Date: 20061221
Docket: T-274-06
Citation: 2006 FC 1541
Ottawa,
Ontario, the 21st
day of December 2006
Present:
The Honourable Mr. Justice de Montigny
BETWEEN:
PAUL
OUELLET
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In a
decision dated January
12, 2006, the
Canadian Human Rights Commission (the Commission) dismissed a complaint made by
Paul Ouellet against his employer, the Department of Human Resources and Social
Development Canada. Mr. Ouellet alleged being a victim of discrimination
because of his disability, contrary to section 7 of the Canadian Human
Rights Act, R.S.C. 1985, c. H-6 (the Act).
[2]
The
Commission ruled that the evidence uncovered in the course of its investigation
did not support the applicant’s allegations to the effect that the Department
had acted in a discriminatory manner toward him in the course of his
employment. In doing so, the Commission upheld the recommendation made by its
investigator to dismiss the complaint pursuant to paragraph 44(3)(b)
of the Act.
[3]
In
submitting this application for judicial review, Mr. Ouellet is asking that the
Commission’s decision be quashed on the ground that the investigation of his
complaint was not thorough. More specifically, he alleges that the investigator
did not question a key witness he identified and that she did not conduct any
analysis of the employer’s duty to accommodate. In addition, Mr. Ouellet is
asking this Court to return his complaint to the Commission with an order that
it be dealt with according to the reasons specified in the decision to be
rendered.
[4]
For the
reasons that follow, I conclude that this application for judicial review must
be dismissed. The applicant did not convince me that the Commission did not
respect the requirements of procedural fairness in handling his complaint.
FACTS
[5]
Mr.
Ouellet has been employed by the federal government since September 13, 1971.
He worked for the Department of Human Resources Development Canada until December 12, 2003, on which date his employment
was transferred to the Department of Social Development Canada following the
creation of this new administrative entity. He is employed on an indefinite
(permanent) basis at the PM-01 group and level.
[6]
The facts
on which this application for judicial review is based are complex, and the
versions differ somewhat. Considering that the allegations made by Mr. Ouellet
concern the way in which the investigation was conducted, I will restrict the
study of these facts to the ones most relevant for the purposes of this
application for judicial review.
[7]
Further to
a grievance filed by Mr. Ouellet in August 1996 in which he claimed to have
been sexually harassed, the parties reached a mediated agreement in 1998 under
the terms of which Mr. Ouellet was assigned to a PM-01 position in the
Human Resource Centre of Canada in Moncton.
It was agreed that either of the parties could terminate the employment
contract by giving notice beforehand. The employment contract was renewed twice.
[8]
In
February 2001, management of the Human Resource Centre of Canada decided not to
renew Mr. Ouellet’s assignment [translation] “because the complainant was
unable to function effectively in this position and was never able to do so in
spite of the monitoring, repeated feedback, continuous training and direct coaching
he was given” (Applicant’s Record, page 13).
[9]
Following
the non-renewal of his assignment, Mr. Ouellet was assigned to new duties at
the local shared services unit. Even though his duties were equivalent to those
of a lower-level, CR-05 position, the applicant continued to be paid at the
rate of his previous PM-01 classification. According to Mr. Ouellet, his new
duties were quite ordinary and involved preparing information kits and packing
them in boxes.
[10]
On January
28, 2002, both of Mr. Ouellet’s immediate supervisors met with him and advised
him that he had to work faster and double his daily production of information kits.
Mr. Ouellet felt intimidated and humiliated, and his physical health was
affected. In fact, he had to stop working for one week on his doctor’s
recommendation.
[11]
At a
second meeting, held on February 21, 2002, Mr. Ouellet’s union representative
advised both managers who were present that Mr. Ouellet had to be accommodated
and required adaptation measures because of the chronic post-traumatic stress disorder
from which he suffered. Accordingly, a third meeting was held on April 18,
2002. In order to better understand the applicant’s restrictions and special
needs, the Department requested that he undergo a functional and vocational
assessment. Mr. Ouellet and his union representative agreed to this request on
condition that Mr. Ouellet receive psychotherapy before undergoing the
assessment to improve his chances of succeeding. The Department did not object
to this.
