Date: 20070226
Docket: T-1277-05
Citation: 2007 FC 217
Ottawa, Ontario, February 26,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JOSEPH
ELTON LOWE
Applicant
and
LANDMARK TRANSPORT INC.,
and TEAMSTERS
LOCAL UNION NO. 31
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Mr.
Lowe was a truck driver who suffered from Muscular Dystrophy (MD). He had
driven for one customer for some period of time but lost the position due to
seniority and changes in how work was assigned. His complaint that the employer
and union had failed to accommodate his disability was dismissed by the
Canadian Human Rights Commission (CHRC) because:
(a) the
evidence did not support his complaint of failure to accommodate;
(b) Mr.
Lowe had not provided his employer with medical certification regarding his
disability;
(c) Mr.
Lowe had not provided his union with medical certification regarding his
disability in support of his grievance; and
(d) the
union had assisted Mr. Lowe in securing alternate employment.
[2]
The
Applicant, in this judicial review, raised the issue of the error in dismissing
the complaint, particularly with respect to the absence of medical
certificates, the issue of the fairness and thoroughness of the investigation
and the fairness of the Commissioner’s decision.
II. BACKGROUND
[3]
Lowe
was an employee of Landmark Transport Inc. (Landmark). Teamsters Union Local
No. 31 (Union) was the bargaining agent for the driver employed at Landmark.
Lowe owned and operated his own tractor and was under exclusive contract to
work for Landmark. He was paid only for the work he actually did which was
assigned daily.
[4]
Landmark
is a hired cartage company operating in Western Canada and the United
States.
It provides support services to other transport companies who require
additional haulers and other companies who require cargo transported from time
to time. The majority of the work is on an as‑needed basis.
[5]
However,
when Landmark has regular consistent work from a particular client, it posts
the assignment for its owner-operators to bid on. A seniority list is created
from the owner-operators that respond to the bid. When assignments come up,
they are assigned on the basis of seniority; the most senior driver is
contacted first and so on. Once the list is created, other drivers cannot come
in and bump less senior drivers.
[6]
Kleysen’s
Transport (Kleysen), a trucking company, is a client of Landmark for whom it
provides additional trucks on an as-needed basis. Kleysen hauls beer for
Molson’s. Kleysen had regular work which engaged the seniority process
described.
[7]
The
Union and Landmark
have a Collective Agreement which contains a seniority clause governing, inter
alia, new jobs and vacancies requiring posting for such positions.
[8]
As
indicated earlier, the Applicant has MD. In 2002, having returned to work after
breaking his arm, he began assisting with the Kleysen work which he found was
conducive to his medical condition. As he had greater seniority, he took over
the # 1 dispatch position and did the work consistently and exclusively.
[9]
In
July/August 2003, the Applicant voluntarily took his tractor out of service to
make modifications. Another driver moved into the first position with Kleysen.
Upon the Applicant’s resumption of work, he demanded a return to his first
position. This was refused on the grounds that the incumbent was doing a good
job and had greater seniority.
[10]
As
the Kleysen work was so regular, the Union required Landmark to post the
positions. The Applicant came in third on seniority for the position he had
held.
[11]
The
Applicant filed a complaint against Landmark and the Union. He claimed
that the # 1 position was perfect for his health because it kept him physically
active at a level conducive to his medical condition. The employer claims that
the work as a # 1 or # 3 is the same and the only real difference is financial.
[12]
The
Union refused to pursue the Applicant’s complaint.
[13]
Finally,
as a result of the Applicant’s behaviour, Kleysen’s customers complained about
him. He was banned from all Kleysen work. The Union instructed
Lowe to stop harassing the person who held the # 1 position. As matters
evolved, the Kleysen work no longer exists as Kleysen is no longer a customer
of Landmark (although this is not relevant to the Applicant’s rights).
[14]
For
the reasons stated earlier, the Commission dismissed the Applicant’s complaint.
In effect, the Commission adopted the Investigator’s Report and if there are
any errors, they stem from the Report and the way in which the investigation
was conducted.
[15]
Even
at the late stage of the judicial review hearing, the Court permitted the
Applicant to file affidavit evidence, the purport of which is to establish that
the investigator had a closed mind and exhibited bias or at least a predisposition
against the Applicant. It is alleged that the investigator was not fair,
balanced or neutral.
III. ANALYSIS
A. Standard
of Review
[16]
As
to the standard of review, I follow the conclusions of the Court of Appeal in Tahmourpour
v. Canada (Solicitor
General),
2005 FCA 113 and the thorough analysis of Justice Mactavish in Loyer v. Air
Canada, 2006 FC 1172 that the standard of review of this type of decision
by the Commission is “reasonableness”.
