Sketchley v. Canada (Attorney General), 2004 FC 1151

Date: 20040820

Docket: T-125-03

Citation: 2004 FC 1151

Ottawa, Ontario, August 20, 2004

Present:           THE HONOURABLE MR. JUSTICE BEAUDRY                                    

BETWEEN:

                                                            DIANE SKETCHLEY

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision by the Canadian Human Rights Commission (CHRC) dismissing two complaints by Ms. Diane Sketchley (applicant) who alleges that Treasury Board of Canada, her employer (respondent), discriminated against her on the basis of disability.

[2]                The applicant filed two complaints in regards to what she alleges was her forced retirement from the public service: the first one, 20000270, related to the treatment by the respondent, who allegedly refused to accommodate her disability. The second, 20001128, related to the Treasury Board policy according to which disabled employees on leave without pay must, within two years of the commencement of such leave, either return to work, retire from the public service or face dismissal with cause.

ISSUES

[3]                The applicant states the following two issues:

1.         Did the Commission err in law by finding that, in the case of disabled employees who cannot provide a definite date for a return to work, termination does not constitute prima facie discrimination?

2.         Did the Commission breach the principles of natural justice or procedural fairness by failing to conduct a thorough investigation and analysis of the applicant's allegations of discrimination?

[4]                For the following reasons, the application for judicial review is allowed.

FACTS

[5]                The applicant was permanently employed by the respondent as an Immigration Examination Officer on April 1, 1975. In 1987, she was diagnosed with Chronic Fatigue Syndrome (CFS); she was granted seven weeks of full-time sick leave in 1998. She then returned to work, first on a part-time basis, until 1990, then on a full-time basis.

[6]                In January 1993, the applicant requested a reassignment because of her deteriorating health, due primarily to workload issues. Reassignment was granted in April 1994; in October 1994, the applicant was diagnosed with fibromyalgia.

[7]                In November 1994, on the advice of her physician, the applicant started working part-time. In January 1997, the applicant's physician recommended she take full-time leave; in March 1997, the respondent recommended the applicant take medical retirement. The applicant declined.

[8]                In March 1999, the disability insurer, Sun Life, sent a letter to the respondent as a reminder of the agreement between Sun Life and the respondent to enforce the Treasury Board policy, which provides that leave without pay for medical reasons should not be extended beyond two years. In May 1999, the respondent asked the applicant to choose between medical retirement or returning to work. The applicant requested a continuance of the leave without pay; the response from the respondent was that she could either retire, resign or come back to work. Failing a choice, she would be terminated for incapacity.

[9]                The applicant filed a grievance, which was denied at the third level in December 1999. The applicant requested a personal needs leave in February 2000; it was denied. Finally, the applicant applied for medical retirement, which was granted in April 2000. In November 2000, the applicant filed her two complaints with the CHRC.

DECISION OF THE COMMISSION

[10]            On February 7, 2003, the CHRC issued a brief decision dismissing both complaints. For the first complaint relating to the respondent's alleged failure to accommodate the applicant, the CHRC wrote:

*               the evidence does not support the complainant's allegation that the respondent did not accommodate her in employment; and

*              the evidence indicates the complainant's physician certified she is incapable of occupying any gainful employment on a regular basis.

[11]            As to the second complaint, that the respondent's policy on leave without pay discriminated on the basis of disability, by forcing people with disabilities either to retire after two years, provide a date of return to work or face termination, the CHRC wrote:

*              the respondent's policy on termination makes provision for accommodating personswith disabilities; and

*              the difference between those disabled employees who are able to provide a return date and those disabled employees who are not able to provide a date ofreturn to work is not based on an enumerated ground of discrimination.

[12]            Given the brevity of the decision, its reasons must be taken to be those of the investigator's reports, whose recommendation and reasoning are reflected in the decision. We now turn to the content of those reports.

Investigator Report - Complaint 20000270

[13]            In this complaint, the applicant alleged that her employer, Human Resources Development Canada (HRDC) failed to accommodate her disability, contrary to section 7 of the Canadian Human Rights Act. The respondent denied this allegation, stating that it had attempted to accommodate the applicant by allowing her to work part-time and providing her with ergonomic furniture. The medical report prepared for her medical retirement was evidence that she was incapable of working.

