualifications or experience concerning the job. She had previously worked on a tug as a cook on a long voyage, but not as a cook/deckhand.

[8]        Ms. Oster did not return to the hiring hall to either witness or participate in the dispatching of the position on the Texada Crown because she apparently regarded the events in Mr. Crain’s office as foreclosing any opportunity that she might otherwise have had to be dispatched to work as a cook/deckhand on board of the Texada Crown.

[9]        Ms. Oster had filed an earlier complaint against the Union with the Canadian Human Rights Commission (the Commission) on October 7, 1994. It alleged discrimination against her by the Union on the grounds of sex and family status, contrary to sections 7 and 9 of the Act, during the period from February 16, 1994 to the date of filing of the complaint. Of note is the fact that the incident that is the subject of the complaint giving rise to this judicial review was not mentioned in the earlier complaint. On the basis of an investigation report dated September 5, 1996, the Commission recommended dismissal of the earlier complaint. As noted earlier, the complaint to which this judicial review relates followed and was filed only on June 20, 1997.

[10]      Following an investigation on behalf of the Commission into the complaint here at issue, the Commission advised the Tribunal on September 1, 1999 that it was requesting that the Tribunal hold an inquiry into the complaint; this, despite the long delay since the event giving rise to the complaint and the intervening death of Mr. Crain who was alleged by the Union to be the only individual qualified to give evidence on behalf of the Union regarding all of the circumstances surrounding the complaint.

The Decision Under Review

[11]      The Tribunal concluded its reasons for decision on the substance of the complaint in the following terms, at paragraphs 86-91:[2]

Nothing in these reasons should lead to the interpretation posed by counsel for the Respondent [the Union]. This case is not about imposing a standard that persons, male or female, enjoying the protection of a union can be forced to accept sleeping accommodations with members of the opposite sex as a condition of employment. This case rather is about whether in the given circumstances, a discriminatory standard can be justified. At issue too is the conduct of the Union in the face of its obligation to stand up for the Complainant [Ms. Oster]. In my view, the Respondent has not advanced persuasive evidence that the so-called standard was adopted for a purpose or goal rationally connected to the function being performed nor was the standard adopted in good faith in the belief that it was necessary for the fulfilment of the purpose or goal. Moreover, there is no evidence that supports the conclusion that it was impossible to accommodate the Complainant without imposing undue hardship. There is no evidence that allowing a woman to participate in the six-hour opposite shift would interfere with the rights of other employees in adopting accommodating measures. Not even a negligible effort was made by the Respondent to challenge the proposition put to Mr. Crain by Mr. Robertson [the representative of Norsk Pacific to whom Mr. Crain spoke by telephone on the day in question] concerning the unsuitability of the Complainant in relation to the posted position.

The Respondent argues in an effort to absolve itself of responsibility for what occurred on March 8th in Mr. Crain’s office, that there was no obligation to respond to the position taken by Mr. Robertson on behalf of Norsk because there was not a woman who would have been referred that day. The Complainant did not seek the position nor did she possess the experience to qualify. The Respondent, it is said, deals with problems of this nature as they arise and are dealt with in the course of bargaining leading to a collective agreement. So, failure to dispatch in these circumstances was not discrimination and did not taint the dispatch. There was no obligation to respond to what Mr. Robertson said and, as put by counsel for the Respondent, it is not the Respondent’s responsibility to be the employer’s human rights watchdog.

I disagree. The Respondent had an obligation both at law and under the collective agreement not to be a party to a discriminatory act. It had a duty to respond in a way that was consistent with its obligations to accommodate the Complainant. Arguably, this could have been accomplished in a number of ways. First, by not participating in the tenor of the discussion between Mr. Crain and Mr. Robertson in a way that it appears to have given sanction to what was said. Mr. Crain could have objected or challenged the proposition put to him and signalled his intent that the Complainant should proceed to apply through the hiring hall process. That would have left open the possibility that the procedures called for in the collective agreement … would have been exercised, even though Ms. Oster was not destined ultimately to be selected. This was not done.

