Canada (Attorney General) v. Montreuil, (2009) 345 F.T.R. 193 (FC)

• Judge: Beaudry, J.
• Court: Federal Court (Canada)
• Case Date: January 14, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 345 F.T.R. 193 (FC);2009 FC 60

Can. (A.G.) v. Montreuil (2009), 345 F.T.R. 193 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] F.T.R. TBEd. FE.013

Procureur général du Canada (Comité des Griefs des Forces Canadiennes) (demandeur) v. Micheline Anne Montreuil (défenderesse)

(T-2181-07; 2009 CF 60; 2009 FC 60)

Indexed As: Canada (Attorney General) v. Montreuil

Federal Court

Beaudry, J.

January 23, 2009.

Summary:

The Attorney General applied for judicial review of a decision of the Canadian Human Rights Tribunal allowing Montreuil's complaint alleging discrimination on the basis of sex under s. 7 of the Canadian Human Rights Act.

The Federal Court dismissed the application.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - Montreuil identified herself as transgendered - She applied for a position of grievance officer with the Canadian Forces Grievance Board - She qualified and was placed on an eligibility list as a unilingual Francophone candidate - Montreuil was never hired - All the unilingual English and bilingual candidates who had been placed on the eligibility list were hired - Montreuil filed a complaint with the Commissioner of Official Languages, alleging that she had suffered discrimination on the basis of her language - The Commissioner dismissed the complaint and referred the complaint to the Canadian Human Rights Tribunal - The Tribunal found that language was not the cause of the discrimination, but rather a pretext for concealing it - The Tribunal ruled that the complaint of discrimination on the basis of sex (transgendered) was substantiated - The Attorney General applied for judicial review, asserting that the Tribunal's decision was not reasonable - The Federal Court dismissed the application - The Attorney General correctly stated that the Tribunal did not rule on the credibility of witnesses - However, the Tribunal stated that it was not persuaded by the grounds invoked by the Board's witnesses for not hiring Montreuil - The Tribunal found that there was a "subtle scent of discrimination" - It relied, among other things, on the witnesses who testified in Montreuil's support that there were a sufficient number of French-language files to hire a unilingual Francophone grievance officer - Moreover, the Tribunal observed an inconsistency between the statistics concerning the French and English language grievances the Board processed - The Tribunal inferred that the Board had not offered a position to Montreuil because she was transgendered - The Tribunal's decision was supported by the evidence - See paragraphs 61 to 66.

Civil Rights - Topic 7061

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - General - Montreuil identified herself as transgendered - She applied for a position of grievance officer with the Canadian Forces Grievance Board - She qualified and was placed on an eligibility list as a unilingual Francophone candidate - Montreuil was never hired - All the unilingual English and bilingual candidates who had been placed on the eligibility list were hired - Montreuil filed a complaint with the Commissioner of Official Languages, alleging that she had suffered discrimination on the basis of her language - The Commissioner dismissed the complaint and referred the complaint to the Canadian Human Rights Tribunal - The Tribunal found that language was not the cause of the discrimination, but rather a pretext for concealing it - The Tribunal ruled that the complaint of discrimination on the basis of sex (transgendered) was substantiated - The Attorney General applied for judicial review, asserting that the Tribunal encroached upon the Commissioner's jurisdiction under the Official Languages Act (OLA) as well as the employer's management rights - The Federal Court dismissed the application - The Tribunal took pains to discuss the OLA and an employer's management rights - The court was not of the view that the Tribunal encroached upon a power that it did not have - Indeed, the Tribunal's conclusion that "[e]ven though there may be recourse under the Official Languages Act, this does not strip the Tribunal of its jurisdiction to address the issue of discrimination if need be" was not unreasonable - See paragraphs 67 to 73.

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - Montreuil identified herself as transgendered - She applied for a position of grievance officer with the Canadian Forces Grievance Board - She qualified and was placed on an eligibility list as a unilingual Francophone candidate - Montreuil was never hired - All the unilingual English and bilingual candidates who had been placed on the eligibility list were hired - Montreuil filed a complaint with the Commissioner of Official Languages, alleging that she had suffered discrimination on the basis of her language - The Commissioner dismissed the complaint and referred the complaint to the Canadian Human Rights Tribunal - The Tribunal found that language was not the cause of the discrimination, but rather a pretext for concealing it - The Tribunal ruled that the complaint of discrimination on the basis of sex (transgendered) was substantiated - The Attorney General applied for judicial review, asserting that the Tribunal did not properly define and apply the correct legal test with regard to the prima facie burden of proof - The Federal Court dismissed the application - The Tribunal stated the law correctly in its analysis of the principles recognized by the case law concerning the prima facie burden that complainants who claimed that they had been discriminated against had to meet - The Tribunal properly identified the relevant factors that characterized prima facie evidence - The Tribunal first asked itself the following question: "Does the complainant have the skills or qualifications necessary to fill the position?" - The Tribunal determined that she did - Then the Tribunal determined that Montreuil's application had been rejected - See paragraphs 42 to 60.

Cases Noticed:

Israeli v. Canadian Human Rights Commission and Public Service Commission (1983), 4 C.H.R.R. D/1616, refd to. [para. 18].

Premakumar v. Air Canada, [2002] C.H.R.D. No. 3, refd to. [para. 18].

Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, refd to. [para. 18].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321, refd to. [para. 18].

Shakes v. Rex Pak Ltd. (1981), 3 C.H.R.R. D/1001, refd to. [para. 20].

Canada (Attorney General) v. Uzoaba et al., [1995] 2 F.C. 569; 94 F.T.R. 192 (T.D.), refd to. [para. 33].

International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster et al., [2002] 2 F.C. 430; 212 F.T.R. 111; 2001 FCT 1115, refd to. [para. 38].

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; 291 D.L.R.(4th) 577; 2008 SCC 9, refd to. [para. 39].

Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al., [1990] 1 S.C.R. 1298; 109 N.R. 321; 66 Man.R.(2d) 81, refd to. [para. 51].

Richard v. Sulconam Inc., [1986] R.D.J. 597; 2 A.C.W.S.(3d) 76, refd to. [para. 51].

Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; 55 N.R. 194, refd to. [para. 52].

Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437, refd to. [para. 52].

Miriam Home v. Canadian Union of Public Employees, Local 2115, [1985] 1 S.C.R. 137; 57 N.R. 146, refd to. [para. 52].

Canada (Procureur général) v. Asselin et al. (1995), 100 F.T.R. 309; 57 A.C.W.S.(3d) 956 (T.D.), refd to. [para. 67].

Gosselin v. Quebec (Attorney General), [2005] 1 S.C.R. 238; 331 N.R. 337, refd to. [para. 69].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 69].

Forum des maires de la Péninsule acadienne v. Agence canadienne d'inspection des aliments, [2004] 4 F.C.R. 276; 324 N.R. 314; 2004 FCA 263, refd to. [para. 70].

Counsel:

Yannick Landry, for the applicant;

Micheline Anne Montreuil, on her own behalf.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Montreal, Quebec, for the applicant.

This application was heard on January 14, 2009, at Quebec, Quebec, by Beaudry, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on January 23, 2009.