Date: 19981009
Docket: T-2746-95
Between:
JEAN PAULIN, complainant in a complaint
to the Canadian Human Rights Commission
against the Royal Canadian Mounted Police
on March 23, 1995
Applicant
- v. -
ATTORNEY GENERAL OF CANADA for a decision
by the Canadian Human Rights Commission
Respondent
- and -
ROYAL CANADIAN MOUNTED POLICE
Third Party
REASONS FOR ORDER
DUBÉ J.:
[1] This is an application for judicial review of a decision by the Canadian Human Rights Commission (the Commission) dated November 24, 1995, dismissing the applicant"s complaint of age discrimination in employment against the Royal Canadian Mounted Police (the RCMP), and refusing to request that a Tribunal be appointed to inquire into a complaint based on the provisions of the Canadian Human Rights Act (the Act).
1. Facts
[2] The applicant was employed by the RCMP starting in 1986 as a special constable in the Executive/Diplomatic Protection Section, Headquarters. At that time, his work was satisfactory. In August 1990, he was transferred to Liverpool, Nova Scotia, to be trained for promotion to a constable position. The stress of the change of situation made him miss work from November 22, 1990, until April 1991. When he returned to work in Liverpool, he requested a transfer, but the RCMP was unable to find a position that suited him, so he went back on sick leave in July 1991.
[3] During this period of illness, the applicant attained 56 years of age, which is retirement age for a constable or special constable under paragraph 26(3)(c) of the Royal Canadian Mounted Police Superannuation Regulations, SOR/87-126, February 26, 1987 (the Regulations).
[4] Subsection 26(5) of the Regulations also provides that an extension of service in the Force until the person nearing retirement attains 60 years of age shall be authorized if that person has made in writing, at least one month prior to attaining the retirement age applicable to his rank, a request to the Commissioner for such an extension of service in the Force. According to the RCMP"s internal procedure, the person nearing retirement is notified prior to the deadline, but that was not the case here. Since the applicant was on sick leave, the RCMP had lost contact with him.
[5] In that connection, it must be noted that the Regulations do not require the RCMP to give such notice. It must also be pointed out that the extension is not automatic. Subsection 26(6) of the Regulations sets out some conditions, including the requirement that the person nearing retirement be "in good physical and mental health". The RCMP clearly stated that even if the applicant had requested an extension of service in the Force, it would not have granted him an extension in view of his mental health.
[6] Consequently, on March 23, 1995, the applicant filed a complaint against the RCMP with the Commission, and on September 25, 1995, the full investigation report was prepared and provided to the parties. That report recommended to the Commission that no further proceedings were warranted. After the applicant and the RCMP made their comments to the Commission, the Commission dismissed the applicant"s discrimination complaint on November 24, 1995.
2. Issues
[7] There are really three issues:
1) Did the Commission fulfil its duty of procedural fairness with respect to the applicant"s complaint?
2) Is the Commission"s finding a finding of fact that it made in a perverse or capricious manner or without regard for the material before it?
3) If so, can the Court refer the matter to a Tribunal or is it confined to referring the matter back to the Commission for reconsideration?
3. Applicant"s submissions
[8] The applicant submits that the procedural fairness requirement was not met, since the Commission disregarded a fact that was clearly relevant to determining the merits of the complaint: the investigation report does not mention that medical reports on the applicant stated that he was capable of working in the RCMP.
[9] Two medical reports were in fact filed. The first, dated October 31, 1991, is by psychologist C. J. A. Hayes. This very thorough 10-page report deals with the applicant"s psychological symptoms. It reaches specific conclusions. The applicant is unable to make his own decisions and allows others to make them for him. He has difficulty initiating projects. He feels helpless and uncomfortable when alone. He is easily hurt by criticism. In the recommendations section, the psychologist deals with the applicant"s suitability for police work, and concludes that he does not fit the normal pattern of a person in that line of work. However, he might do well if he were placed at Halifax International Airport. The last paragraph of the report sums up the medical assessment by Hayes:4. PLACEMENT AT HALIFAX INTERNATIONAL AIRPORT: The data from the 16 PF suggested that he currently does not fit the normal pattern of a person in police work. However, the data suggested that he would do well in structured situations not demanding adaptability. In some ways airport work would be similar to his work with embassy service. He would be able to carry out the majority of the work presented him at the International Airport. My reasoning is based on the work being similar to the work he was doing in the Embassy. However, the concern about his being able to take charge quickly, to act promptly, and to act boldly if the situation called for prompt action would be one that he would likely have great difficulty in passing.
