On April 14, 2016, the Supreme Court of Canada dismissed an application for leave to appeal from the judgment of the Federal Court of Appeal in Bergeron v. Canada (Attorney General) 2015 FCA 160.
Ms. Bergeron was a lawyer at the Department of Justice (the “Department”) from March 1999 to May 2001 when she developed chronic fatigue syndrome and was granted disability leave. Discussions about a potential return to work began in 2005, when the Department’s physician recommended a gradual return to work. Her employment was governed by the terms of a collective agreement.
Despite several exchanges between the parties, Ms. Bergeron refused to return to work. In 2008, the Department insisted that Ms. Bergeron return to work pursuant to its gradual return to work plan and stated that if she did not accept, her position would be filled. Ms. Bergeron rejected the offer and requested an extension of her unpaid leave, which was denied by the Department.
GRIEVANCE AND COMPLAINT
Ms. Bergeron filed two grievances and also brought two complaints forward to the Canadian Human Rights Commission (the “Commission”). The grievances and complaints contained similar allegations, namely: 1) failure to provide appropriate accommodation on the basis of her disability; and 2) refusal to extend her leave of absence without pay constituted disciplinary action and was discriminatory and a form of retaliation contrary to sections 7 and 15(2) of the Canadian Human Rights Act (CHRA).
The Department raised an objection with the Commission pursuant to paragraph 41(1)a) of the CHRA asserting that there was sufficient overlap between the grievances and complaints and that “Ms. Bergeron ought to exhaust the grievance or review procedures otherwise reasonably available to her.”
The grievances were dealt with before the Commission had processed the complaints. On the first grievance, the Associate Deputy Minister of Justice, Donna Miller, found that the Department had been unsuccessful in coordinating a return to work despite communications over two years and found that the decision to staff Ms. Bergeron’s position did not constitute discipline or a violation of the CHRA. Ms. Miller extended a further invitation for the parties to come to an agreement on a return to work plan and extended Ms. Bergeron’s leave without pay for an additional 5 months to facilitate the process. With respect to the second grievance alleging the refusal to extend her leave of absence without pay constituted discipline and was discriminatory, Ms. Miller dismissed the grievance and found the allegations of discrimination and retaliation to be unfounded. The Commission, relying on its investigator’s analysis, determined that the grievance procedure adequately addressed the issues raised in Ms. Bergeron’s complaints and refused to deal with them accordingly.
The issue before the Federal Court of Appeal was whether the Commission was reasonable in refusing to deal with the complaint.
The Federal Court adopted the standard of review of “reasonableness” in reviewing the Commission’s decision. It found that while the investigator did not launch an official investigation, the parties were invited to make submissions with respect to the relevant factors to be considered and the Commission’s decision not to deal with the complaint should not be disturbed as the grievance process had reasonably dealt with virtually the same issues.
Ms. Bergeron appealed to the Federal Court of Appeal on the basis that 1) the Commission’s decision was unreasonable and 2) the Commission did not act in a procedurally fair manner because it failed to investigate her complaint thoroughly.
The Federal Court of Appeal confirmed that the appropriate standard of review with respect to the Commission’s decision was reasonableness and concluded that there were no grounds for setting aside the Commission’s decision. With respect to the argument of procedural fairness, the Federal Court of Appeal states that the law concerning the standard of review for procedural fairness as unsettled and refers to it as “jurisprudential muddle”. The Court concludes that even on a standard of correctness, there is no ground to interfere with the Commission’s decision on the basis of procedural fairness.
The Court further elaborates that while the investigation must be thorough, the investigator need not pursue every last conceivable angle. In some cases, facts may be resolved to an investigator’s satisfaction rendering the utility for further investigation nil. Only “fundamental issues” must be investigated and the Court will interfere if there is “unreasonable omission” in the investigation rendering the process clearly deficient, which was found not to be the case at hand.
Finally, the Court commented that thoroughness must be qualified by the need for a workable and administratively effective system for reviewing complaints under the CHRA. Employers should continue to raise the preliminary objection under section 41(1)a) of the CHRA and provide thorough submissions and detailed facts on how the complaint is adequately being dealt under the alternate process in order to be successful in asking the Commission not to deal with the Complaint.
In light of the Federal Court of Appeal’s decision, investigators may come to the conclusion that no further investigation is required if they are satisfied that the complaint is adequately dealt with under another process.