[14]            The report gives the history of the applicant's dealings with the respondent from the time her medical problems started, and restates the specific complaints of the applicant - that the employer made no attempt to find accommodation for her once she was away on leave without pay, and made no attempt to facilitate her return to work, but rather pressured her into resigning starting in 1999, two years after her leave without pay had started. The report also states the allegation by the applicant that the Treasury Board policy, of having disabled employees on leave without pay either resign or come back to work within two years, was applied in a discriminatory fashion in her case, since it was not applied so exactingly to other persons on leave without pay for medical reasons.

[15]            In the analysis, the report mentions that evidence gathered in the investigation does not support the applicant's allegation that the policy was applied in a discriminatory fashion. On the allegation itself, the report adds that the respondent did acknowledge that some employees had been continued beyond the two-year frame, but that a program was now in place to see if these employees can return to work; if not, they are assisted in coming to terms with medical retirement.

[16]            No mention is made in the report of any further investigation as to the application of the policy to other employees on leave without pay. The only source, according to the report, is what the respondent has stated. No mention is made of the fact that once the applicant was on leave without pay, no attempt was made to try to find a way for her to come back to work.

Investigator Report - Complaint 20001128

[17]            The applicant alleged that the Treasury Board policy on leave without pay relating to employees with disabilities is discriminatory, since it forces a resolution of the employment relationship within two years of the leave's commencement. This is reinforced by an agreement between the respondent and Sun Life, concluded in 1996, whereby departments must act to enforce the policy within two years of the start of leave without pay - either the employee returns to work, or resigns or retires on medical grounds, failing which the employee can be terminated for cause.

[18]            The report cites a single case, Scheuneman v. Canada (Attorney General), [2000] 2 F.C. 365 (T.D.), confirmed by the Federal Court of Appeal, Scheuneman v. Canada (Attorney General), [2000] F.C.J. No. 1997(C.A.) (QL), to support its analysis that the policy is not in itself discriminatory. The same policy was impugned in that case, and the Court came to the conclusion that the policy was not discriminatory. The applicant argues that the policy is prima facie discriminatory, since this limit of two years is expressly stated in the case of employees taking leave without pay for illness or injury, and in no other instances.

[19]            In the analysis, the report indicates that the purpose of leave without pay is to provide a temporary respite, allowing the employee to maintain continuity in employment. The purpose is not to keep an employee indefinitely, despite the fact that he or she can no longer work for the employer. Moreover, adds the report, the policy does not treat disabled employees who are on leave without pay differently than employees who are on leave without pay for other reasons.

[20]            The report concludes by recommending the dismissal of the complaint because :

*              the respondent's policy on termination makes provision for accommodating persons with disabilities; and

*              the difference between those disabled employees who are able to provide a return date and those disabled employees who are not able to provide a date of return to work is not based on an enumerated ground of discrimination.

APPLICANT'S SUBMISSIONS

Complaint 20000270

[21]            The applicant acknowledges that from 1993 to 1997, the respondent did allow her to change positions, to reduce her working hours and to test a new ergonomic keyboard; the respondent also offered to purchase a back support. However, once she was on leave without pay, the employer made no further attempt to try to find a way to accommodate her return to work. As a matter of fact, while she was on leave without pay, the employer disposed of her work belongings and prevented her from having access to her workplace. Once the two-year period was over, HRDC simply applied pressure to either have her return or retire, without ever discussing different options or possibilities, nor attempting to understand the evolution of her particular condition.

[22]            The applicant knew of other cases where federal public service employees had been away on leave without pay for longer than two years, without any pressure being exerted on them to retire or return to work. The applicant was not interviewed and supplied a number of names of potential witnesses to the investigator. According to the applicant, those witnesses were never interviewed.

