City of Ottawa v. Canada (Human Rights Commission), 2004 FC 1778

Date: 20041223

Docket: T-8-03

T-144-03

Citation: 2004 FC 1778

BETWEEN:

                                                             CITY OF OTTAWA

                                                                                                                                            Applicant

                                                                           and

                                  CANADA (HUMAN RIGHTS COMMISSION) and

                                                     FRANCINE DESORMEAUX

                                                                                                                                      Respondents

AND:

                                                             CITY OF OTTAWA

                                                                                                                                            Applicant

                                                                           and

                                  CANADA (HUMAN RIGHTS COMMISSION) and

                                                              ALAIN PARISIEN

                                                                                                                                      Respondents

                                                        REASONS FOR ORDER

HENEGHAN J.

INTRODUCTION

[1]                The City of Ottawa (the "Applicant") seeks judicial review of two decisions of the Canadian Human Rights Commission (the "Commission") arising from the termination of the employment of Ms. Francine Desormeaux and Mr. Alain Parisien. The decision concerning Ms. Desormeaux was released on January 14, 2003 and this application for judicial review was commenced on February 10, 2003. The decision in respect of Mr. Parisien was delivered on March 6, 2003 and this application for judicial review was filed on April 4, 2003.

BACKGROUND

i)           The Parties

[2]                The Applicant is the successor to the Regional Municipality of Ottawa-Carleton, pursuant to the City of Ottawa Act, 1999, S.O. 1999, c. 14, Schedule E and is legally responsible for the obligations of the Ottawa-Carleton Transportation Commission ("OC Transpo" or the "employer") formerly operated by the Regional Municipality of Ottawa-Carleton.

[3]                OC Transpo operated a bus service for the City of Ottawa. The efficient operation of this public service requires regular and reliable attendance by the employees, in particular the bus operators.

[4]                Mr. Ron Marcotte, a former superintendent with OC Transpo, provided some general background information about the operation of the service, including the assignment of operators to particular schedules and shifts, known as "booking periods". He also spoke about the "spare board" which is a panel of employees who are available to deal with intermittent absences. Persons assigned to the spare board will fill in for the employee who has called in sick, for example.

[5]                Absenteeism was a problem, notably among the bus operators. Up to 1988, this was treated as part of performance and as a matter of discipline. A distinction was made between culpable absenteeism, that is due to causes within the control of an employee and non-culpable absenteeism, that is absenteeism arising from matters beyond an employee's control. The response to non-culpable absenteeism in the 1980's consisted of discussions, with notation to the employee's file, a letter and, in some cases, a suspension.

[6]                The employer began to draw up an attendance management policy.    This was called the "Attendance Management Program" (the "AMP") and was directed to the Transportation Operations Division, that is the bus operators and dispatchers. One reason for the implementation of the AMP was because the employer was not in a position to tolerate the level of absenteeism it was experiencing when the program was introduced.

[7]                The Amalgamated Transport Union, Local 279 (the "Union") was also involved in developing the AMP.

[8]                Mr. Marcotte also said that the AMP was directed at those employees with higher rates of absenteeism. He spoke of absenteeism rates between 10% and 25% .

[9]                He acknowledged that perfect attendance, while desirable, was not an achievable objective. The employer sought regular and reliable attendance which he defined as follows:

So regular and reliable attendance would have been amount of missed time that did not trigger any action on our part, I guess, is the best way to say it, something that we can look at in the grand scheme of things and realise that this is not something we need to be necessarily concerned about.

[10]            Ms. Desormeaux and Mr. Parisien were full-time bus operators for OC Transpo. Ms. Desormeaux was hired in March 1989 and dismissed on January 30, 1998, on the basis of chronic innocent absenteeism from her employment. Between the beginning of her employment and her dismissal, she missed 365 full days and 24 part days from work on the basis of a number of health related matters, including surgery. However, the main reason for her absences was attributed to migraine headaches, that is 57 full-time days and 11 part days of absence.

[11]            Mr. Parisien was hired in November 1977. He was dismissed effective February 15, 1996. He had problems with attendance from the beginning of his employment and, for that reason, his probationary period was extended some months. There was a significant degree of absenteeism throughout his employment.

[12]            Between January 1984 and February 1996, he had been absent 1,664 full days and 33 part days. He had suffered a number of stresses in both his private life and in the workplace, beginning in 1979. In May 1991, he was diagnosed as suffering from Post-Traumatic Stress Disorder ("PTSD"). Periodically, he was on disability leave and in receipt of workers' compensation benefits. In May 1994, his medical advisor said that he was ready to return to work, subject to a period of "ease back" or "work hardening" and he returned to work on June 2, 1994. However, in August 1994 he required hospitalization and was off work until he presented himself to return in February 1996.

[13]            A version of the AMP dated June 6, 1995 was introduced in evidence. According to Mr. Marcotte, this document reflected the applicable principles concerning attendance management that were in effect in February 1996 at the time of Mr. Parisien's dismissal. Mr. Marcotte acknowledged that this version of the AMP was subsequently enhanced but the principles that were set out in the exhibit were those being used to address innocent absenteeism in late 1995 and early 1996. He described the purpose of the AMP as follows:

MR. BIRD

Q.             If you had to boil down the entire program into a nutshell what was the overall purpose of the program with respect to employee attendance?

A.             As I stated earlier, it was to reduce absenteeism, to optimize people's time at work, and to manage it in a fair process and ensure the employees' supervisors had a clear understanding of the expectations and consequences.

[14]            Mr. Marcotte was not directly involved with Mr. Parisien but he was involved with maintaining his attendance records. He said that according to the records, Mr. Parisien was accommodated for his many absences by being assigned modified hours and modified duties, that is working as a shuttle bus operator. The employer sought progress for improved future attendance, based upon the information about progress that would be provided by the Occupational Health Unit.

