Date: 20061129
Docket: T-1256-05
Citation: 2006 FC 1441
Ottawa, Ontario, November 29,
2006
PRESENT: THE HONOURABLE MR. JUSTICE ROBERT L. BARNES
BETWEEN:
BARBARA
J. KEYES
Applicant(s)
and
ATTORNEY GENERAL OF CANADA
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
proceeding arises from a dispute between the Applicant, Barbara Keyes, and her
employer, the Canada Border Services Agency (CBSA). Ms. Keyes is a long
standing employee of the CBSA having been hired as a Customs Inspector in the
Windsor-St. Clair region in 1980.
[2]
In
early 2001 Ms. Keyes was diagnosed with breast cancer. She was treated with
surgery and chemotherapy and, by all accounts, her recovery was protracted and
difficult. Until May, 2003 Ms. Keyes received disability insurance benefits.
At that point she had recovered sufficiently to return to work on an
accommodated basis.
[3]
As
a temporary measure and by agreement, the CBSA placed Ms. Keyes into an
administrative position in its Windsor Verification and Services Office. After
completion of that posting in late February, 2004, the parties were unable to
reach an agreement with respect to a permanent placement and that impasse has
continued to this day.
[4]
Suffice
it to say that the offers by the CBSA for permanent employment were rejected by
Ms. Keyes on the grounds that they failed to sufficiently accommodate her
ongoing disability or did not account for the risk of a reoccurrence of her
cancer through exposure to pollutants. In turn, Ms. Keyes’ suggestions to the
CBSA for employment were rejected as being either unsuitable or
administratively untenable.
[5]
Further
difficulties arose between the parties concerning the completion of a medical
assessment by Health Canada at the request of the CBSA. Because Ms.
Keyes insisted on having her lawyer attend with her for the medical
appointment, the Health Canada physician refused to proceed. The parties were
then unable to reach an agreement to complete an independent medical assessment
and, as far as I can tell from the Record, no such assessment has ever been
carried out.
[6]
On
March 25, 2004 Ms. Keyes filed a complaint against the CBSA with the Canadian
Human Rights Commission (Commission) alleging discrimination on the basis of
disability. She contended that the CBSA had failed to offer medically
acceptable accommodation and she was thereby denied continued employment.
[7]
In
accordance with its usual practices, the Commission commenced an investigation
of Ms. Keyes’ complaint. The assigned Investigator conducted interviews, reviewed
the documentary evidence and wrote a detailed report which contained the
following findings and recommendation:
16.
On
July 19, 2004 the respondent forwarded to the complainant a list of seven
independent medical examiners who are located in the Southern Ontario area. The
goal was to receive an independent medical evaluation of the complainant’s
condition and accommodation requirements.
17.
The
complainant states that in reviewing this list she found none that were
acceptable. She further states that any medical exam performed be done so with
the presence of her legal advisor. She is presently in the act of compiling
her own medical examiner list for presentation to the respondent. The
respondent states it will take the list under advisement. If a mutually acceptable
medical examiner [is] located who does not reside in the Windsor area they
will provide transportation costs for her, but not for her lawyer.
18.
The
respondent states that it would be reasonable to request that the complainant
provide a Functional Analysis of her present physical abilities and any
relevant information of a psychological nature in order for them to adequately
find an accommodated position for her.
19.
The
evidence indicates that the respondent provided an interim accommodation for the
complainant from June 15, 2003 until February 23, 2004. This was accomplished
through another branch of the CBSA in an attempt to clarify the accommodation requirements
of the complainant. However, clarification of the complainant’s accommodation needs
was not fulfilled because an independent medical assessment was not conducted
during the interim position’s term.
[20.] The
respondent also offered permanent accommodation at two locations, both rejected
by the complainant.
[21.] The
respondent made several attempts to fulfill [its] duty to accommodate the [complainant]
and remains co-operative in this regard.
[22.] It
is recommended, pursuant to subsection 44(3)(b) of the Canadian Human Rights
Act that the Commission dismiss the complaint.
·
The
evidence does not support the complainant’s allegations.
