Date: 20090116
Docket: T-93-08
Citation: 2009 FC 36
Ottawa, Ontario, January 16,
2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
KENNETH
BARTKUS
Applicant
and
CANADA
POST CORPORATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Kenneth Bartkus worked at Canada Post
Corporation for over 23 years. In 2004, Canada Post let him go. Mr. Bartkus
alleges that Canada Post’s decision was sparked by his request to be placed on
sick leave. Canada Post maintains that the dismissal resulted from Mr.
Bartkus’s refusal to comply with a requirement to respond to a letter of offer
within a particular deadline.
[2]
Mr. Bartkus complained to the Canadian Human
Rights Commission alleging discrimination on grounds of disability. In 2007,
after an investigation, the Commission concluded that an inquiry into the
complaint was not warranted and dismissed it.
[3]
Mr. Bartkus argues that the Commission erred in
failing to refer the complaint for a hearing before a tribunal. Essentially, he
submits that the evidence clearly showed that he was dismissed just after
Canada Post learned that he was dealing with health issues that prevented him
from returning to work. In addition, Mr. Bartkus claims that the investigation
into his complaint lacked thoroughness and impartiality. Finally, Mr. Bartkus
alleges that the Commission treated him unfairly by failing to consider his
full submissions and supporting evidence.
[4]
Mr. Bartkus asks me to order the Commission to
reconsider his complaint. However, I can find no basis for overturning the
Commission’s decision and must, therefore, dismiss this application for
judicial review.
[5]
There are two main questions before me: (1) Did
the Commission treat Mr. Bartkus unfairly by relying on an inadequate
investigation or by failing to consider Mr. Bartkus’s evidence and submissions?
(2) Was the Commission’s decision unreasonable?
I.
Factual Background
[6]
Mr. Bartkus began working at Canada Post in
1981. In 1986, his position as Customer Service Analyst was downgraded and, in 1989, his position became surplus.
He took various positions on a temporary basis while waiting for a permanent
position to open up.
[7]
From the fall of 2000 to the spring of 2004, Mr.
Bartkus worked on the Business Transformation Project, a special project that
required him to work long hours and endure significant stress. In 2003, Canada
Post retroactively elevated Mr. Bartkus’s classification from “A3” to “A4”,
although he remained on surplus status. When this project was finished, he took
a 63-day leave of absence based on the overtime he had accumulated to that
point.
[8]
On May 12, 2004, just before he took his leave,
Canada Post offered Mr. Bartkus a permanent position as Clerk Trace Mail at the
A4 level commencing in August 2004. Under the collective agreement, Canada Post
was obliged to keep the position open for 24 hours.
[9]
On May 19, 2004, Mr. Bartkus acknowledged the
offer, but was concerned that his acceptance would jeopardize an outstanding
grievance relating to his classification. He was given until May 28, 2004 to
decide whether to accept the offer. Mr. Bartkus resented being rushed, but
indicated that he would be prepared to sign the offer “under protest”. However,
he did not do so. In a letter dated June 9, 2004, Canada Post gave Mr. Bartkus
a further deadline of June 14, 2004. He was also informed that he could accept
the position and continue to prosecute his outstanding grievance. However, if
he failed to accept, he would be laid off.
[10]
On June 10, 2004, Mr. Bartkus informed Canada
Post by letter that he would “not be accepting any permanent positions until I
have appropriately addressed certain unethical conduct concerning the
evaluation of my PM1 position”. He went on to say that he was “on ‘Overtime
Compensation Leave’ but [had] encountered some unwelcome health issues that
have rendered me unfit for duty.” He asked to be put on sick leave and to have
his overtime leave credited for the duration of his illness. This was the first
time that Mr. Bartkus had mentioned any health issues in his correspondence
with Canada Post.
[11]
Canada Post says that it received Mr. Bartkus’s
letter on June 16, 2004, two days after the extended deadline. Given his
statement that he would not accept the offered position, Canada Post informed
Mr. Barkus by way of a letter dated June 17, 2004 that his employment would be
terminated as of the date he received the letter (June 21, 2004).
II.
The Commission’s Decision
[12]
On November 22, 2005, Mr. Bartkus complained to
the Canadian Human Rights Commission alleging discrimination on the basis of
disability. Included in the complaint were allegations of discrimination dating
back to 1993. Mr. Bartkus had experienced a dependency on alcohol during the
early 1990s and some documentation related to that issue remained in his file.
