Canada (Attorney General) v. Racicot, docket T-1694-93

     T-1694-93

OTTAWA, ONTARIO, TUESDAY, JUNE 17, 1997

PRESENT: MR. JUSTICE RICHARD

IN THE MATTER OF an application for judicial review under sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7;

AND IN THE MATTER OF the decision of an appeal board established under section 31 of the Public Service Employment Act made by Pierre Baillie, chairman of the appeal board, on June 17, 1993, in respect of the appeal by Jules Racicot under section 31 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (Appeals Branch file no. 93-DND-0304-R)

B E T W E E N:

     ATTORNEY GENERAL OF CANADA,

     Applicant,

     - A N D -

     JULES RACICOT,

     Respondent.

     O R D E R

     The decision of the Chairman of the appeal board, Pierre Baillie, dated June 17, 1993, is set aside and the matter is referred back to an appeal board established under section 31 of the Public Service Employment Act to be decided on the basis of the record, taking into account the reasons stated in this decision.

                                     J.D. RICHARD

                                     Judge

Certified true translation

C. Delon, LL.L.

     T-1694-93

IN THE MATTER OF an application for judicial review under sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7;

AND IN THE MATTER OF the decision of an appeal board established under section 31 of the Public Service Employment Act made by Pierre Baillie, chairman of the appeal board, on June 17, 1993, in respect of the appeal by Jules Racicot under section 31 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (Appeals Branch file no. 93-DND-0304-R)

B E T W E E N:

     ATTORNEY GENERAL OF CANADA,

     Applicant,

     - A N D -

     JULES RACICOT,

     Respondent.

     REASONS FOR ORDER

RICHARD J.

     This is an application for judicial review seeking to have a decision made by Pierre Baillie, the chairman of an appeal committee established under section 31 of the Public Service Employment Act,¹ on June 17, 1993, set aside. The chairman of the appeal board allowed the appeal by the respondent, in respect of whom a recommendation that he be released had been made to the Public Service Commission, under section 31 of the Public Service Employment Act, by his superiors, who had come to the conclusion that he would be incapable of properly performing the duties of the position he occupied.

FACTS

     The facts out of which this dispute arose are as follows. The respondent holds a store services position (GS-STS-04) in the Operations Division of the 202 Warehouse Depot in Montreal, Quebec, a division that is part of the Department of National Defence. The respondent has been employed by that Department since January 15, 1974.

     From January 15, 1991, to March 18, 1991, the respondent was absent from work because of back pain, a symptom of a deviation of the spinal column which was diagnosed by a physician. After examining the respondent, Dr. George Murray, a specialist in orthopaedics, diagnosed a personal congenital dorso-lumbar condition. This diagnosis was subsequently confirmed by another orthopaedist, Dr. André Gilbert, on August 23, 1991.

     On November 3, 1992, Dr. Germain Vigneault (of Health and Welfare Canada) concluded that the respondent could no longer safely perform the duties of his work. This conclusion was also confirmed by Dr. Marc Goulet on January 22, 1993. Dr. Goulet then recommended that the respondent be assigned to work that would take the following functional limitations into account:

     [translation]

- Avoid repetitive movements involving flexing and extending the lumbo-sacral rachis.

- Avoid frequent lifting of weights over 20 to 25 pounds.

     The chairman of the board found that the Department of National Defence had installed counters at an appropriate height to make the store services employees' work easier.

     It also appears that efforts were made at the Department of National defence in March and June 1992 to examine the possibility of reassigning the appellant. However, those efforts did not produce any results.

     In response to the recommendation to the Public Service Commission by Major-General R.N. Fisher that the appellant be released under section 31 of the Public Service Employment Act, the respondent exercised his right of appeal under subsection (2) of section 31.²

     On June 17, 1993, the chairman of the appeal board found that the respondent was incapable of performing the duties of the position he occupied. The chairman of the appeal board also decided that the Minister's decision was premature. It is that decision that is the subject of this application for judicial review. The chairman cited MacNeill v. Attorney General of Canada,³ which was decided in the Trial Division by Mr. Justice Muldoon. It is important to point out that since the chairman of the appeal board made his decision on June 17, 1993, that decision has been reversed by the Federal Court of Appeal.

