Federal Court of Appeal - Elkayam v. Canada (Attorney General)

[1] This is an appeal from a decision of Mr. Justice Lemieux of the Federal Court, dated June 25, 2004. Lemieux J. dismissed the application for judicial review filed by the appellant against a decision by the Canadian Human Rights Commission (the Commission), which, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act (the Act), dismissed his discrimination complaint against the Department of National Defence. On May 30, 2003, the Commission dismissed the appellant's complaint, stating the following:

[TRANSLATION] Pursuant to paragraph 44(3)(b) of the Act, the Commission has decided to dismiss the complaint because:

- the additional evidence does not support the complainant's allegation that the respondent differentiated adversely in relation to him in the course of employment on the grounds of his religion and age; and

- the respondent did everything possible to resolve the situation.

[2] After carefully examining the relevant case law concerning the power exercised by the Commission under paragraph 44(3)(b) of the Act, according to which the Commission is entitled to a high degree of deference in the exercise of its discretion to dismiss a complaint on receipt of an investigation report, Lemieux J. expressed the opinion that the evidence on record supported the Commission's decision.

[3] Furthermore, Lemieux J. found that the delay incurred between the date of filing of the complaint and the date of the decision by the Commission was not at all unreasonable. In his opinion, the delay was the result of mediation and conciliation attempts, as well as the desire of the Commission to ensure that the investigation into the complaint was as complete as possible.

[4] In my opinion, Lemieux J. did not err in refusing to intervene. First, given the standard of review applicable to a Commission decision rendered pursuant to paragraph 44(3)(b) of the Act, i.e., patent unresonableness (see this Court's decisions in: Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113; Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 1655; and Murray v. Canada (Human Rights Commission), [2003] F.C.J. No. 763), Lemieux had good reason to decline to intervene.

[5] Second, it is my opinion that the judge's finding on the passage of time between the filing of the complaint and the date of the decision was not in the least unreasonable. In support of his arguments on this point, the appellant relied on case law that is, in my opinion, irrelevant. Specifically, the appellant referred to the decision of the Supreme Court of Canada in R. v. Askov, [1990] 2 S.C.R. 1199. Since that decision concerns subsection 11(b) of the Canadian Charter of Rights and Freedoms (the Charter), which applies only in criminal or penal matters (see R. v. Wigglesworth, [1987] S.C.J. No. 71), it cannot be used in support of the appellant's arguments.

[6] As for the appellant's arguments based on Quebec's Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the Quebec Charter) and the case law arising from it, we need only point out that the Quebec Charter is only concerned with matters within the legislative jurisdiction of the Province of Quebec. Such is not the case here.

[7] Turning, finally, to the appellant's arguments concerning the validity, operation or constitutional effect of subsection 3(1) of the Act, I am of the opinion that they are groundless.

[8] I would accordingly dismiss the appeal with costs.

"Marc Nadon"

J.A.

"I concur.

Robert Décary J.A."

"I concur.

Gilles Létourneau J.A."

Certified true translation

Michael Palles

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET: A-370-04

Appeal from an order rendered on June 25, 2004, by Lemieux J. of the Federal Court in T-1097-03.

STYLE OF CAUSE:

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: March 16, 2005

REASONS FOR JUDGMENT BY: NADON J.A.

CONCURRED IN BY: DÉCARY J.A.

LÉTOURNEAU J.A.

DATED: March 17, 2005

APPEARANCES:

Amram Elkayam

FOR HIMSELF

Mariève Sirois-Vaillancourt

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Amram Elkayam

Longueuil, Quebec

FOR HIMSELF

John H. Sims, Q.C.

Deputy Attorney General of Canada

Montréal, Quebec

FOR THE RESPONDENT