Date: 20110614
Dockets: T-356-10
T-1326-10
Citation: 2011
FC 690
Ottawa, Ontario, June 14,
2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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ARTHUR KEITH
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Applicant
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and
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CORRECTIONAL SERVICE OF CANADA
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Respondent
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AND BETWEEN:
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Docket:
T-1326-10
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ARTHUR KEITH
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Applicant
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and
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CANADIAN FORCES
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Dr.
Arthur Keith has practiced psychiatry for many years. He studied medicine in
the United
States
and became a board-certified specialist there before moving to Canada.
[2]
In
2008, Dr. Keith applied for a position as Director of Psychiatry at the
Regional Treatment Centre of the Correctional Service of Canada [CSC] in Kingston, Ontario.
Among the qualifications for the position was a requirement that the candidate
be a Fellow of the Royal College of Physicians and Surgeons of Canada [RCPSC]. To
become a Fellow of the RCPSC a physician must successfully complete the
required written and oral examinations.
[3]
That
same year, Dr. Keith also applied for positions with Calian Ltd, a contractor
for health services in the Canadian Forces [CF]. Again, the job requirements
included fellowship in the RCPSC.
[4]
During
the 1990s, Dr. Keith had tried on a number of occasions to pass the RCPSC examinations
but was unsuccessful. Accordingly, he did not meet the job requirements for either
the CSC or CF positions.
[5]
Dr.
Keith filed complaints of discrimination on the basis of national or ethnic
origin with the Canadian Human Rights Commission [CHRC], arguing that the RCPSC
certification process had a disproportionately negative impact on physicians
who received their training outside of Canada. Further, he
suggested that it also had a discriminatory effect on older physicians, since
they have more difficulty passing the RCPSC’s examinations. Since
foreign-trained doctors are likely to be older when they take the exams, the
two grounds of alleged discrimination are connected. He argued that, given that
the CSC and CF relied on the RCPSC’s process to determine candidates’
eligibility for hiring, they had discriminated against him. Dr. Keith submits
that CSC and CF should have accepted his membership in the Ontario College of
Physicians and Surgeons [OCPS] as a sufficient qualification for the vacant
positions. The OCPS has recently altered its testing practices specifically to
accommodate those who do less well on written examinations.
[6]
The
CHRC dismissed Dr. Keith’s complaint against CSC under s 44(3)(b)(i) of
the Canadian Human Rights Act, RSC 1985, c H-6 (see Annex for statutory
references) on the basis that it did not warrant further inquiry. The CHRC
acted on the recommendations of an assessor. The assessor found that the
essence of Dr. Keith’s complaint was against the RCPSC, not CSC. Since the
RCPSC is a provincially-regulated entity, it is beyond the CHRC’s jurisdiction.
Further, given that Canadian psychiatrists, whether trained in Canada or
elsewhere, must also pass the RCPSC’s examinations, there was no discrimination
against foreign-trained doctors based on their national or ethnic origin. In
addition, the assessor found that the requirement of fellowship in the RCPSC was
a legitimate and justifiable requirement for the position for which Dr. Keith
had applied. With respect to the complaint of age discrimination, the assessor
found that there was little evidence to support Dr. Keith’s assertion that
success on the RCPSC’s examinations was in any way tied to a candidate’s age.
[7]
Regarding
Dr. Keith’s complaint against CF, the CHRC relied on a finding by an
investigator that the complaint was beyond its jurisdiction. The investigator
also concluded that foreign-trained Canadian psychiatrists were subject to the
same job requirements as Dr. Keith. Therefore, there was no discrimination
based on national or ethnic origin. Based on those findings, the CHRC found
that the requirement of Fellowship in the RCPSC was neutral and
non-discriminatory. It dismissed Dr. Keith’s complaint on the basis that it was
beyond its jurisdiction, relying on s 41(1)(c) of the Act.
[8]
Dr.
