Date: 20071019
Docket: T-1644-06
Citation: 2007 FC 1076
Ottawa, Ontario, October 19, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ALLAN
BESNER
Applicant
and
THE ATTORNEY GENERAL OF CANADA
(CORRECTIONAL SERVICE OF CANADA)
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Canadian Human
Rights Commission, dated August 8, 2006, wherein the Commission dismissed Mr. Besner’s
complaints that he had been discriminated against by his employer and that the
employer had failed to provide reasonable accommodation for his disabilities. The
central issue is whether the Commission conducted a thorough investigation of
the complaint. For the reasons that follow, I have concluded that there are no
grounds on which to interfere with the decision and the application will be
dismissed.
BACKGROUND:
[2]
The
record in this matter discloses a protracted series of events leading up to Mr.
Besner’s retirement from the Correctional Service of Canada (“CSC”) in 2002 on
medical grounds and his subsequent complaint that this was induced by the
employer’s failure to accommodate his disabilities. While it is not the role of
the Court to consider the merits of that complaint, a review of the factual
background is necessary to determine whether the Commission’s investigation was
sufficiently thorough.
[3]
Mr.
Besner, a psychologist formerly employed with at the Matsqui Institution in British
Columbia,
has suffered for many years from obsessive-compulsive disorder and depression which
made it difficult for him to perform certain of his assigned duties within the
expected time frames. In particular, he was unable to prepare psychological assessments
in a timely manner, a limitation he states he was able to deal with initially
because his workload was varied and assessment writing could be offset against
other duties which were less arduous for him.
[4]
In
1994, while still employed at Matsqui, Mr. Besner was assigned to the Regional
Reception and Assessment Centre (RRAC) at which his primary duty was to write psychological
assessments. At the time he objected to the assignment for a number of reasons
outlined in a memorandum to the Warden but did not disclose that his disability
would cause any difficulties with the nature of the work. He was unable to meet
the performance expectations of this assignment and took extended periods of
stress related sick leave. It is apparent from the record that his inability
to complete timely assessments led to strains in his relationship with prison
management as did his union activities which also required extended absences
from the workplace.
[5]
In
July 1997, following several prolonged medical absences, Mr. Besner sought to
return to work on the recommendation of his psychiatrist, a Dr. Pole, that he
be allowed to work on a schedule of three days per week. Dr. Pole’s letter providing
this recommendation does not discuss the nature of the work that Mr. Besner
could or could not perform nor did the psychiatrist address that question in a follow-up
letter to Health Canada in December 1997. Mr. Besner submits that his
supervisor was aware of his problem in completing assessments.
[6]
By
letter dated July 23, 1997 the acting chief of personnel at Matsqui requested an
independent fitness for work assessment from Dr. I. Forbes of the Occupational
Health Services Branch of Health Canada. The letter described
Mr. Besner's duties as including providing psychological diagnostic assessment
services for inmates; conducting individual and group therapy; providing
consulting services to the case management and institutional management teams
regarding inmates’ treatment in programs; and, training for both staff and
inmates. This is consistent with the statement of objectives for his position
that was prepared by the Deputy Warden and signed by Mr. Besner on January 16,
1996.
[7]
Attached
to the letter was a checklist entitled Occupational Health Services Job
Analysis Guidelines (the “Job Analysis”). The checklist included estimates of
the frequency of job related physical, mental and environmental stress factors.
For those marked as frequent or constant, brief descriptions of the tasks were
added in handwriting. Only two factors were described as constant:
counselling/interviewing and psychological assessments/recommendations. “Constant”,
as submitted by the respondent in its reply to the Commission was defined as
67-100% of the work shift . Under the heading “Comments” the following remarks
are found:
A
psychologist employed in a Federal Prison provides psychological services and
counselling to offenders, does risk assessments, makes recommendations
respecting risk management, suitability for transfer, risk for self/other harms
and assists in critical incident stress management within the institution.
[8]
In
response to the request for an independent evaluation, Dr. Forbes wrote that he
supported a return to work based on Dr. Pole’s recommendation, although he stated
that he had not been able to conduct a full medical assessment as Mr. Besner
would not grant consent to contact his physicians. Subsequent correspondence
from Dr. Forbes on the record indicates that Mr. Besner continued to refuse
consent for some time. Mr. Besner asserts in documents filed with the
Commission that in dealing with Dr. Forbes he wished to preserve his privacy
interests and limit the personal information which the employer might acquire.