B. Medical
Certificates
[17]
A
principal component of the Applicant’s case is the alleged failure to produce
medical certificates. The Applicant says that he did and they were ignored
because the investigator held that they were received after the complaint had
been filed.
[18]
The
Applicant claims that both the employer and the Union had a duty to investigate
how the Applicant could be accommodated – that they had a duty to “dialogue”
with the Applicant and that it was an error of law to demand medical
certificates.
[19]
There
was no suggestion that the medical evidence was not examined because it was
received after the complaint was filed. The Investigator’s Report is clear that
it was not the absence of any medical evidence, so much as it was the
Applicant’s failure to provide the employer with
“medical certification outlining his work
limitations or supporting his request to remain in the number one dispatch
position”.
[20]
It
must be remembered that the onus is on an applicant/claimant to establish a prima
facie case of discrimination. (Ontario (Human Rights
Commission) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 at 558)
[21]
The
allegation of failure to accommodate must also be considered against the
background of the information available to either or both the employer and the Union.
[22]
The
Complaint was filed on November 23, 2003 and amended on February 15, 2004. On February
19, 2004, there was a “To Whom It May Concern” note from the Applicant’s doctor
saying:
“… Some accommodation in the work place
would be appropriate. We are in the process of having him more formally tested
to define those limitations …”
[23]
This
was followed by a doctor’s letter of March 25, 2004, the salient parts of which
are:
“…In the schedule and type of work he
worked out he was able to gain strength and function to a higher level than
previously achieved.
In the summer of 2003, this excellent schedule
was unfortunately changed. He was returned to a more common and unpredictable
schedule involving jobs that required muscular effort that he is unable to do.
He then went on to suffer a significant depression, due in part, undoubtedly,
to the strain and realization of his frailty. He has recovered from his
depression to a considerable extent but he is left with the obstacle of being
asked to do work to which he is not suited.
I strongly urge his employer, if
possible, to reassign him to the very successful schedule he previously
enjoyed, for the benefit of his health and his ability to return to productive
work.
I also encourage the formal testing and
documentation of his muscular weakness. This may be done by a private
Occupational Therapist clinic. Unfortunately, this is not covered under out [sic]
health care program and funding is private. I would encourage Mr. Lowe’s
employer to consider funding this independent evaluation in the interests of
all concerned.
[24]
Both
the Union and the employer had been asking for information on precisely what the
Applicant could or could not do.
[25]
Finally,
on August 24, 2004, the Applicant had the report of an occupational therapist
which was submitted during the investigation. The report does not address the
concerns raised by the employer and the Union. Again, the
salient portions are:
At his present level of physical
function, Mr. Lowe meets the requirements of his occupation as a Truck Driver
for sitting, standing, walking, body dexterity, climbing, reaching, handling,
and strength.
Of note, based on testing, it is
imperative that Mr. Lowe be restricted to working within his physical capacity,
as it appears that he would push himself to complete a task or he would find a
different way of doing the task, such as using improper body mechanics to
perform heavy lifting. This approach of minimizing limitations can be
considered to pose a risk of injury.
It [sic] terms of answering the
referral questions, with respect to his present physical function, Mr. Lowe
would be able to work full-time employment in limited, light, and, in part, the
medium strength occupations defined by the NOC, within his physical
capacity and within the restrictions detailed above.
Recommendations/accommodations to improve
Mr. Lowe’s employability or to assist him at work would include:
1. Mounted bars on
truck. It is advised that Mr. Lowe ensure that he has securely mounted
handles on his truck in order to assist with gripping when climbing onto and
off of his truck.
2. Working within
physical capacity. Mr. Lowe should work within his physical capacity (as
detailed above) in order to avoid injury and to enable him to work full time.
[26]
It
is not accurate to depict the employer as refusing to accommodate or to enter
into an inquiry (or dialogue as the Applicant put it). The employer, knowing
the Applicant had MD, requested medical certificates for the very purpose of
determining what accommodation had to and could be made. The employer was in
the difficult position of dealing both with a duty to accommodate one employee
and at the same time not, without justification, “bump” another employee from
his position secured under the Collective Agreement.
[27]
The
Union was in a similar position as it had requested such evidence on several
occasions. The Applicant did not bring forward any evidence that the # 1
position was the only position which could accommodate his disability. Even the
occupational therapist’s report does not address this issue.