[15]            In Mr. Parisien's case, Mr. Marcotte described his rate of absenteeism as "extremely excessive atrocious, I guess would be a term with respect to just the amounts of time that were lost over the period of time for a variety of reasons." In his opinion, the only accommodation "that could have been considered was more absences." The employer relied on information received from the health services department and its own inferences drawn from the past history of absenteeism to attempt to predict future attendance. He also said that accommodating reduced hours for Mr. Parisien would amount to tolerating more absenteeism.

[16]            Following her dismissal on January 30, 1998, Ms. Desormeaux followed the grievance procedure provided by the applicable Collective Agreement. That grievance ultimately led to an expedited arbitration pursuant to the Collective Agreement and the Canada Labour Code, R.S.C. 1985, c. L-2 before the Honourable George W. Adams, Q.C., on July 27, 1998. Arbitrator Adams upheld the dismissal on the grounds of innocent absenteeism and dismissed the grievance on August 5, 1998.

[17]            On February 24, 1999, Ms. Desormeaux filed a complaint with the Commission, alleging that she had been discriminated against in the matter of her employment, contrary to the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act"). She framed her complaint as follows:

The Ottawa-Carleton Regional Transit Commission has discriminated against me by terminating my employment because of my disability (migraine headache, gallbladder attack, ovarian cysts, broken ankle, kidney stones, bronchitis, back injury, virus, stress) contrary to section 7 of the Canadian Human Rights Act.

[18]            In April 2002, the complaint was referred to the Canadian Human Rights Tribunal (the "Tribunal") for a hearing.

[19]            On February 15, 1996, Mr. Parisien was dismissed. He grieved his dismissal pursuant to the Collective Agreement and the Canada Labour Code, supra leading to an expedited arbitration before Arbitrator Adams. In a decision dated December 4, 1998, the grievance was dismissed. In the meantime, on September 20, 1996, Mr. Parisien submitted a complaint to the Commission, alleging discrimination contrary to section 7 of the Act and failure by OC Transpo to accommodate his disability.

[20]            The Applicant brought a preliminary motion before the Commission, challenging its jurisdiction to entertain the two complaints. The basis of its argument was issue estoppel, specifically that the human rights complaints were exclusively within the jurisdiction of the Arbitrator, that the doctrine of res judicata barred the Tribunal from proceeding further, and finally, that cause of action estoppel applies. By decisions dated July 15, 2002 and July 19, 2002, the Tribunal dismissed the motions in the cases of Mr. Parisien and Ms. Desormeaux, respectively.

[21]            The hearing of Ms. Desormeaux's complaint began on October 2, 2002. Five witnesses were called, that is Ms. Desormeaux, her family physician Dr. Anne Meehan, Mr. Paul Macdonell, former president of the Union, Ms. Lois Emburg, Manager of Human Rights and Employment Equity for the City of Ottawa, and Mr. Ron Marcotte former superintendent with OC Transpo.

[22]            In its decision dated January 14, 2003, the Tribunal upheld the complaint on the basis that Ms. Desormeaux had established a prima facie case of discrimination on the basis of disability and that OC Transpo had failed to meet the third requirement of the duty of accommodation as identified by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin").

[23]            The Tribunal ordered that the Applicant reinstate Ms. Desormeaux as a bus operator with the security and benefits that she would have received if her employment had not been terminated, as well as compensation for lost wages, without reduction, together with a gross-up for any tax liability resulting from that payment, special compensation in the amount of $4,000.00, and interest on all monies awarded.

[24]            The hearing of Mr. Parisien's complaint began before the Tribunal on July 22, 2002. He testified as well as his attending psychiatrist Dr. Hamilton Sequeira, his attending psychologist Dr. David Erickson, Ms. Lois Emburg, Mr. Gerald Timlin, a former Director of Occupational Health, Safety and Benefits with OC Transpo, and Mr. Ron Marcotte, a former superintendent with OC Transpo.

[25]            The Tribunal found that Mr. Parisien suffered from a disability, that is PTSD and that some of his other illnesses "may have been related to the PTSD." It found that the employer's decision to terminate his employment was influenced by his medical condition, and it found that the effect of these findings was discrimination in the matter of employment, contrary to section 7 of the Act.

[26]            The Tribunal also found that, Mr. Parisien having established a prima facie case of discrimination, the employer had failed to meet the third part of the legal test of accommodation, as set out in Meiorin, supra. The employer had failed to show that it could not accommodate Mr. Parisien's disability without undue hardship to itself and further, expressed the view that tolerance of absenteeism could be an "acceptable type of accommodation".

[27]            The Tribunal ordered that Mr. Parisien be reinstated as a bus operator, together with seniority and salary benefits of full-time employment, retroactive to the date of dismissal. It also ordered payment of damages to compensate for lost wages, adjusted for receipt of other income, statutory deductions and gross-up for the purpose of income tax liabilities. As well, the Tribunal ordered payment of $3,500.00 as special compensation for hurt feelings. Interest on these payments was also awarded.

APPLICANT'S SUBMISSIONS

i)           Issue Estoppel

[28]            The Applicant argues that the Tribunal, in each case, erred by failing to apply the principle of issue estoppel and, in the case of Ms. Desormeaux, ignoring the findings of fact made by Arbitrator Adams concerning the projected annual rate of absenteeism. The Applicant relies on the decisions in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, Nova Scotia (Human Rights Commission) v. Dural (2003), 234 D.L.R. (4^th) 132 (N.S.C.A.) ("Kaiser"), Randhawa v. Everest & Jennings Canadian Ltd. (1996), 22 C.C.E.L. (2d) 19 (Ont. Gen. Div.), and Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267 (Ont. CA).

