Date: 20071204
Docket: T-703-07
Citation: 2007 FC 1290
BETWEEN:
DAN
DURRER
Applicant
and
CANADIAN
IMPERIAL BANK OF COMMERCE
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant Dan Durrer was an employee of the Respondent, Canadian Imperial Bank of
Commerce. On October 19, 1999, after 28 years with the Bank, Durrer was
notified that his position would no longer exist and that his employment was terminated.
For two and a half years thereafter, Durrer remained with the Bank in three
successive temporary positions until his engagement with the Bank was finally
terminated on April 12, 2002. At that time, Durrer was 51 years old.
[2]
On
July 23, 2002, Durrer filed a complaint with the Canadian Human Rights
Commission alleging that the Bank had discriminated against him on the basis of
age. He relied on section 7 of the Canadian Human Rights Act, R.S.C.
1985, c. H-6 (CHRA). The Commission reviewed the complaint and recommended
that the complaint be dismissed. Nonetheless, the Canadian Human Rights Tribunal
instituted an inquiry. A hearing lasting for a period of several days took
place before the Tribunal during November 2006. The Commission did not
participate in that hearing. On March 30, 2007, the Tribunal rendered its
decision giving written reasons in which it dismissed Durrer’s complaint.
Durrer now seeks judicial review of that decision.
[3]
For
the reasons that follow, I find that the Application is dismissed with costs to
the Bank fixed in the sum of $10,000.00.
STANDARD OF
REVIEW
[4]
The
standard of review in respect of decisions by the Canadian Human Rights
Tribunal has been set out in decisions of this Court in Oster v. International
Longshore & Warehouse Union (Marine Section) Local 400, 2001
FCT 1115 at paragraph 22 and Goodwin v. Birkett, 2007 FC 428 at
paragraph 15. On questions of law, the standard is correctness, on questions
of mixed fact and law it is reasonableness simpliciter and on questions
of fact it is patent unreasonableness. Counsel for each of the parties agree that
these standards are appropriate.
FACTS
[5]
The
basic facts are not in dispute. Durrer received a letter of termination of his
employment with the Bank on October 19, 1999. At that time, he was 48 years
old and, he had been with the Bank for 28 years, that is, all of his adult
life. He came to the Bank with a high school education and worked his way
through the ranks until, as of October 1999, he was engaged in a senior
position at Head Office which position, in the Bank’s ranking scheme was
assigned at 10, the highest ranking of its type.
[6]
At
the time of Durrer’s termination, the Bank had a policy called Employment
Continuity which stated that terminated employees would be given first
consideration in filling positions with the Bank as they became available. In
April 2001, this policy was replaced by a policy called Employee Transition
Support Program (ETSP) which provided, among other things, that where skills,
knowledge and fit of job candidates are equal, employees whose position has
been eliminated would be given a greater opportunity for a job.
[7]
Upon
Durrer’s termination in October 1999, advantage was taken first of the
Employment Continuity policy and thereafter of the ETSP policy under which
policies Durrer received a consecutive series of three temporary positions with
the Bank lasting until April 17, 2002. From May 1, 2002 until February 21,
2003, Durrer was hired by the Bank on contract which provided for a salary but
no benefits, in particular no benefits in respect of pension.
[8]
As
of the end of the last of Durrer’s three temporary positions, he was 51 years
of age and had been with the Bank for over 30 years. He had accrued certain
pension benefits. Had Durrer reached the age of 55 and still been employed by
the Bank in a position with pension benefits, he would have received an
improved pension. Further, the Bank had a policy in place whereby if an
employee such as Durrer reached the age of 53 in such circumstances, the
employee would be “bridged” to be considered as being age 55 and receive much
the same benefits accruing to a person of that age. Durrer estimates that by
being terminated at age 51, his loss of benefits had he remained until age 53
would over his expected lifetime, exceed one million dollars. I do not make
any finding with respect to any monetary amount except to note that some
evidence to that effect was put before the Tribunal.
