Quigley v. Ocean Construction Supplies Ltd., 2004 FC 631

Date: 20040429

Docket: T-709-02

   Citation: 2004 FC 631

BETWEEN:

                                                          PATRICK E. QUIGLEY

                                                                                                                                            Applicant

                                                                           and

                    OCEAN CONSTRUCTION SUPPLIES, LTD., MARINE DIVISION

                             and THE CANADIAN HUMAN RIGHTS COMMISSION

                                                                                                                                      Respondents

                                                        REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                These reasons follow the hearing of an application for judicial review of a decision of the Canadian Human Rights Tribunal (the "Tribunal") wherein the Tribunal determined:

I find that Ocean terminated Mr. Quigley on the basis of his disability. However, Ocean began a series of accommodating measures from 1991 onward. It finally fulfilled its obligation of attempting to accommodate Mr. Quigley, to the point of undue hardship, in 1996, when Mr. Quigley insisted that he be accommodated with respect to the deckhand position. While I sympathize with Mr. Quigley's painful and difficult disability, and I admire his fortitude and desire to continue to work, I must dismiss the complaint.^[1]

More will be said about the "deckhand position" later in these reasons. The decision under review is dated the 3^rd of April, 2002.

[2]                Throughout these reasons, Patrick E. Quigley will be referred to as the "Applicant". Ocean Construction Supplies, Ltd., Marine Division, will be referred to as "Ocean" as it is indeed referred to in the foregoing quotation from the reasons of the Tribunal.

RELIEF REQUESTED

[3]                Counsel for the Applicant urges that the Tribunal erred in a number of respects in arriving at its decision. In the result the Applicant seeks relief from this Court in an order allowing his application with costs, setting aside the decision of the Tribunal, and referring the Applicant's application for relief back to the Tribunal, in the first alternative, with the direction that his complaint be sustained and that the Tribunal inquire into an appropriate remedy, in the second alternative, with a direction that a newly constituted Tribunal rehear and redetermine his complaint, and in a final alternative, with a direction that the Tribunal, presumably whether or not as originally constituted, rehear and redetermine his complaint in accordance with this Court's reasons.

[4]                Ocean seeks an order dismissing the application for judicial review, with costs if demanded, but does not disagree with referral of the matter back to the Tribunal, as originally constituted, to be heard on the existing record, if this Court determines that this application for judicial review should be allowed.

[5]                The Canadian Human Rights Commission filed no material on this application for judicial review and was not represented at the hearing of the application.

BACKGROUND

a)         The Applicant

[6]                The Applicant is described in the reasons of the Tribunal as "a cook by profession" . At the date of the hearing before this Court, he was forty-five (45) years of age. From December, 1988, he worked as a cook onboard tug boats operated by Ocean. Those tug boats, five in number, towed barges primarily in British Columbia waters, either empty or loaded with aggregates or cement products, between business facilities of Ocean Construction Supplies Ltd., and between such facilities and other locations, some within the British Columbia lower mainland, and some as far distant as Seattle, in the State of Washington, and Alaska.

[7]                From January 1991 onwards to the termination of his employment with Ocean at the end of August, 1996, the Applicant suffered from various tragedies and medical disabilities that prevented him from working regularly. Between 1991 and the termination of his employment, he took five (5) compassionate or disability leaves, each of a significant duration. More particularly, in August or September, 1992, the Applicant was diagnosed as suffering from thoracic outlet syndrome ("TOS"). In the spring and summer of 1993, he returned to work for a series of work trials. In January of 1994, he underwent corrective surgery in relation to his TOS condition. Thereafter, he never returned to work until the time of termination of his employment in late August of 1996.

[8]                More will be said about the Applicant's time of employment with Ocean later in these reasons.

b)         The Respondent and its business

[9]                Ocean Construction Supplies, Ltd. is a large corporation with offices in North America, Europe and Asia. It has a construction aggregate division that operates, at least in part, in the lower mainland area of British Columbia.    That division services West Coast centres from at least Seattle, Washington, to Alaska.

[10]            Ocean, that is to say the Marine Division of Ocean Construction Supplies, Ltd., supports the operations of the construction aggregate division of Ocean Construction Supplies, Ltd.    As earlier indicated, Ocean operates five (5) tug boats. Four (4) of the tug boats are described as "outside" boats. The fifth is described as an "inside" or "shift" boat.

[11]            Ocean's four (4) "outside" boats, at all relevant times, operated off-shore and were absent from their centre of operation for fourteen (14) or fifteen (15) days at a time. They were crewed by either four (4) or five (5) persons: a Master who operated and supervised the over-all operation of the tug boat and its tow; a Mate who assisted the Master; and, from 1991 onward, two (2) cook-deckhands. Where there was a fifth crew member, that individual was an optional engineer who supervised the engine room of the tug boat. While on board the "outside" boats, crew members worked six (6) hours on and six (6) hours off. Not surprisingly given the size and role of tug boats, bunk accommodations for those crew members who were off-shift were somewhat cramped. For example, the Applicant found the bunk accommodation to be insufficient to allow him to sleep on his back.