     The appeal board clearly found that the respondent was incapable of performing the duties of the position he occupied. The chairman of the appeal board stated:

     [translation]

It seems apparent, according to the medical report submitted by the Department, which was not contradicted before me, that the appellant Racicot has become incapable of performing the duties of the position he occupies as those duties are to be performed at present. From the medical standpoint, it is therefore totally contra-indicated for him to be able to continue performing the duties of his employment as they now stand.

     The chairman of the board criticized the employer for refusing to retain the services of an occupational therapist and give him access in the workplace. According to the applicant, the employer had no duty, in the case of a congenital illness or pre-existing personal condition, to retain the services of a specialist in occupational therapy.

     According to the applicant, the decision of the deputy head to recommend that the respondent be released was justified, reasonable and bona fide. The appeal board was not entitled to apply the Canadian Human Rights Act⁴ as it did, and on this point he cited the comments of Robertson J.A. of the Federal Court of Appeal in MacNeill.⁵

ISSUES RAISED BY THE APPLICANT

The principal questions

(1) Did the board err in law and exceed its jurisdiction by applying the provisions of the Canadian Human Rights Act in this case, particularly since the board acknowledged that the respondent had become incapable of performing the duties of the position he occupied?

(2) Did the board err in law and decline to exercise its jurisdiction by not dismissing the respondent's appeal once it had found that the respondent was incapable of performing the duties of the position he occupied?

The secondary questions

(3) Did the board err in law by finding that the employer had discriminated against the respondent in making the recommendation that he be released?

(4) Did the board err in law by imposing a duty of accommodation on the employer and by deciding that the employer had failed in that duty?

(5)      If there was direct discrimination, did the board apply the concept of bona fide occupational requirement correctly?

DECISION

     I believe that this matter may be disposed of by answering the first question in issue in the affirmative. First, what should really be asked is whether the appeal board had the authority to apply the Canadian Human Rights Act as it did in this case. On this point, I adopt the comments of Robertson J.A. of the Federal Court of Appeal in MacNeill.⁶ Robertson J.A. clearly decided that an appeal board established under the Public Service Employment Act was a tribunal whose jurisdiction was limited to the jurisdiction conferred on it by Parliament. He stated:⁷

The Appeal Board, like all tribunals, is a statutory body with no inherent jurisdiction. It may decide a matter only if Parliament has expressly or impliedly conferred on it power over the parties, the subject-matter and the remedy. This general principle was clearly articulated by La Forest J. in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, at page 14:

It is essential to appreciate that s. 52(1) does not function as an independent source of an administrative tribunal's jurisdiction to address constitutional issues. Section 52(1) affirms in explicit language the supremacy of the Constitution but is silent on the jurisdictional point per se. In other words, s. 52(1) does not specify which bodies may consider and rule on Charter questions, and cannot be said to confer jurisdiction on an administrative tribunal. Rather, jurisdiction must have expressly or impliedly been conferred on the tribunal by its enabling statute or otherwise. This fundamental principle holds true regardless of the nature of the issue before the administrative body. [Emphasis is mine.]

         [Emphasis added by Mr. Justice Robertson]

     Later,⁸ observing that there was no section in the Public Service Employment Act that empowered an appeal board to apply the Canadian Human Rights Act, Mr. Justice Robertson stated:

I was not directed to any provision in the PSEA which impliedly confers jurisdiction on the Appeal Board to apply the CHRA. The legislation before us contrasts sharply with that considered in Cuddy Chicks, supra, which expressly empowered the Labour Relations Board to decide questions of law and to determine questions of law and fact relating to its own jurisdiction.

