Ottawa, Ontario, June 21, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Canadian Human Rights Commission (the Commission), dated October 11, 2005, whereby the Commission dismissed the applicant's complaint, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the CHRA), on the basis that the evidence did not support the applicant's allegations, and because the evidence indicated that the respondent had accommodated the applicant's medical condition until it was no longer financially feasible to do so, given the overall reduction in the respondent's workforce.
FACTS
[2] The applicant worked for the respondent Air Canada from June 9, 1997 until April 29, 2003 when he was terminated.
[3] On September 3, 1999, there was a varsol spill in the workplace, which affected the performance of the applicant's duties as a mechanic.
[4] As of January 2000, the applicant was classified as a Class III temporary, signifying that he had an inability to work on a temporary basis. As per the respondent's sick leave policy, the applicant received long term disability benefits during this period.
[5] In May 2001, the applicant's status changed from an inability to work on a temporary basis to a temporary inability to perform his fully stated position.
[6] In July 2001, the applicant received correspondence from the respondent confirming his accommodation in the Technical Publications Department. The applicant performed clerical duties and was paid at his previous regular rate of pay as a mechanic.
[7] In April 2003, the respondent filed for protection under the Companies Creditors' Arrangement Act (the CCAA). Shortly thereafter, it announced the need to reduce costs by twenty-two percent (22%).
[8] At the end of April 2003, the applicant was notified that his temporary rehabilitation assignment could not longer be supported given the respondent's economic situation.
[9] On April 24, 2003, the respondent informed the applicant that due to the fact that he was taken off the temporary assignment known as "modified duties", he had two weeks to apply for a medical leave of absence under the Inability to Meet Medical Standards Policy without pay. He did not apply for such leave within the time allotted. Instead, he requested a one month extension to June 6, 2003 in order to contact his medical specialist and obtain legal advice.
[10] The respondent refused this request and by letter dated May 26, 2003, terminated the applicant's employment, effective April 29, 2003.
[11] The applicant filed a complaint with the Commission on July 10, 2003 alleging that he had been terminated from his employment as a result of a disability contrary to the CHRA.
[12] In accordance with section 43 of the CHRA, the Commission appointed an Investigator to review the applicant's complaint.
[13] On October 4, 2004, in response to the complaint, the respondent provided the Investigator with written submissions, which were followed by a reply from the applicant.
[14] On March 25, 2005, the Investigator requested additional information from the respondent which was provided on April 15, 2005.
[15] By letter dated July 21, 2005, the Commission notified the parties that the Investigator had completed her Report and had recommended that the Commission dismiss the complaint.
[16] In August and September 2005, both parties provided written comments on the Investigation Report as well as replies to each other's comments.
[17] On October 11, 2005, the Commission dismissed the applicant's complaint.
ISSUES
[18] The following points are in issue:
1. Did the Commission satisfy the requirements of procedural fairness in arriving at its decision to dismiss the applicant's complaint?
2. Was the investigation of the applicant's complaint insufficient and flawed to the extent that the decision constituted a violation of procedural fairness?
3. Did the Commission commit a reviewable error in dismissing the applicant's complaint upon concluding that the respondent had satisfied its duty to accommodate the applicant to the point of undue hardship?
ANALYSIS
Issue #1: Did the Commission satisfy the requirements of procedural fairness in arriving at its decision to dismiss the applicant's complaint?
[19] The applicant alleges that in dismissing his complaint without a hearing, the Commission denied him natural justice.
[20] The case law is well settled that decisions made by the Commission do not have to be made on a judicial or quasi-judicial basis and are subject only to the requirements of procedural fairness. When deciding whether a complaint should proceed to an inquiry before a tribunal, the Commission is essentially fulfilling a screening process. The Commission's role is to determine whether there is sufficient evidence for proceeding to the next stage. In carrying out such a screening, it is well established that there is no obligation to conduct a full hearing. "It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal": Syndicat des employés de production du Québec et de l'Acadie v. Canada(Human Rights Commission), [1989] 2 S.C.R. 879 at pp. 897-899, 899; Bell Canadav. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (F.C.A.) at paras. 30-37, 43-46.
[21] The applicant further submits that the Commission erred in basing its findings solely on the Investigator's Report. I disagree with the applicant.