[8]
The
Commission invited Ms. Keyes and the CBSA to respond to the Investigator’s Report
and each of them provided detailed submissions. The Commission reviewed the Investigator’s
Report and the parties’ responses and dismissed Ms. Keyes’ complaint on the
same basis as the Investigator had recommended, that is, because “the evidence
[did] not support the complainant’s allegation”. It is from this decision by
the Commission to dismiss the complaint that Ms. Keyes brings this application
for judicial review before the Court.
Issues
1.
Having
regard to the issues raised, what standard of review applies?
2.
Did
the Commission err by failing to provide sufficient reasons for its decision to
dismiss the complaint?
3.
Did
the Commission err in its assessment of the duty to accommodate?
Standard of Review
[9]
The
first issue raised by Ms. Keyes is concerned with the content of the duty of
fairness to give reasons. Because this is a question of procedural fairness,
it is not the subject of a pragmatic and functional analysis and the standard
of review is always correctness: see Ellis-Don Ltd. v. Ontario (Labour
Relations Board), [2001] S.C.J. No. 5, [2001] 1 S.C.R. 221, 2001
SCC 4 at para. 65.
[10]
Ms.
Keyes also contends that the Commission erred in its assessment of whether the
employer fulfilled its duty to accommodate. This is a question of mixed fact
and law and, in making the determination, the Commission is entitled to some
judicial deference. Whether the standard of review is one of reasonableness
(see Gardner v. Canada (Attorney General), [2005]
F.C.J. No. 1442, 2005 FCA 284 at para. 21) or, possibly, patent
unreasonableness (see Hutchinson v. Canada (Minister of
the Environment), [2003] 4 F.C. 580, [2003] F.C.J. No. 439, 2003
FCA 133 at para. 67) is not necessary for me to decide. Whatever standard is
applicable, I am satisfied that the Commission made no arguable error in its
treatment of this issue.
Did the Commission err
by failing to provide sufficient reasons for its decision to dismiss the
complaint? Did the Commission err in its assessment of the duty to
accommodate?
[11]
Ms.
Keyes does not disagree that the Investigator’s Report can be taken to be a
constituent part of the Commission’s decision where the findings and
recommendation are simply adopted by the Commission: see Sketchley v. Canada (Attorney
General),
[2005] F.C.J. No. 2056, 2005 FCA 404 at para. 37. She argues, however, that,
in her case, the Investigator’s Report failed to meet the duty to provide
meaningful reasons because its conclusion is not supported by any evidentiary
analysis. For this point, she relies upon cases like Via Rail Canada Inc.
v. National Transportation Agency, [2001] 2 F.C. 25, [2000] F.C.J. No. 1685
(F.C.A.) and Kalin v. Ontario College of Teachers (2005), 75 O.R. (3rd)
523, [2005] O.J. No. 2097 (D.C.) at paras. 45, 58 and 59.
[12]
There
are fundamental weaknesses to Ms. Keyes’ argument. The authorities which
discuss the Commission’s duty to give reasons for its screening decisions have
not imposed a fixed or rigorous standard: see Gardner, above, at
paras. 23-31 and Johnson v. Maritime Telegraph and Telephone Co., [2004]
F.C.J. No. 1171, 2004 FC 951 at para. 37. I do not read those authorities as
going so far as to say that the Commission never has a duty to give reasons for
its dismissal decisions at the screening stage. However, the Gardner
decision, above, holds that, where a complainant has been intimately involved
in the investigation process and thereby understands or has the means to
understand the basis of the screening decision, no breach of the duty of
fairness will arise from the provision of a conclusory or “laconic” decision –
even where the Commission rejects the recommendation of the Investigator: see Gardner
at para. 28.
[13]
In
Gardner, above, the
Court drew a reasonable inference that the Commission’s decision to dismiss the
complaint was based on its acceptance of the employer submissions in response
to the Investigator’s Report and the complainant was, accordingly, not
disadvantaged. Ms. Keyes contends, however, that she is at a
disadvantage because the Investigator’s Report lacks reasoning for its
conclusion. She says that she does not understand the basis for the dismissal
recommendation.