     Mr. Justice Robertson then cited the decision of the Federal Court of Appeal in Canada (Attorney General) v. Viola.⁹ In that case, Mr. Justice Décary, speaking for the Court, decided that an appeal board under the Public Service Employment Act had no jurisdiction to decide whether a department had complied with the provisions of the 1988 Official Languages Act, and accordingly had no authority to apply that Act. Mr. Justice Décary stated:¹⁰

Unless the Act itself contains some indication that Parliament intended to give an appeal board a new jurisdiction affecting the department's managerial rights, the appeal board will have to resign itself to continuing to perform the function it has until now exercised, and to leave to other jurisdictions the responsibility for deciding whether a department has complied with the provisions of the 1988 Official Languages Act.

     We should also refer to the decision in Ahmad v. Public Service Commission,¹¹ in which the Federal Court of Appeal held that the person who made the recommendation for release or demotion had to act honestly, and based on an observation made in good faith. Chief Justice Jackett stated:

In the absence of arbitrary standards laid down by law, competence or incompetence is not something that can, or must, be determined, as a matter of law, by application of a rule. Whether or not a person is competent or incompetent for a post is a matter of opinion, and, in the absence of any special legal direction, all that the law can imply with regard thereto is that it must be honestly formed, and that it must, in the first instance at least, be based upon the observation, by those under whom he works, of the manner in which the person whose competence is in question carries out his duties. In particular circumstances, rough and ready rules of thumb may be adopted by such persons as an aid to the formation of the required opinion; but, in my view, in the absence of

(a) some failure to apply properly some specific statutory or other legal direction, or

(b) proof of bad faith on the part of those whose observations and judgment are in question,

a board of review established under section 31 would not be justified in deciding that a deputy head's recommendation should not be acted upon unless it had before it material that satisfied it, as a matter of fact, that the deputy head was wrong in forming the opinion that the person in question was "incompetent in performing the duties of the position he occupies."

     It was also argued in MacNeill that the decision in Ahmad v. Public Service Commission constituted the source of the so-called implied jurisdiction of appeal boards to apply the Canadian Human Rights Act. The argument went as follows. It was argued that the expression used by Chief Justice Jackett in the original English version, "or other legal direction", implied the Canadian Human Rights Act and the interpretation of that Act. Mr. Justice Robertson responded to that argument as follows:¹²

It is argued that the CHRA and its judicial interpretation constitute "legal directions" which the Appeal Board must apply in order to fulfil its statutory mandate under section 31. With respect, I do not think that the reasoning of this Court in Ahmad, supra, extends the jurisdiction of the Appeal Board beyond its legislated mandate. The "legal directions" to which Ahmad refers correspond to simple rules of general application. For example, in Dansereau v. Canada (Public Service Appeal Board), [1991] 1 F.C. 444 (C.A.), this Court imposed a duty on employers to give sufficient notice of unsatisfactory performance to employees before recommending release. Similarly, in Clare v. Canada (Attorney General), [1993] 1 F.C. 641 (C.A.), it was held that an employer, which had implemented an employee counselling programme, is obligated to refer an employee to counselling services at the employee's request before he or she is released. These rules are conditions precedent which must be satisfied before the deputy head recommends an employee's release. They are true "legal directions" which the Appeal Board is required to apply to discharge its mandate under section 31 of the PSEA.

Interpretation and application of the CHRA is, by contrast, intricate. It does not lend itself to creating simple "legal directions" except, of course, those by which the deputy head is bound. For example, the deputy head is charged not to discriminate against an employee when making a recommendation to the Appeal Board. However, the determination of whether a certain practice constitutes direct or indirect discrimination is not a "legal direction." The divergent opinions of this Court and the Supreme Court, regarding the definition and effects of direct and indirect discrimination, underlines the complexity and elusiveness of those concepts.