| [10] The second medical report, dated May 5, 1993, is a one-page letter by psychologist R. F. Musten. He acknowledges the applicant"s emotional problems but sees no reason why he could not return to duty. The last two paragraphs of the letter read as follows:In general, I see no reason why Mr. Paulin could not return to duty. Clearly this man's confidence has been shaken both by how he was removed from his duties and by the continuing uncertainty regarding how the RCMP intends dealing with him. Thus I would suggest that he be reintegrated into duties that first give him a chance to feel that he is providing a useful role and second give him a chance to regain his confidence. |
Given the RCMP deals with this man in a reasonable and compassionate manner, I see no reason why he cannot be returned to duties.
4. Conclusions
| [11] There is a well-established presumption that a tribunal has regard to the material before it. Moreover, the Commission"s investigation report refers to the psychological assessments at paragraphs 17 and 26, which read as follows:17. The complainant underwent a psychological assessment one year after his posting to Liverpool, in which he was diagnosed as suffering from a dependent personality disorder and a distress syndrome characterized by depression anxiety and nervousness. The psychologist advised the respondent that these conditions were the result of the complainant's work related difficulties, and would abate once his work situation was resolved. The psychologist concluded that the complainant does not fit the normal pattern of a person in police work, and should be restricted to routine operational duties. |
| 26. The evidence shows that the complainant reached maximum age for his rank (56) in June 1993. However, the complainant was on sick leave at the time, and his age was not discovered until October 1994. By this time, the complainant had been on sick leave due to stress for more than three years, and his service record and psychological assessments confirm that he was not capable of performing police duties. While members may continue service to age 60, in order to receive an extension, they must be capable of performing their duties. Given the complainant's extended absences due to stress and his poor service record, the decision was made that an extension of service was not justified. The complainant accepted a cash termination and he was retired effective November 23, 1994. |
(Emphasis added.)
[12] With respect to procedural fairness, the evidence shows that: the Commission investigated the subject matter of the discrimination complaint; the applicant was provided with the investigation report; and the Commission gave him an opportunity to make representations before rendering its decision.
[13] There is nothing in the record to indicate that the Commission"s decision to dismiss the applicant"s complaint is a finding of fact that it made in a perverse or capricious manner or without regard for the material before it. In fact, the evidence in the record is that the problems the applicant experienced were due not to his age but to psychological factors. The evidence also shows that the RCMP tried to find duties he could perform. It even offered him a desk job, which he declined.
5. Direct referral to a Tribunal
[14] The application seeks an order from the Court referring the matter directly to a Tribunal. Even if there were reason to grant judicial review, the matter would have to be referred back not to a Tribunal but in fact to the Commission. The Commission"s power under subsection 44(3) of the Act to dismiss a complaint is purely discretionary. Consequently, the Court cannot impose an order in the nature of mandamus on the Commission; it is confined to referring the matter back to the Commission for reconsideration.1 In the case at bar, judicial review is not granted.
[15] In the result, the application is dismissed.
OTTAWA, Ontario
October 9, 1998
Judge
Certified true translation
Peter Douglas
Date: 19981009
Docket: T-2746-95
OTTAWA, ONTARIO, THE 9th DAY OF OCTOBER 1998
Present: MR. JUSTICE DUBÉ
Between:
JEAN PAULIN, complainant in a complaint
to the Canadian Human Rights Commission
against the Royal Canadian Mounted Police
on March 23, 1995
Applicant
- v. -
ATTORNEY GENERAL OF CANADA for a decision
by the Canadian Human Rights Commission
Respondent
- and -
ROYAL CANADIAN MOUNTED POLICE
Third Party
ORDER
The application is dismissed.
Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2746-95
STYLE OF CAUSE: JEAN PAULIN
v. ATTORNEY GENERAL OF CANADA
AND ROYAL CANADIAN MOUNTED POLICE
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: OCTOBER 6, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE DUBÉ
DATED OCTOBER 9, 1998
APPEARANCES:
Isabelle St-Jacques for the applicant
Rosemarie Millar for the respondent and the third party
SOLICITORS OF RECORD:
Cléments et Associés
Avocats
Hull, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General
of Canada for the respondent and the third party
__________________1 See Morisset v. C.H.R.C. , 52 F.T.R. 190 at 190 and 197, and Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2.