[23]            The applicant feels that she was harassed and intimidated by the employer into retiring for medical reasons, without any other option being considered. No reason was ever given as to why retaining her on leave without pay would cause hardship to the employer, let alone undue hardship, when the cost differential clearly favoured leave without pay over medical retirement, in terms of cost to the employer. The applicant asserts that by enforcing the two-year policy in her case, without considering whether an additional year of leave without pay could be an appropriate accommodation in her case, amounts to discrimination based on disability. Yet, these issues are never broached by the investigator in his report. Having determined that the accommodation given from 1993 to 1997, in the form of reduced duties and reduced hours, as well as the leave without pay granted from 1997 to 2000, were sufficient accommodation, the investigator never considers if, from the point of view of the applicant, this accommodation was indeed sufficient under section 10 of the Canadian Human Rights Act.

Complaint 20001128

[24]            The applicant alleges that the policy, whereby the employee on leave without pay for medical reasons must make a decision within two years, is discriminatory, because it fails to take into account the different times of recovery related to various illnesses and because it only applies to employees whose leave is for medical reasons.

[25]            In his report, having determined that the policy does not discriminate, the investigator completely failed to do any kind of analysis for the justification of the policy. The applicant argues that basing the report only on the Scheuneman decision is entirely inadequate. In that case, the applicant was self-represented, and the fact situation was entirely different. In reviewing the policy, the Court ruled that it had not been applied in a discriminatory fashion to Mr. Scheuneman, who was granted leave without pay for a period of eight years. Because of the fact situation, the Court never considered the policy per se, which is the issue here.

[26]            The fact that the policy only applies to employees with disability would already seem to be an indicator of prima facie discrimination. Perhaps such differential treatment can be justified, on the basis of Bona Fide Operational Requirements (BFOR), or because to not implement it would cause the respondent undue hardship. However, that part of the analysis was never undertaken, because the investigator concluded that the policy does not discriminate.

RESPONDENT'S SUBMISSIONS

[27]            The respondent submits that the decision of the CHRC was right, since the respondent had properly tried to accommodate the applicant, and since the policy is not discriminatory.

[28]            On the issue of accommodation, the respondent had granted requests for reassignment and part-time work, as well as leave without pay. When, after two years, the applicant could not provide a date of return in the foreseeable future, the respondent was within its rights to discontinue employment of the applicant. Medical evidence from the applicant's physician was to the effect that she was incapable of returning to work.

[29]            As to the policy being discriminatory, the respondent submits that the BFOR analysis is implicit in the CHRC'S decision. An employer cannot be expected to retain indefinitely, albeit on leave without pay, an employee who has already had three years of leave without pay and for whom, according to the medical evidence, there is no foreseeable date of return to work. Imposing such a requirement on the employer would be tantamount to undue hardship.

[30]            According to the respondent, the Commission 's reasoning reveals that it did address the essential legal question of whether requiring a disabled employee to provide a date of returning to work is a discriminatory practice or not. It found (implicitly) that the answer was negative, since such a requirement is a BFOR.

LEGISLATION

[31]            The relevant provisions of the Canadian Human Right Act (CHRA) appear in the appendix.

ANALYSIS

[32]            Both parties agree that the standard of review to be applied in such a case is reasonableness simpliciter. In Chopra v. Canada (Attorney General), [2002] F.C.J. No. 1082 (T.D.) (QL) , I explained how the standard of reasonableness simpliciter applies to a decision of the Commission to dismiss a complaint:

¶ 54       The definition of the reasonableness simpliciter standard was developed in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748. This standard requires a greater degree of crucial deference to be shown to the Tribunal in question than that which would be shown in the case of a correctness standard. Essentially, if a defect is obvious on the face of the decision, then that defect renders the decision patently unreasonable. If some probing is required to uncover the defect, then the decision is simply considered unreasonable (Southam, supra, at paragraph 57).

¶ 55       In a review based on the reasonableness standard, the decision must be examined to see if the decision can be supported by reasons that stand up to a somewhat probing examination. A flaw in the evidentiary basis for the decision or in the process by which conclusions were sought to be drawn from it is the type of error which would only become visible by means of a probing examination and would render a decision unreasonable, but not patently unreasonable (Southam, at paragraph 56).

In other words, the standard to be applied is whether the decision of the Commission would withstand a "somewhat probing examination" of its reasons.

