[1] This is an appeal from the Federal Court of Canada order, dated December 23, 2004 (reported as 2004 F.C. 1778), quashing a decision of the Canadian Human Rights Tribunal (Tribunal), dated January 14, 2003, which upheld the complaint of Francine Desormeaux against Ottawa-Carleton Transportation Commission (OC Transpo) for discrimination on the ground of disability, when it dismissed her for innocent absenteeism arising from her migraine headaches.

[2] The Tribunal concluded that Ms. Desormeaux suffered from migraine headaches which constituted a disability according to the test set out by the Supreme Court of Canada in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. City of Montreal, [2000] 1 S.C.R. 665 (City of Montreal), since the condition was chronic, significantly incapacitating and periodically interfered with her ability to do her job. The Tribunal held that this disability was a factor in Ms. Desormeaux's dismissal, and hence the dismissal was prima facie discriminatory. The Tribunal further found that OC Transpo could accommodate her disability without undue hardship. The Applications Judge disagreed with the first conclusion, finding that the evidence did not support the finding that Ms. Desormeaux suffered from migraine headaches to the extent of constituting a disability, that there was no discrimination and, hence, did not consider the accommodation issue (see para. 101 of reasons).

[3] Ms. Desormeaux had many health problems over the nine years she worked with OC Transpo as a bus driver. She missed many days of work for various reasons, including 57 full days and 11 part days as a result of her headaches, which were very severe, lasting from one to three days and causing nausea and even vomiting. In total, including the days missed for migraine headaches, Ms. Desormeaux missed 365 full days and 24 part days during her 9 years of employment at OC Transpo.

[4] This led to her dismissal on January 30, 1998 for chronic innocent absenteeism, after having several meetings with her manager discussing the situation.

[5] Following her dismissal, Ms. Desormeaux's union grieved on her behalf. An expedited arbitration before the Honourable George Adams was held which was heard on a "without prejudice or precedent basis to either party". Arbitrator Adams dismissed the grievance and upheld the decision to dismiss on July 27, 1998, finding that although Ms. Desormeaux's absences had for the most part been for bona fide medical reasons, "an employer is entitled to regular attendance from an employee as a condition of the employment relationship", and Ms. Desormeaux "through no fault of her own, has not been able to perform her end of this employment bargain".

[6] Ms. Desormeaux then filed a complaint to the Canadian Human Rights Commission on February 24, 1999, which complaint was eventually referred to the Tribunal, whose decision is the subject of this appeal.

[7] Prior to the scheduled hearing of the complaint before the Tribunal, OC Transpo objected to the jurisdiction of the Tribunal on the ground of issue estoppel, contending that the Adams arbitration had already decided the issue. The Tribunal considered the arguments and issued a ruling, dated July 19, 2002, rejecting the issue estoppel argument and holding that the Tribunal had jurisdiction to hear the matter.

[8] This jurisdictional ruling was challenged before the Applications Judge at the time of the Judicial Review application. The Applications Judge held that the matter was time barred and did not consider the question. Both counsel in this appeal agreed that this was not correct and that the jurisdictional issue was properly argued at the time of the judicial review application. This Court accepts that view.

[9] Nevertheless, after considering the strong arguments on the estoppel issue, this Court has concluded that the Tribunal's consideration of the matter was legally unimpeachable, in that two of the three elements required for issue estoppel - that is, same question and same parties - had not been established (following the test set out Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 at para. 25, citing Angle v. Canada (Minister of National Revenue), [1975] 2 S.C.R. 248 at 254, per Dickson, J). There is, therefore, no need to consider the scope of the residuary discretion residing in the Tribunal on this issue.

[10] The primary basis for this appeal was the Applications Judge's overturning the decision of the Tribunal on the question of prima facie discrimination on account of disability.

[11] In deciding that there was prima facie discrimination on the ground of disability, the Tribunal relied heavily on the evidence of the complainant and her family doctor, Dr. Anne Meehan, who testified that Ms. Desormeaux suffered from migraine headaches, which she felt were coming under better control with treatment at the time of the hearing.

[12] There had been a previous examination of Ms. Desormeaux by a neurologist, Dr. Rabinovitch, on January 11, 1990, who concluded in his report, inter alia, "I expect she probably has mixed migraine, tension headaches". He arranged for an EEG and CAT scan but was "doubtful that much else will be found". Nothing else was found.

[13] The Tribunal rejected the argument of OC Transpo that no disability on account of headaches was established and concluded:

[67] There are several reasons for rejecting counsel's submission. I am satisfied that the diagnosis and treatment of migraine headaches is within the expertise of the reasonably competent family practitioner. Further, Ms. Desormeaux was assessed by a neurologist in 1990. Dr. Rabinovitch concluded that Ms. Desormeaux probably suffered from "mixed migraine, tension headaches". Dr. Meehan testified that Ms. Desormeaux's symptoms were classic symptoms of more severe migrainous-type headaches. There is no medical evidence before me that would lead me to question either Dr. Meehan's opinion or Dr. Rabinovitch's finding.

[68] Further, even if I were to accept counsel's submission in this regard, I would still find that Ms. Desormeaux's headaches constitute a 'disability' within the meaning of the Canadian Human Rights Act. It is undisputed that Ms. Desormeaux has suffered from chronic, debilitating headaches for many years. Whether these headaches are properly classified as migraines, or some other type of headache, is immaterial. Ms. Desormeaux's description of the symptoms, and the effect that these symptoms, as well as the necessary medication, have on her ability to function has not been challenged. It is clear that she has long suffered from a chronic headache condition that periodically causes her to become significantly incapacitated, and interferes with her ability to do her job. This, in my view, constitutes a 'disability' within the meaning of the legislation.

[14] The Applications Judge found, at paras. 85-86, that the Tribunal's finding on disability was unreasonable, mainly on the ground that "Dr. Meehan was qualified as an expert in family medicine with the proviso that she is not a neurologist", and "it is unreasonable to find that the opinion of Dr. Meehan should carry more weight than the opinion of a specialized physician, that is a neurologist". She concluded that there was no prima facie case to answer "as I am not satisfied that there is properly admissible evidence to support a finding of disability" (at para. 101).

[15] In my view, this conclusion was incorrect. Whether the standard of review for this mixed question of law and fact was reasonableness or patent unreasonableness, the Tribunal's decision on this issue was clearly one that deserved considerable deference. As the Supreme Court established in Granovsky v. Canada, [2000] 1 S.C.R. 703 at para. 34 and in City of Montreal, supra, at para. 71, disability in a legal sense consists of a physical or mental impairment, which results in a functional limitation or is associated with a perception of impairment. In light of this test, there was evidence before the Tribunal upon which it could reasonably find that there was a disability because of the headaches, whether they were migraine headaches, migraine/tension headaches or some other type of severe headache condition. The Report of Dr. Rabinovitch did not really conflict with the evidence of Dr. Meehan; it may have been less forceful and more tentative, but, in any event, the Tribunal was persuaded on all of the evidence that there was disability on the basis of the headaches. The Tribunal's conclusion was certainly a reasonable one based on all the evidence and should not have been upset on judicial review.

[16] On the matter of the comparator group, the Applications Judge found that the wrong comparator group was identified by the Tribunal; in any event, however, the error furnished no basis for judicial intervention, since the standard of review was reasonableness. On appeal, Counsel correctly devoted very little attention to this issue. Whichever comparator group was chosen, the conclusion that there was differentiation established in the treatment of the complainant would not be affected.

