Schut v. Canada (Attorney General), docket T-2429-95

T-584-95

T-2429-95

IN THE MATTER OF an application to section 18.1 of the Federal Coaurt Act, R.S.C. 1985, c. F-7, as amended, to review and set aside the decision of the Canadian Human Rights Commission dated October 27, 1995, respecting a complaint filed by the Applicant with the Canadian Human Rights Commission in accordance with the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (CHRC File No. H31464).

BETWEEN:

DANNO SCHUT

Applicant,

- and -

ATTORNEY GENERAL OF CANADA,

Respondent,

- and -

CANADIAN HUMAN RIGHTS COMMISSION,

Intervenor.

REASONS FOR ORDER

     This is an application for judicial review of a decision of the Canadian Human Rights Commission (the "Commission") dated October 27, 1995, dismissing the applicant's complaint of discrimination against his employer, pursuant to sub-paragraph 44(3)(b)(i) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act).

Background

     The applicant commenced employment with the Department of Transport (the "Department") in October 1985 as a term employee in the Search and Rescue branch. He subsequently accepted an indeterminate position in Coast Guard Emergency planning. In 1988, he was advised that his position with the Department was being phased out and applied, therefore, for a position as an Assistant Marine Controller. The position of Assistant Marine Controller is a training position for employment as a Marine Controller. The Department refused the applicant's request For transfer on the grounds that he did not have the necessary certification and that he would be unlikely to satisfy the visual acuity standards for the position. The Department asserts that it is a Bona Fide Occupational Requirement (BFOR) that an employee filling the position of Assistant Marine Controller satisfy both the certification and vision standards.

     The applicant suffers from a visual impairment which is known as a print handicap. Although considered legally blind, he can read with the assistance of visual aids. There is no dispute that the applicant suffers from a disability within the meaning of section 3 of the Act. The Department requires that an applicant for the position of Assistant Marine Controller have a visual acuity of 6/9 in each eye. A grandfathering clause exists for employees who have been employed with the Department since 1973 or earlier. Persons protected by this clause must meet the visual acuity standard of 6/9 in both eyes tested together, not separately. In a report from the applicant's optometrist it was established that the applicant did not meet the requirement in each eye separately, but would qualify if tested for both eyes together.

     The applicant first initiated a complaint against the Department on August 3, 1989. The ground for this complaint was discrimination on the basis of disability contrary to section 7 of the Act. The applicant maintained that he was denied an assignment to a training position as an Assistant Marine Controller despite having the basic qualifications and abilities for the position and that other people with fewer qualities and abilities were assigned to the position. The applicant's allegation is that the Department's visual acuity standard discriminated against him on the basis of his visual impairment.

     The Commission appointed an investigator to inquire into the applicant's complaint. The applicant provided the names of several persons he wished the investigator to contact since he felt that these persons would help establish the validity of his complaint. The investigator contacted some but not all of the witnesses identified by the applicant.

     The applicant and the Department were advised that the investigation was complete on December 9, 1992, and both were given a copy of the report. The investigator's findings included a recommendation that a conciliator be appointed to attempt to bring about a settlement of the complaint. Both parties were given an opportunity to make further written submissions to the Commission and both took the opportunity to do so.

     The Commission considered the matter and advised the applicant and the Department on April 18, 1995, that it had decided to dismiss the complaint on the grounds that the allegation of discrimination was unfounded. The applicant contested the decision on the grounds that the Commission had failed to disclose the written submissions of the Department to the applicant prior to the decision. This Court quashed the decision of the Commission and sent the complaint back to the Commission to be reconsidered.

     At the time of the second hearing the Department did not make any further submissions. The applicant did make further submissions in reply to the earlier submissions of the Department. There was no further investigation on behalf of the Commission. By decision dated February 10, 1995, the Commission once again dismissed the complaint on the grounds that the allegation of discrimination was unfounded. This decision was set aside a second time on procedural fairness grounds since the Commission did not have the appendices from the applicant's second submission before them at the time of the decision. MacKay J. ordered that the matter be sent back for reconsideration and that the Commission render "full and complete reasons for its decision." He further ordered that the application for judicial review of the February 10th decision be stayed pending the reconsideration of the Commission.