[9]
Durrer
filed his complaint with the Human Rights Commission in the period after his
final termination and during the period of his contract employment. Since termination
of the contract Durrer has been working as a casual labourer in a low paying
job.
ISSUES BEFORE
THE TRIBUNAL
[10]
The
issues that Durrer, as Complainant, requested that the Tribunal consider were
reviewed by the Tribunal at paragraphs 3 to 7 of its Reasons. It appears that
the issues as presented in the Complaint Form were not entirely clear. They
were particularized to some extent by a Statement of Particulars. At the
hearing, the issues were further addressed when Durrer’s counsel made it clear
that no issue was to be made in respect of section 10 of the Canadian Human
Rights Act but only in respect of section 7. The Tribunal’s Reasons at the
end of paragraph 5 and end of paragraph 6 state:
I find by the end of the
hearing, CIBC
had a reasonable expectation that I would be considering the evidence and
argument from the perspective of a section 7 violation only. For me to
consider a section 10 violation at this point would constitute a denial of
fairness and natural justice. Accordingly, I will consider the evidence and
argument only as they relate to a violation of subsections 7(a) and 7(b) of the
CHRA.
…
In closing argument, counsel
for the Complainant succinctly stated that the section 7 violation in this case
was two-fold: first, when the termination decision was made by Mr. Young
because age was a factor; and then, in March-April 2002 when Human Resources
thwarted his attempt to get a fourth temporary job and his employment came to
an end.
[11]
As
a result, the Tribunal stated the issues as follows at paragraph 7 of its
Reasons:
III. Issues
[7] I deal with the
following issues
(1) Did CIBC eliminate
Mr. Durrer’s position in October 1999 on account of his age;
(2) Did CIBC decide to
not transfer Mr. Durrer to another position in the same department (Compliance)
on account of his age; and
(3) Did CIBC interfere
with Mr. Durrer’s attempts to seek redeployment within CIBC because of his age.
[12]
On
the first issue, the Tribunal found at paragraphs 62 to 64 of its Reasons that
the Bank did not eliminate Durrer’s position in October 1999 because of his
age. Applicant’s counsel in argument before this Court did not contest that
finding.
[13]
On
the second issue, the Tribunal found at paragraphs 65 to 67 of its Reasons that
the Bank’s decision not to offer Durrer a position in the Compliance Department
was not made, in whole or in part, because of Durrer’s age. At paragraph 67
the Tribunal said:
[67] To find otherwise and
to hold that CIBC ought to have kept him employed in the new Compliance
Department, because Mr. Durrer was 48 years old and notwithstanding that he
lacked the qualifications sought, would have troubling consequences. It would
mean that the mere “age” of an employee (and it could be any age) is more
important than experience, education, “value-addedness”, etc. In essence,
“age” becomes the deciding or “primary” factor, not whether the employee is
qualified.
[14]
The
third issue was described by the Tribunal as the “crux” of Durrer’s case. At
paragraph 68 of its Reasons, the Tribunal said:
[68] This
was the crux of Mr. Durrer’s case: by not allowing him to take a fourth
temporary assignment and crystallizing his date of termination, CIBC prevented
Mr. Durrer from reaching the bridgeable age of 53, which stopped him from
realizing his goal – an immediate, unreduced pension. Throughout his testimony
and in pre-referral letters from Mr. Durrer to the Commission, this issue was
the focal point of Mr. Durrer’s concern about how CIBC treated him. In his
testimony, he said, “Why couldn’t they make an exception fro me? There was
lots of work.” He also said words to that effect in other parts of his
testimony. He even testified that they had bridged other people who did not
meet the EC/RSP and ETSP criteria for bridging: (i.e., the employee’s job was
being eliminated, and he or she was neither 55 years old nor 53-55 with enough
severance to bridge them to 55). At the hearing, CIBC denied having done
this. Mr. Durrer produced no probative evidence of CIBC having bridged other
people falling outside the eligibility criteria.