He believed that he had reached an understanding with Dr. Forbes about what
information was relevant for the purposes of the assessment.
[9]
The
applicant returned to work on August 1, 1997 and was reassigned to the RRAC for
three days per week at 50% workload. However, he continued to have difficulty
in satisfying management's performance expectations. On January 27, 1998, a
meeting was convened by Mr. Besner's supervisor with the applicant in which the
acting head of personnel, an associate warden and a union representative also
participated. This was described, by the supervisor in a letter of reprimand to
Mr. Besner dated February 20, 1998, as a "disciplinary hearing",
arising from Mr. Besner's failure to complete an inmate intake assessment
report in a timely fashion.
[10]
The only
contemporaneous record of the January
1998 meeting is several pages of hand-written notes prepared by Mr. Besner’s
union representative. The notes indicate that it was stated at the meeting by
the supervisor that the main reason he had been given the assessment work,
considered a short term task, was to accommodate his frequent absences for
medical reasons and his union duties. Mr. Besner could not be assigned to a
living unit, as he preferred, if unavailable full-time. Mr. Besner is quoted as
stating that he would have difficulty preparing risk assessments on time but
was willing to give it a try.
[11]
In
a letter to Dr. Forbes dated February 26, 1998, Matsqui’s acting chief of
personnel again sought confirmation regarding Mr. Besner's fitness to work. The
letter notes that Mr. Besner was reluctant to provide consent for a review of
all of his medical records and wished to have the release of information
restricted to his current situation to ensure the continued confidentiality of those
records. The letter further states that Mr. Besner had discussed this with his
physician and requested that the doctor contact Dr. Forbes to outline his situation.
The letter concludes by asking Dr. Forbes to confirm if Mr. Besner had
consented to the release of information sufficient to complete an assessment of
his fitness for work and second, if that were the case, "do any
restrictions apply or is Mr. Besner able to perform the duties of this position
on a full-time basis?".
[12]
On
April 2, 1998 Dr. Forbes wrote to advise that the medical information regarding
Mr. Besner had again been reviewed and that Mr. Besner had been interviewed at
the health services offices. In his letter, Dr. Forbes states "after
considerable effort, once again I've been unsuccessful in obtaining informed
consent and have therefore been unable to conduct a full assessment." He
then proceeded to state that Mr. Besner met the medical requirements to perform
all of his duties but, for medical reasons, should work only three days per
week.
[13]
Letters
from Dr. Pole in January and March 1999 to Dr. Forbes certifying Mr. Besner’s
absences for medical reasons make no mention of any alternate work that he
might perform but state simply that he was “under stress and strain at work”.
On May 7, 1999 Dr. Pole wrote to advise that Mr. Besner was medically disabled
and would be unable to return to work indefinitely. Mr. Besner did not return
to work, was placed on leave without pay and applied for long term disability insurance
benefits which were approved in December 1999. An independent medical
evaluation in October 1999, prepared for the insurer by a Dr. Kline, indicated
that he was fully disabled but could possibly return to work if the employer
were able to offer him alternate work in program development or therapy. It
appears that this evaluation was not provided to the employer until these
proceedings were initiated. In any event, no offer of alternate work was made.
[14]
On
July 12, 2001, further to Treasury Board policy respecting long term leave
without pay, Mr. Besner was notified that his employment would be terminated if
he did not return to work within two weeks. On the advice of his union and
under what he considered to be duress, Mr. Besner sought retirement on medical
grounds. In support of that application, Dr. Pole provided a detailed medical
opinion dated March 5, 2002 in which he concluded that Mr. Besner “is
completely disabled… [and] has been disabled for the last 4 years or so… which
prevents him in [sic] engaging in any employment for which he is
reasonably suited by virtue of education, training and experience…” In
February 2003 Mr. Besner was advised that he would be retired on medical
grounds effective May 2002.
[15]
In
his complaint to the Commission filed on August 27, 2004, Mr. Besner alleged
that between June 7, 1994 and May 2002 he was discriminated against by his employer
in being treated in an adverse differential manner because of his disability,
that the employer had failed to accommodate his disability and that such
actions culminated in the termination of his employment. The respondent
objected to the matter proceeding as it was filed beyond the one year time
period provided by the Canadian Human Rights Act (the Act). Further the
respondent denied that it discriminated against the complainant by treating him
in an adverse differential manner, by failing to accommodate his disability or by
terminating his employment.