[12]
Considering
the difficulties Mr. Ouellet had at work, his employer asked him to remain at
home until he could undergo the functional and vocational assessment. It should
be noted that Mr. Ouellet has been on paid leave since then, that is,
since February
21, 2002.
[13]
The
Department also agreed to pay the fees of the psychotherapist chosen by the
applicant. The contract with Dr. Frigault was extended twice on his
recommendation and at Mr. Ouellet’s request. In addition, because the psychotherapist’s
office is a three-hour drive from the applicant’s home, the Department agreed
to pay his travel and accommodation expenses when he had to go for his
treatments.
[14]
The
psychotherapy sessions were given by Dr. Frigault from October 2002 to
September 2003 on a weekly basis, with each session lasting approximately
four hours. Following a preliminary assessment, on November 1, 2002, Dr.
Frigault recommended that Mr. Ouellet undergo fifteen to twenty sessions of
psychotherapy. On February
19, 2003, Dr. Frigault
advised the Department that Mr. Ouellet was fit to return to work but stressed
the importance of continuing psychotherapy and developing a return-to-work plan
carefully tailored to the applicant’s situation. In a report dated May 27,
2003, Dr. Frigault outlined a six-step return-to-work plan.
[15]
On August 27, 2003, Mr. Ouellet, his union representative,
Dr. Frigault, and two employer representatives held a meeting to prepare the
applicant’s return-to-work plan. Disappointed with the turn the meeting was
taking, Dr. Frigault decided to leave during a break. In a letter dated
September 3, 2003, sent to the regional director of Human Resources
Development Canada, he explained his conduct as follows:
[translation]
. . . At this meeting, I was
disappointed to see the paternalistic and maternal attitude your employees had
towards Mr. Ouellet. I also noted the lack of adequate union representation at
this meeting. I am not only disappointed with the attitudes but especially
with . . . what they had my client endure after I left the meeting.
According to the employee in
question, for approximately two hours, they took turns subjecting my client to relentless
affective therapy in an attempt at calming and reassuring him after having
upset him with their interrogation.
At this meeting, I repeated on
several occasions that the approach used by your employees was inappropriate in
a return-to-work situation, but unfortunately I sensed that it would be better
if I left this meeting.
First of all, I must underline
the fact that Mr. Ouellet’s return to work must be a dignified and fair one
befitting an employee with more than 30 years of loyal service. He met all
the Department’s requirements and did not have any personality or cognitive dysfunctions
that would warrant the approach used.
They should simply give him
back his position in Pensions, as was previously agreed with the mediator, and
work should be done with the staff in this division so that they can take part
in his return to work. All harassment or abuse must in order for Paul Ouellet to
continue his career normally . . . .
Applicant’s Record, pages
186-187.
[16]
Of course,
the employer’s version differs considerably from that given by Dr. Frigault, as
is shown in a note on record written by one of the Department’s representatives
who attended the meeting (Applicant’s Record, page 328). However, there is no
need for me to discuss these contradictory points of view for the purposes of
this application for judicial review. In November 2003, the Department offered
the applicant a position as a client payment officer at the CR-05 level. In
answer, Mr. Ouellet explained in a letter dated November 26, 2003, [translation]
“that
accepting this position would not in any way lead to a successful or healthy
return to work” (Applicant’s
Record, page 226). Such would be the case, according to Mr. Ouellet, because he
would have to work under the supervision of someone who had a biased and
negative opinion of him.
[17]
On August
24, 2004, Mr. Ouellet filed a complaint with the Commission alleging that
Social Development Canada was discriminating against him in the course of
employment by refusing to accommodate his disability. It appears from this
complaint that Mr. Ouellet’s main criticism of the Department is the refusal to
let him return to work in spite of the recommendation made by Dr. Frigault.
