Date: 20100603
Docket: T-1521-09
Citation: 2010 FC 605
Ottawa, Ontario, June 3, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THOMAS
TINNEY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Tinney’s complaint to the Canadian Human Rights Commission that his employer,
Correctional Services of Canada (CSC), discriminated against him in his
employment and failed to accommodate his disability was referred by the Commission
to a Tribunal; or was it?
[2]
In
the unique facts underlying this application, there are two issues that require
the Court’s determination. First, whether the Commission was functus officio
and without jurisdiction when it purported to “correct” its earlier advice to
Mr. Tinney that it was referring his complaint to a Tribunal and second, if it
was not functus officio, whether it erred in dismissing his complaint.
[3]
These
very discrete issues are dealt with separately; however, for the reasons that
follow, I find in favour of the respondent on both.
I. Whether the Commission Was
Functus
Background
[4]
Mr.
Tinney filed his complaint of discrimination with the Commission on December
28, 2007. In keeping with its usual process, the Commission assigned one of its
staff members to investigate the complaint.
[5]
On
December 16, 2008, the investigator completed his investigation, and wrote a
report recommending that the complaint be dismissed. His report was
distributed to the parties and, in keeping with the Commission’s usual
practice, the parties were invited to make submissions in response; both did.
[6]
By
letter dated March 12, 2009, the Secretary to the Commission writes to the
parties. She stated that she is “writing to inform you of the decision taken
by the Canadian Human Rights Commission.” She stated that the Commission
reviewed the investigator’s report and the submissions filed by the parties and
then says:
After examining this
information, the Commission decided, pursuant to paragraph 44(3)(a) of the Canadian
Human Rights Act, to request the Chairperson of the Canadian Human Rights
Tribunal to institute an inquiry into the complaint as it is satisfied that,
having regard to all the circumstances, an inquiry is warranted.
[7]
Shortly
thereafter, Mr. Tinney received correspondence from the Commission’s Director
and Senior Counsel of its Litigation Services Division advising him that the
Commission would not be participating in the Tribunal’s hearing on the merits
of his complaint. He also received correspondence from the Registrar of the Tribunal
informing him that his complaint “has been referred by the Canadian Human
Rights Commission, to the Canadian Human Rights Tribunal for inquiry and
decision.” It goes on to inform him of the Tribunal’s process and that a case
management conference call with the parties is to be held on April 22, 2009.
Matters appeared to this point to be proceeding in the normal and usual course;
however, this was soon to change.
[8]
On
April 16, 2009, Legal Counsel to the Commission wrote to the parties informing
them of an “error” on the part of the Commission. His letter provides as
follows:
In a letter from Lucie Veillette dated
March 12, 2009, you were advised of the Commission’s decision to refer the
complaint in this case to the Canadian Human Rights Tribunal.
It has since been brought to our
attention that there had been an error in the drafting of the decision and
that, as a result, the decision did not express the manifest intention of the
Commission to dismiss the complaint in this case.
I write to advise the parties and the
Tribunal that, in the circumstances, the complaint will be resubmitted to the
Commission with a recommendation (1) that the Commission reconsider its
decision and (2) that the complaint be dismissed. The parties will be given the
opportunity to present written submissions to the Commission before it renders
its decision.
We apologise for the
inconvenience this may cause the parties and the Tribunal. We hope that,
pending the Commission’s decision, the parties will continue settlement
discussions in this matter and we would be happy to participate or host any
mediation in this respect.
[9]
Upon
receipt, Mr. Tinney wrote to the Commission requesting copies of the minutes of
the Commission meeting at which his complaint was decided. The Commission
responded, providing the chart of the six cases submitted to the Division 2
Member Meeting (redacted to omit personal information) and the recommendation
made in each. Mr. Tinney’s complaint was identified as file No. 20071443.
Also provided was a copy of an email dated March 4, 2009 from David Langtry,
Deputy Chief Commissioner, one of the two members who sat at that meeting,
instructing Ian Fine, Director General and Senior General Counsel, that “Commissioner
Bell and I have read and discussed at March 4 10h00 Division II cases (20071512
through 20061443) and concur with the recommendations made in each and every
case, with the exception of case 2008064 and 20061443 as set out below.”
