Date: 20091105
Docket: T-1634-07
Citation: 2009 FC 1134
Ottawa, Ontario, November 5,
2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
AZ
BUS TOURS INC.
Applicant
and
BARBARA
TANZOS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
case concerns the judicial review of a decision of the Canadian Human Rights
Tribunal (the “Tribunal”) dated August 8, 2007 by which the Tribunal found that
AZ Bus Tours Inc., (“the Applicant”) had discriminated against Barbara Tanzos
(“the Respondent”) on the basis of disability contrary to section 7 of the Canadian
Human Rights Act (“the Act”). The Tribunal awarded the Respondent $12,035
for loss of salary and $3,000 for pain and suffering, as a result thereof.
[2]
The
Applicant’s judicial review proceedings are essentially based on the argument
that the Tribunal erred in finding that the Applicant had not sufficiently
accommodated the Respondent for her disability.
Background
[3]
The
Applicant is a bus company primarily providing charter services on a regular
basis from Toronto to the
Casino Rama, in Orillia, Ontario, and also providing
charter services, when required, to other service points in Ontario, in other
Canadian provinces and in the USA.
[4]
The
Respondent commenced employment with the Applicant as a full time bus driver on
May 21, 2000. Her principal task was to drive passengers from Toronto to the
Casino Rama in Orillia.
[5]
Approximately
five months after she began working full-time for the Applicant, the Respondent
took sick leave. She returned to work on March 7, 2001 under medical
restrictions which precluded her from working night shifts and more than three
days a week. The Respondent’s disability was never challenged by the Applicant
and was not questioned before the Tribunal or in these proceedings.
[6]
Upon
her return to work, the Applicant treated the Respondent as a part-time driver
and did not provide her any of the rights or benefits of a full-time driver,
including seniority rights, priority on selection of routes, or payment of a
daily bonus of $10 after one year of employment.
[7]
The
Applicant applied to the Respondent what it called a “common sense” approach in
order to accommodate her disability. Under this “common sense” approach, the
Respondent was treated as a part-time employee and was assigned on an “on-call”
basis various bus routes in order to attempt to provide her three days of work
per week.
[8]
On
September 21, 2001, the Applicant wrote to the Respondent stating that “[d]ue
to your overall concerns about the amount of work you have been receiving and
given the fact that we are heading into our slow season combined with the
reduction of outside work as a result of the American tragedy [the attacks on
the New York City World Trade Center of September 11, 2001], I am open to
considering a mutually agreed lay-off to give you the needed time to
rehabilitate yourself”.
[9]
At
the end of September of 2001, the Respondent’s physician informed the Applicant
that the Respondent’s condition allowed her to work five days a week but
without any night shifts. The Respondent also wrote to the Applicant on October
1, 2001 to state that she did not consent to a lay-off on a consensual basis.
[10]
On
October 16, 2001, the Applicant informed the Respondent as follows:
“[…] I understand you are not
interested in a mutually agreed lay off. Contrary to your latest doctors note,
it still requests restrictions and as I indicated to you in earlier
correspondence, until your doctor gives you a clean bill of health without
restrictions your current status will remain as a part time driver. Given
the extended time off from full time duties it will be necessary for safety
reasons to get doctor clarification in addition to a note before restoring you
to full time duties. Therefore until you sign up and are available for 5 days
work per week without any restrictions you will as all part time drivers be
detailed by dispatch subject to work availability.” [Emphasis in original)
[11]
The
Respondent’s employment with the Applicant ended a few days after this letter
was sent to her.
[12]
On
December 8, 2001 the Respondent submitted her complaint under the Act.
[13]
This
complaint took a long time to be adjudicated in light of various preliminary
jurisdictional and constitutional issues which were raised by the Applicant. In
any event, the Canadian Human Rights Tribunal eventually heard evidence in
regard to the complaint and ruled in favour of the Respondent.
The
decision of the Human Rights Tribunal
[14]
The
principal issue before the Tribunal revolved around the extent of the
Applicant’s duty to accommodate the Respondent.
[15]
In
this matter the Tribunal applied the three step justification test set out in British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3
S.C.R. 3 (the Meiorin case) and British Columbia (Superintendent of
Motor Vehicles v. British Columbia (Council of Human Rights), [1999] 3
S.C.R. 868 (the Grismer case).
