Date : 20040316
Docket : T-1585-02
Citation : 2004 FC 380
BETWEEN :
DENNIS MULDOON
Applicant
AND :
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of a decision dated August 21, 2002, in which RCMP Commissioner Zaccardelli ("the Commissioner") denied the Applicant's Level II grievance. The Applicant seeks an Order quashing the decision of the Commissioner, and remitting the matter back for reconsideration.
[2] Constable Dennis Muldoon ("the Applicant") was employed by the RCMP from November 28, 1977 until September 24, 2002, when his Level II grievance regarding his medical discharge from the RCMP was dismissed by the Commissioner. The Applicant suffered a duty-related back injury when he was involved in a serious police car accident in 1983. At that time, the Applicant took a six-month medical leave. He continued in active service until he took a further medical leave on October 24, 1996.
[3] In April 1997, the Applicant was assessed by a Health Services Officer who determined that he no longer met the minimum medical requirements for general duty constables. The Health Services Officer concluded that the Applicant "was not considered employable by the Force in any capacity" (an Occupation 6 category).
[4] A Medical Board was convened pursuant to the RCMP medical discharge procedure. On August 24, 1998, the Medical Board concluded that the Applicant was suffering from a chronic physical condition with "little likelihood for significant improvement in the foreseeable future." The Board assessed the Applicant against the "1993 RCMP General Duty Constable Integrated Task Bank," and concluded that he was unable to perform thirteen of the listed tasks. In its report the Board stated that the Applicant was:
...unable to physically restrain people and his agility is reduced, he is unable to carry or drag heavy objects or push vehicles, he is incapable of intense work for long periods as when on highway patrol or in other police vehicles, he is unable to chase persons to the point of apprehension and in general has a physical fitness below that of the average person.
[5] On January 5, 1999, the Applicant was served with a notice of discharge from the RCMP. The letter stated that the decision was based in part on the Medical Board's finding that the Applicant was unable to meet many of the tasks listed for constables, and because regular members of the RCMP are expected to perform the full range of activities which may be assigned to them, not just those which are assigned at any given point in time. It also indicated that the RCMP had been unable to identify another position commensurate with the Applicant's medical profile.
[6] The Applicant filed a grievance regarding his medical discharge, and on July 16, 2001, this Level I grievance was denied.
[7] On August 23, 2001, the Applicant filed a Level II grievance, which was referred to the External Review Committee for independent review ("ERC").
[8] On February 12, 2002, the Chair of the ERC disagreed with the conclusion of the Level I Adjudicator, and recommended that the Applicant's grievance be allowed. He determined that the medical discharge process followed by the RCMP was fundamentally flawed, and inconsistent with the Supreme Court of Canada's decision in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 ("Meiorin"). The Chair noted that the standard in Meiorin emphasized the RCMP's obligation to find alternative work for the Applicant so that he could continue to carry out a productive and meaningful role as a member of the RCMP. He found that the onus was on the RCMP to establish that the Applicant could not be accommodated, and that appointing the Applicant to a position in which he lacked some of the essential qualifications would create an undue hardship on the RCMP. Additionally, it was held that the RCMP had to consider the possibility of training or other professional development so that the member might perform meaningful work. The Chair concluded that there was insufficient evidence on which it could be determined that the RCMP had met this onus to accommodate the Applicant.
[9] On August 29, 2002, the Commissioner denied the Applicant's Level II grievance, in spite of acknowledging that the current policy of the RCMP "with respect to medical discharge of regular members, as applied in this case, failed to meet the requirements of the law as set out in section 15 of the Canadian Human Rights Act [R.S. 1985, c. H-6] and as enunciated by the Supreme Court of Canada in the Meiorin decision."
[10] In denying the Applicant's grievance, the Commissioner provided the following reasons:
...I am satisfied that there is sufficient information on the record in this case to enable me to address this grievance in a manner that is consistent with section 15 of the Canadian Human Rights Act and the Meiorin decision, and I will do so.
I accept the medical evidence on the record which shows that [the Applicant's] medical condition has, unfortunately, left him with very limited physical abilities, and as a secondary effect, has resulted in reduced interpersonal skills. The [Health Services Officer] assigned a medical profile of "06" to [the Applicant] - not considered employable by the Force in any capacity - and the Task Bank analysis performed by the medical board indicated that he could fully perform only 2 out of the 14 listed tasks.
There is no requirement to accommodate an employee in a case where the medical findings indicate that the employee is not employable in any capacity. In the Ball Packaging case [(1990) 12 L.A.C. (4th) 145], where the medical findings indicated a total disability and unfitness to engage in any gainful employment, the arbitrator made the following ruling:
In the circumstances before me the only effective accommodation would be to negate any attendance at work by the grievors and that goes well beyond a reasonable accommodation to the existing handicap in the performance of regular work.
In my view, that reasoning applies in this case. [The Applicant's] medical condition is such that he cannot be depended upon to perform any duties. An accommodation in any regular member or civilian member position within the RCMP, even with an alteration of duties, equipment or work conditions, would still require the RCMP to waive the requirement that [the Applicant] be available to perform his required duties.
In applying the Meiorin analysis, I find that such a waiver would constitute an undue hardship on the RCMP. Therefore, [the Applicant's] grievance is denied, and he is to be discharged from the RCMP.
[11] The applicant now seeks to have that decision set aside on the grounds that the Commissioner committed a jurisdictional error as well as erring in law and in fact in making his decision. In particular, the Applicant maintains that the Commissioner erred in law by failing to apply the Meiorin standard.
[12] I am granting the application for the following reasons.
[13] In Meiorin, the Supreme Court of Canada developed a three-pronged approach to use in determining whether an employer has established, on a balance of probabilities, that a prima face discriminatory standard is a bona fide occupational requirement ("BFOR"). In other words, what is sufficient to constitute a defence to an allegation of discrimination relating to employee standards. Writing for a unanimous court, Justice McLachlin, as she then was, outline the test at para 54:
Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
[14] Both parties agree that failing to apply the Meiorin standard to a disabled employee constitutes an error of law. As stated above, although the Commissioner agrees with the ERC that the RCMP medical discharge policy is not in accordance with the current law, the Commissioner asserts that the Meiorin standard had been satisfied because the Applicant suffers from "total disability and unfitness to engage in any gainful employment," with the result that any accommodation would lead to undue hardship for the RCMP.
[15] The Applicant submits that the lack of evidence in support of this factual assertion, and the failure of the RCMP to provide or seek any analysis of the Applicant's inability to perform tasks other than those of a general duty constable, demonstrate that the Meiorin standard has not been satisfied. The documents relied on by the Commissioner focus only on the inability of the Applicant to work as a general duty constable. The Applicant submits that to rely on those documents to determine that he cannot be accommodated limits the Applicant to only a general duty constable position. The Applicant submits that this limited accommodation is inconsistent with Meiorin, and constitutes an error of law warranting judicial review of the Commissioner decision.
[16] In its written submissions, the Respondent argues that the since the Commissioner specifically referred to section 15 of the Canadian Human Rights Act, and the Meiorin decision, and by recognizing the inadequacies of existing RCMP policy and urged changes, it is clear that he directed his mind to the concerns raised by the ERC's report. With all of this being said, he still denied the grievance, which the Respondent suggests shows he was acutely aware of the RCMP's duty to accommodate, limited only by undue hardship.
[17] In determining whether the Commissioner correctly applied the Meiorin standard, its necessary to analyze the decision utilizing the three-part test. With regards to the first two steps in the test, I agree with the observations of the ERC, in that there seems to be no question that the first two parts of the test have been met. The physical standards contained in the Constable Task Bank were likely adopted to ensure that constables can work safely and efficiently. I have no doubts that the RCMP adopted these standards in an honest and good faith belief that the ability to perform these tasks are necessary.
[18] That being said, it is the third part of the test in which I agree with the Chair of the ERC that the RCMP has not met. The Chair could not find evidence to prove that the RCMP was unable to accommodate the Applicant without experiencing undue hardship. However, the Commissioner concludes that this onus has been met, without citing any evidence of any concrete attempts by the RCMP to accommodate.
[19] In order to fulfill the onus placed upon the RCMP in the third part of the test, it must establish that it cannot accommodate the Applicant and others adversely affected by the standard without experiencing undue hardship. The RCMP has not demonstrated this, and as such, the Commissioner incorrectly applied the law when he stated that "[a]n accommodation in any regular member or civilian member position within the RCMP, even with an alteration of duties, equipment or work conditions, would still require the RCMP to waive the requirement that Constable Muldoon be available to perform his required duties. In applying the Meiorin analysis, I find that such a waiver would constitute an undue hardship upon the RCMP."
[20] I agree with the ERC that the internal process followed by the RCMP focussed too much on determining what were the Applicant's physical restrictions, and too little on what duties he was still able to perform. As I understand it, the duty placed upon an employer to accommodate is far more extensive than the RCMP's own internal policy recognizes, which is likely why the Commissioner took this opportunity to essentially re-write the policy regarding medical discharges. The current RCMP policy seems to only provide for disabled members to be considered for positions for which they are regarded as fully qualified for. It does not follow from this that appointing a member to a position for which the member lacks some of the essential qualifications would create an undue hardship for the RCMP. The RCMP has an obligation to do more than simply compare the Applicant's qualifications to the requirements of existing positions. Meiorin effectively places the onus on the RCMP to explain why it cannot continue to employ the Applicant, and the RCMP has fallen far short of this meeting this standard.
[21] Finally, section 32(2) of the RCMP Act acknowledges that the Commissioner is not bound by a decision of the ERC. However, it does require the Commissioner to provide reasons if deviating from the recommendations of the ERC. The Commissioner here has failed to do so.
[22] Although the Applicant's medical condition is serious with no real likelihood of a significant recovery, the RCMP still owed a duty of accommodation to the Applicant. While the Commissioner correctly stated the law relating to accommodation of a disabled employee, he incorrectly applied the law to the facts of this case in concluding that the RCMP had met this onus.
[23] The Commissioner erred in law when he failed to correctly apply the Meiorin standard. As a result, judicial intervention is warranted, and this application for judicial review is hereby granted. The decision of the RCMP Commissioner dated August 21, 2002, is set aside and the matter is remitted back for reconsideration and redetermination in accordance with these reasons.
JUDGE
OTTAWA, Ontario
March 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1585-02
STYLE OF CAUSE: DENNIS MULDOON v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: CALGARY, AB
DATE OF HEARING: DECEMBER 8, 2003
REASONS FOR [ORDER or JUDGMENT] : ROULEAU, J.
DATED: March 16, 2004
APPEARANCES:
Mr. D. Robb Beeman FOR APPLICANT
Calgary, AB
Mr. David Stam FOR RESPONDENT
Edmonton, AB
SOLICITORS OF RECORD:
Mr. D. Robb Beeman FOR APPLICANT
Heenan Blaikie LLP
Mr. David Stam FOR RESPONDENT
Deputy Attorney General of Canada
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