[15]
The
Tribunal found that none of the Bank’s actions were taken on account of
Durrer’s age. At paragraph 72 of the Reasons it stated:
[72] Mr. Durrer had used
the word “conspiracy” in his testimony and in a letter to the Commission
described CIBC’s action in preventing him from finding further work to reach
the bridgeable age. His counsel showed more restraint. He said CIBC’s actions
did not constitute a conspiracy, nor were they done “deliberately or
intentionally, but they showed a willful disregard, an act of utter neglect,
shameful.” I do not find that CIBC’s actions constituted any of those things,
nor were they on account of his age.
[16]
The
Tribunal dismissed Durrer’s complaint concluding at paragraph 78 of its
Reasons:
VII. CONCLUSION
[78] There is no doubt
that it was a sad and stressful time for Dan Durrer. His entire working life
has been spent at CIBC. And by all accounts, he was a hard-working and
successful employee. Hwoever, for the foregoing reasons, his age played no
adverse part in his employment termination from CIBC. Accordingly, the
Complaint is dismissed.
ISSUES BEFORE THIS COURT
[17]
Durrer’s
counsel in his factum stated the issues simply in paragraphs 71, 72 and 73:
71. Did the CHRT err in
law in finding that Mr. Durrer’s age played no adverse part in his termination
from CIBC?
72. Did the CHRT err in
law in finding that Mr. Durrer’s age was not a factor in denying him a
continuing employment opportunity with CIBC?
73. Did the CHRT err in
law in failing to consider all of the evidence tendered by Mr. Durrer which
reasonably supported his complaint, thereby failing to observe a basic
principle of natural justice?
[18]
The
issue as argued before the Court was somewhat different however. It finds its
genesis in paragraph 83 of Durrer’s counsel’s factum.
83. The
primary reason that the Decision does not mention Mr. Durrer’s story is that
[the Tribunal] did not consider the type of discrimination known as indirect
discrimination, or adverse-effect discrimination. In this he erred in law. He
considered only direct discrimination and found little evidence of it.
[19]
Durrer’s
motivations and beliefs as to the Bank’s conduct are summarized in a statement
repeated at paragraph 29 of his counsel’s factum:
29. Mr. Durrer has
reflected carefully as to why he was let go in the manner he was let go. He
reasoned,
There was work, there is no
doubt. I was available, there is no doubt. My performance was solid, there is
no doubt about that. So I get down to why wouldn’t CIBC keep me on and I can’t
for the love of me understand that can be any other reason that cost savings.
I’m expensive. And I’m expensive because I’m older and I’m longer-tenured and
I can’t think in my own mind of any, any other independent reason why, other
than my age and with the- my associated salary and benefits, pension plan – why
CIBC would let me go.
[20]
The
evidence as to the attitude of the Bank as relied upon by Durrer’s counsel is
typified by that repeated at paragraph 22 of his factum:
22. Both
Eric Young and Cindy Size (nee Nicholls) gave evidence to the effect that they
considered Mr. Durrer’s age, but they also didn’t consider it. Ms. Nicholls
was asked whether she considered his age and she answered as follows:
Mr. Morin: Did
you ever give any thought to what this was going to do to Mr. Durrer’s pension,
his benefits, his family after thirty years of service?
Ms. Size: Yes.
Mr. Morin: You did think
about that.
Ms. Size: Yes, I did.
Mr. Morin: And
did you think about his age and his ability to get employment elsewhere if he
lost out on this opportunity to find employment at the bank?
Ms. Size: I
didn’t specifically think about that Dan’s age. I thought about that Dan had
been at the bank for a long period of time, that he was a long-term employee.
[21]
Durrer’s
argument as put by his counsel at the hearing before this Court is that the
Tribunal failed to give appropriate consideration as to the application of
section 7(b) of the CHRA. His counsel says that section 7(b) requires that
before an employee is terminated consideration must be given to the age of the
employee as well as other factors such as accrued benefits and an opportunity
lost to secure further benefits. Failure to consider such matters, it is
argued, constitutes “adverse discrimination” within the meaning of section 7(b)
of the CHRA. The evidence, counsel argues, shows that “no consideration” was
given by the Bank to Durrer’s age at all or in the context of other
circumstances such as pension entitlement. Further, the Tribunal, it is
argued, failed to give consideration to this argument in its Reasons.