I refer again to the evidence of the President of the Union … who stated that in the event of a complaint by Ms. Oster, the Union could have phoned Norsk and advised them of the possible implications if they refused this woman a job. Instead of doing that, the Union acquiesced in the inadmissible reason for the denial of the dispatch. I am also influenced in coming to this conclusion by the Union’s apparent disregard of [an article] of the collective agreement which prohibits discrimination against any person (as I read it) on the basis of sex. [The article in question], somewhat ironically, is juxtaposed with [another article] which states that the manning of a tug shall allow for “two (2) men”.

In Renaud, Sopinka J. said that minor interference or inconvenience is the price to be paid “for religious freedom in a multicultural society”. This sentiment might be paraphrased in the context of this case to say that such interference and inconvenience is the price to be paid for according equality rights to women. This is so especially where the accommodation was available to the Respondent in a relatively simple and straightforward way.

The Respondent has failed to satisfy the onus to provide reasonable justification for the standard. [References to specific articles of the collective agreement and to the name of a Union official omitted.]

[12]      The reference in the foregoing quotation to Renaud is to Central Okanagan School District No. 23 v. Renaud.[3]

[13]      In the result, Ms. Oster’s complaint was upheld and relief was provided against the Union.

The Issues

[14]      The issues identified on behalf of the Union in its memorandum of fact and law are the following:

a)    whether the Tribunal applied the wrong legal test in determining whether the Union was prejudiced by the delay in the filing of Ms. Oster’s complaint;

b)    whether the Tribunal erred in determining that the Union should be deprived of the benefit of the time limit set out in paragraph 11(e) [sic] of the Act;

c)    whether the Tribunal erred in failing to determine whether Ms. Oster’s complaint constituted an abuse of process;

d)    whether the Tribunal erred in finding that the Union discriminated against Ms. Oster;

e)    whether the Tribunal applied the wrong legal test with respect to discrimination in employment;

f)     whether the Tribunal applied the wrong legal test in determining that the Union failed to accommodate Ms. Oster;

g)    whether the Tribunal overlooked the obligations of Ms. Oster in determining that the Union failed to accommodate Ms. Oster;

h)    whether the Tribunal based its decision on erroneous findings of fact that it made in a perverse or capricious manner, or without regard for the material before it. The findings of facts at issue are the following:

i)     the two deckhands would not be in the sleeping quarters at the same time; and

ii)    the events that occurred in the Union president’s office on March 8, 1994 discouraged Ms. Oster from participating in the dispatch procedure.

Analysis

(1)       Preliminary Issues

(a)   Standard of Review

[15]      By order dated August 1, 2001, this Court granted leave to the Tribunal to intervene in this matter “on the singular issue of the appropriate standard of review”. In accordance with that order, the Tribunal filed an extensive application record and authorities in which it urged that the standard of review applicable to findings by the Tribunal under the Act, determined by the Supreme Court of Canada in Canada (Attorney General) v. Mossop[4] has been significantly impacted by amendments to the Act[5] and by more recent judgments of the Supreme Court of Canada and the Federal Court Trial Division. In this latter regard, counsel referred me in particular to Pushpanathan v. Canada (Minister of Citizenship and Immigration)[6] and to the decision of the Federal Court Trial Division in Canada (Attorney General) v. Public Service Alliance of Canada[7] where, in the submission of counsel, the “functional and pragmatic approach” to determining the appropriate standard of review has been consolidated and formalized.

[16]      In the Mossop decision, Chief Justice Lamer wrote at pages 584-585:

The courts have also been willing to show deference to administrative tribunals for reasons of relative expertise. This is in addition to the normal deference of reviewing courts in respect of questions of fact. But the position of a human rights tribunal is not analogous to a labour board (and similar highly specialized bodies) to which, even absent a privative clause, the courts will give a considerable measure of deference on questions of law falling within the area of expertise of these bodies because of the role and functions accorded to them by their constituent Act in the operation of the legislation. The Human Rights Commission undoubtedly serves many useful functions that help to educate, inform, and advise the government, the public and the courts on matters of human rights…. It also provides a procedure for initiating, investigating, and seeking voluntary settlement of human rights complaints. But it must be noted that in none of these roles is the work of the Commission binding on all parties. That power resides only with the tribunal in its adjudicative role under Part III of the Act. And the tribunal is not, simply by these other functions of the Commission, entitled to be free of normal review in its adjudicative function. The tribunals themselves are ad hoc bodies established to settle a particular dispute. In this respect their positions are similar to that of a labour arbitrator. But a human rights tribunal does not appear to me to call for the same level of deference as a labour arbitrator. A labour arbitrator operates, under legislation, in a narrowly restricted field, and is selected by the parties to arbitrate a difference between them under a collective agreement the parties have voluntarily entered. As well, the arbitrator’s jurisdiction under the statute extends to the determination of whether a matter is arbitrable. This is entirely different from the situation of a human rights tribunal, whose decision is imposed on the parties and has direct influence on society at large in relation to basic social values. The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal’s decisions on questions of this kind on the basis of correctness, not on a standard of reasonability. [Citations omitted; emphasis added.]

[17]      As to legislative changes to the Act since the Mossop decision, counsel referred me to:

- subsection 48.1(1) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27] of the Act which, by contrast with earlier iterations of the Act which provided no limitation on the number of members, now restricts the maximum number of members of the Tribunal to 15, including a Chairperson and a Vice-chairperson;

- subsection (2) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27] of that section which has no precedent and which requires that persons appointed as members must have experience, expertise and interest in, and sensitivity to, human rights;

- subsection (3) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27] of that section, once again without precedent, which requires that the Chairperson and Vice-chairperson must be members in good standing of the bar of a province or the Chambre des notaires du Québec for at least 10 years and that at least two other members of the Tribunal must be members in good standing of the bar of a province or of the Chambre;

- subsection 48.2(1) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27] of the Act which provides that the Chairperson and Vice-chairperson are to be appointed to hold office during good behaviour for terms up to seven years and the other members are also to be appointed to hold office during good behaviour for terms of up to five years with removal of the Chairperson from office only by the Governor in Council for cause and the Vice-chairperson and other members to be subject to remedial disciplinary measures only in accordance with specialized statutory measures;

- subsection (3) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27] of that section which provides for reappointment;

- subsection 48.4(1) [as enacted by R.S.C., 1985 (1st Supp.), c. 31; s. 65; S.C. 1998, c. 9, s. 27] of the Act which provides that the Chairperson and Vice-chairperson are to be appointed as full-time members and that other members may be appointed as either full-time or part-time members;

- subsection 49(5) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 66; S.C. 1998, c. 9, s. 27] of the Act which provides for specialized membership of the particular panel of the Tribunal when a complaint involves a question about whether another Act or a regulation made under another Act is inconsistent with the Act or a regulation made under it;

- subsection 50(2) [as am. idem] of the Act which provides broad powers to the Tribunal in the course of a hearing and a determination to decide questions of law and fact; and

- subsections 53(2) [as am. idem] and (3) [as am. idem] of the Act describing a broad range of discretionary remedies available to the Tribunal.

[18]      By contrast, subsection 48.1(6) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27] of the Act provides for appointment of an unlimited number of temporary members to the Tribunal, for terms of not more than three years, where, in the opinion of the Governor in Council, the workload of the Tribunal so requires, without special qualification for those temporary members.

[19]      I simply am not satisfied that amendments to the Act made since the Mossop decision justify, of themselves, a variation in the standard or standards of review enunciated by the Supreme Court of Canada in that decision. In the foregoing quotation from the reasons of the then Chief Justice in Mossop, the “superior expertise” of a human rights Tribunal relating to fact-finding and adjudication in a human rights context was acknowledged. The limitation on “superior expertise” was stated to be to “general questions of law” involving “concepts of statutory interpretation and general legal reasoning”. I find nothing on the face of recent amendments to the Act which would lead me to the conclusion that the Tribunal and its members are now more competent to perform the latter function than members of the judiciary.

[20]      I note that the foregoing quotation from Mossop says nothing about the issue of standard of review on questions of mixed law and fact.