[29]            The elements of issue estoppel, as discussed in Danyluk, supra at page 477, are as follows:

The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle, supra, at p. 254:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

[30]            The Applicant submits that the question of issue estoppel challenges the jurisdiction of the Tribunal to hear these complaints. The basis for this argument is the decision made by Arbitrator Adams in the abbreviated arbitrations relating to the grievances filed by both Ms. Desormeaux and Mr. Parisien.

[31]            The Applicant further argues that in the case of Ms. Desormeaux, the Tribunal committed a reviewable error by reaching a finding of fact that was different from the factual finding made by Arbitrator Adams, that is relating to the amount of time that Ms. Desormeaux would be absent during the year.

[32]            The Applicant argues that conditions of issue estoppel are established. The same facts, issues and requested remedy were before the Arbitrator. He decided, on the basis of the facts and arguments before him, that the two complainants had been justly terminated from their employment on the ground of innocent absenteeism. In the case of Mr. Parisien, he found that there had been ample accommodation in the past but no improvement in the attendance rate.

[33]            In the case of Ms. Desormeaux, Arbitrator Adams made the following finding on the issue of accommodation:

I am prepared to accept that migraine headaches can rise to the level of a permanent disability. However, there is insufficient evidence before me how the employer would reasonably accommodate the grievor's problem in this respect and, if accommodated, that this would bring her regular attendance up to an acceptable level.

[34]            The Arbitrator, having found the dismissal to be justified, refused the relief sought by Mr. Parisien and Ms. Desormeaux, and dismissed their grievances. Neither complainant sought judicial review of these decisions and each proceeded with complaints pursuant to the Act.

ii)          Prima Facie Case of Discrimination

[35]            The Applicant also argues, in the alternative, that the Tribunal in each case erred in law in finding that a prima facie case of discrimination had been established. The Applicant here relies on the decisions in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 and Wong v. Royal Bank of Canada, [2001] C.H.R.D. 11.

[36]            The Applicant submits that the fact that a person suffers from a disability does not lead to a finding of a prima facie case of discrimination. Section 7 speaks to discrimination with respect to an employment practice. According to the Applicant, there is a difference between terminating employment while a person is disabled and terminating employment because of a disability; see Berry v. Farm Meats Canada Ltd., [2001] 1 W.W.R. 670 (Alta. Q.B.).

[37]            Further, the Applicant relies on the decision in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 where the Supreme Court of Canada distinguished between differential treatment in relation to personal characteristics, which will generally lead to a finding of discrimination, and differential treatment on the basis of an individual's merit and capabilities, which will rarely be so characterised.

[38]            In the case of Mr. Parisien, the Applicant acknowledged that he was suffering from a disability, that is PTSD. However, having regard to his entire employment history, including the high rate of absenteeism, the problem was not due to the disability but rather his ability to attend work on a regular basis. The Applicant submits that this is a case of "innocent absenteeism", not a prima facie case of discrimination.

[39]            In the case of Ms. Desormeaux, the Applicant argues that there is an initial question whether she suffered from a disability and submits that there was no evidence to support a finding that she suffered from migraine headaches and if so, that "such headaches constituted a disability". It points out that the Tribunal found that the migraine headaches would lead to an absence from work of less than 8 full days per year and questions how such a low rate of absenteeism could constitute a "disability" for the purpose of the Act.

[40]            The Applicant submits that the Tribunal erred in law in accepting the evidence of Dr. Meehan as expert evidence for the purpose of diagnosing migraine headaches, noting that a neurologist, Dr. H. Rabinovitch, had provided a tentative diagnosis only in 1990 about migraine headaches and he was not called as a witness. The Commission bore the burden of establishing a prima facie case of discrimination and in that regard, had first to establish that Ms. Desormeaux suffered from a disability. The Applicant submits that it failed to do so.

[41]            The Applicant notes that in both cases, the attending physicians to Ms. Desormeaux and Mr. Parisien provided written opinions that their respective patients were fully capable of performing their duties as bus operators, subject to the proviso in relation to Mr. Parisien that he would require a period of "work hardening". That provision was not raised in relation to Ms. Desormeaux.

[42]            The Applicant also argues, in relation to Mr. Parisien, that the Tribunal erroneously relied on evidence from Dr. Sequeira concerning a connection between the various illnesses suffered by Mr. Parisien and the PTSD. Dr. Sequeira had said that Mr. Parisien was fit to work as a bus operator but he did not say that there was a reasonable prognosis for further attendance. Neither Mr. Parisien nor his medical advisors ever suggested that he needed to perform a different job.

[43]            The Applicant relies on the decision in Berry v. Farm Meats Canada Ltd., supra, in support of its argument that the Tribunal erred in finding a link between the impugned action, that is termination, and the disability. It submits that the Tribunal erred in finding a disability in either case.

iii)          Accommodation

[44]            Alternatively, the Applicant advances a further argument relative to the issue of accommodation. It submits that the Tribunal erred in finding that the Applicant had failed to accommodate its two employees and that toleration of absenteeism was, in the circumstances of the Applicant, a reasonable form of accommodation. The Applicant argues that this is an error of law and relies on the decision in Bonner v. Ontario (Ministry of Health) (1992), 16 C.H.R.R. D/485 (Ont. Bd. Inq.) and Scheuneman v. Canada (Attorney General) (2000), 266 N.R. 154 (F.C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 9.

[45]            The Applicant also submits that tolerating absenteeism is an accommodation that the facts in these cases do not support as being reasonably necessary. The facts show that the complainants were good employees when they came to work; the problem was in having them show up for work on a reasonably regular basis.

