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Human Rights (Federal) - Frivolous. Bergeron v. Canada (Attorney General)
In Bergeron v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered whether to uphold the dismissal of a federal CHRA complaint as vexatious [under CHRA s.41(1)(d)], here on the ground that it had already been "adequately addressed through another process" (a labour grievance):[9] In 2011, the Commission considered both of Ms. Bergeron’s human rights complaints under subsection 41(1) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6. This provision allows the Commission to decline to deal with human rights complaints in a variety of circumstances, one of which is where it appears to the Commission that the complaint is trivial, frivolous, vexatious or made in bad faith. Vexatious complaints include cases where issues raised in a human rights complaint have been adequately addressed through another process. The full text of subsection 41(1) of the Act and other statutory provisions referred to in these reasons is attached as an appendix to this decision.
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[31] With this in mind, the question to be decided is thus whether the Commission’s determination that the issues raised by Ms. Bergeron’s retaliation complaint had been adequately addressed through the grievance process was one that was reasonably open to the Commission to have made on the basis of the record before it.
[32] In answering this question, I must first consider the guidance provided by the Supreme Court in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52. There, the Court identified three factors that should guide a human rights commission in deciding when to dismiss some or all of a complaint on the basis that it had been appropriately or adequately dealt with by another administrative decision-maker. These are:. Whether there was concurrent jurisdiction to decide human rights issues;
. Whether the legal issue in the alternate forum was essentially the same as the legal issue in the human rights complaint; and
. Whether the complainant had the opportunity to know the case to meet and had a chance to meet it. [33] As the Supreme Court observed in Figliola, the question at the end of the day is really whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute: above at para. 37. . Kemp v. Canada (Finance)
In Kemp v. Canada (Finance) (Fed CA, 2022) the Federal Court of Appeal dismissed an appeal by a frustrated CHRA complainant who appealed a finding that his complaint was 'frivolous'. The court went on to explain it's result:[26] Since the complaint in its original form or as restated by the human rights officer did not disclose a discriminatory practice, it was doomed to fail, given the limitations found in the Act. In Hérold v. Canada (Revenue Agency), 2011 FC 544, [2011] FCJ No. 683 (QL) Rennie J. (as he then was) wrote at paragraph 35:Third, the test for determining whether or not a complaint is frivolous within the meaning of section 41(1)(d) of the Act is whether, based upon the evidence, it appears to be plain and obvious that the complaint cannot succeed. [27] Thus, an application which clearly cannot succeed is said to be frivolous. When used in this way, "“frivolous”" refers to the application and not to the applicant and in this specialized legal context means an application that is doomed to fail. Mr. Kemp, thinking of the non-legal meaning of this term, has taken offence at its use. Nothing in this file suggests that the Commission or the Federal Court thought that Mr. Kemp made his complaint frivolously in the sense of being thoughtless or unserious. He is obviously a thoughtful, serious person making an honest, if doomed, complaint. The difficulty is that his complaint cannot succeed under the terms of the Act so that it is, in the technical sense used in this legislation, frivolous.
[28] Given the factors to be considered in deciding whether to grant an extension of time to bring an application, a finding that a claim cannot succeed is fatal to such a request. While it is not necessary that all four factors set out in Larkman be resolved in the applicant’s favour, a finding that the application is doomed to fail is fatal because allowing the application to go forward would simply lead to a hearing whose outcome is pre-ordained. This is a wasteful use of resources for all concerned. It was not an error on the part of the Court to abstain from considering the other factors.
[29] As a result, the Federal Court’s decision declining to grant Mr. Kemp an extension of time to file his application for judicial review was reasonable and does not justify our intervention.
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