[16]
On
February 10, 2005 the Commission accepted the complaint and assigned an investigator.
By letters dated November 15, 2005 and March 10, 2006, Mr. Besner’s union
representative provided the Investigator with extensive documentation
supporting the complaint and a detailed rebuttal of the employer’s response
prepared by Mr. Besner with assistance. In the rebuttal Mr. Besner acknowledges
that the nature of his disability made it extremely difficult for him to
complete reports in a timely manner and that most available psychological work
requires extensive report writing but asserts that he could have continued
working productively for CSC had they accommodated his disability by allowing
him to balance assessment preparation with program delivery and development
work.
[17]
The
Investigator’s report was completed on March 30, 2006 and recommended that the
complaint be dismissed for these reasons:
·
the
evidence does not support the complainant's allegation that he was treated in
an adverse differential matter because of his disability.
·
the
evidence indicates that the respondent provided medically supported
accommodation to the complainant.
·
the
evidence indicates that the complainant was not capable of working at any
occupation and that there was no reasonable prospect of him ever being capable
of working in the future.
[18]
In
the analysis portion of the report, the key finding by the investigator reads
as follows:
…the medical evidence does not
support that the complainant was medically restricted from performing
assessment work as both Dr. Pole and Dr. Forbes recommended only a decrease in
his work schedule from five days per week to three days per week. While the
complainant determined what his medical restrictions were and what form accommodation
should be supplied, neither Dr. Forbes or [sic] Dr. Pole outlined any
medical restrictions or indicated that the complainant was unable to perform
specific types of work.
[19]
The
investigator’s report was disclosed to Mr. Besner on April 10, 2006 and he was
provided with an opportunity to respond to it, which was done on his behalf by
a representative of his union on May 2, 2006. The response focused upon two
aspects of the report; investigation of the employer’s actions and use of the
medical opinions. In particular, it was submitted, the report failed to
recognize that CSC did not address the required accommodation, namely a change
of work assignment away from completing psychological assessments.
[20]
In
correspondence with the Commission dated April 25, 2006, Dr. Pole stated that
the employer’s insistence that “his work be comprised solely of completing
assessments led to a deterioration in his health and to his eventual
disability” and further that Mr. Besner “could have functioned in the workplace
if he had been assigned appropriate duties…before his health had deteriorated
to the point where he was entirely and fully disabled.”
[21]
The
Commission's decision, conveyed to Mr. Besner by letter dated August 8, 2006, indicated
that the members had reviewed the investigator’s report and the submissions
filed in response. Their decision to dismiss the complaint was for the same
reasons identified by the investigator. It is agreed by the parties that the investigator’s
report constitutes the Commission’s reasons for the purpose of these
proceedings.
Issues:
[22]
The
issues which I have identified from the parties’ submissions are as follows:
1. whether the Commission conducted its investigation
in accordance with the duty of procedural fairness; and
2. whether the Commission’s decision was reasonable in
finding that the evidence did not support Mr. Besner’s allegation
that he was treated in an adverse differential manner because of
his disability.
Analysis:
Standard of Review;
[23]
The
Federal Court of Appeal applied a pragmatic and functional analysis to
determine the appropriate standards of review of a decision of the Canadian
Human Rights Commission to dismiss an analogous complaint in Sketchley v.
Canada (A.G.), 2005 FCA 404. The Court noted at paragraph 111, that this
analytical approach does not apply to the question of whether an investigation
has been sufficiently thorough. That issue is one of procedural fairness, for
which no curial deference is due. The failure to accord procedural fairness has
long been seen to be a grave failure on the part of any tribunal, such that the
courts should provide the legal answer to any such question: Canadian Union
of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC
29, [2003] 1 S.C.R. 539 at para. 100.
[24]
The
issue of whether an employer must make specific and reasonable medical
inquiries about an employee’s alleged limitations is a question of law, which
attracts a standard of correctness: Sketchley, above, at paras 63 to 70.
[25]
Absent
a breach of procedural fairness or an error of law, a reviewing court should
only intervene where it is shown that the decision of the Commission is unreasonable:
Bell Canada v.