[46]            In response to Ms. Desormeaux, the Applicant argues that the Tribunal erred in law by finding that it should have obtained more medical evidence to address her inability to show up for work. Relying on the decision in Oak Bay Marina Ltd. v. British Columbia (Human Rights Commission) (2002), 217 D.L.R. (4^th) 747 (B.C.C.A.), the Applicant submits that it did not need further medical information, in light of the letter provided by Dr. Meehan on October 16, 1997. Dr. Meehan had advised that Mrs. Desormeaux was fully capable of performing the duties of her job but she gave no projections about improving attendance in the future. The Applicant argues that it was entitled to rely on the information available to it, including the complainant's past history and current medical assessment, and its own observations.

COMMISSION'S SUBMISSIONS

[47]            The Commission submits that the appropriate standard of review is correctness in respect of questions of law, reasonableness simpliciter in respect of questions of mixed fact and law, and patent unreasonableness in respect of questions of fact. In this regard, it relies on the decision in International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster, [2002] 2 F.C. 430 (T.D.).

i)           Issue Estoppel

[48]            The Commission submits that the question of issue estoppel was properly decided by the Tribunal in its decision upon the preliminary motion brought by the Applicant. The Tribunal there decided that issue estoppel did not lie because neither the same question nor the same parties were involved in the abbreviated arbitration proceedings conducted by Arbitrator Adams. The Tribunal found that the arbitration decision was final but that met only one of the three pre-requisites discussed by the Supreme Court of Canada in Danyluk, supra.

[49]            The Commission acknowledges that a tribunal has a discretion to exercise even if the three conditions are met. In this case, the Tribunal found that only one condition was met and ruled that issue estoppel, including cause of action estoppel, did not arise. The Commission argues that this decision should stand.

ii)          Prima Facie Case of Discrimination

[50]            The Commission describes the issue of its burden of showing a prima facie case of discrimination as a question of mixed law and fact, attracting the standard of review of reasonableness simpliciter. It relies on the decision in O'Malley, supra at 558. According to the Commission, the issue under the Act is proof of a prima facie case of a "discriminatory practice" as described in sections 3 and 7, rather than "discrimination" as addressed in section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter").

[51]            Relying on Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 (F.C.A.) at D/15, the Commission argues that it is not required that discriminatory considerations be the sole reason for a complaint to succeed. It is sufficient that a complainant's disability be a factor in the decision to terminate.

[52]            The Commission argues that Mr. Parisien and Ms. Desormeaux suffered differential treatment, that is loss of employment, as the result of disability.

[53]            In the case of Mr. Parisien, the Commission submits that the Tribunal did not err by finding that the appropriate comparator for showing discriminatory treatment was employees who had reliable and reasonable attendance. The Commission distinguishes the test for a prima facie case, as set out in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665 ("City of Montréal") relied on by the Applicant, on the ground that that case dealt with the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12.

[54]            The Commission argues that the vast majority of Mr. Parisien's absences from work were due to his disability "which included post-traumatic stress disorder and major depression". Further, the Commission argues that no comparison is required since Mr. Parisien was dismissed on the basis of absenteeism and this absenteeism was directly the result of his disability.

[55]            In the event that a comparator group should be identified, the Commission submits that the comparator group should be with non-disabled employees.

[56]            The Commission argues that the Tribunal did not err in finding that the employer had acted in a discriminatory manner by considering Mr. Parisien's entire work history and record of absenteeism.

[57]            The Commission further argues that the Tribunal did not err in relying on expert evidence about interconnection of Mr. Parisien's illnesses when that information was not within the knowledge of the witness nor his accepted expertise.

iii)          Accommodation

[58]            Finally, the Commission submits that the Tribunal did not err in the manner it dealt with the duty to accommodate. It argues that the Tribunal did not consider tolerance of absenteeism to be the only form of accommodation. Further, the Tribunal found that the employer had failed to consider alternative employment for Mr. Parisien and accordingly, breached the duty of accommodation. In the case of Ms. Desormeaux, the Tribunal estimated her future absences based solely on the absences that would be migraine-related. It concluded that these absences would fall below the number of days necessary to render her attendance subject to the AMP. Accordingly, such a level would not constitute undue hardship to the employer.

SUBMISSIONS OF THE COMPLAINANTS

[59]            Mr. Parisien made brief submissions, as he was entitled to do. First, he argued that the meaning of "accommodation" in cases dealing with innocent absenteeism is very different from the meaning to be given in matters arising under the Act.

[60]            Consequently, the Tribunal correctly decided that issue estoppel did not apply since the analysis of accommodation in relation to innocent absenteeism, which is a disability, is radically different from the accommodation analysis required pursuant to human rights legislation and, in particular, the Act.

[61]            Ms. Desormeaux did not present any independent submissions.

DISCUSSION

[62]            These applications for judicial review relate to the prohibitions in the Act against adverse discrimination in relation to employment. Sections 3, 7 and 25 of the Act are relevant and provide as follows:

[63]            The decisions of the Tribunal here under review raise questions about the applicability of the principle of issue estoppel, as well as whether a prima facie case of discrimination was established and whether the test of accommodation was met by the Applicant.

[64]            Both parties made submissions about the applicable standard of review for these different issues. The applicable standard in respect of decisions made under the Act are as stated by Justice Gibson in Oster, supra at page 445:

Applying the guidance provided by the Supreme Court in Pushpanathan, and more recently in Baker v. Canada (Minister of Citizenship and Immigration), I am satisfied that the standard of review of decisions of the Tribunal in this matter is correctness in respect of questions of law, reasonableness simpliciter in respect of questions of mixed law and fact, and patent unreasonableness in respect of "fact-finding and adjudication in a human rights context". On the facts of this matter, I find the standard of review of questions of law and questions of fact-finding and adjudication in a human rights context by the Tribunal not to have been modified by recent decisions of the Supreme Court of Canada or of the Federal Court Trial Division regarding the pragmatic and functional approach to the determination of standard of review.

i)           Issue Estoppel

[65]            The applicability of the doctrine of issue estoppel is reviewable as a matter of law, that is on a standard of correctness.

[66]            The Applicant argues that the Tribunal erred by concluding that issue estoppel did not apply to the adjudication of these two complaints, in light of the decisions made by Arbitrator Adams in arbitration proceedings before him. In the application for judicial review filed in respect of Ms. Desormeaux, the Applicant seeks judicial review of the two decisions, as follows:

1.              The applicant, the City of Ottawa, seeks judicial review in respect of the Canadian Human Rights Tribunal (the "Tribunal") decision dated January 14, 2003 and decision on a preliminary motion dated July 19, 2002.

[67]            I see difficulty with this request. Generally, only one decision may be the subject of an application for judicial review, pursuant to section 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. As well, such application is to be commenced within thirty days of the decision in question. Section 18.1(2) provides as follows:

[68]            Although the Federal Courts Act, supra does not say that an application for judicial review is available only in respect of final decisions, that is the general rule. In that regard, I refer to Cannon v. Canada (Assistant Commissioner, RCMP), [1998] 2 F.C. 104 (T.D.). However, when an interlocutory decision may be potentially dispositive of the matter, the time for seeking judicial review is thirty days after the decision; see Citizens' Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment) et al. (1999), 163 F.T.R. 36 (T.D.).

[69]            In the present case, the ruling on issue estoppel was made in July 2002 and the Applicant did not seek judicial review but carried on with the hearing of the complaints on the merits. The Applicant is now advancing arguments why the doctrine of issue estoppel should apply and is seeking, effectively, review of the Tribunal's decision on the preliminary motion. In my opinion, it is too late now to challenge that decision and I will not address those arguments.

ii)          Prima Facie Case of Discrimination

[70]            With regard to the standards of review applicable to decisions of the Tribunal under the Act, as adopted by Gibson J. in Oster, supra, I am satisfied that the issue of prima facie discrimination is a question of mixed fact and law and subject to review on the standard of reasonableness simpliciter.

[71]            The precise meaning of that standard was addressed by the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at page 270:

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).

[72]            The Applicant submits that the Tribunal erred, in each case, by finding that a prima facie case had been established. The decision in O'Malley, supra provides guidance for what is required of a complainant to establish a prima facie case of discrimination under the Act at page 558:

... The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer. ...

[73]            More recently, the Supreme Court of Canada in City of Montréal, supra clarified the content of the claimant's burden in establishing a prima facie case of discrimination at page 701 as follows:

... in most cases, the applicants will have the burden of proving (1) the existence of a distinction, exclusion or preference, in this case the dismissal and the refusal to hire; (2) that the distinction, exclusion or preference is based on a ground enumerated in s. 10, in this case handicap, and (3) that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal exercise of human rights and freedoms. ...

[74]            The starting point in assessing whether prima facie discrimination has been established is therefore a consideration of the presence of differential treatment. Accordingly, whether the dismissals constituted differential treatment requires that the appropriate comparator group be defined; see Andrews, supra at page 164.

[75]            In my opinion there are problems with the comparator group identified by the Tribunal. In each case, the Tribunal found the comparator group to be all employees. People with attendance problems are to be compared, in the Tribunal's opinion, with those employees who had no attendance problems.

[76]            The Applicant agrees that the comparator group should be those persons, able-bodied as well as those with disabilities, who are subject to the AMP because of problems with regular attendance.

[77]            On this point, Mr. Parisien made independent submissions and argued that the comparator group should be only those employees with disabilities and who have attendance problems.

[78]            In the case of Ms. Desormeaux, the Applicant and the Commission adopted the positions set forth above.

[79]            In my opinion, the Tribunal erred in its identification of the employee class without attendance problems as the comparator group. If attendance is the issue and absenteeism itself has not been identified as a disability, then the comparator group should reflect similarly situated individuals. In my opinion, the Tribunal erred in choosing the entire group of employees as constituting the comparator group. This was not a reasonable choice. Obviously, the only persons affected by a program to monitor attendance are those persons having attendance problems. Such a program would be irrelevant for employees who do not manifest attendance problems.

[80]            In my view, the choice of all disabled persons subject to the AMP is also inappropriate. That would mean creating a different standard for disabled persons for no purpose except to monitor attendance. That would be tantamount to distinguishing an entire group on the basis of disability.

[81]            I agree with the Applicant that the Tribunal did not identify the correct comparator group and the appropriate comparator group should have been those with attendance problems, both able-bodied and disabled. That is an impersonal factor and according to the Tribunal, the requirement for regular attendance is a rational legitimate component of the employer's employment policy.

[82]            However, having regard to the applicable standard of review, that is reasonableness simpliciter, I am not persuaded that there is a basis for judicial intervention on this issue. I now turn to a consideration of whether such differential treatment, in this case the dismissal of Mr. Parisien and Ms. Desormeaux, was based on an enumerated ground, that is a disability.

[83]            In the case of Ms. Desormeaux, the Applicant says that the Tribunal erred in finding that the complainant suffered from migraine headaches, in the absence of evidence from a qualified witness and further, that Ms. Desormeaux had failed to show that the employer knew or ought to have known that she was suffering from a disability that required accommodation.

[84]            In respect of Mr. Parisien, their argument is that the Tribunal erred in accepting the evidence of Dr. Sequeira as opinion, expert evidence in the matter of an interrelationship between the diagnosed condition of PTSD and the other ailments suffered by Mr. Parisien over the years.

[85]            I agree with the Applicant's submissions regarding Ms. Desormeaux. The Tribunal accepted the evidence of Dr. Meehan as the basis for finding that she suffered from migraine headaches to the extent of constituting a disability. Dr. Meehan, a family practice physician was qualified as an expert for the limited purpose of addressing the state of Ms. Desormeaux's health. According to the transcript of the proceedings before the Tribunal, Dr. Meehan was initially tendered as Ms. Desormeaux's treating physician, however upon completion of her testimony before the Tribunal, the question arose as to whether she should be qualified as an expert. On consent, Dr. Meehan was qualified as an expert in family medicine with the proviso that she is not a neurologist.

[86]            The evidence shows that Ms. Desormeaux had consulted a neurologist in the early 1990's and Dr. Rabinovitch made a tentative diagnosis of migraine headaches. However, he was not a witness and his report, dated 1990, does not support the opinions expressed by Dr. Meehan. In my opinion, it is unreasonable to find that the opinion of Dr. Meehan would carry more weight than the opinion of a specialized physician, that is a neurologist.

[87]            Furthermore, Ms. Desormeaux testified that although she underwent some testing during the period of consultation with Dr. Rabinovitch, she did not receive advice or confirmation from him that she suffered from migraine headaches.

[88]            I also note that Arbitrator Adams found that Ms. Desormeaux's migraines accounted for only 18% of full and 46% of part days lost.

[89]            In the case of Mr. Parisien, Dr. Sequeira, a psychiatrist who had been treating him since 1991, was qualified for a limited purpose as follows:

MR. BIRD: This is what we have agreed to, but also what the OC Transpo will agree to in terms of Dr. Sequeira's qualifications: We are prepared to accept that Dr. Sequeira may provide opinion evidence on the basis of the Supreme Court of Canada decision in Queen v. Mohan, on the basis that he was the treating physician and has acquired special or peculiar knowledge through study, education and his experience in dealing with Mr. Parisien.

THE CHAIRPERSON: Through study . . . ?

MR. BIRD: - - education and his experience in dealing with Mr. Parisien.

THE CHAIRPERSON:    Yes

MR. BIRD: And, as such, he can assist the Tribunal with respect to his interaction with Mr. Parisien and in psychiatry generally.

[90]            He was questioned about a possible interconnection between the PTSD and the other ailments suffered by Mr. Parisien. Counsel for the Applicant objected to the question from counsel for the Commission on the grounds that the question represented an expansion of the basis upon which Dr. Sequeira was qualified to offer opinion evidence. The following exchange is recorded in the transcript:

MR. BIRD: We have agreed that Dr. Sequeira can provide evidence with respect to opinion evidence as it relates to general psychiatry and his dealings with Mr. Parisien.

He is now giving us a dissertation about the interconnection of all types of physiological disorders with post-traumatic stress disorder. This is far beyond the qualifications that we have agreed to in terms of his ability to provide you opinion evidence.

I think this is a totally improper line of questioning with respect to the Commission. I am rather surprised that we are going down this line.

THE CHAIRPERSON: Mr. O'Rourke . . .

MR. O'ROURKE: It could not be more within his qualification. It could not be more relevant, especially in view of the questions that were put to Mr. Parisien the other day, and the suggestion that the ailments he suffered were unrelated to PTSD.

The question clearly relates to PTSD, a psychiatric ailment. Psychiatry deals with biology. If you need that clarification, I will ask Dr. Sequeira, but Dr. Erickson has already told us that ...

MR. BIRD:    With the greatest respect to Mr. O'Rourke, I feel like I have been suckered with respect to this. I would never have agreed to qualify Dr. Sequeira, without going through his qualifications in absolute full and minute detail, if I knew any kind of evidence of this nature was going to be put forward.

[91]            Notwithstanding the timetable followed on the parameters of Dr. Sequeira's evidence, the Tribunal found that there was an interconnection of Mr. Parisien's illnesses and his PTSD amounting to a disability, for the purpose of the Act.

[92]            I agree with the Applicant that the Tribunal erred in accepting evidence about the interconnection of the PTSD and Mr. Parisien's other illness-related absences when Dr. Sequeira was not qualified to give that testimony. However, in light of section 25 of the Act, which refers to pre-existing illnesses as constituting disability, for the purposes of the Act, the fact remains that Mr. Parisien suffers from a disability, namely PTSD. I am reluctant to find that this error of law has any material effect in assessing the prima facie case in light of the wording in Section 25 of the Act.

[93]            It is to be remembered that the Act is directed to the prevention of discrimination on the basis of disability. The disability, per se, does not attract the protection of the Act.

[94]            In Andrews, supra, at pages 174-75 the Supreme Court discussed the meaning of discrimination defining it in terms of distinctions based on personal characteristics attributed to an individual:

... discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

[95]            In the present case, the focus of the inquiry is not on individual personal characteristics but the ability of the complainants to attend work on a regular and reliable basis. Notwithstanding the fact that Andrews, supra involved an analysis of discrimination in the context of the Charter, the analysis is useful here in assessing the allegations of discrimination raised by the complainants and the Commission.

