Date: 20060427
Docket: T-1185-04
Citation: 2006 FC 528
Ottawa, Ontario, April 27, 2006
PRESENT: The Honourable Justice de Montigny
BETWEEN:
THOMAS HARVEY SINCLAIR
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Courts Act. The application began as a review of the April 28, 2004 decision of the Commissioner for the RCMP, upholding the decision of the Discharge and Demotion Board to discharge the Applicant, Mr. Sinclair, from his duties with the RCMP. It came to the attention of the parties that there were certain medical records that should have been before the Commissioner, and on December 22, 2004, an Order was granted in this Court staying the proceedings pending the Commissioner's consideration of the new exhibits. On January 21, 2005, the Commissioner again upheld the decision to discharge the Applicant.
FACTS
[2] The Applicant commenced his duties as a constable with the RCMP in 1991. Prior to joining the RCMP, the Applicant had previous police experience with the City of Prince Albert Police Force, and as Chief of Police of Macklin, both in Saskatchewan. He was posted to Wetaskiwin rural detachment, in Alberta, as a general duty constable, upon completion of his recruit training in 1992.
[3] In January 1994, the Applicant's wife committed suicide. The Applicant took approximately three weeks of leave, followed by 18 months of Provost duties, including escorting prisoners and acting as a court liaison. From 1993 to 1997, the Applicant's performance evaluations were generally "satisfactory", although some shortcomings were identified (lacking in proper file documentation, getting court briefs completed in a timely fashion, improving his time management skills, bogging himself down with too much at one time, lack of concentration). From 1994 onwards, the RCMP received from the provincial Crown office a variety of complaints with respect to the Applicant's work, pointing to incomplete court briefs and a lack of disclosure.
[4] In 1997, the Applicant received a Letter of Expectation, in which the expected performance levels for his position were described. Then, in early 1999, the Applicant received a Notice of Shortcomings, in which he was requested to make specific improvements to his work performance. On June 18, 1999, the Applicant was removed from his duties, and in July of 2000, he was served with a Notice of Discharge.
[5] The Discharge and Demotion Board was appointed in January 2001. The hearing before the Board was held from May 27 to May 31, 2002, and June 18, 2002. At the hearing, the Applicant gave four reasons for his poor performance: the workload was above average compared to other Alberta detachments, his wife's death, the RCMP's refusal to transfer him to another detachment, and personal animosity with his immediate supervisor. He also presented two medical reports from psychologists; each one testified at the Board hearing and gave the opinion that the Applicant suffered from depression.
[6] On June 18, 2002, the Board found that the ground of unsuitability had been established because the Applicant repeatedly failed to perform his duties under the RCMP Act in a manner fitted to the requirements of his position, notwithstanding he was given reasonable assistance, guidance, and supervision in an attempt to improve the performance of those duties. The Board directed that the Applicant be discharged from the RCMP. The Board focused on conditions that labour arbitrators rely upon in determining whether an employee can be discharged for incompetence established by Marine Harbours and Int'l Longshoremen's & Warehousemen's Union, Local 351, 12 L.C.A.(3d) 260, at 266. It examined each of the eight conditions and found that each one had been met.
[7] The Applicant appealed the decision of the Board to the Commissioner of the RCMP on the basis that the Board had not properly assessed the various conditions. Before the RCMP Commissioner made his decision, the RCMP External Review Committee (ERC) reviewed the matter and recommended on December 22, 2003 that the Applicant's appeal be dismissed. The ERC determined that depression alone could not account for the Applicant's many shortcomings. The conclusion of the psychologists that the Applicant could succeed as a general duty constable was based on the premise that the Applicant had the skills to do the job. The ERC found this premise flawed. It determined that the Applicant's shortcomings were apparent early in his career, and that the psychologists were unaware of the magnitude of his shortcomings.
