Date: 20110209
Docket: T-1168-09
Citation: 2011 FC 148
Ottawa, Ontario, February 9,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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DONNA CASLER
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Applicant
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and
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CANADIAN NATIONAL RAILWAY
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by Donna Casler challenging a decision by the Canadian Human
Rights Commission (Commission) that summarily dismissed her complaint of
discrimination against the Respondent Canadian National Railway (CN) under s 44
of the Canadian Human Rights Act, RS, 1985, c H-6 [Act].
Background
[2]
Ms. Casler
worked for CN for 25 years before being dismissed in September 2006 following a
lengthy medically-related absence. On September 22, 2004, Ms. Casler
initiated a human rights complaint where she alleged that CN had failed to
provide adequate accommodation for her medical limitations and had treated her
less favourably than its disabled male employees.
[3]
Ms. Casler’s
human rights complaint was preceded by a complaint to the Canada Industrial
Relations Board (CIRB) alleging that her union had failed to meet its duty of
fair representation in pursuing accommodation on her behalf with CN. This was
followed on August 23, 2004 by a union-initiated grievance alleging that CN had
failed to accommodate Ms. Casler. CN responded by asserting that the
grievance was out of time and that there had been no prior notice of
Ms. Casler’s need for accommodation.
[4]
On
January 6, 2005 the Commission decided in accordance with ss 41(1) of the Act
to deal only with those allegations which predated Ms. Casler’s complaint by
one year. It also postponed further involvement in the face of Ms. Casler’s
right to exercise her employment grievance. It was not until May 5, 2008 that
Ms. Casler requested the reactivation of her human rights complaint and,
by a decision dated August 20, 2008, the Commission agreed to consider the
matter. In accordance with its usual practice, the claim was assigned to an
investigator for a screening review under s 41 of the Act.
[5]
On
October 17, 2008, the Investigator wrote to CN to request a response to
Ms. Casler’s complaint. The Investigator confirmed that the investigation
would be limited to matters arising between August 2000 and September 2004 (the
reference period) and CN need not respond to Ms. Casler’s allegations
falling outside of those dates.
[6]
CN
responded by denying that it had subjected Ms. Casler to differential
treatment and by stating that, during most of the reference period,
Ms. Casler had not requested accommodation. CN went further to assert
that Ms. Casler had failed to keep it apprised of her condition and only
sought accommodation after August 23, 2004. Specifically CN advised the
Investigator that Ms. Casler had provided it with no information between
August 2000 and April 2003. It was only when CN contacted her that any
information was forthcoming and even then Ms. Casler made no claim to
accommodation. CN pointed out that in December 2003, Ms. Casler had
initiated a complaint to the CIRB alleging that her union had failed to assist
her in pursuing accommodation. A few months later the union initiated a policy
grievance on her behalf which CN rejected as out of time. Despite the lack of
timeliness, however, CN indicated at that point that it was willing to discuss
accommodation measures with the union.
[7]
CN
also took the position that Ms. Casler had been substantially
uncooperative in responding to its requests for medical information and for
rules retraining and retesting. CN presented evidence of missed medical
appointments in 2003 and 2004 and missed attendances for mentoring and rules
testing.
[8]
Ms. Casler
was asked by the Investigator to respond to CN’s position and she provided a
15-page reply. Most of Ms. Casler’s reply concerned matters that arose
either before August 2000 or after September 2004. During much of the period
relevant to her complaint, Ms. Casler was unable to show any direct
contact with CN. Notwithstanding the absence of any specific corroboration of
contact with CN, she told the Investigator “I think I did keep the company
appraised of my medical condition and the need for accommodation”.
[9]
Ms. Casler
did not dispute most of CN’s allegations about missed attendances but contended
that, for the most part, she had reasonable excuses for her behaviour. This
included an acknowledgement that she was so confused and anxious that she felt
unable to write the required rules examination. She also continued to maintain
that male employees with medical limitations were treated more favourably by CN
and she offered a few examples in support.
The
Investigator’s Report
[10]
The
Investigator began by noting that Ms. Casler’s complaint would be confined
to the reference period. From August 2000 to March 2001, the Investigator
found that Ms. Casler was unfit to work and receiving short-term
disability benefits. The Investigator noted a psychiatric report dated April
11, 2003 which indicated that Ms. Casler was then “fit for light work with
knowledgeable support”. This was followed by a report from the same physician
in August 2003 indicating that she was unfit for any employment.