[22]
As
a result, Durrer’s counsel argues, the matter should be sent back to the same
Tribunal for consideration on the record that already exists, of the section
7(b) argument as framed before this Court by Durrer’s counsel.
[23]
The
Bank’s counsel argues that the issue raised by Durrer’s counsel is a new and
different issue from any issue that was raised before the Tribunal or even an
issue clearly stated in Durrer’s counsel’s factum filed with this Court. In
any event, the Bank’s counsel argues the issue is without merit.
ANALYSIS
[24]
I
agree with counsel for the Bank that the issue raised by Durrer’s counsel in
argument before me does not appear to be an issue that was presented to the
Tribunal for determination. Nor is the issue squarely raised in Durrer’s factum
filed with this Court except by inference or combining disparate parts of the
argument as presented in the factum. For that reason alone, I would dismiss
this application. A party should not raise new argument on an issue not
presented before the Tribunal except perhaps in exceptional circumstances.
There are no such circumstances here.
[25]
In
any event, I find that the issue now raised fails on its merits.
[26]
Sections
7(a), (b) and 10 of the Canadian Human Rights Act state:
|
7. It is a
discriminatory practice, directly or indirectly,
(a) to refuse to
employ or continue to employ any individual, or
(b) in the course of
employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
10. It is a
discriminatory practice for an employer, employee organization or employer
organization
(a) to establish or
pursue a policy or practice, or
(b) to enter into an
agreement affecting recruitment, referral, hiring, promotion, training,
apprenticeship, transfer or any other matter relating to employment or
prospective employment,
that deprives or tends to deprive an individual or class of individuals
of any employment opportunities on a prohibited ground of discrimination.
|
7. Constitue
un acte discriminatoire, s’il est fondé sur un motif de distinction illicite,
le fait, par des moyens directs ou indirects :
a) de
refuser d’employer ou de continuer d’employer un individu;
b) de le
défavoriser en cours d’emploi.
10. Constitue
un acte discriminatoire, s’il est fondé sur un motif de distinction illicite
et s’il est susceptible d’annihiler les chances d’emploi ou d’avancement d’un
individu ou d’une catégorie d’individus, le fait, pour l’employeur, l’association
patronale ou l’organisation syndicale :
a) de
fixer ou d’appliquer des lignes de conduite;
b) de
conclure des ententes touchant le recrutement, les mises en rapport,
l’engagement, les promotions, la formation, l’apprentissage, les mutations ou
tout autre aspect d’un emploi présent ou éventuel.
|
[27]
As
can be seen, section 7(a) deals with a situation where a person is refused
employment or whose employment is terminated. Section 7(b) deals with adverse
discrimination “in the course of employment”. Section 10 deals with
discriminatory practices or policies established or agreed to by an employer.
[28]
Durrer’s
counsel stated in the hearing before the Tribunal and stated again in this
Court that no reliance is placed upon section 10.
[29]
Durrer’s
counsel does not rely on section 7(a) and agrees with the finding of the
Tribunal that age (a prohibited ground) was not a factor in the Bank’s refusal
to continue to employ Durrer.
[30]
Section
7(b) deals with adverse discrimination during the course of employment and not
in respect of the decision to terminate (that is section 7(a)’s purpose) or
after termination.
[31]
Durrer’s
counsel argues that before deciding to terminate, hence “during the course of
employment”, an employer must weigh in respect of each individual employee to
be terminated a number of factors, including those that are “prohibited” such
as age, so as to prevent an “adverse” impact on any particular employee and if
there is perceived to be such an impact, steps to ameliorate it must be
undertaken. Hence it is argued, Durrer at age 51 with 28 years of service,
nearing the age of 53 when enhanced benefits might accrue might be treated
differently than a 25 year old employee with 2 years of service.