[8] On April 28, 2004, the Commissioner of the RCMP agreed with the findings and recommendations of the ERC and he dismissed the Applicant's appeal. After the Applicant commenced this judicial review the Respondent discovered that a Book of Exhibits from the Discharge and Demotion Board hearing that ought to have been before the Commissioner when he made his decision was not provided to him. The Respondent brought a motion seeking a stay of the judicial review proceedings pending an opportunity for the Commissioner to rescind or amend his decision upon determining that an error was made in reaching the decision, pursuant to section 45.26(7) of the RCMP Act. The motion was granted and the RCMP Commissioner reviewed the Book of Exhibits that ought to have been before him at the time of his April 2004 decision, and determined on January 21, 2005 that his original decision to dismiss the appeal was the correct one.
THE IMPUGNED DECISION
[9] In his decision of April 28, 2004, the Commissioner considered the Applicant's history of employment with the RCMP, including his performance evaluations. The Commissioner noted that in 1993, the performance evaluation indicated that the Applicant was having some difficulty adjusting to the workload, but that this was not seen as a major issue as he appeared to learn from his mistakes and was seen as likely to try to avoid repeating the noted shortcomings. The Commissioner considered the fact that the Applicant's wife took her own life in January 1994, and that although his performance report that year contained some criticism, it also stated that his difficulties were likely related to his wife's death. The Commissioner went on to review the performance reviews throughout the Applicant's period of employment with the RCMP, in which many concerns were raised with regard to his performance, including complaints from the office of the Crown with regard to the Applicant's conduct of investigations and communication with the Crown. The Commissioner considered the Notice of Shortcomings that was issued to the Applicant, and reviewed the decision of the Discharge and Demotion Board in detail, including the documentation of errors and delays in the Applicant's work that had been before the Board as well as the testimonies of the various witnesses.
[10] The Commissioner noted that it was not disputed that the RCMP had identified the nature of the performance expectations and made the Applicant aware of them, as well as informing his superior when he failed to meet the standards. He then considered the Applicant's arguments with regard to the other conditions which labour arbitrators have relied when determining whether an employee can be discharged for incompetence, namely whether the employer had established that his work performance was below standard, whether the employer had provided supervisory direction to assist him in achieving the standard, whether the employer had taken reasonable steps to move him into other work within the bargaining unit that was or might have been within his qualifications and competence, and whether the evidence supported the inference of a continuing inability on the part of the employee to meet the standard. He then reviewed the responses of the RCMP to these arguments, as well as the findings of the ERC, in which the Board's decision and the evidence before it were reviewed in detail. He then concluded:
More specifically, I agree that the evidence showed that Cst. Sinclair's shortcomings did not start only after his wife's tragic death or after Cpl. Clark became his supervisor. I also agree that Cst. Sinclair's psychological health and his depression could not entirely defend his performance deficiencies. He simply did not perform at a level that can be expected of a constable with his experience.
Pursuant to s. 45.18(1) of the Act, a member of the RCMP can be discharged on ground of unsuitability, meaning that a member "has repeatedly failed to perform [its] duties under this Act in a manner fitted to the requirements of the ... member's position", I have applied an objective standard by comparing Cst. Sinclair to his peers, and have concluded that he does not possess the ability to perform the duties expected of him.
I further believe that the RCMP has met its obligation under s. 45.18(1) to give its members, prior to a discharge, "reasonable assistance, guidance and supervision in an attempt to improve the performance of those duties." Indeed, I find that Cpl. Clark was very proactive in his supervision of Cst. Sinclair. I agree with the ERC when it stated that "[t]he record reveals that Cpl. Clark devoted considerable time and energy to explaining to the Appellant how he could improve his performance". Furthermore, Cst. Sinclair's shortcomings were well documented by his supervisors, especially Cpl. Clark, who closely supervised Cst. Sinclair's work and monitored it in a formal way. As a result, I agree that it was established that Cst. Sinclair's work performance was below standard.
I also agree with both the Board and the ERC which concluded that the RCMP was correct in not transferring Cst. Sinclair to a different detachment. I agree with the ERC that in some cases, the RCMP should consider transferring a member "if it has reason to believe that either the environment or the relationship with the supervisor are significant factors that account for the member's poor perfomance". However, I do not believe that this was the case with respect to Cst. Sinclair, since the environment and the relationship with the supervisor were not the dominant reasons for his performance shortcomings. As evidence to that, Cst. Sinclair also had difficulties performing at a satisfactory level in past employment prior to joining the RCMP. I believe that Cst. Sinclair simply did not have what it takes to execute his work at a level that should be expected of a constable with his experience. Therefore, a transfer would not have resulted in a significant improvement in Cst. Sinclair's performance.
