Schut v. Canada (Attorney General), docket T-1096-97

Date: 19980608

Docket: T-1096-97

BETWEEN:

     DANNO SCHUT

     Applicant

     - and -

     THE ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

CULLEN J.:

[1]      The parties to this judicial review have agreed that the decision should be set aside and the matter returned to the Appeal Board of the Public Service Board for redetermination.

[2]      However, the parties also seek additional relief. The applicant asks that the Court direct the Appeal Board to make a finding that the applicant's employer did not accommodate the applicant's disability. The respondent, however, asks the Court to order the Appeal Board to consider the issue of whether the applicant, as a disabled candidate, has an affirmative duty to play a pro-active role in the accommodation of his disabilities in order to demonstrate his qualifications when participating in competitions. For the reasons which follow, neither of these requests will issue.

[3]      A brief summary of the facts is warranted. The applicant, who is visually impaired, participated in a closed competition in early 1996 to fill the position of Marine Emergency Preparedness Officer (classification: AS-05) with the Department of Transport Canada. The closing date for the competition was March 8, 1996 and the Department received a total of six applications. One was found not to meet the requirements.

[4]      To assess the knowledge of the candidates, a written examination was administered. To assist in preparing for the written exam, all candidates were provided with a study package of documents which related to the knowledge requirements for the position. This package was distributed on March 1, 1996 and contained a total of 240 pages of information.

[5]      The applicant received the information package in documentary form. It is not disputed that the applicant is totally blind in one eye. The vision of his other eye is very limited; he has approximately " of normal peripheral vision and 1/100 of normal focal vision and, as such, he can only focus on a very small area when reading. Consequently, the larger the print, the greater difficulty the applicant has reading the text.

[6]      In order to read, the applicant uses a number of visual aids including a reader who reads materials for the applicant and a voice synthesizer computer, which enables the applicant to read computer formatted diskettes through the use of specialized voice synthesizer software package.

[7]      Upon receiving the materials on March 1, 1996, the applicant requested from Ms Edda Brown, the departmental representative, that the materials be provided in computer format. Ms Brown indicated that she was unsure whether it was available in computer format, but she did indicate that she would provide what was available as soon as possible. By the time the written exam took place on April 2, 1996, the applicant had received less than half of the pages in computer format, as he had received approximately 104 pages.

[8]      On March 29, 1996, the applicant sought the assistance of Ms. Brown and Peter Field of the Public Service Commission. Their help led to the computerization of further documentation, but this information was not received by the applicant until the day before the examination took place.

[9]      Peter Field recommended that the department delay the competition until the issue of adequate disclosure of information was resolved, but the department decided to proceed with the written exam.

[10]      The applicant obtained 49.5% on the written exam. The pass mark was set at 70%. As the applicant failed the written exam, he was screened out of the competition. The applicant filed an appeal pursuant to s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 in which the applicant maintained that he was not provided with an equal opportunity to study the materials for the written exam and as such, he was placed at a disadvantage in contravention of the merit principle enshrined in the PSEA.

[11]      At issue before the Appeal Board was whether the applicant received proper training on a scanner prior to the written exam and whether the applicant was offered help with the scanning prior to March 29, 1996.

[12]      Before the Appeal Board, the department maintained that the applicant could have used a reader as much as he needed and that he had a scanner at his disposal with a computer operator to assist in scanning the materials. In essence, the department maintained that it had provided every reasonable accommodation to the applicant. There was conflicting evidence on this issue and in regard to the issue as to whether the documentation needed for the examination had previously been available to the applicant. Specifically, the respondent argued that the materials were accessible through the applicant's computer.

[13]      While it is not in dispute that the applicant did not receive the entire material in computer format prior to the examination, the issue to be determined by the Appeal Board is whether the respondent discharged its duty to the applicant, since some of the material which was not converted to diskette format was in the applicant's possession prior to the distribution of the study material. In order to answer this question, evidence needs to be adduced on this point, and if the evidence is conflicting, the Appeal Board needs to assess the credibility of the witnesses. This Court, sitting in review of such decisions, cannot make this determination. Accordingly, the applicant's request is denied.

[14]      As to the respondent's request, this too, must be denied. The Supreme Court of Canada in a number of cases including Commission scolaire régionale de Chambly v. Bergevin, [1994], 2 S.C.R. 525; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 and Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 has held that it is the employer, not the employee that is responsible for the accommodation of an employee's disability. The accommodation requires the employer to take reasonable steps, short of undue hardship. In determining the reasonableness of the accommodation, the focus is on the conduct of the employer in the circumstances. Adducing evidence to demonstrate that other methods of accommodating the employee were available aids the employer in demonstrating the reasonableness of those measures. Thus, the Court will not order the Appeal Board to make a determination on this issue, as it incorrectly seeks to examine the conduct of the employee, rather than the reasonableness of the measures undertaken by the employer.

[15]      Accordingly based on the consent of the parties, this matter is remitted back to the Appeal Board for a redetermination and the applicant's and respondent's requests are denied.

OTTAWA, ONTARIO      B. Cullen

June 8, 1998.      J.F.C.C.