[12]            Ocean's one "inside" tug boat, the Evco Crest, while it performed essentially the same duties as the "outside" tug boats, operated in a more restricted area, twenty-four (24) hours a day, although not every day, on two (2) twelve (12) hour shifts. The crew of the Evco Crest consisted only of a Master, who supervised operations and operated the tug, and a deckhand who handled the "barge work". Given the nature of the operations of the Evco Crest, it was not equipped with facilities to accommodate its crew on extended voyages. Its crew members were responsible for their own meals and returned to their homes following each twelve (12) hour shift.

[13]            Ocean's total employee compliment consisted of about fifty (50) persons with all of those persons being either crew members of Ocean's five (5) tug boats, in sufficient numbers to allow for "lay-days" when crew members were on leave, or one of a very limited number of administrative personnel including its manager and a dispatcher or dispatchers. Personnel services and presumably financial and executive services were provided to Ocean by other elements of Ocean Construction Supplies, Ltd. During the hearing before the Court, counsel implied that the organization of Ocean as a separate division of Ocean Construction Supplies, Ltd., was at least in part a response to the reality that it operated in an area of federal legislative jurisdiction in contrast with other operations of Ocean Construction Supplies, Ltd. in Canada which operated in an area of provincial legislative jurisdiction.

[14]            It was not in dispute before the Court that the work of deckhands aboard tug boats, whether "outside" or "inside", involved substantial heavy and sometimes dangerous labour. Injury to a deckhand was capable of putting that deckhand and his crew members at significant risk, given the small number of crew members on-board at any given time.

c)         The Applicant's Employment with Ocean

[15]                As earlier indicated, the Applicant commenced employment with Ocean, as a cook aboard an "outside" tug boat, in December of 1988. Between December of 1989 and mid-April, 1990, he was on bereavement leave by reason of the death of his mother. From mid-October, 1990 to early March, 1991, he was again on leave by reason of the stillbirth of his child and his own knee surgery. During this absence, in November of 1990, all cook and deckhand positions at Ocean were reclassified as cook-deckhand positions. In the result, when the Applicant returned to work in March, 1991, he found himself to be no longer a cook onboard an "outside" tug boats but rather a cook-deckhand on the same boats. He sought training in the performance of his deckhand role and in response was granted "training", for one day, as a third crew member on Ocean's one "inside" tug boat, the Evco Crest.

[16]            In late 1991, the Applicant suffered an accident at his home and injured his elbows and knees. In November, 1991, following work for 115 days in a cook-deckhand position, the Applicant sought disability leave. That leave was granted from the 5^th of December, 1991 and continued to the 4^th of April, 1993. During that leave, he underwent elbow surgery in April of 1992. Also during that leave, he was diagnosed as suffering from TOS. That condition significantly impacted his capacity for heavy physical labour, including the form of physical labour demanded of a deckhand.

[17]            In the spring of 1993, the Applicant requested that he be granted a "work trial" in the hopes of returning to deckhand work. The Tribunal found that the Applicant was, at this point in time, highly motivated to continue employment. He produced a letter from his family physician confirming that he was fit for work. Given the advice from the Applicant's physician, Mr. Chapman, Ocean's manager, directed the Applicant to report to Ocean Construction Supplies, Ltd.'s company doctor for a second report on the Applicant's fitness to return to work. The company's physician found that return of the Applicant to work for a two-week trial would be "safe". That being said, the company doctor predicted that the Applicant would have ongoing problems with deckhand work, that he would eventually require surgery for his TOS condition, and that it would be prudent that he switch to a less physically demanding job. He recommended that the Applicant quit employment as a deckhand and find a sedentary job.

[18]            After considering the two (2) medical opinions, Ocean Construction Supplies, Ltd.'s Human Resources Manager recommended that employment of the Applicant be terminated. However, Mr. Chapman agreed to give the Applicant a work trial. The Applicant in fact undertook four (4) work trials in his pre-injury position as a cook-deckhand on the "outside" tug boats, each of two weeks duration. It was at this point that the Applicant complained of his inability to sleep on the narrow bunks on the "outside" tug boats. In the result, he requested a work trial on the "inside" boat, the Evco Crest. That request was accommodated. On the 19^th of August, 1993, the Applicant had a one-day work trial on the Evco Crest.

[19]            Each of the Applicant's five (5) work trials was evaluated. The evaluations, in addition to assessing the Applicant's physical performance, dealt with his knowledge and skill, his attitude, his physical fitness and his ability to work and live with others in the confined space of a tug boat. Only one of the five (5) Masters under whom the Applicant performed a work trial recommended his retention as a cook-deckhand or deckhand. Mr. Chapman discussed the Applicant's employment future with the Applicant. He provided further long term disability forms to the Applicant. After consulting with his physician, the Applicant once again went on disability leave commencing the 20^th of August, 1993. The Applicant underwent surgery for his TOS condition. In the result, he continued on disability leave until late August, 1996.

[20]            Commencing in mid-May, 1996, the Applicant learned that his long-term disability benefits were at risk of being terminated. He sought advice from his medical doctors. They provided only equivocal recommendations that the Applicant undertake a further work trial on the Evco Crest.

[21]            Mr. Chapman met with the Applicant on the 13^th of August, 1996 and reviewed the most recent medical advice. The Applicant unequivocally sought a work trial on the Evco Crest and indicated that he was unfit for work as a cook-deckhand on the "outside" tug boats. Mr. Chapman expressed the view that it did not appear to him that the Applicant was fit to work as a deckhand on the Evco Crest.

[22]            At the request of the Applicant, Mr. Chapman spoke with the Applicant's medical specialist and with the union representative of the Applicant. During the course of Mr. Chapman's discussion with the Applicant's medical specialist, the specialist agreed with Mr. Chapman's analysis that the placing of the Applicant at that time for a work trial on a two-man boat such as the Evco Crest would not be safe. He agreed that there was real potential that the safety of the crew and vessel would be jeopardized if the Applicant were to perform the deckhand role on the Evco Crest. Mr. Chapman further consulted with Ocean Construction Supplies, Ltd.'s Human Resources Manager.

[23]            Following these consultations, Mr. Chapman concluded that the Applicant was unfit to return to work or to a work trial as a deckhand. No other position was available for the Applicant within Ocean's limited employee complement and, indeed he expressed no interest in a position other than a deckhand position. In the result, Mr. Chapman terminated the Applicant's employment with Ocean by letter dated the 29^th of August, 1996.

d)         Post-termination evidence

[24]            The Tribunal had before it substantial post-termination evidence regarding the Applicant's fitness for return to work. Such evidence was, at best, ambiguous. Above all, it indicated that, while the Applicant was challenging his termination of employment, he was at the same time challenging the discontinuation of his long-term disability benefits. In an amended Statement of Claim filed on his behalf against Ocean's long term disability insurance carrier, it was alleged that, in or about January, 1991, the Applicant, due to sickness, became wholly and continuously disabled from performing his regular work for Ocean and that he remained so disabled to the date of filing of his amended Statement of Claim in 1999.

[25]            The Tribunal determined to place no weight on the post-termination evidence^[2].

e)         Summary

[26]            While the foregoing might appear to be a somewhat extensive summary of the Applicant's employment history with Ocean, it is substantially less elaborate than the summary undertaken by the Tribunal. The Tribunal's background summary was not substantially disputed before the Court.

DECISION UNDER REVIEW

[27]            The Tribunal's reasons for its decision are extensive. They run to some 97 paragraphs. After an extensive review of the facts, the Tribunal turns to a summary of the applicable human rights law and of the law on use of post-termination evidence. It then concludes that the Applicant made out before it a prima facie case of discrimination on the basis of disability. It wrote:

I find that Mr. Quigley has met his initial onus of establishing a prima facie case of discrimination on the basis of disability. Mr. Quigley's medical condition was at least one factor in Ocean's ultimate decision to release him contrary to s. 7 of the Canadian Human Rights Act. He was terminated on the basis that his disability prevented him from returning to work. The onus shifts to Ocean to establish a BFOR [bonafide occupational requirement].^[3]

[28]            The Tribunal then goes on to examine whether Ocean met the onus upon it against the three-step test "...for determining whether a prima facie discriminatory standard is a BFOR" as established in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (hereinafter "Meiorin")^[4] and as elaborated upon in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Counsel of Human Rights) (hereinafter "Grismer")^[5].

[29]            After noting that neither the Applicant nor counsel for the Human Rights Commission who appeared before the Tribunal urged that Ocean ought to have accommodated the Applicant in any other job than that of a deckhand and that in fact negligeable evidence of the extent of Ocean's and Ocean Construction Supplies, Ltd.'s other divisions and ventures was tendered before it, the Tribunal analysed Ocean's efforts to accommodate the Applicant in the following manner:

I find that Ocean accommodated Mr. Quigley from 1991 to 1996 in a judiciously fair and reasonable manner. I heard from Mr. Chapman. At all times, he sought the due accommodation of Mr. Quigley. Indeed, he chose to retain Mr. Quigley as an employee in 1993, even though Ocean's human resource manager recommended that Mr. Quigley be terminated. As well, in 1993, he gave Mr. Quigley, not one, but several work trials. When these were not successful, he met with Mr. Quigley to understand his needs and to determine how to proceed in protecting his best interests. In 1993, Mr. Chapman received and read the medical information from Dr. Nelems, and chose to support Mr. Quigley's further disability claim.

From 1993 to 1996, he retained Mr. Quigley as a company employee and awaited his return to work post-surgery.

He also treated him fairly when Mr. Quigley sought a return to work in 1996. When he received Dr. Nelem's August 6, 1996 letter, Mr. Chapman was rightfully concerned. Dr. Nelems wrote that, according to Mr. Quigley, he was only 60% better on his right side, and that he had not fully recovered. Dr. Nelems, also, confirmed that Mr. Quigley had reached his "plateau" in terms of improvement on the right side.    Dr. Nelems, also, confirmed that Mr. Quigley had "good days and bad days". Dr. Nelems confirmed that if Mr. Quigley had a particularly problematic activity, his pain returned. Dr. Nelems found that while Mr. Quigley had improved, he would continue to have ongoing problems. Dr. Nelems, also found, that now, Mr. Quigley's "left side" thoracic problem had worsened and needed to be followed over time. In this letter, Dr. Nelems, placed the decision of whether Mr. Quigley ought to have a work trial entirely on Mr. Quigley. In fact, this cannot be the case. The company has a responsibility to ensure that the worker and his co-workers are duly protected. Dr. Nelems wrote that the company would have to be flexible to accommodate Mr. Quigley in terms of frequency and amount of work. Mr. Chapman made efforts to determine what such accommodation might entail.

Mr. Chapman made every reasonable effort to accommodate Mr. Quigley, who failed to acknowledge the seriousness of his medical condition. It was Mr. Quigley who insisted that he be allowed to work in a more onerous job than his pre-disability job of cook-deckhand. It was Mr. Quigley who insisted that he be given a work trial as a deckhand and thereby curtailed the possibility of accommodation in another job. Mr. Quigley's request was simply unrealistic: deckhand duties involved heavy lifting, upward pulling underneath the chest, and simultaneous grasping and holding, downward reaching and bending, often in the dark, and upward and downward climbing upon free swinging ladders at high elevations over the ocean or dock. The work was such that the arms were in front of and overhead of the body. It was physically demanding work involving awkward repetitive heavy reaching, pulling and bending. There was insufficient evidence before Mr. Chapman, that Mr. Quigley could perform these duties as a component of cook-deckhand work, let alone for 12 hours per day as a deckhand.

Yet, in spite of the clear implications of Dr. Nelems' medical assessment, Mr. Chapman met with Mr. Quigley to discuss how to accommodate him. When Mr. Chapman voiced his concerns, arising from Dr. Nelems report, to Mr. Quigley, Mr. Quigley asked Mr. Chapman to speak to Dr. Nelems directly. He also requested that Mr. Chapman speak with his union representative, Mr. Al Engler. Mr. Chapman agreed to both these requests. I find that he continued to search for ways to accommodate Mr. Quigley.

When Mr. Chapman spoke to Dr. Nelems, Dr. Nelems confirmed the contents of his letter. Dr. Nelems was unable to state that Mr. Quigley was capable of working as a deckhand. Dr. Nelems also testified before this Tribunal. I found him to be a physician of ideal integrity, compassion and intellectual acumen. Yet, even in his ardent desire to support Mr. Quigley, the best that he could say of Mr. Quigley's condition pre-termination, was that Mr. Quigley ought to have been given a work trial. Dr. Nelems, was scrupulous in insisting that in 1996, he had not advocated that Mr. Quigley was fit for return to work. In supporting a work trial, Dr. Nelems, acknowledged that at the time, he had been unaware of the 1993 trial on the Evco Crest, and he freely acknowledged that he did not possess specialization in ergonomics. Rather, Dr. Nelems agreed, that the Company had greater knowledge of the cook-deckhand and deckhand jobs and their requirements. Finally, in their conversation, Dr. Nelems agreed with Mr. Chapman, that it would be unsafe to send Mr. Quigley on a work trial as a deckhand as part of a two-person team. Given that Dr. Nelems' information about the job came from Quigley, who at no time explained the cook-deckhand and deckhand jobs to Dr. Nelems in necessary detail, I am not satisfied that Dr. Nelems had sufficient understanding of the deckhand job to credibly advocate a work trial for Mr. Quigley in the position. Indeed, in April of 1995, Dr. Nelems suggested that Mr. Quigley could return to work pending clearance from Dr. Lacroix, Mr. Quigley's family physician.

In sum, I find that Mr. Chapman reasonably assessed Mr. Quigley as being unfit to perform a work trial as a deckhand. His assessment was consistent with those of Dr. Nelems, Dr.Troffe and Dr. Lacroix, pre-termination. Although the Commission argues that Mr. Chapman's assessment was impressionistic, I do not agree. His assessment was based on a number of factors. These included the fact that deckhand duties were more onerous than those of the cook-deckhand and that Dr. Nelems' 1996 assessment of Mr. Quigley's medical condition was poor. Mr. Chapman also based his assessment on Mr. Quigley's marginal performance in the 1993 work trial, pre-surgery. Given that the surgery had been only 60% effective at best, and given that he now had left sided TOS, and the other medical difficulties, it was logical to believe that his abilities would have been, at best, similar to those in 1993, pre-surgery.^[6]            

[30]            In the result, the Tribunal reached the determination quoted in the introduction to these reasons.

RELEVANT STATUTORY PROVISIONS

[31]            The relevant statutory provisions underlying the decision under review are sections 2 and 7, paragraph 15(1)(a) and subsection 15(2) of the Canadian Human Rights Act^[7]. Those provisions read as follows:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

...

2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant_: le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée.

...

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

...

7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_:

a) de refuser d'employer ou de continuer d'employer un individu;

b) de le défavoriser en cours d'emploi.

...

15. (1) It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;

...

15. (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.

...

15. (1) Ne constituent pas des actes discriminatoires_:

a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l'employeur qui démontre qu'ils découlent d'exigences professionnelles justifiées;

...

15. (2) Les faits prévus à l'alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l'alinéa (1)g), s'il est démontré que les mesures destinées à répondre aux besoins d'une personne ou d'une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coûts, de santé et de sécurité.

