Date: 20060224
Docket: T-2232-04
Citation: 2006 FC 255
Ottawa, Ontario, February 24, 2006
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
MARIE-CLAIRE COUPAL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicant, Marie-Claire Coupal, has worked as a Customs Officer since 1986. Following a change in legislation affecting the duties of Customs Officers, Ms. Coupal's employer, the Canada Customs and Revenue Agency (the CCRA), implemented a training program which included a physical fitness component. For medical reasons Ms. Coupal was unable to meet the physical fitness requirements. To accommodate her, the CCRA maintained Ms. Coupal in her position as a Customs Officer with the same compensation and benefits, but with restricted duties.
[2] Ms. Coupal filed a complaint with the Canadian Human Rights Commission (the Commission) alleging that the physical fitness requirement discriminated against her and others on the basis of age and disability. After conducting an investigation, the Commission dismissed her complaint. In this application for judicial review, Ms. Coupal seeks to have the Commission's decision quashed and her complaint reconsidered by the Commission.
2. Facts
[3] The Applicant began her employment with the CCRA in 1978 as a Customs Clerk. In 1986, she became a Customs Officer. I note that Customs Officers are now employees of the Canada Border Services Agency. However, for the purposes of this application for judicial review, the Applicant's employer will be referred to as the CCRA.
[4] On May 12, 1998, Parliament passed Bill C-18 - an Act to Amend the Customs Act - which expanded the scope of Customs Officers' powers to enforce Criminal Code violations. In response, the CCRA updated the job descriptions of Customs Officers to reflect the Officer Powers. The CCRA also implemented an Officer Powers Training Program, which includes a Use of Force training component and a Classroom component. The Use of Force training requires Customs Officers to meet a physical fitness standard. The CCRA required that all Customs Officers complete the Program within two years and become qualified as "designated officers" who can enforce the Criminal Code, unless they are otherwise accommodated.
[5] Because of her medical condition - limited mobility in her wrists - the Applicant could not complete the Use of Force training. The CCRA offered the Applicant permanent accommodation at her current port (Windsor-St. Clair Division), in which the Applicant's compensation and benefits remained the same. The Applicant retained most of her duties, except that she was no longer permitted to work in the Secondary Examinations Area or conduct secondary screening interviews.
[6] The Applicant filed a complaint against the CCRA with the Commission on July 2, 2003 (File No. 20030553), alleging discrimination in employment contrary to sections 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act). Section 7 prohibits adverse differentiation in employment in relation to an employee on a prohibited ground of discrimination. Section 10 deems as discriminatory a practice or policy which "deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination".
[7] The Applicant claims that the mandatory requirement that Customs Officers complete the "Use of Force" component of the Officer Powers Training Program (the Policy) is discriminatory on the grounds of age and disability. She alleges that the Policy imposes differential treatment on older employees and on employees with disabilities, and that it also restricts and denies employment opportunities to the Applicant and others in a similar situation. In her complaint, the Applicant states that the Policy limits her career opportunities as she will "not have the training or experience needed to advance".
[8] The Commission conducted an investigation into the Applicant's complaint pursuant to section 43 of the Act. On May 2, 2004, the Investigator released her report, recommending that the Applicant's complaint not be referred to the Canadian Human Rights Tribunal (the Tribunal) on the basis that the evidence did not support the Applicant's complaint. The Applicant was given the opportunity to respond to the report, as was the CCRA, before the Commission made its decision with respect to the complaint. Both the Applicant and the CCRA made submissions.
[9] In its November 18, 2004, decision, the Commission accepted the recommendation of the Investigator and dismissed the Applicant's complaint, pursuant to paragraph 44(3)(b) of the Act.
[10] The Applicant filed a notice of application for judicial review on December 17, 2004.