The allegation reads as follows:
Human Resources Development Canada (HRDC), and/or its
successor(s) HRSDC/SDC, contrary to section 7 of the Canadian Human Rights
Act, have discriminated against me in an adverse differential manner by
failing to accommodate my disability – perception of mental disability – by
refusing to re-integrate me into the workforce contrary to the advice of the
psychologist it hired.
Applicant’s Record, page 20.
[18]
On October 6, 2004, the Commission forwarded Mr.
Ouellet’s complaint to representatives of the Department to obtain their reply.
On January 11, 2005, the reply was forwarded to the investigator appointed by
the Commission. Meanwhile, in December 2004, the Commission appointed Sylvie
McNicoll to investigate Mr. Ouellet’s complaint. However, it was investigator
Anick Hébert who took over in June 2005 and wrote the investigation report
dated September 19,
2005, after completing
the research and analysing the information.
THE IMPUGNED DECISION
[19]
Since the
Commission dismissed Mr. Ouellet’s complaint without giving any reasons, I must
consult the investigation report to understand the whys and wherefores of the
decision. In this case, once the report was completed, it was forwarded to both
parties so that they could submit to the Commission any observations they
considered appropriate before proceeding with the analysis of the case.
[20]
After
having forwarded to Mr. Ouellet a summary of the Department’s reply to his
complaint and having received additional comments from Mr. Ouellet, the
investigators questioned three Department representatives, as well as Mr.
Ouellet’s union representative. They also considered six detailed reports by Dr.
Frigault, which had been submitted by Mr. Ouellet. Finally, investigator Anick
Hébert contacted the Department to obtain additional details about Mr.
Ouellet’s attempts to return to work, as evidenced by the letter dated June 22,
2005, to Serge Viens, a Department staff relations adviser (Applicant’s Record,
pages 263-264 and 273-351).
[21]
After
having studied at length the facts giving rise to the complaint and the
arguments submitted by both parties, investigator Anick Hébert came to the
following conclusions:
[translation]
40. The evidence shows that as
soon as the respondent was advised of the complainant’s disability, the complainant
was asked to remain at home on a paid leave of absence until he could undergo a
functional and vocational assessment to measure his fitness for work. An
agreement was concluded between the complainant and the respondent to the
effect that the complainant would undergo psychotherapy before the assessment.
The respondent agreed to pay the fees for psychotherapy for the complainant, as
well as his travel and accommodation expenses. Following a request made by the
complainant’s therapist, the respondent agreed to pay for additional
psychotherapy sessions.
41. The evidence shows that
following the treatments, the complainant’s therapist declared him fit to
return to work. Accordingly, the respondent prepared a return-to-work plan.
Meetings were held with the complainant, and in August 2003 a position
classified CR-04 was offered to the complainant. The respondent promised to pay
the complainant at the PM-01 level. The complainant refused this position.
42. The evidence shows that in
November 2003 the respondent offered the complainant a position at the CR-05
level, but he refused it. In 2004, the respondent made new attempts at having
the complainant return to work, but it was to no avail, as the complainant refused
to co-operate with the respondent.
43. The evidence shows that
the complainant has been off work since February 21, 2002, and has been paid at the
PM-01 level since then.
On the basis of this analysis, the investigator recommended
that the Commission dismiss the complaint because [translation]
“the
evidence does not support the complainant’s allegation to the effect that the
respondent acted in a discriminatory manner in the course of employment by
treating him differently and by refusing to accommodate him because of his
disability”. It should be noted that this investigation report was forwarded to
the parties so that they could send in their written submissions to the
Commission before it rendered a final decision.
[22]
In his submissions
to the Commission dated November 4, 2005, Mr. Ouellet noted several
shortcomings in this report, particularly the lack of information about his
medical condition and the lack of an analysis of reasonable accommodation measures
to assist in his return to work. He also remarked that several potential
witnesses he had identified had not been questioned by the investigator. Among
these witnesses, he drew special attention to Dr. Frigault, who from his point
of view was a key witness because he played a critical role in his assessment, therapy,
and return-to-work program. Mr. Ouellet also noted that the investigator’s
analysis had shortcomings and completely endorsed the respondent’s position (Applicant’s
Record, pages 21-30). Finally, Mr. Ouellet argued that a mistake was made
during the investigation because his union representative at the time admitted
having erroneously stated that a concrete job offer had been discussed on August 27, 2003.