---

     In the case before us, there is no evidence on which we could doubt the bona fides of the respondent's supervisors or of Major-General R.N. Fisher, the deputy head who made the recommendation to the Public Service Commission that the respondent be released because of incapacity. The supervisors observed the manner in which the respondent was performing his duties and determined that he was incapable as a result of an illness that was personal to him, and this medical diagnosis was confirmed by a number of expert physicians skilled in this field.

     In view of the fact that the chairman of the appeal board erred in law and consequently answered the first question in issue in the affirmative, it is not necessary to deal at length with the questions of the nature of the discrimination allegedly suffered by the respondent, or the question of the duty of accommodation or the concept of bona fide occupational requirement, as they have become purely academic.

     However, I would like to note that I have read the opinion of Madam Justice Desjardins in MacNeill. She decided that section 31 of the Public Service Employment Act is a case of direct discrimination. However, as Madam Justice Desjardins concluded, that section itself contains a bona fide occupational requirement which is consistent with paragraph 15(a) of the Canadian Human Rights Act.¹³

---

     Accordingly, the decision of the chairman of the appeal board, Pierre Baillie, dated June 17, 1993, is set aside and the matter is referred back to an appeal board established under section 31 of the Public Service Employment Act to be decided on the basis of the record, having regard to the reasons stated in this decision.

                                     J.D. RICHARD

                                     Judge

Ottawa, Ontario

June 17, 1997

Certified true translation

C. Delon, LL.L.

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO:      T-1694-93

STYLE OF CAUSE:      Attorney General of Canada

     v. Jules Racicot

PLACE OF HEARING:      Ottawa, Ontario

DATE OF HEARING:      June 11, 1997

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:      June 17, 1997

APPEARANCES:

Rosemarie Millar              FOR THE APPLICANT

James Cameron              FOR THE RESPONDENT

SOLICITORS OF RECORD:

George Thomson

Deputy Attorney General of Canada              FOR THE APPLICANT

Ottawa, Ontario

Raven, Jewitt & Allen              FOR THE RESPONDENT

Ottawa, Ontario

__________________

¹      R.S.C. 1985, c. P-33, as amended.

²      That section reads as follows:
     Incompetence and Incapacity      31(1) Where an employee, in the opinion of the deputy head, is incompetent in performing the duties of the position the employee occupies or is incapable of performing those duties and should be appointed to a position at a lower maximum rate of pay, or released, the deputy head may recommend to the Commission that the employee be so appointed or released, in which case the deputy head shall give notice in writing to the employee of the recommendation.      (2) Within such period after receiving a notice under subsection (1) as the Commission prescribes, the employee may appeal against the recommendation of the deputy head to a board established by the Commission to conduct an inquiry at which the employee and the deputy head, or their representatives, shall be given an opportunity to be heard.      (3) The Commission, on being notified of the decision of the board on the inquiry into a recommendation conducted pursuant to subsection (2), shall, in accordance with the decision,          (a) notify the deputy head concerned that the recommendation will not be acted on; or          (b) appoint the employee to a position at a lower maximum rate of pay, or release the employee.      (4) If no appeal is made against a recommendation of a deputy head under subsection (1), the Commission may take such action with regard to the recommendation as the Commission sees fit.      (5) The Commission may release an employee pursuant to a recommendation under this section and the employee thereupon ceases to be an employee.

³      [1993] 3 F.C. 575; (1993), 93 CLLC 17,021; 64 F.T.R. 41

⁴      R.S.C. 1985, c. H-6

⁵      MacNeill v. Canada (Attorney General), [1994] 3 F.C. 261; (1994), 169 N.R. 368 (leave to appeal denied by the Supreme Court of Canada).

⁶      Ibid.

⁷      Ibid. at p. 290

⁸      Ibid. at p. 293

⁹      [1991] 1 F.C. 373

¹⁰      Ibid. at p. 388

¹¹      [1974] 2 F.C. 644, at pages 646 and 647

¹²      Supra, note 5 at pp. 295 and 296.

¹³      That paragraph reads as follows:
     15. 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;