Clark v. Canada (Attorney General), 2007 FC 9

 

 

 

Date: 20070105

Docket: T-1586-05

Citation: 2007 FC 9

Ottawa, Ontario, January 5, 2007

PRESENT:     The Honourable Mr. Justice Russell

 

 

BETWEEN:

RANDAL CLARK

Applicant

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

THE APPLICATION

 

[1]               This is an application for judicial review of a decision (Decision) of the Canadian Human Rights Commission (Commission) wherein the Commission, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (Act), dismissed the Applicant’s complaint (Complaint) that he was discriminated against in his place of employment because of his disability, Post Traumatic Stress Disorder (PTSD).  The Commission concluded that the Complaint did not meet the threshold for referral to the Canadian Human Rights Tribunal (Tribunal) because the evidence did not support the Applicant’s allegations that, because of his disability, he had been treated in an adverse differential manner, that he had not been accommodated, and that he had not been provided with a harassment-free work environment.

 

BACKGROUND

 

[2]               A detailed account of the facts applicable to each issue raised by the Applicant will follow in the body of these reasons and I will only give a brief overview here of the circumstances leading to the Application. Also, in his written submissions, the Applicant identified a fairly broad range of mistakes that he felt the Investigator and the Commission made in assessing the evidence and drawing conclusions from that evidence. At the time of the oral hearing before me in Victoria, however, the Applicant, while still maintaining that both the Investigator and the Commission had been wrong with regard to all the points he had initially raised, limited his request for review.  Hence, this summary will focus only on those matters that remain in contention post-hearing.

 

[3]               Beginning in 1984, the Applicant worked for Corrections Canada. He experienced a violent incident while working at a corrections facility in January 2000 and spent his last two years of employment with Corrections Canada on Worker’s Compensation Board (WCB) benefits for PTSD. He says that he was also diagnosed with clinical anxiety and depression.

 

[4]               The Applicant was accepted as a Disability Priority with the Public Service Commission (PSC) in September 2001. Pursuant to section 36 of the Public Service Employment Regulations (2000), SOR/2000-80 (Regulations), an indeterminate employee who becomes disabled and meets the criteria set out in the Regulations is entitled by law to priority status. Such an employee is entitled to priority placement, without competition, in a job that is considered suitable by the PSC.

 

[5]               The Applicant applied and was accepted for employment with the Victoria office of Veterans Affairs Canada (VAC) as an area counsellor on April 5, 2002 on the understanding that he would participate in a Return to Work Program sponsored by the WCB beginning on May 1, 2002 and ending on July 23, 2002.

 

[6]               The Applicant commenced employment with VAC on May 1, 2002. Although the original plan was to hire the Applicant on an indeterminate basis following the completion of the Return to Work Program, Mr. Ken Parkinson, District Director, requested a three-week extension of the program. This was agreed to and the Return to Work Program was extended to August 13, 2002.  Mr. Parkinson, on behalf of VAC, then requested a further three-month extension of the program. On August 8, 2002 the Applicant was offered a three-month term appointment. Shortly after that, VAC requested an evaluation from the Applicant’s psychologist concerning his fitness for work. After receiving a positive fitness for work evaluation, VAC offered the Applicant indeterminate employment on September 4, 2002. The Applicant says that VAC’s failure to offer him immediate indeterminate status constituted adverse differential treatment on the grounds of disability.

 

[7]               During this time, on July 11, 2002, the Applicant requested that his workspace be modified on the basis that its position exposed him to adverse affects related to his disability. When the Applicant left work on April 1, 2003, he maintains that his request had not been accommodated.  The Respondent, however, contends that work to reconfigure the desk began in August 2002, was partially completed in January 2003, and was completed in totality by June 2003.

 

[8]               On April 1, 2003, the Applicant attended a meeting during which he raised his voice and yelled a profanity at a fellow employee. The Applicant claims that this was a side-effect of the medication he was taking for his disability. Following the event, the Applicant remained away from work. The event raised concerns among the staff and led to an investigation into the Applicant’s behaviour. Before the Applicant was scheduled to return to work, he requested that management coordinate a mediation session to address the concerns raised by his colleagues. The Applicant now argues that the conduct of other participants throughout the course of the mediation gave rise to an environment of harassment. He maintains that participants were allowed to express concerns about him and his PTSD and that their behaviour towards him was threatening and abusive. The Respondent maintains that the mediation was conducted in a polite, respectful and appropriate manner, and that frank discussion is part of any effective mediation process.

 

[9]               On February 4, 2004, the Applicant filed his Complaint with the Commission claiming that VAC had treated him in an adverse differential manner, had failed to provided him with a harassment-free work environment, had failed to accommodate him, and was following a discriminatory policy and/or practice contrary to sections 7, 10, and 14 of the Act. An investigation was carried out.

[10]           In a report dated May 4, 2005, the Investigator recommended that, pursuant to paragraph 44(3)(b) of the Act, the Commission dismiss the Complaint. The Investigator reached the following conclusions that are relevant to the issues raised in this application:

1.      The evidence did not support the Applicant’s allegation that the failure to immediately offer him indeterminate status constituted adverse differential treatment on the grounds of disability;

2.      The evidence did not support the Applicant’s allegation that the Respondent had failed to accommodate him with respect to his work station. Although it took time, his work station was modified; and

3.      Even if the Applicant’s disability was discussed at the mediation session, this did not constitute harassment or adverse differential treatment on the grounds of disability.

[11]           The Investigator recommended that the Complaint be dismissed because “the evidence did not support the complainant’s allegations that he was treated in an adverse differential manner, that he was not accommodated, or that he was not provided with a harassment free work environment because of his disability (Post Traumatic Stress Disorder).”

 

[12]           The Complaint was dismissed by the Commission on August 15, 2005, pursuant to paragraph 44(3)(b) of the Act.

 

ISSUES RAISED

 

[13]           There are two preliminary issues raised for the Court’s consideration:

1.      What is the appropriate record for the Court to consider in relation to this application?

2.      What is the standard of review applicable to the Decision of the Commission not to refer the Complaint for consideration before the Tribunal?

[14]           The Applicant’s submissions also raise three substantive issues for consideration:

1.      Did the Commission err in determining that the delay in offering the Applicant indeterminate status did not constitute adverse differential treatment on the grounds of disability and so did not need to be referred to the Tribunal for consideration?

2.      Did the Commission err in determining that the Applicant had not been harassed during the mediation session so that this aspect of the Complaint did not need to be referred to the Tribunal for consideration?

3.      Did the Commission err in finding that VAC met its obligations to accommodate the Applicant with respect to providing him with a new work space and that there was no need to refer this issue to the Tribunal for consideration?

 

LEGISLATION

 

[15]           Section 44 of the Act governs the duty of the Investigator to report to the Commission and the Commission’s discretion to dismiss or refer the matter to the Tribunal for consideration:

 

[16]           In this case, the Applicant’s Complaint before the Commission invoked the following provisions of the Act:

[17]             The Applicant’s submissions to the Commission also raised considerations relating to section 10 of the Act, but the matters at issue in this judicial review application only engage issues relating to subsection 7(b) and paragraph 14(1)(c).

 

ANALYSIS

 

            General

 

[18]           In a general sense, the Applicant has asked the Court to consider whether the Commission erred in finding that the evidence before it did not support his Complaint, and in concluding that, having regard to all the circumstances of the Complaint, an inquiry by the Tribunal was not warranted. In support of the application, the Applicant identifies what he sees as various specific instances of reviewable error in the Decision that, whether considered separately or cumulatively, justify his principle contention that the Decision should be set aside.

The Specifics

 

[19]           In his written submissions, the Applicant identified a fairly broad range of mistakes that he felt the Investigator and the Commission made in assessing the evidence and drawing conclusions from that evidence. At the time of the oral hearing before me in Victoria, however, the Applicant, while still maintaining that both the Investigator and the Commission had been wrong with regard to all of the points he had initially raised, nevertheless conceded that reviewable error had only occurred in relation to the following three matters:

 

1.      Adverse Differential Treatment

The Applicant argues that it was a reviewable error to find that he had not been subjected to adverse differential treatment when VAC resisted offering him an indeterminate position because of concerns about his disability. In other words, he says that the finding that the delay in offering him an indeterminate position was not discrimination within the meaning of the governing jurisprudence was a reviewable error;

 

2.      Failure to Provide a Harassment-Free Workplace

Under this heading, the Applicant confines his argument to the mediation session that was held on December 10, 2003. He says that, with regard to this meeting, VAC not only failed to prevent harassment, it was actually responsible for the most serious incident of harassment that occurred. He says that the mediation session became a personal attack upon him and his disability that he was forced to endure in order to effect a return to his employment. Hence, he argues that the findings of the Investigator and the Commission that this was not discriminatory treatment is a reviewable error;

 

3.      Failure to Accommodate

The Applicant now confines this ground of attack to the inappropriate response of VAC to his request that his desk be moved. He says that the finding of the Investigator, confirmed by the Commission, that VAC had not failed to accommodate his medically-supported request was a reviewable error.

 

The Applicant no longer relies upon the lack of accommodation in relation to the request he made that he be allowed to tape record meetings. But he does refer to his treatment, following the request he made in this regard, as part of the general pattern of harassment to which he says he was subjected by VAC.

 

Preliminary Considerations

 

[20]           In addition to a consideration of the merits of the Decision on the points raised by the Applicant, the Court also needs to deal with two major matters of dispute between the parties:

 

1.           The Record Before the Court

[21]           The Respondent points out that the Certified Tribunal Record consists of the Investigation Report, the Complaint Summary, the Complaint Form, the Complainant’s Response to the Investigation Report, and a Chronology. However, in the present application, the Applicant has filed an affidavit to which he has attached exhibits that he submitted to the Investigator but which the Respondent says were not before the Commission. The Respondent takes the position that all but exhibits 158, 161 and 162 were not part of the Certified Tribunal Record and were not before the Commission.