[23]
With
regard to the Department’s written submissions dated December 8, 2005, the
Department’s representatives stated that they agreed with the investigation
report and reiterated that at no time did Human Resources Development Canada or
Social Development Canada differentiate adversely in relation to the applicant on
a prohibited ground of discrimination. Quite the contrary, they were of the
opinion that serious attempts at accommodating the applicant had been made on
several occasions once the Department was aware of the diagnosis concerning Mr.
Ouellet’s state of health (Applicant’s Record, pages 31-33). Thus, they rejected
Mr. Ouellet’s claims about the subject under discussion at the meeting on August 27, 2003, and reaffirmed that negotiations
aimed at offering a position to the applicant did indeed take place. A position
was offered to the applicant in November 2003.
[24]
In its
decision dated January 12, 2006, the Commission approved the investigation
report and dismissed the applicant’s complaint under paragraph 44(3)(b)
of the Act.
ISSUES
[25]
This
application for judicial review essentially raises only one issue: Did the
Commission respect the requirements of procedural fairness applicable to this
case? More specifically, did the Commission err in not performing a detailed
and complete investigation of the applicant’s complaint in practice by failing
to question a key witness and by failing to consider the Department’s duty to
accommodate?
ANALYSIS
[26]
There is
no real disagreement between the parties about the applicable legal principles.
In this case, it is rather in the application they make of these principles
that their views diverge. I will therefore briefly outline the case law in such
matters before studying in more detail the arguments submitted by Mr. Ouellet
and those of the Attorney General of Canada.
[27]
First of
all, it should be noted that the Commission is not bound by an investigator’s
recommendations. However, if it adopts these recommendations without giving any
other details, the investigator’s report will be presumed, under subsection
44(3) of the Act, to constitute the Commission’s reasons for the decision. See for
example: Sketchley v. Canada (Attorney General), 2005 FCA
404 at paragraph 37; Syndicat des employés de production du Québec et de
l’Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R.
879 at paragraph 35; Bell Canada v. Communications, Energy and
Paperworkers Union of Canada, [1999] 1 F.C. 113 at paragraph 30 (F.C.A.);
and Leila Paul v. Canadian Broadcasting Corporation, 2001 FCA 93 at paragraph
93.
[28]
Accordingly,
if the investigation is found to be deficient in the way it was conducted or in
its conclusions, the Commission’s decision will also be considered to be deficient
and cannot stand, because it is flawed: see the decisions in Kollar v. Canadian
Imperial Bank of Commerce, 2002 FCT 848; Singh v. Canada
(Attorney General), 2002 FCA 247; and Slattery v. Canada (Human
Rights Commission), [1994] 2 F.C. 574 (F.C.), aff’d (1996), 205 N.R. 380.
[29]
It is also
settled law that the Commission must act fairly in handling the complaints it
receives. In the context of investigations, this duty of procedural fairness
dictates that two requirements be met: neutrality and thoroughness. These
requirements were developed by Nadon J., as he then was, in Slattery,
supra, and were subsequently confirmed on numerous occasions: see the
recent example of Gravelle v. Canada (Attorney General),
2006 FC 251, rendered by my colleague Mr. Justice Edmond Blanchard.
[30]
While a
certain degree of curial deference is required in the review of a decision not
to defer a complaint to the Canadian Human Rights Tribunal under paragraph
44(3)(b) of the Act, thus applying in such situations the standard of
reasonableness simpliciter, the same does not hold true when the
decision is challenged on the ground of procedural fairness. As the Supreme
Court of Canada noted at paragraph 100 in C.U.P.E. v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539, issues of procedural fairness
are questions of law, and accordingly no deference is required when such an
issue is raised: see also Sketchley at paragraph 53, supra; Gravelle,
supra, and Tahmourpour v. Canada (Solicitor General), 2005
FCA 113.