3. The Commission's Decision
[11] The Commission had the following documents before it in making its decision:
1) the Applicant's complaint form and particulars of the complaint;
2) the Investigator's report dated May 2, 2004;
3) the Applicant's submissions in response to the report;
4) a letter from Barbara Hébert to Biba Milinkovich conveying the CCRA's decision not to hire Ms. Milikovich for a position in International Mail Operations because she could not complete the Use of Force training due to her medical condition;
5) the CCRA's response to the Applicant's response to the Investigator's report; and
6) the chronology of steps taken during the Commission's investigation of the Applicant's complaint.
[12] In finding that "the evidence does not support the complainant's allegations", the Commission adopted the reasoning of the Investigator who came to the same conclusion. Although the Commission indicated in its decision letter that it considered the submissions in response to the Investigator's report, given the brevity of the Commission's decision, its reasons for decision must be taken to be those in the Investigator's report. In Sketchley v. Canada (Attorney General), 2005 FCA 404 at paragraph 37, the Federal Court of Appeal held that for the purpose of a screening decision under subsection 44(3), the Investigator's report can be held as constituting the Commission's reasons:
The investigator's Report is prepared for the Commission, and hence for the purposes of the investigation, the investigator is considered to be an extension of the Commission (SEPQA, [Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879] at para. 25). When the Commission adopts an investigator's recommendations and provides no reasons or only brief reasons, the Courts have rightly treated the investigator's Report as constituting the Commission's reasoning for the purpose of the screening decision under section 44(3) of the Act (SEPQA, supra at para. 35; Bell Canada v. Communications, Energy and Paperworkers Union of Canada (1999) 167 D.L.R. (4th) 432, [1999] 1 F.C. 113 at para. 30 (C.A.) [Bell Canada]; Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47, 2001 FCA 93 at para. 43 (C.A.)).
It is not disputed by either party that the Commission's reasons for dismissing the Applicant's complaint at the screening stage can to be taken as the same as the Investigator's reasons. I now summarize the Investigator's report and her recommendation.
[13] The Investigator began by summarizing the Applicant's and the CCRA's positions with respect to the complaint and setting out the legislative change that led to the CCRA implementing the Policy. The Investigator noted the Applicant's specific concerns with the Policy and its impact on her employment opportunities. The Investigator then reviewed the CCRA's reply to the complaint noting that the Policy is necessary to ensure employees can carry out their new functions "safely, responsibly and effectively". Included in the Investigator's report is a brief description of the findings of Dr. Janice Deakin, an expert in the field of physical standards hired by the CCRA to evaluate the necessity of the "Use of Force" training component. In her opinion, screening was necessary to ensure that individuals had the physical capacity to perform their jobs as Customs Officers, and the Use of Force training met the physical standard required for Customs Officers' jobs.
[14] The Investigator then set out how the CCRA accommodates employees unable to complete the Program and the measures taken to accommodate the Applicant. In discussing the Policy in relation to it being a "bona fide occupational requirement" (BFOR), the Investigator identified the three alternatives to the Policy advanced by Applicant, such as grandfathering existing Customs Officers from having to complete the Use of Force training. The Investigator recorded the CCRA's position that the alternatives suggested would not be appropriate and that, in particular, having two job descriptions - one for "designated" officers who meet the Use of Force training requirement, and one for "non-designated" officers - would be "operationally unfeasible" because of the need to rotate officers through various duties.
[15] The Investigator then addressed the Applicant's allegation that the Policy is discriminatory on the basis of age. The Investigator concluded that the Applicant had not provided any evidence indicating persons over the age of 50 - the Applicant was 51 at the time she filed the complaint - had a higher rate of failing the Use of Force training component than those under 50. Absent statistical data to the contrary, the Investigator did not accept that the Policy discriminated against employees on the basis of age.
[16] Finally, in her analysis section, the Investigator stated that the Applicant did not provide any evidence of actual denial of employment opportunities because of her disability. In any event, the Investigator found that the Policy met the requirements as a BFOR.