[22] In Pathak v. Canada (Human Rights Commission), [1995] 2 F.C. 455 (F.C.A.), Justice MacGuigan held that it is only necessary for the Commission to consider the Investigator's Report, the representations of the parties and such other underlying material as the Commission considers necessary, in its discretion.
[23] Contrary to the applicant's allegation, the Commission did not rely exclusively on the Investigation Report. In its decision letter, the Commission wrote: "Before rendering their decision, the members of the Commission reviewed the [Investigator's Report] and any submission(s) filed in response to the report." Following the Court of Appeal's decision in Pathak, above, it cannot be said that this constitutes a breach of the rules of procedural fairness.
Issue #2: Was the investigation of the applicant's complaint insufficient and flawed to the extent that the decision constituted a violation of procedural fairness?
[24] The applicant submits that the Investigation Report was seriously flawed in terms of content and findings in that it did not provide a "fair and adequate" basis for the decision as the investigation was not thorough. The applicant raises two specific issues with regard to the Report: (i) the Investigator did not respond to the points raised in his August 4, 2005 comments in response; (ii) the Investigator failed to interview all of the witnesses, the names of which he provided.
[25] In order for an investigation to be considered "fair and adequate", it must satisfy at least two conditions: neutrality and thoroughness: Slattery v. Canada(Human Rights Commission), [1994] 2 F.C. 574 (F.C.T.D.) at para. 49. In the present case, the applicant takes issue only with the thoroughness of the investigation. In Boahene-Agbo v. Canada (Canadian Human Rights Commission) (1994), 86 F.T.R. 101 (F.C.T.D.), Justice Max Teitelbaum set out the relevant considerations in determining whether an investigation was thorough at pages 120-121:
In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interests in procedural fairness and the CHRC's interests in maintaining a workable and administratively effective system ...
Therefore, I must now determine whether in the case before me, sufficient thoroughness existed. As part of that determination I must be satisfied that the reports dealt with all of the fundamental issues raised in the applicant's complaint.
[26] In my view, the investigation report dealt with all fundamental aspects of the applicant's complaint, including:
· The respondent's inability to retain the applicant in his position of accommodation;
· The reason for the respondent's refusal to provide the applicant with an extension to apply for his leave under the inability to meet medical standards; and
· The grounds for the respondent's decision to maintain the termination.
[27] Therefore, I cannot conclude that the Investigation Report was not thorough.
[28] As for the witnesses provided by the applicant, the Investigator interviewed a number of these witnesses, including Jerry Moses, Evan Koundoutsikos, and Greg Niphakis. The Investigator further interviewed Suzanne Busat and Ross Rougeau, two names provided by the respondent.
[29] In the Investigation Report, the Investigator provides legitimate reasons why some of the applicant's other witnesses were not interviewed. For example, although attempts were made to communicate with Jose Faria, Sylvia Page and Clementine Brable, they were not successfully contacted. Moreover, I note that "[t]here is no obligation placed upon the investigator to interview each and every person suggested by the parties": Miller v. Canada(Canadian Human Rights Commission) (re Goldberg) (1996), 112 F.T.R. 195 (F.C.T.D.) at para. 10; Slattery v. Canada(Human Rights Commission), [1994] 2 F.C. 574 (F.C.T.D.) at para. 69.
[30] In both the applicant's written and oral submissions, I noted that he focused almost entirely on the Investigator's alleged failure to make sufficient inquiries into his medical condition in that she did not contact his attending physicians and did not review all of his medical records. For this reason, the applicant argued that the Investigation was flawed.
[31] The applicant's concerns in this regard, however, are really "much ado about nothing." Neither Air Canada nor the Commission disputed the applicant's medical condition, his inability to work in his previous position or the fact that he required accommodation. Therefore, these were immaterial to the complaint, a non-issue from the point-of-view of the Investigator and the Commission. Accordingly, in addition to the fact that the Investigator was not required by law to interview each of the applicant's attending physicians (see: Miller, above, and Slattery, above), from a practical point-of-view, such interviews were unnecessary as his medical condition was never questioned. In fact, the Investigation Report mentions his inability to work for medical reasons several times and clearly Air Canadawould not have gone to the lengths it did to accommodate the applicant with leave periods and reassignments if it had not been convinced of his inability to work.