[21]      In Pushpanathan[8] the Supreme Court delineated the factors to be taken into account in applying a pragmatic and functional approach to determination of the appropriate standard of review as first: expressed legislative indicators of the standard of review, in particular privative clauses; second, the Tribunal’s relative expertise in relation to the particular issue before it; third, the purpose of the statute as a whole and the particular provision of the statue that is before the Tribunal; and finally, the “nature of problem”, that is to say, whether it is a question of law, fact or mixed law and fact.

[22]      Applying the guidance provided by the Supreme Court in Pushpanathan, and more recently in Baker v. Canada (Minister of Citizenship and Immigration)[9], I am satisfied that the standard of review of decisions of the Tribunal in this matter is correctness in respect of questions of law, reasonableness simpliciter in respect of questions of mixed law and fact, and patent unreasonableness in respect of “fact-finding and adjudication in a human rights context”. On the facts of this matter, I find the standard of review of questions of law and questions of fact-finding and adjudication in a human rights context by the Tribunal not to have been modified by recent decisions of the Supreme Court of Canada or of the Federal Court Trial Division regarding the pragmatic and functional approach to the determination of standard of review.

[23]      Counsel for the Union and counsel for the Commission each urged before me that the issue of standard of review essentially does not arise on this application for judicial review. Each urged that, whatever the appropriate standard of review, the standard is met. The distinction between the positions of counsel for the Union and counsel for the Commission lies, of course, in the result. Counsel for the Union urges that, whatever the appropriate standard, this application should be allowed. Counsel for the Commission urges, with equal force, that whatever the standard of review, this application for judicial review should be dismissed.

[24]      Ms. Oster did not appear on this application, either in person or by counsel, and filed no material. In the result, she took no position on the issue of standard of review or on any of the other issues before the Court.

(b)   Late filing of the Complaint

[25]      The opening words of subsection 41(1) [as am. by S.C. 1995, c. 44, s. 49] of the Act and paragraph (e) of that subsection read as follows:

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

…

(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.

[26]      Notwithstanding that the complaint, in the words of paragraph 41(1)(e) of the Act, was “based on acts or omissions the last of which occurred more than one year … before receipt of the complaint”, the Commission undertook to “deal” with the complaint. In a letter dated February 12, 1999,[10] the Commission provided its rationale for dealing with the complaint outside the normal statutory limitation period. That rationale is in the following terms:

Pursuant to paragraph 41(e) of the Canadian Human Rights Act, the Commission has resolved to deal with the complaint because:

the complainant contacted the Commission in time but only filed a complaint against the employer;

during investigation, it became evident that the complainant should be asked whether she wished to file a complaint against the union;

the complainant advised the Commission that she wished to do so, but by then more than a year had elapsed since the alleged discriminatory act;

the respondent has not demonstrated that the delay in signing the complaint has prejudiced its capacity to mount a defence to the allegations.

[27]      The Commission’s decisions to extend the statutory time limit on filing of a complaint and, following an investigation, to refer the complaint to the Tribunal, were, I am satisfied, a decision or decisions that was or were judicially reviewable by this Court. Judicial review was not sought. Nonetheless, even though the complaint was referred by the Commission to the Tribunal, the Union brought a preliminary motion before the Tribunal seeking dismissal of the complaint on four grounds, namely: that the complaint was filed out of time; that there had been unreasonable delay from which the Union had suffered prejudice; that there had been an abuse of process; and that the complaint was barred by the principles of res judicata. A decision on the preliminary motion was reserved for consideration at the conclusion of the full hearing of the complaint. Nonetheless, in preliminary reasons on the motion to dismiss, the Tribunal wrote:[11]

There are serious issues of prejudice raised by the Respondent [Union] depending on a fuller appreciation of the factual background.

[28]      In its reasons for its final decision on the complaint, the Tribunal dealt with the substance of the Union’s preliminary objection but before doing so, it examined its jurisdiction in the circumstances. It wrote at paragraphs 94 to 98 of its reasons:[12]