[11]
The
Investigator concluded that Ms. Casler was suffering from fibromyalgia with
permanent restrictions. Nevertheless the Investigator characterized the
medical evidence as follows:
19. The medical evidence reviewed
is contradictory with regard to the complainant’s fitness to work, with or
without accommodation. It also appears unclear, what accommodation was required.
[12]
The
Investigator found no documentary evidence that Ms. Casler or her union
had sought accommodation from CN between August 2000 and March 2003.
Ms. Casler’s specific medical situation only became known to CN when there
was an exchange of correspondence between CN and Ms. Casler’s lawyer in
March of 2003. Her lawyer’s letter is not contained in the record before me
but the Investigator found that it was directed at securing income for
Ms. Casler and failed to communicate a need for workplace accommodation.
[13]
The
Investigator also found that much of Ms. Casler’s medical history had not
been presented to CN until her union initiated a grievance on her behalf in
2004. From these facts, the Investigator found that CN had not been informed
of Ms. Casler’s need for accommodation before her grievance was filed in
2004. The Investigator’s summary of the evidence stated:
59. The evidence indicates that the
complainant did not communicate her need for accommodation to the respondent
until August 2004.
60. The evidence indicates that the
complainant did not cooperate with the respondent in the search for
accommodation by refusing to return to work, by not providing medical
information to support her request for further accommodation and by not
completing rules requalification despite numerous opportunities to do so. It
may be that the complainant would have best been accommodated in a sedentary
position, rather than in a position involving moving trains. However, the
complainant never provided the respondent with medical information to support
the need for accommodation in a sedentary position, nor did the complainant
ever request accommodation in the form of a sedentary position.
61. Considering all of the
evidence, it appears that the complainant did not cooperate with the respondent
thus never opening up the possibility of potential accommodation in a position
other than a yard position. In the absence of cooperation, relevant medical
information or a clear request, it does not appear that the respondent had a
duty to accommodate the complainant in a sedentary position.
62. The evidence does not appear to
support the complainant’s allegation of adverse differential treatment based on
sex.
[14]
The
Investigator considered Ms. Casler’s complaint of differential treatment
and found that some of the individuals who had been accommodated by CN were
women. The Investigator also accessed a Labour Canada database which indicated
that, on a relative percentage basis, CN employed more disabled women than
men. From this evidence, the Investigator concluded that no case of systemic
discrimination could be made out.
[15]
Much
of the remainder of the Investigator’s review of Ms. Casler’s and CN’s conduct
involved matters arising outside of the reference period.
[16]
On
the basis of the above findings, the Investigator recommended that
Ms. Casler’s complaint be dismissed and the Commission concurred on the
following basis:
(a) CN
appeared to have made reasonable efforts to accommodate Ms. Casler’s
disability;
(b) Ms. Casler
did not appear to have cooperated fully with CN’s search for accommodation; and
(c) the
evidence does not appear to support an allegation of adverse differential
treatment on the basis of sex.
[17]
It
is from the Commission’s decision that this application for judicial review
arises.
Issues
[18]
Was
the Commission investigation inadequate to the point of procedural unfairness?
[19]
Did
the Commission ignore material evidence?
Analysis
[20]
The
Commission’s screening function under s 44 of the Act has been compared to the
role of a judge presiding over a preliminary inquiry. The role was described
by the Supreme Court of Canada in Cooper v Canada (Human
Rights Commission), [1996] 3 S.C.R. 854, 140 DLR (4th) 193 at para 53
as follows:
53 The Commission is not an
adjudicative body; that is the role of a tribunal appointed under the Act. When
deciding whether a complaint should proceed to be inquired into by a tribunal,
the Commission fulfills a screening analysis somewhat analogous to that of a
judge at a preliminary inquiry. It is not the job of the Commission to
determine if the complaint is made out. Rather its duty is to decide if, under
the provisions of the Act, an inquiry is warranted having regard to all the
facts. The central component of the Commission's role, then, is that of
assessing the sufficiency of the evidence before it. Justice Sopinka emphasized
this point in Syndicat des employés de production du Québec et de L'Acadie
v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p.