Similar to the Board and the ERC, I have given limited weight to the evidence submitted by the two expert witnesses. The reason is that the expert witnesses relied almost exclusively on information provided by Cst. Sinclair. I do not believe that the evidence from the expert witnesses was indispensable in order to conclude that Cst. Sinclair was not performing at the level expected of him. Indeed, evidence of his past performance clearly demonstrated his deficiencies.
[11] In his decision dated January 21, 2005, the Commissioner noted that the full reports of the experts had not been before him. In light of the duty of procedural fairness, he therefore reconsidered his decision to determine whether it should be amended or rescinded. He looked closely at the reports of the experts, including at their references to depression, but nevertheless concluded that these reports did not warrant changing his decision. This is what he wrote in this respect:
Second, the central focus of my review has been to determine whether access to exhibits M-1 and M-2, the complete medical reports provided by psychologists, Dr. Rowe and Dr. Block, has provided information that would justify changes to my original decision. I am able to state that my decision to dismiss Cst. Sinclair's appeal was made on the basis of a good understanding of the substance of the medical reports. Both the Board and the External Review Committee considered the medical evidence and provided a sound basis for their findings that Cst. Sinclair's medical condition did not completely explain the underlying performance problems. I have not changed my views in this regard after reading the full reports.
Both psychologists have alluded to problematic supervision as an important component of Cst. Sinclair's performance difficulties; however, the record clearly shows that Cpl. Clark and others acted in good faith and provided strong support to enable this member to attain satisfactory performance levels. I have previously concurred with the findings of the External Review Committee, and I am not persuaded that my position was ill-founded. Mr. Philippe Rabot's analysis at paragraph 30 of the Committee's report, which I repeat here for ease of reference, continues to express my views:
[30] I am satisfied with the explanation provided by the Board as to why transferring the Appellant to another detachment was unlikely to lead to a significant improvement in his performance. There may be instances where the Force should consider placing a member in a different work environment and under a different supervisor if it has reason to believe that either the environment or the relationship with the supervisor are significant factors that account for the member's poor performance. In the Appellant's case, however, the evidence indicated that these were not amongst the most important reasons for his performance shortcomings. Obviously, the Appellant had a strained relationship with Cpl. Clark but it was the Appellant's poor performance that brought about the strained relationship and not the other way around. The workload at Wetaskiwin Rural Detachment may have been higher that at other detachments but the Appellant's inability to complete his work in a timely fashion was by no means the only shortcoming that he displayed during his five years as a general duty constable at that location. In his reply to the Notice of Intention to Discharge, the Appellant often attributed the errors that he made to his heavy workload. However, given the nature of many of those errors, it is difficult to understand how they could have anything to do with the workload. It appears that the two psychologists who examined the Appellant were unaware of the magnitude of his shortcomings and that probably serves to explain whey they can profess such optimism about the prospect that he could soon gain the ability to perform in a fully satisfactory manner after he undergoes treatment for depression.
Cst. Sinclair has never been a strong performer, and his performance problems were long-standing. While I acknowledge exhibits M-5 and M-6, the letters of support and appreciation that were submitted on Cst. Sinclair's behalf, in my view, they do not signify that he is necessarily able to operate at the level the RCMP requires.
I am sympathetic to Cst. Sinclair's situation, however, at the end of the day, I am satisfied that my decision to dismiss the appeal was the correct one.
ISSUES
[12] There are three issues to be determined in this application for judicial review :
a) What is the appropriate standard of review?
b) Did the Commissioner err in his findings with regard to the role of the Applicant's depression in his failure to meet the requirements of his position?
c) Did the Commissioner err by failing to consider the Applicant's depression as a disability and the duty to accommodate under the Canadian Human Rights Act?