[10]
The
Commission’s letter goes on to explain how the “error” occurred:
The Secretary to the
Commission advised the parties of the Commission’s decision. In the present case,
the decision should have been the dismissal of Mr. Tinney’s complaint. The
error, [sic] stems from the fact that two files hold almost the same
number, differing by one number only, the year of their filing. Mr. Tinney’s
file number of 20071443 and Ms. Ng Man Chuen is 20061443.
The latter file was one of the two exceptions where the Commission did not
follow the investigator’s recommendation and decided to refer the complaints to
the Tribunal.
[emphasis in the original]
[11]
The
applicant takes the position that “the Commission was functus officio
and without jurisdiction to reconsider its March 12, 2009 decision.” The respondent
submits that the “Commission accidentally sent the wrong letter … [that its]
intention was always to dismiss the Applicant’s complaint [and that] the
Commission was not functus officio and had jurisdiction to correct an
administrative error.”
Analysis
[12]
The
parties and the Court are agreed that the question of whether the Commission
was functus officio or not is a question of law and the applicable
standard of review is correctness.
[13]
The
parties and the Court are also agreed that the leading authority on the
doctrine of functus officio is the decision of the Supreme Court of
Canada in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R.
848. In Chandler, the Court held that once an administrative tribunal,
such as the Canadian Human Rights Commission, has made a final decision, it is
then functus officio and cannot revisit the decision, except where (a)
“there had been a slip in drawing it up” or (b) “there was an error in
expressing the manifest intention” of the tribunal. The respondent submits
that both exceptions apply in the present circumstances.
[14]
The
process to be followed by the Commission when considering the report of an
investigator into a complaint and the options available to it are set out in
section 44 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 which
is reproduced in Annex A. The statute provides that upon receipt of the
investigator’s report the Commission “may” request the Chairperson of the
Tribunal to institute an inquiry into the complaint if it is satisfied that an
inquiry is warranted or it “shall” dismiss the complaint if it is satisfied
that an inquiry is not warranted (subsection 44(3)). The Commission is also
required to “notify in writing” the parties of which “action” it has taken
(Subsection 44(4)). Accordingly, the letter dated March 12, 2009 is the
written notification of the action taken as required by subsection 44(4); it is
not, in itself, the decision of the Commission under subsection 44(3). The
decision of the Commission under subsection 44(3) was that made by Deputy
Commissioner Langtry and Commissioner Bell on or before March 4, 2009.
[15]
It
is unfortunate that there were no minutes taken of the meeting of the
Commission that is referenced in the email from the Deputy Commissioner dated
March 4, 2009. There is nothing in the Act that requires that the Commission
maintain written minutes of its meetings nor is there anything in the record
before the Court that indicates that such is required. Nevertheless, the
better practice would be to have a written record of individual decisions made by
the Commission under section 44 of the Act. Email correspondence, while
convenient, is lacking in the formality one expects from a tribunal tasked with
such important decisions. Further, had formal minutes been made, the “error”
that happened here may not have occurred.
[16]
I
am satisfied, based of the record before the Court, that on or before March 4,
2009, the Commission made a final decision concerning the applicant’s
complaint. That decision was to dismiss his complaint. In my opinion, this
decision is evident from the email message sent on March 4, 2009. There is
nothing in the record, aside from the letter sent to the parties on March 12,
2009, that is evidence of any different decision and that letter is mere
notification, it is not, in itself, the decision.
[17]
There
is no provision in the Act that permits the Commission to reconsider a final
decision that it has made. As such, I am of the view that the reconsideration
by the Commission described in its letter dated April 16, 2009 was not only
inappropriate but the “reconsidered decision” referenced in the Commission’s
letter dated August 11, 2009 was without jurisdiction and was a nullity. What
the Commission ought to have done when it discovered that the notification of
its decision as contained in its letter dated March 12, 2009 was inaccurate,
was to inform the parties in writing of that error and to have corrected it by
notifying them of the decision that the Commission had made, which was to
dismiss the complaint.