[31]
In this
case, the applicant does not criticize the investigators for their lack of
neutrality, that is to say, their partiality, but rather for their lack of
thoroughness in conducting the investigation, which thus resulted in a
superficial and incomplete report. On this point, in his memorandum, the
applicant cites the following excerpt from the decision of Nadon J. in Slattery
at pages 600 and 601:
Deference must be given to administrative decision-makers to assess
the probative value of evidence and to decide to further investigate or not to
further investigate accordingly. It should only be where unreasonable omissions
are made, for example where an investigator failed to investigate obviously
crucial evidence, that judicial review is warranted
. . .
In contexts where parties have the legal right to make submissions
in response to an investigator's report, such as in the case at bar, parties
may be able to compensate for more minor omissions by bringing such omissions
to the attention of the decision-maker. Therefore, it should be only where
complainants are unable to rectify such omissions that judicial review would be
warranted. Although this is by no means an exhaustive list, it would seem to me
that circumstances where further submissions cannot compensate for an
investigator's omissions would include: (1) where the omission is of such a
fundamental nature that merely drawing the decision-maker's attention to the
omission cannot compensate for it; or (2) where fundamental evidence is
inaccessible to the decision-maker by virtue of the protected nature of the
information or where the decision-maker explicitly disregards it
See also to the same effect Sketchley
at paragraph 38, supra.
[32]
Case law
has many examples of situations in which investigations were considered
deficient because of a lack of thoroughness. The failure to question one or
several key witnesses who would have had a fundamental impact on the resolution
of the initial complaint and the failure to deal with an important aspect of
that complaint were considered by this Court and by the Federal Court of Appeal
as being breaches of the duty of procedural fairness: Kollar at
paragraph 39, supra; Thamourpour at paragraph. 40, supra; and
Grover v. Canada (National Research Council), 2001 FCT 687.
[33]
What is
the situation in this case? The applicant claims that the fact that Dr.
Frigault was not questioned is a major omission that vitiates the results of
the investigation and, consequently, the Commission’s decision which is
challenged herein. Not only did he conduct an assessment of Mr. Ouellet
and give him psychotherapy, he also outlined a return-to-work plan and attended
the meeting on August
27, 2003, the
goal of which was to plan Mr. Ouellet’s return to work. Accordingly, he was the
person in the best position to explain how the employer’s approach did not meet
Mr. Ouellet’s needs, if we accept his lawyer’s submissions.
[34]
With
respect, I cannot accept this argument. When an investigation is conducted, all
the relevant evidence must be considered. In the case at bar, I am of the
opinion that the investigator complied with this requirement. She read all of
Dr. Frigault’s letters and restated their contents in her report, even citing
extensive excerpts. Accordingly, the Commission was well aware of Dr. Frigault’s
position and was therefore in a position to render an enlightened decision on
this point.
[35]
Moreover,
Mr. Ouellet had the chance to respond to the investigator’s report and explain
his concerns in connection with the investigation. In fact, he took this opportunity
and forwarded 10 pages of submissions to the Commission. In doing so, he
repeated Dr. Frigault’s findings and claimed that the recommendations he made
to accommodate his disability and facilitate his return to work were not
followed. Accordingly, the Commission had all the information it needed to make
a fair and enlightened decision in the circumstances.
[36]
Mr.
Ouellet submitted that Dr. Frigault could have explained how the Department’s
approach did not meet his needs and could have shed light on the disagreement
with his employer about the return-to-work measures. However, I cannot see what
Dr. Frigault could have added to what was already mentioned in his reports. It
is clear from his letter dated September 3, 2003, an extract of which I cited at
paragraph 14 of these reasons, that pursuant to his return-to-work plan, he
wished to continue to give psychotherapy to Mr. Ouellet and encouraged the
Department to give the applicant another position at the PM-01 level. All this
information was already included in the investigation report, which included
the respective positions of the union representative and the Department.