It seems clear that a Human Rights Tribunal lacks jurisdiction to judicially review a decision of the Commission to exercise its discretion under Section 41(e) of the Act (Canadian Human Rights Commission v. Canadian Broadcasting Corp. et al. (1996), 120 F.T.R. 81 (Vermette)). That being said, the neat question is whether Section 41(e) properly understood confers on a respondent [here the Union] the benefit of the limitation period spelled out in Section 41(e) of the Act. In Vermette, Muldoon J. was of the opinion, affirming the decision of the Canadian Human Rights Tribunal, that a respondent does enjoy the benefit of Section 41(e) in its defence to a complaint. The distinction was made between the powers accorded to the Commission under Section 41(e) which are procedural and preliminary authority to override the basic limitation period of one year, and to extend it to what “the Commission considers appropriate in the circumstances”, and the statutory powers of the Tribunal to conduct a full hearing accorded in Section 50(2)(a). In that regard, Muldoon J. makes the following comment:

“Why should that be the Courts interpretation of s. 41(e)? It is because Parliament enacted the one year datum as a substantive right of, or benefit to, those against whom complaints are made, but the Commission does not deal with complaints by dealing with anyone’s substantive rights. Tribunals, however, do determine substantive rights in according full hearings pursuant to powers provided in s. 50, and in concluding whether the complaints be substantiated against respondents, or not pursuant to s. 53.

Full, fair hearings are those in which the persons against whom complaints are made, are accorded each the opportunity to make a full answer and defence to the complainant’s case. Clearly, being prevented from benefiting from the one-year limitation can be raised in a full answer and defence.” (paragraphs 28, 29 - page 97).

Canada Post Corp. v. Barrette (1998), 43 C.H.R.R. D/353 (F.C.T.D.), seems to take a different approach to Section 41(e). This involved an application for judicial review of a decision of the Canadian Human Rights Commission to investigate complaints of discrimination brought against Barrette. Issues of the timeliness of the complaint and estoppel because of prior unsuccessful grievances were raised by the Respondent. In response to the Respondent’s argument that the listed exceptions to the Commission’s duty to deal with a complaint under Section 41 should be regarded as enacted for the benefit of the employers and others against whom complaints are made and that the Court should be vigilant to ensure that the Commission does not erode those statutory rights, Evans J. stated that he could not accept this as an appropriate approach to Section 41. At page D/360, paragraph 30, he stated,

“For one thing, as I have noted, the section is drafted in the way that leaves many issues to the discretion or judgment of the Commission: this is incompatible with the notion that it should be interpreted as if it created a legal right not to be investigated in specific circumstances. The Commission still has the discretion to deal with the complaint if it so chooses…

Moreover, since the purpose of the statutory scheme is to reduce inequality, and accordingly, has been said to possess a quasi-constitutional status, a court should be reluctant to conclude that the Commission has erred by taking too narrow a view of the exceptions to its statutory duty to deal with complaints of discrimination. On the other hand, it is arguable that closer judicial scrutiny is justified when the Commission decides not to deal with a complaint, which will normally be the final disposition of the matter.” (Paragraph 31)

The Federal Court of Appeal on April 20, 2000, allowed an appeal in Barrette and set aside the decision of the Trial Judge. There is no specific reference to the issue of timeliness of the complaint and estoppel as discussed by Evans J. The general approach of the Court of Appeal, however, is more in line with Muldoon J.’s thinking.

The reconciliation of these two points of view can perhaps be achieved on the basis of the reasoning in Vermette. There, the Tribunal was seized of the complaint and came to a conclusion after a full hearing, included in which was an adjudication on the issue of timeliness, whereas in Barrette, it was an application by way of judicial review dealing pointedly with the jurisdiction of the Commission described in Section 41.

I am guided here in this deliberation therefore by the principle expressed in Vermette both at the Tribunal level and the Federal Court that a Tribunal may determine, based on the evidence before it, whether a Respondent has been deprived of the benefit which Parliament provided in relation to the limitation period provided in Section 41 of the Act. Such evidence may be beyond the considerations of the Commission when it made its decision to proceed with the complaint.