[16]
The
Tribunal was not convinced that the Applicant had made a reasonable effort to
accommodate the Respondent, or that its employee availability policy could not
be reasonably adapted to accommodate the Respondent’s disability:
[38] Counsel for the respondent
argued that it was essential for the respondent to have a business operation
that operates safely and securely seven days a week, twenty-four hours a day.
She stated that, to do this, the respondent needed full-time employees who
could work five days a week and who were available for night shifts. Counsel
added that the only choice left in a case such as the present was to consider
the complainant as a part-time employee and allocate work to her on an
availability basis.
[39] In their evidence and final
arguments, the parties did not see fit to address the first two requirements of
Grismer. We can infer from this that they acknowledged that the standard
adopted by the respondent had a purpose rationally connected to the performance
of the job at issue.
[40] We can also infer that the
respondent adopted this standard in good faith, believing that it was necessary
to ensure the operation of its business.
[…]
[43] To establish that a standard is
reasonably necessary an employer must demonstrate that it is impossible to
accommodate the complainant without imposing an undue hardship. Therefore the onus
is on the respondent to show that it made efforts to accommodate the
complainant’s disability up to the point of undue hardship. (See Alberta
Dairy Pool v. Alberta (Human Rights Commission (1990), 72 D.L.R. (4th)
417, at p. 439).
[44] The Supreme Court in Meiorin
at paragraph 64, advises courts of law and administrative tribunals to consider
various ways in which individual capabilities may be accommodated. The
employer should determine whether there are different ways to perform the work
while still accomplishing the employer’s legitimate work-related purpose. The
skills, capabilities and potential contributions of the individual complainant
and others like him or her must be respected as much as possible.
[45] In this case, the standard
emphasizes the need to have employees available to work five days a week and,
if necessary, for night shifts. The fact that this standard excludes certain
classes of persons is not discrimination if the respondent can establish that
it is reasonably necessary to meet the appropriate objective and if the
accommodation was incorporated in the standard. Exclusion is only justifiable
where the employer has made every possible accommodation short of undue
hardship. (See Grismer, at paragraph 21).
[…]
[48] The use of the adjective
“undue” indicates that some degree of “hardship” is acceptable; it is only the
hardship that is “undue” that can excuse the employer from its duty. The
respondent did not persuade me that respecting the complainant’s medical
limitations would require a substantial reorganization of all of the duties to
the point where it would cause “undue” hardship. The respondent alleges,
without persuasive evidence to support its argument, that the accommodation
requested by the complainant would negatively affect its operations. No
persuasive evidence supports this conclusion.
[49] On at least two occasions, the
complainant met with representatives of management to express her concern about
her working hours and to see how a solution could be found. What she was
seeking was the opportunity to show that she could, with accommodation, perform
the tasks of bus driver. She had requested, on her doctor’s recommendation, to
work three days a week. In response, the respondent put her in a part-time
position with work being assigned to her on an availability basis. In
September 2001, she indicated that her doctor had authorized her to return to
work five days a week but had kept the restriction on her availability for
night work. The respondent still refused to return her to her full-time
status, indicating that it would not do so as long as the limitations on her
working hours were not lifted. Again no evidence was given to indicate what
“undue hardship” was caused to the respondent if it accepted to accommodate the
needs of the complainant.
[…]
[51] It follows from the evidence
that the respondent has failed to discharge the onus imposed on it to
demonstrate that it was unable to accommodate the complainant’s disability
without undue hardship. An uncompromisingly stringent standard, as the one put
forward by the respondent, may be ideal from an employer’s perspective. Yet,
if it is to be justified under human rights legislation, the standard must
accommodate factors relating to the unique capabilities and inherent worth and
dignity of every individual, up to the point of undue hardship
[52] The respondent was aware of the
complainant’s disability. It was on notice that accommodation was required.
It led no evidence with respect to its efforts to try to accommodate the
complainant other than to treat her as a part-time employee. This was not
sufficient to meet its burden.
Position
of the parties
[17]
The
Applicant essentially reiterated the same argument it had made before the
Tribunal stating that its policy of requiring 24 hours a day and seven days a
week availability from its drivers with a minimum commitment of five days work
per week and no restrictions on night shifts, precluded any accommodation of
the Respondent’s disability other than treating her as a part time employee
assigned work on a job availability basis.
[18]
The
Applicant conceded that the applicable standard of review of the Tribunal’s
decision in this case was one of reasonableness and argued that the Tribunal’s
decision concerning accommodation was not reasonable.
[19]
The
Respondent, who was self-represented, argued that the decision of the Tribunal
was fair and that it should be upheld. She further provided numerous cogent
examples of how the Respondent could have accommodated her without affecting
its business.
[20]
The
Respondent noted that the Toronto-Casino Rama bus routes ran for the most part
during the daytime, and that she could have easily been provided with these
routes. Rather than accommodating her, she stated that the Applicant preferred
providing the routes to part time employees. She also noted that she was a
driver with high seniority with the Applicant (out of more than 120 full-time,
part-time and occasional drivers), yet she was provided with no preference in
regard to route selections and was continuously on “stand-by” in regard to work
assignments.
[21]
The
Respondent argued that she had been hired as a full-time driver but had been
reduced to part-time status by the Applicant because of her disability, thus
loosing the benefit of a $10 a day bonus and being left with an “on-call” status
in regard to work assignments. She was of the view that the Applicant made no
effort whatsoever to accommodate her disability.
The
standard of review
[22]
Dunsmuir
v. New
Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]
at para. 62 established a two-step process for determining the standard
of review: “[f]irst, courts ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded with
regard to a particular category of question. Second, where the first
inquiry proves unfruitful, courts must proceed to an analysis of the factors
making it possible to identify the proper standard of review”.
[23]
The
Supreme Court of Canada has generally held that when a human rights tribunal
deals with general questions of law, including questions of statutory
interpretation, its decision on this question is to be reviewed on a standard
of correctness : Canada (Attorney General) v. Mossop, [1993] 1 S.C.R.
554 at p. 585; University of British Columbia v. Berg, [1993] 2 S.C.R.
353; Penzim v. British Columbia (Superintendent of Brokers), [1994] 2
S.C.R. 557 at pp. 590-591; Gould v. Yukon Order of Pioneers, [1996] 1
S.C.R. 571 at paras. 3-4 and 46-48; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 [Ross]
at para. 28.
[24]
However,
in Ross, supra at para. 29, the Supreme Court added the following
concerning fact finding by a human rights tribunal:
That
having been said, I do not think the fact-finding expertise of human rights
tribunals should be restrictively interpreted, and it must be assessed against
the backdrop of the particular decision the tribunal is called upon to
make. Here, inquiry into the appropriate standard of review is largely
governed by the fact that the administrative law issue raised calls upon this
Court to consider whether the finding of discrimination by the Board of Inquiry
was beyond its jurisdiction. A finding of discrimination is impregnated
with facts, facts which the Board of Inquiry is in the best position to
evaluate. The Board heard considerable evidence relating to the
allegation of discrimination and was required to assess the credibility of the
witnesses' evidence and draw inferences from the factual evidence presented to
it in making a determination as to the existence of discrimination. Given
the complexity of the evidentiary inferences made on the basis of the facts
before the Board, it is appropriate to exercise a relative degree of deference
to the finding of discrimination, in light of the Board's superior expertise in
fact-finding, a conclusion supported by the existence of words importing a
limited privative effect into the constituent legislation.
[25]
The
Federal Court of Appeal in Chopra v. Canada (Attorney General), 2007 FCA
268, [2007] F.C.J. No. 1134 (QL), (2007) 283 D.L.R. (4th) 634
concluded that the standard of review of a decision of the Tribunal on
questions of law will not always be correctness, rather “[t]he standard varies
with the nature of the legal question in issue.” (at para. 17).
[26]
This
was recently reiterated by the Federal Court of Appeal in Brown v. Canada
(National Capital Commission), 2009 FCA 273, [2009] 2 F.C.J. No. 1196 (QL),
where a finding by the Tribunal on a question of mixed fact and law was found
to be subject to review on the standard of reasonableness.
[27]
Likewise
in Attorney-General of Canada v. Mowat, 2009 FCA 309 at para. 50, the
Federal Court of Appeal also stated that “different standards of review can
apply to different questions depending on the nature of the question and the
relative expertise of the tribunal in those particular matters”. However, in
this last case, the Federal Court of Appeal found that a standard of
correctness applied to a decision of the Tribunal interpreting its constitutive
legislation to determine if it had the authority to award legal costs to a
successful complainant.
[28]
Given
the current state of the case law, a standard of review analysis is therefore required.
[29]
The
factors to take into account in a standard of review analysis include the
presence or absence of a privative clause, the purpose of the tribunal as
determined by its enabling legislation, the nature of the question at issue and
the expertise of the concerned tribunal (Dunsmuir, supra at para.64, Khosa,
supra at para. 54).