4. Issues
[17] Determining whether an employer's practice or policy is discriminatory involves two stages of inquiry: a) has the complainant made out a case that the practice or policy constitutes prima facie discrimination, and b) has the employer established any defences to that prima facie discrimination, such as that the practice or policy is a BFOR. At the hearing, the Respondent conceded that the way in which the Investigator wrote her report - by addressing the question of a BFOR - amounts to an admission that a prima facie case of discrimination has been established. Given this concession at the hearing, both parties agree that the issue to be determined by the Court in this application for judicial review is whether the Commission erred in concluding that the Policy is a BFOR. The related questions embodied in this issue are as follows:
1) Did the Commission breach the principles of procedural fairness by failing to conduct a thorough investigation into the existence of a bona fide occupational requirement?
2) Did the Commission err in law in finding that the Policy and the accommodation efforts by the CCRA satisfy the test of a bona fide occupational requirement?
5. Statutory Provisions and Jurisprudence
[19] The provisions of the Act relevant to the BFOR defence are as follows. Paragraph 15(1)(a) states that a practice is not discriminatory if it is based on a BFOR.
| 15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
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15. (1) Ne constituent pas des actes discriminatoires :
a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l'employeur qui démontre qu'ils découlent d'exigences professionnelles justifiées;
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The Act does not define a BFOR. However, subsection 15(2) stipulates that for any practice to be considered a BFOR, the employer must establish that accommodating the needs of an individual or class of individuals affected would impose undue hardship on the employer, considering health, safety and cost.
| 15. (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
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15. (2) Les faits prévus à l'alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l'alinéa (1)g), s'il est démontré que les mesures destinées à répondre aux besoins d'une personne ou d'une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coûts, de santé et de sécurité.
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[20] In British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Services Employees Union, [1999] 3 S.C.R. 3 ("Meiorin"), the Supreme Court of Canada established a three-step test for determining whether an employment practice or policy constitutes a BFOR. At paragraph 54, Madam Justice Beverly McLachlin (as she then was) stated the test as follows:
... I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
[21] Madam Justice McLachlin went on to state at paragraph 55 of her reasons that if a reasonable alternative exists which would less adversely affect members of a particular group, then the rule or standard is not a BFOR:
... It follows that a rule or standard must accommodate individual differences to the point of undue hardship if it is to be found reasonably necessary. Unless no further accommodation is possible without imposing undue hardship, the standard is not BFOR in its existing form and the prima facie case of discrimination stands.
[22] The Supreme Court of Canada affirmed the stringent requirement for establishing a BFOR in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Human Rights Council), [1999] 3 S.C.R. 868 ("Grismer"). In that case at paragraph 32, the Court held that the ultimate issue is whether the employer or service provider has shown that it provides accommodation to the point of undue hardship.
In order to prove that its standard is "reasonably necessary", the defendant always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost. (My emphasis)
[23] The onus is on the employer to establish by proof on the balance of probabilities that each of the requisite elements of the Meiorin test is met. As the Federal Court of Appeal reiterated in Sketchley, above at paragraph 87, a BFOR is not a "cleansing agent"; rather, it is a defence to a prima facie case that relieves the employer from liability.
6. The Policy
[24] As stated above, the CCRA implemented the Policy after the 1998 amendment to the Customs Act which increased Customs Officers' responsibilities and powers in enforcing the Criminal Code at ports of entry. The purpose of the Policy is to facilitate the safe and efficient performance of these enhanced duties by Customs Officers. In "The Officer Powers Transition Policy", July 1, 2001, the CCRA states that the goal is to have, over time and through recruitment, 100 percent of its Customs Inspector and Superintendent workforce qualified with Officer Powers designation. The Officer Powers Training Program is now mandatory for all Customs Officers, not otherwise accommodated. Further, there is one national work description for all Customs Officers regardless of their work location or Officer Powers designation status - that is, there has been no change to the classification levels of the Customs Officers' jobs.
