Khapar v. Air Canada, (2014) 448 F.T.R. 1 (FC)

• Judge: Kane, J.
• Court: Federal Court (Canada)
• Case Date: December 10, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 448 F.T.R. 1 (FC);2014 FC 138

Khapar v. Air Can. (2014), 448 F.T.R. 1 (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: [2014] F.T.R. TBEd. AP.016

Davinder Khapar (applicant) v. Air Canada (respondent)

(T-509-13; 2014 FC 138; 2014 CF 138)

Indexed As: Khapar v. Air Canada

Federal Court

Kane, J.

February 10, 2014.

Summary:

The applicant made a complaint to the Canadian Human Rights Commission alleging discrimination on the grounds of race, ethnic origin, colour, and disability in relation to Air Canada's termination of his employment and its subsequent refusal to reinstate him. A labour arbitrator had previously upheld the applicant's termination after a grievance arbitration hearing. The Commission decided not to deal with the complaint pursuant to ss. 41(1)(d) and (e) of the Canadian Human Rights Act, because the complaint was not made within the requisite time period and was vexatious. The applicant applied for judicial review of the Commission's decision.

The Federal Court dismissed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunals - Reasons for decision - Sufficiency of - [See Civil Rights - Topic 913 ].

Administrative Law - Topic 1415.1

Finality - General - [See Civil Rights - Topic 7070.1 ].

Civil Rights - Topic 913

Discrimination - General principles - Complaints - Limitation periods - On January 22, 2010, the applicant mailed a complaint to the Canadian Human Rights Commission alleging discrimination in relation to Air Canada's termination of his employment on January 22, 2009, and its refusal to reinstate him on November 23, 2009 - The Commission decided not to deal with the complaint pursuant to s. 41(1)(e) of the Canadian Human Rights Act because it was not made within the requisite time period - The applicant applied for judicial review - The applicant argued that the Commission's decision was unreasonable and that the Commission erred by failing to give meaningful reasons for its conclusion that the complaint was untimely - He submitted that the Commission unreasonably refused to excuse the short delay - Moreover, he submitted that the last discriminatory act was November 23, 2009, when Air Canada refused to reinstate him based on his medical report - The Federal Court dismissed the application - The Commission's decision regarding timeliness was reasonable - It was open to the Commission to reject the applicant's explanation that the complaint was received by the Commission only three weeks late and that he mailed it on its due date, particularly given that he had legal representation and that he had already been given an extension to file his complaint - Although the Section 40/41 Report did not dwell on the applicant's allegation that the last discriminatory act was November 23, 2009, it could not be said that the Commission's reasons left the applicant with the impression that it did not consider his allegations before rejecting them - Moreover, the cases referred to by the applicant did not support his position that the refusal to reinstate him constituted the last discriminatory act - See paragraphs 67 to 87.

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - The applicant made a complaint to the Canadian Human Rights Commission in relation to Air Canada's termination of his employment and its subsequent refusal to reinstate him - The Commission decided not to deal with the complaint pursuant to ss. 41(1)(d) and (e) of the Canadian Human Rights Act, because the complaint was not made within the requisite time period and was vexatious - The applicant applied for judicial review - The applicant submitted that the Commission breached his right to procedural fairness by denying him the opportunity to reply to Air Canada's further submissions on the Section 40/42 Report - The Federal Court rejected the argument - The only issue addressed by Air Canada which was not in direct response to the applicant's submissions or the Report was a reference to the legal principle that the onus was on the applicant to establish how his psychiatric condition affected his judgment during employment - The law relating to the applicant's onus was never an issue in the Report - Moreover, the cases cited by Air Canada should have been generally known to the applicant - The applicant had not indicated what he would have stated in response had he been given an opportunity to file further submissions or how any response would have changed the outcome of the Commission's decision - The applicant's allegation that the Commission rendered its decision in the absence of a complete record was without merit - The applicant did not seek to provide documents which could have filled in the alleged gaps - See paragraphs 56 to 66.