[96]            The basis of the complaints is discrimination in relation to employment on the basis of disability. The Applicant argues that the complainants carry the burden of showing, at the preliminary stage of establishing a prima facie case, that they respectively knew or ought to have known that they required accommodation. In this regard, the Applicant relies on National Steel Car Ltd. and United Steelworkers of America, Local 7135 (Demedeiros Grievance), [1999] O.L.A.A. No. 182 (Ont. Arb. Bd.) (QL) at para 31:

... There is an onus on a handicapped employee to make his needs known and to identify the accommodation he requires. The employer must respond reasonably to a reasonable request for accommodation. I don't think the employer is meant to be left, as here, responsible for maintaining a non-functional employment relationship all by itself, just because it knows an employee suffers from a handicap. Before an employer is required to lead evidence of undue hardship it must know exactly what is being asked of it. What accommodation is required? For how long? At what cost to the employer? What are the chances for a resumption of a regular employer-employee relationship? It is only when the employer has the answers to these questions that it can then assess the degree of hardship required to accommodate the needs.

[97]            In the case of Ms. Desormeaux, there is evidence that on an earlier occasion, she had requested and received accommodation for a problem with her neck.

[98]            Likewise, Mr. Parisien did not raise the issue of accommodation when his medical advisor wrote to the employer on January 31, 1996. That letter, according to the evidence before the Tribunal, provided in part as follows:

During this time, Alain's health will be best served by beginning with part-time duties, and gradually building up to full-time duties. In the initial period of readjustment, extreme hours are contra-indicated because of their potential for sleep disturbance. We would greatly appreciate being consulted in preparing increases in Alain's scope of duties, as experience from his past has shown that it is possible to do too much too soon.

[99]            Mr. Parisien did not ask for a different job in 1996. He asked for rehabilitation. The employer was prepared to provide work-hardening, that is a gradual resumption of full time work, but otherwise no rehabilitation.

[100]        There is no indication here of any limitation on his ability to perform other than for a period of work-hardening. That requirement was never an issue for the employer; it was not going to be an issue in 1996. At the stage of showing a prima facie case of discrimination, Mr. Parisien bore the burden of showing that he knew or ought to have know that he was suffering from a disability that required accommodation. The condition of PTSD was known to Mr. Parisien since 1991 and had been brought to the attention of the health services of the employer on earlier occasions. At the relevant time, that is February 1996, neither Mr. Parisien nor his physicians adverted to a need for accommodation in that regard.

[101]        In the case of Ms. Desormeaux, I conclude that the Tribunal's finding that she suffered from a disability was unreasonable based upon the evidence. Dr. Meehan was qualified as an expert in family medicine, not as a neurologist. Accordingly, I find that the Tribunal's reliance on her evidence was in error to the extent that her evidence exceeded the legitimate purpose for which her expert testimony was receivable: see R. v. Reid (2003), 65 O.R. (3d) 723 at 736. I conclude that there is no prima facie case for the employer to answer as I am not satisfied that there is properly admissible evidence to support a finding of disability. The application for judicial review will be allowed in respect to Ms. Desormeaux.

[102]        In the case of Mr. Parisien, I am satisfied that in the matter of showing a prima facie case, he has not shown that he requested accommodation from the employer when he knew that he had a disability and may require accommodation, the record shows that Mr. Parisien suffered from the disability of PTSD and that illness contributed to some, but not all, of his absences. The employer terminated his employment on the basis of innocent absenteeism. To the extent that the PTSD contributed to those absences, and having regard to section 25 of the Act, I am not prepared to find that he has failed to meet the test for a prima facie case of discrimination, that is differential treatment on the basis of disability.

[103]        The burden, at the stage of establishing a prima facie case, lies on the complainant and the Commission. According to Lincoln v. Bay Ferries Ltd. (2004), 322 N.R. 50 (F.C.A.) that burden is to be met on the balance of probabilities.

[104]        Mr. Parisien and the Commission submit that the adverse differential treatment shown to him was dismissal from his employment. They characterize that as discrimination because his absences were related to his disability, that is PTSD. The Applicant disagrees with this approach and relies on the decision in Berry v. Farm Meats Canada Ltd., supra at page 679 as follows:

I should first say that the conclusion made by the Panel may have led to some misunderstanding. That conclusion reads: "He was terminated without warning during his recovery from a heart attack and, as such, the Panel decides in his favour." That statement, standing alone, does not evidence a finding of discrimination. One could conclude that you only need to find termination while physically disabled to found an act of discrimination. One must find termination because of physical disability for there to be discrimination. The chronology of Mr. Berry's hiring, heart attack, proposed date of return to work, his offer to work from home taken together provide sufficient evidence for the burden to shift to Farm Meats to show that the dismissal was for because of Mr. Berry's health. Farm Meats offered several explanations, including:

_               performance issues

_               reorganization

_               downsizing because of a decline in sales

_               the inability of Mr. Berry to drive.

However, none of these explanations were substantiated by the evidence. In fact, the evidence is contrary to these assertions.

[105]        In my opinion, while I find that the Applicant's argument is persuasive particularly given that the record is clear that Mr. Parisien had a horrendous history of absenteeism prior to the diagnosis of PTSD in 1991, when Dr. Sequeira determined that the illness probably began in 1989, in accordance with the applicable standard of reasonableness simpliciter, I am not satisfied that judicial intervention is warranted. The Tribunal's finding of prima facie discrimination as regards Mr. Parisien was reasonable.

iii)          Accommodation

[106]        The issue of accommodation relative to Mr. Parisien is a question of mixed fact and law, subject to review on a standard of reasonableness simpliciter.

[107]        Once a complainant has demonstrated prima facie discrimination, the onus shifts to the employer to justify the prima facie discrimination by satisfying the following three-part test relative to accommodation, as set forth by the Supreme Court of Canada in Meiorin, supra, at page 32:

Having considered the various alternatives, 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 fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate 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.

[108]        The Tribunal found that the employer had met the first two parts of the test, but had failed to show that toleration of absenteeism by Mr. Parisien would constitute undue hardship. The Tribunal applied the test for undue hardship set out in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 at pages 520-521 as follows:

I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar -- financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.