899:
The other course of action is to dismiss
the complaint. In my opinion, it is the intention of s. 36(3)(b) that this
occur where there is insufficient evidence to warrant appointment of a
tribunal under s. 39. 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.
[Emphasis added]
[21]
In
screening complaints, the Commission relies upon the work of an investigator
who typically interviews witnesses and reviews the available documentary
record. Where the Commission renders a decision consistent with the
recommendation of its investigator, the investigator’s report has been held to
form a part of the Commission’s reasons: see Sketchley v Canada (Attorney
General), 2005 FCA 404, [2006] 3 FCR 392 at para 37.
[22]
As
noted in the above authorities, the Commission’s decision to dismiss or refer a
complaint inevitably requires some weighing of the evidence to determine if it
is sufficient to justify a hearing on the merits. It is this aspect of the
process that has been said to require deference on judicial review. Deference
is not required, however, in the context of a review of the fairness of the process
including the thoroughness of the investigation. For such issues the standard
of review is correctness (see: Best v Canada (Attorney
General),
2011 FC 71 at paras 16-19; Ibrahim v Shaw Cablesystems G.P., 2010 FC
1220 at para 16).
[23]
In
considering the question of fairness, I am guided by the following statements
from Sketchley, above:
112 It is clear that a duty of
procedural fairness applies to the Commission's investigations of individual
complaints, in that the question of "whether there is a reasonable basis
in the evidence for proceeding to the next stage" (SEPQA, supra at
para. 27) cannot be fairly considered if the investigation was fundamentally
flawed. As the Supreme Court of Canada noted in SEPQA, supra, "[i]n
general, complainants look to the Commission to lead evidence before a tribunal
appointed under s. 39 [now s. 49], and therefore investigation of the complaint
is essential if the Commission is to carry out this role" (para. 24). This
same consideration -- the indispensable nature of the investigation in the
Commission's handling of each individual complaint -- applies equally to an
investigation undertaken prior to dismissal of a complaint under section
44(3)(b). Where a proper inquiry into the substance of the complaint has not
been undertaken, the Commission's decision based on that improper investigation
cannot be relied upon, since a defect exists in the evidentiary foundation upon
which the conclusion rests (Singh, supra at para. 7).
[…]
120 In Slattery, supra, the
Applications Judge considered the degree of thoroughness of investigation
required to satisfy the rules of procedural fairness in this context. He noted
the "essential role that investigators play in determining the merits of
particular complaints" (para. 53), and also the competing interests of
individual complainants and the administrative apparatus as a whole (para. 55).
He concluded as follows:
56 Deference must be given to
administrative decision-makers to assess the probative value of evidence and to
decide to further investigate or not to further investigate accordingly. It
should only be where unreasonable omissions are made, for example where an
investigator failed to investigate obviously crucial evidence, that judicial
review is warranted...
57 In contexts where parties have
the legal right to make submissions in response to an investigator's report,
such as in the case at bar, parties may be able to compensate for more minor
omissions by bringing such omissions to the attention of the decision-maker.
Therefore, it should be only where complainants are unable to rectify such
omissions that judicial review would be warranted. Although this is by no means
an exhaustive list, it would seem to me that circumstances where further
submissions cannot compensate for an investigator's omissions would include:
(1) where the omission is of such a fundamental nature that merely drawing the
decision-maker's attention to the omission cannot compensate for it; or (2)
where fundamental evidence is inaccessible to the decision-maker by virtue of
the protected nature of the information or where the decision-maker explicitly
disregards it.
121 Weighing the Baker factors, I
agree that this is an appropriate description of the content of procedural
fairness in this context.
Fairness
[24]
Ms. Casler
asserts that the Commission erred by failing to consider or to investigate
evidence, most notably crucial medical evidence. She also complains that the
“investigator never bothered to interview [her]” or other important witnesses
to determine the extent of the communication with CN about the need for
accommodation. These failings, she says, constitute a breach of the duty of
procedural fairness.