[32]
Durrer’s
counsel’s argument rests principally on a reading of the decision of McLachlin
J. (as she then was) for the Supreme Court of Canada in “Meiorin”: British
Columbia (Public Service Employee Relations Commission v. British Columbia
Government and Service Employers’ Union, [1999] 3 S.C.R. 3 in which, counsel
argues, the Court found that conventional analysis of Acts such as the one at
issue here, must be abandoned and that an obligation is placed upon employers
to consider the individual needs of employees in regard to the prohibited
matters, before termination.
[33]
I
do not find that the Supreme Court of Canada made such a determination in Meiorin.
[34]
Meiorin was
concerned with an issue as to whether a policy subscribed to by an employer,
seemingly neutral in its provisions, nonetheless could be seen as indirect
discrimination when applied to a particular individual or class. If a prima
facie case of discrimination, or indirect discrimination is made out, then the
Court addresses what an employer must demonstrate in order to justify the
policy.
[35]
At
paragraphs 39 and 40, McLachlin J. began her analysis:
39 It
has also been argued that the distinction drawn by the conventional analysis
between direct and adverse effect discrimination may, in practice, serve to
legitimize systemic discrimination, or "discrimination that results from
the simple operation of established procedures of recruitment, hiring and
promotion, none of which is necessarily designed to promote
discrimination": Canadian National Railway Co. v. Canada (Canadian Human
Rights Commission), [1987] 1 S.C.R. 1114 (hereinafter "Action
Travail"), at p. 1139, per Dickson C.J. See generally I. B. McKenna,
"Legal Rights for Persons with Disabilities in Canada:
Can the Impasse Be Resolved?" (1997-98), 29 Ottawa L. Rev. 153, and P. Phillips and E. Phillips,
Women and Work: Inequality in the Canadian Labour Market (rev. ed. 1993), at
pp. 45-95.
40 Under
the conventional analysis, if a standard is classified as being
"neutral" at the threshold stage of the inquiry, its legitimacy is
never questioned. The focus shifts to whether the individual claimant can be
accommodated, and the formal standard itself always remains intact. The
conventional analysis thus shifts attention away from the substantive norms
underlying the standard, to how "different" individuals can fit into
the "mainstream", represented by the standard.
[36]
She
critisized what she described as a “conventional analysis” at paragraph 41 as
barring a proper assessment by the Courts:
41 Although
the practical result of the conventional analysis may be that individual
claimants are accommodated and the particular discriminatory effect they
experience may be alleviated, the larger import of the analysis cannot be
ignored. It bars courts and tribunals from assessing the legitimacy of the
standard itself. Referring to the distinction that the conventional analysis
draws between the accepted neutral standard and the duty to accommodate those
who are adversely affected by it, Day and Brodsky, supra, write at p. 462:
The
difficulty with this paradigm is that it does not challenge the imbalances of
power, or the discourses of dominance, such as racism, ablebodyism and sexism,
which result in a society being designed well for some and not for others. It
allows those who consider themselves "normal" to continue to
construct institutions and relations in their image, as long as others, when
they challenge this construction are "accommodated".
Accommodation,
conceived this way, appears to be rooted in the formal model of equality. As
a formula, different treatment for "different" people is merely the
flip side of like treatment for likes. Accommodation does not go to the heart
of the equality question, to the goal of transformation, to an examination of
the way institutions and relations must be changed in order to make them
available, accessible, meaningful and rewarding for the many diverse groups of
which our society is composed. Accommodation seems to mean that we do not
change procedures or services, we simply "accommodate" those who do
not quite fit. We make some concessions to those who are "different",
rather than abandoning the idea of "normal" and working for genuine
inclusiveness.
In
this way, accommodation seems to allow formal equality to be the dominant
paradigm, as long as some adjustments can be made, sometimes, to deal with
unequal effects. Accommodation, conceived of in this way does not challenge
deep-seated beliefs about the intrinsic superiority of such characteristics as
mobility and sightedness. In short, accommodation is assimilationist. Its goal
is to try to make "different" people fit into existing systems.