[29]      With great respect to the learned member of the Tribunal who wrote the foregoing, I reach a different conclusion and favour the position adopted by Mr. Justice Evans in Barrette [Canada Post Corp. v. Barrette, [1999] 2 F.C. 250 (T.D.), at paragraph 30] that the discretion conferred on the Commission in [then] paragraph 41(e) of the Act “is incompatible with the notion that it [section 41 of the Act] should be interpreted as if it created a legal right not to be investigated in specific circumstances”. Mr. Justice Evans’ reasoning would appear to have been supported by a number of others of my colleagues.[13] If I am correct that a discretionary authority of the Commission to extend the one-year time limitation for the filing of a complaint that is conferred by paragraph 41(1)(e) of the Act is judicially reviewable by this Court under sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7], and the foregoing cited decisions would appear to support my view in that regard, and I certainly find nothing on the face of either the Canadian Human Rights Act or the Federal Court Act to contradict that view, the position adopted by Mr. Justice Muldoon in Vermette [Canada (Canadian Human Rights Commission) v. Canadian Broadcasting Corp. (re Vermette) (1996), 120 F.T.R. 81 (F.C.T.D.)] and adopted by the Tribunal in this matter could lead to what I regard as a rather anomalous result: this Court could judicially review a time extension by the Commission and affirm it and yet the same decision of the Commission would be open to substantive review by the Tribunal in the event that the Commission referred the complaint to the Tribunal. In the absence of specific statutory language demonstrating that Parliament intended such a result, I conclude that it did not so intend.

[30]      In the result, I conclude that the Tribunal erred against a standard of correctness, in assuming jurisdiction with respect to the Union’s preliminary objections. The Union, having decided not to seek judicial review before this Court of the Commission’s discretionary decision to extend the time limit under paragraph 41(1)(e) of the Act, was simply precluded from adopting the alternative recourse that it chose, that being to raise precisely the same issues that it could have raised on judicial review, before the Tribunal.

[31]      The foregoing effectively disposes of the first three issues listed in the statement of issues identified on behalf of the Union which appears earlier in these reasons. Each of those issues arises directly out of the decision by the Commission to extend the one-year time limitation in paragraph 41(1)(e) of the Act. At the same time, I am satisfied that the Tribunal’s assumption of jurisdiction with respect to the three issues was of no consequence to its final decision in that it decided each of the three issues in favour of Ms. Oster. In the result, the determination of the three issues by the Tribunal produced exactly the same result as if it had declined jurisdiction to consider those issues as I am satisfied it should have. In the result, and put more succinctly, even if the Tribunal erred in assuming jurisdiction in relation to the timeliness issues, its decision with respect to them is simply not central to, and therefore is not determinative of, this application for judicial review.

(2)       Remaining Issues

(a)   Whether the Tribunal erred in finding that the Union discriminated against Ms. Oster and/or applied the wrong legal test with respect to discrimination in employment

[33]      In Canada (Department of National Health and Welfare) v. Chander[14] Mr. Justice Muldoon refers to the test enunciated in Florence Shakes v. Rex Pak Ltd.[15] to prove a prima facie case of discrimination in circumstances, as here, where someone other than the complainant, Ms. Oster, was hired. He notes that in Shakes the test for a prima facie case of discrimination was described thus [at paragraph 33]:

a) that the complainant was qualified for the particular employment;

b) that the complainant was not hired; and

c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.

The Tribunal found that Ms. Oster was not qualified for the employment at issue aboard the Texada Crown. It further found that the person who was dispatched by the Union to the job in question was qualified. That person, a male, lacked the distinguishing feature which was the gravamen of the human rights complaint here at issue.

[34]      Counsel for the Union urged that the Tribunal, in adopting the forgoing test for discrimination in employment, erred on the facts of this matter since the Union did not itself hire employees but rather operated a hiring hall and dispatched people to employment. Counsel urged that the test should have been modified to the following:

(a) that the complainant be qualified to be dispatched;

(b) that the complainant was not dispatched; and

(c) that the person who would subsequently be dispatched had no better qualifications than the complainant but lack the feature on which the human rights complaint was based.

[35]      Taking the decision of the Tribunal as a whole, I am satisfied that it did so modify the test and, against a standard of correctness, which I am satisfied is the appropriate standard in the determination of the legal test, made no reviewable error in so modifying the test.