The matter was reconsidered by the Commission and a decision rendered on October 27, 1995. At the time of the decision the Commission had before them the Investigator's report, one submission from the Department and two submissions from the applicant. The submissions from the applicant contained, as appendices, letters from several of the witnesses that the applicant had identified but the investigator failed to interview. In particular, the applicant included letters from Major Schonberg, Warrant Officer Copeland, Captain Witch, Lieutenant Colonel Forestall, Sergeant Gledhill and Art Sakamoto. On the basis of the evidence before it, including the applicant's submissions, the Commission dismissed the complaint. The complete reasons of the Commission are as follows:

Having reviewed the above documents, the Commission decided to dismiss your complaint because it is of the opinion that given the job requirements, the respondent's visual acuity and certification rules are reasonable and justifiable. On the basis of the information available, it appears that you do not meet these requirements.

Further, as the position involves work which can have an impact on the safety of co-workers and the general public, these rules appear to meet the legal tests set out by the courts, for example in Ontario Human Rights Commission v. Borough of Etobicoke, SCC., 1982 and in Canada (A.G.) v. Canada (Human Rights Commission) and Husband, Fed. C.A., 1994.

Therefore, the Commission has decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint because on the evidence an allegation of discrimination is unfounded. Accordingly, the file on this matter has been closed.

     Counsel for the Commission noted that the Commission normally issues reasons which are one line in length. In other words, the Commission's reasons, at this preliminary stage, contain no reasons. While counsel for the Commission argued that these reasons are "full and complete" in comparison to those normally issued by the Commission, it is unnecessary for me to determine whether or not the Commission complied with the order of Justice Mackay. Nevertheless, I should add that "full and complete" reasons might contain a reasonably complete account of the facts which form the basis of the decision.

     By order dated February 16, 1996, Richard J. ordered that the applications for judicial review of the Commission's decision of February 10, 1995, and October 27, 1995, be heard together. The decisions under review for the two files are essentially the same and it is, therefore, the third decision of the Canadian Human Rights Commission which is the subject matter of this review.

ISSUES

Did the Commission commit a reviewable error in deciding to dismiss the applicant's complaint by:

a) Making a decision in the absence of all relevant evidence, thereby breaching the principles of natural justice and fairness ?

b) Making a finding of a BFOR where no evidence existed to support this finding?

c) Failing to exercise its discretion to request that a tribunal be appointed?

    

ANALYSIS     

     It is well established that the standard of review for a human rights tribunal is correctness: Madsen v. Canada (Attorney General) (1996), F.T.R. 181 (T.D.) at page 187. The decision under review is a discretionary one. In Madsen, supra, at page 187, Heald J. stated as follows:

In order for the court to interfere with this discretionary decision of the CHRC, the court must be satisfied that the discretion was exercised in bad faith, not in accordance with the rules of procedural fairness, and/or reliance was placed upon irrelevant considerations.

(See also [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v Government of Canada, [1982] 2 S.C.R. 2.) The applicant submits that the Commission erred in law by basing its decision on an incomplete report, making a finding of a BFOR where no evidence existed to support the finding and failing to exercise its discretion to appoint a tribunal. In my opinion, the central issue arising in this case is whether there was sufficient evidence to support the Commission's finding of a reasonable and justified BFOR.

     When the Commission receives a complaint it may dismiss the complaint or appoint an investigator to examine the complaint further (section 43). In the case at bar, the Commission appointed an investigator to review the applicant's case. The Commission may dismiss a complaint according to sub-paragraph 44(3)(b)(i) of the Act where: "having regard to all the circumstances of the complaint an inquiry is not warranted." The Commission concluded that the occupational requirement of the employer was reasonable and justified and, therefore, the allegation of discrimination was unfounded. In effect, the Commission determined that the Department justified its allegation of a BFOR, thereby rendering the differential treatment of the applicant non-discriminatory within the meaning of subsection 15(a) of the Act.

    

     It is now well established that the investigator operates as an extension of the commission which has broad discretion. An investigator's report is challengeable if it can be shown that the investigator was neither thorough nor neutral. Moreover, if an investigator is not thorough it must be demonstrated that the additional evidence was of a fundamental nature and could not be brought to the Commission's attention through other means or, that merely drawing the Commission's attention to this fundamental evidence cannot compensate for its omission: Slattery v. Canada (Canadian Human Rights Commission), [1994] F.C. 574 (T.D.). It was clear in the case at bar that the nature of the evidence of the persons not interviewed was brought to the Commission's attention through the applicant's submissions. I am not satisfied that this additional evidence, which was submitted to the Commission by the applicant, and which was not contained in the investigator's report, is of such a nature that the Commission was deprived of the opportunity to base its decision on "all the circumstances of the complaint" (subsection 44(1)).