[25] Customs Officers unable to attend or complete the Use of Force training may request accommodation. If their request is granted, Customs Officers will be accommodated in the following ways:
a) placed in an available Customs Officer position in their port where Officer Powers designation and Use of Force training are not required;
b) offered a position at another port that does not require relocation; or
c) relocated to another job in another location at the same group and level that does not require designation (or Use of Force training).
Accommodation requests are to be determined on a case-by-case basis.
7. Analysis
A. Did the Commission breach the principles of procedural fairness by failing to conduct a thorough investigation into the existence of a bona fide occupational requirement?
[26] The Supreme Court of Canada in Cooper v. Canada(Canadian Human Rights Commission), [1996] 3 S.C.R. 854 at 891, explained the nature of the Commission's statutory function in screening complaints and determining whether to refer a complaint to the Tribunal or to dismiss it.
It is not the job of the Commission to determine if the complaint is made out. Rather, its duty is to decide if, under the provision of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it.
[27] In this application for judicial review, the Applicant questions the fairness of the investigation conducted by the Commission. The jurisprudence establishes, as a general rule, that administrative agencies are masters of their own procedures as long those procedures respect the principles of procedural fairness. Questions of procedural fairness are reviewed as questions of law, no deference is due. It follows that if the Commission violates the principles of procedural fairness in conducting an investigation into a complaint, then its decision is invalid. As the Federal Court of Appeal stated in Sketchley, above at paragraph 53:
CUPE [Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539] directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act or omission relevant to procedural fairness (at para. 100). This procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.
[28] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada articulated a list of non-exhaustive factors relevant to determining the content of procedural fairness in the circumstances of a particular case:
(1) the nature of the decision being made and the process followed in making it; that is, "the closeness of the administrative process to the judicial process";
(2) the role of the particular decision within the statutory scheme;
(3) the importance of the decision to the individual affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choice of procedure made by the agency itself.
The Federal Court of Appeal, in Sketchley at paragraphs 115 to 119, considered the Baker factors in determining the content of procedural fairness required in the context of screening investigations conducted by the Commission. Weighing the Baker factors, the Court of Appeal held that the content of procedural fairness was appropriately described by Justice Marc Nadon of the Federal Court of Canada, Trial Division, in Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574; affirmed (1996), 205 N.R. 383 (F.C.A.). For the purposes of this present case, I adopt the Court of Appeal's analysis of the Baker factors in Sketchley and accept the applicability of the procedural fairness requirements set out in Slattery.
[29] In Slattery, Justice Nadon stated that procedural fairness requires the Commission's investigation into a complaint of discrimination to be both neutral and thorough. Thoroughness requires that the Commission inform the parties of the substance of the evidence and provide the parties with an opportunity to make submissions, and that the Commission have an adequate and sound basis for determining whether or not to refer the complaint to the Tribunal. At pages 60001, Justice Nadon expanded on the requirement that the Commission's investigation be thorough in order to satisfy its procedural fairness obligations. He wrote:
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. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
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.
[30] The procedural fairness issue in this application for judicial review centers on the conduct of the Investigator in determining that the CCRA met its burden of proving that the Policy satisfies the third step of the Meiorin test. For ease of reference, I restate that requirement as articulated by Madam Justice McLachlin. The employer must prove on a balance of probabilities "that the standard is reasonably necessary to the accomplishment of that work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer".
[31] The Applicant argues that demonstrating accommodation alone is not sufficient to establish that the Policy is a BFOR; the CCRA is also obliged to choose the accommodation option that minimizes as much as possible the impact of the prima facie discriminatory policy. The Applicant asserts that the Investigator failed to conduct a thorough investigation into the CCRA's duty to accommodate. In particular, the Applicant notes that the Investigator did not require that the CCRA produce a report or study to support its conclusions that having two job descriptions was "operationally unfeasible". The Applicant argues that it is contrary to principles of procedural fairness for the Investigator to just accept the CCRA's bald assertions: see Chopra v. Canada (Attorney General), [2002] F.C.J. No. 1082 (F.C.T.D.) (QL) at paragraphs 59-60.
[32] The Respondent submits that the Investigator met the requirements of procedural fairness by addressing the fundamental aspects of the Applicant's complaint, and by taking into account the Applicant's and the CCRA's various submissions. The Respondent argues that determining the level of procedural fairness required in an administrative setting involves a balancing between the Applicant and the administrative agency's interests: see Slattery, above at page 600. Further, the Respondent submits that the fact the Investigator's report contains no analysis of the alternative options does not mean that the Investigator did not consider the allegations made by the Applicant.
[33] The issue in this case is not whether the CCRA made any efforts to accommodate the Applicant and other employees after the Policy was introduced. In fact, it is not contested that the CCRA "accommodated" the Applicant and other employees unable to complete the Use of Force training. As stated above, accommodation here involves offering these employees restrictive duties within the CCRA, i.e. no longer be permitted to conduct secondary examinations. The issue is rather whether such accommodation is sufficient to meet the third step of the Meiorin test. The New Policy now provides for additional physical fitness requirements for Customs Officers thereby limiting the Applicant to restricted duties. She contends that the CCRA has not established that the Policy is reasonably necessary to the accomplishment of that work-related purpose. She argues that other alternatives exist which would be less restrictive in terms of her work responsibilities and would not cause undue hardship to the CCRA. In my view, the Policy significantly impacts the Applicant's work description. In such cases, other less restrictive alternatives to the Policy, which may be advanced, need to be considered in determining if the Policy is reasonably necessary to accomplish the stated work-related purpose.
[34] In replying to the Commission, counsel for the Public Service Alliance of Canada representing the Applicant made it clear that the Meiorin decision changed the duty to accommodate. Meiorin was decided after the amendment to the Customs Act which led to the implementation of the Policy. With that in mind, counsel for the Applicant raised several questions and comments intended to bring to the Investigator's attention the further inquiry needed in determining whether the CCRA was meeting its duty to accommodate and, specifically, whether the Policy was "reasonably necessary". For example, in letters to the Commission the Applicant asked or stated:
Could the requirements of Bill C-18 have been met through the use of two "roving Officers" per shift - that is, is it necessary for all officers to be designated with Officer Powers?
Bill C-18 did not suddenly appear. There must have been consultation between levels of government and consideration given to the existing structure and its capacity to take on the additional duties. As such, there would have been an internal study of the various ports of entry, the design of the traffic flow and control at these sites and how the safety of staff and the general public could be enhanced in light of the potential for more violent incidents.
Apparently rather than creating a sequestered area for the potentially violent Bill C-18 detainees, it was decided that employees such as Ms. Coupal would no longer perform their usual tasks to accommodate this duty infrequently performed by other Officers. This may be an administratively efficient and cost-effective solution but that is not pertinent to the initial human rights analysis as to whether this is the only way the workplace can accomplish the task.
The Investigation should answer the question as to why the preferred choice was to eliminate workers such as Ms. Coupal from a significant number of her current duties in order to meet a minor part of the CCRA's responsibilities.
On the basis of Meioran, [Ms. Coupal] is asking the Commission to investigate the decision to close this workplace to people such as herself and determine if this radical change is the only way to meet the new tasks assigned to the CCRA.
In this case, someone should have done an analysis of the workplace prior to the implementation of the Policy, which should outline why the only option available was the Policy at issue in this complaint. If no such paper is readily available from the period, that should tell the Investigator about the level of human rights analysis behind the design of the current Policy.
It must be recalled that while the search for accommodation may be "a two way street" (Emrick Plastics v. Ontario(Human Rights Commission), (1992), 16 C.H.R.R. D/330, at para. 21), it is the employer who is in charge of the workplace, it is the employer who will ordinarily be in the better position to determine what modifications to the workplace can be made: Central Okanagan School District No. 23 v. Renaud [1992] 2 S.C.R. 970 at para. 39, and it is the employer who bears the onus of demonstrating that further accommodation of the claimant is impossible, without causing the employer to suffer undue hardship: Meiorin, at para. 54.
[35] In my opinion, the above submissions by the Applicant's counsel should have spurred the Investigator to seek further information from the CCRA in respect to the Policy. There is no indication that the Investigator put any of these questions or comments raised by the Applicant to the CCRA. It seems apparent that the Investigator did not probe the CCRA on the alternative accommodation options it considered and rejected before settling on the Policy. This is troubling in light of the fact that the onus is on the CCRA to establish that it is impossible to accommodate individual employees sharing the characteristics of the Applicant without imposing undue hardship upon the employer. Given the lack of thoroughness of the inquiry, the Investigator could not know if the CCRA had met this test.
[36] In her report, the Investigator essentially recited the positions of the parties. With regards to the "reasonably necessary" requirement of the Meiorin test, the Investigator accepts the CCRA's assertion that the alternative of two job descriptions is "operationally unfeasible" as sufficient to satisfy the test. I agree with the Applicant that the Investigator cannot simply accept without further inquiry "bald assertions" by the CCRA that other options are unworkable or "operationally unfeasible". Further, during the hearing the Respondent acknowledged the limited scope of Dr. Deakin's report. It was revealed that Dr. Deakin was only asked to give an opinion as to whether a person able to successfully complete the Use of Force training would meet the physical standard required for the Customs Inspector and/or Customs Superintendent jobs. Dr. Deakin was never asked to consider whether there were alternate ways of meeting the objective which would minimize the adverse effect on employees such as the Applicant. The CCRA essentially relied on Dr. Deakin's evidence to establish that the Policy constitutes a BFOR. In my view, Dr. Deakin's report does not satisfy the CCRA's evidentiary burden of proving that no other options for accommodating the Applicant and other employees which would cause no undue hardship to the CCRA are available to it.
[37] The only accommodation offered to Customs Officers unable to complete the "Use of Force Training" involves essentially placing these officers in positions where the Officer Power designation is not required. In my opinion, this changes significantly the Customs Officer's work description. What is not explored by the Investigator is whether this "new standard" is reasonably necessary and whether the CCRA had other options which could have permitted Customs Officers like the Applicant to maintain their jobs with the same responsibilities without causing undue hardship to the CCRA.
[38] The Investigator accepted the CCRA's position that other options were "operationally unfeasible" without exploring whether the evidence supported such a finding. If there was no such evidence, then the CCRA failed to meet its burden on the third requirement of the Meiorin test and the complaint should not have been dismissed. If such evidence existed, it was not explored or considered by the Investigator. By failing to do so the Investigator omitted to consider fundamental evidence and thereby failed to conduct a thorough investigation into the existence of a BFOR. In the result, the Commission violated the principles of procedural fairness. The Commission's decision will therefore be quashed and the matter returned to the Commission for reconsideration in accordance with these reasons.
B. Did the Commission err in law in finding that the Policy and the accommodation efforts by the CCRA satisfy the test as a bona fide occupational requirement?
[39] The Supreme Court of Canada has held that once a breach of the principles of natural justice or procedural fairness is established, the decision of an administrative agency is invalid. In Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 at paragraph 23, Justice Gérald Le Dain wrote:
... the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
[40] Given my finding above that the Commission's investigation violated procedural fairness, it is unnecessary to determine the substantive question raised in this application for judicial review.
8. Conclusion
[41] I am of the view that the Commission's investigation into the Applicant's complaint of discrimination did not meet the requirements of procedural fairness; namely, thoroughness, as set out in Slatterly, above. As a result, I would quash the decision and remit the matter back to the Commission for reconsideration in accordance with these reasons.
[42] The Applicant will have her costs.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is granted.
2. The matter is returned to the Commission for reconsideration in accordance with these reasons.
3. Costs are awarded to the Applicant.
"Edmond P. Blanchard"
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