...

THE ISSUES

[32]            In his Memorandum of Fact and Law, the Applicant defines the issues on this application for judicial review as the following: first, the appropriate standard of review of the Tribunal's decision; second, whether the Tribunal erred in improperly interpreting and applying the test regarding the establishment of a bona fide occupational requirement and the attainment of undue hardship, as identified by the Supreme Court of Canada; and thirdly, whether the Tribunal erred in failing to consider post-discharge or post-termination evidence which was highly relevant to the issue of accommodation to the point of undue hardship.

[33]            While, in respect of the third issue, the Applicant suggests that the Tribunal erred "in failing to consider post-discharge evidence", I am satisfied that the third issue might better be phrased as whether the Tribunal erred in failing to give any weight to post-discharge or post-termination evidence. It is clear to the Court that the Tribunal did in fact consider post-discharge evidence. It discusses that evidence at some length. That being said, it cannot be disputed that the Tribunal determined to give such evidence no weight^[8].

ANALYSIS

a)         The Appropriate Standard of Review

[34]            In International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster,^[9] I wrote at paragraph [22]:

Applying the guidance provided by the Supreme Court inPushpanathan, 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.                                                                  [one citation omitted]

[35]            The expression that is in quotation marks in the quoted paragraph, "fact-finding and adjudication in a human rights context", is drawn from the reasons of Justices LaForest and Iacobucci in Canada (Attorney General) v. Mossop^[10], where they wrote at page 585:

...The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability.

[36]            But the foregoing may no longer be sufficient since my quoted conclusion in Oster was not supported by a pragmatic and functional analysis. In Dr. Q. v. College of Physicians and Surgeons of British Columbia^[11], Chief Justice McLachlin, for the Court, wrote at paragraph [21] of her reasons:

In a case of judicial review such as this, the Court applies the pragmatic and functional approach that was established by this Court in U.E.S., Local 298 v. Bibeault, ..., and gained ascendancy in Canada (Director of Investigation and Research) v. Southam Inc., ..., and Pushpanathan v. Canada (Minister of Citizenship and Immigration), ... . The term "judicial review" embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal. In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach. In Pushpanathan, this Court unequivocally accepted the primacy of the pragmatic and functional approach to determining the standard of judicial review of administrative decisions. Bastarache J. affirmed that "[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed" ... . However, this approach also gives due regard to "the consequences that flow from a grant of powers" ... and, while safeguarding "[t]he role of the superior courts in maintaining the rule of law" ..., reinforces that this reviewing power should not be employed unnecessarily. In this way, the pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts' constitutional duty to protect the rule of law.                                                                                   [citations omitted, emphasis added]

[37]            An example of the application of the pragmatic and functional analysis approach with which this Court is familiar is contained in the majority reasons of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)^[12], commencing at paragraph [57]. Four factors are to be considered in a pragmatic and functional analysis: first, the presence or absence of a privative clause in the relevant statute, here the Canadian Human Rights Act; secondly, the expertise of the decision-maker; thirdly, the purpose of the provision or provisions under which the decision under review was made and of the Act as a whole; and finally, the nature of the problem in question, especially whether it relates to the determination of law or facts.

[38]            The Canadian Human Rights Act lacks both a privative clause and a statutory right of appeal in respect of decisions of the Tribunal, indicating that only a moderate degree of deference is appropriate if all other factors are equal^[13].

[39]            Subsection 48.1(2) of the Canadian Human Rights Act requires that persons appointed as members of the Tribunal "...must have experience, expertise and interest in, and sensitivity to, human rights." Subsection (3) of the same section requires that the Chairperson and Vice-Chairperson must be members in good standing of the Bar of a province or the Chambre des notaires du Québec for at least ten (10) years and that at least two (2) of the other members of the Tribunal, out of a total membership of fifteen (15), must be members in good standing of the Bar of a province or the Chambre des notaires du Québec. Subsection 49(5) provides that, if a complaint before the Tribunal "...involves a question about whether another Act or a regulation made under another Act is inconsistent with [the Canadian Human Rights Act] or a regulation made under it, ..." , the Tribunal member assigned to enquire into the complaint, or the Chair of a three (3) member panel enquiring into the complaint, must be a member of the Bar of a province or the Chambre des notaires du Québec.

[40]            It would appear that no guidance has been published with regard to "experience", "expertise and interest in" and "sensitivity to" human rights. Further, it is axiomatic that statutory or regulatory conflict are not the only questions of law that come before the Tribunal.

[41]            I am not satisfied that the foregoing cited provisions of the Canadian Human Rights Act enhanced the degree of deference owed by judges of this Court to members of the Tribunal above that which I acknowledged in Oster^[14].