[25]
Ms. Casler’s
concern about not being interviewed by the Investigator is disingenuous. The Investigator
requested an interview and it was declined through her counsel. This point is
referenced in the following passage from the Investigator’s report:
[…] At that time, the complainant
indicated that by reason of the essence of her disability, she was not able to
participate in an interview because she gets confused. She asked the
investigator to go through her lawyer.
13. The investigator spoke to the
complainant’s lawyer on March 11, 2009 and asked if he had anything to add to
the evidence already submitted and whether he could facilitate an interview
with the complainant. At that time, he indicated that the complainant was not
doing well and that she would have difficulty participating in a telephone
interview. He further indicated that he would review his file with the
complainant to see if he had any additional evidence to submit on her behalf.
The investigator contacted the complainant’s lawyer on March 24, 2009 to find
out if there was any additional evidence forthcoming. As of March 27, 2009, no
additional evidence had been received from the complainant or her legal
representative.
Ms. Casler takes issue with this
characterization of her availability and relies upon a letter from her lawyer
dated May 1, 2009 where the possibility of a telephone interview was raised “to
address any further questions you may have arising from this complaint”.
[26]
I
can identify no inconsistency between the Investigator’s observation and
Ms. Casler’s subsequent offer of a telephone interview. What is clear is
that Ms. Casler declined the Investigator’s initial request for an
interview. It was only after she had seen the Investigator’s report that she
expressed a qualified interest in a telephone interview. It seems to me that
Ms. Casler’s present concerns about the weakness of the investigation must
be considered in the context of her own unwillingness to cooperate fully with
the process. Presumably, her apparent willingness to participate at the end of
the investigation belies an argument that she lacked the capacity to assist in
its initial stages. The Investigator cannot be faulted on fairness grounds for
not taking up this late offer for a telephone interview limited as it was to
“any further questions”. It should also not come as too much of a surprise that
the employer’s side of the story was ultimately preferred by the Investigator
where the request for an opening interview was declined by Ms. Casler.
[27]
Ms. Casler’s
complaint about the Commission ignoring crucial evidence is also unfounded.
Indeed, a significant part of the medical record upon which she now relies was
created well outside of the reference period and was thus irrelevant to the
Commission’s decision. This was also true of much of Ms. Casler’s reply
to the Investigator’s report in which she continued to complain about CN’s
conduct before August 2000 and after September 2004. She also advanced
irrelevant complaints about the failure of her union to assist. Whatever
complaints Ms. Casler may have had about her union, they were of no import
to the complaint against CN.
[28]
Although
Ms. Casler did make the strenuous point in her reply to the Investigator that
the medical evidence (particularly Dr. Morrison’s report of April 16,
2004) supported her claim to accommodation, there is nothing in her reply to
suggest that other witnesses needed to be interviewed or that important medical
or employment evidence had obviously been overlooked by the Investigator. In
any event, the Commission and its investigators have a broad discretion to
conduct an investigation as they consider necessary and appropriate. What is
important is that they acquire sufficient information to understand the
essential elements of a complaint and not its every detail (see: Tutty v Canada (Attorney
General),
2011 FC 57 at para 29; and Herbert v Canada (Attorney
General),
2008 FC 969 at para 18).
[29]
While
I agree with Mr. Scher that much of the medical evidence indicated that
Ms. Casler’s condition limited her capacity for work through much of the
reference period, I am unable to conclude that the Investigator’s finding was
unreasonable. The various medical reports do offer different opinions about
Ms. Casler’s precise limitations for work ranging from Dr. Flor-Henry’s
August 13, 2003 opinion that she was unfit for any work to Dr. Esmail’s
October 25, 2004 opinion that she could lift up to 75 pounds intermittently and
not more than 40 pounds on a frequent basis. Similarly, although
Dr. Morrison’s very detailed report of April 16, 2004 identified no
limiting mental restrictions, he later reported severe cognitive limitations
such that Ms. Casler was incapable of sitting for a rules examination
requested by CN. There is an evidentiary basis for the Investigator’s finding
that the medical evidence was not entirely consistent either with respect to
Ms. Casler’s condition or her employment limitations and it is not open to
me on judicial review to reweigh that evidence or to substitute my views for
those of the decision-maker.