1) Did the Commission err in law by finding that, in the case of disabled employees who cannot provide a definite date for a return to work, termination does not constitute prima facie discrimination?

Treasury Board policy

[33]            Leave without pay is provided for in the various employment contracts and collective agreements of the public service. Treasury Board has a policy on leave without pay which provides the following (page 795, Respondent's Record):

Leave without pay must be authorized in accordance with the relevant authority, that is, the collective agreement or the appropriate terms and conditions of employment.

For the following leave without pay situations, departments must adhere to the standards in Appendix A of this policy:

- illness or injury;

- employment in the office of a minister;

- Reserve Forces training.

[34]            Appendix A provides the following terms for leave without pay for reasons of illness or injury (page 794, Respondent's Record):

When employees are unable to work due to illness or injury and have exhausted their sick leave credits or injury on duty leave, managers must consider granting leave without pay.

Where it is clear that the employee will not be able to return to duty within the foreseeable future, managers must consider granting such leave without pay for a period sufficient to enable the employee to make the necessary personal adjustments and preparations for separation from the Public Service on medical grounds.

Where management is satisfied that there is a good chance the employee will be able to return to duty within a reasonable period of time (the length of which will vary according to the circumstances of the case), leave without pay provides an option to bridge the employment gap. Management must regularly re-examine all such cases to ensure that continuation of leave without pay is warranted by current medical evidence.

Management must decide upon the termination date for such leave without pay two years of the leave's commencement, although tit can, in some circumstances, be extended to accommodate exceptional cases.

The period of such leave without pay must be flexible enough to allow managers to accommodate the needs of employees with special recovery problems, including their retraining.

[35]            This is the policy which, according to the applicant, is discriminatory. The obligation for managers to "resolve such leave without pay situations within two years of the leave's commencement" applies only in the case of illness and injury. Thus, clearly, the policy differentiates between those who take leave without pay because of a medical disability, and those who take leave without pay for other reasons.

[36]            This differentiation is the essence of discrimination. Discrimination is not defined in the Act, but in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 174, the Supreme Court of Canada defined it as follows:

[...] 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. [...]

[37]            Because prima facie discrimination was never recognized in the report, it fails to make a proper analysis. The respondent argues that the BFOR analysis is "implicit". I think it would be more exact to say that it is entirely absent, because the report does not recognize the first necessary step, which is prima facie discrimination. If there is no discrimination, as the report says, then there is no need to determine whether the discrimination can be justified on the grounds of a BFOR. Two sentences from the report stand out in this regard: page 4, in the Analysis section: "Moreover, the policy does not treat disabled employees who are on leave without pay differently than employees who are on leave without pay for other reasons"; and page 5, under Recommendation: "[T]he difference between those disabled employees who are able to provide a return date and those disabled employees who are not able to provide a date of return to work is not based on an enumerated ground of discrimination".

[38]            The first assertion is patently false. The policy clearly mentions that for certain situations of leave without pay, managers must comply with the terms of Appendix A. The only situation where Treasury Board insists on the two-year term for leave without pay is illness and injury; other situations, presumably, are left to the discretion of departmental managers.

[39]            In the second sentence, the investigator makes a pronouncement, which is contrary to established case law. Workers with disabilities who can confirm the date of their return to work are presumably less disabled in that point in time than workers who cannot yet state the date of return to work. The difference is based on the degree of disability, a prohibited ground of discrimination.

[40]            In Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, the Supreme Court of Canada clearly determined that establishing categories within a prohibited ground can itself lead to discrimination. In that case, a mentally disabled employee was not entitled to the benefits she would have received had she been physically disabled. The employer argued that the comparison should be between able-bodied and disabled employees, not employees with different disabilities. The Supreme Court answered that argument in the following words, at paragraph 27:

[...] In concluding that a "mental disability/physical disability" comparison is appropriate, I note first of all that in order to find discrimination on the basis of disability, it is not necessary that all disabled persons be mistreated equally. The case law has consistently held that it is not fatal to a finding of discrimination based on a prohibited ground that not all persons bearing the relevant characteristic have been discriminated against. For example, in Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, this Court held that sexual harassment of particular female employees constituted discrimination on the basis of sex. In dismissing the argument that since only a subset of female employees was harassed, the harassment was not sex discrimination, the Court stated at pp.1288-89:

The fallacy in the position advanced by the Court of Appeal is the belief that sex discrimination only exists where gender is the sole ingredient in the discriminatory action and where, therefore, all members of the affected gender are mistreated identically. While the concept of discrimination is rooted in the notion of treating an individual as part of a group rather than on the basis of the individual's personal characteristics, discrimination does not require uniform treatment of all members of a particular group. It is sufficient that ascribing to an individual a group characteristic is one factor in the treatment of that individual. If a finding of discrimination required that every individual in the affected group be treated identically, legislative protection against discrimination would be of little or no value. It is rare that a discriminatory action is so bluntly expressed as to treat all members of the relevant group identically. In nearly every instance of discrimination the discriminatory action is composed of various ingredients with the result that some members of the pertinent group are not adversely affected, at least in a direct sense, by the discriminatory action.

[41]            In the case at bar, the investigator stated that since people with disabilities who could state their date of return would not be terminated, there was no discrimination against people with disabilities, ignoring that segment of people with disabilities who because of their disability, could not confirm their date of return. The error in that reasoning is the same as the one that is pointed out by the Supreme Court decision in the Janzen case.

[42]            It is clear that the investigator, having come to the conclusion that the policy was not discriminatory, never addressed the operational requirements or the undue hardship analysis. Because the policy provides for accommodation, and because the Federal Court of Appeal has ruled in Scheuneman that the policy in that case was not discriminatory, the investigator never admits the possibility of a prima facie violation, and the analysis is cut short.

[43]            The fact that the employer provides for accommodation within its policy does not per se negate the fact of prima facie discrimination. Accommodation may be a defence to the allegation of discrimination, but it does not serve to negate the existence of discrimination. This is succinctly put by Justice Robertson of the Federal Court of Appeal in the following passage from Canada (Human Rights Commission) v. Toronto-Dominion Bank, [1998] 4 F.C. 205 (C.A.), at paragraphs 130 and 131 :

¶ 130       In my opinion, the above argument [that providing reasonable accommodation negates discrimination] is flawed in two material respects. First, it is premised on the mistaken belief that a successful plea of reasonable accommodation on the part of an employer renders non-discriminatory that which constitutes prima facie discrimination. A finding of reasonable accommodation does not negate the legal conclusion that an employment policy has a discriminatory effect on certain employees. That is why the legal term "prima facie discrimination" is used in the jurisprudence. The accommodation doctrine is a defence to a prima facie case of discrimination, not a cleansing agent. In the context of the Act, the legal effect of the defence once established is to place a discriminatory practice outside the prohibited category.

¶ 131       My second objection to the Tribunal's finding of no discrimination stems from its failure to appreciate that if an employment rule is not "reasonably necessary", or there is no "rational connection" between the rule and job performance, then it is irrelevant whether or not an employer is willing to accommodate its employees. A simple analogy bears out the validity of this conclusion. Assume the Bank were to implement a policy requiring tellers to wear protective head gear at all branch offices during business hours. Assume also that the Bank is willing to accommodate employees (e.g. Sikhs) who object to the rule on religious grounds. In these extreme circumstances, I take it as a matter of common sense that the Bank's "hard hat" rule would be deemed neither reasonably necessary nor rationally connected to job performance and, therefore, unenforceable. If one is prepared to accept that conclusion then it necessarily follows that the Bank's offer of accommodation is no longer a relevant consideration. It is for these reasons that I am of the opinion that the Tribunal erred in concluding that the Bank's policy does not constitute prima facie discrimination.

[44]            In that case, the Canadian Civil Liberties Association (CCLA) had filed a complaint with the CHRC alleging that the Bank's drug testing policy constituted a discriminatory practice, contrary to section 10 of the Act. The Human Rights Tribunal (the Tribunal) concluded that the CCLA had failed to make out a prima facie case of discrimination. The Tribunal found that no one was denied employment under the Bank's policy on the basis of drug dependence. Accordingly, the CCLA's complaint was dismissed. The motions judge allowed the judicial review of the Tribunal decision, because the prima facie case of discrimination had been wrongly assessed, and the Bank appealed. The Court of Appeal dismissed the appeal.