[28]
The
duty of an employer is well set out in Brampton (City) and
A.T.U., Loc. 1573 (1998), 75 L.A.C. (4th) 163 at 171:
In general, an employer is required to
make a reasonable response to a reasonable request for accommodation. The
individual, or his Union, must make the first moves.
Before an employer is required to respond, the individual must prove that he
has a disability; that he cannot perform his old job (in whole or in part) by
reason of the disability; and what abilities he retains to perform other duties
the employer may reasonably have available. In most cases the individual will
have to produce medical evidence sufficient to allow the employer to match
abilities of the individual with the demands of a job. It is only when the
employer is in receipt of the necessary information that the duty to respond
reasonably, within a reasonable time, arises.
[29]
It
was not sufficient for the Applicant to merely insist on returning to the # 1
position without showing a basis for concluding that there was only one way to
accommodate his disability and that it was the return to the former position.
The Commission’s decision as regards the employer was reasonable.
[30]
The
duty to accommodate imposed on a union is slightly different from that imposed
on an employer, in part because of the representative nature of a union. That
duty in the context of a union was described in Central Okanagan School
District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at
para. 38:
The duty to accommodate should not
substitute discrimination against other employees for the discrimination
suffered by the complainant. Any significant interference with the rights of
others will ordinarily justify the union in refusing to consent to a measure
which would have this effect. Although the test of undue hardship applies to a
union, it will often be met by a showing of prejudice to other employees if
proposed accommodating measures are adopted. As I stated previously, this test
is grounded on the reasonableness of the measures to remove discrimination
which are taken or proposed.
[31]
The
Investigator’s Report and the Union’s position was not, as argued by the
Applicant, that seniority rights trump the duty to accommodate. The Union simply insisted
on some objective medical-based evidence that the Applicant required the # 1
position.
[32]
Therefore,
the Union’s position supporting seniority, in the absence of the Applicant’s
evidence that the # 1 position was the only job he could perform, was not a
breach of the Union’s legal obligations toward the Applicant.
[33]
The
investigator’s conclusion that “the complainant did not provide the respondent
with medical certification outlining his work limitations and/or supporting his
request to occupy the number one dispatch position” was a finding which was
open to the investigator to make.
C. Thoroughness/Fairness
of Investigation
[34]
The
Applicant’s principal contention is that the investigation was not thorough or
fair because the investigator did not investigate the effects of MD generally
or in respect of Mr. Lowe specifically.
[35]
The
principle in issue has been set forth in Slattery v. Canada (Human
Rights Commission), [1994] 2 F.C. 574 (F.C.T.D.) at para. 69:
The fact that the investigator did not
interview each and every witness that the applicant would have liked her to and
the fact that the conclusion reached by the investigator did not address each
and every alleged incident of discrimination are not in and of themselves fatal
as well. This is particularly the case where the applicant has the opportunity
to fill in gaps left by the investigator in subsequent submissions of her own.
In the absence of guiding regulations, the investigator, much like the CHRC,
must be master of his own procedure, and judicial review of an allegedly
deficient investigation should only be warranted where the investigation is
clearly deficient. In the case at bar I find that the investigator did not fail
to address any fundamental aspect of the applicant’s complaint, as it was
worded, nor were any other, more minor but relevant points inadequately dealt
with that could not be dealt with in the applicant’s responding submissions.
[36]
The
obligation to address the effects of MD generally would not have focused on the
essential question of whether the duty to accommodate had been met in the
absence of any evidence from the Applicant that only the # 1 position would
accommodate his disability.
[37]
The
“curt” exchanges between counsel and the investigator on which the Applicant
relied to show lack of balance and objectivity is not such as to establish
improper investigation, closed mindedness or bias. The exchange of different
opinions, in the context of strong advocacy by counsel telling an investigator
what issues should be canvassed, does not rise to a level which impeaches the
investigation.
D. Fairness
of Decision
[38]
As
indicated earlier, the investigation and the report are the actions and reasons
of the Commission for these purposes. Having found nothing unreasonable or
unfair in the investigation or its conclusions, there is likewise nothing
unreasonable in the Commission’s conclusions.
IV. CONCLUSION
[39]
For
these reasons, this application for judicial review will be dismissed.
[40]
The
Court has heard nothing on the matter of costs and why costs should not be
ordered in the usual manner. However, the employer did not really participate
in this proceeding other than as an observer. The Union has a duty
of representation of the Applicant as well as other members of the local.
Counsel did not press the cost issue. Therefore, no costs will be awarded to
the Respondents.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is dismissed. No costs will be awarded to the
Respondents.
“Michael
L. Phelan”
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