 

[22]           The Respondent takes the position that, unless the Court is asked to deal with some issue of procedural fairness, bias or jurisdictional error in relation to a decision under review (and no evidence or argument is advanced in the present case for any such error), any materials before the Court that were not part of the Certified Tribunal Record should be struck or ignored. The Respondent says that this requires the Court to strike all exhibits in the Applicant’s affidavit, except for exhibits 158, 161, and 162.

 

[23]           The Applicant attempts to answer this challenge in two ways. First of all, he says that most of the exhibits referred to in his affidavit were before the Commission because he submitted them to the Investigator. Although he did not include them again in his response to the Investigation Report before the Commission, he specifically referred the Commission to those exhibits he had submitted to the Investigator.

 

[24]           Alternatively, the Applicant says that if the Commission did not refer to and review the documentation he placed before the Investigator, and which he referred to in his response to the Investigation Report, then this does raise a matter of procedural fairness because it would mean that the Commission has failed in its general obligation to review and assess the underlying documentation included in the Complaint and placed before the Investigator.

 

[25]           I agree with the Respondent that it is well-recognized in judicial review proceedings that the only evidence the Court should take into account is the evidence and the record that was before the decision-maker, except in limited circumstances which usually involve issues of procedural fairness, bias or jurisdiction. This position is confirmed in cases such as Lemiecha v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49, (1993), 24 Imm. L.R. (2d) 95, para. 4; and Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47, 2001 FCA 93, at paragraph 77.

 

[26]           None of the usual grounds for expanding the record are either alleged or present in the case before me. Thus, the issue is whether the record before the Commission, and hence the Certified Tribunal Record, can be said to include exhibit evidence that was submitted to the Investigator and which was referred to by the Applicant before the Commission.

 

[27]           First, I see no grounds upon which the usual rules would not apply to any document that was not before the Investigator and which was not submitted to the Commission, even if it was referred to by the Applicant in his submissions in relation to the Investigation Report.

 

[28]           As a result, the decision before me on this issue comes down to a consideration of whether the Certified Tribunal Record should be held to include exhibit evidence placed before the Investigator but only referred to by the Applicant in his submissions before the Commission.

 

[29]           The Respondent relies upon the general jurisprudence regarding the proper record before the Court and, in particular, the words of Justice Strayer in Paul at paragraph 77:

These cases suggest that the Commission is not obliged to weigh potential evidence itself: it is entitled to rely on the investigation report and any submissions made in respect thereto by the parties, to see if it would provide a rational basis for a referral to a tribunal. Any defects in the potential evidence of witnesses can be adequately tested if and when the matter comes before the tribunal. Correspondingly where, as here, judicial review is sought of the decision to refer (and not of the investigation report) a judicial review judge is obliged to look only at the record that was before the Commission when it made the decision under review, barring special allegations going to the procedure or jurisdiction of that decision maker.

 

[30]           I do not believe that these words meet the issue before me in the present case. The justification offered by Justice Strayer for his view that “the Commission is not obliged to weigh potential evidence itself” and is “entitled to rely on the investigation report and any submissions made in respect thereto by the parties, to see if it would provide a rational basis for a referral to a tribunal” is that “any defects in the potential evidence of witnesses can be adequately tested if and when the matter comes before the tribunal.”

 

[31]           In the present case, and in any case where the Commission decides not to refer a complaint to the Tribunal, there is no opportunity to test evidence later, and a decision not to refer amounts to a final disposition of the Applicant’s case, subject, of course, to judicial review.

 

[32]           It seems to me that if the Commission is entitled to rely upon the Investigator’s Report in making a decision not to refer, resulting in a final disposition of a complaint, then any flaws in that report, unless identified and rejected by the Commission, must also be flaws in the Commission’s own decision. And this means, in my view, that in seeking judicial review of that decision, an applicant must be able to attack the Investigation Report and demonstrate its flaws. This also seems to follow inevitably from Justice Strayer’s assertion in Paul that “the Commission is not obliged to weigh potential evidence itself.” If this is the case, and the Commission can render a decision not to refer by merely relying upon the Investigator’s report, reasons and recommendations, then the reality is that a reviewing Court is reviewing the Decision and the Investigation Report, so that evidence submitted to the Investigator is properly before the Court. I do not believe it is any answer to this to say, for instance, that the Applicant could have re-submitted exhibits to the Commission in his response to the Investigation Report and, because he did not do so, those exhibits are not properly before the Court because they are not part of the Certified Tribunal Record. If the Commission is “not obliged to weigh potential evidence” and “is entitled to rely on the investigation report” and is not obliged to look at defects in the potential evidence or the Investigator’s assumptions and conclusions, then when a decision not to refer comes up for review, as in this case, an applicant must be allowed to place before the Court the exhibits he placed before the Investigator. If this were not allowed, then an applicant would be deprived of the opportunity to demonstrate the flaws in an investigation report based upon evidence that the Commission is “not obliged to weigh … ” and that is the whole basis of the Commission’s decision not to defer.

 

[33]           That being said, I believe I have to acknowledge that, on several occasions, the Federal Court and the Federal Court of Appeal have considered whether underlying documents can be considered part of the record that was before the Commission in making its decision whether to refer a matter to the Tribunal, and they have held that the record does not include any underlying documents. However, in reviewing this jurisprudence, there appears to be two different review functions in question. The first concerns a review of the Commission’s decision to refer or not to refer, based upon the Investigator’s Report. The case that is often cited as the leading authority with respect to which documents are to be considered before the Commission is Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455, 180 N.R. 152, aff’d [1995] S.C.C.A. No. 306. The Motions Judge in that decision had considered that the investigator was not independent of the Commission but conducted the investigation as an extension of the Commission (as later recognized in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392, 2005 FCA 404). Based on that fact, the Motions Judge concluded that the documents before the investigator were to be considered, in effect, before the Commission and therefore relevant to the judicial review application, and so should be produced.  This finding was reversed by the Federal Court of Appeal.  First, Justice Pratte held at paragraph 11 that section 44 of the Act contemplates that a decision of the Commission be made on the basis of the Investigator’s Report and the law presumes that the report of the investigator correctly summarizes all the evidence before him. Thus, unless something in the record before the Court suggests that there is a problem with the accuracy or completeness of the Investigator’s Report, there is an assumption that the report of the investigator is a faithful and complete summary. For that reason, the production of the documents would serve no purpose (para.12).

 

[34]           Justice MacGuigan concurred with Justice Pratte and expanded further on his analysis. Justice MacGuigan found at paragraph 21 of Pathak that the Investigator and the Commission are not for all purposes merged: “All of the documents were in the Commission’s custody and of easy access, but it could not be said that they were actually before the Commission when it made its decision.” To identify what materials were before the Commission, as a matter of their decision, depends on what the Commission claims to have relied upon. Under law, only the report of the Investigator and the representations of the parties are required to be considered by the Commission. Thus, according to Justice MacGuigan at paragraph 23 of Pathak, if the Commission does not call for a document, that document cannot be said to be before it in its decision-making phase.

 

[35]           The second review function is the review of the Investigator’s Report for procedural irregularities.  In that regard, Slattery v. Canada (Human Rights Commission) (T.D.), [1994] 2 F.C. 574, aff’d (1996), 205 N.R. 383 (F.C.A.) appears to be the leading case. In that decision, the applicant was alleging that the report itself was subject to defects in its preparation. Justice Nadon held at paragraph 50 that the investigation must be both neutral and thorough. As regards neutrality, if the Commission simply adopts an investigator’s conclusions without giving any reasons, and the conclusions were made in a manner that could be characterized as biased, a reviewable error occurs. Under this type of judicial review, matters relevant to the investigation would be admissible.  However, the inquiry is focussed on the investigation itself, to determine whether it met standards of procedural fairness (see para.69).

 

[36]           Justice Pelletier in Hutchinson v. Canada (Minister of the Environment), [2003] 4 F.C. 580, 2003 FCA 133, held at paragraph 49 that the “right to know the case to be met and to respond to it arises in connection with material which will be put before the decision maker, not with respect to material which passes through an investigator’s hands in the course of the investigation.” Relying on this decision, Justice de Montigny held in the recent case of Niaki v. Canada (Attorney General), 2006 FC 1104 at paragraph 27, that where there are no allegations of procedural unfairness, or where the thoroughness of the Investigator’s Report is not at stake, the Court should normally look only at the record before the Commission when it made the decision under review.

 

[37]           In the present case, the Applicant does raise procedural deficiencies with the Investigator’s Report in his Notice of Application, but does not appear to do so directly in any further submissions.  However, in my view, it is possible to regard his submissions in general as suggesting that the Investigator failed to take into account relevant evidence, and made reviewable errors of law in his findings and conclusions.

 

[38]           There are also several cases which suggest that the record before the Court includes the underlying documents even where the issue involves only a review of the Commission’s decision. First, the Court has recognized the higher standard that applies in reviewing decisions to dismiss rather than to submit to the Tribunal for consideration. Justice Linden in Sketchley, above at paragraph 37, maintains that the investigator cannot be regarded as “[…] a mere independent witness before the Commission” and affirms that “[w]hen the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, the courts have rightly treated the investigator’s report as constituting the Commission’s reasoning […]”. This suggests to me that, in adopting the Investigator’s recommendations as its own, and treating them as its reasons, the Commission also adopts the Investigator’s assessment of the documentation that was before him or her. And I believe that is the situation in the present Application.

 

[39]           Consequently, it is my view that, if exhibits in the Applicant’s affidavit were properly before the Investigator and were referred to in the response to the Investigation Report placed before the Commission, then those exhibits were part of the record upon which the Commission based its Decision and so are properly before this Court. I also believe that this approach is consistent with the view of the Federal Court of Appeal in Sketchley, at paragraphs 36-37, where the Court addressed the relationship between the Commission’s decision and the Investigator’s Report:

The applications Judge treated the analysis in the investigator’s reports as representing the Commission’s reasoning for its decision, citing the brevity of the Commission’s decision as a factor necessitating this approach at paragraph 12. The appellant argues that this treatment constitutes an error of law, as such treatment is said to negate the separate and distinct roles of the investigator and the Commission.