I
agree with the thrust of these observations. Interpreting human rights
legislation primarily in terms of formal equality undermines its promise of
substantive equality and prevents consideration of the effects of systemic
discrimination, as this Court acknowledged in Action Travail, supra.
[37]
As
a result, she proposed at paragraphs 54 and 55 a three-step test for determining
whether a standard was justified once a prima facie discriminatory
standard has been established:
54 Having
considered the various alternatives, I propose the following three-step test
for determining whether a prima facie discriminatory standard is a BFOR. An
employer may justify the impugned standard by establishing on the balance of
probabilities:
(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 fulfillment 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.
55 This
approach is premised on the need to develop standards that accommodate the
potential contributions of all employees in so far as this can be done without
undue hardship to the employer. Standards may adversely affect members of a
particular group, to be sure. But as Wilson J. noted in Central
Alberta Dairy Pool, supra, at p. 518, "[i]f a
reasonable alternative exists to burdening members of a group with a given
rule, that rule will not be [a BFOR]". It follows that a rule or standard
must accommodate individual differences to the point of undue hardship if it is
to be found reasonably necessary. Unless no further accommodation is possible
without imposing undue hardship, the standard is not a BFOR in its existing
form and the prima facie case of discrimination stands.
[38]
McLachlin
J. concluded at paragraph 68:
68 Employers
designing workplace standards owe an obligation to be aware of both the
differences between individuals, and differences that characterize groups of
individuals. They must build conceptions of equality into workplace standards.
By enacting human rights statutes and providing that they are applicable to the
workplace, the legislatures have determined that the standards governing the
performance of work should be designed to reflect all members of society, in so
far as this is reasonably possible. Courts and tribunals must bear this in mind
when confronted with a claim of employment-related discrimination. To the
extent that a standard unnecessarily fails to reflect the differences among
individuals, it runs afoul of the prohibitions contained in the various human
rights statutes and must be replaced. The standard itself is required to
provide for individual accommodation, if reasonably possible. A standard that
allows for such accommodation may be only slightly different from the existing
standard but it is a different standard nonetheless.
[39]
Nothing
in these paragraphs or elsewhere in the Reasons in Meiorin suggests that
an employer has a duty of care upon it by provisions such as section 7(b) of
the Canadian Human Rights Act to make an assessment, before terminating
employment of an individual or class, as to the circumstances of each and
whether the impact upon one will be different from that upon others. Meiorin
deals with standards or policies put in place by an employer during the course
of employment: a matter addressed by section 10 of the Canadian Human Rights
Act and a matter which Durrer’s counsel has clearly stated, has not been
raised here or before the Tribunal.
[40]
The
other cases cited by Durrer’s counsel in his factum but referred to only in
passing in argument, namely O’Malley (Ontario Human Rights Commission
v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536), Eldridge v. British Columbia
(Attorney General), [1997] 3 S.C.R. 624 and Huck (Re Saskatchewan
Human Rights Commission and Canadian Odeon Theatres Ltd. (1985), 18
D.L.R. (4th) 93 (Sask. C.A) do not assist in the determination of
the issue now put to this Court by Durrer’s counsel.
[41]
I
find, therefore, that not only was the issue now argued not raised before the
Tribunal, and that the Application must fail on that that ground alone, but
also, on its merits the issue does not succeed. The Application will be
dismissed.
[42]
As
to costs, Counsel each proposed a fixed sum. Durrer’s counsel suggested the
sum of $10,000.00 on the basis that this was the sum fixed in earlier judicial
proceedings brought by the Bank before this Court. The Bank’s counsel proposed
$20,000.00 citing increased complexity of these proceedings. I find that
$10,000.00 is appropriate and will award costs to the Bank in that amount.
JUDGMENT
For the Reasons given:
THE COURT ADJUDGES that:
1. The Application is
dismissed;
2. The Respondent
(Bank) is awarded costs fixed in the sum of $10,000.00
"Roger
T. Hughes"
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