Communications, Energy and Paperworkers Union of Canada (C.A.), [1999] 1
F.C. 113. Flaws in an investigator’s Report will not vitiate a Commission’s
decision, so long as such flaws are not so fundamental that they cannot be
remedied by the responding submissions of the parties. For the purposes of
judicial review, when a Commission has not elaborated upon its reasons, as
here, the Investigator’s report may be considered to be the Commission’s
reasons for decision: Sketchley at para. 38.
Sufficiency of the
Investigation;
[26]
As
noted in Ruckpaul v. Canada (Minister of Citizenship and Immigration),
2004 FC 149, [2004] F.C.J. No. 177 at paragraph
49: “the aim of the investigation of a human rights complaint … is to inquire
into the facts of the complaint in order to provide the Commission with a fair evidentiary
assessment for its decision what to do next.” In this context, the Commission
performs a screening function based largely on that evidentiary assessment to
determine whether the matter should be referred to a tribunal for inquiry.
[27]
While
Mr. Besner’s complaint covered the period from 1994 when he was assigned to
prepare assessments at RRAC until his retirement, in my view the relevant time
period for the purposes of this application begins with the meeting in January,
1998 when his job performance was discussed and Mr. Besner disclosed to the
employer that his inability to complete assessments was due to medical causes. The
parties agree that the need to accommodate Mr. Besner's condition was
recognized from that meeting.
[28]
Mr.
Besner submits that his employer then failed to reasonably and accurately
describe his actual job requirements when seeking medical advice as to his
fitness to perform them. At the relevant time, his primary responsibility was
to prepare psychological assessments, the very task that he found most
difficult to perform because of his disabilities. He contends that the employer
chose to rely upon a generic job description and the risk analysis to provide
information to the medical assessor about the nature of the tasks he was
expected to perform. That analysis covered the full range of functions
performed by CSC psychologists and was inaccurate and misleading in so far as
it was intended to describe his actual assignments. This resulted, the
applicant submits, in the employer’s failure to appropriately accommodate his
disability through the assignment of a varied range of duties. A reduced work
week and work load did not constitute reasonable accommodation when it was precisely
the nature of the assigned work that exacerbated his disabilities.
[29]
The
jurisprudence is clear that a human rights investigator has an obligation to
complete a thorough investigation: Slattery v. Canada (Human Rights
Commission), (1994), 73 F.T.R. 161, [1994] 2 F.C. 574 (T.D.), affirmed
(1996), 205 N.R. 383 (C.A.) [Slattery]. The applicant submits
that in this instance the investigator’s report was flawed by its reliance on the
medical assessments compiled on the basis of CSC’s provision of an inaccurate
job description to the assessor. The investigator failed to engage in any
analysis of whether this information was accurate and adequate. Such analysis
was required for the investigation to have been truly thorough.
[30]
The
respondent counters that the Court should consider the parties’ relative
ability to cover alleged omissions in a report when making a decision about
intervention: Slattery, at para. 60 – 61. In this case, the evidence
shows that CSC did not conceal the nature of Mr. Besner’s job from Health Canada when seeking
an evaluation. The investigator did not ignore crucial evidence. The applicant
had the opportunity to respond to the investigation, and the Commission
referred in its decision to those submissions, which explicitly address the
adequacy of the information provided to the medical evaluator.
[31]
The
question of the obligations of the parties in an investigation of reasonable accommodation
in employment was recently considered by the Supreme Court in McGill
University Health Centre (Montreal
General Hospital) v. Syndicat des employés de l'Hôpital général de
Montréal, 2007 SCC 4, [2007] S.C.J.
No. 4 (McGill University Health Centre). Madam Justice Deschamps there
stated at paragraph 22 that:
[t]hroughout the employment
relationship, the employer must make an effort to accommodate the employee.
However, this does not mean that accommodation is necessarily a one-way street.
In O'Malley (at p. 555) and Central Okanagan School District No. 23
v. Renaud, [1992] 2 S.C.R. 970, the Court recognized that, when an employer
makes a proposal that is reasonable, it is incumbent on the employee to facilitate
its implementation. If the accommodation process fails because the employee
does not co-operate, his or her complaint may be dismissed. (emphasis
mine)
[32]
In
Lowe v. Landmark Transport Inc., 2007 FC 217, [2007] F.C.J. No. 284 at paragraph 21, my
colleague Justice Michael Phelan noted that:
[t]he 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.