[30]
There
is also a solid evidentiary foundation for the Investigator’s finding that
during a substantial part of the reference period significant elements of
Ms. Casler’s medical history were not disclosed to CN. Ms. Casler
may well have given that material to her union with certain expectations of
disclosure but, as the Commission implicitly recognized, CN could not be
faulted for failing to take into account information it did not have.
[31]
Ms. Casler’s
employment record indicates that she was content to draw disability benefits
when they were available and that she did very little, during the reference
period at least, to keep CN apprised of her health status or to promote her
employability. Indeed, between March 2001 when her short-term disability
benefits ran out and August 2004 when her union filed a grievance on her
behalf, she appears to have done almost nothing to advise CN that she was
interested in returning to some form of accommodated employment. The duty to
accommodate did not rest solely upon CN: see Central Okanagan School
District No. 23 v Renaud, [1992] 2 S.C.R. 970, 95 DLR
(4th) 577. Ms. Casler and her union had corresponding obligations to
substantiate her limitations and to actively promote her return to some form of
gainful employment. It was not unreasonable for the Investigator conclude on this
record that Ms. Casler had failed to appropriately advance her own cause
for accommodated employment.
[32]
The
record also indicates that CN had accommodated Ms. Casler’s situation with
a new temporary position as a flag-person: a job which she held until late
August 2000. From September 3, 2000 until March 6, 2001, Ms. Casler
was receiving long-term disability (LTD) benefits. It was only after her LTD
claim ran out that she approached her union for assistance, and subsequently
brought a complaint to the CIRB in 2003 claiming that her union had failed in
its duty to assist her to obtain accommodation. According to the CIRB decision,
Ms. Casler was unable to provide medical information between April 2001
and April 2003 and last communicated with her union in August 2001. The CIRB
finding is consistent with the record before me which contains a two-year gap
in the medical record and nothing to establish contact with CN until an
exchange of correspondence in March 2003. Despite this evidence, Ms. Casler asserted
that she was under the impression that her claim to accommodation would be
advanced by her union.
[33]
Ms.
Casler’s complaint to the CIRB appears to have led to a union grievance in
August 2004 (the end of the reference period). Notwithstanding CN’s position
that the grievance was long out of time CN indicated to the union that it was
prepared to discuss the situation:
In this case, the Company does not have
any record of Ms. Casler communicating with the Company or requesting the
Company provide her with accommodation, since she went off work on sick
benefits in August 2000. As the Union has outlined, Ms. Casler’s sick
benefit ceased in March of 2001, therefore a timely grievance should have been
submitted by June of 2001, and in any event not over 3 years later.
Notwithstanding the foregoing, the
Company is prepared to meet with the Union,
outside of the grievance procedure, to discuss Ms. Casler’s situation and
any potential accommodation that may be viable, taking into consideration her
restrictions. Please advise your availability.
This grievance was apparently subsequently
abandoned. In 2008, the CIRB dismissed Ms. Casler’s complaint against her
union in part because it had been initiated some 26 months after her last
contact with the union but also because her long absences had delayed the
process.
[34]
Against
this history, the Commission’s similar dismissal of Ms. Casler’s complaint
is hardly surprising. The record before me indicates that for whatever reason
Ms. Casler was less than diligent during much of the reference period in
making a case to CN for reasonable accommodation. To the extent that she may
have had reason to complain about CN’s behaviour after 2004, it was of no
relevance to the period of time that the Commission had undertaken to examine.
Why the Investigator chose to examine some of that later history is unclear but
it had the unfortunate result of unnecessarily complicating the evidentiary
record and it triggered arguments that were irrelevant to the permitted scope
of this judicial review.
[35]
I
would add in conclusion that there is no arguable case to challenge the
Investigator’s finding that Ms. Casler had not been treated in an adverse
differential manner relative to similarly situate male employees. That finding
was amply supported by the evidence in the record and it was not challenged in
any meaningful way by Ms. Casler.
Conclusion
[36]
For
the foregoing reasons, this application for judicial review is dismissed. If
CN is seeking costs from Ms. Casler, I will allow it 10 days to make its
submission in writing not to exceed three pages in length. In that event,
Ms. Casler will have an equivalent opportunity to respond.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed
with the issue of costs to be reserved.
“ R. L. Barnes ”
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