Keith argues that the CHRC erred in dismissing his complaints. He asks me to
overturn the CHRC’s decisions and order a reconsideration of his complaints. I
cannot, however, find a basis for overturning the decisions. As the grounds
advanced by Dr. Keith in respect of each of the CHRC’s two decisions are
somewhat different, I will deal with each of them separately.
II. Complaint
against the CSC
[9]
The
issues are:
1. Was the CHRC’s decision
reasonable?
2. Was the investigation into
Dr. Keith’s complaint sufficiently thorough?
III. Issue One – Was the CHRC’s
decision reasonable?
[10]
Dr.
Keith argues that the CHRC’s decision not to refer his complaint for a hearing
was unreasonable. He points out that a low threshold applies to that decision
and that the evidence supporting his claim was sufficient to justify a hearing
on the merits. In particular, he presented evidence showing that the
requirement of fellowship in the RCPSC has a disproportionate impact on older,
foreign-trained doctors. The CHRC, he says, overlooked these intersecting
grounds of discrimination (i.e. age and national origin) and erred by
considering them separately. Further, Dr. Keith contends that the CHRC erred in
failing to consider whether the RCPSC certification process was discriminatory.
(1) The
Basis for the CHRC’s decision
[11]
The
Assessor conducted interviews with Dr. Keith, a representative of CSC, and two
officials with the RCPSC. Based on her inquiries, the assessor found that she
did not have jurisdiction look into whether the RCPSC examination process was
discriminatory because it is a provincially-regulated entity (although created
by an Act of Parliament).
[12]
In
any case, however, she went on to find that there was no discrimination based
on national or ethnic origin given that all psychiatrists must pass the same
tests, no matter whether they received their training outside or within Canada.
Certification by the RCPSC is a well-recognized standard of competency in the
practice of medicine. In addition, CSC was justified in requiring candidates to
have achieved fellowship in the RCPSC since the Director’s position involved
educational, research and training components for which fellowship is usually
required in Canada.
[13]
Based
on these considerations, the assessor recommended that Dr. Keith’s complaint be
dismissed because an inquiry was not warranted.
[14]
In
response to the assessor’s recommendation, Dr. Keith filed further submissions
adding age as a ground of discrimination. The assessor re-evaluated the
complaint but, once again, found that she was without jurisdiction to review
the RCPSC’s processes. Therefore, the only question before her was whether
CSC’s requirement of fellowship in the RCPSC was a bona fide occupational
requirement. Once again, she found valid, non-discriminatory reasons for the
requirement and recommended that the complaint be dismissed. The CHRC accepted
that recommendation.
(2) The CHRC’s
Decision was not Unreasonable
[15]
Dr.
Keith maintains that once he presented a prima facie case of
discrimination, the CHRC had a duty to refer the matter to a hearing. The CHRC
erred, he says, when it found that a valid, non-discriminatory reason for the
job requirement defeated his complaint. The CHRC should have looked at whether
that facially neutral requirement had a differential adverse effect on persons
in his circumstances. It should not have avoided looking into the impact of the
requirement of RCPSC fellowship on older, foreign-trained physicians.
[16]
In
my view, the CHRC’s conclusion was not unreasonable. In effect, Dr. Keith is
arguing that a federal body, CSC, has imposed a discriminatory standard created
by a provincial entity, the RCPSC. Because that standard is discriminatory, he
says, CSC is itself discriminating. But one can only get to the substance of Dr.
Keith’s argument if another federal body, the CHRC, assumes the role of
reviewing the provincial body’s practices and procedures. The CHRC simply has
no jurisdiction to carry out that analysis. Only a provincial commission could
decide if the RCPSC discriminates against physicians writing its examinations.
[17]
It
would be different, of course, if the requirement that CSC wanted to impose was
an obviously discriminatory standard created by a provincial body. In that
case, a complainant might well persuade the CHRC to refer the matter to a
hearing because it would not be necessary to review in substance the conduct of
the provincial entity. CSC’s use of a patently discriminatory standard would be
clearly discriminatory on its face. There would be no need to conduct a
substantive analysis of the provincial body’s policies and practices. But here,
the CHRC found that the requirement was not, on its face, discriminatory.
