FAOUZI BERRADA Moving Party v. WESTJET, 2015 FC 539

Date: 20150427 Docket: 14-T-36 Citation: 2015 FC 539 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, April 27, 2015 PRESENT: The Honourable Mr. Justice LeBlanc BETWEEN: FAOUZI BERRADA Moving Party and WESTJET Respondent ORDER AND REASONS I. Introduction [ 1 ] The applicant (Mr. Berrada) is seeking, by way of an application for judicial review, to challenge a decision of the Canadian Human Rights Commission (the Commission) dismissing the complaint he had filed against the respondent (WestJet) in relation to an incident that had taken place on an aircraft operated by that airline. Because his application was not filed within the 30-day time limit set by

section 18.1 of the Federal Courts Act , Mr. Berrada is seeking an extension. The respondent opposes the extension. [ 2 ] For the following reasons, the motion for an extension of time is denied. II. Background [ 3 ] On March 19, 2012, the applicant, who was in Montreal, boarded WestJet flight 453 to Edmonton. During a stopover in Toronto, during which passengers were required to remain on board the aircraft while waiting for passengers in transit, Mr. Berrada asked a flight attendant whether he could move into the empty window seat next to him.

The flight attendant said yes, but a few minutes later, a passenger in transit arrived and told the applicant that the window seat was his. Mr. Berrada tried to explain to him that he had been given permission to take the seat. It was no use. Mr. Berrada, a francophone Muslim, then approached two members of the cabin crew to tell them about the incident and ask for a new seat to avoid any confrontation with the other passenger. [ 4 ] However, they had difficulties communicating. The discussion began in French, in which none of the crew was fluent, and continued in English, which was spoken poorly by Mr. Berrada.

The situation escalated. What Mr. Berrada presents as a balanced and respectful attempt to change seats was perceived by the cabin crew as disruptive. Mr. Berrada was ultimately removed from the aircraft on the basis that he had become, in the eyes of the cabin crew, an “unruly passenger” within the meaning of WestJet’s passenger safety policies. [ 5 ] In September 2012, believing that he had been discriminated against based on race, ethnic origin, religion and language, Mr. Berrada filed a complaint with the Commission.

After a failed attempt at mediation, the complaint was referred to the Commission’s Investigations Division. [ 6 ] On January 21, 2014, the Commission provided the parties with the investigation report. The report concluded that the investigation had revealed no information indicating that Mr. Berrada’s race, colour, religion, or national or ethnic origin were factors in the incidents resulting in his expulsion from the aircraft. The investigator summarized his understanding of the facts as follows: 17. The complainant sat in a seat that was not his. The holder of the ticket for that seat claimed it.

The complainant took offence, became agitated, spoke of violence and demonstrated to the flight attendants that he was unfit to fly. The flight attendants called the police to have him removed. [ 7 ] The investigator recommended that the Commission dismiss Mr. Berrada’s complaint on the basis that, having regard to all the circumstances, an inquiry into the complaint by the Canadian Human Rights Tribunal (the Tribunal) under

section 49 of the Canadian Human Rights Act (the Act) was not warranted. [ 8 ] On May 9, 2014, the Commission, having reviewed the investigation report and the parties’ comments on the report, adopted its investigator’s recommendation and dismissed Mr. Berrada’s complaint. [ 9 ] Mr. Berrada did not become aware of this decision until July 9, 2014, when he returned from a two-month stay in Morocco. A week later, on July 16, 2014, he filed this motion for an extension of time. III. Issue

[10] The issue is whether this motion for an extension of time should be granted. The test for this type of motion is wellestablished (Canada (Attorney General) v Hennelly, (FCA), 244 NR 399, [1999] FCJ No 846 (QL) [Hennelly] atpara 4). Mr. Berrada must establish (

i) a continuing intention to pursue the application; (ii) that the application has some merit; (iii) thatno prejudice arises from the delay; and (iv) that a reasonable explanation for the delay exists. [11] WestJet concedes that Mr. Berrada has established his continuing intention to contest the Commission’s decision and that thedelay has not subjected it to any prejudice. However, it argues that the contestation of the Commission’s decision has no reasonablechance of success and that Mr.

Berrada did not provide a reasonable explanation for the delay. [12] As the parties have observed, the test must be applied with some flexibility to ensure that “justice is done between the twoparties” (Canada (Attorney General) v Pentney, 2008 FC 96 at para 34; Canada (Attorney General) v Larkman, 2012 FCA 204 atpara 85). Concretely, this means that the weight to be assigned to each factor may vary depending on the circumstances of each case.

Italso means that the power to grant an extension of time remains discretionary in nature, and the four factors, while providing aframework for the exercise, are not intended to fetter it (Pentney, above, at para 35; Larkman, above, at para 62). IV. Analysis A. Justification for delay [13] On May 9, 2014, when the Commission rendered its decision, Mr. Berrada was on vacation in Morocco. In the affidavit hefiled in support of this motion, he explained that, having no idea how long it would take for the Commission to render its decision, heplanned to take a vacation from April 22 to July 8, 2014.

He said that he had left Edmonton, his city of residence, on April 23, stoppedover in Montreal for one week and boarded a plane for Morocco on May 1. He explained that he had returned on June 29 and, afteranother stay in Montreal, had arrived in Edmonton on July 9. Mr. Berrada states that one of the main reasons he spent so much time inMorocco was to visit and care for his ailing mother. [14] The affidavit also states that on July 9, 2014, upon Mr. Berrada’s return to Edmonton, the superintendent of the buildingwhere he lived gave him the envelope containing the Commission’s decision.

The Court record shows that Mr. Berrada filed this motiona few days later, on July 16, 2014. [15] WestJet argues that this explanation is inadequate. It is of the view that because it was reasonable to believe that theCommission might render its decision while he was away from his residence, Mr. Berrada should have made arrangements with atrustworthy individual who could have at least informed him of the delivery of the Commission’s letter while he was in Montreal orMorocco.

According to WestJet, the fact that he failed to take this precautionary measure weighs against granting the extension of time. [16] I disagree. Mr. Berrada acted quickly as soon as he became aware of the Commission’s decision. That is what counts in thecircumstances. Given that he did not know when the Commission would render its decision and had been given no indication that itwould be imminent once WestJet had stated its position with respect to the investigator’s report on April 5, 2014, it was unreasonable toexpect Mr.

Berrada to remain close to his place of residence until he had received the Commission’s letter. Even if one were to supposethat he was required out of prudence to have somebody survey his mail during his absence, it is unclear how he, a self-representedapplicant, could have filed a motion for an extension of time from his location. [17] I am therefore of the view that there is a reasonable explanation for Mr. Berrada’s delay in filing his motion for an extensionof time. B. Chance of success of Mr.

Berrada’s application [18] Litigants seeking an extension must establish that the application for which it is sought has a reasonable chance of success(Leblanc v National Bank of Canada, (FC), [1994] 1 FC 81). Obviously, he is not required to convince the Court thathis application will succeed; however, he must do more than merely state that the decision he wishes to challenge has no merit or repeatthe grounds for review set out in

section 18.1 of the Federal Courts Act, RSC (1985), c. F-7. [19] In this case, Mr. Berrada did not file, in support of his motion for an extension, a draft application for judicial review, whichcould have helped the Court understand the specific grounds for the challenge he wishes to bring against the Commission’s decision. Wemust therefore look elsewhere in the record. In his written submissions in support of his motion for an extension, Mr. Berrada devotes asingle paragraph to this factor. That paragraph reads as follows: 10.

I respectfully submit that my application (case before the Human Rights Commission) is well founded. I believe that theinterventions of the WestJet flight attendants were justified by a special bias [sic] of insecurity and violence based on my ethnic originand religious beliefs. [20] The other document that may shed some light on the challenge that Mr. Berrada is planning to bring in this case is his reply toWestJet’s response to the motion for an extension. In that document, Mr.

Berrada begins by complaining that the response had beenserved on him in English, which he interprets as a tactic to cause a delay that would deprive him of his right to a judicial review.

He thenrecounts the incident that led to his expulsion from the aircraft and reiterates that he was subjected to discriminatory conduct by WestJet.In particular, he complains that the statements of the flight attendants who met with the Commission investigator do not reflect whatreally occurred, and he reiterates the difficulties he experienced in communicating his grievances to the flight attendants on account ofthe language barrier. He reiterates that he did not threaten anybody.

In conclusion, he notes that the Commission investigator did notinterview him before recommending that the Commission dismiss his complaint, emphasizes his relatively weak position given themeans available to WestJet to defend itself, and seeks the Court’s intervention so that it might [translation] “refresh the record andreview all the details and read between the lines the important elements that will support the applicant’s claim.”

[21] Is it enough to establish that the application for judicial review that Mr. Berrada wishes to bring is not doomed to failure? Ido not believe so. In this respect, it is important to define the Commission’s role and the limits of the Court’s power to intervene whenthe Commission renders a decision such as that rendered in this case. [22] The Act sets out a complete mechanism for dealing with human rights complaints, and the Commission is central to thismechanism (Cooper v Canada (HRC), (SCC), [1996] 3 SCR 854 at para 48).

On receiving a complaint, theCommission, under sections 43 and 44 of the Act, appoints an investigator to investigate and prepare a report of its findings for theCommission. On receiving the investigator’s report, it provides copies to the parties and invites them to comment on it. It then reviewsthe report and the parties’ comments and takes one of the following steps: (

i) it refers the complaint to the Tribunal if it believes aninquiry is warranted; (ii) it appoints a conciliator; (iii) it refers the complainant to the appropriate authority; or (iv) it dismisses thecomplaint if it does not believe that an inquiry by the Tribunal is warranted (Cooper, above, at para 49). [23] However, the Commission is not an adjudicative body. In other words, it is not the job of the Commission to decide if thecomplaint is made out; that is the role of the Tribunal.

Rather, its duty is to decide whether, under the provisions of the Act, an inquiry iswarranted having regard to all the facts (Cooper, above, at para 53). It has a “remarkable degree of latitude” when it is performing itsscreening function, and courts do not intervene lightly in its decisions (Bell Canada v.

Communications, Energy and PaperworkersUnion of Canada (C.A.), (FCA), [1999] 1 FC 113). [24] This means that the Court must show deference to the Commission’s decisions regarding whether or not to refer a complaintto the Tribunal for inquiry, intervening only when such decisions are unreasonable, in recognition of the Commission’s specializedfunction and resulting expertise. The party challenging the Commission’s decision therefore faces a heavy burden.

It must be establishedthat the Commission’s decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts andlaw (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).

In other words, it is not enough to disagree with thedecision and ask the Court to reweigh the evidence in the hope that it will reach a difference conclusion, because that is not its role(Nekoie v Canada (Minister of Citizenship and Immigration), 2012 FC 363, 407 FTR 63 at para 40; Thambiah v Maritime EmployersAssociation, 2011 FC 727 at para 13; Bourassa v Canada (Department of National Defence), 2014 FC 936 at para 68). [25] That is the burden that Mr. Berrada bears.

Unfortunately for him, even a generous reading of his written submissions does notreveal a specific criticism of the Commission’s decision, let alone a criticism that would support an argument of unreasonableness. TheCommission was of the view that the investigation had not shown that Mr. Berrada had been discriminated against based on his race,national or ethnic origin, colour or religion. It made this finding on the basis of its review of the investigator’s report and the parties’submissions regarding the content of that report. Recall that the investigator concluded from his investigation that Mr.

Berrada had beenevacuated from the aircraft because the flight attendants judged that he was unfit to fly following the incident involving the ticket-holderfor the seat that Mr. Berrada was occupying and that this had nothing to do with the latter’s race, colour, religion or national or ethnicorigin. To reach this finding, the investigator interviewed Mr. Berrada, two of the flight attendants on duty at the time of the incidentsand WestJet’s Advisor, Security Operations and Investigations. [26] Therefore, the Commission must have reviewed the events.

In so doing, it clearly opted for the version of the facts providedby the WestJet flight attendants. This is a finding of fact, and for the Court to intervene, it must be persuaded that, in the words ofparagraph 18.1(4)(

d) of the Federal Courts Act, it was made in a perverse or capricious manner or without regard for the material beforethe Commission. [27] However, nothing in the written submissions filed by Mr. Berrada in respect of his motion for an extension even remotelypoints to a criticism of this nature, or even to a broad criticism of the unreasonableness of the Commission’s decision. He merelyreiterates that his complaint is well founded, implicitly expressing his disagreement with the Commission’s decision.

As discussedabove, that is insufficient (Maqsood v Canada (Attorney General), 2011 FCA 309 at para 15). [28] With respect, I am of the view that Mr. Berrada misunderstands the role that this Court can play in this case. His reply toWestJet’s response is revealing in this respect, in that he states that he is seeking the Court’s intervention so that it may [translation] “refresh the record and review all the details and read between the lines the important elements that will support the applicant’s claim.” As stated above, this is not the appropriate role of the Court in an application for judicial review.

It is not meant to reweigh the evidenceand draw the conclusions it believes the Commission should have drawn. It is not a substitute for the Commission. Its role is to interveneto the extent that it is convinced that the Commission’s decision not to refer Mr. Berrada’s complaint to the Tribunal for inquiry isunreasonable. [29] The law is the same for all and does not vary because a litigant chooses to represent him- or herself (Kalevar v Liberal Partyof Canada, 2001 FCT 1261, [2001] FCJ No 1721 (QL) at para 24; Cotirta v Missinipi Airways, 2012 FC 1262 at para 13, affirmed:2013 FCA 280).

In its present form, this motion for an extension of time does not establish that the applicant’s application for judicialreview has a reasonable chance of success. Rather, as it stands, the application is bound to fail. [30] Even though Mr. Berrada satisfies three of the four conditions to be relieved of his failure to bring the application within thetime frame provided in the Act, the final condition, relating to the application’s chance of success, is, in my view, the deciding factor inthe circumstances of this case. [31] The motion for an extension of time will therefore be dismissed, but without costs to Mr.

Berrada. ORDER THIS COURT ORDERS that the motion be dismissed, without costs. “René LeBlanc”

Judge Certified true translation Francie Gow, BCL, LLB FEDERAL COURT SOLICITORS OF RECORD DOCKET: 14-T-36 STYLE OF CAUSE: FAOUZI BERRADA v WESTJET PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: HEARD BY WAY OF MOTION IN WRITING R-369 ORDER AND REASONS: LEBLANC J. DATED: April 27, 2015 Faouzi Berrada FOR THE MOVING PARTY Self-represented Michael Dery FOR THE RESPONDENT SOLICITORS OF RECORD: Faouzi Berrada FOR THE MOVING PARTY Self-represented Alexander Holburn Beaudin + Lang LLP Barristers and Solicitors Vancouver, British Columbia FOR THE RESPONDENT