[30]
The
Act contains no privative clause, nor is there any statutory right of appeal
from a decision of the Tribunal.
[31]
However,
the purpose of the Act is remedial and it seeks to prevent
discriminatory practices. The Tribunal’s specific purpose is to inquire into
complaints made pursuant to the Act which are referred to it by the Canadian
Human Rights Commission. In carrying out this purpose, the Tribunal may “decide
all questions of law or fact necessary to determining the matter” (subsection
50(2) of the Act), and may summon and hear witnesses and compel them to testify
(subsections 50(3) and (4) of the Act). Its purpose is remedial in that if,
after an inquiry, it finds that the complaint is substantiated, it can make
various binding orders, including orders to cease a practice found discriminatory
and for compensation (subsections 53 (2) to (4) and section 57 of the Act).
[32]
The
dispute at issue here involves a question of law, namely the legal approach
under which an employer may justify an employment standard which restricts
accommodation for an employee with a disability. The legal approach applicable
in such circumstances has generally been dealt with in the past by the Supreme
Court of Canada as a legal issue to be determined on a standard of correctness :
Meiorin, Grismer, supra, and Hydro-Québec v. Syndicat des employé-e-s de
techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000
(SCFP-FTQ),
[2008] 2 S.C.R. 561.
[33]
However,
this legal approach also requires a factual context in order to make a proper
determination. As a general rule, determinations of facts and of mixed
questions of facts and law by administrative tribunals are to be reviewed on a
standard of reasonableness: Dunsmuir, supra at para. 53, Khosa, supra
at para. 46.
[34]
Finally,
the Tribunal is a specialized body whose members, pursuant to subsection
48.1(2) of the Act “must have experience, expertise and interest in, and
sensitivity to, human rights”.
[35]
This
standard of review analysis leads me to conclude in light of Meiorin,
Grismer and Hydro-Quebec, supra, that the legal approach used
by the Tribunal to decide if the Applicant justified its employment
availability policy restricting the accommodation of the Respondent’s
disability should be reviewed on a standard of correctness.
[36]
However,
insofar as the legal approach to this issue was the correct one, the findings
of the Tribunal in applying this approach should be reviewed on a standard of
reasonableness.
[37]
It
is with these considerations in mind that I now proceed with the analysis of
the Tribunal’s decision.
Analysis
of the Tribunal’s decision
[38]
In
a nutshell, the Applicant’s position before the Tribunal and this Court was
that twenty-four hours a day and seven days a week availability for all its
full-time employees was its policy, and that all full-time employees had to
commit to work at least five days a week and for night shifts as part of this
policy. The Applicant claims that there was no way to accommodate the
Respondent within this policy. Consequently, the only accommodation which could
be offered that complied with the policy was to provide a part-time on-call
status to the Respondent.
[39]
The
Supreme Court of Canada has stated that an employer may justify a workplace
standard by establishing on the balance of probabilities (Meiorin, supra
at para. 54):
(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.
[40]
In
regard to the third step of the Meiorin test, the following words of the
Supreme Court of Canada are particularly apposite to the circumstances of the
present case (Meiorin, supra, at para. 62 and 65):
The
employer’s third and final hurdle is to demonstrate that the impugned standard
is reasonably necessary for the employer to accomplish its purpose, which by
this point has been demonstrated to be rationally connected to the performance
of the job. The employer must establish that it cannot accommodate the
claimant and others adversely affected by the standard without experiencing
undue hardship. When referring to the concept of “undue hardship”, it is
important to recall the words of Sopinka J. who observed in Central Okanagan
School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at p. 984, that
“[t]he use of the term ‘undue’ infers that some hardship is acceptable; it is
only ‘undue’ hardship that satisfies this test”. It may be ideal from
the employer’s perspective to choose a standard that is uncompromisingly
stringent. Yet the standard, if it is to be justified under the human
rights legislation, must accommodate factors relating to the unique
capabilities and inherent worth and dignity of every individual, up to the
point of undue hardship. [Emphasis added]
Courts and tribunals should
be sensitive to the various ways in which individual capabilities may be
accommodated. Apart from individual testing to determine whether the person has
the aptitude or qualification that is necessary to perform the work, the
possibility that there may be different ways to perform the job while still
accomplishing the employer’s legitimate work-related purpose should be
considered in appropriate cases. The skills, capabilities and
potential contributions of the individual claimant and others like him or her
must be respected as much as possible. Employers, courts and tribunals
should be innovative yet practical when considering how this may best be done
in particular circumstances. [Emphasis added]
Some of the important
questions that may be asked in the course of the analysis include:
(a) Has the
employer investigated alternative approaches that do not have a discriminatory
effect, such as individual testing against a more individually sensitive
standard?