Therefore, a substantive analysis of the question whether the CSC was imposing
a discriminatory requirement would have drawn the CHRC into a review of an
entity outside its jurisdiction.
[18]
It
is for that reason that, from Dr. Keith’s perspective, the CHRC’s reasoning
appeared to be superficial and to ignore the many cases in which neutral
requirements have been found to have discriminatory effects. For example, Dr.
Keith relies heavily on British Columbia (Public Service Employee Relations
Commission) v BCGSEU,
[1999] 3 S.C.R. 3.
[19]
But
the cases relied on by Dr. Keith do not apply here. The CHRC was simply dealing
with the question whether a hearing into Dr. Keith’s complaint was warranted.
It could not be warranted if the entity responsible for the allegedly
discriminatory standard was beyond the CHRC’s jurisdiction. In the absence of
evidence that the standard was discriminatory on its face or that the CSC was
imposing the standard for a discriminatory purpose, it was clear that Dr.
Keith’s complaint was really directed at the RCPSC, not CSC. Therefore, the
CSC’s conclusion that a hearing was not warranted was not unreasonable.
IV. Issue Two – Was the investigation
into Dr. Keith’s complaint sufficiently thorough?
(1) The Assessor’s Findings
[20]
Dr.
Keith points out that the CHRC has a duty to carry out a neutral and thorough
investigation of a complaint: Slattery v Canada (HRC), [1994] 2 FC
574 at para 57. He argues that the CHRC did not discharge its obligation
because it failed to consider evidence that supported his claim of
discrimination based on age and national or ethnic origin. Further, it failed
to probe the CSC’s explanations for imposing a requirement of fellowship in the
RCPSC.
[21]
In
my view, in the circumstances of this case, the CHRC’s investigation was
adequate. Given the jurisdictional question before it, the CHRC had to satisfy
itself whether there was prima facie evidence that CSC had discriminated
against Dr. Keith or whether the alleged discrimination was attributable to the
RCPSC, a body beyond the CHRC’s reach.
[22]
The
assessor reviewed the circumstances and determined that the requirement of
RCPSC fellowship was neither discriminatory on its face nor imposed for a
discriminatory purpose. As such, the source of any discrimination was the
RCPSC, not CSC. Having concluded that the CHRC’s endorsement of the assessor’s
findings on the jurisdictional question was reasonable, it follows that its
duty to investigate was met when it reviewed the evidence that was relevant to
that question. It did not have a duty to go further.
(2) Conclusion
[23]
In
my view, the CHRC’s decision in respect of Dr. Keith’s complaint against CSC was
not unreasonable and the investigation on which it relied in arriving at its
decision was sufficiently thorough.
V. Complaint against the CF
[24]
The
issues are:
- Did the CHRC err in
finding a lack of jurisdiction?
- Was the
investigation into Dr. Keith’s complaint sufficiently thorough?
VI. Issue One – Did the CHRC err in finding a lack of jurisdiction?
(1) The Basis for the CHRC’s
Decision
[25]
The
CHRC relied on the recommendation of an investigator assigned to Dr. Keith’s
complaint against CF. The investigator found that Dr. Keith’s complaint was
really directed against the RCPSC, not CF. Therefore, since the CHRC had no
jurisdiction to review the practices and procedures of the RCPSC, Dr. Keith’s
complaint was not within its jurisdiction.
[26]
The
CHRC also noted that CF had valid and non-discriminatory reasons for requiring fellowship
in the RCPSC, and that all candidates, whether trained in Canada or
elsewhere, were subject to the same requirement.
[27]
Based
on these considerations, the CHRC concluded, relying on s 41(1)(c) of
the Act, that Dr. Keith’s complaint was beyond its jurisdiction.