 

In my view, the appellant’s argument on this issue must fail. While it is true that the investigator and Commission do have “mostly separate identities”(Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.) at paragraph 21, per MacGuigan J.A., (Décary J.A. concurring)), it is also well-established that, for the purpose of a screening decision by the Commission pursuant to section 44(3) […] of the Act, the investigator cannot be regarded as a mere independent witness before the Commission (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission),  [1989] 2 S.C.R. 879 at page 898 [SEPQA]). The investigator’s report is prepared for the Commission, and hence for the purposes of the investigation, the investigator is considered to be an extension of the Commission (SEPQA, at page 898). When the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, the courts have rightly treated the investigator’s report as constituting the Commission’s reasoning for the purpose of the screening decision under section 44(3) of the Act (SEPQA, at pages 902-903; Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), at paragraph 30 (Bell Canada); Canadian Broadcasting Corp. v. Paul, (2001), 198 D.L.R. (4^th) 633 (F.C.A.), at paragraph 43.

 

 

[40]           In the case before me, the actual Decision of the Commission contains little in the way of reasons and obviously relies upon the reasons in the Investigation Report for not accepting the Applicant’s detailed response to that report. Second, the reality is that the Applicant is attacking the findings, conclusions and reasons in the Investigator’s Report that were accepted by the Commission without demur. Consequently, it is my view that the record before me rightly includes exhibits that were before the Investigator and that were referred to by the Applicant when he made his submissions to the Commission on the Investigation Report.

 

2.       Standard of Review - General

 

[41]           The parties disagree significantly on the standard of review applicable in the present case. As is usual, the Applicant believes the Decision is entitled to little deference and the Court should use a standard of correctness; the Respondent, on the other hand, believes the Decision is entitled to the maximum degree of deference embodied in the standard of patent unreasonableness.

 

[42]           Several decisions of this Court and the Federal Court of Appeal have considered the standard of review applicable to a decision of the Commission to remit or not remit a complaint to the Tribunal for consideration, and some seem to turn on the issue of whether the issue in question is deemed one of fact or law, or mixed fact and law.

 

[43]           The Federal Court of Appeal in Sketchley emphasised that a pragmatic and functional analysis should be undertaken with respect to each decision under review, regardless of whether the same or similar issue has been decided in a previous case. Justice Linden expressly referenced the conflicting jurisprudence on the issue of the standard of review under subsection 44(3) of the Act, some of which I have explored below, and stated at paragraph 45 that, “[s]ince different decisions call for different levels of deference, it is unsurprising that the Federal Court of Appeal has applied various standards of review to various decisions taken under subsection 44(3) of the Canadian Human Rights Act.”

[44]           In Sketchley, Justice Linden held at paragraph 59 that the determination as to whether prima facie discrimination has been established in a particular complaint will in some cases be a question of mixed fact and law, and in others a question of law. Justice Linden identified a number of factors that help determine whether a question is purely legal, or is one of mixed fact and law, at paragraph 60, which I will address later.

 

[45]           The 1998 decision of Justice Décary in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 is frequently cited for the proposition that at least some deference must be afforded decisions of the Commission to either refer a matter to the Tribunal or dismiss it outright. However, Justice Décary emphasised that decisions of the Commission on whether or not to send a matter to the Tribunal could involve various degrees of law or fact, thus supporting a contention that, in certain circumstances, the issue could be one of pure law. At paragraph 38 of Bell Canada, Justice Décary stated as follows:

The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report.  Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as “is satisfied”, “ought to”, “reasonably available”, “could more appropriately be dealt with”, “all the circumstances”, “considers appropriate in the circumstances” which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.) at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.(emphasis added)

 

[46]           Furthermore, as noted by Justice Linden in Sketchley at paragraphs 79-80, less deference should be afforded to the Commission when it decides to dismiss a complaint under section 44(3)(b) and its decision is determinative of rights. In Larsh v. Canada (A.G.) (1999), 166 F.T.R. 101 at 107, 49 Imm. L.R. (2d) 2 at paragraph 36 (FCA) also, Justice Evans wrote that the Commission’s decision to dismiss complaints should be subject to greater scrutiny than decisions to refer complaints to the Tribunal because a dismissal is a final decision. However, Justice de Montigny in Public Service Alliance of Canada v. Canada (Treasury Board), [2006] 3 F.C.R. 283, 2005 FC 1297 at paragraphs 26-27 noted that nowhere in Larsh did Justice Evans say that a decision of the Commission to dismiss a complaint should always be assessed against a standard of correctness (and Justice Evans in fact applied a standard of reasonableness in Tahmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60, 2005 FCA 113, see below) and what he said was dependent largely on the facts of that case. In Larsh, the applicant had made a unique argument that there was a fundamental disagreement on the facts as to an important point, and that the Commission should not be able to dismiss a complaint just because there was no independent witness to corroborate what the applicant had said.

 

[47]           On the other hand, there have been several cases that have previously considered the standard of review applicable to Commission decisions not to submit the complaint for consideration before the Tribunal, and those decisions have tended to favour the reasonableness standard because decisions of the Commission in these matters constitute questions of mixed fact and law.

 

[48]           For example, in Bastide v. Canada Post Corp., [2006] 2 F.C.R. 637, 2005 FC 1410, 2005 FC 1414, Justice de Montigny seems to conclude at paragraph 32 that all applications to the Commission to determine whether review by the Tribunal is warranted constitute questions of mixed fact and law because the Commission must determine if a review would be warranted by applying the legal standards to the evidence (para.33). In fact, Justice de Montigny affirmed this in Niaki, where he concluded at paragraph 31 as follows:

It is no doubt true that different decisions call for different levels of deference.  As a matter of principle, a court reviewing a decision made pursuant to section 44(3) of the Act must apply the pragmatic and functional approach anew instead of relying on precedents.  That being said, this exercise has been done in the recent past by a number of my colleagues and by the Federal Court of Appeal, and there is a large consensus that the general standard of review to be applied in a case like this is reasonableness.

 

[49]           Justice O’Keefe came to a similar conclusion in MacLean v. Marine Atlantic (2003), 243 F.T.R. 219, 2003 FC 1459 at paragraphs 41-42, and he also concluded that the appropriate standard of review was reasonableness.

 

[50]           Justice de Montigny, in Bastide, also listed several recent cases where the Federal Court and Federal Court of Appeal have held that the applicable standard is reasonableness (paras.34-35). For instance, in Tahmourpour, Justice Evans held that the reasonableness standard applied in response to a complaint that involved, in part, a claim of harassment (para. 6), even though he did not engage in a pragmatic and functional analysis.

 

[51]           On the other hand, the Respondent has pointed to several cases, including Horn v. Canada (Attorney General) (2005), 274 F.T.R. 254, 2005 FC 726, Pezzente v. Rogers Communications Inc., 2005 FC 953 and McConnell v. Canada (Canadian Human Rights Commission), 2004 FC 817, aff’d 2005 FCA 389, which have found the applicable standard of review to be patent unreasonableness. In my view, however, these cases seem to be the exception and not the norm; in none of them was a pragmatic or functional analysis undertaken.

 

[52]           Against this background, it is my view that the Federal Court of Appeal in Sketchley has provided general guidance on standard of review issues with respect to a decision of the Commission under section 44(3) of the Act at paras. 44-51:

…

 

Counsel referred the Court to seemingly contradictory decisions by this Court concerning the appropriate standard of review to be applied with respect to a decision of the Commission under section 44(3) of the Act regarding whether or not to refer a complaint to a Tribunal. While some of the jurisprudence has applied the standard of reasonableness simpliciter (Bradley v. Canada (Attorney General) (1999), 238 N.R. 76 at para. 9 (F.C.A.), Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321, 2002 FCA 4 at para. 13 (F.C.A.) Singh v. Canada (Attorney General) (2002), 291 N.R. 365, 2002 FCA 247 at para.7 (F.C.A.) [Singh], Tahmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60, 2005 FCA 113 at para.6 (F.C.A.) [Tahmourpour], Gardner v. Canada (Attorney General), [2005] F.C.J. No. 1442, 2005 FCA 284 at para. 21), a sizeable number of cases have used patent unreasonableness (Bell Canada, supra at para. 37, St-Onge v. Canada, [2000] F.C.J. No. 1523 at para. 1 (QL), Murray v. Canada (Canadian Human Rights Commission), [2003] F.C.J. No. 763, 2003 FCA 222 at para. 4 [Murray], Elkayam c. Canada (Procureur General), [2005] F.C.J. No. 494, 2005 CAF 101 at para.4). This apparent inconsistency is a predictable result of the application of the pragmatic and functional approach.

 

Since different decisions call for different levels of deference, it is unsurprising that the Federal Court of Appeal has applied various standards of review to various decisions taken under subsection 44(3) of the Canadian Human Rights Act. Indeed, what would be surprising would be unanimity on the appropriate standard of review. Such a consensus might indicate slavish deference to precedent, as opposed to careful and nuanced applications of the pragmatic and functional approach on a case-by-case basis. Indeed, regardless of the standard adopted in these proceedings, future courts reviewing subsection 44(3) decisions must apply the pragmatic and functional approach anew.

 

A review of the principles underlying the determination of the standard of review in this context may assist in clarifying this matter. As I explain in the remainder of this section, the pragmatic and functional analysis must be undertaken anew by the reviewing Court with respect to each decision of an administrative decision-maker, not merely each general type of decision of a particular decision-maker under a particular provision. The pragmatic and functional analysis does not apply, however, to allegations concerning procedural fairness, which are always reviewed as questions of law.

 

Typically, a screening decision of the Commission under section 44(3) of the Act involves a determination of a question of fact or of mixed fact and law. In such cases, the heavily fact-specific nature of the decision at issue creates little precedential value. The standard of review of patent unreasonableness or reasonableness simpliciter will, all else being equal, likely be the appropriate outcome of the pragmatic and functional analysis in such cases. However, if as in this case, the screening decision of the Commission engages a question of law with general precedential value, and/or raises an issue of procedural fairness, the appropriate standard of review might be correctness. I now turn to this exercise.