[18]
I
am satisfied that the letter dated March 12, 2009 contained an error in drawing
up the decision made earlier and that this error could be corrected by the
Commission.
II. Whether the Commission Erred
in Dismissing the Complaint
Background
[19]
Mr.
Tinney was a Food Services Officer employed by CSC in a correctional
institution preparing meals and supervising inmates in food preparation. In
July 2004, and again in August 2005, he was accused by two inmates of having
inappropriately touched them (sexual assault). Investigations were conducted
by his employer and the Ontario Provincial Police; both found the allegations
to be unfounded.
[20]
In
September 2005, Mr. Tinney took a leave of absence for medical reasons. He was
subsequently diagnosed with post traumatic stress disorder (PTSD). Dr. Little,
his physician, provided notes to CSC supporting his absence. In his note dated
October 6, 2005 he states that Mr. Tinney would benefit from returning to work
but at a location other than Bath or Millhaven where the allegations of
abuse had been made.
[21]
Alternative
positions were offered to Mr. Tinney throughout his absence but are rejected by
him. There is a dispute between the parties as to whether these positions met
his medical restriction or were in fact bona fide offers of positions.
Dr. Lille in his last note dated January 11, 2006 writes that Mr. Tinney may
return to work but “he should not return to any correctional institution.” Mr.
Tinney is then offered and he accepts a position outside the perimeter of the
institution on February 22, 2006 and he later accepts a position at Regional
Headquarters in records management.
[22]
On
December 28, 2007, Mr. Tinney files his complaint with the Commission. He
alleged that he had been treated in a manner different from other employees
because of his disability. Specifically, he alleged that CSC, upon receipt of
the first complaint, moved him to Millhaven, rather than transfer the inmate
and that CSC failed to inform him for three days of the second complaint during
which time he worked with the inmate who had accused him of assault. He
alleges that this delay caused or contributed to his PTSD.
[23]
The
investigator found this aspect of the complaint to be unfounded. He accepted
the explanation of CSC for its actions but importantly found that “when the
respondent made those decisions, the complainant did not have a disability.”
Because Mr. Tinney did not have a disability at the time these decisions were
made, whether he was treated differently than others or not, the treatment was
not because of his subsequent disability and thus there was no breach of the
Act. In my view, the investigator’s reasoning is unassailable.
[24]
Mr.
Tinney also complained that CSC had not accommodated his disability. CSC
replied that it was not until January 11, 2006 when it received the final note
from Doctor Little that Mr. Tinney could not return to work in an institution,
that it was aware of his actual limitation and that it then located alternative
employment outside a correctional institution. It submitted that it attempted
previously to accommodate his disability based on information provided to it
from time to time by Dr. Little. Based in large measure on statements made to
the investigator by Mr. Tinney, the investigator concluded “that the
complainant’s understanding of his disability evolved during the five months
that followed the filing of the second complaint and it was only in January
2006, that he was able to identify with his doctor which accommodation measures
he really required.”
[25]
The
investigator found the complaint that CSC had failed to accommodate Mr.
Tinney’s disability to be unfounded. He wrote in his report:
The complainant’s
understanding of his disability grew as time passed and as the respondent
presented offers of accommodation to him. The respondent’s offers always
corresponded to the medical restrictions the complainant communicated. As the
respondent made offers to the complainant, the complainant realized that these
offers were not for him and he sought further medical clarification. The
respondent cannot be held responsible for not being able to offer the right job
to the complainant without complete medical information.
[26]
The
investigator provided his report to the parties and invited their submission.
Mr. Tinney, through his union representative provided eight pages of
submissions.
[27]
Mr.
Tinney submits that the report was flawed because the investigator failed to
conduct a thorough investigation. The lack of thoroughness, he submits is
evident because:
a.
the
investigator failed to interview Dr. Little;
b.
the
investigator failed to interview any of the CSC representatives; and
c. the
investigator failed to interview any of Mr. Tinney’s union representatives.