[42]            The third factor to be considered is the purpose of the Act itself and of its provisions that are before the Court. Section 2 of the Act proclaims that its purpose is "...to give effect, ..." to the principle of equal opportunity for all without discrimination on the basis of enumerated grounds, which include disability. At paragraph [31] of Dr. Q., supra, the Chief Justice noted that a statutory purpose that requires a body such as the Tribunal the decision of which is here at issue, to "...select from a range of remedial choices or administrative responses, is concerned with the protection of the public, engages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court...". Such is certainly the case on the facts of this matter. By contrast, however, the Chief Justice notes that:

..., a piece of legislation or a statutory provision that essentially seeks to resolve disputes or determine rights between two parties will demand less deference. The more the legislation approximates a conventional judicial paradigm involving a pure lis inter partes determined largely by the facts before the tribunal, the less deference the reviewing court will tend to show.

Thus, on the facts before me, while the purpose of the Canadian Human Rights Act militates in favour of greater deference, the role played by the Tribunal on the facts now before the Court, essentially dealing with the resolution of a dispute or the determination of rights between two parties, will demand less deference.

[43]                 Turning to the last factor, the nature of the problem at issue, as just noted, it is in the nature of the resolution of a dispute and the determination of rights between the Applicant and Ocean. While it necessitates fact-finding and adjudication in a human rights context, that function is to be performed in the context of provisions of the Canadian Human Rights Act itself and a substantial body of judge-made law.

[44]            On the basis of the foregoing brief pragmatic and functional analysis, I am satisfied that the conclusions that I reached on the issue of appropriate standard of review in Oster, supra, remain applicable in this matter. In arriving at this conclusion, I have taken into account the much more elaborate and nuanced analysis of standard of review of decisions of Tribunals under the Canadian Human Rights Act reflected in the reasons of Justice Evans, then of the Federal Court Trial Division, in Canada (Attorney General) v. Public Service Alliance of Canada^[15], commencing at paragraph [73] of his reasons.

[45]            In what follows, in applying the appropriate standard of review, I will rely upon the following brief passage from Canada (Director of Investigation and Research) v. Southam Inc.^[16]:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

b)         Did the Tribunal err in improperly interpreting and applying the test regarding the establishment of a bona fide occupational requirement and the attainment of undue hardship?

[46]            In Meiorin^[17], Justice McLachlin, as she then was, for the Court, wrote at paragraphs [54] and [55]:

... 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.

This approach is premised on the need to develop standards that accommodate the potential contributions of all employees in so far as this can be done without undue hardship to the employer. Standards may adversely affect members of a particular group, to be sure. But as Wilson J. noted in Central Alberta Dairy Pool,..., "[i]f a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be [a BFOR]". It follows that a rule or standard must accommodate individual differences to the point of undue hardship if it is to be found reasonably necessary. Unless no further accommodation is possible without imposing undue hardship, the standard is not a BFOR in its existing form and the prima facie case of discrimination stands.                                                                       [citation omitted]

[47]            As earlier noted, the decision under review is extensive. It extends to ninety-seven (97) paragraphs. That being said, the first seventy-five (75) paragraphs are made up of an introduction, recitation of background facts and findings of fact regarding the Applicant's work history with Ocean, his periods of long-term disability leave while employed by Ocean and Ocean's efforts to accommodate his disabilities culminating with his TOS condition. Also as earlier noted in these reasons, the factual background leading up to the termination of the Applicant's employment by Ocean was essentially not in dispute before this Court. I regard all of the background fact-finding by the Tribunal, up to the point of termination of the Applicant's employment by Ocean as "fact-finding... in a human rights context". Against a standard of review of such fact-finding of patent unreasonableness, I am satisfied that the Tribunal's findings were reasonably open to it.

[48]            By contrast, the Tribunal's analysis against the "Meiorin" test for determining whether a prima facie discriminatory standard is a BFOR, is relatively brief and, in at least three respects, flawed. That test is quoted earlier in these reasons^[18].

[49]            The first stage in the "Meiorin" test is to determine the impugned standard put forward on behalf of Ocean. Here, the Tribunal only indirectly addresses this issue. Under the heading "Identifying the Standard Leading to Mr. Quigley's [the Applicant's] Release"c, it wrote:

The facts in this case are not akin those in either "Meiorin" or "Grismer". In Meorin [sic] , a particular aerobic standard was being advocated by the government for firefighters. In Grismer, a particular visual field was required of applicants seeking a driver's license. In those cases, the Court propounded the test whereby the rationality, good faith and necessity of the standard is to be judged. In this case, Ocean's standard ensured that Mr. Quigley was individually assessed by his own physician. The company's physician could accept or reject this assessment. In the event of disagreement, the company had a provision for independent examination by a physician jointly selected by the company and the employee's union. Neither, Mr. Quigley nor the Commission seriously argued that the company's procedure of assessing medical fitness for a return to pre-disability work was inherently discriminatory. The Company's practice of requiring employees seeking to return to work after prolonged illness to demonstrate their fitness for work, was consistent with the industry standard and the Canada Shipping Act. The Company's goal was to ensure that Mr. Quigley could safely and efficiently perform the tasks of his occupation. The procedure was adopted in good faith. It was reasonably necessary in that it ensured that Mr. Quigley was tested against a realistic standard that reflected his unique capabilities and inherent dignity up to the point of undue hardship. The procedure encompassed individual testing.

