Docket: T-72-11
Citation: 2011 FC 1168
Ottawa, Ontario, October 17,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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PETER M. COLLINS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review under section 18.1 of the Federal
Courts Act, RSC 1985, c F-7, of a decision of the Canadian Human
Rights Tribunal (the Tribunal), dated December 17, 2010. The Tribunal ordered
the Applicant to pay compensation to a federal inmate at the Bath Institution
for a failure of the Correctional Service of Canada (CSC) to accommodate his
disability (2010 CHRT 33).
[2]
For
the following reasons, the application is allowed.
I. Background
[3]
The
Respondent, Peter M. Collins, is serving a life sentence for first degree
murder. He is incarcerated at Bath Institution, a medium security prison
located near Kingston,
Ontario. He suffers
from chronic back pain as a result of injuries sustained to his spine in
previous motorcycle and automobile accidents. Since the 1980s, the CSC
provided him with a variety of assistance devices to help him deal with his
disability and pain.
[4]
As
a safety and security measure, offenders at federal institutions are required
to “stand-to” count at least once every 24 hours under Commissioner’s Directive
566-4 (CD-566-4). The stand-to count is a formal count where the offender
stands in his cell facing the counting staff member to ensure that the offender
is not only present but alive and uninjured.
[5]
While
there was initially no formal directive or policy adopted for exemption from
this procedure, the CSC effectively accommodated the Respondent and did not
require him to rise during the stand-to count.
[6]
On
November 30, 2005, this accommodation ceased when one CSC correctional officer
ordered the Respondent to stand and be counted for the first time without any
support. The Respondent informed the officer that he was medically incapable
of standing at that time. She advised him to seek an exemption from the
Institution’s warden or risk being charged with a disciplinary offence whenever
he did not rise for the count.
[7]
As
a result, the Respondent sought an exemption from the procedure in November
2005. He consulted the doctor at the Bath Institution, Dr. Wyatt, at which
time he informed her that the stand-to count required him to stand for 20-30
minutes. Based on this information, Dr. Wyatt wrote a recommendation to prison
security staff stating “[t]here may be occasional times due to medical
limitations when this inmate may need to lie, sit or stand supported for the
stand up count.”
[8]
Acting
Unit Manager in charge of health and safety for offenders and staff, Ian
Chinnery, received this recommendation. He responded in a memo to Dr. Wyatt by
explaining the institutional purpose and importance of the stand-to count. He
suggested that providing the Respondent discretion to stand would be difficult
for staff to administer in the medium security prison environment.
[9]
Chief
of Health Services at Bath Institution, Brian Blasko, also advised Dr. Wyatt
that the stand-to count procedure required inmates to stand for only 1-2
minutes and not the 20-30 minutes suggested by the Respondent.
[10]
This
additional information led Dr. Wyatt to issue a revised recommendation stating
“there may be times that Mr. Collins’ back does make standing or even sitting
difficult however I am aware that security must come first and therefore Mr.
Collins is aware that at present he does need to stand in some fashion for
count.”
[11]
In
April 2006, the Respondent filed an internal grievance under the Corrections
and Conditional Release Act, SC 1992, c 20. He claimed that Mr. Chinnery
had wrongfully interfered with Dr. Wyatt’s medical recommendation, was biased
against him, and had acted in a retributive capacity to deliberately inflict
pain and suffering on him. The Respondent’s grievance proceeded to the third
and final level but was repeatedly denied.
[12]
In
August 2006, the CD-566-4 was amended to include a formal exemption for the
stand-to count related to medical conditions. It stated:
Inmates with medical conditions or
physical limitations, deemed by the Chief of Health Services (or equivalent) as
unable to respond to, or perform a stand-to count request, are exempt from the
requirement. In such cases, inmates must be awake and signal the staff member
through an alternative means, normally a hand signal.
[13]
Irrespective
of this amendment, the Respondent was charged for failing to stand-to count as
the CSC officer warned on May 28, 2007 and November 19, 2007.
[14]
In
December 2007, the Respondent filed a complaint with the Canadian Human Rights
Commission. Prior to the hearing before the Tribunal, CSC conceded that the
Respondent had a disability and was relieved from the stand-to count. The
hearing before the Tribunal proceeded on the issue of remedy alone.
