Date: 20041007
Docket: T-95-04
Neutral citation: 2004 FC 1383
BETWEEN:
KAREN CHRISTIE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PHELAN J.
Overview
[1] The Applicant seeks judicial review of a decision of the Canadian Human Rights Commission (the "Commission") dismissing her complaint that her employer discriminated against her because she is a diabetic. Her employer, Human Resources Development Canada ("HRDC") did not renew her term contract when she failed to provide medical evidence of when she would be able to return to work.
Background
[2] The Applicant, a type II diabetic, was hired in April, 2000 on contract as a part-time worker in a call centre. During the course of her employment, she was off work for significant periods of time. Despite these absences, her contract was renewed periodically and finally until October, 2002.
[3] From November, 2000 to June, 2001 the Applicant was off work on sick leave and then on Employment Insurance benefits. In June, 2001 the employer required a current medical letter indicating when the Applicant could return to her substantive position: the employer had put her in a less stressful/demanding position temporarily.
[4] By September, 2001, the Applicant had received a letter indicating that she could not perform the duties of her substantive position for "the foreseeable future". Over the course of the following 12 months, the employer continued to seek supporting information from the Applicant's doctor concerning her return to work - but none was provided.
[5] In September, 2002 the Applicant had surgery. She did not provide her employer with any evidence of a possible return to work date. On October 11, 2002 the employer , depending on whose version of events is to be believed, either did not renew or terminated the Applicant's employment.
[6] The Applicant filed a complaint with the Commission alleging discrimination and failure to accommodate. After investigation, the Commission dismissed the complaint.
[7] The Applicant now seeks judicial review of the dismissal of her complaint on the grounds that the Commission ignored the issue of "bona fide occupation requirement"; that the investigator ignored key allegations; that the investigator ignored key witnesses despite the Applicant's demand for a full investigation.
Analysis
[8] The standard of review applicable to the Commission's decision not to refer a complaint to a tribunal is reasonableness. However where the issue is breach of natural justice/fairness, there is no such deference; the Commission must be correct.
[9] The Commission found that the employer's policy, that contract personnel must be available for work in accordance with the contract, is not discriminatory. There is nothing unreasonable in this conclusion.
[10] The Commission found that the employer did make accommodation for the Applicant where requested, but refused to renew the contract when there was no evidence of when she could return to work. As such the Commission held that this conduct was not discriminatory. The Applicant did not challenge the investigator's conclusion on this point in her submissions to the Commission. There is nothing unreasonable in this conclusion by the Commission.
[11] The Applicant also argues that she was denied procedural fairness principally in regard to the way in which the investigation was handled. The thrust of this complaint is that the investigator did not interview all the witnesses the Applicant thought should be interviewed; that the Applicant's case should have been joined with other "failure to accommodate" cases; that the investigator's report contained conflicting evidence and was not thorough.
[12] The failure to interview certain witnesses is more of an attack on the exercise of the discretion of an investigator as to the conduct of an investigation than an issue of denial of procedural fairness. The investigator had good reason not to interview certain people because they were not party to any of the relevant matters and not likely to provide material evidence. The investigator interviewed others not listed by the Applicant because they did have relevant information. I see no basis for criticism of this aspect of the investigation. An investigator must be given certain latitude to conduct the investigation. The reasons for not interviewing certain people is cogent and permissive.
[13] The Applicant's desire that her complaint be joined with other "failure to accommodate" cases is also an issue of the exercise of discretion by the Commission rather than of procedural fairness. The other cases of "failure to accommodate" dealt with different disabilities than that of the Applicant. I see no basis for challenging the Commission's conclusion in this regard.
[14] The general complaint about the investigator's report and lack of thoroughness cannot be sustained. The Applicant had an opportunity to respond to the report but did not challenge it on the grounds of lack of thoroughness. It is also not surprising that the report would contain contradictory statements as it recited the relative positions of each party. There is no error of law or breach of natural justice/fairness in the recitation of the conflicting views as part of the investigator's report.
[15] Taking the Commission decision and the investigator's report individually and as a whole, I see no basis for overturning the Commission's conclusion. Therefore this application for judicial review will be dismissed.
(s) "Michael L. Phelan"
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-95-04
STYLE OF CAUSE: KAREN CHRISTIE v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2004
REASONS FOR ORDER BY: PHELAN J.
DATED: October 7, 2004
APPEARANCES:
Ms. Karen Christie ON HER OWN BEHALF
Mr. James Gorham FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Karen Christie
Toronto, Ontario ON HER OWN BEHALF
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT