PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Canadian Human Rights Commission dated March 24, 2005 wherein the Commission dismissed the complaint of the Applicant who alleged that she had been the victim of a discriminatory practice in the course of her employment with the Respondent. For the reasons that follow I will allow this application with costs and return the matter to the Commission for investigation by a different investigator and subsequent determination by the Commission.
[2] The Applicant, Donna Watt was engaged by the Respondent in the Human Resources Development Canada, Immigration and Control Section of the Insurance program. In September 1993 she suffered a massive stroke which has left her paralyzed on her left side and with a number of other disabilities. She returned to work in March 1994. Her employer accommodated her in various ways having regard to the Applicant's disabilities, including providing her with training and a reduction in her duties.
[3] The Applicant remained at work, performing reduced duties until February 2002. During that period her employer became concerned, having received reports of lack of diligence, and excessive socializing that there was a lack of performance in her work although verbal reprimands only appear to have been made.
[4] On November 23, 2001, the Applicant was advised by her employer that she was to assume the full responsibilities of her job duties rather that the reduced duties that she had been performing since her return to work in 1994. The employer apparently sought to justify this step on the basis that neither the Applicant nor her doctor had indicated that accommodation was necessary.
[5] On February 4, 2002 the Applicant was assigned to a "full range" of duties and was unable to keep up. On June 4, 2002 the Applicant was asked to leave and, according to one witness, was "walked out of the office... treated like a dog."
[6] The Applicant filed a complaint with the Human Rights Commission on August 30, 2002.
[7] An investigator was assigned by the Commission to investigate and report on the Applicant's complaint. The issue raised in this Court is the thoroughness with which that investigation was carried out and the sufficiency of the report made. As such the issue is that of procedural fairness, no question of standard of review arises.
[8] The Commission, in its decision communicated by letter dated March 24, 2005 simply adopted the recommendations of the investigator to dismiss the application. There is no evidence that the Commission made any further investigation of its own. The report must, therefore, be considered to have been adopted by the Commission as its own findings.
[9] The thoroughness of the report is suspect. At one point the investigator's supervisor who read the investigator's report sent an e-mail to the investigator saying "the report reads as though you have not (sic) - more like a file review report". In other words the supervisor believed that the report was no more than a paper review.
[10] The report contains at least one glaring misrepresentation. In paragraph 18 the report states that, as to the medical condition of the complainant, the complainant's own doctor did not challenge the recommendations of the employer's doctors that the complainant be placed on medical retirement. This was simply false.
[11] The Applicant underwent a number of medical assessments including by her own doctor, a general practitioner, and by specialists retained by her employer. The record does not show what tests were actually conducted by the employer's specialists however, the result appears to be a recommendation by one of these, Dr. Birenbaum as set out in his letter of May 27, 2002 that "the best recommendation I can make is that of retirement based on medical necessity."
[12] This recommendation is at odds with that provided by the Applicant's doctor, Dr. McCurdy who, in a note dated June 6, 2002 states that "Donna can perform the specialized duties which she has been doing for the last 9 years" and in a letter dated July 26, 2004 stating, inter alia: "I believe Donna Watt is able to return to work effective August 3rd, 2004. She requires the following..." (a list of suggestions followed).
[13] The report is further flawed in that it simply did not follow a fundamental analysis of the facts placed in the circumstances of the appropriate tests to be followed in determining matters of this kind. As stated in Coupal v. Canada(Attorney General),2006 FC 255 at paragraph 17 a determination as to whether an employer's practice or policy is discriminatory involves two stages of inquiry:
a) has the complainant made out a case that the practice or policy constitutes prima facie discrimination; and if so:
b) has the employer established any defences to that prima facie discrimination, such as that the practice or policy is a bona fide occupational requirement (BFOR).
[14] The establishing of point (a), a prima facie discrimination requires simply that it be shown that disability was a factor in dismissing an employee.
[15] A consideration of point (b) requires that an employer bear the onus showing that it has adequate defences. The Supreme Court of Canada in the "Meiorin" case (British Columbia(Public Service Employee Relations Commission) v. British Columbia Government Service Employee Union [1999] 3 S.C.R. 3 at paragraph 54 has articulated a three step test:
Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics [page33] of the claimant without imposing undue hardship upon the employer.
[16] The issue of "undue hardship" is not addressed in the report. The criteria to be met has been clearly set out in Desormeaux v. Canadian Human Rights Commission, 2003 CHRT 2 at paragraph 46 (affirmed 2005 FCA 311):
The term 'undue hardship' is not defined in the Act, however, Meiorin and Grismer provide considerable guidance in determining whether or not an undue hardship defense has been made out. In Meiorin, the Supreme Court observed that the use of the word 'undue' implies that some hardship is acceptable - it is only 'undue' hardship that will satisfy the test. The Supreme Court has further observed that in order to prove that a standard is reasonably necessary, a respondent always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship. It is incumbent on the respondent to show that it has considered and reasonably rejected all viable forms of accommodation. The onus is on the respondent to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship. In assessing the adequacy of the respondent's efforts to accommodate, regard may be had to the prospect of substantial interference with the rights of others. The adoption of the respondent's standard has to be supported by convincing evidence. Impressionistic evidence will not generally suffice. Finally, factors such as the financial cost of methods of accommodation should be applied with common sense and flexibility in the context of the factual situation under consideration.
[17] The investigator had a duty to investigate the complaint in a neutral and thorough manner. If the investigation was defective, the Commission's decision relying upon the investigation is itself defective. Justice Mactavish in Sanderson v. Canada(Attorney General)2006 FC 447 at paragraphs 45 and 46 stated:
That is, in fulfilling its statutory responsibility to investigate complaints of discrimination, investigations carried out by the Commission must be both neutral and thorough. Insofar as the requirement of thoroughness is concerned, the Court in Slattery stated that:
Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. [emphasis added]
Cases decided after Slattery have established that a decision to dismiss a complaint made by the Commission in reliance upon a deficient investigation will itself be deficient as "[i]f the reports were defective, it follows that the Commission was not in possession of sufficient relevant information upon which it could properly exercise its discretion": see Grover v. Canada (National Research Council), [2001] F.C.J. No. 1012, at ¶ 70. See also Garvey v. Meyers Transport Ltd. [2005] F.C.J. No. 1684 (C.A.), Singh v. Canada (Attorney General), [2002] F.C.J. No. 885, 2002 FCA 247 (C.A.) at ¶ 7 and Kollar v. Canadian Imperial Bank of Commerce, [2002] F.C.J. No. 1125, 2002 FCT 848 at ¶ 40.
[18] The Commission is required to determine whether the complaint is one that must simply be dismissed or that it should move onto conciliation and a hearing before the Tribunal. In making such a determination the Commission should have before it sufficient information by way of a properly conducted investigation, so as to consider the proper tests in the context of the factual circumstances of the case.
[19] In this case the report, as adopted by the Commission, fails to address either the prima facie test or any of the Meiorin tests, or the endeavours, if any, by the employer to meet the Meiorin tests. A review of the record provides no indication that the employer has endeavoured to meet these tests, and in particular, whether the employer met the third test, that of showing that there would be "undue hardship" in accommodating the Applicant. What the record shows is that rather than attempt accommodation, the employer increased the workload of the Applicant to a "full range" knowing full well the difficulties that the Applicant was experiencing in meeting even the more limited load that had been previously assigned to her.
[20] The report, thus the Commission's decision, is fundamentally flawed in failing to address the relevant threshold criteria and subsequent tests. It must be quashed. Further flaws are evident in the representations made as to the medical evidence which demonstrates that the report was not sufficiently thorough. The Commission was in error in adopting its recommendations. The matter will be sent back for a new investigation by a different investigator and subsequent determination by the Commission.
[21] The Applicant has been successful and is entitled to costs on the usual Column III scale.
JUDGMENT
UPON application made to this Court for judicial review of a decision of the Human Rights Commission dated March 24, 2005 wherein the Applicant's complaint based on discrimination was dismissed;
AND UPON reviewing the Records filed herein and hearing submissions by counsel for each of the parties;
AND FOR the Reasons delivered herewith;
THIS COURT ADJUDGES that:
1. The application is allowed.
2. The decision of the Commission dated March 24, 2005 is set aside and the matter is remitted back to the Commission for investigation by a different investigator and subsequent determination by the Commission; and
3. The Applicant is entitled to costs to be taxed at the middle of Column III.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-691-05
STYLE OF CAUSE: DONNA WATT V. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 16, 2006
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE HUGHES
DATED: MAY 18, 2006
APPEARANCES:
Mr. Andrew Raven FOR THE APPLICANT
Ms. Joanna Hill FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raven, Cameron, Ballantyne & Yazbeck LLP. FOR THE APPLICANT
Ottawa, Ontario
John H. Sims Q.C. FOR RESPONDENT
Deputy Attorney General of Canada