[13]
In 2006, the Commission narrowed Mr. Bartkus’s
complaint to the events that had transpired in the spring of 2004. It undertook
to consider whether Canada Post had discriminated against Mr. Bartkus by
terminating his employment “due to a disability of which the respondent was
aware”.
[14]
The portion of Mr. Bartkus’s complaint relating
to his termination in 2004 states that he believed that Canada Post’s offer was
a “permanent demotion” resulting from his disability, being alcohol dependency.
He alleged that Canada Post had reached back into his past difficulties with
alcohol to achieve a long-standing desire to demote him.
[15]
The Commission assigned an investigator who
prepared a report dated September 11, 2007. The investigator framed the issue
as follows:
“At issue in
this complaint is whether the complainant’s failure to comply with the
respondent’s administrative requirements (i.e. to return a signed letter of
offer) and his subsequent termination of employment on 17 June 2004 was based
on a disability (alcoholism).”
[16]
He concluded that:
• Mr. Bartkus was given a total of 32 days to
consider the offer of a permanent position, “far beyond the 24-hour period
stipulated in the Collective Agreement”;
• Canada Post had informed Mr. Bartkus of the
consequences of failing to accept the offer;
• Canada Post was unaware of any disability
prior to Mr. Bartkus’s June 10, 2004 letter, which it received on June 16,
2004;
• There was no link between Mr. Bartkus’s
disability and the termination of his employment; and
• Canada Post terminated Mr. Bartkus’s
employment for his failure to accept the offer made to him within the deadlines
imposed and this had nothing to do with Mr. Bartkus’s prior dependency on
alcohol.
[17]
Mr. Bartkus responded to the investigator’s
report. He questioned whether the investigator had fully examined the issue
whether Canada Post knew that Mr. Bartkus was a recovering alcoholic at the
time of his dismissal. He also criticized the investigator’s failure to
consider whether Canada Post was aware of any other disability he was experiencing
at the time. While the investigator had noted that Mr. Bartkus was tired and
stressed after he finished the Business Transformation Project, he did not
fully explore this as a possible “disability” of which Canada Post had been
made aware by way of Mr. Bartkus’s reference to “unwelcome health issues” in
his June 10, 2004 letter. Finally, Mr. Bartkus questioned the investigator’s
conclusion that the evidence was insufficient to trigger a duty to accommodate
him in the workplace. This duty, he alleged, arose from Canada Post’s knowledge
of the stress he had been dealing with and his express disclosure of “unwelcome
health issues”.
[18]
In this response, Mr. Bartkus asserted that he
was “completely unable to follow Canada Post’s administrative requirements” due
to his disability.
[19]
The Commission reviewed the investigator’s
report and the parties’ responses to it. It concluded that the information
available to Canada Post at the time did not trigger a duty to accommodate Mr.
Bartkus’s disability. Further, the evidence did not support Mr. Bartkus’s
suggestion that he had been terminated because of his disability (i.e., alcohol
dependency). Accordingly, the Commission decided that an inquiry into the
complaint was not warranted.
III.
The Standards of Review
[20]
Mr. Bartkus argues that the issue before the
Commission was a pure question of law – whether he had made out a prima
facie case of discrimination. Accordingly, I should overturn the
Commission’s decision if I find that it was incorrect.
[21]
In my view, however, the case law does not
support Mr. Bartkus’s position. Generally speaking, the Commission’s decision
whether to submit a complaint to further inquiry involves an analysis of the
supporting facts and the application of a legal standard. It deserves a certain
degree of deference. I can overturn the Commission’s decision only if I find
that it was unreasonable: Sketchley v. Canada (Attorney General) (2006), 263 D.L.R.
(4th) 113 (F.C.A.); Bastide v. Canada Post Corp., 2005
FC 1410, at para. 34-35; Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 51; Bateman v. Canada (Attorney General), [2008] F.C.J. No. 510 (F.C.).
[22]
I do agree, however, that the question of what
is meant by a “prima facie case” is, indeed, a question of law. Mr.
Bartkus maintains that the Commission applied the wrong definition. If it did,
then I must overturn its decision.