Rather, I interpret the arguments of Mr. Quigley and the Commission as follows:

-               That, in fact, Mr. Quigley was fit to return for a work trial and work hardening, as a deckhand, after his extended disability absence;

-               That, in fact, Ocean breached its duty to accommodate Mr. Quigley, pre-termination, by failing to accommodate his disability to the point of undue hardship. Ocean did not raise with Dr. Nelems the possibility of Mr. Quigley performing the trial as a 3rd person on the Evco Crest prior to termination. By failing to do so, it inappropriately obtained the tacit approval of Dr. Nelems to terminate Mr. Quigley. Dr. Nelems' agreement with Mr. Chapman that it would not have been safe to have Mr. Quigley perform a work trial as a member of a two-person team, was, in the circumstances, insufficient to discharge Ocean's obligations to creatively accommodate Mr. Quigley. From Mr. Quigley's perspective, Dr. Nelems' post-termination September 13, 1996 letter, supporting a work trial for Mr. Quigley as a 3rd man on the Evco Crest, provided evidence that such accommodation was possible, and ought to have been offered to Mr. Quigley in the first instance, pre-termination.

Before dealing with these arguments, I note that neither Mr. Quigley, nor the Commission, argued that Ocean ought to have accommodated him in any other job than that of deckhand. Negligible evidence of the extent of Ocean's other divisions and ventures was tendered before the Tribunal. Thus, this case is limited to very narrow factual determinations of whether Ocean ought to have and could have accommodated Mr. Quigley in the deckhand position.^[19]                                                                                                                                                            [emphasis added]

From the foregoing, I conclude that the "impugned standard" was "...medical fitness for a return to pre-disability work..." or, put another way, that the Applicant could "...safely and efficiently perform the tasks of his [former or proposed] occupation...", that being cook-deckhand or, as the Applicant advocated, deckhand. The foregoing quotation also identifies fitness to return for a work trial and work hardening and "safety" as elements of the impugned standard. I am satisfied that, in sum, the impugned standard was "physical fitness for work as a sole deckhand" directed to achievement of "safety on the water".

[50]            In Oak Bay Marina Ltd. v. British Columbia (Human Rights Commission)^[20], the British Columbia Court of Appeal had before it a somewhat similar set of factual circumstances. The primary differences were that there, the employee whose employment was terminated suffered from bipolar affective disorder rather than a physical disability. The employment from which he was terminated was that of a fishing guide. In the result, the persons whose safety was potentially put at risk were paying customers, not co-employees. The employee was there the sole employee aboard the vessel at issue and not one of a very limited number of employees. At paragraph [22] of his reasons, Justice Newbury wrote:

The application of the law regarding accommodation presents particular challenges where the disability is not a physical one but a mental one, and the "standard" (which, it bears emphasizing, was accepted by the Tribunal in this case) is not an objectively determinable "test" but is an unchallengeable sine qua non of the employer's activities - safety on the water. This is not a goal for which one strives but which one may fall short of in the ordinary course of events; OBM [Oak Bay Marina] must ensure that its guests are not only "reasonably safe" but that any material risks of mishaps at sea are eliminated if at all possible. Of course, there is always the chance, where human beings are involved, of a heart attack, but these are truly unforeseeable and therefore differ from episodic disabilities such as bipolar disorder.                                                                                          [emphasis added]

[51]            I am satisfied that much the same might be said on the facts of this matter, notwithstanding the distinction between mental and physical disabilities and notwithstanding that those who might be placed at risk are co-employees rather than "guests". Certainly the objective or "goal", notwithstanding the factual distinctions, is common: reasonable safety at sea and that "...material risks of mishaps at sea are eliminated if at all possible".

[52]            Having arrived at the "discriminatory standard" adopted by Ocean, I turn to the three (3) elements of the "Meiorin" test. The first element is that Ocean must have adopted the standard for a purpose rationally connected to the performance of the job. I am satisfied that "physical fitness for work as a sole deckhand", the standard at issue, directed as it was to achievement of safety on water, was rationally connected to the performance of the Applicant's desired occupation, that is, sole deckhand on the "inside" tug boat, the Evco Crest, manned as it was by a two-man crew. Further, I am satisfied that it was not in fundamental dispute before me that Ocean adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of the legitimate work-related purpose of safety on water.

[53]            The third element of the "Meiorin" test is slightly more problematic. For ease of reference, I repeat that element here:

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.

Looking at Ocean as a separate entity from Ocean Construction Supplies, Ltd., and it was not urged either before the Tribunal or before the Court that it should be looked at in any other way, it was a small enterprise. Its principal work units, those on board the tugboats, were very small. In particular, the only work unit in which the Applicant sought employment had a two-person complement. In the circumstances, I am satisfied that it was open to the Tribunal to conclude that it was impossible to accommodate the Applicant, given his disability, in the sole work unit in which he sought accommodation, without imposing undue hardship on Ocean.

[54]            All of the foregoing being said, counsel for the Applicant urged that Ocean's process in August of 1996 was fatally flawed. Counsel urged that, on the facts of this matter, it was simply not open to the Tribunal to examine the totality of the efforts of Ocean to accommodate the Applicant from 1991 through to the point of the termination of his employment at the end of August, 1996 but rather, that it should have more thoroughly pursued its practice or policy of full individual testing at that time. Counsel for the Applicant cited no authority for this proposition.

[55]            I am satisfied that it was entirely open to the Tribunal to take into account the totality of the efforts of Ocean to accommodate the Applicant and in particular, its efforts since the Applicant was first diagnosed with TOS in August or September, 2002. If, in August of 1996, the process leading to the termination of the Applicant's employment was less than perfect, and I am satisfied it was, I am also satisfied that the Tribunal made no reviewable error, against a standard of review of reasonableness simpliciter, in concluding that it was impossible for Ocean to further accommodate the Applicant given the extraordinary specificity of his demand in August 1996 to return to work, or at least to a work-trial, without imposing undue hardship upon itself and, more particularly, on its employees who worked aboard its inside tugboat, the Evco Crest.

c)         Whether the Tribunal erred in a reviewable manner in failing to consider post-discharge or post-termination evidence which was highly relevant to the issue of accommodation to the point of undue hardship?

[56]            As earlier noted in these reasons, I am satisfied that this issue question is mis-stated. The Tribunal did consider post-discharge, or post-termination, evidence that was before it but determined to give it no weight. The Tribunal dealt with the issue of post-termination evidence in paragraph 95 of its reasons which reads as follows:

At this point, I wish to deal with the issue of post-termination evidence adduced in this hearing. As discussed, the use of post-termination evidence has not been unequivocally endorsed by the courts. Thus, I place no weight on it. Further, even if I were to place any weight on the same, I do not find it particularly helpful to Mr. Quigley's [the Applicant's] position. The Commission and Mr. Quigley argue that this evidence supports a finding that Mr. Quigley could work as a deckhand. I do not agree. First, while a Transport Canada physician did certify Mr. Quigley as fit to perform a deckhand job in 1999, Dr. Lacroix, in her 1997 assessment of Mr. Quigley, did not agree. Dr. Nelems himself, showed deference to Dr. Lacroix, Mr. Quigley's general practitioner. Dr. Lacroix's post-termination assessment of Mr. Quigley's condition, by way of letter of April 22, 1997, is consistent with Dr. Troffe's 1993 assessment, that Mr. Quigley ought to have retired from the marine industry. In this 1997 letter, Dr. Lacroix wrote that Mr. Quigley was unable to return to work as a cook-deckhand, or in any other job. In making this assessment she observed, that from a medical perspective, he was unable to return to his difficult work on the boats. On April 21, 1997, Dr. Lacroix indicated that she encouraged Mr. Quigley to quit his work on the boats. Second, Dr. Hirsch's 1997 report was not helpful for a number of reasons. Dr. Hirsch appears to have been retained by Maritime [Ocean's long term disability insurer] to support its position that Mr. Quigley was capable of returning to work after Maritime terminated his disability benefits, and it contradicts the findings of Dr. Lacroix, and the extensive medical evidence tendered in this hearing. Lastly, I do not find the Maritime work evaluation report of May 2001, helpful for some of the same reasons. As well, it listed his many functional difficulties, and based its conclusion on the wrong NOC category. Thus, the post-termination evidence is of limited assistance to Mr. Quigley.^[21]

[57]            While the Tribunal may have overstated its case when it wrote that use of post-termination evidence has not been unequivocally endorsed by the courts, and I am satisfied that it did, I am also satisfied that, against a standard of review of reasonableness simpliciter, if that statement is less than fully correct, it does not represent reviewable error. The more important element of the Tribunal's analysis is the greater part of the quoted paragraph which concludes that the post-termination evidence is of little assistance to the Applicant. I am satisfied that this conclusion is not only reasonable, but is correct. Indeed, I would go further, based on the material before the Court, I am satisfied that the post-termination evidence, taken as a whole, is of no assistance to the Applicant.

CONCLUSION

[58]            Based on all of the foregoing, I am satisfied that this application for judicial review must be dismissed. The Tribunal made no reviewable error in arriving at the decision that it did.

COSTS

[59]            As indicated earlier in these reasons, assuming success on Ocean's part, Ocean sought its costs, if demanded. I am satisfied that it is appropriate on this application for judicial review that costs follow the event. That being said, I will not order costs against the Applicant in circumstances where they are not demanded by Ocean. There will be no order as to costs for or against the Canadian Human Rights Commission.

________________________________

J.F.C.

Ottawa, Ontario

April 29, 2004

                        FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                                                   T-709-02

STYLE OF CAUSE:                                                 PATRICK E. QUIGLEY v. OCEAN CONSTRUCTION SUPPLIES LTD ET AL

PLACE OF HEARING:                                            Ottawa, Ontario

DATE OF HEARING:                                               April 6, 2004 and April 7, 2004

REASONS FOR ORDER:                                      The Honourable Mr. Justice Gibson

DATED:                                                                      April 29, 2005                                    

APPEARANCES:

Mr. Paul Champ                                                                    for the Applicant

Mr.    Michael W. Hunter                                                         for the Respondent

SOLICITORS OF RECORD:

Raven Allen Cameron

& Ballantyne                                                                            for the Applicant                    

Ottawa , Ontario

Mr. Morris Rosenberg                                                           for the Respondent

Deputy Attorney General of Canada