[36]      Against that standard, I am equally satisfied that the Tribunal made no reviewable error in determining that Ms. Oster was not qualified to be dispatched and was not dispatched and that the person who was dispatched was both better qualified and lacked the feature on which Ms. Oster’s complaint was based. I reach this latter conclusion against a standard of review of reasonableness simpliciter which, as earlier indicated in these reasons, I consider to be the appropriate standard in respect of a question of mixed law and fact. I regard the application of the appropriate legal test for discrimination in employment to the facts of this matter to be a mixed question of law and fact. If I am wrong in this regard, and the issue is a pure question of fact, then against what I consider to be the appropriate standard for determination of reviewability of findings of fact by the Tribunal in a human rights context, namely, patent unreasonableness, a fortiori the decision reached by the Tribunal was open to it.

[37]      Counsel for the Union further urged that the Tribunal erred in a reviewable manner in finding that the Union had a “discriminatory standard”, that being, a practice of discouraging women from seeking positions on tugs or equivalent vessels where accommodations were “a little too close quartered”. The Tribunal without doubt made such a finding. That being said, I am satisfied that that finding was not central to a determination that the Union discriminated in employment on the basis of sex against Ms. Oster, on the facts of this matter, against any appropriate test for discrimination in employment on the basis of sex.

(b)   Whether the Tribunal applied the wrong legal test in determining that the Union failed to accommodate Ms. Oster and overlooked her obligations in arriving at such determination

[38]      At paragraph 53 of its reasons,[16] the Tribunal wrote:

The beginning point is British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 (Meiorin), in which the Supreme Court of Canada redefined the law concerning bona fide occupational requirement and enunciated a three-step test for determining whether an employment standard is a bona fide occupational requirement. 1) it must be for a purpose rationally connected to job performance; 2) it must have been adopted by the employer in good faith with an honest belief that it was necessary for the fulfilment of the work related purpose; and 3) the employer must show that the standard is reasonably necessary to accomplish the work related purpose.

The Tribunal determined that privacy was not a significant factor in the operational effectiveness of the Texada Crown.

[39]      Counsel for the Union urged that, in determining that privacy was not a significant factor in the operational effectiveness of the Texada Crown, the Tribunal indicated that it was treating the Union as an employer and was focussing on the concerns of an employer, as opposed to the concerns of Union members. He urged that, on the facts of this matter, the application of the Meiorin test [British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 R.S.C. 3] test would only be effective if the test were viewed through the eyes of the Union, rather than those of an employer, that Ms. Oster herself had an obligation to seek out an accommodation or facilitate the search for an accommodation, and that Ms. Oster’s failure to seek out or facilitate a search for an accommodation, of which there was no evidence, had simply not been taken into consideration. Further, counsel urged that the Tribunal erred in not only failing to take into account the lack of effort towards accommodation on the part of Ms. Oster but also the failure of the potential employer to make reasonable efforts at accommodation. In both these regards, counsel urged that the Tribunal erred in a reviewable manner against whatever standard of review might be found to be applicable.

[40]      Once again, I am satisfied that the Union cannot succeed on these arguments against a standard of correctness in respect of the applicable test regarding bona fide occupational requirement and on a standard of reasonableness simpliciter on the application of the facts of this matter to that legal standard.

[41]      The reasons of the Tribunal, read as a whole, demonstrate that the Tribunal was, at all relevant points in its analysis, cognizant of the role of the Union as contrasted with those of the potential employer and Ms. Oster, and took the relevant obligations of each into account. An earlier complaint against the potential employer respecting the same facts here at issue had been dismissed by the Commission and the Tribunal was conscious of this reality. The evidence before the Tribunal as to the interest, or lack thereof, expressed or demonstrated by Ms. Oster at the relevant time was also acknowledged by the Tribunal and, I am satisfied, not ignored in its analysis regarding a bona fide occupational requirement defence.

(c)   Erroneous findings of fact

[42]      Finally, counsel for the Union urged that the Tribunal based its decision on erroneous findings of fact that it made in a perverse or capricious manner, or without regard for the material before it. The findings at issue were that Ms. Oster and the other cook/deckhand would not be in the sleeping quarters aboard the Texada Crown at the same time and that the events that occurred in Mr. Crain’s office on March 8, 1994 discouraged Ms. Oster from participating in the dispatch procedure.

[43]      Counsel urged that there was evidence before the Tribunal that circumstances could arise under which Ms. Oster and the other cook/deckhand would be in the sleeping cabin assigned to them at the same time. Such circumstances, it was urged, would arise where overtime was required or where there was a layover. Further, counsel urged, that there was simply no evidence before the Tribunal that Ms. Oster had ever intended to apply to be dispatched for employment aboard the Texada Crown, whether or not she was discouraged from participating in the dispatch procedure for that employment by the events that took place in Mr. Crain’s office on March 8, 1994.

[44]      In this regard, the Tribunal wrote [at paragraphs 42-44]:[17]

While it will never fully be known why the Complainant [Ms. Oster] was called to Mr. Crain’s office, what occurred in that office can, as I have said, be gleaned from the evidence. Mr. Crain was President of the Respondent [the Union] and while it was not his responsibility to manage the day-to-day affairs of the hiring hall, the job of the dispatcher, he undoubtedly had a general supervisory authority and responsibility. In my opinion the conversation he carried on with Mr. Robertson at Norsk had clearly to do with the posted dispatch of the cook/deckhand position on the Texada Crown. By the end of that conversation, one could not have reasonably come to any other conclusion but that the Complainant would be discouraged from applying because the sleeping accommodations were not suitable for her as a woman. That was the reason and the only reason given at that point. To the extent that a standard or goal can be discerned from what occurred during the March 8th incident, one must proceed from there to determine whether that standard or goal is discriminatory.

I see no evidence of a fundamental standard of a far reaching goal rather, it can be better described as a practice that women are discouraged from positions on tugs where accommodations are “a little too close quartered”, as Mr. Robertson put it. The Respondent’s evidence was that there had never been a request for shared sleeping accommodations. This “standard” existed in the particulars of this case though men and women would not be occupying the same sleeping quarters at the same time because of the alternate six-hour shifts.

What occurred in Mr. Crain’s office, in my opinion, constitutes prima facie evidence of a discriminatory practice based on sex contrary to Section 9(1)(c) of the Act. The Respondent acted in a way that deprived the Complainant of an employment opportunity based on a prohibited ground of discrimination. It is no answer, in my view, that the full process of the dispatch procedure was not exhausted to a formal conclusion. What occurred constituted a discouragement to the Complainant about participating any further in the process in relation to this particular dispatch.

[45]      It is clear from the forgoing quotation that the Tribunal did not recite the evidence before it regarding the circumstances where the two cooks/deckhand might be occupying the same sleeping quarters at the same time. Further, it is also clear that the Tribunal’s conclusion that Ms. Oster would have been discouraged from applying for dispatch to the position on board the Texada Crown by the events that occurred in Mr. Crain’s office was not based on direct evidence to that effect but rather on an interpretation of what occurred and the impact that the events in Mr. Crain’s office would likely have on Ms. Oster, who appeared before the Tribunal as a witness and therefore in respect of whom, the Tribunal was in a position to draw such an inference.

[46]      It is trite law that an administrative tribunal does not have to recite all of the evidence before it in its reasons for decision. Once again, taking into account the totality of the reasons of the Tribunal, I am satisfied that its findings of fact, particularly the two findings of fact here at issue, were reasonably open to it, particularly against a standard of review of patent unreasonableness which I am satisfied is the appropriate standard in respect of such findings of fact by a Canadian Human Rights Tribunal. I am satisfied that the findings of fact by the Tribunal that are impugned were neither erroneous findings of fact made in a perverse or capricious manner, nor findings of fact made without regard to the totality of the evidence that was before the Tribunal.

Conclusion

[47]      Based upon the forgoing analysis, I find no basis on which to interfere with the decision of the Tribunal that is under review. In the result, this application for judicial review will be dismissed.

Costs

[48]      As earlier noted in these reasons, Ms. Oster did not appear before the Court on this application for judicial review, either in person or by counsel. Neither the Union nor the Commission sought costs against her or against the Tribunal. The Tribunal did not seek costs but urged that no costs should be ordered against it. As between the Union and the Commission, counsel agreed before me that costs should follow the event.

[49]      The Commission is entitled to its costs as against the Union. In all other respects, there will be no order as to costs.