[14]
There
is something to be said for avoiding the generic phrasing used here by the
Investigator and repeated by the Commission that “the evidence [did] not
support the complainant’s allegations”. In this situation the phrase is unduly
vague if not potentially misleading. Nevertheless, the basis for the
Investigator’s recommendation is simple enough to understand from a careful
review of his report. As in the Gardner case, above, there is only
one reasonable inference to take from the Investigator’s review of the evidence
– that is, that the CBSA’s efforts to accommodate Ms. Keyes’ disability had
been reasonable but that the process had broken down before it was complete.
It is also apparent that the Investigator believed that the CBSA’s requests for
medical and functional capacity evaluations were reasonable and necessary to
advance the accommodation process. Those were reasonable conclusions to draw
from the evidence placed before the Investigator and, therefore, are not open
to challenge on judicial review.
[15]
I
am satisfied that the Commission’s screening decision was sufficient to inform
Ms. Keyes and her counsel of its reasons for the dismissal of her complaint.
Indeed, it is difficult to see how any other conclusion could have been reached
by the Commission on the facts of this case.
[16]
The
CBSA remained open to further dialogue to advance the accommodation process but
sought its own medical assessment to better understand Ms. Keyes’ employment
limitations. That request remained unresolved and, until it was resolved, it
was premature to conclude that the CBSA had failed to accommodate. It stands
to reason that the Commission did not err in failing to accept Ms. Keyes’
argument that the CBSA had breached its legal obligation to accommodate. There
was simply no basis in the evidence for proceeding to the next stage: see Syndicat
des employés de production du Québec et de l'Acadie v. Canada (Human
Rights Commission), [1989] 2 S.C.R. 879, [1989] S.C.J. No. 103 at
para. 27.
[17]
In
the hope that the parties will now work together to find suitable accommodated
employment for Ms. Keyes, I will add a few observations about what appears to
have brought them to this point.
[18]
A
careful reading of the correspondence exchanged from time to time between the
parties leaves the impression that neither party fully appreciated the
legitimate concerns of the other. It is possible that some of these
areas of apparent misunderstanding arose because of Ms. Keyes’ insistence that
the CBSA communicate with her solely through the union. In any event, the
parties took some adversarial postures which may not have been warranted and
which appear to have made the search for reasonable accommodation unnecessarily
difficult. One example of this involves Ms. Keyes’ refusal to accept either of
the two offered positions for permanent employment based on her belief that the
working conditions might exceed her capacities and that the air quality at
those work sites was at least suspect. Although the CBSA later confirmed that
the offered positions would be limited to administrative duties nothing seems
to have been done to formally alleviate the concerns of Ms. Keyes and her
physician about the prevailing air quality. The CBSA stated that it had never
had a workplace complaint on that issue but, in the face of Ms. Keyes’
understandable worry, some environmental testing might well have been
appropriate. On the other hand, Ms. Keyes’ insistence that her lawyer attend
with her for the scheduled Health Canada medical assessment along with her
subsequent unwillingness to accept appointments with any of the seven other
CBSA recommended physicians seem, on their face at least, unduly contentious.
Indeed, the request by the CBSA for Ms. Keyes to attend for a medical
assessment is understandable given the adversarial tone and limited content of
the medical reports authored on her behalf by her family physician.
[19]
The
fact is that both the employer and the employee in circumstances such as this
have a mutual responsibility to find a suitable workplace accommodation. To do
that they need to work together. In very few cases will there be a perfect
solution but in many there will be an acceptable one. The CBSA has stated on
the Record in its submissions sent to the Commission and before the Court that
it continues to be open to employment modifications. That stated willingness
by the CBSA to continue to search for appropriate employment accommodation was
a significant factor in the recommendation by the Commission’s Investigator to
dismiss Ms. Keyes’ complaint.
[20]
The
CBSA appears to be willing to find a “permanent solution” subject to the
reasonable requirement that Ms. Keyes participate in an independent medical
assessment. Accordingly, there is no reason to think that the parties to this
disagreement cannot still find a workable solution provided that some effort is
taken by both to re-establish the degree of trust and goodwill that is required
in the circumstances.
[21]
Neither
party requested costs against the other and, in those circumstances, no costs
are ordered.
JUDGMENT
THIS COURT ADJUDGES that this
application is dismissed without costs.
“ R.
L. Barnes ”
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