II. Tribunal
Decision
[15]
The
Tribunal awarded the Respondent $7000 in compensation for pain and suffering
experienced as a result of the discrimination under subsection 53(2)(e) of the Canadian
Human Rights Act, RSC, 1985, c H-6 (CHRA). It accepted Mr. Collins’
evidence that the act of standing caused him additional pain. He also
experienced some degree of anguish over the possibility that he would face
charges or other retribution for failing to comply with the correctional
officers’ orders to stand-to count.
[16]
In
addition, the Respondent was awarded $2500 in special compensation under subsection 53(3).
Special compensation can be provided if the discriminatory practice was engaged
in wilfully or recklessly. The Tribunal found that CSC staff had not
sufficiently considered the potential physical pain that could be caused to Mr
Collins by endeavouring to reverse Dr. Wyatt’s initial recommendations. The
Tribunal stated that “CSC employees should have known that to act accordingly
would constitute a discriminatory practice” and “it was reckless of them to
have proceeded nonetheless.”
[17]
According
to the Tribunal, Mr. Chinnery’s foremost concern was applying the directive
rather than accommodating the Respondent’s disability. Dr. Wyatt did not have
any personal knowledge of CD-566-4 and demonstrated a high-degree of deference
to the information and advice provided by the CSC staff. Given the subsequent
amendment to its directive, even the CSC ultimately recognized the form of
accommodation Mr. Collins was seeking.
[18]
Conversely,
the Tribunal did not find that the discriminatory practice was intentional.
Mr. Collins’ allegation that Mr. Chinnery was motivated by a desire to
personally decide when Mr. Collins would stand and cause him additional
pain was considered unfounded. There was no reason to doubt Mr. Chinnery’s
testimony that his sole intention was to apply the CSC directive.
III. Relevant Provision
[19]
Remedies
are prescribed by the CHRA under section 53 as follows:
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Complaint
dismissed
53.
(1) At the conclusion of an inquiry, the member or panel conducting the
inquiry shall dismiss the complaint if the member or panel finds that the
complaint is not substantiated.
Complaint
substantiated
(2)
If at the conclusion of the inquiry the member or panel finds that the
complaint is substantiated, the member or panel may, subject to section 54,
make an order against the person found to be engaging or to have engaged in
the discriminatory practice and include in the order any of the following
terms that the member or panel considers appropriate:
(a) that the person cease the
discriminatory practice and take measures, in consultation with the
Commission on the general purposes of the measures, to redress the practice
or to prevent the same or a similar practice from occurring in future,
including
(i) the adoption of a special program,
plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval
and implementing a plan under section 17;
(b) that the person make available to
the victim of the discriminatory practice, on the first reasonable occasion,
the rights, opportunities or privileges that are being or were denied the
victim as a result of the practice;
(c) that the person compensate the
victim for any or all of the wages that the victim was deprived of and for
any expenses incurred by the victim as a result of the discriminatory
practice;
(d) that the person compensate the
victim for any or all additional costs of obtaining alternative goods,
services, facilities or accommodation and for any expenses incurred by the
victim as a result of the
discriminatory practice; and
(e) that the person compensate the victim,
by an amount not exceeding twenty thousand dollars, for any pain and
suffering that the victim experienced as a result of the discriminatory
practice.
Special
compensation
(3)
In addition to any order under subsection (2), the member or panel may order
the person to pay such compensation not exceeding twenty thousand dollars to
the victim as the member or panel may determine if the member or panel finds
that the person is engaging or has engaged in the discriminatory practice
wilfully or recklessly.
Interest
(4)
Subject to the rules made under section 48.9, an order to pay compensation
under this section may include an award of interest at a rate and for a
period that the member or panel considers appropriate.
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Rejet
de la plainte
53.
(1) À l’issue de l’instruction, le membre instructeur rejette la plainte
qu’il juge non fondée.
Plainte
jugée fondée
(2)
À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée,
peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la
personne trouvée coupable d’un acte discriminatoire :
a) de mettre fin à l’acte et de
prendre, en consultation avec la Commission relativement à leurs objectifs
généraux, des mesures de redressement ou des mesures destinées à prévenir des
actes semblables, notamment :
(i) d’adopter un programme, un plan ou
un arrangement visés au paragraphe 16(1),
(ii) de présenter une demande
d’approbation et de mettre en oeuvre un programme prévus à l’article 17;
b) d’accorder à la victime, dès que les
circonstances le permettent, les droits, chances ou avantages dont l’acte l’a
privée;
c) d’indemniser la victime de la
totalité, ou de la fraction des pertes de salaire et des dépenses entraînées
par l’acte;
d) d’indemniser la victime de la totalité,
ou de la fraction des frais supplémentaires occasionnés par le recours à
d’autres biens, services, installations ou moyens d’hébergement, et des
dépenses entraînées par l’acte;
e) d’indemniser jusqu’à concurrence de
20 000 $ la victime qui a souffert un préjudice moral.