[45]            The respondent admits that the Commission erred by not stating that the principle of a prima facie case of discrimination had been met, but the conclusion of the Commission in the end is not unreasonable. It cites Syndicat national des employés municipaux de Pointe-Claire v. Pointe-Claire (Ville), [2000] J.Q. No. 988. The circumstances in that case are not the same here. In Pointe-Claire, a judicial review was dismissed following an arbitrator's decision denying a grievance from an employee that had been dismissed on grounds of absenteeism. In the case at bar, the applicant has not even had the chance of being heard, contrary to the decision in Pointe-Claire.

Scheuneman case

[46]            The report relied on Scheuneman for the proposition that our Court had already ruled that the Treasury Board policy on leave without pay as applied to employees with disabilities was not discriminatory. However, the facts in Scheuneman are sufficiently different to allow for clearly distinguishing the two cases.

[47]            In Scheuneman, the application for judicial review concerned thedecision by the Public Service Staff Relations Board to deny Mr. Scheuneman's grievance against his termination by Natural Resources Canada. Mr. Scheuneman had been terminated under the same policy as the impugned policy here at issue, after over eight years of leave without pay. After a careful review of the Adjudicator's decision, Justice Cullen of this Court came to the conclusion that there was no reason to set aside the Adjudicator's decision. The focus of the inquiry, both at the Board's level and in Justice Cullen's decision, was whether Mr. Scheuneman himself had been discriminated against. In his decision, Justice Cullen never deals directly with the policy as such. The issue was not whether two years was a reasonable time frame for forcing a choice of retirement or return to work on an employee with disabilities; rather, the issue was whether the employer had reasonably accommodated Mr. Scheuneman. Justice Cullen agreed with the Adjudicator that the employer had indeed reasonably accommodated Mr. Scheuneman. In dismissing the claim that the policy was discriminatory, Justice Cullen writes:

¶ 58      The policy in question is unlike others which, having been indifferently applied, were found to have an adverse effect on a small number of individuals; see Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536. The policy is flexible enough to accommodate even those whose illness prevents them from returning to work for many years. The policy, therefore, does not discriminate against the applicant.

¶ 59       The applicant's leave status was discontinued only after eight years, as opposed to two, and only because it was clear that he would remain unable to return to work for the foreseeable future. I cannot imagine a more sympathetic and humane way of implementing a policy concerned with employees on leave. The applicant's termination resulted only because he was too stubborn to accept that the leave in question is, by its nature, a temporary measure. The actions of departmental employees in implementing the policy, therefore, cannot be characterized as discriminatory. As a result, the applicant's treatment cannot be considered prima facie discriminatory pursuant to subsection 15(1) of the Charter. The Adjudicator was, therefore, correct on the question of whether there was sufficient evidence to found a claim of discrimination.

[48]            With respect, the policy as such is not addressed. When Justice Cullen writes, "The policy is flexible enough to accommodate even those whose illness prevents them from returning to work for many years", he is commenting on the implementation of the policy, not its content. The following sentence, "The policy, therefore, does not discriminate against the applicant." confirms this interpretation. In the case at bar, the implementation did not proceed in this same way, based on the policy itself. This alone would warrant a closer look as to whether the policy itself is discriminatory.

[49]            In finding that there was no prima facie discrimination in the Treasury Board policy on leave without pay, I find the Commission made an error in law which fatally flaws its decision. The policy makes a distinction based on the fact that leave without pay is granted for illness and injury. This is tantamount to drawing a distinction based on disability. On that issue, I would set aside the decision of the Commission and remit the matter to another investigator.

2) Did the Commission breach the principles of natural justice or procedural fairness by failing to conduct a thorough investigation and analysis of the applicant's allegations of discrimination?

[50]            Parliament has given the CHRC considerable latitude in deciding whether a case should move on to the inquiry stage. At the same time, at that stage, the Commission is not deciding the case on its merits. In Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), Justice Décary wrote the following at page 136:

It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Canada Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient for the Commission to be "satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted" (subsections 44(3) and 49(1)). This is a low threshold (...)

