STEVENS COSSY Applicant v. CANADA POST CORPORATION AND THE ATTORNEY GENERAL OF CANADA, 2021 FC 559

Date: 20210608 Docket: 21-T-5 Citation: 2021 FC 559 Ottawa, Ontario, June 8, 2021 PRESENT: Madam Justice Pallotta BETWEEN: STEVENS COSSY Applicant and CANADA POST CORPORATION AND THE ATTORNEY GENERAL OF CANADA Respondents ORDER AND REASONS I. Introduction [ 1 ] Mr. Stevens Cossy makes this motion for an extension of time to commence an application for judicial review of the Canadian Human Rights Commission’s (Commission) decisions in complaint file nos. 20161048 and 20180355. [ 2 ] Mr.

Cossy has not established it is in the interests of justice to grant an extension of time, and accordingly, the motion is dismissed. II. Preliminary Issue [ 3 ] Mr. Cossy served and sought to file written representations in reply to the respondents’ motion records, as well as a supplementary affidavit. The Registry did not accept the documents for filing and asked for directions from the Court. [ 4 ] Rule 369(3) of the Federal Courts Rules , SOR/98-106 [the Rules ] allows a moving party to file written representations in reply within 4 days after being served with a respondent’s motion record. Mr.

Cossy submitted his written representations well after this deadline. [ 5 ] Rule 369 does not include a provision for reply evidence. As such, Mr. Cossy requires leave of the Court to file his supplementary affidavit. Reply evidence on a motion is permitted only in “unusual circumstances”, where considerations of procedural fairness and the need to make a proper determination require it: Amgen Canada Inc v Apotex Inc , 2016 FCA 121 at para 11 . [ 6 ] There is no evidence in Mr. Cossy’s original motion record to establish the date on which he received the Commission’s decision in file 20180355. Exhibit 1 to Mr.

Cossy’s supplementary affidavit is an August 12, 2019 email from the Commission attaching a copy of the decision, in response to an inquiry from Mr. Cossy. This evidence is relevant to a proper determination on the motion. [ 7 ] Since Mr. Cossy is a self-represented litigant who may not be familiar with the Rules , and the result of the motion determines whether he is permitted to commence an application for judicial review of the Commission’s decisions, I have decided to allow Mr.

Cossy’s written representations and supplementary affidavit to be accepted for filing, and I have considered them in reaching my decision. I direct that both documents be accepted by the Registry. III. Facts [ 8 ] The Commission’s files identified as 20161048 and 20180355 relate to complaints of discrimination by Canada Post Corporation (Canada Post) and Innovation, Science and Economic Development Canada (ISED) in connection with Mr. Cossy’s employment. [ 9 ] File no. 20161048 relates to a complaint that Canada Post discriminated against Mr. Cossy in terminating his employment.

The Commission decided not to deal with Mr. Cossy’s complaint because the termination was not linked to a prohibited ground of discrimination. Canada Post received the Commission’s decision on November 15, 2019, and Mr. Cossy received it in January 2020. [ 10 ] File no. 20180355 relates to a complaint that ISED discriminated against Mr. Cossy in determining that he did not meet the condition of a conditional offer of employment made by ISED. The Commission dismissed Mr. Cossy’s complaint. ISED received the Commission’s decision on January 29, 2019. Based on Mr. Cossy’s supplementary affidavit (Exhibit 1), Mr.

Cossy received the decision on August 12, 2019. [ 11 ] It appears that Mr. Cossy seeks to challenge the Commission’s decisions on the basis that the termination of his employment with Canada Post, and ISED’s determination that he failed to meet a condition of employment, both stemmed from a complaint made by a residential customer of Canada Post that was later determined to be unfounded. According to Mr. Cossy, after he commenced legal proceedings against this customer, the customer " “revealed to the Ontario Superior Court of Justice” " on April 29, 2019 that she had

made a false complaint in respect of an incident that occurred in May 2016, and she agreed to send a letter to Canada Post retractingcertain parts of her statement about the May 2016 incident. [12] Mr. Cossy filed a copy of an agreement to settle the legal proceedings against the customer. The settlement agreement includes thefollowing terms: (

i) Mr. Cossy agreed to pay $7,000 to the customer, with the funds to be held in trust until the letter to Canada Post wasdelivered; and (ii) the parties agreed that the letter is not a sworn statement, does not reflect the customer’s true recollection of theevents, and shall not be used in any proceeding against the customer. The customer signed the settlement agreement on April 29, 2019. [13] Mr. Cossy also filed a copy of the letter signed by the customer.