[23]
However, Mr. Bartkus also submits that the
evidence clearly established a prima facie case of discrimination on the
part of Canada Post. The fact that he was dismissed immediately after
disclosing a disability amounted to direct discrimination, while the fact that
that his employment was terminated during a period when he was incapable of
responding to the letter of offer amounted to indirect discrimination. Given
that these are questions of mixed fact and law, I can overturn the Commission’s
decision only if it was unreasonable.
[24]
Finally, I can overturn the Commission’s
decision if it treated Mr. Bartkus unfairly in the process leading to the
Commission’s decision.
IV.
A Prima Facie Case
[25]
The question facing the Commission was whether
there was a reasonable foundation in the evidence supporting Mr. Bartkus’s case
that would justify further inquiry: Clark v. Canada (Attorney
General), [2007] F.C.J. No. 20 (QL), at para. 76 (F.C.). Mr. Bartkus
submits that a prima facie case is one which “covers the allegations
made and which, if they are believed, is complete and sufficient to justify a
verdict in the complainant’s favour in the absence of an answer from the
respondent-employer” (citing Ontario (Human Rights Commission) v. Simpsons
Sears Ltd., [1985] S.C.J. No. 74, at para. 28) .
[26]
Mr. Bartkus interprets this definition as
meaning that, when deciding whether a complainant has made out a prima facie
case, the Commission must take all of his or her allegations as being true and
must not take into account any evidence or submissions of the respondent. I do
not read the definition that way.
[27]
The passage in the Simpsons Sears case
describes the threshold at which a respondent will be put to its case. It is a
rule about the burden of proof at a hearing before a tribunal. It does not
establish the test or the methodology to be applied by the Commission at the
stage where it is deciding whether a complaint merits further inquiry. It is
clear that in making that determination, the Commission must consider the
overall merits of the complaint by weighing, albeit in a limited way, the
evidence presented by the parties: Clark, above, at para. 76-81.
V.
Did the Commission Treat Mr. Bartkus
Unfairly?
[28]
Mr. Bartkus raised a number of concerns about
the process of the investigation and the Commission’s screening of his
complaint.
(a)
A Narrow and Inadequate Investigation
[29]
Mr. Bartkus submits that the investigator
focussed exclusively on the part of his complaint relating to alcohol
dependency and failed to analyze his allegation that he was incapable of
responding to Canada Post’s offer. He also argues that the investigator made
factual errors in his report.
[30]
As mentioned, the investigator did acknowledge
Mr. Bartkus’s stress and fatigue. However, he concluded that the information
available to Canada Post was insufficient to trigger a duty to accommodate Mr.
Bartkus. I interpret this conclusion as encompassing Mr. Bartkus’s allegation
that Canada Post was aware that he was tired and stressed, and had received
confirmation of his circumstances in the June 10, 2004 letter. As I see it, the
investigator did not fail to address this issue. He simply found that the
evidence did not support Mr. Bartkus’s allegation.
[31]
As for factual errors, Mr. Bartkus points to the
investigator’s statement that Canada Post received Mr. Bartkus’s letter on June
16, 2004 which was “two days after the termination of the complainant’s
employment”. In reality, the termination did not take effect until, on June 21,
2004, Mr. Bartkus received the dismissal letter, which was dated June 17, 2004.
The investigator was referring to the June 14, 2004 deadline for a response,
not the actual termination date. He went on to state that the information
available to Canada Post was insufficient to trigger a duty to accommodate Mr.
Bartkus and that there was no link between his disability and the termination
of employment.
[32]
I do not regard this as a serious factual error.
The investigator’s conclusions were supportable in any case.
(b)
A Limited Analysis of the Evidence and Submissions
[33]
Mr. Bartkus maintains that the investigator did
not insist that Canada Post answer the investigator’s questions during the
investigation. Further, the investigator failed to interview some witnesses and
to review Mr. Bartkus’s personnel file. Finally, the Commission did not have
before it all of the submissions filed by Mr. Bartkus, only those that had been
filed in relation to the investigation.
[34]
In February 2007, the investigator posed a
number of questions to Canada Post about Mr. Bartkus’s complaint. Canada Post
responded with a lengthy written submission. True, the response did not track
the investigator’s request question-by-question. Still, it appears that Canada
Post provided a substantive response that addressed the investigator’s
principal concerns.
[35]
Generally speaking, investigators have wide
latitude in deciding whom to interview or what material to review: Slattery
v. Canada (Human
Rights Commission), [1994] 2 F.C. 574, at para. 69
(T.D.). The ultimate question is whether the investigation was impartial and
sufficiently thorough.
[36]
The Commission had before it the submissions
made by the parties in response to the investigator’s report. It did not have
before it submissions that had been made by the parties in respect of the
earlier proceedings before the Commission relating to the narrowing of Mr.
Bartkus’s complaint. I do not see any unfairness in this. The Commission
considered the submissions that were most relevant to its decision. It had no
duty to consider representations in respect of other issues at earlier points
in time.
[37]
I cannot find any unfairness in the manner in
which Mr. Bartkus was treated by the investigator or the Commission.
VI.
Was the Commission’s Decision Unreasonable?
(a)
Canada Post’s Decision to Terminate Mr.
Bartkus’s Employment
[38]
Mr. Bartkus submits that Canada Post clearly
dismissed him because of the disability he disclosed in his letter of June 10,
2004. He notes that Canada Post would have been entitled to dismiss him on June
15, 2004 after he had missed the deadline of June 14, 2004. The fact that it
waited until June 17, 2004 shows that the critical factor must have been his
disclosure of a disability in his letter of June 10, 2004, which Canada Post received
on June 16, 2004. He suggests that the Commission’s failure to recognize this
was unreasonable.
[39]
In my view, the Commission’s conclusion that
there was insufficient evidence supporting Mr. Bartkus’s claim of
discrimination was reasonable. In all of the communications between Mr. Bartkus
and Canada Post there was no reference to any health issues until Mr. Bartkus’s
June 10, 2004 letter in which he declined the offer. The fact that Canada Post
would have been entitled to dismiss him sooner, and did not, merely shows that
it was attempting to work with a person whom it presumably considered a
valuable employee. It does not show that Canada Post’s decision was based, even
in part, on the reference to undefined health issues in the June 10, 2004
letter.
[40]
Nor was there evidence that the persons involved
in terminating his employment had any knowledge of Mr. Bartkus’s issues with
alcohol more than a decade earlier. I cannot find, therefore, that the
Commission’s conclusion that there was insufficient evidence to justify further
inquiry into this aspect of his complaint was unreasonable.
(b)
Mr. Bartkus’s Inability to Respond to the Letter
of Offer
[41]
This issue was not mentioned in Mr. Bartkus’s
original complaint, but was cited in later written submissions. Mr. Bartkus
argues that the Commission erred by failing to analyze it expressly.
[42]
In its decision, the Commission addressed the
question whether the information available to Canada Post triggered a duty to
accommodate Mr. Bartkus’s disability. As I read it, this issue includes the
allegation that Canada Post was aware that Mr. Bartkus was incapable of
complying with the requirement to respond to its offer within the imposed
deadlines. The investigator referred to the fact that Mr. Bartkus had been
enduring stress and fatigue during the relevant time-frame. Mr. Bartkus’s
submissions to the investigator and to the Commission addressed very clearly
this aspect of his complaint. In turn, the Commission dealt with it by way of
its finding that “the evidence indicates that the information available to the
respondent was not sufficient to trigger a duty to accommodate.”
[43]
Further, this conclusion was reasonable in light
of the evidence. The only indication that Mr. Bartkus was experiencing poor
health was set out in his June 10, 2004 letter in which he expressly turned
down Canada Post’s offer. As I see it, Mr. Bartkus was not incapable of
responding to the offer – he did respond, by rejecting it. Further, the
reference to “unwelcome health issues” was too vague to give notice to Canada
Post that Mr. Bartkus was experiencing a problem that interfered with his
ability to consider the offer. Canada Post could not have known whether Mr.
Bartkus had a minor, transient sickness (e.g., the flu) or a more
serious condition. In addition, looking at the June 10, 2004 letter, Mr.
Bartkus’s apparent purpose in disclosing these health issues was to ensure that
he would not lose compensatory leave while he was sick. It did not appear to be
connected to the offer at all.
VII.
Conclusion and Disposition
[44]
I can find no basis for overturning the
Commission’s decision not to refer Mr. Bartkus’s complaint for further inquiry.
Both the investigator and the Commission treated Mr. Bartkus fairly and
addressed the substance of his complaint. The Commission’s findings were
reasonable in light of the evidence before it. Accordingly, I must dismiss this
application for judicial review with costs.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1. The application for judicial
review is dismissed with costs.
“James
W. O’Reilly”
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