[51]            At the same time, the finality of the decision makes a careful review necessary. Dismissal of the complaint means the end of any legal recourse that the complainant has and adds to the seriousness of the decision. It is not necessary to closely examine every witness suggested by the complainant for an investigation to be thorough. However, failure to address the substance of the complaint will lead to the conclusion that the investigation was flawed for lack of thoroughness.

[52]            In addressing whether the applicant's allegations of discrimination warranted further inquiry, the investigator considered that the respondent had accommodated the applicant's needs while she was still at work, until 1997. He did not address at all the substance of the complaint, which was that once leave without pay had been granted, there was no further discussion of accommodation. The investigator seemed to accept the respondent's position that it had done everything it could to accommodate, and could do no more.

[53]            There is no evidence, from the report, that other alternatives were considered besides forcing the applicant to either retire or predict her date of return to work. The applicant argues that being given one year of leave for personal needs, or extending the leave without pay for another year, would have been accommodation, but this was never considered by management. Yet the policy does provide, despite the two-year window, the possibility for extending leave, and the need to take into account the employee's special recovery needs.

Management must resolve such leave without pay situations within two years of the leave's commencement, although they can, in some circumstances, be extended to accommodate exceptional cases.

The period of such leave without pay must be flexible enough to allow managers to accommodate the needs of employees with special recovery problems, including their retraining.

[54]            This is precisely the gist of the complaint, that the applicant's particular medical condition made recovery unpredictable. Thus it could be said that she had "special recovery problems", which needed accommodation.

[55]            As in the case of the policy discussed above, the investigator sees no prima facie discrimination, this time against the individual applicant, since the employer simply applied the policy. However, there is no evidence that the investigator attempted to verify how the policy was enforced for other individuals on leave without pay for medical reasons, which would appear to be the obvious starting point to determine whether the applicant had indeed been a victim of discrimination.

[56]            The investigator also appears not to have considered how the policy was applied to the applicant in comparison to its implementation for other individuals. The applicant's allegations about the failure to provide for her needs are simply met with a counter-argument from the respondent, who points out the accommodation from 1993 to 1997. The accommodation after leave without pay occurred has never been dealt with. These observations show insufficient thoroughness and this deficiency is fatal to the Commission's decision when it is based on the recommendations of the investigator. In Kollar v. Canadian Imperial Bank of Commerce, [2002] F.C.J. No. 1125 (T.D.) (QL), a case where the complaint of sexual harassment had been dismissed by the CHRC, Justice O'Keefe stated at paragraph 40:

The Commission need not accept the recommendations of the investigator but if it does and the investigation is found to be deficient because of a lack of thoroughness, then the decision of the Commission is also deficient and cannot stand. [...]

[57]            On several points, the applicant contradicts the respondent, yet these issues are not addressed by the investigator, who simply accepts the point of view of the respondent and dismisses the applicant's allegations, for example:

- several people on leave without pay for medical reasons had been on leave for longer periods than the applicant, yet were not pressured into either retiring or returning to work;

- the failure of the respondent to offer any kind of accommodation, including an extension of leave, allowing for the applicant's return to work when she would have recovered;

- the respondent never offered nor discussed any rehabilitation program or service at any time;

[58]            These allegations are serious allegations, yet they are dismissed perfunctorily. We do not know, from the report, if the employer did attempt to accommodate the applicant to help her return to work. From the applicant's affidavit, we learn that once the two years were over, management started exerting pressure to have her either give a date of return or retire. She alleges that others were not treated this way, but were given more leeway. The allegation remains unanswered, yet the complaint is dismissed.

[59]            At paragraph 36 in Kollar, above, Justice O'Keefe writes on the issue of thoroughness:

[...] Therefore, I must now determine whether in the case before me, sufficient thoroughness existed. As part of that determination I must be satisfied that the reports dealt with all of the fundamental issues raised in the applicant's complaint. If there were omissions in the reports, were those omissions capable of being corrected by the applicant's submissions in response to the two investigators reports? (In the case at bar, the applicant submitted extremely detailed responses.) Further, as part of that determination, I must also be satisfied that the omission, if an omission exists, was not significant or fundamental to the outcome of the case. If the omission is a fundamental one, then judicial review would be warranted. (In this regard see Nadon J.'s reference to Lamer C.J.'s comments from Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471, (1993) 93 C.L.L.C. 12, 104 (SCC)).