The letter indicates it is for the purpose of settling litigation, statesthat the customer wishes to withdraw certain parts of the statement made to Canada Post about the May 2016 incident, and sets out twopoints clarifying the statement. [14] Mr. Cossy submits that he is self-represented, and was not aware of the 30-day deadline for commencing an application for judicialreview. He adds that a hospitalization in March 2020 and the COVID-19 pandemic hampered his ability to seek legal assistance, andnegatively affected his ability to file an application for judicial review in a timely fashion. IV. Analysis A.

Extension of Time [15] The main issue on this motion is whether the Court should grant Mr. Cossy’s request for an extension of time to commence anapplication for judicial review. The respondents raise additional issues that are addressed under the next

section of these reasons. [16]

Section 18.1 of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act] provides that an application for judicial review inrespect of a decision or order of a federal board, commission or other tribunal shall be made within 30 days after the decision or orderwas first communicated to the applicant. The Court may extend the 30-day deadline, even after it has expired. [17] Principles to guide the Court’s decision to grant or refuse a request for an extension of time have been developed in thejurisprudence.

A leading case in this regard is the Federal Court of Appeal’s decision in Canada (Attorney General) v Hennelly, (FCA), [1999] FCJ No 846, 244 NR 399 [Hennelly], which provides that a party seeking an extension of time mustdemonstrate:

a) a continuing intention to pursue the application;

b) that the application has some merit;

c) that no prejudice to therespondent arises from the delay; and

d) that a reasonable explanation for the delay exists. [18] While a decision to grant or refuse an extension of time to commence an application for judicial review is typically based on the fourfactors identified in Hennelly, it is not always necessary that the party seeking the extension of time be able to satisfy all four factors:Whitefish Lake First Nation v Grey, 2019 FCA 275 at para 3. The overriding consideration is whether it is in the interests of justice thatthe extension of time be granted. [19] I find that Mr.

Cossy has not demonstrated a continuing intention to pursue judicial review of the Commission’s decisions. Mr.Cossy received the Commission’s decisions in August 2019 and January 2020. He submitted a motion seeking an extension of time manymonths later, on January 7, 2021 (the motion was accepted for filing the following month, due to an irregularity). The motion record doesnot include any evidence of a continuing intention to pursue judicial review of the Commission’s decision in file 2018035, regardingISED’s offer of employment. With respect to file 20161048, regarding the termination of Mr.

Cossy’s employment with Canada Post, therecord includes an undated letter from the Commission indicating that Mr. Cossy asked the Commission to reconsider its decision, andthat this request was denied. There is no evidence of when Mr. Cossy made the request or the circumstances that led to the request.

Mr.Cossy’s one-year delay in filing this motion is significant, particularly in comparison to the 30-day time limit provided by the FederalCourts Act, and the step of seeking reconsideration within that period is simply insufficient to establish a continuing intention to reviewthe Commission’s decision in file no. 20161048. [20] Mr. Cossy has not provided a reasonable explanation for the delay. Mr. Cossy offers three explanations: (

i) he was not aware of the30-day deadline for commencing an application for judicial review; (ii) he was hospitalized in March 2020; and (iii) the COVID-19pandemic hampered his ability to seek legal assistance. Mr. Cossy does not explain why he was unaware of the 30-day deadline whenboth of the Commission’s decisions that he seeks to review refer to it, or how or when he became aware of the deadline. Also, Mr. Cossydoes not explain how or to what extent an admission to the hospital in March 2020 contributed to his delay. The evidence includes a firstambulance call report from March 5, 2020, indicating that Mr.

Cossy was treated by paramedics for about 30 minutes, and a secondambulance call report from March 9, 2020, indicating that Mr. Cossy was taken to hospital. There is no evidence of how long heremained in the hospital. Even assuming that Mr. Cossy’s hospital admission accounts for some delay, there is no evidence to explainhow the events described in the ambulance call reports or Mr. Cossy’s health concerns prevented him from filing this motion in themonths before or after March 2020. Lastly, Mr.

Cossy’s bare assertion that COVID-19 hampered his ability to seek legal assistance—without any evidence or details of his efforts in this regard—does not explain the delay. The explanations put forward by Mr. Cossy donot reasonably explain the period of delay. [21] Furthermore, Mr. Cossy has not established that the respondents will not be prejudiced as a result of the delay.

Canada Post submitsthat the Commission rendered a decision in November 2019 based on acts that occurred in 2016, and one of the purposes of time limits isto ensure evidence does not go stale: Singh v Canada (Citizenship and Immigration), 2021 FC 93 at para 17.

ISED submits that timelimits exist in the public interest, in order to bring finality to administrative decisions (Lesly v Canada (Citizenship and Immigration),2018 FC 272 at para 18; 396491 Canada Inc v Canada, 2020 FC 894 at para 39), and that respondents are entitled to expect thatextensions will not be granted where non-compliance with a time limits lacks a reasonable explanation (Collins v Canada (AttorneyGeneral), 2010 FC 949 at para 6). I agree with these submissions. Prejudice to the respondents is a factor that weighs against granting theextension.

[ 22 ] Finally, I turn to whether the application has some merit. Canada Post submits that there is no merit to the application: Mr. Cossy does not allege that the Commission violated a duty of procedural fairness or that the Commission’s decision is unreasonable. According to Canada Post, Mr. Cossy seeks a de novo review of the underlying facts in dispute, possibly based on the April 2019 evidence regarding the reliability of the customer’s statements. Similarly, ISED submits that Mr.

Cossy’s motion record contains no evidence or submissions that would allow the Court to conclude he has an arguable case for review of the Commission’s decisions. ISED submits that Mr. Cossy was required to identify a reasonable basis on which to challenge the decisions ( Gagnon v Canada (Attorney General) , 2019 FC 1661 at para 36 ) and he failed to do so. [ 23 ] I have reviewed the evidence and submissions in Mr. Cossy’s original record as well as the evidence and submissions filed in reply. In my view, Mr.

Cossy has not established that his proposed application for judicial review—that seeks to have this Court examine the decisions made by Commission for reviewable error—has merit. [ 24 ] As noted by Canada Post, Mr. Cossy has not alleged that the Commission violated procedural fairness or that the Commission’s decisions are unreasonable. [ 25 ] From his evidence and submissions, I am unable to ascertain a reasonable basis on which to challenge the decisions. As noted above, it appears that Mr.

Cossy seeks to challenge the Commission’s decisions on the basis that the termination of his employment and ISED’s decision that he failed to meet a condition of employment stemmed from a complaint that was later " “determined” " to be unfounded. However, there was no such determination; there was only an agreement between Mr. Cossy and the customer that she would send a letter in order to settle the litigation between them. In the settlement agreement, Mr. Cossy and the customer agreed that the letter is not a sworn statement and does not reflect the customer’s true recollection of the events.

Furthermore, the settlement agreement post- dates the Commission’s decision in file 20180355, and it appears that the settlement agreement was not a part of the record in file 20161048 because Mr. Cossy asked the Commission to reconsider its decision in that file based on new evidence that the customer’s allegations were false. In the letter denying Mr. Cossy’s request, the Commission found the information about the customer’s false allegations was not " “new evidence” " because the information had been available before the Commission issued its decision in November 2019, and Mr.

Cossy did not respond to a Report for Decision disclosed on June 12, 2019, although he had the opportunity to do so. [ 26 ] With the exception of Exhibits 1 and 2 to Mr. Cossy’s supplementary affidavit, which are the August 12, 2019 email from the Commission and a second copy of the customer’s letter to Canada Post, it is not clear how any of the other documents attached as exhibits to his supplementary affidavit (many of which pre-date the settlement agreement of 2019) relate to an alleged error in either of the two decisions by the Commission. In my view, the other evidence in Mr.

Cossy’s supplementary affidavit and the reply submissions have only limited relevance to the merit of the proposed application for judicial review, and they do not add to the submissions and evidence in Mr. Cossy’s original motion record in a significant way. [ 27 ] Thus, Mr. Cossy has not identified a reasonable basis on which to challenge the decisions, and he has not established that his proposed application to judicially review the Commission’s decision has merit. [ 28 ] In any event, Mr.

Cossy’s failure to demonstrate a continuing intention to pursue judicial review of the Commission’s decisions, to demonstrate the respondents would not be prejudiced, and to provide a reasonable explanation for a significant delay of several months, all weigh against granting an extension of time. Even if I were to find the merit of Mr.

Cossy’s application to be a factor that favours granting an extension of time according to the Hennelly test, it is not a sufficiently strong factor to outweigh my findings regarding the other elements of the Hennelly test. [ 29 ] For the foregoing reasons, I am not satisfied that it is in the interests of justice to grant Mr. Cossy’s request for an extension of time, and accordingly, the motion is dismissed. [ 30 ] Canada Posts seeks its costs of the motion in the amount of $500.00. [ 31 ] The Association of Postal Officials of Canada (APOC) also seeks its costs.

APOC submits it was not a party to the complaints that are the subject of the Commission’s files 20161048 and 2018035, and that it was improperly included as a respondent to the motion. APOC requests costs on a solicitor-client scale as a result. [ 32 ] Generally, costs are awarded to the successful party and in my view, an award of costs of the motion is appropriate. [ 33 ] I am not satisfied that APOC is entitled to costs on a solicitor-client scale. I am not satisfied that Mr.

Cossy appreciated his mistake in naming APOC, or that his conduct justifies an award of costs on a solicitor-client scale. [ 34 ] An award of costs in the amount of $500.00 is reasonable and in line with costs for responding to a contested motion calculated under column III of the Tariff B table. I would award costs to Canada Post and APOC in the amount of $500.00 each. [ 35 ] ISED does not seek costs. The Commission’s position is that it was improperly named as a respondent (Rule 303(1)(a)), but it did not file a responding motion record.

Instead, the Commission filed a letter indicating that it would file responding materials, or a motion to be removed as a party, if so directed by the Court. The Court did not direct it to do so. No costs will be awarded in favour of these respondents. B. Additional issues [ 36 ] ISED submits that Rule 302 provides that an application for judicial review must be limited to a single decision under review, unless otherwise ordered by the Court. ISED’s position is that, if the motion for an extension of time is granted, Mr.

Cossy should be required to limit the application to a single decision, which names only the respondents appropriate to that decision. This issue is now moot in view of my decision to refuse the extension request, and it is unnecessary to address it further.

[37] ISED submits that it is improperly named as a respondent, and that the Attorney General of Canada should be substituted as arespondent in place of ISED: Rule 303(2) of the Rules and s. 23(1) of the Crown Liability and Proceedings Act, RSC 1985, c C-50. Iagree. [38] Also, I agree with the Commission that it is improperly named as a respondent. Rule 303(1)(

a) of the Rules provides that anapplication for judicial review shall name as a respondent every person directly affected by the order sought in the application, otherthan a tribunal in respect of which the application is brought. The Commission is the tribunal. [39] APOC filed evidence indicating that Mr. Cossy is a former member of APOC, that APOC grieved against Mr. Cossy’s terminationby Canada Post on his behalf, and that the grievance was resolved in 2017.

APOC’s evidence indicates that it was not a party to eithercomplaint no. 20161048 or no. 2018035 before the Commission, and it has no interest in the outcome of either complaint. APOC submitsit is not a proper or necessary party, since the relief that is available by way of judicial review of the Commission’s decisions would notbe relief against APOC, APOC would not be bound by any rulings resulting from such an application or directly affected by the outcomeof the proceeding, and APOC would provide no assistance to the Court in the judicial review process: Rules 104(1)(

a) and 303 of theRules; Nourhaghighi v Canada (Human Rights Commission), [2001] FCJ No 75; Benito v Immigration Consultants of CanadaRegulatory Council, 2019 FC 1628 at para 53; Sivak v Canada, 2012 FC 272 at para 35; Hall v Dakota Tipi Indian Band, (FC) at paras 5 and 8. As such, APOC submits it is not a proper or necessary party to Mr. Cossy’s motion, or any application forjudicial review of the Commission’s decisions that may be filed if the motion were granted.

I agree. [40] The style of cause is amended with immediate effect to name the Attorney General of Canada as a respondent, and to remove ISED,the Commission and APOC as respondents. V. Conclusion [41] This motion for an extension of time is dismissed, with costs to each of Canada Post and APOC in the amount of $500.00. ORDER in 21-T-5 THIS COURT ORDERS that: 1. The style of cause is hereby amended to remove ISED, the Commission, and APOC as respondents, and to name the AttorneyGeneral of Canada as a respondent; 2. Mr.

Cossy’s written representations in reply and his supplementary affidavit are accepted for filing; 3. The motion for an extension of time to commence an application for judicial review of the Commission’s decisions in complaintfile nos. 20161048 and 20180355 is dismissed; 4. Canada Post is awarded costs of the motion in the amount of $500.00; 5. APOC is awarded costs of the motion in the amount of $500.00. "Christine M.

Pallotta" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: 21-T-5 STYLE OF CAUSE: STEVENS COSSY v CANADA POST CORPORATION AND THE ATTORNEYGENERAL OF CANADA MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO ORDER AND REASONS: PALLOTTA J. DATED: June 8, 2021 WRITTEN REPRESENTATIONS BY:

Stevens Cossy For The Applicant (ON HIS OWN BEHALF) Ted Brook For The Respondent CANADA POST CORPORATION George Rontiris Kyle Shimon FOR THE RESPONDENT ASSOCIATION OF POSTAL OFFICIALS OF CANADA Christine Singh FOR THE RESPONDENT CANADIAN HUMAN RIGHTS COMMISSION Taylor G.

Andreas FOR THE RESPONDENT INNOVATION, SCIENCE AND ECONOMIC DEVELOPMENT CANADA SOLICITORS OF RECORD : Norton Rose Fulbright Canada LLP Toronto, Ontario FOR THE RESPONDENT CANDADA POST CORPORATION Emond Harnden LLP Ottawa, Ontario FOR THE RESPONDENT ASSOCIATION OF POSTAL OFFICIALS OF CANADA Canadian Human Rights Commission Ottawa, Ontario FOR THE RESPONDENT CANADIAN HUMAN RIGHTS COMMISSION Attorney General of Canada Ottawa, Ontario For The Respondent INNOVATION, SCIENCE AND ECONOMIC DEVELOPMENT CANADA