Issue #3: Did the Commission commit a reviewable error in dismissing the applicant's complaint upon concluding that the respondent had satisfied its duty to accommodate the applicant to the point of undue hardship?
[32] This issue involves a review of the Commission's decision to dismiss the applicant's complaint under subsection 44(3) of the CHRA. In Gardnerv. Canada(Attorney General), 2005 FCA 284, (2005) 339 N.R. 91 (F.C.A.) the Court of Appeal confirmed that the applicable standard of review to such decisions is that of reasonableness simpliciter. "An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination": Canada(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 56.
[33] The applicant submits that the Commission erred in dismissing his complaint as the Investigator did not apply the proper test for undue hardship.
[34] The factors to be considered in assessing undue hardship were canvassed by Justice Wilson in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 at pp. 520-521:
I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of [page521] the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar -- financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.
[35] In Holmes v. Canada (Attorney General), (1997) 130 F.T.R. 251 (T.D.) aff'd, (1999) 242 N.R. 148 (F.C.A.), I identified the Central Dairy Pool, above, case, and held that in order to satisfy the duty to accommodate, an employer must demonstrate that genuine efforts have been made, short of "undue hardship". At paragraph 34, I made the following comments:
[I]t is my opinion that the the [sic] "undue hardship" standard does not require that an employer act as a placement officer or create a new position expressly suited for the disabled employee comprising new duties that were previously non existent and that do not suit its needs ... The employer's obligation is to make a genuine effort to accommodate an employee, efforts that are consistent with the type of work for which the worker was hired.
[36] In the final paragraphs of her analysis, the Investigator concluded as follows:
The evidence does not support the complainant's position that he was not accommodated by the respondent. Rather, the evidence indicates that the complainant was provided with an accommodated position in clerical work, for approximately two years, while in receipt of his machinist's salary. The evidence further indicates that the complainant was provided with a modified work schedule which increased over time.
The evidence does not support the complainant's position that his employment was terminated based on his disability. Rather, the evidence indicates that due to its filing for CCAA protection, the respondent could not continue to accommodate the complainant for non busy work, in a clerical position for which he appeared ill suited. In addition, at the time of his dismissal, the evidence indicates that the complainant could not return to his regular duties; this is because he could not be exposed to toxins, which the evidence indicates are pervasive in his original work site.
The evidence indicates that although the respondent attempted to extend its employment relationship with the complainant, he chose not to avail himself of this option and that he had the benefit of union representation in exercising this decision. The evidence does not support the complainant's position that the respondent applies its policies and/or programs in a discriminatory manner. Specifically, the evidence indicates with respect to its exercising its Leave of Absence Policy, the respondent is bound by the time constraints provided for in the Policy.
(Investigation Report, paras. 88-90).
[37] While the Investigator did not explicitly use the phrase "undue hardship", it is clear from the above paragraphs that she considered the respondent's accommodation of the applicant. The evidence was that the respondent had found alternate employment for the applicant when he was adamant that he could not return to his regular workplace. The applicant was accommodated in a clerical position in the Technical Publications Department from July 3, 2001 until his termination effective April 29, 2003. He was paid his previous mechanic's wages during this time. The evidence also showed that the respondent began to suffer a financial decline in July 2002, which resulted in a total reduction of its workforce. Finally, the evidence showed that the respondent was prepared to extend its employment relationship with the applicant through the "Leave of Absence - Inability to Meet Medical Standards" Policy. However, the applicant did not complete the form.
[38] I am satisfied that there was a clear and rational basis for the Commission's conclusion that the respondent did accommodate the applicant's medical condition, until it was no longer financially feasible to do so, given the overall reduction in the respondent's workforce. The Commission's decision was supported by the evidence before it. Accordingly, its decision should not be disturbed.
[39] For the above reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that this application for judicial review be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2021-05
STYLE OF CAUSE: George Grivas
and
Air Canada
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 14, 2006
REASONS FOR ORDER: TREMBLAY-LAMER J.
APPEARANCES:
| Mr. George Grivas
|
|
| Ms. Christianna Scott
|
SOLICITORS OF RECORD:
| Mr. George Grivas 10050 L'Acadie Blvd. Apt. 606 Montreal, Quebec H4N 3K6 |
|
| Air Canada Law Branch Air Canada Centre 1276 P.O. Box 7000, Station Airport Dorval, Quebec H4Y 1J2
|