     Regardless of the conclusions above, I must consider whether the evidence provided by the Department claiming the existence of a BFOR was sufficient. The applicant submits that the respondent had to satisfy both the subjective and objective components of the test for a BFOR: [1982] 1 S.C.R. 202">Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202; Central Alberta Dairy Pool v Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; and Large v. Stratford, [1995] 3 S.C.R. 733. There are no allegations that the alleged rule was made in bad faith contrary to the subjective requirements of a BFOR. Therefore, I must consider whether the Department's employment rule satisfies the objective elements of the test. In the applicant's submission., the Department had to prove that: the BFOR was required for the adequate performance of the work involved, was reasonably necessary and that the employer could not deal with the employees on an individual level, such as individual testing, rather than instituting a blanket rule.

     The applicant submits that the Commission should have appointed a tribunal. The Supreme Court of Canada has held that the Commission must determine whether there is sufficient evidence to warrant sending the matter forward to a tribunal. This does not involve a weighing of evidence such as would occur at a formal hearing, but simply at determination of whether there is a reasonable basis on the evidence to warrant advancing the complaint: S.E.P.Q.A. v. Canada (C.H.R.C.), [1989] 2 S.C.R. 979 at 899. Accordingly, I do not agree with the applicant's submission that the Defendant was required to "prove" every element of the BFOR test before the Commission could dismiss the complaint. The Commission need only be satisfied that there is sufficient evidence to establish the bona fides of the occupational requirements. If so, the actions of the Department would be considered non-discriminatory under the Act.

     The Commission, in considering the applicant's complaint, had before it the investigator's report, the submission of the Department and the submissions of the applicant. Included in the Department's submission was: evidence of the existence of a visual acuity standard, the position of the Department as to why the standard was necessary, and a report commissioned by the Department to determine whether the certification requirements constituted a BFOR. The defendant submits that on the basis of this evidence there was sufficient material before the Commission to determine that a legitimate BFOR of visual acuity existed. The applicant submits that there was no evidence on which the commission could find the existence of a BFOR for visual acuity.

    

     When a BFOR is justified the employer is permitted to impose a rule which differentiates between employees on the basis of general personal characteristics. It is only in the clearest of cases that the courts should allow this type of exception to the rule against discrimination to exist. In order to qualify, the employer must prove that the requirements are reasonably necessary for the adequate performance of the job and that there are no reasonable alternatives to the establishment of such restrictions. In general, to establish necessity the employer is required to show that the employee would pose a safety risk related to economic harm, harm to fellow employees or harm to the general public. Proof of this must be concrete and scientific and not merely impressionistic: [1982] 1 S.C.R. 202">Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202 at 210, Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297, and Large v. Stratford, [1995] 3 S.C.R. 733.

     The Department adduced evidence of the existence of a requirement regarding visual acuity, the job requirements for the position of Assistant Marine Controller and the employer's opinion that the restrictions were necessary for the position. There was no scientific evidence presented which related to either the physical limitations of persons with visual acuity below the standard or how the limitations related to the requirements of the job. There was also no evidence lead as to the necessity of the job restrictions and why other reasonable alternatives were not possible. Mere opinion of the necessity of an employment rule is not evidence upon which the Commission could conclude that the employer's rule was reasonable and justified. In my opinion, the evidence was clearly insufficient to establish the existence of a reasonable and justified BFOR relating to visual acuity. While the Department may be able to establish a BFOR at this preliminary stage, given the history of this matter and the nature of the requirements for such a rule, a Tribunal might be the most appropriate vehicle to resolve this matter.

     Given my conclusions herein it is unnecessary to deal with the question of certification.

     The decisions of the Commission dated October 27, 1995, and February 10, 1995 shall be set aside. The matter shall be returned to the Commission for reconsideration in accordance with these reasons.

                                 Wetston J.

                        

                                 J.F.C.C.

Ottawa, Ontario

October 2, 1996