THE STATUTORY SCHEME
[13] Part V of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-9, as amended, provides the complete scheme for the discharge or demotion of a member of the RCMP. Section 45.18(1) states that a member can be discharged on the ground of unsuitability meaning that the "... member has repeatedly failed to perform... [his] duties under this Act in a manner fitted to the requirements of the ... member's position, notwithstanding that the ... member has been given reasonable assistance, guidance and supervision in an attempt to improve the performance of those duties."
[14] Before a member is discharged, the appropriate officer serves a notice in writing of the intention to recommend the discharge of the member. This notice includes particulars of the acts and omissions constituting the ground of unsuitability upon which the discharge will be based. (RCMP Act, s. 45.19). Once a member has received the Notice of Intention to Discharge he may send the appropriate officer a request in writing for a review of the member's case by a Discharge and Demotion Board (RCMP Act, s. 45.19(4)).
[15] If a member requests a Discharge and Demotion Board, three officers of the RCMP are appointed as members of that Board (RCMP Act, s. 45.2). The Discharge and Demotion Board gives the member a full and ample opportunity in person or by counsel or a representative to appear before the Board, make representations, present documentary evidence and with leave of the Board, to call witnesses (RCMP Act, s. 45.22(3)). Following the hearing, the Discharge and Demotion Board decides whether the ground of unsuitability is established on a balance of probabilities. If the ground of unsuitability is established, the Board discharges the member (RCMP Act, s. 45.23).
[16] A member may appeal the Discharge and Demotion Board's decision to the Commissioner, but before the Commissioner considers the appeal he refers the case to the External Review Committee for a recommendation (RCMP Act, ss. 45.24 and 45.25). Once the ERC reviews the decision of the Discharge and Demotion Board, it makes its recommendation to the Commissioner, which the Commissioner considers as part of the appeal. The Commissioner can either dispose of the appeal by dismissing it and confirming the decision, or by allowing the appeal (RCMP Act, s. 45.26).
[17] Section 45.26(6) provides that the Commissioner's decision "is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court" (RCMP Act, s. 45.26(6)). It is nevertheless possible for the Commissioner to rescind or amend his decision on the presentation of new facts or where, with respect to the finding of any fact or the interpretation of any law, he determines that an error was made in reaching his decision (RCMP Act, s. 45.26(7)).
THE STANDARD OF REVIEW
[18] It is now settled law that the determination of the proper standard of review of administrative decisions must be based on a pragmatic and functional analysis. As stated by the Supreme Court of Canada in Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727, at p. 740:
14 The review of decisions taken by administrative bodies is governed by the pragmatic and functional approach, as established by the jurisprudence of this Court; see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19">2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20">2003 SCC 20; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63">2003 SCC 63. Under this approach, reviewing courts consider four contextual factors: (a) the presence or absence of a privative clause or statutory right of appeal; (b) the relative expertise of the administrative body to that of the reviewing court with respect to the issue in question; (c) the purposes of the legislation and of the provision in particular; and (d) the nature of the question as one of law, fact, or mixed law and fact (Dr. Q, above, at par. 26). According to the case law, a highly technical or mechanistic approach is to be avoided; instead the interplay among the four factors determines the level of deference owed to the administrative decision itself. This further correlates to three standards of review: correctness, reasonableness, and patent unreasonableness (Ryan, above, at para. 24).
[19] In the present case, I have been referred to the decision of the Federal Court of Appeal in Millard v. Canada (Attorney General), [2000] F.C.J. No. 279 (QL), and to the decision of my colleague Justice Kelen in Stenhouse v. Canada (Attorney General), 2004 FC 375, [2004] F.C.J. No. 469 (QL). Despite the fact that both of these decisions dealt with applications for judicial review of decisions made by the Commissioner pursuant to other provisions of the RCMP Act (in the first case, the Commissioner was ruling on a grievance made under Part III of the Act, while in the second, he was acting under Part IV as a result of a disciplinary action), the reasoning and the approach adopted by my colleagues is extremely relevant in the present instance, considering the similarities in the institutional design and in the powers conferred on the Commissioner.
[20] First of all, the partial privative clause found in s. 45.26(6) would appear to be neutral in terms of assessing the proper standard of review, as it specifically provides for judicial review of the decisions made by the Commissioner under Part V of the Act.
[21] It is also worth noting that before the Commissioner reaches a decision, a Discharge and Demotion Board composed of three officers of the RCMP and the External Review Committee have reviewed the matter. This most elaborate decision making scheme, replete with procedural safeguards to ensure a fair hearing of the officer to be discharged, should certainly call for judicial restraint. As Justice Evans indicated in Millard, above, at para. 9, "[o]nly in the most unusual circumstances should a reviewing Court intervene in decisions made by a series of tribunals that have been specifically designed for the task".
[22] As to the relative expertise of the Commissioner as compared to that of this Court, it must be stressed that the Commissioner comes to his decision only after having had the benefit of the recommendation made by the External Review Committee. Once again, the remarks made by Justice Evans in Millard are most apposite. In that case, he noted that members of that Committee are appointed during good behavior for terms of up to five years, and can be removed for cause only by the Governor in Council. This is clearly an indication of the degree of independence that they enjoy from the RCMP hierarchy. In addition, the Chair of the Committee (who wrote the recommendation in this case, just as in Millard) is a full-time member. All of these characteristics lead Justice Evans to the conclusion that "[a]s a permanent, rather than an ad hoc body, the Committee can be expected to acquire considerable experience in the interpretation and application of the Directive, and accordingly is entitled to a measure of deference" (at para. 10).
[23] Moreover, the questions that were before the Commissioner were related to the Applicant's job performance, the extent to which depression and other factors were responsible for this, and the manner in which the evidence was weighed. These are all issues that fall squarely within the expertise of the Committee, on which recommendation the Commissioner relied to base its decision. The Commissioner would himself have risen through the ranks of the RCMP and commenced his service as a constable. He would be aware of expectations in performance at the various ranks and is therefore in an excellent position to determine whether a member should be discharged on the ground of unsuitability.
[24] The Applicant has tried to argue that the real issue was related to human rights and the duty to accommodate, in which the Commissioner has a low level of expertise. Unfortunately for him, there is nothing in the record to indicate that the Applicant argued these issues before the Board of Commissioner; rather, his arguments contested the manner in which the Board assessed his performance review and the manner in which he was supervised. I shall revert to that question later in these Reasons. Suffice it to say for the moment that all the questions raised fell within the expertise of the Commissioner and of the Committee, and as such this factor supports greater deference to the Commissioner's decision.
[25] With regard to the purpose of the legislation, it is clear that s. 55.18 of the RCMP Act relates specifically to the ability of officers to perform the duties required of them. In Stenhouse, above, my colleague Justice Kelen held that the legislation recognizes the need for the RCMP to control its own disciplinary matters, as reflected in the three stage comprehensive disciplinary process. The court also notes that RCMP members are not covered by the Public Service Employment Act, R.S.C. 1985, c. P-33. Hence, the Court concluded deference is owed to the Commissioner in making disciplinary decisions. The same is true, it seems to me, when the Commissioner is discharging an officer. Part V of the RCMP Act sets the same three stage comprehensive scheme for the discharge process as found in the Part IV disciplinary process, and the members are not covered by the Public Service Employment Act. This is clear evidence that Parliament intended the RCMP to control its own discharge process, and it therefore favours deference to the Commissioner.
[26] Finally, all the issues put to the Commissioner were clearly of a factual nature, as they revolved around the extent to which the Applicant's state of depression impacted on his ability to carry his functions. As such, they call for a lower standard of review.
[27] In the result, I am of the view that the proper standard of review in this case must be the lower one, and that the decision of the Commissioner must be upheld unless it is found to be patently unreasonable. The only caveat to this finding has to do with the application of the Canadian Human Rights Act (CHRA). Whether the Commissioner ought to have considered the provisions of this statute, and in particular the duty to accommodate prescribed by section 15 of that Act, is a question of law that must be assessed against a standard of correctness.
THE COMMISSIONER'S FINDINGS OF FACT
[28] The Applicant contends that the Commissioner erred in his finding that the Board had considered the Applicant's depression and held that it was not a factor. The Applicant argues that the Board did not actually acknowledge the depression as a clinical diagnosis of mental illness, but rather sympathized with his "loss and feeling of depression". The Applicant states that the Board had before it expert evidence supporting the fact that the Applicant suffered from an existing untreated depressive disorder, and that the demands of work exacerbated his symptoms. Furthermore, the Applicant argues that the Commissioner erred by giving less weight to the expert evidence as it was based primarily on information provided by the Applicant; he states that the diagnosis of depression was not simply based on what he had told them, but included a full neuropsychological assessment and a battery of tests. The Commissioner, so the Applicant argues, mistakenly found that the Board had assessed whether the Applicant's mental illness was a major factor explaining his unsatisfactory performance, because the Board members (and the ERC) mischaracterized the expert medical diagnosis of depression as a "feeling" of depression. Accordingly, the Board and, subsequently, the Commissioner, made a finding of fact that was contrary to the evidence.
[29] In addition, the Applicant states that the Commissioner misunderstood the expert evidence when he found that the fact the Applicant's poor performance predated his wife's suicide supported the conclusion that the depression did not fully explain the Applicant's performance deficiencies. This, in his view, shows a failure to understand the distinction between a mental illness and a mental stressor. The expert testimony, according to him, clearly supports a finding that the Applicant was suffering from depression long before his wife's suicide. It was not the cause of the depression, but rather it exacerbated the untreated illness. It was therefore unreasonable for the Commissioner to conclude that even with successful treatment for depression, the Applicant would not likely be able to develop the skills required to perform the tasks required of a general duty constable. This, in his view, is an error of fact so egregious and so central to the decision so as to amount to a jurisdictional error.
[30] Not unexpectedly, the Respondent disputes most of this reasoning. Counsel for the Respondent submits that at all levels of decision, including the Commissioner, the diagnosis of the Applicant's depression was acknowledged. The Respondent recognizes that the Commissioner, like the Board, placed little weight on the expert evidence because it was based in large part on information the Applicant provided to the doctors; the Respondent argues that the Commissioner was reasonable in weighing the evidence in this manner, as one of the medical experts admitted that his determination was based on what the Applicant told him and the disciplinary correspondence from the RCMP. Furthermore, the Respondent argues that the neuropsychological tests did not reveal a diagnosis of depression.
[31] The Respondent further submits that the reasoning of the commissioner's finding is buttressed by the ERC's finding that the medical experts were not aware of the magnitude of the applicant's performance deficiencies.
[32] The Respondent adds that neither of the medical experts stated exactly when the Applicant's depression began; although one of them mentioned that the Applicant experienced "stress and distress" prior to his wife's suicide, he did not indicate a diagnosis of depression prior to her passing. Similarly, the other expert indicated that there were "depressive elements" of the Applicant's condition prior to his wife's death, but that he had managed well. As such, the Respondent argues that there was no evidence before the Commissioner to indicate that the Applicant suffered from depression in the first three years of employment or that it could have caused his poor performance. Hence, counsel for the Respondent states that the Commissioner, in looking to the Applicant's performance in his first three years of service concluded that the problems in the first three years were the same as the ones encountered later in the Applicant's career and that depression could not account for all of his problems.
[33] A review of both of the Commissioner's decisions shows that he considered the expert evidence with regard to Dysthymic Disorder and depression, as well as the circumstances in the Applicant's life, most notably his wife's untimely death. My reading of the External Review Committee's report, upon which the Commissioner's decision is based, also convinces me that the medical condition of the Applicant was thoroughly canvassed. Indeed, the Commissioner specifically considered the full reports of the experts in his second decision, as he made clear in the following excerpt:
Although at the time that I decided the appeal, the content of the exhibits, and more specifically the medical reports, was known to me through extensive quotation in the ERC's report and through the transcripts of the hearing, I find nevertheless that the absence of the original exhibits is an error of sufficient import to invoke s. 45.26(7) of the RCMP Act. (January 2005 decision, at p. 4)
[34] As such, the Commissioner was clearly alive to the expert evidence provided by the Applicant with regard to his mental health. Specifically, he considered the conclusions of Dr. Rowe that the Applicant suffered from an untreated depressive disorder that was "exacerbated and prolonged" by workplace demands, and Mr. Block's assessment that the Applicant's "constellation of symptoms met the diagnostic criteria of Dysthymic Disorder". He nevertheless decided that the Applicant's mental health problems could not, in and of themselves, account for the numerous shortcomings in his performance, and his reasons for coming to that conclusion cannot be dismissed as being devoid of any rationality. The same goes for his treatment of the expert evidence. He was certainly entitled to give little weight to the two medical assessments, on the basis of their limited knowledge of the Applicant's performance assessments and of their less than definitive findings with respect to the real impact and the precise timing of the onset of his depression.
[35] It is not the role of this Court to re-weigh the evidence before the Commissioner. The issue is not so much whether I would have come to the same conclusion, but whether the decision made by the Commissioner can stand. Upon examination of the record, I can find nothing to indicate that his decision was clearly irrational, or evidently not in accordance with reason. As such, it cannot be said that his decision was patently unreasonable.
THE DUTY TO ACCOMODATE
[36] The Applicant contends that the Commissioner, after acknowledging that he was suffering from depression, should have gone further and found that the Applicant's depression constituted a disability under section 7 of the Canadian Human Rights Act. In his submission, the Respondent therefore erred in failing to consider the RCMP's duty to accommodate the Applicant pursuant to section 15 of the CHRA. Relying on the Supreme Court of Canada's decision in British Columbia (Public Service Employee Relations Commssion) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3, the Applicant argues that this duty requires the employer to assess the employee's current medical condition, the prognosis for recovery, and the capacity for alternative work. The RCMP not having complied with any of these requirements, the Applicant submitted that the Commissioner erred by failing to engage in an analysis of these issues, and that this failure should be assessed on the standard of correctness.
[37] I am unable to agree with the Applicant, for at least two reasons. First, he did not raise these arguments before either the Board or the Commissioner, and at no time did he allege that his depression was a disability within the scope of the CHRA. More specifically, it appears from the statement of appeal and from the decision of the Commissioner itself that the Applicant did not even allude to these grounds of appeal. Now, it is well established that this Court will not review a decision on an issue that was not raised before a tribunal unless the issue raised is jurisdictional. In Regional Cablesystems Inc. v. Wygant, 2003 FCT 236, [2003] F.C.J. No. 321 (QL), Gibson J. stated (at para. 12):
As a general rule, this Court will not review a decision such as that of the Adjudicator which is here under review on an issue that was not raised before the tribunal. In Toussaint v. Conseil canadien des relations de travail et al, (1993), 160 N.R. 396 (F.C.A.), Justice Décary, for the Court, wrote at paragraph 5 :
...Even if we admit, for the purposes of argument, that this question could have been argued in this case before an arbitrator and subsequently before the Board, it was not argued, and it has been clearly established that in the context of an application for judicial review this court cannot decide a question which was not raised before the administrative tribunal...
See also: C.L. v. Nlha'7kapmx Child and Family Services, 2002 FCT 348, [2002] F.C.J. No. 493 (F.C.) (QL); SOCAN v. Canadian Assn. of Internet Providers, 2001 FCA 4 , [2001] F.C.J. No. 166 (F.C.A.) (QL); Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233 (F.C.A.).
[38] Even if I were prepared to entertain the Applicant's argument, on account of the fact that the Canadian Human Rights Act is of a quasi constitutional nature, and also because the rule mentioned in the preceding paragraph should be relaxed when a new argument is of a legal nature as opposed to being based on new facts, I do not think that the Applicant could succeed. It must be remembered that the Commissioner found that the Applicant's inadequate performance had its grounding in his early performance evaluations, well before his depression. Accordingly, he concluded that his mental health could not account for his shortcomings in performing his duties. I have already found that this conclusion is not patently unreasonable. Therefore, it cannot be said that the Applicant was discharged because of a disability, contrary to section 7 of the CHRA. If the Applicant was discharged, it is not because of his depression but because he could not perform his duties in a manner fitted to the requirements of his position. In the result, the Commissioner was not bound to consider the accommodation issue.
[39] For all of the foregoing reasons, I come to the conclusion that this application for judicial review must be dismissed.
JUDGMENT
THIS COURT ORDERS THAT: this application for judicial review must be dismissed.
"Yves de Montigny"
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