[33]
In
the instant case, it appears that Mr. Besner had information available to him
which was not provided to the employer or to the employer’s medical assessor at
the relevant times. The recommendations of
Mr. Besner’s own psychiatrist, Dr. Pole, and those of Dr. Forbes, relying upon
Dr. Pole’s advice, was for restricted hours of work rather than a change of
duties. Based on those recommendations, Mr. Besner was offered an accommodation
which he accepted. In hindsight, with knowledge of Dr. Kline’s comments in
relation to the insurance claim in October 1999 and those of Dr. Pole in his
April 2006 opinion letter, it is apparent that due to the nature of Mr.
Besner’s disabilities, this was doomed to failure. But it is not apparent that
this could have been foreseen by the employer based on the information CSC management
had at the relevant time.
[34]
Mr.
Besner wished to limit the amount of information about his medical condition that
was provided to his employer and to the medical assessor retained by the
employer to assess his capacity to perform his work. He chose not to cooperate fully
with Dr. Forbes when given several opportunities to provide information that
Dr. Forbes believed was necessary for an adequate assessment. That was his
right, but in choosing to exercise it, he failed to cooperate with the employer
in finding a reasonable accommodation for his disability. It is clear from the
notes of the January 1998 meeting that CSC management was trying to find such
an accommodation. What was offered, as was found by the investigator, was
supported by the medical advice which they received.
[35]
In Guay v. Canada (Attorney General), 2004 FC 979, [2004] F.C.J. No. 1205, it was noted, at paragraph 36,
that it is not for the Court “…to dissect the investigator's report on a
microscopic level or to second-guess the investigator's approach to his task.
The applicant can only succeed…if the alleged deficiencies she outlines render
the investigator's report "clearly deficient"”. In that case, the
Court’s intervention was warranted as the investigator had failed to address a
number of the claims made by the complainant.
[36]
Serious
deficiencies were also found in Ruckpaul above, such as the failure to
interview the applicant’s witnesses or to disclose responses from the employer.
There was no failure to disclose in this matter. Several witnesses who may have
had personal knowledge of the events in question were not interviewed as they
had retired or otherwise left CSC and their present locations were unknown to
the employer. That does not, in my view, indicate a failure on the part of the
investigator to conduct a thorough inquiry but reflects the passage of time
since the events occurred.
[37]
In
Singh v. Canada
(Attorney General), 2001 FCT 198, [2001]
F.C.J. No. 367, upheld 2002 FCA 247, [2002] F.C.J. No. 885, the Court found
that an investigation into the substance of the complaint had never really
taken place. That
is not the situation in this case.
[38]
From
my review of the investigator’s report and the supporting record, I am
satisfied that the investigation properly focussed on the substance of the
applicant’s complaint and that his submissions were fully taken into
consideration and put to the appropriate decision-makers.
[39]
Mr. Besner argues that the
investigator failed to address his contention that he was entitled to rely upon
the assumption that the employer was providing complete and accurate
information to the medical assessor with respect to the nature of his work
duties. Counsel urges the Court to send the matter back for a fresh
investigation of whether the failure to properly inform Dr. Forbes about the
type of work Mr. Besner was doing is attributable to the employer or to him. I do not
think that it was necessary for the investigator to address this in her
analysis when, at the relevant time, there was no medical indication that Mr.
Besner could not perform any part of the job description of a CSC psychologist,
including assessments. That which was material to the investigation was that neither
Dr. Forbes nor Dr. Pole recommended any specific work restrictions for Mr.
Besner other than for the duration of his work week.
CONCLUSION:
[40]
It
is apparent from Mr. Besner’s submissions to the Commission and from the other
material on the record that he suffered considerably from his disabilities and
from what he believes to have been the actions of management during his employment
with CSC. It is not for the Court to determine the merits of those grievances
but to review the adequacy of the investigation into his complaint of
discrimination and the reasonableness of the Commission’s decision.
[41]
I
must conclude, on the basis of the record before me, that the investigator did
conduct a sufficiently thorough investigation and that the applicant was not
denied procedural fairness in the preparation of the investigator’s report. The
investigator’s analysis was not based on irrelevant factors, nor was it
capricious or vexatious. The Commission was justified in relying upon the
investigator’s report, together with the final responding submissions of the
applicant, in arriving at its decision. Accordingly, I find that the
Commission’s decision is reasonable and should not be set aside. The respondent
has not requested its costs and none will be awarded.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application is
dismissed. There is no award of costs.
“Richard
G. Mosley”
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