An employee of the federal public service (“Comstock”) was unsuccessful in her application for a judicial review of two decisions of the Canadian Human Rights Commission (the “Commission”) in which the Commission had rejected her complaint regarding discrimination based on religion on the grounds that the complaint was beyond the jurisdiction of the Commission because she had failed to link a prohibited ground of discrimination to the requirement that she pay dues to her union, the Public Service Alliance of Canada (“PSAC”)

26. June 2007 0

Administrative law – Human rights complaints – Discrimination – Religion – Decisions of administrative tribunals – Human Rights Commission – Jurisdiction to hear a complaint – Labour law – Collective agreements – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter – Correctness – Charter of Rights and Freedoms – Freedom of expression

Comstock v. Public Service Alliance of Canada, [2007] F.C.J. No. 458, Federal Court, March 30, 2007, Gibson J.

Comstock was employed as a senior intergovernmental relations officer in the Department of Indian Affairs and Northern Development. She filed an Affidavit with the Court in which she deposed that her Catholic faith was a crucial basis to her own self-determination, fulfilment, and autonomy as a human being. Comstock further deposed that she converted from the Anglican Church to the Roman Catholic Church because the Anglican Church had taken an ambiguous position with respect to the blessing of homosexual relationships, whereas the Catholic Church had a long-standing affirmation of traditional marriage.

The terms of Comstock’s employment in the federal public service were governed by a collective agreement between the PSAC and the Respondent Treasury Board of Canada (“Treasury Board”).

Comstock alleged that the PSAC’s policy with respect to sexual orientation was discriminatory in that such a policy would create a union where there would be zero tolerance of heterosexism. The PSAC’s policy on equal marriage rights for same sex couples includes a statement that remaining silent in the face of discrimination is to suggest tacit approval of harassment, intimidation, and violence against gay men, lesbians, and bisexuals.

Comstock applied to the Treasury Board to have her compulsory dues to the PSAC donated to her church. Under s. 11.04 of the collective agreement between the PSAC and the Treasury Board, an employee who satisfies the employer to the extent that he or she declares in an Affidavit that he or she is a member of a religious organization whose doctrine prevents him or her as a matter of conscience from making financial contributions to an employee organization and that he or she will make contributions to a charitable organization equal to dues, shall not be subject to the payment of dues to the employee organization providing that an Affidavit to that effect, countersigned by an official representative of the religious organization, is submitted.

The Treasury Board rejected Comstock’s application for the religious donation to take the place of her union dues. The Treasury Board found that the Roman Catholic Church does not have a doctrine preventing its members as a matter of conscience from making financial contributions to employee organizations; and that the teachings of the Roman Catholic Church support the right of workers to join together in associations to promote human rights and to further other interests in the common good.

Comstock filed complaints against the Commission and the Treasury Board.

The Commission, largely adopting the reports of its own investigator into the two complaints, held that Comstock’s freedom of religion and conscience did not appear to be compromised by the policy in question. Her religious freedom to undertake practices and harbour beliefs was not compromised by the PSAC policy. Further, the fact that Comstock opposed the union’s political or social causes did not force her to act in a way contrary to her beliefs or conscience. She had other options available to her, including refusing to be a member of the union, or provoking debate in a democratic fashion to have the union challenged and possibly voted out.

Comstock’s allegation that her freedom of expression had been infringed was found not to ground a complaint under the Canadian Human Rights Act because freedom of expression is not a prohibited ground under the Act.

The complaint against PSAC itself was dismissed on similar grounds and the Commission held that the complaints were beyond the jurisdiction of the Commission because no link to prohibited ground of discrimination was established by Comstock.

The Court applied the pragmatic and functional analysis to determine an appropriate standard of review. There was no privative clause or statutory right of appeal from the decisions that were the subject of review. The Court concluded that this first factor of the Pushpanathan analysis was neutral with respect to determination of the appropriate standard of review.

The second factor, the expertise of the Commission relative to that of the Court, was the factor in favour of substantial deference, given the Commission’s expertise.

The Canadian Human Rights Act has the purpose of preventing discriminatory practices based on a number of enumerated grounds but also with a subjective authority vested in the Commission to dismiss complaints beyond its jurisdiction in order to preserve limited resources to enable the Commission to deal with complaints that are within its jurisdiction. This factor was held to favour a substantial deference to the Commission, as was the final factor, the nature of the question before the Commission.

The Court held that an appropriate standard of review, in general, for decisions of the Commission would be reasonableness simpliciter.  However the Court also felt that a breach of the duty of the fairness on the part of the Commission or a clear error of law on its part should be reviewed on a standard of correctness.

The Court considered Comstock’s allegations that she had been denied procedural fairness and, on a standard of review of correctness, the Court could not find that she was denied procedural fairness. One aspect of her procedural fairness argument was that the Commission had an inherent bias and that was held not to have been established on the evidence.

The Court accepted, for the purposes of this judicial review, that the Commission had a prima facie duty to deal with the complaints of Comstock. However, the Court held that the Commission did deal with those complaints and determined that they were beyond the jurisdiction of the Commission.

Comstock also brought a number of Charter arguments which were not considered by the Court because they were not raised in Comstock’s complaint to the Commission or in the course of her follow-up submissions.

The Court then considered whether, on a standard of review of reasonableness simpliciter, there was a basis for the decisions taken by the Commission. The Court held that the analyses of the investigator that were quoted in the Commission’s reasons and on the basis of all the material before the Court, it appeared to be open to the Commission to make the decision that neither of the complaints was within its jurisdiction. The two applications for judicial review were dismissed with no order as to costs.

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