[109]        This was the applicable test since this case arose before the amendments to the Act in 1998 which introduced a statutory definition of "undue hardship".

[110]        In its reasons, the Tribunal said the following about the issue of undue accommodation relative to Mr. Parisien:

I respectfully disagree. As the arbitral decision in Air B.C. illustrates, there are two stages involved in reviewing innocent absenteeism dismissals. The first is conducted in accordance with labour relations law and the second in accordance with human rights law. I fail to see how one can assume that once an employer properly concludes that an employee's prognosis for attendance is poor, the employer's duty to accommodate under human rights law is satisfied. A review of the labour arbitration ruling regarding the Complainant's grievance supports this point. OC Transpo's decision to dismiss the Complainant was held to be just, even though the arbitrator did not examine whether the employer had accommodated the employee to the point of undue hardship, in accordance with the human rights principles referred to above. The Arbitrator's comments on the issue were limited to a blanket statement that the Complainant had been "amply accommodated in the past to no avail" and that therefore, it was "not a case where the employer has failed to accommodate a disability". The notion of "undue hardship" was never even discussed.

[111]        Having regard to the evidence about the employer's AMP and the history of Mr. Parisien's absences, the evidence shows that the employer accommodated him in the past, prior to the diagnosis of PTSD, not least by allowing him to retain his employment. Following the diagnosis of PTSD, the employer provided modified hours and modified duties, that is, allowing Mr. Parisien to drive the shuttle bus for other employees of the service. The Applicant relied on the decision of a Board of Inquiry in Bonner, supra at D/497 as follows:

... The suggestion seems to be that, while a person who is unable to perform work for a reason other than handicap may be refused employment or fired, a person who is unable to perform that work because of a handicap as defined by the Code can be neither denied employment nor fired if that inability can be accommodated in the sense (apparently) of being tolerated. That premise seems plainly wrong. Surely that which must be accommodated if reasonably possible is the handicap, not the inability. ... If the employer can without undue hardship adjust the conditions of the workplace satisfactorily while subject to the effects of that handicap, then that must be done. But there is no requirement imposed on employers either to hire or to retain employees who, because of handicap, are in fact incapable of doing the work, simply because they have the resources to tolerate actually deficient work.

[112]        In this case, the employer dismissed Mr. Parisien on the basis of chronic innocent absenteeism. It had concluded that on the basis of the available medical information, the unqualified letter from his physician dated January 31, 1996 and his past history, that there was no reasonable prospect of improved attendance in the future. As far as the employer was concerned, accommodating reduced hours of work would be accommodating increased absenteeism.

[113]        The Tribunal found that the employer had failed to show that accommodating absenteeism was not a reasonable accommodation, as required by Meiorin, supra. The question is whether this conclusion meets the applicable standard of review of reasonableness simpliciter. In my opinion, it does not.

[114]        The factual context here is the employment relationship. That relationship is subject to the Act, but the fact remains that the nature of the bargain between the parties is that the employee will appear for work on a regular and reliable basis and the employer will pay for the service. Excessive innocent absenteeism has the potential to nullify that relationship as noted by the Federal Court of Appeal in Scheuneman, supra.

[115]        In Scheuneman, supra, a case involving a challenge pursuant to section 15 of the Charter, the Federal Court of Appeal rejected the idea that an employer should tolerate constant absenteeism as a form of accommodation and said the following at page 157:

In my opinion these facts do not establish a breach of section 15. The appellant was dismissed because he was unable to perform any work and was unlikely to be able to do so in the foreseeable future. It is a basic requirement of the employment relationship that an employee must be able to undertake work for the employer or, if temporarily disabled by a medical condition from so doing, must be able to return to work within a reasonable period of time. Dismissing a person who cannot satisfy this requirement is not, in the constitutional sense,    discrimination on the ground of disability.

[116]        Although that case dealt with a challenge pursuant to section 15 of the Charter, the decision is relevant because it shows that there comes a point when the employer can legitimately say that the bargain is not completely capable of performance.

[117]        The record here shows a horrendous level of absenteeism from the time Mr. Parisien began his employment with the employer. The absenteeism of 1,644 full days and 33 part days is only a portion of the absenteeism, that is from 1984 to February 1996. That appears to be a rate in excess of 30%. It is not reasonable, in my opinion, to require the employer to tolerate this.

[118]        Accordingly, this application for judicial review is allowed with costs to the Applicant.

[119]        These Reasons will be filed in cause T-8-03 and a copy placed in the file for cause T-144-03.

                                                                                      "E. Heneghan"

                                                                                                   J.F.C.

OTTAWA, ONTARIO

December 23, 2004

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-8-03 and T-144-03    

STYLE OF CAUSE: City of Ottawa v. Canada (Human Rights Commission)

                                                                        and Francine Desormeaux

and

City of Ottawa v. Canada (Human Rights Commission)

and Alain Parisien

PLACE OF HEARING:                                 Ottawa, Ontario

DATE OF HEARING:                                   April 21, 2004

REASONS FOR ORDER AND

ORDER OF:              THE HONOURABLE MADAM JUSTICE HENEGHAN

DATED:                     December 23, 2004

APPEARANCES:

Stephen Bird                                                     FOR APPLICANT

Carolyn Richard

Patrick O'Rourke                                              FOR RESPONDENT, CHRC

Peter Annis                                                        FOR THE RESPONDENT, Alain Parisien

SOLICITORS OF RECORD:

Bird McCuaig Russell                                        FOR APPLICANT

Ottawa, ON               

Morris Rosenberg

Deputy Attorney General of Canada                  FOR RESPONDENT, CHRC

Vincent Dagenais Gibson LLP

Ottawa, ON                                                      FOR RESPONDENT, Alain Parisien