However, in coming to my decision, I should also keep in mind Nadon J.'s comments at page 28 of Slattery, (supra):

The fact that the investigator did not interview each and every witness that the Applicant would have liked her to and the fact that the conclusion reached by the investigator did not address each and every alleged incident of discrimination are not in and of themselves fatal as well. This is particularly the case where the Applicant has the opportunity to fill in gaps left by the investigator in subsequent submissions of her own. In the absence of guiding regulations, the investigators, much like the CHRC, must be master of its own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient.

It is within this framework that the Commission's decision must be reviewed.

[60]            In Kollar, above, at paragraphs 39 and 40, Justice O'Keefe ruled that because the report of the investigator had not dealt with the first part of the complaint of the complainant, relating to sexual harassment, meant that the decision of the Commission was flawed because of the lack of thoroughness of the investigation:

[...] It is appropriate to discuss the applicant's work record but the investigation report should also deal with the evidence of alleged sexual harassment. The investigation report does not deal with this evidence. Was the evidence not accepted? I cannot tell from the report or the record. In my opinion, the investigation report did not deal with this evidence and consequently, the investigation report did not deal with the applicant's first part of her complaint which was that the respondent failed to supply her with an harassment free work place. This aspect of the complaint should have been dealt with in the investigation report. In my opinion, the investigation was, in this respect, deficient as it lacked thoroughness.

The Commission need not accept the recommendations of the investigator but if it does and the investigation is found to be deficient because of a lack of thoroughness, then the decision of the Commission is also deficient and cannot stand. I am of the opinion that the decision of the Commission is in error as it does not deal with the applicant's first ground of complaint, that is that the employer did not provide her with an harassment free work place. For the above reason, I would quash the decision of the Commission and order that a new investigation be completed.

[61]            In the case at bar, the applicant submitted detailed submissions in answer to the investigator's report, that were before the Commission. Yet, no explanation is given in the Commission's decision as to why the lack of accommodation offered is not in itself discriminatory, nor how undue hardship is defined. The investigator's report, which the Commission adopts, implies that keeping employees on leave without pay "indefinitely" would amount to undue hardship. The applicant never requested to be kept on indefinitely; she requested additional time for recovery and to consider her options. The denial of this request was never properly explained or justified by the respondent, nor explored or investigated by the Commission. It is this basic flaw in the report, and in the Commission's decision based on the report which, to my mind, justifies judicial intervention on the second issue.

CONCLUSION

[62]            For these reasons, I will allow the application for judicial review, set aside the decision of the CHRC dated February 7, 2003, and refer the matter back to the Commission to have the applicant's complaints reviewed by a new investigator, in a manner consistent with these reasons, with costs against the respondent.

ORDER

THIS COURT ORDERS that the application for judicial review is allowed. The decision of the CHRC dated February 7, 2003 is set aside. The matter is referred back to the Commission to have the applicant's complaints reviewed by a new investigator, in a manner consistent with these reasons, with costs against the respondent.

               "Michel Beaudry"             

Judge

APPENDIX

Canadian Human Rights Act, R.S. 1985, c. H-6

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-125-03

STYLE OF CAUSE:                           DIANE SKETCHLEY

v.

THE ATTORNEY GENERAL             OF CANADA

PLACE OF HEARING:                     Vancouver, British Columbia

DATE OF HEARING:                       July 15, 2004

REASONS FOR ORDER

AND ORDER :                                   The Honourable Mr. Justice Beaudry

DATED:                                              August 20, 2004

APPEARANCES:

Andrew J. Raven                                  FOR APPLICANT

Jan Brongers                                         FOR RESPONDENT

SOLICITORS OF RECORD:

Raven, Allen, Cameron, Ballantyne

    & Yazbeck                                        FOR APPLICANT

Ottawa, Ontario

Morris Rosenberg                                  FOR RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario