Date: 20050307
Docket: T-1183-04
Citation: 2005 FC 327
Ottawa, Ontario, this 7th day of March, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
MARGARET KIDD
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Kidd lost her job at the Department of National Defence (DND) in 2001 after she was diagnosed with cancer. She was off work for several months while undergoing chemotherapy and other related treatments. DND extended Ms. Kidd's six-month term while she was on sick leave but later terminated her employment when it seemed clear she could not return to work. DND assessed her physical condition twice to see if the might be able to return to her former job as a cleaner or take on a less demanding one. Both times, a medical officer found that Ms. Kidd was unable to return to work.
[2] Ms. Kidd brought a complaint to the Canadian Human Rights Commission alleging that she had been discriminated against on grounds of physical disability. After conducting an investigation, the Commission decided not to refer Ms. Kidd's complaint to a tribunal because DND had acted properly in the circumstances, having tried to accommodate Ms. Kidd in its workplace.
[3] Ms. Kidd argues that the Commission treated her unfairly and relied on faulty information when it declined to prosecute her complaint. However, I can find no error on the Commission's part and must, therefore, dismiss this application for judicial review.
I. Issues
1. Did the Commission treat Ms. Kidd unfairly?
2. Did the Commission rely on false information?
II. Analysis
1. Did the Commission treat Ms. Kidd unfairly?
[4] Ms. Kidd alleges that she was treated unfairly in two ways: (a) that the Commission failed to communicate with her in a timely way, and (b) that the Commission wrongly denied her request to be represented by counsel.
(a) Poor communication
[5] After it decided not to refer her complaint to a tribunal, the Commission failed to send its decision to Ms. Kidd's proper address. Ms. Kidd suggests this carelessness was symptomatic of the Commission's failure to treat her with dignity and respect and to analyze her complaint seriously.
[6] The Commission's conduct may well indicate that it was less attentive to Ms. Kidd's file than she could reasonably expect it to be. The Commission failed to update Ms. Kidd's coordinates and mis-directed the notice of its decision. However, the record indicates that the Commission attempted to contact Ms. Kidd on numerous occasions by telephone and was unsuccessful. Ms. Kidd disagrees.
[7] Given that the Commission is not a party to these proceedings, I have too little information before me to decide whether the Commission acted with due diligence in its efforts to communicate with Ms. Kidd.
[8] Counsel for the respondent suggested that it might be appropriate for me to order the Commission to appear so that its position could be ascertained and any relevant evidence about its conduct could be laid before the Court. However, in the circumstances, I decline to do so. As I see it, further evidence could have no impact on the outcome of these proceedings. From my review of the record and the submissions of the parties, I can find no prejudice to Ms. Kidd, even if, as she alleges, that the Commission was inconsiderate and less attentive to her situation than it ought to have been. None of Ms. Kidd's allegations, even if true, amounts to a breach of natural justice or unfairness.
(b) Lack of counsel
[9] Similarly, there is nothing to indicate that Ms. Kidd was prejudiced by being unrepresented. Ms. Kidd suggests that, had she been represented, she might have been better able to respond to the investigator's report and persuade the Commission not to follow the investigator's recommendations. She says that the Commission advised her of the opportunity to make submissions after the investigator completed her report, but it told her that she must raise new arguments, not simply repeat her previous allegations. Yet, she notes that DND responded to the investigator's report by repeating its earlier arguments.
[10] Nothing in the record suggests that the Commission was persuaded by DND's final submissions or that it failed to take account of Ms. Kidd's position. Ms. Kidd was treated fairly by having been given an opportunity to put her side of the story to the investigator and a chance to argue that the investigator had erred. In short, I see no grounds to set aside the Commission's decision on grounds of fairness.
2. Did the Commission rely on false information?
[11] The investigator states in her report that Ms. Kidd had, at one point, discontinued her medication and stopped her treatments for cancer. Ms. Kidd says that this was untrue. She tendered a letter from Dr. Anna Woods, a psychiatrist, stating that she had never known Ms. Kidd to fail to follow medical instructions except when she could not afford her drugs. Ms. Kidd acknowledged that she had told the investigator that she had interrupted her treatments at one point because of the cost of drugs. She made that statement in order to impress upon the investigator how badly she was affected by DND's decision to terminate her position. In other words, there was a factual basis for the investigator's statement, although the full context was missing. In the end, the investigator's statement was not seriously wrong nor was it central to her conclusion that DND had, through its extension of Ms. Kidd's term and efforts to re-integrate her into the workplace, reasonably accommodated her medical needs and situation.
II. Disposition
[12] It is regrettable that Ms. Kidd lost her job just as she was about to obtain indeterminate status as a DND employee. Similarly, DND no doubt regrets the loss of a valued employee. I would have thought that a solution was available that would have served the interests of both parties. However, I can do no more than lament the ongoing dispute between Ms. Kidd and her former employer; there is no basis in law for the Court's intervention.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed without costs.
2. The "Department of National Defence" is removed from the style of cause and the "Attorney General of Canada" is added as the responding party.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1183-04
STYLE OF CAUSE: MARGARET KIDD v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: WINNIPEG, Manitoba
DATE OF HEARING: February 21, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: March 7, 2005
APPEARANCES BY:
Margaret Kidd FOR THE APPLICANT / ON HER OWN BEHALF
Kevin Staska FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARGARET KIDD FOR THE APPLICANT / ON HER OWN BEHALF
Winnipeg, Manitoba
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, ON