[17] Hence, prima facie discrimination being established, it was necessary to determine whether OC Transpo's standard of reasonable and regular attendance was a bona fide occupational requirement (BFOR). As the Tribunal correctly stated, the applicable three-stage test was set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at para. 54 ["Meiorin"]. To qualify as a BFOR, the employer must show that the standard was (1) adopted for a purpose rationally connected to the performance of the job; (2) adopted pursuant to an honest and good-faith belief; and (3) is reasonably necessary to the accomplishment of the legitimate work-related purpose. A standard is considered "reasonably necessary" if the employer can demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship on the employer.

[18] The Applications Judge did not deal with this issue, as she decided that there was no prima facie discrimination. The Tribunal, however, dealt with the matter at length and although it found in favour of OC Transpo on the first two stages of the test (rational connection and good faith), it held that the reasonable necessity of the standard had not been shown. The Tribunal concluded at para. 102 that OC Transpo had not established that "it would have suffered undue hardship if it had continued to employ Ms. Desormeaux". According to the Tribunal there were non-driving jobs available which could reduce the complainant's level of absenteeism somewhat, or she could have been deployed in the "spare board" assignment which would lessen the impact of her intermittent absences. Moreover, Ms. Desormeaux's future migraine-related absenteeism rate was estimated to be about 6.5 full days and 1.25 part days per year, well below the absenteeism rate of the top 25% of OC bus drivers. The Tribunal held that these accommodation alternatives were not even explored by OC Transpo prior to the termination of Ms. Desormeaux's employment.

[19] Counsel for OC Transpo challenged these findings on the appeal, relying in part on the contention that the complainant had not expressed a need for accommodation, which he claimed was her responsibility to do. The Tribunal correctly stated (at para. 110) the law on this question: the employee has a duty to bring to the attention of the employer the facts relating to discrimination, and to facilitate the search for accommodation, but the duty to originate a solution remains with the employer (Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 994-5). The Tribunal found that there was sufficient discussion with the employer on this issue to fulfill Ms. Desormeaux's duty of notification and facilitation with respect to accommodation (see Tribunal's findings at paras. 29 and 109-110). I am not persuaded that there was any error made by the Tribunal on this issue, let alone an unreasonable or patently unreasonable error.

[20] There were some other minor issues raised by OC Transpo, including the matter of the requirement of an independent medical examination, but I am not persuaded that any material errors were made on these issues so as to require this Court to intervene.

[21] There is nothing in the Tribunal's decision to require employers to indefinitely maintain on their workforce employees who are permanently incapable of performing their jobs. Nor are employers required to tolerate excessive absenteeism or substandard performance. On the unusual evidence in this case, this complainant is fully capable of doing her job, when she is not suffering from one of her periodic headaches. Moreover, her future rate of headache-related absenteeism is predicted to be at a level which her employer could easily accommodate without undue hardship. The employer has therefore merely been required to reasonably accommodate her as mandated by the Canadian Human Rights Act and according to the legal test of undue hardship established in Meiorin, supra.

[22] The appeal will be allowed, the decision of the Applications Judge will be quashed, and the Tribunal's decision of January 14, 2003 will be reinstated, with costs to Ms. Desormeaux both in this Court and the Federal Court of Canada.

"A.M. Linden"

J.A.

"I agree

J. Edgar Sexton J.A."

"I agree

B. Malone J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Appeal from an Order of the Federal Court dated December 23, 2004, Court File No. T-8-03

DOCKET: A-25-05

STYLE OF CAUSE: Francine Desormeaux v. City of Ottawa

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: September 20, 2005

REASONS FOR JUDGMENT BY: LINDEN J.A.

CONCURRED IN BY: SEXTON J.A.

MALONE J.A.

APPEARANCES:

Alison Dewar

Bijon Roy FOR THE APPELLANT

Stephen Bird

Caroline Richard FOR THE RESPONDENT

SOLICITORS OF RECORD:

Raven, Cameron, Ballantyne & Yazbeck LLP

Ottawa, Ontario FOR THE APPELLANT

Bird McCuaig Russell

Ottawa, Ontario FOR THE RESPONDENT

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