Andrews v. Canada (Attorney General), (2015) 483 F.T.R. 206 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: April 14, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 483 F.T.R. 206 (FC);2015 FC 780

Andrews v. Can. (A.G.) (2015), 483 F.T.R. 206 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JL.010

Warrant Officer Timothy Andrews (applicant) v. Attorney General of Canada (respondent)

(T-2022-14; 2015 FC 780)

Indexed As: Andrews v. Canada (Attorney General)

Federal Court

Strickland, J.

June 22, 2015.

Summary:

The applicant applied for judicial review of two decisions of the Canadian Human Rights Commission, declining to deal with his complaints under s. 41(1)(a) of the Canadian Human Rights Act, because he had not exhausted grievance or review procedures otherwise reasonably available to him.

The Federal Court dismissed the application.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - The applicant was a member of the Canadian Forces (CF) - He alleged that, in 2010, while he was serving in Haiti, his immediate superior officer had discriminated against him, largely on racial grounds - The applicant applied for judicial review of two decisions of the Canadian Human Rights Commission, declining to deal with his complaints under s. 41(1)(a) of the Canadian Human Rights Act because he had not exhausted grievance or review procedures otherwise reasonably available to him - The Federal Court dismissed the application - The Commission considered the factual basis of this matter and found that there was a review procedure that was reasonably available to the applicant and that had not been exhausted by the applicant before the expiry of the 90 day deadline set by the Chief of the Defence Staff - Based on the record, this finding was reasonably open to it - The Commission also recognized that this finding would leave the applicant without recourse - However, the reasonableness of a decision was not affected by the absence of the "safety net" of renewed access to the Commission - While the CF review process itself was no longer available to the applicant, nor was there a safety net, the Commission recognized this outcome when making its decision - The Commission's finding that the applicant was aware of, but refused to participate in, the CF's internal harassment complaint process and that the failure to exhaust the procedure was solely attributable to the applicant was to be afforded deference and also fell within a range of possible acceptable outcomes defensible respecting the facts and law - See paragraphs 30 to 62.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - The applicant applied for judicial review of two decisions of the Canadian Human Rights Commission, declining to deal with his complaints under s. 41(1)(a) of the Canadian Human Rights Act because he had not exhausted grievance or review procedures otherwise reasonably available to him - The respondent raised a preliminary issue of the admissibility of the affidavit of Nathalie Bui sworn October 24, 2014 (Bui Affidavit) - It attached what the affiant described as the entire record of official correspondence between the Commission and the applicant concerning files in issue on the application - The Federal Court held that the affidavit was inadmissible - The applicant had already sought to have the Commission's entire file produced as part of the Certified Tribunal Record under rule 317 of the Federal Courts Rules - A prothonotary had denied the request and that decision had not been appealed - This was sufficient to find the affidavit inadmissible - Further, material that was not before the decision-maker, as was the case here, was generally excluded for purposes of judicial review - See paragraphs 22 to 29.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - [See Administrative Law - Topic 3345.1 ].

Administrative Law - Topic 7096

Judicial review - Bars - Discretionary bars - Existence of adequate alternative remedy - [See Administrative Law - Topic 3302 ].

Civil Rights - Topic 7080

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Pre-investigation decision not to deal with complaint - [See Administrative Law - Topic 3302 ].

Cases Noticed:

Chan v. Canada (Attorney General) (2010), 379 F.T.R. 117; 2010 FC 1232, refd to. [para. 20].

English-Baker v. Canada (Attorney General), [2009] F.T.R. Uned. 822; 2009 FC 1253, refd to. [para. 20].

Lawrence v. Canada Post Corp. (2012), 410 F.T.R. 273; 2012 FC 692, refd to. [para. 20].

Mulligan v. Canadian National Railway Co. (2015), 479 F.T.R. 176; 2015 FC 532, refd to. [para. 20].

Dunsmuir v. New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 21].

Canada (Minister of Citizenship and Immigration) v. Khosa - see Khosa v. Canada (Minister of Citizenship and Immigration).

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 21].

Love v. Privacy Commissioner (Can.) (2014), 459 F.T.R. 11; 2014 FC 643, refd to. [para. 26].

Johnson v. Commissioner of Corrections (Can.) (2014), 461 F.T.R. 170; 2014 FC 787, refd to. [para. 26].

Tl'azt'en First Nation v. Joseph (2013), 436 F.T.R. 79; 2013 FC 767, refd to. [para. 26].

International Relief Fund for the Afflicted and Needy (Canada) v. Minister of National Revenue (2013), 449 N.R. 95; 2013 FCA 178, refd to. [para. 26].

Gagliano v. Gomery et al. (2006), 293 F.T.R. 108; 2006 FC 720, refd to. [para. 26].

Chopra v. Canada (Treasury Board), [1995] 3 F.C.R. 445; 100 F.T.R. 226 (T.D.), refd to. [para. 32].

Bagnato v. Canada Post Corp. et al. (2014), 464 F.T.R. 267; 2014 FC 914, refd to. [para. 32].

D'Angelo v. Canada (Attorney General) et al., [2014] F.T.R. Uned. 452; 2014 FC 1120, refd to. [para. 34].

Herbert v. Canada (Attorney General), [2008] F.T.R. Uned. 696; 169 A.C.W.S.(3d) 393; 2008 FC 969, refd to. [para. 34].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 41(1)(a) [para. 18].

Counsel:

Joshua M. Juneau and Michel Drapeau, for the applicant;

Orlagh O'Kelly, for the respondent.

Solicitors of Record:

Michel Drapeau Law Office, Ottawa, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on April 14, 2015, by Strickland, J., of the Federal Court, who delivered the following decision on June 22, 2015.