[37]
We must not
lose sight of the fact that what the investigator and, ultimately, the
Commission had to decide was not how Mr. Ouellet was to return to work and in
what position, but whether the complaint should be referred to the Tribunal on
the ground that the evidence supported the allegation of discrimination and a
refusal to accommodate. Considered from this point of view, the investigation
report was detailed and complete and contained all the information required for
the Commission to render a decision.
[38]
The
applicant also criticized the investigator for not having examined the main
issue of his complaint, that is to say, the matter of whether the Department
had properly accommodated the applicant by preparing a return-to-work plan that
met his needs. In support of his argument, he submits that the investigation
record did not contain any document showing the Department had prepared a
return-to-work plan and that the investigator did not do a thorough job, having
failed to question the employer’s witnesses about their return-to-work plan. In
addition, the applicant states that the investigation report did not contain
any analysis of the employer’s duty to accommodate or of the return-to-work
plan proposed by the employer.
[39]
Once
again, I am not satisfied by this argument. The issue was not whether the
Department’s return-to-work plan was in compliance with Dr. Frigault’s
recommendations. Ultimately, it was up to the Department to determine the best
way to have Mr. Ouellet return to work, relying on Dr. Frigault’s
recommendations for inspiration, of course. In this case, what the investigator
had to consider, and what the Commission had to decide, was whether the
employer had fulfilled its duty to accommodate.
[40]
On this
point, the investigator’s report appears to me to be complete. She explained
all the measures taken by the employer to facilitate Mr. Ouellet’s return to work:
a paid leave of absence; the payment of fees for assessment and psychotherapy,
as well as Mr. Ouellet’s travel expenses; the extension of Dr. Frigault’s
contract, twice; and an offer of employment made to the applicant to ensure his
return to work.
[41]
It is
interesting to note that, in his report filed with the Department in
February 2003, Dr. Frigault mentioned being of the opinion that Mr.
Ouellet was fit to return to work and added that he should continue receiving
psychological treatments to ensure the success of his return. The employer
seems to have taken this recommendation into consideration. It was only on the
issue of the means that the employer disagreed with Dr. Frigault, insofar as
the employer was of the view that the psychotherapy required by the applicant
should be paid from now on under the Public Service Health Care Plan or the Employee
Assistance Program.
[42]
The
investigator also noted the concerns mentioned by Mr. Ouellet and his
psychologist about the return-to-work plan proposed by the respondent. The
investigator even contacted the Department to obtain more information about the
return-to-work plan and the reasons why it did not comply with Dr. Frigault’s
recommendations (letter from investigator Anick Hébert to Serge Viens, dated June 22, 2005, Applicant’s Record, pages
263-264). Finally, she carefully dealt with the applicant’s complaint without
avoiding the fundamental issue of accommodation and mentioned all the relevant
facts in her report.
[43]
From the moment
she concluded that the applicant refused to co-operate with the employer, she
was not required to take her analysis any further. Her role was not to choose
the best way of having Mr. Ouellet return to work, but rather to determine if
the evidence established that the Department did not fulfil its duty to
accommodate. Considered from this point of view, the investigator’s report was
thorough and gave the Commission relevant information allowing it to rule on
Mr. Ouellet’s initial complaint while respecting the principles of procedural
fairness as prescribed by the decisions rendered under paragraph 44(3)(b)
of the Act. In endorsing an investigation report that was free of any
procedural irregularities, the Commission rendered a decision that is not open
to judicial review by this Court.
[44]
For these
reasons, the application for judicial review is dismissed with costs to the respondent
according to the centre column of Tariff B of the Federal Courts Rules.
JUDGMENT
THE COURT DISMISSES the application for judicial
review, with costs to the respondent according to the middle column of Tariff B
of the Federal Courts Rules.
“Yves
de Montigny”
Certified
true translation
Michael
Palles
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