Analysis
[28]
The
jurisprudence is clear: There is no requirement that a human rights
investigator interview every witness proposed or identified by the parties: Miller
v. Canada (Canadian
Human Rights Commission) (1996), 112 F.T.R. 195. However,
it is equally clear that an interview is required where a reasonable person
would expect evidence useful to the investigator in his determination would be
gained as a result of the interview (Egan v. Canada (Attorney General),
2008 FC 649) or where there is a witness that may have information that could
address a significant fact and where no one else has been interviewed that
could resolve that important and controversial fact (Busch v. Canada (Attorney
General), 2008 FC 1211).
[29]
In
spite of Mr. Raven’s forceful submissions, I agree with the respondent that
none of the witnesses and their purported evidence meet this test.
[30]
No
employer attempting to accommodate a disabled employee can act on information
other than that which is provided to it. In this case, the information changed
over time. Dr. Little’s opinion as to the required accommodation is set out in
his various notes to CSC. The applicant seems to suggest that an interview
with the doctor was required in order to conclude, as was done by the
investigator, that Mr. Tinney “communicated different messages at different
times because his own understanding and his doctor’s understanding of his needs
evolved during his leave of absence.” However, the notes speak for themselves
and they do contain differing restrictions. Further, it was the applicant
himself who informed the investigator that it was only in January 2006 that he
was able to identify with his doctor the accommodation measures he really
required and it is noted that the PTSD diagnosis was only communicated to CSC
by the doctor in November 2005 when Dr. Little wrote that as a result he should
have no “direct contact with inmates” but “could return to work in a different
environment.”
[31]
Perhaps
Dr. Little knew more and perhaps he could expand on the advice offered in his notes
but the fact remains that his advice to CSC, as it understood it, is exactly
what was set out in those notes and there can be nothing controversial about
that advice or anything useful that he might provide through an interview
because what is relevant is only what the employer knew at that time.
[32]
Mr.
Tinney further submits that an interview with Dr. Little was required before
the investigator could conclude that the employer’s offers always corresponded
to the medical restrictions provided. In particular, the applicant says that an
interview to determine such compliance is required “given the employer’s
repeated offers of work within Bath and Millhaven institutions directly
contradict Dr. Little’s October 6, 2005 note, which expressly states that Mr.
Tinney should not work in those institutions.” The October 6, 2005 note does
not expressly or otherwise state any such thing. It states that “it is my
professional opinion that he would benefit from returning to work in an
institution other than Bath or Millhaven.” It was only on January 11,
2006 when Dr. Little advised that Mr. Tinney should not return to any
institution that it was clear that accommodation would have to be sought
elsewhere.
[33]
The
applicant submits that it was necessary to interview his union representatives
and representatives of CSC given the dispute between the parties as to whether
the proposed accommodation offers satisfied Mr. Tinney’s medical restrictions.
I fail to see how the representatives of either party could provide any factual
evidence that would assist in that determination. The facts of the
restrictions are set out in the notes from Dr. Little and the relevant detail
of the positions advanced are not in any real dispute. All that is in dispute
is the conclusion to be reached as to whether those offers met the stated
conditions. That is a conclusion that must be reached by the investigator
based on the evidence. I am of the view that the investigator’s conclusion
that they matched the restrictions was reasonably open to him based on the
facts.
[34]
In
summary, the investigator was thorough in his job and his conclusions were reasonable,
based on the evidence before him. This application must be dismissed.
[35]
Both
parties asked for costs and were agreed that a reasonable amount would be an
award of $3000, inclusive of fees, disbursements and taxes. The Commission is
largely responsible, in my view, for the situation before the Court because of its
error in the initial notification to the parties of its decision. In the
circumstances, I exercise my discretion not to award costs.
JUDGMENT
THIS COURT
ORDERS that:
1.
This
application is dismissed; and
2. No costs are
awarded.
“Russel W. Zinn”
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