(2) The CHRC did not have
Jurisdiction
[28]
I
can overturn the CHRC’s decision on a jurisdictional question if it was
incorrect. Here, the CHRC’s decision was a mixed one, based partly on a purely
jurisdictional matter – whether it could review the conduct of a
provincially-regulated body – and partly on a legal finding that there was no
connection between Dr. Keith’s disqualification and a prohibited ground of
discrimination. As I discuss above, these questions are connected. If the
RCPSC’s standards had been plainly discriminatory or relied on by CF for a
discriminatory purpose, then the CHRC might have had grounds to review the
substance of Dr. Keith’s complaint. Therefore, it was necessary for the CHRC to
consider whether the gravamen of Dr. Keith’s complaint was against the RCPSC or
CF.
[29]
I
find that the CHRC’s conclusion that Dr. Keith’s complaint was beyond its
jurisdiction was correct. There was simply no suggestion that CF had either
discriminated against Dr. Keith directly or had imposed the requirement of
RCPSC fellowship for any discriminatory purpose. Dr. Keith’s quarrel is clearly
with the RCPSC, not CF. That being the case, his complaint must be filed with a
body vested with the power to analyze the RCPSC’s operations and, if
appropriate, order it to change them. The CHRC does not have that authority.
1. Issue Two – Was
the investigation into Dr. Keith’s complaint sufficiently thorough?
(1) The CHRC investigation
[30]
Dr.
Keith argues that the CHRC breached the duty of fairness because it failed to
carry out a thorough investigation of his complaint. Again, he submits that the
CHRC’s analysis of his circumstances was superficial and failed to respond to
his assertion that CF’s facially neutral requirement had a discriminatory
effect on him.
[31]
As
with Dr. Keith’s similar submission regarding his complaint against CSC, I find
that the CHRC’s investigation into his complaint against CF was sufficiently
thorough in the circumstances. The main question before the CHRC was whether
the requirement of RCPSC fellowship was discriminatory on its face or imposed
by CF for a discriminatory purpose. The investigator concluded that neither was
the case based on the evidence. In the circumstances, given that it explored
the evidence relevant to the main question before the CHRC, the investigation
was sufficiently thorough.
(2) Conclusion
[32]
In
my view, the CHRC decided correctly that it did not have the power to determine
whether the RCPSC’s examination procedures were discriminatory. Further, it
acted fairly in relying on an investigation into Dr. Keith’s complaint that
was, in the circumstances, sufficiently thorough.
VIII. Disposition
[33]
The
CHRC made no reviewable error in its decisions not to dismiss Dr. Keith’s
complaints against CSC and CF. Its analysis of the complaints was sufficiently
thorough in the circumstances, and it treated Dr. Keith fairly. Accordingly, I
must dismiss both of Dr. Keith’s applications for judicial review, with costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The
applications for judicial review are dismissed, with costs.
2. A copy of
these reasons shall be placed in consolidated files T-356-10 and
T-1326-10.
“James
W. O’Reilly”
Annes
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Canadian
Human Rights Act,
RSC 1985, c H-6
Purpose
2. The purpose of this Act is to extend the laws in Canada to give
effect, within the purview of matters coming within the legislative authority
of Parliament, to the principle that all individuals should have an
opportunity equal with other individuals to make for themselves the lives
that they are able and wish to have and to have their needs accommodated,
consistent with their duties and obligations as members of society, without
being hindered in or prevented from doing so by discriminatory practices
based on race, national or ethnic origin, colour, religion, age, sex, sexual
orientation, marital status, family status, disability or conviction for an
offence for which a pardon has been granted.
Commission
to deal with complaint
41.
(1) Subject to section 40, the Commission shall deal with any complaint filed
with it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the
discriminatory practice to which the complaint relates ought to exhaust
grievance or review procedures otherwise reasonably available;
(b) the complaint is one that
could more appropriately be dealt with, initially or completely, according to
a procedure provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the
jurisdiction of the Commission;
(d) the complaint is trivial,
frivolous, vexatious or made in bad faith; or
(e) the complaint is based on
acts or omissions the last of which occurred more than one year, or such
longer period of time as the Commission considers appropriate in the
circumstances, before receipt of the complaint.