 

a)         The primacy of the pragmatic and functional approach

 

The Supreme Court of Canada has clearly stated that the pragmatic and functional approach must be undertaken by a reviewing judge “in every case where a statute delegates power to an administrative decision-maker” (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19 at para. 21 [Dr. Q]). It must be recalled that the “overall aim [of the pragmatic and functional approach] is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law” (Dr. Q, supra at para. 26). The pragmatic and functional analysis, therefore, is undertaken to determine the core issue of the proper degree of curial deference owed to administrative decision-makers by the Courts.

 

I note that in none of the decisions relied upon by the parties to determine the applicable standard of review (including this one) did the reviewing court go through the process of applying the pragmatic and functional approach, which is now required.

b)         The importance of identifying the particular question at issue in the decision under review

 

First, the requirement that a pragmatic and functional analysis be undertaken in every case emphasizes the importance of identifying the particular question at issue in the decision under review in any given case. As Bastarache, J. emphasized in Pushpanathan  v. Canada, [1998] 1 S.C.R. 982  [Pushpanathan], “the focus of the inquiry is ... on the particular, individual provision being invoked and interpreted by the tribunal” (para. 28, italics mine). The factors included within the pragmatic and functional approach are case-specific in nature, and the Supreme Court of Canada has stressed the importance of not applying the approach “mechanically” or as “an empty ritual” (Dr. Q, para. 26). Therefore, as complex as it may be, this analysis must be applied anew with respect to each decision, and not merely each general type of decision of a particular decision-maker under a particular legislative provision. Even where it may appear that the issue has been settled in the jurisprudence, “[t]here is no shortcut past the components of the pragmatic and functional approach” (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20 at para.21 [Ryan]).

 

As a result, one cannot conclude that because a particular standard was found in a previous case to apply to a decision of the Commission under section 44(3), this same standard can be assumed necessarily to apply when reviewing another decision of the Commission under the same legislative provision. Similarly, one cannot conclude that the same standard of review will necessarily apply to all aspects of a Commission’s decision, especially if (as in this case) the Commission is dealing with multiple complaints at once. It is the particularities of the decision at issue in a given case that govern the standard of review to be employed by the reviewing Court.

 

[53]           I take it from Sketchley that my role as a reviewing judge requires the following approach in the present case:

1.                  I must undertake a pragmatic and functional analysis to determine the appropriate standard of review applicable to this particular Decision, and I should not rely upon some general notion of the kind of decision that has been made;

2.                  In undertaking a pragmatic and functional analysis I must clearly identify the particular question at issue in the Decision under review;

3.                  In conducting the analysis I should not assume that the same standard of review will necessarily apply to all aspects of the Commission’s Decision, because the Applicant has made multiple complaints and it is the particulars of the Decision at issue that govern the standard of review I should apply.

 

[54]           In my view, on the facts of the present case, this requires that I undertake a pragmatic and functional analysis for each separate ground of review raised by the Applicant. Notwithstanding that the Applicant says the sole issue is whether the Commission erred in finding that the evidence does not support the allegations in his Complaint, the Applicant raises particular instances of this general error that require a nuanced approach to determine the standard of review appropriate for each error identified.

 

3.       Standard of Review - Particulars

 

[55]           With regard to each particular aspect of the Commission’s Decision cited by the Applicant for reviewable error, my conclusions on the appropriate standard of review are as follows:

 

a)         Adverse Differential Treatment

[56]           The particular question at issue here is whether VAC, by its resistance to offering the Applicant an indeterminate position, subjected him to adverse differential treatment because of his disability.

[57]           The Applicant says that a pragmatic and functional analysis in relation to this particular issue leads inevitably to a conclusion that the applicable standard should be correctness. The Respondent, after applying a pragmatic and functional analysis, concludes that the standard ought to be patent unreasonableness. The Applicant’s principal justification for a standard of correctness is that the question raised by this aspect of the Decision involves a question of law, or at least a question of mixed fact and law that is law-intensive. The Respondent’s analysis of this issue is that it raises questions of fact, or issues of mixed fact and law that are fact-intensive, which, when the other pragmatic and functional factors are taken into account, suggests patent unreasonableness as the appropriate standard.

 

[58]           In the present case, the particular question at issue might involve a range of findings and conclusions:

a)      Findings of primary fact i.e. that something was said or done by a particular person at a particular time;

b)      Ascriptions of meaning to findings of primary fact i.e. a semantic assessment of the whole context in which a primary fact occurs;

c)      Conclusions regarding clusters of primary facts and their ascribed meanings, some of which may support a particular conclusion and some of which may detract from it;

d)      The identification of the relevant legal definitions and tests to be applied to the facts and conclusions;

e)      A final decision as to whether particular facts, fact clusters or conclusions satisfy the relevant legal definition or test.

[59]           To be fully nuanced, a pragmatic and functional analysis needs to be alive at least to these gradations as they arise in relation to the particular question at issue. The jurisprudence often refers to “fact-intensive” and “law-intensive” decisions. Principally, in this case, the Applicant attacks both the conclusions that the Investigator reaches on fact clusters and the Investigator’s findings that those conclusions do not transgress the relevant legal test.

 

[60]           My own conclusions on this particular issue are as follows:

 

i)          Presence or absence of a privative clause or statutory right of appeal

 

[61]           The Federal Court of Appeal provided a detailed analysis of this factor in Sketchley at paragraph 63 and I can think of no reason why, on the facts before me, yet another new analysis would lead to a different conclusion:

The Act thus contains no legislative guidance as to appeals or reviews of this type of decision. As noted in Dr. Q. at paragraph 27, “silence is neutral, and does not imply a high standard of scrutiny” (quoting Pushpanathan, supra at para. 30).

 

 

[62]           On this basis alone, this factor has a neutral impact on the standard of review. This does not end the matter, however, because, as the Federal Court of Appeal pointed out in Sketchley at paragraph 64, “the legislative provisions granting this Court jurisdiction to review Commission decisions – sections 18 and 18.1 of the Federal Courts Act – are also relevant.” The effect of those provisions cannot be gauged until I have decided whether the kind of question raised in the present instance is referred to in sections 18 and 18.1 as having an applicable standard. So I will consider the impact of the Federal Courts Act R.S.C. 1985 c. F-7 on this factor below when I examine the relevant statutory provisions.

 

ii)      Relative Expertise

 

[63]           The Federal Court of Appeal set out at paragraph 71 of Sketchley what this evaluation involves:

Evaluation of the second factor, relative expertise, requires analysis of “three dimensions: the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise” (Pushpanathan, supra at para. 33, quoted in Dr. Q, supra at para. 28).

 

[64]           The specific issue before the Commission on this question was whether or not the evidence supported the Applicant’s contention that he was treated in an adverse differential manner when VAC resisted offering him an indeterminate position. This involved an application of the legal definition of “adverse differential manner” to the facts, and the conclusions drawn from those facts as found by the Investigator. In my view, then, this raises issues of mixed fact and law. It is not a pure question of law because the parties are not disputing that the Commission or the Investigator failed to apply the correct legal definition of adverse differential treatment. The parties are disputing whether the Investigator reached the right conclusions on the facts and whether his application of the law to the facts and his conclusions was correct.

 

[65]           As regards the factual aspect of this exercise, the Investigator is much better equipped than the Court to make factual determinations. This suggests the greatest degree of deference and a standard of patent unreasonableness. On the other hand, once the facts are identified by the Investigator, the Court is no less qualified, and is probably better qualified, to assess whether or not they fit the definition of adverse differential treatment. This suggests much less deference.

 

[66]           My conclusion in relation to this factor is that, in order to remain properly nuanced, relative expertise in relation to the adverse differential treatment issue will depend where in the continuum between fact finding and legal application the issue in question happens to fall. My review of the evidence and the Investigation Report suggests that the Investigator’s expertise is being challenged by the Applicant, sometimes because he failed to consider relevant evidence, but principally because of the legal conclusions he reached on established facts. In other words, it is relative expertise in applying a legal definition to established facts that is most significant here and, in my view, this suggests little deference.

 

(iii)    Purpose of the Statute as a Whole and Section 44(3)(a) in Particular

 

[67]           The Federal Court of Appeal in Sketchley undertook an analysis of these factors at paragraphs 74-76 and I see no reason why I should deviate from its conclusions in the case before me:

…

 

The purpose of the Act, as set out in section 2, is essentially to prevent discriminatory practices based on a series of enumerated grounds. The protection of human and individual rights is a fundamental value in Canada and any institution, organization or person given the mandate by law to delve into human rights issues should be subjected to some control by judicial authorities.

 

The particular decision at issue with respect to the TB complaint occurred in the course of the Commission’s screening function under section 44(3) of the Act. For any given complaint, the decision taken by the Commission pursuant to section 44 constitutes an important threshold in accessing the remedial powers of the Tribunal under section 54: a decision at this stage by the Commission not to deal with a complain is a decision which effectively denies the complainant the possibility of obtaining relief under the Act. The Commission’s activities with respect to the investigation of individual complaints and their selective referral to a Tribunal directly engages the individual rights and entitlements of the parties to a particular complaint. This aspect suggests a less deferential standard.

 

At the same time, it is common knowledge that the number of complaints received far exceeds the number that the Commission may be able, due to practical and monetary considerations, to refer to a tribunal for further inquiries. As Décary, J.A. observed in Bell Canada, supra at para. 38:

 

The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report ... The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission. (emphasis mine)

 

In general, at least in the assessment of practical and monetary matters, the Commission is in a better position than the Federal Court to assess whether any given complaint should go further. This consideration thus leans in favour of greater deference.

 

[68]           I see no suggestion on the present record before me that either the Commissioner or the Investigator took practical and monetary matters into account in this particular aspect of the Decision or, indeed, on any of the issues raised. Thus, I can come to no conclusions about how monetary and practical matters should affect this pragmatic and functional analysis.

 

[69]           I conclude then, on the facts and the Decision before me, that the final, dispositive nature of the Decision, which effectively denies the Applicant his rights to a tribunal and possible relief under the Act, suggests “a less deferential standard” on this particular factor.