Indemnité
spéciale
(3)
Outre les pouvoirs que lui confère le paragraphe (2), le membre instructeur
peut ordonner à l’auteur d’un acte discriminatoire de payer à la victime une
indemnité maximale de 20 000 $, s’il en vient à la conclusion que l’acte a
été délibéré ou inconsidéré.
Intérêts
(4)
Sous réserve des règles visées à l’article 48.9, le membre instructeur peut
accorder des intérêts sur l’indemnité au taux et pour la période qu’il estime
justifiés.
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IV. Issues
[20]
This
application raises two issues:
(a) Was it reasonable for the Tribunal to
award relief to the Respondent for pain and suffering under subsection 53(2)(e)
of the CHRA?
(b) Was
it reasonable for the Tribunal to award additional relief to the Respondent
under subsection 53(3)?
V. Standard of Review
[21]
The
reasonableness standard is required when the Tribunal is applying its enabling
legislation to the facts (see Brown v Canada (National
Capital Commission), 2009 FCA 273, 2009 CarswellNat 2931 at
para 5). Reasonableness also applies to questions of law involving the
Tribunal’s interpretation of its own statute or questions of general law with
which the Tribunal has developed a particular expertise (see Tahmourpour v
Canada (Attorney General of Canada), 2010 FCA 192, 2010
CarswellNat 2399 at para 8).
[22]
As
articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47, reasonableness is “concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
VI. Analysis
Issue A: Was
it Reasonable for the Tribunal to Award Relief to the Respondent for Pain and
Suffering Under Subsection 53(2)(e) of the CHRA?
[23]
The
Applicant submits that compensation was granted for pain and suffering without
regard to the evidence. In particular, the Applicant claims that there was no
oral evidence that standing during the stand-to count procedure had caused Mr.
Collins additional pain sufficient to justify the finding of the Tribunal. It
was suggested that the Respondent only described his pre-existing chronic back
pain.
[24]
In
addition, the Applicant takes issue with the Tribunal’s conclusion that “if the
act of standing was of no consequence to him, Dr. Wyatt would not have made any
entry in her chart or issued any of her recommendations.” According to the
Applicant, this ignored or misapprehended Dr. Wyatt’s oral evidence that she
had been misled by and relied on the representations of the Respondent as to
the length of the stand-to count procedure. In support of its argument the
Applicant relies on Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
157 FTR 35, 1998 CarswellNat 1981 at para 17, claiming that the evidence
of Dr. Wyatt was critical and should have been explicitly addressed by the
Tribunal.
[25]
The
Respondent contends that it was reasonable for the Tribunal to infer he
experienced additional pain and suffering. There was general acknowledgement
of his medical limitations due to chronic back pain, including the claim that
it got worse with age and at times left him bedridden. The Tribunal adopted
the medical findings of Dr. Wyatt that there were times when standing or
sitting were difficult for Mr. Collins. Dr. Wyatt only indicated that she had
not received all of the information regarding the administrative procedure of
the stand-to count from the Respondent; it did not directly impact her overall
characterization of his condition. Dr. Wyatt even suggested that the
Respondent had represented accurately. The Respondent asserts that it was
therefore reasonable for the Tribunal to conclude that a procedure requiring a
person to stand who already experienced medical difficulties with this activity
would face additional pain and suffering.
[26]
As
a secondary argument, the Respondent suggests that since the Applicant failed
to cross-examine Mr. Collins as to his representation that the stand-to count
procedure took 20-30 minutes, it cannot now attempt to impeach his
credibility. A witness must be given notice before this action is taken (see
for example R v Paris, (2000), 138 OAC 287,
150 CCC (3d) 162). I am not convinced that these secondary submissions related
to the impeachment of credibility are appropriate in the judicial review
context and outside the actual cross-examination of the witness.
[27]
I
agree with the Applicant that, in part, the recommendation made by Dr. Wyatt
was based on inaccurate information provided by the Respondent. It is one
thing to find that a person may have difficulty standing for 20 minutes and
quite another scenario when a person may need to stand for only 1-2 minutes.
