Date: 20040421
Docket: T-1504-03
Citation: 2004 FC 588
Montréal, Quebec, April 21, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ALY SHAKER
Applicant
and
CANADA POST
CORPORATION (CPC)
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Canadian Human Rights Commission (the CHRC), dated July 30, 2003, dismissing the applicant's complaint under paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act).
[2] In 1988, the applicant had a discectomy at the L5-S1 level of his spinal column.
[3] In 1993, he was hired to work as a casual employee for the respondent.
[4] On September 7, 1997, the applicant suffered a work-related injury at the respondent's place of business and the Commission de la santé et de la sécurité du travail (CSST) accepted a diagnosis of an L5-S1 herniated disk.
[5] He was absent from work for more than two years, until December 6, 1999. Upon his return, he was restricted by permanent functional limitations preventing him from performing all of the tasks that a casual employee does for the respondent.
[6] The parties and the CSST agreed that "coding clerk" work would be appropriate given the applicant's functional limitations. He has held this position since December 7, 1999.
[7] On May 14, 2000, the applicant learned that the respondent had appointed employees with the same status as his to regular part-time positions. On May 31, 2000, in response to the representations by the applicant, the respondent retroactively made him a regular part-time employee. As such, he had to work 28 hours per week. However, given his functional limitations and that there was less "coding" work, the respondent, in a letter to the applicant on June 9, 2000, proposed that he do manual labour to complete his hours, on condition that he obtain a medical certificate.
[8] On June 13, 2000, the applicant's doctor stated that he could only carry out "coding" duties.
[9] In a letter dated June 19, 2000, the respondent explained to the applicant that there was no "coding" work on weekdays and that it could only offer him work on Saturdays and Sundays.
[10] The applicant contested the letters dated June 13 and 19, 2000, by filing a grievance.
[11] On October 30, 2000, he filed a complaint with the CHRC, alleging that the respondent discriminated against him by treating him differently and refusing to accommodate his disability, contrary to section 7 of the Act.
[12] The CHRC suspended dealing with the complaint in accordance with paragraph 41(1)(a) of the Act so that the parties could exhaust the grievance procedures in connection with the grievance filed by the Canadian Union of Postal Workers (CUPW) on behalf of the applicant.
[13] On August 19, 2002, the parties were informed that the CHRC would resume dealing with the applicant's complaint.
[14] During its investigation, the CHRC learned that the CUPW and the respondent had entered into an agreement on October 11, 2002, which provided that the respondent would pay $12,837.24 to the applicant in final settlement of the grievance, but without admission by the respondent on the merits of the case. The applicant was not satisfied with the settlement and asked the CHRC to continue its investigation.
[15] The CHRC investigator completed her report on January 14, 2003. She recommended to the CHRC that the applicant's complaint be dismissed.
[16] On July 30, 2003, the CHRC dismissed the applicant's complaint pursuant to paragraph 44(3)(b) of the Act.
[17] In matters involving findings of fact, this Court cannot substitute its opinion for that of the CHRC unless the applicant can show that the decision under review was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it, which he failed to show.
[18] The investigator noted that the respondent confirmed that it had fulfilled its duty to accommodate the applicant when it appointed him to a regular part-time position retroactive to May 14, 2000. Similarly, she considered that the evidence did not support the applicant's allegation that the respondent had restricted his hours of work because of his disability since, indeed, the mail coding volume was very low during this period and the situation affected other employees. The facts also establish that the respondent tried to accommodate the applicant by offering him a position as a mail sorting clerk, on condition that he obtain a medical certificate certifying that he could do this work. She also observed that the employer did not disregard the medical certificate stating that he could not do this work. Finally, the evidence in the record shows that the CUPW obtained settlement in the applicant's favour, giving him damages that even his union representative considered were beyond what he could have obtained in a grievance adjudication.
[19] Under the circumstances, the CHRC found that the applicant's complaint was unfounded and dismissed it. Given the evidence in the record, I am unable to find that this decision is unreasonable.
[20] For these reasons, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
"Danièle Tremblay-Lamer"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1504-03
STYLE OF CAUSE: ALY SHAKER
Applicant
and
CANADA POST
CORPORATION (CPC)
Respondent
PLACE OF HEARING Montréal, Quebec
DATE OF HEARING: April 19, 2004
REASONS FOR ORDER AND ORDER: TREMBLAY-LAMER J.
DATE OF REASONS: April 21, 2004
APPEARANCES:
Aly Shaker FOR THE APPLICANT
(representing himself)
Luc Jodoin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jodoin Santerre FOR THE RESPONDENT
Montréal, Quebec