Civil Rights - Topic 7070.1

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Bars - The applicant made a complaint to the Canadian Human Rights Commission alleging discrimination on the grounds of race, ethnic origin, colour, and disability in relation to Air Canada's termination of his employment and its subsequent refusal to reinstate him - A labour arbitrator had previously upheld the applicant's termination after a grievance arbitration hearing - The Commission decided not to deal with the complaint pursuant to s. 41(1)(d) of the Canadian Human Rights Act because the complaint was vexatious - The applicant applied for judicial review - The applicant argued that British Columbia (Workers' Compensation Board) v. Figliola (2011 SCC) did not apply to a decision made pursuant to s. 41(1)(d) of the Act and alternatively, if it did, the law had changed with the decision in Penner v. Niagara Regional Police Services Board (2013 SCC) - The Federal Court dismissed the application - The Commission's decision that the complaint was vexatious was reasonable - The applicant could have raised his race and ethnic discrimination complaints in the arbitration proceedings, but did not do so - The court stated, inter alia, that "Figliola guides the Commission's determination of vexatiousness. However, if Penner should also apply because issue estoppel could have been the underlying reason for the Commission's determination that the complaint was vexatious, rather than the broader finality considerations underlying paragraph 41(1)(d) of the Act, which in my view were considered by the Commission, the application of Penner would not lead to a different result. The Commission's decision to dismiss the complaint would be reasonable even if Penner were applied" - See paragraphs 88 to 132.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Civil Rights - Topic 7070.1 ].

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - [See Civil Rights - Topic 7070.1 ].

Cases Noticed:

British Columbia (Workers' Compensation Board) v. Figliola - see Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, appld. [para. 10].

Penner v. Niagara Regional Police Services Board et al. (2013), 442 N.R. 140; 304 O.A.C. 106; 356 D.L.R.(4th) 595; 2013 SCC 19, consd. [para. 10].

Ottawa Civic Hospital and ONA (Hodgins), Re, [1995] O.L.A.A. No 60; 48 L.A.C.(4th) 388, refd to. [para. 34].

Vos v. Canadian National Railway (2010), 373 F.T.R. 124; 2010 FC 713, refd to. [para. 34].

Boudreault v. Canada (Procureur général) (1995), 99 F.T.R. 293 (T.D.), refd to. [para. 36].

Canada Post Corp. v. Barrette, [2000] 4 F.C. 145; 254 N.R. 38 (F.C.A.), refd to. [para. 36].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 263 D.L.R.(4th) 113; 2005 FCA 404, refd to. [para. 45].

Berberi v. Canada (Attorney General), [2013] F.T.R. Uned. 56; 2013 FC 99, refd to. [para. 46].

Canada Post Corp. v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241 (T.D.), affd. (1999), 245 N.R. 397 (F.C.A.), leave to appeal refused (2000), 255 N.R. 196 (S.C.C.), refd to. [para. 46].

Canada (Attorney General) v. Maracle et al. (2012), 404 F.T.R. 173; 2012 FC 105, refd to. [para. 46].

Conroy v. Professional Institute of the Public Service of Canada (2012), 415 F.T.R. 179; 2012 FC 887, refd to. [para. 46].

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. 48].

Mercier v. Commission canadienne des droits de la personne, [1994] 3 F.C. 3; 167 N.R. 241 (F.C.A.), dist. [para. 49].

Islam v. Human Rights Commission (N.S.) et al. (2012), 313 N.S.R.(2d) 255; 990 A.P.R. 255; 38 Admin L.R.(5th) 289; 2012 NSSC 67, refd to. [para. 49].

Exeter v. Canada (Attorney General) (2011), 383 F.T.R. 106; 2011 FC 86, refd to. [para. 49].

Exeter v. Canada (Attorney General) (2012), 433 N.R. 286; 2012 FCA 119, refd to. [para. 59].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1; 140 D.L.R.(4th) 193, refd to. [para. 64].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 65].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 78].

Lawrence v. Canada Post Corp. (2012), 410 F.T.R. 273; 2012 FC 692, refd to. [para. 89].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 91].

Canadian Human Rights Commission v. Canadian Transportation Agency et al. (2011), 426 N.R. 113; 37 Admin. L.R.(5th) 180; 2011 FCA 332, refd to. [para. 106].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 115].

Statutes Noticed:

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

Counsel:

Raj Anand, for the applicant;

Rachelle Henderson and Fred Headon, for the respondent.

Solicitors of Record:

WeirFoulds LLP, Toronto, Ontario, for the applicant;

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

This application was heard on December 10, 2014, at Toronto, Ontario, before Kane, J., of the Federal Court, who delivered the following decision on February 10, 2014.