(b) If
alternative standards were investigated and found to be capable of fulfilling
the employer’s purpose, why were they not implemented?
(c) Is it
necessary to have all employees meet the single standard for the
employer to accomplish its legitimate purpose or could standards reflective of
group or individual differences and capabilities be established?
(d) Is there a
way to do the job that is less discriminatory while still accomplishing the
employer’s legitimate purpose?
(e) Is the
standard properly designed to ensure that the desired qualification is met
without placing an undue burden on those to whom the standard applies?
(f) Have
other parties who are obliged to assist in the search for possible
accommodation fulfilled their roles? As Sopinka J. noted in Renaud,
supra, at pp. 992-96, the task of determining how to accommodate
individual differences may also place burdens on the employee and, if there is
a collective agreement, a union.
[41]
The
recent Supreme Court of Canada decision in the Hydro-Québec case, supra,
has not changed this approach: “The relevance of the [Meiorin]
approach is not in issue.” (Hydro-Québec at para. 12). As further noted
in the Hydro-Québec case, supra at para. 17: “[b]ecause of the
individualized nature of the duty to accommodate and the variety of
circumstances that may arise, rigid rules must be avoided. If a business can,
without undue hardship, offer the employee a variable work schedule or lighten
his or her duties - or even authorize staff transfers - to ensure that the
employee can do his or her work, it must do so to accommodate the employee”.
[42]
In
this case, the Tribunal applied correctly the legal principles set out under Meiorin,
supra, and examined the case from the perspective of whether or not
the requested accommodation would cause the Applicant undue hardship. As the
Tribunal noted at paragraph 48 of its reasons: “[t]he use of the adjective
“undue” indicates that some degree of “hardship” is acceptable. It is only
hardship that is “undue” that can excuse the employer from its duty”. I find
this approach entirely compatible with both the Meiorin and Hydro-Quebec
decisions of the Supreme Court of Canada.
[43]
I
consequently find that the Tribunal used the correct legal approach in
order to decide whether or not the Applicant had justified its employment
availability policy which restricted the accommodation of the Respondent’s
disability.
[44]
At no time did
the Applicant question its employee availability policy or justify it for its
continued business operations. At best, the Applicant explained its policy and
why it was useful to it, but it never really proceeded to any justification.
The Applicant stated that anything less than its employee availability policy
would be an undue burden on its business. The Applicant’s position in this
matter is clearly not one favouring accommodation.
[45]
The Applicant therefore
did not succeed to justify its policy or its actions before the Tribunal. The
Tribunal found no cogent reason for which the Applicant could not have
accommodated the Respondent. The Applicant’s position that “this is its policy”
is simply not a good enough response for it to justify its refusal to
accommodate, to a reasonable extent, the Respondent, particularly in light of
evidence from the Respondent which showed that such accommodation could have
easily been provided with no or very little impact on the Applicant’s business.
[46]
As
noted by the Tribunal at paragraph 52 of its reasons, the Appellant was aware
of the disability of the Respondent and it was on notice that accommodation was
required. It however led no evidence with respect to its efforts to accommodate
the Respondent other than to treat her as a part-time employee. Clearly, it was
reasonable for the Tribunal to find in such circumstances that the Applicant
had failed to discharge its evidentiary burden.
[47]
I
therefore find the Tribunal’s findings of facts and of questions of mixed facts
and law in this case to be reasonable.
[48]
For
these reasons the judicial review Application shall be dismissed.
[49]
The
Respondent has sought costs against the Applicant should she be successful. In
light of the results of this proceeding, an order for costs is appropriate in
this case taking into account the principles set out by the Federal Court of
Appeal in Sherman v. Canada (Minister of National Revenue), [2003]
F.C.J. No. 710, 2003 FCA 202, at para. 46 and in Thibodeau v. Air Canada,
[2007] F.C.J. No. 404; 2007 FCA 115 at para. 24. I set these costs pursuant to
subsections 400(1) and (4) of the Federal Courts Rules at a lump sum
amount of $500 including disbursements and in lieu of any other costs.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that the
application for judicial review is dismissed. Costs in a lump-sum amount of
$500 including disbursements are awarded to the Respondent.
"Robert
M. Mainville"
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