 

(iv)  Nature of the Problem

 

[70]           The Federal Court of Appeal in Sketchley made a number of points that are helpful in dealing with this factor in the present case. The applicable comments occur at paragraphs 77, 79 and 80:

As noted by Sopinka J. in SEPQA, supra at para. 27, the question to be decided by the Commission at the conclusion of the screening process is whether there was “a reasonable basis in the evidence for proceeding to the next stage”. The investigator is essentially engaged in a fact-finding mission but the Commission itself, when it takes action on the basis of the investigator’s report, is nevertheless applying the facts in the context of the legal requirements of the Canadian Human Rights Act. The resulting decision will in general be one of mixed fact and law, calling “for more deference if the question is fact-intensive, and less deference if it is law-intensive” (Dr. Q., supra at para. 34).

 

[…]

 

It is also important in this context to distinguish between screening decisions of the Commission to dismiss a complaint pursuant to section 44(3)(b), and decisions to accept a complaint and refer it to a Tribunal pursuant to section 44(3)(a). In decisions of the latter type, the Commission is not acting as an adjudicative body making conclusive determinations as to whether a complaint has been made out (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at para. 54). In these circumstances, the “legal assumptions made by the Commission in deciding to request the formation of a Tribunal do not amount to decisions as to the state of the law or its impact on those concerned” (Zündel v. Canada (Attorney General) (2000), 267 N.R. 92 at para. 4).

 

However, when the Commission decides to dismiss a complaint, its conclusion is “in a real sense determinative of rights” (Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 at para. 24 (F.C.A.) [Latif]). Any legal assumptions made by the Commission in the course of a dismissal decision will be final with respect to its impact on the parties. Therefore, to the extent that the Commission decides to dismiss a complaint on the basis of its conclusion concerning a fundamental question of law, its decision should be subject to a less deferential standard of review.

 

[…]

 

 

[71]           In conclusion, then, with respect to the Commission’s decision that a delay in granting indeterminate status did not constitute adverse differential treatment, the Court is faced with a final, dispositive Decision within which the basic exercise was to determine whether established facts (and conclusions drawn from those facts) qualified legally as adverse differential treatment. For this aspect of the Decision, the Court’s expertise is no less than the Commission’s. In my view, this places this particular issue at the law-intensive end of the spectrum and, taking all factors of the pragmatic and functional analysis together, requires a standard of correctness in this case. I believe this conclusion is also supported by the relevant provisions of the Federal Court Act as analysed by the Federal Court of Appeal in Sketchley at paragraphs 64-70.

…

 

However, the legislative provision granting this Court jurisdiction to review Commission decisions -- sections 18 and 18.1 of the Federal Court Act -- is also relevant. Section 18.1(4) reads:

 

 

 

It should be noted that although six grounds of review are listed, the standards of review to be employed are not specified, except in respect of errors of fact (section 18.1(4)(d)) which are reviewable if the findings are made in a perverse or capricious manner, a standard of review that is akin to patent unreasonableness. Historically, the other grounds listed -- notably including an error of law -- were generally considered to be reviewable on a correctness standard. However, contemporary Canadian administrative law is now founded on a recognition -- as reflected in the pragmatic and functional approach -- that curial deference will in some circumstances be due to administrative decision-makers’ interpretations of particular types of legal questions (C.U.P.E., Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, Union des employés de service v. Bibeault, [1988] 2 S.C.R. 1048, Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, Pushpanathan, supra).

 

In Mugesera v. Canada (2005), 335 N.R. 229, 2005 SCC 40, a recent case concerning the review under the Federal Court Act of a decision of the Immigration and Refugee Board (Appeal Division) in which the Board was required to interpret provisions of the Criminal Code, the Supreme Court of Canada, without any analysis of the prior jurisprudence, appears to indicate a new readiness to consider the language of Parliament in the Federal Court Act as influential, if not conclusive, in determining the applicable standard of review with respect to questions of law. It wrote:

 

37. Applications for judicial review of administrative decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act. Paragraphs (c) and (d) of s. 18.1(4), in particular, allow the Court to grant relief if the federal commission erred in law or based its decision on an erroneous finding of fact. Under these provisions, questions of law are reviewable on a standard of correctness. (emphasis mine)

 

Despite the unqualified and seemingly unequivocal tenor of this passage from Mugesera, in my view it would nevertheless be wise, at least until this matter is clarified, to continue to use the pragmatic and functional analysis to determine the standard of review of legal issues in cases of judicial review under the Federal Court Act. This is so, because of the Supreme Court’s clear direction in Dr. Q, supra, that it remains necessary to apply the pragmatic and functional approach in every case in which the standard of review falls to be determined.

 

However, paragraph 37 of Mugesera, supra does suggest that in cases such as this one in which the Federal Court Act governs, the provisions of this Act should, at the least, be considered within the pragmatic and functional analysis. Clearly, the Act conferring jurisdiction is surely relevant in relation to the ultimate concerns of judicial review -- that is, legislative intent and the rule of law (Dr. Q, supra at para. 21).

Therefore, in cases governed by section 18.1(4) of the Federal Court Act, to the extent that the decision at issue is a question of law, the first factor of the pragmatic and functional analysis points towards the standard of correctness. However, that standard may not automatically apply to the review of all such questions of law, as the other pragmatic and functional factors -- such as relative expertise -- may in some cases predominate.

 

In this case, given the abstract nature of the Commission’s reasoning, the question of whether prima facie discrimination had been established is clearly a question of law. Since this review is pursuant to section 18.1(4) of the Federal Court Act, in my view the first factor leans towards the standard of correctness.

 

                       

b)         Failure to Provide a Harassment-Free Workplace

 

[72]           If I apply a pragmatic and functional analysis to this particular ground, I come to the same conclusions, and for the same reasons, as I came to above with regards to the adverse differential treatment issue. The Applicant is essentially attacking the conclusions reached by the Investigator that, as a matter of law, there is no discrimination under the Act. The nature of the exercise is essentially the same as that described by Justice Nadon in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, at 611, aff’d (1996), 205 N.R. 382 (F.C.A.):

 

On this matter, I must disagree with the premise of the Applicant, that the conclusion that the issue of the foundedness of the Applicant’s allegation of discrimination is a question of fact, as opposed to a question of law. As stated by Professor Wade (Administrative Law, 6th ed., at pages 938-939):

 

Questions of law must be distinguished from questions of fact, but this has always been one of the situations where the rules have taken different forms under judicial manipulation . . . .

 

The simpler and more logical doctrine has been recognized in many judgments. This is that matters of fact are the primary facts of the particular case which have to be established before the law can be applied, the ‘facts which are observed by the witnesses and proved by testimony’, to which should be added any facts of common knowledge of which the court will take notice without proof. Whether these facts, once established, satisfy some legal definition or requirement must be a question of law, for the question then is how to interpret and apply the law to those established facts.

 

[73]           Consequently, I am of the view that little deference is owed to this aspect of his Decision and that a standard of correctness should be applied.

 

c)         Failure to Accommodate

 

[74]           My review of the Decision in relation to this particular ground suggests that the Applicant is more concerned to attack the Investigator’s findings of fact and the conclusions he draws from those facts.

 

[75]           As regards a pragmatic and functional analysis, nothing changes from the first two issues referred to above except that where the attack focuses upon fact finding, and conclusions based upon primary findings of fact, the Court is required to be much more deferential and a standard of correctness should not be applied. My review of this aspect of the Decision suggests to me that the focus of the Applicant’s attack is principally fact-intensive. Consequently, in my view, a pragmatic and functional analysis as applied to this particular aspect of the Decision suggests that the applicable standard of review should be patent unreasonableness.

The Merits of the Decision

 

            The Threshold for Committal

 

[76]           The general principles governing the threshold for referring a complaint to the Tribunal under section 44 of the Canadian Human Rights Act, R.S.C. 1986, c.H-6 (Act), were established by Justice Sopinka in Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 (SEPQA). According to Justice Nadon in Slattery at paragraphs 72-78, aff’d (1996), 205 N.R. 383,  Justice Sopinka’s decision in SEPQA made it clear that the decision to either dismiss a case or submit it to the Tribunal for consideration is intimately linked to the Commission’s perception of the merits of the case. This reasoning continues to apply to the new version of the legislation under subsection 44(3). Justice Sopinka stated in SEPQA at page 899:

[…] It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage.  It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal.  Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in [the Act] is met. (emphasis added)

 

[77]           Justice Linden cited and applied the underlined portion of this statement in Sketchley at paragraph 77.

 

[78]           Justice LaForest for the Supreme Court of Canada later expanded upon the principles elaborated in SEPQA in Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854, 204 N.R. 1 at paragraph 53.  Justice LaForest referred to the Commission as performing a screening analysis somewhat analogous to that of a judge at a preliminary inquiry and held that it is not the function of the Commission to determine if the complaint is made out. Rather its duty is to determine if an inquiry is warranted, giving consideration to all the facts, and to assess the sufficiency of the evidence. Justice LaForest affirmed and applied the principles from SEPQA.

 

[79]           According to Justice Décary in Bell Canada at paragraph 35, this standard is a low threshold.

 

[80]           Finally, in Wang v. Canada (Minister of Public Safety and Emergency Preparedness) (2005), 272 F.T.R. 208, 2005 FC 654 at paragraph 26, Justice Beaudry held that it is the totality of the evidence that is important to the inquiry:

The Commission cannot simply look at one aspect of the evidence; it must look at all the evidence, “having regard to all circumstances.”  In Tan v. Canada Post Corp., [1995] F.C.J. No. 899 (T.D.) (QL) at paragraph 25, the Federal Court stated that:

 

[…]  while it is clear that the Commission may not divorce itself entirely from the merits of a complaint in determining not to proceed, it is inconceivable that it cannot on its fact finding role come to conclusions as to the probative value of certain evidence or the possibility that some complaints are not worthy of pursuing beyond the investigatory stage due to inherent weakness.  As long as the Commission does not arrive at the decision not to proceed by failing to consider the material evidence before it, there are no grounds for judicial intervention on review.

 

[81]           Thus, the threshold for referring a complaint to the Tribunal appears to be fairly low: having regard to all the circumstances, was there a reasonable basis on the evidence for proceeding to the next stage?

 

1.      Adverse Differential Treatment – Delay in Granting Indeterminate Status

 

Established Facts

 

[82]           The Applicant received WCB benefits for PTSD and was accepted as a disability priority with the PSC in September 2001. Pursuant to section 36 of the Regulations, an indeterminate employee who becomes disabled and meets the criteria of the Regulations is entitled by law to priority status. Such an employee is entitled to priority placement, without competition, in a job which is considered suitable by the PSC.

 

[83]           In March 2002, the PSC contacted the Applicant to inform him that there was an Area Counsellor position (AC position) open with the Victoria office of VAC.

 

[84]           On March 8, 2002, the Applicant received an email stating that he had been screened into the competition for the AC position. The Applicant underwent testing and interviewing for the AC position. He received confirmation of his appointment to the AC position on April 5, 2002.  Subsequent communication confirmed his appointment.

 

[85]           Upon being offered the AC position with VAC, the Applicant informed Susan Dayton, Client Service Team Manager, that he could not work full time but needed to be reintegrated into the work place. The Applicant met with Ken Parkinson (District Director) and Beverly Greig (Chief Client Services) of VAC on April 17 and 24, 2002 and discussed a WCB scheme that would pay for a graduated return to work program. On April 26, 2002, an agreement was drafted regarding the Applicant’s return to work on a graduated basis to commence on May 1, 2002 and to be completed by July 23, 2002.

 

[86]           The Applicant commenced employment with VAC on May 1, 2002. He maintains that Ms. Greig and Mr. Parkinson stated they were unaware the Applicant would be on a graduated return to work program at the time he was hired, and wanted someone who could work full time, and that they did not realize he was being actively treated for his PTSD. There were several meetings which the Applicant describes as acrimonious and stressful.

 

[87]           Mr. Parkinson informed WCB Vocational Rehabilitation Consultant Lee Dennis on July 3, 2002 that the Applicant’s work was improving and that he would be hired on an indeterminate basis at the end of the return to work program. However, at that time, Mr. Parkinson requested a three week extension to the graduated return to work program to extend it to August 13, 2002.  The program was extended for three weeks.

 

[88]           In a conference call on July 31, 2002, VAC formally requested the extension of the return to work program for three months. On July 31, 2002, a WCB official spoke to Ms. Robin Hounslow of PSC and noted that the Applicant’s graduated return to work was highly unusual. The Respondent maintains that even if a term position is unusual, it can be appropriate when a department is unsure whether a person meets the qualifications of the position. However, the Applicant had been accepted for the position.

 

[89]           By letter dated August 1, 2002, Mr. Parkinson wrote a letter to the WCB expressing multiple reasons for requesting the extension of the Applicants return to work program. Several of these reasons were directly related to the Applicant’s disability.

 

[90]           On August 8, 2002 the Applicant was offered a three month term appointment. On August 12, 2002, Jodi Rai (A/Regional Director Human Resources of VAC) wrote a letter to the Applicant’s psychologist asking questions about his disability and requesting a fitness to work evaluation. The Applicant’s physician stated on August 27 that the Applicant was fit to perform his job, as long as he was given an opportunity once a week to attend therapy, was permitted to start later in the morning, and had his desk positioned so that is was not in the traffic corridor, so he could see people approaching and so that there was a degree of distance between him and those entering.

 

[91]           The Applicant wrote a letter to Ms. Rai dated August 20, 2002, in which he stated that the failure to afford him indeterminate status constituted discrimination.

 

[92]           The Applicant was offered an indeterminate position on September 4, 2002.

 

 

The Investigator’s Report

 

[93]           The various documents referred to in the record were considered and the following interviews conducted by the Investigator:

Robin Hounslow and her Director, Bonnie Blenkinsop (of the PSC) were interviewed to determine whether it is usual to have a person given a term position.  They stated that if the department is not certain about the person’s ability to meet the qualifications, they can appoint on a term basis until the person is qualified.  However, this is normally done for priorities entitled to retraining and only during the retraining period.  Ms. Hounslow stated that placing the Applicant in a term position was not the norm because he was not eligible for retraining. Ms. Blenkinsop stated that the WCB had offered 3 months of payment to VAC on the understanding the Applicant would be indeterminately appointed following the successful completion of the 3 month period. Ms. Blenkinsop affirmed that appointing to a term after this was unusual. The Investigator noted:   “but she said the department had concerns about accommodating a graduated return to work, and the concerns were expressed by Ken Parkinson at the time of the referral” (para.29).

 

The Memorandum of Understanding between the British Columbia WCB and the Respondent confirmed that the Applicant would commence a gradual return to work program as of May 1, 2002 to be completed July 23, 2002 and that he was to be offered an indeterminate position when he had successfully completed it.

 

A letter dated July 3, 2002 indicated that the WCB had extended the return to work by 3 weeks, until August 12, 2002.

 

The following email exchanges occurred between the Applicant and Robin Hounslow of the PSC:

 

The Applicant requested Mr. Parkinson to move his desk and he felt Mr. Parkinson requested an extension of the WCB period because “this indicated that my PTSD might affect my work in some manner.” And that “it is my disability they can’t seem to accept and they have therefore refused to honour the commitment they made to Lee and myself to offer me an indeterminate position.”

 

Ms. Hounslow indicated they may appoint him to a term but that before they could not appoint at all, they would have to have evidence that he could not fulfill his duties for a reason not related to his disability.

 

Mr. Parkinson wrote a letter in which he requested the 3 month extension of the return to work program. The Investigator notes that several reasons in the letter are directly related to the Applicant’s disability.

 

A telephone log entry from a teleconference involving the Applicant and Mr. Parkinson, Susan Vegton, Bev Greig, Jodi Ryan (all acting for the Respondent) and Lee Dennis of WCB addressed the potential three month term. Mr. Parkinson was asked why he changed his mind about offering the indeterminate position to the Applicant.  The notes state that Mr. Parkinson did not provide any reason for his change in perspective other than just not feeling comfortable. He was asked if it related to the PTSD and he provided very little “enlightenment”. Mr. Parkinson expressed that he thought the desk evidenced the PTSD impacting the Applicant’s work.  Finally, the WCB case worker noted that “it is my feeling that this employer may have other issues that are compounding this situation.  I wonder if the fact that the compensable condition is a psychological one may be causing them the most concern.”

 

A letter was sent from VAC to the Applicant’s psychologist on August 12, 2002 requesting an assessment of the Applicant’s fitness to work. The return letter dated August 27, 2002 declared him fit for the position.  On September 4, 2002 the Applicant was offered an indeterminate position.

 

 

The Investigator also considered the Respondent’s submission that the Applicant’s graduated reintegration schedule, as well as absences from work due to medical reasons, made it difficult for management to assess his performance in the initial period.  The request for an extension was to allow for a full assessment of his performance.  At the end of the second agreement dated July 3, 2002, the Applicant was hired indeterminately.

 

Mr. Parkinson was interviewed and stated that the reasons he provided to the WCB to justify why he was hesitant to hire the Applicant on an indeterminate basis “[…] were performance related. His graduated return to work was structured in a way that did not facilitate learning.”  Mr. Parkinson also noted that he had not been aware that the Applicant would have to return on a graduated basis.  He had wanted to hire someone full time because they were short staffed.  He did not feel resentment towards hiring the Applicant, but a preference.  He expressed a preference when he wrote to the WCB.  The Investigator notes that the concerns he raised were related to the Applicant’s disability, including expressing anxiety from the physical location and positioning of his desk, learning difficulties (which Mr. Parkinson relates to the Applicant’s medication), and that since the Applicant is still under active treatment for his PTSD, a 3 month extension is “prudent and appropriate”.

 

[94]           The Investigator concluded that VAC accepted the Applicant as an employee, was aware of his disability, and was aware he could only work on the basis of a graduated return to work. When it was determined by the psychologist that he was fit to perform the duties of the job, he was offered indeterminate status. As a result of these findings, the Investigator concluded that the Applicant was not treated in an adverse differential manner on the grounds of his disability.

 

Conclusions

 

 

[95]           The relevant provision of the Act that the Commission had to consider for this issue is section 7(b):

 

[96]           There does not appear to be any specific test guiding consideration as to whether a particular act or omission contravenes subsection 7(b). However, according to Canada (Canadian Human Rights Commission) v. Canada (Department of National Health and Welfare)(re Chopra) (1998), 146 F.T.R. 106, [1998] F.C.J. No. 432 at paragraph 11 (F.C.)(QL), aff’d (1999), 235 N.R. 195, where it is an instance of direct discrimination that is in question, it is not necessary to establish that the prohibited ground was the sole factor or even the preponderant factor to find discrimination. It is sufficient if the prohibited ground is one of the factors which contributed to the decision to differentiate. This particular issue would appear to raise a question of direct discrimination because the question is whether VAC resisted granting the Applicant indeterminate status because of his disability.

 

[97]           According to the Applicant, under the regulations and policies relating to priority placements, he should have received an offer of indeterminate employment in April, 2002. The Applicant notes that PSC affirmed there was usually no trial period of employment. Finally, the Applicant submits that any issues relating to his disability should have been dealt with as a matter of accommodation.

 

[98]           The Respondent submits that circumstances changed after the Applicant was hired that prevented VAC from fully assessing his work abilities. The Applicant began experiencing anxiety, sleepless nights, and began taking medication. The Respondent admits that priority placement terms are not common, but submits that neither are they inappropriate, according to PSC, and that they may be used where an employer is unsure whether a person meets the qualifications of the position. The Respondent maintains that Mr. Parkinson requested the extension for performance-related reasons and, once VAC determined that the Applicant was fit for work, he was hired indeterminately.

 

[99]           Whether the Commission erred on this issue appears to depend on how the evidence is perceived with respect to the question of whether the Applicant was requested to submit to a term position because of his disability or because the circumstances surrounding his employment at the material time had not allowed for sufficient review of his work. Thus, did VAC request a term position because of concerns with his work performance or because of issues specific to his disability?

 

[100]       On a standard of correctness, I believe that the Commission erred in not submitting the complaint to the Tribunal on this issue, in light of the low threshold for referral outlined above. In my view, there is a reasonable basis on the evidence for proceeding to the next stage. There were performance issues raised by Mr. Parkinson in requesting an extension of the Applicant’s return to work program, specifically relating to the Applicant’s inability to work as originally anticipated in the return to work agreement; and once they determined him fit to work they offered him indeterminate status. However, there are also several factors that clearly suggest the Applicant was treated differently because of his disability. First, many of the issues raised by Mr. Parkinson and VAC in their correspondence with the PSC and WCB relate directly to the Applicant’s disability and VAC’s concern that, because of his disability, he would not be able to function in the position in as effective a manner as other employees. The proposed measures that VAC requested were unusual, and in contradiction to their original plan as outlined in the Memorandum of Understanding. The Applicant was already screened into the position and was not on probation. Similarly, the reason the Applicant was not available to work as originally anticipated was because he was experiencing disability-related symptoms. As noted by the Investigator, VAC knew the Applicant had a disability and would have to be facilitated through a return to work program. In sum, given the low standard for committal, and the strict standard of review, I am of the view that the Commission erred on this point. Furthermore, even if I apply a lower reasonableness standard of review, my conclusion must be the same of this aspect of the Decision.

 

2.                  Failure to Provide a Harassment-Free Workplace – the Mediation Session

 

Established Facts

 

[101]       On April 1, 2003, the Applicant attended a meeting (April 1 Meeting). During the April 1 Meeting he raised his voice and yelled a profanity at a colleague. He alleges he realized that, because of some withdrawal symptoms from a change in medication, his PTSD was becoming worse. He apologized to the people at the April 1 Meeting and explained the problem. There were no further outbursts during the April 1 Meeting.

 

[102]       Because of the medical difficulties he was experiencing, the Applicant did not return to work on the day after the April 1 Meeting.

 

[103]       On April 7, 2003, the Applicant was informed that there would be an investigation into his behaviour at the April 1 Meeting. He was referred to the Management Referral Program for counselling. The Applicant maintains that when another area counsellor, Mary Causton-Budac, asked Mr. Parkinson if she could provide a letter of support for the Applicant, Mr. Parkinson refused. Because of his medical condition, the Applicant at this time had not yet returned to work. On April 15, 2003, the Applicant was instructed not to return to work until management received confirmation from the Management Referral Program that he was fit to do so.

 

[104]       On April 22, 2003, the Applicant wrote a letter to Mr. Parkinson in which he stated that he was having problems with his medication and expressed his disappointment that no one had contacted him to get his version of the facts of what had happened at the April 1 Meeting. On April 25, Mr. Parkinson replied, stating that the investigation into the April 1 Meeting was in abeyance until his return.

 

[105]       On May 4, 2003 the Applicant wrote that he wanted the investigation to be concluded.  During this period, the Applicant was informed there was a concern that other employees considered him to be intimidating.

 

[106]       On November 19, 2003 the Applicant’s treating physician stated he was fit to return to work on a half-time basis commencing December 1, 2003.

 

[107]       On November 24, 2003, the Applicant requested that a mediation be set up between himself and those employees worried about his behaviour at the April 1 Meeting. He was informed he could have access to letters from the employees who had expressed concern about his behaviour through use of the Privacy Act, R.S.C. 1985, c.P-21.

 

[108]       The Applicant’s return to work date was set for December 8, 2003, but he was scheduled to officially return following the mediation. On December 9, he attended a meeting with his supervisors.

 

[109]       The mediation took place on December 11-12, 2003 and was facilitated by Mr. Pat Aylward, a mediator with the Office of Early Conflict Resolution (OECR), which is part of VAC.  When the Applicant initially met with the mediator, he expressed concern that the people present would include various members of an office clique who had treated him poorly. He was also concerned with the number of people involved in the process as well as the length of the mediation, which was scheduled to run the entire day. The mediator informed the Applicant that it would be necessary to discuss the Applicant’s disability at the meeting. In answer to the Applicant’s concerns, the mediator informed him that there were two neutral people at the mediation to add balance and that he would consult with the Applicant before proceeding for the entire day. The Applicant maintains that the mediator agreed to consult him in private.

 

[110]       The Applicant maintains that participants at the mediation were allowed to express concerns about the Applicant and his PTSD. He alleges that the behaviour of some of them was threatening and abusive, and that he was pressured to continue for a full day and a half. The Applicant also maintains that, because of the mediation session and its impact on him, he was unable to work, had to go back on medication, and still has not returned to work. The Respondent maintains that the mediation session was conducted in a polite, respectful and appropriate manner, and that frank discussion is part of any effective mediation process.

 

The Investigator’s Report

 

[111]       The various documents referred to in the record were considered and the following interviews conducted by the Investigator:

 

Mary Causton-Budac was interviewed to discuss the Applicant’s assertion that Mr. Parkinson refused to allow her to submit a letter of support for the Applicant. In the interview, Ms. Causton-Budac stated that she attempted to discuss her point of view with Mr. Parkinson, but he did not seem interested in hearing it. He told her she could write him an e-mail but she did not do this because she had no complaints about the Applicant and it was “my perception that a lot was spinning out of control was out of joint as to what happened he did not want to hear it”. (sic)

 

The Applicant also expanded upon his evidence. He stated that he agreed to talk about his disability reluctantly, if it would help alleviate the concerns of his colleagues.  He claimed he felt pressured into a full day session.  He maintained that only one person was actually selected as a neutral observer. The other, Ms. Causton-Budac, came forward on her own. The Applicant submitted that his and Ms. Causton-Budac’s evidence as to what happened during the session conflicts with the rest because of the collusion of the clique.

 

In relation to the substance of the mediation, the Applicant alleged that his disability was discussed in terms that made it seem he had no control over his behaviour. Some of the issues raised were inappropriate.  For instance, he stated that he was told to look for another job, and other employees referred to employees who walked into work places with guns and shot others. He alleged bias on the part of the mediator who was an employee of VAC. He stated that no one intervened to help him when he was in obvious distress.

 

The Respondent stated that VAC, in response to the Applicant’s request, asked for assistance from the OECR, which is part of VAC.  A memo was issued asking anyone with concerns to come forward.  Those that were selected to participate in the mediation were all those who volunteered (4 who expressed concerns and 2 who did not) as well as Ms. Greig and Ms. Ariello.

 

The Respondent stated that on numerous occasions Mr. Aylward “checked in” with the participants to establish their comfort levels and the Applicant never indicated he was in distress. He attended the first day, and returned for the second.  At the end an agreement was developed and signed by all suggesting a positive and collaborative mediated session.

 

The Investigator interviewed 7 of the Applicant’s co-workers who had attended the session, as well as the mediator.  They agreed that many of them expressed their fears as to working around the Applicant during the mediation.  Many of them expressed concerns with his temper and safety, but felt there had been no attempt to blame or shame him. Ms. Greig stated, “certainly, it was difficult for Randal. It’s hard when you are hearing things that are not positive. But, it was about his behaviour, not whether he has PTSD.”

 

Ms. Causton-Budac felt the mediation was conducted in a polite manner, but understood how the Applicant could feel he was shamed and humiliated, because people made it sound as though he was on the edge and unpredictable, which was not true. When asked to give examples of their fear, they referenced what people with PTSD in general would do, not him, including going into a shop with a gun, and relating this behavior to PTSD.  She was shocked that people were allowed to say what they thought of him, but he was not allowed to get involved.  She expressed her concerns to the mediator who refused to change the format. After lunch, the Applicant said he was not ok. Nobody controlled the content of the meeting.

 

Kathy McRoberts felt the mediation went well, but knew the Applicant was uncomfortable. However, she felt they discussed his behaviour, not his disability. She admitted she was the person who made the comments about employees with guns, and suggested he get another job. She said the context of the job comment was because their office was right next to the Parole Board which made the Applicant quite emotional when he talked about it.  She said the April 1 Meeting triggered memories of a gun incident she had witnessed.

 

Garth Reid, the neutral member, stated that the discussion shifted to the Applicant’s disability and that the Applicant was humiliated. He felt it inappropriate to make someone apologize for something that is a function of their disability. He also noted that the Applicant started to say what it was like to live with PTSD but Donna Kirk cut him off with “I do not need PTSD 101” and he did not get the opportunity to respond.

 

The Investigator interviewed the mediator Pat Aylward. The mediator said it was necessary for the Applicant to talk about his disability and medication in order to effectively deal with what caused the outburst and withdrawal from work.  He noted that Garth Reid called him to ask if the Applicant understood his rights of privacy and that the Applicant did not have to go any further than his own comfort level.  In response, Mr. Aylward called the Applicant at home to explain his privacy rights.  According to Mr. Aylward, the Applicant stated he knew he would have to discuss his disability and he was comfortable with that.

 

Mr. Aylward maintained he did not know the Applicant was humiliated. It looked to him as though all parties were having a respectful discussion around a difficult issue.  He felt that on the second day the mood shifted from fear to support as the Applicant addressed each principle concern of his co-workers. An implementation plan was worked out and the Applicant participated in the process.  It was not signed because one person felt it was not a good process (Ms. Causton-Budac).  Mr. Aylward expressed his surprise that the Applicant had suffered a relapse.

 

[112]       The Investigator concluded that participants in the mediation (which lasted a day and a half) were invited to freely express their feelings concerning the Applicant. He determined that the Applicant’s disability and his behaviour at work were discussed. However, he concluded that, although the mediation session was difficult, and the Applicant may have felt humiliated, this was not harassment or adverse differential treatment on the ground of disability.

 

Conclusions

 

[113]       In addition to section 7 of the Act, the Applicant primarily argues that the conduct throughout the mediation session breached section 14 of the Act and the protection against harassment:

 

[114]       Harassment is not defined in the Act. According to the website of the Commission, harassment is any unwanted physical or verbal conduct that offends or humiliates a person. It can consist of threats, intimidation or verbal abuse.

 

[115]       A single incident can constitute harassment. According to Canada (Human Rights Commission) v. Canada (Armed Forces), [1999] 3 F.C. 653, 167 F.T.R. 216 at paragraphs 43-46, there is a proportional relationship between the repetitiveness and seriousness of the harassment in question. Generally, the more serious the incident, the less repetition is necessary to constitute harassment, and in some instances a single incident will be sufficient to create a poisoned environment.

 

[116]       According to Kotyk v. Canada (Employment and Immigration Commission) (1983), 4 C.H.R.R. D/1416 (Can. Trib), aff’d 5 C.H.R.R. D/1985, Can Rev. Trib), application for judicial review refused 6 C.H.R.R. D/2929 sub no Chuba v. Canada (Human Rights Commission) (F.C.A.), an employer has a statutory duty to provide a workplace that is free of harassment, or even fear of harassment. Furthermore, in relation to section 7(b), the Supreme Court of Canada in Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, 75 N.R. 303 at paragraph 17, has held by reference to a broad and liberal interpretation of the Act that employers are held liable for the discriminatory acts of their employees where those actions are in the course of employment.

 

[117]       The Applicant submits that the mediation session consisted of numerous employees criticising him and expressing fears and anxiety about his disability. He felt humiliated. He submits that he was given no support and no opportunity to respond. Given the seriousness of the harassment, the Applicant says that this single incident is sufficient to contravene the standards in the Act.

 

[118]       The Respondent maintains that the evidence from the mediation session shows that the Applicant did not demonstrate any signs of distress or humiliation during the mediation, and that the majority of participants felt it was conducted in a polite, respectful and appropriate manner. The Respondent submits that this incident is not significant enough to give rise to harassment and that honest communication is a necessary part of the mediation process.

 

[119]       There is something of a conflict in the evidence as to what actually happened at the mediation session. According to the Federal Court of Appeal in Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 1655 at paragraph 6 (F.C.A.)(QL), the Commission is entitled to examine conflicting evidence and accept one person’s evidence over another. In that decision, Justice Décary noted that, “[i]t may well be that a full inquiry would have resulted in a different finding, but that is a risk inherent in any screening process.”

 

[120]       That said, on a standard of correctness, I conclude that the Commission erred in not submitting this particular aspect of the Complaint to the Tribunal for consideration. There is evidence from persons present at the mediation session that the Applicant’s disability was discussed repeatedly, and the evidence supports the contention that he was aggravated and disturbed by repeated attacks. There is unequivocal evidence that inappropriate comments were made by one participant to the effect that the Applicant should find another job, and allusions were made to employees entering workplaces with weapons. The evidence suggests that the mediator allowed fairly free discussion of the Applicant’s disability in a situation where it was difficult for the Applicant to speak up. Once again, even if I were to apply a lower standard of reasonableness to this issue, I still believe that the Investigator erred, and the Commission erred in not referring this issue to the Tribunal on the basis of the threshold test for referral discussed above.

 

3.         Failure to Accommodate

 

Established Facts

 

[121]       As mentioned above, on July 11, 2002, the Applicant made a request that the position of his desk be moved. The request was supported by a letter from the Applicant’s physician dated August 7, 2002. When the Applicant left work on April 1, 2003, he maintains his request had not been accommodated. The Respondent contends that work to reconfigure the desk began in August 2002 and was completed partially in January 2003 and in totality by June 2003.

 

The Investigator’s Report

 

[122]       The Investigator reviewed the documentation referred to in the record and conducted the appropriate interviews.

 

[123]       The Applicant alleged that every time he asked Mr. Parkinson about his desk, Mr. Parkinson responded by saying “you still don’t want to turn your desk around, do you? You’re not in prison anymore.”

 

[124]       The Applicant also maintained that the alternative location chosen exposed him to too much foot traffic and gave him anxiety and discomfort.

 

[125]       The Investigator noted that Ms. Greig raised the issue of the Applicant’s need to have his space modified during the mediation process.

 

[126]       The Respondent stated that VAC made reasonable accommodation on this issue. VAC brought in a consultant, underwent at least 2 consultations and created a number of designs. In the meantime, the Applicant was moved temporarily to a more suitable work area.

 

[127]       The Investigator interviewed Ms. Greig who stated that the desk was eventually moved and set up to the Applicant’s liking, but it took some time because the furniture was modular and the Applicant rejected the first set of plans. It took 4 months to finalise and install.

 

[128]       The Respondent provided copies of exchanges of correspondence with the furniture store, as well as various plans. Documentation suggests the negotiations began on August 26, 2002, and that a temporary station was installed in September 2002. More changes took place in January 2003, with the final work completed in June 2003.

 

[129]       The Investigator determined that it took considerable time to prepare, review and finalise the plans, but that the work station was accommodated to the Applicant’s needs. Thus, the Applicant was accommodated appropriately.

 

Conclusions

 

[130]       Although there is no express duty to accommodate provided for in the Act, the case law establishes a duty to accommodate to the point of undue hardship.

 

[131]       In making a case, the Applicant must establish that a rule or practice, or the Respondent’s conduct, had a prima facie discriminatory effect on him. In a situation such as this one, where the issue is whether the Respondent can justify the adverse effect the Applicant’s workstation has on him as a result of his disability, the Respondent must be able to establish that the Applicant has been accommodated, or that further accommodation would result in undue hardship. The Supreme Court of Canada held in the leading case on accommodation, British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU), [1999] 3 S.C.R. 3, 244 N.R. 145 (Meiorin Grievance), that reasonable accommodation is a requirement to be considered in every discrimination situation.

 

[132]       The duty to accommodate requires an employer to implement whatever measures are necessary to allow its employees to work to the best of their ability. The Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, 141 N.R. 185 noted at paragraph 19 that something more than a mere negligible effort will be required to satisfy the standard, and that “the use of the term undue infers that some hardship is acceptable; it is only undue hardship if it satisfies the test.” Similarly, according to Justice McIntyre in Ontario (Human Rights Commission) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536, 64 N.R. 161 full accommodation may not be necessary, and it is only a requirement to take such steps as may be reasonable to accommodate without undue interference in the operation of the business and without undue expense to the employer.

 

[133]       There is a duty on a complainant to be reasonable with regard to genuine efforts to accommodate the disability (see Re Ivison and Bodner (1994), 26 C.H.R.R. D/505, [1994] B.C.C.H.R.D. No. 7 (QL) at paragraph 46 (B.C.C.H.R.), a decision of the British Columbia Council of Human Rights).

 

[134]       The Applicant argues that VAC did not suffer an undue hardship in trying to relocate him to more effective temporary accommodation and that there was a failure to accommodate in the nine month period. He states that his alternative location was inappropriate because it was in a traffic corridor.

 

[135]       VAC argues that it made all necessary accommodation. Action was taken shortly after the request was made. As a result of the modular nature of the desk, the reconfiguration took time. A consultant was required and the Applicant’s opinion was engaged throughout the process.

 

[136]       The central concerns are the time taken to complete the project and whether suitable arrangements were found in the interim. On a more deferential standard of either patent unreasonableness, or even reasonableness, it is my view that the Commission did not err in deciding not to refer this aspect of the Complaint to the Tribunal. The Respondent began trying to develop and build a workstation that would satisfy the Applicant, at the latest, by August 2002 (the first report back from the contractors engaged to build the module was late August). The Applicant was consulted and, in fact, made changes to the proposals, which by necessity delayed the process. Thus, although it took a long time to complete, VAC made reasonable efforts to complete the re-location.  The Applicant recognized in his letter that there were space issues in the office, yet the Respondent still found him another temporary location, although admittedly it is difficult to ascertain on the evidence available how satisfactory the alternative location was. It would appear that the reasons for not referring this aspect of the Complaint to the Tribunal are grounded factually in the evidence and that the Decision is one choice reasonably available on the evidence provided. Thus, in my view, the Commission did not err on this point.

 

 

GENERAL CONCLUSIONS

 

[137]       As noted above, the threshold for referring a complaint for full consideration before the Tribunal is fairly low. In this case, upon review of the full record before the Investigator and the Investigator’s Report, I conclude that the Commission erred in not submitting the Applicant’s complaint to the Tribunal on two of the three issues raised in this judicial review application. First, it was an error for the Commission to find that the delay in offering the Applicant indeterminate status did not need to be referred to the Tribunal for consideration. Second, the Commission erred in finding that the Applicant had not met the threshold for having the Tribunal determine whether he had been harassed at the mediation session conducted on December 10, 2003. With respect to the third issue under review, the Commission did not err in determining that VAC had met its obligations to accommodate the Applicant with respect to providing him with a new work space and that, consequently, there was no need to refer that matter to the Tribunal for consideration.

 

JUDGMENT

 

THIS COURT ORDERS THAT:

 

1.                  The Application for judicial review of the Decision is allowed in part. For the reasons given, with regard to those aspects of the Commission’s Decision dealing with the delay in offering the Applicant indeterminate status (adverse differential treatment), and the treatment of the Applicant at the mediation session (harassment), I allow the Application and direct the Commission to refer those matters to the Tribunal for consideration.

 

 

 

“James Russell”

                                                       FEDERAL COURT

 

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

 

DOCKET:                                   T-1586-05

 

STYLE OF CAUSE:                   RANDAL CLARK v. ATTORNEY GENERAL OF CANADA

                             

 

PLACE OF HEARING:             Victoria, British Columbia

 

DATE OF HEARING:               September 14, 2006

 

 

REASONS FOR

JUDGMENT AND

JUDGMENT:                             Russell, J.

 

DATED:                                      January 5, 2007

 

APPEARANCES:

 

Ms. Catherine Boies-Parker                                               for Applicant       

 

Mr. Ward Bansley                                                              for Respondent

 

 

SOLICITORS OF RECORD:

 

Underhill, Faulkner, Boies-Parker  for Applicant

Victoria,  British Columbia 

 

John H. Sims, Q.C.                                                            for Respondent

Deputy Attorney General of Canada