Nor is there any evidence to suggest that the act of standing was the primary
source of the Respondent’s back pain. Indeed, the evidence seems to point to
the fact that the primary source of the back pain was a pre-existing condition
due to a motorcycle accident.
[28]
Given
recognition of the impact of the Respondent’s medical condition, the conclusion
that he experienced pain and suffering meriting compensation was within the
range of possible, acceptable outcomes. However, under the circumstances I
would reduce the amount of compensation from $7000 to $500, given the
inaccurate information provided to Dr. Wyatt by the Respondent.
Issue B: Was
it Reasonable for the Tribunal to Award Additional Relief to the Respondent
Under Subsection 53(3)?
[29]
Special
compensation under subsection 53(3) can be awarded where a discriminatory
practice has been engaged in wilfully or recklessly. The Applicant claims that
it was unreasonable to award compensation in this case because there was no
factual basis for it and the Tribunal erroneously applied a negligence test in
assessing whether the discrimination by CSC was wilful or reckless.
(i) Factual
Basis
[30]
The
Applicant disputes the Tribunal’s finding that CSC employees failed to consider
the Respondent’s disability and Dr. Wyatt’s recommendation. The Applicant
suggests that the Tribunal should have recognized the misrepresentation by the
Respondent as to the length of the stand-to count procedure as prompting Dr. Wyatt’s
initial recommendation.
[31]
However,
the Applicant’s claims related to the significance of the August 2006 amendment
of CD-566-4 are not convincing. The Applicant suggests that CSC could not have
been expected to contemplate accommodation without this amendment. As the
Respondent points out, however, there is evidence that CSC staff were aware of
his needs. Accommodations had been provided by the CSC to the Respondent in
various ways throughout his sentence. His condition was also accommodated
during the stand-to count informally before November 2005. Prior to the
Tribunal hearing, the CSC admitted its failure to accommodate and, by
extension, knowledge of the discrimination that occurred as a result. The only
reason given for failing to accommodate was that he was ambulatory and did not
qualify for a medical exemption. The Tribunal was able to conclude that CSC
staff members should have been aware, at least to some degree, of the
Respondent’s disability and need to accommodate him during the stand-to count
procedure.
(ii) Test
in Assessing Wilful or Reckless Discrimination
[32]
The
Applicant asserts that the Tribunal imported a negligence standard into its
assessment of recklessness on the part of CSC. Although the Tribunal concluded
that the discrimination was not intentional, it still found that CSC staff
should have known their actions constituted a discriminatory practice. Relying
on R v Sansregret, [1985] 1 S.C.R. 570, 1985 SCJ No 23 at para 16, the
Applicant insists that recklessness has a distinct subjective element from the
objective negligence standard. The assessment should be of what an individual
knew, not what they ought to have known.
[33]
The
definition of recklessness provided in Sansregret was designed for
criminal law. As noted in Brown and Tahmourpour, above, the
Tribunal is entitled to deference in interpreting its own statute. However,
based on the evidence before me I do not agree that the actions of the CSC
amount to wilful or reckless discrimination. The Tribunal found that any
discrimination that may have occurred was not intentional and I do not agree
with the findings of the Tribunal that wilful or reckless discrimination can be
found without some measure of intent or behaviour so devoid of caution or
without regard to the consequences of that behaviour (see for example the
definition of reckless as “disregarding the consequences or danger” and
“lacking caution” in the Canadian Oxford Dictionary, 2d ed (Toronto:
Oxford University Press Canada, 2005). I find no evidence of such behaviour on
the part of CSC in this case. As such, I find that there was no basis for an
award of special compensation pursuant to subsection 53(3) of the CHRA and
would strike that award.
VII. Conclusion
[34]
The
Tribunal’s decision to award compensation for pain and suffering under subsection 53(2)(e) for
$7000 should be reduced to $500. It was unreasonable for the Tribunal to award
special compensation for reckless or wilful discrimination on the part of CSC
staff under subsection 53(3) of the CHRA.
[35]
Accordingly,
this application for judicial review is allowed. No costs are to be awarded in
this matter.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
Tribunal’s decision to award compensation for pain and suffering under
subsection 53(2)(e) of
the CHRA is reduced from $7000 to $500.
2.
This
application for judicial review is allowed.
3.
No
costs are awarded in this matter.
“ D.
G. Near ”
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