44.
(1) An investigator shall, as soon as possible after the conclusion of an
investigation, submit to the Commission a report of the findings of the
investigation.
Action
on receipt of report
(2)
If, on receipt of a report referred to in subsection (1), the Commission is
satisfied
(a) that the complainant ought
to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could
more appropriately be dealt with, initially or completely, by means of a
procedure provided for under an Act of Parliament other than this Act,
it
shall refer the complainant to the appropriate authority.
Idem
(3)
On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson
of the Tribunal to institute an inquiry under section 49 into the complaint
to which the report relates if the Commission is satisfied
(i) that, having regard to all the
circumstances of the complaint, an inquiry into the complaint is warranted,
and
(ii) that the complaint to which the
report relates should not be referred pursuant to subsection (2) or dismissed
on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint
to which the report relates if it is satisfied
(i) that, having regard to all the
circumstances of the complaint, an inquiry into the complaint is not
warranted, or
(ii) that the complaint should be
dismissed on any ground mentioned in paragraphs 41(c) to (e).
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Loi
canadienne sur les droits de la personne, LRC, 1985, ch H-6
Objet
2.
La présente loi a pour objet de compléter la législation canadienne en
donnant effet, dans le champ de compétence du Parlement du Canada, au
principe suivant : le droit de tous les individus, dans la mesure compatible
avec leurs devoirs et obligations au sein de la société, à l’égalité des
chances d’épanouissement et à la prise de mesures visant à la satisfaction de
leurs besoins, indépendamment des considérations fondées sur la race,
l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe,
l’orientation sexuelle, l’état matrimonial, la situation de famille, la
déficience ou l’état de personne graciée.
Irrecevabilité
41. (1) Sous réserve de l’article
40, la Commission statue sur toute plainte dont elle est saisie à moins
qu’elle estime celle-ci irrecevable pour un des motifs suivants :
a) la victime présumée de l’acte
discriminatoire devrait épuiser d’abord les recours internes ou les
procédures d’appel ou de règlement des griefs qui lui sont normalement
ouverts;
b) la plainte pourrait avantageusement
être instruite, dans un premier temps ou à toutes les étapes, selon des
procédures prévues par une autre loi fédérale;
c) la plainte n’est pas de sa
compétence;
d) la plainte est frivole, vexatoire ou
entachée de mauvaise foi;
e) la plainte a été déposée après
l’expiration d’un délai d’un an après le dernier des faits sur lesquels elle
est fondée, ou de tout délai supérieur que la Commission estime indiqué dans
les circonstances.
44. (1) L’enquêteur présente
son rapport à la Commission le plus tôt possible après la fin de l’enquête.
Suite
à donner au rapport
(2)
La Commission renvoie le plaignant à l’autorité compétente dans les cas où,
sur réception du rapport, elle est convaincue, selon le cas :
a) que le plaignant devrait épuiser les
recours internes ou les procédures d’appel ou de règlement des griefs qui lui
sont normalement ouverts;
b) que la plainte pourrait
avantageusement être instruite, dans un premier temps ou à toutes les étapes,
selon des procédures prévues par une autre loi fédérale.
Idem
(3)
Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
a) peut demander au président du
Tribunal de désigner, en application de l’article 49, un membre pour
instruire la plainte visée par le rapport, si elle est convaincue :
(i) d’une part, que, compte tenu des
circonstances relatives à la plainte, l’examen de celle-ci est justifié,
(ii) d’autre part, qu’il n’y a pas lieu
de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux
termes des alinéas 41c) à e);
b) rejette la plainte, si elle est
convaincue :
(i) soit que, compte tenu des
circonstances relatives à la plainte, l’examen de celle-ci n’est pas
justifié,
(ii) soit que la plainte doit être
rejetée pour l’un des motifs énoncés aux alinéas 41c) à e).
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