Date: 20080125
Docket: T-433-07
Citation: 2008 FC 99
Ottawa, Ontario, this 25th day of January, 2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
PETER
BOLDY
Applicant
and
ROYAL
BANK OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application for judicial review of a decision of the Canadian Human
Rights Commission set out in a letter dated February 9, 2007. In that decision
the Canadian Human Rights Commission (CHRC) dismissed the Applicant’s complaint
pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act,
R.C.S. 1985, c. H-6. The complaint had been made by the Applicant against his
former employer, Royal Bank of Canada, alleging discrimination on the basis of
mental disability because the RBC had failed to make reasonable accommodation
to enable the Applicant to return to work.
FACTS
[2]
The
Applicant commenced employment with the RBC in April, 1986 and worked there
until October, 2002. His last position there was as Technical Systems Analyst.
[3]
It
is not in dispute (although this event did not form part of the formal
complaint filed by the Applicant with the CHRC) that starting in about
February, 2002, the Applicant had expressed concerns to his superiors about,
according to RBC, “financial irregularities”, and according to the Applicant, about
“the over-configuration of RBC’s mainframe computers”. It is not in dispute
that RBC after some consideration (RBC says there was an internal investigation
and it is agreed the Applicant was interviewed in this connection) RBC found
these complaints to be without foundation. On October 16, 2002, an Executive
Vice-President, John D. Joyce, wrote to the Applicant. He advised that RBC had
investigated his allegations and did not agree with them, and he expressed concerns
about the Applicant’s “well-being”, advised him that he would be placed on
leave of absence with salary “to seek independent professional medical
counselling” and that an appointment had been arranged for him with a
psychiatrist, a Dr. Murphy. Dr. Murphy diagnosed a major depressive episode, a
probable paranoid personality disorder and some physical symptoms. He expressed
the opinion that the Applicant was currently not able to perform at his
worksite at more than 50% capacity. He recommended that the Applicant see a
physician who would treat him for depression. He was subsequently put under the
care of Dr. R. Rehaluk, a psychiatrist, and Dr. Nexhipi, a clinical
psychologist.
[4]
After
the substance, but not the detail, of Dr. Murphy’s opinion was reported to RBC
the Applicant was required to go on disability leave in October, 2002. He was
put on long-term disability benefits effective February 13, 2003. These
benefits continued until February, 2006.
[5]
On
October 15, 2004, counsel for the Applicant wrote to RBC’s counsel reporting
that he had recently received reports from the Applicant’s medical
professionals (Drs. Rehaluk and Nexhipi). He summarized these reports as saying
that the Applicant was “willing and capable of returning to work for the
employer under certain conditions”. Those conditions, summarized in the letter,
will be set out more fully below in quotations from Dr. Rehaluk’s letter. In
reply of October 21, 2004, RBC’s counsel advised that RBC had received no
indication from Manulife (the agent managing disability benefits for RBC) that
the Applicant was medically fit to return to work. She asked for medical
documentation and particulars of some of the allegations. In reply, the
Applicant’s counsel sent to RBC’s counsel a redacted version of the report of
Dr. Rehaluk. It appears that Dr. Nexhipi had expressed the opinion that the
Applicant could only return to work if there were a public investigation of the
Applicant’s original complaints of February, 2002 by an independent
investigator, with RBC and the Applicant agreeing to accept the results. The
major part of Dr. Rehaluk’s letter is as follows (the areas left blank
represent the redacted portions in the version sent to RBC):
Since my first report to you on March 28th,
2003, I have had the opportunity to follow Mr. Boldy over time. I have also had
the opportunity to have Dr. Nexhipi work with Peter. I am in agreement with Dr.
Nexhipi’s views regarding ____________________ dynamics involving the workplace
and what is presented as the most fair and reasonable approach to initiating a
return to work. I refer to Dr. Nexhipi’s two reports dated February 16th,
2004 and June 30th, 2004. I have also reviewed Dr. Murphy’s report
dated November 14th, 2002 and understand his position.
Over time, my clinical opinion has
changed ___________________
__________________________________________________________________________________________________________.
The process that led Peter to sick leave from the workplace was initiated by
the employer and it appears that Peter had no other options at that time but to
follow what was mandated for him.
I remain in agreement with Dr. Murphy and
Dr. Nexhipi regarding a failure, in the event that Peter return to the
workplace without something significant happening. Peter has maintained strong
feelings of betrayal and mistrust based on reports of how his issues have been
dealt with to date at many levels in the workplace. At present the workplace
remains poisoned and he cannot return to his specific site with the same people
or any possible site he could be transferred to by his current employer.
Over time, Peter has presented a very
clear understanding of his position with details that merit being listened to
and investigated by an independent assessor. It would be of benefit to Peter if
the issue of “whistleblowing” were investigated. Peter presented his case in
the workplace up the chain of command and did not find continuity. He feels
shut down at many levels despite his good intentions to actually improve
aspects in the workplace. The ability to recognize and identify any workplace
retaliation would be possible thorough [sic] investigation. There are
several documented cases available that support the similar experiences Peter
describes and I would not simply leave this case open to offering Peter a
workplace transfer. Mr. Boldy wants to return to the same workplace as soon as
possible but will require that achieved sense of moral vindication prior to
this.
Peter’s position is such that he doesn’t
want what happened to himself in the workplace to happen again to anybody and
that if guilt is found, those parties should be punished appropriately. He
claims he was given a false staff review that ultimately was rejected by the VP
that put the problem in motion, leading to Peter’s sick leave. He would like
the investigation to be public. ______________________
_______________________________________________________
____________________. In the event that
the investigation is in favour of Peter, he would want to be formally welcomed
back to the company and be accepted for helping and coming forward with the
problems that they tried to get him out of the workplace with. He would also
like the data base project reinstated to him as he believes this was taken away
from him due to the staff review he received.
___________________________________________.
He would be satisfied by an independent review of his issues regardless of the
outcome, as long as the employer is kept bound by the outcome also, to show
good faith with both parties. In the event that this could be expedited, it
would cause less emotional stress as it would for anybody going through this
process.
[6]
In
January-April, 2005, the Applicant and his counsel sought to have meetings with
RBC representatives. These meetings did not occur because the Applicant would
not agree to meet with certain representatives of RBC and because RBC took the
position that it did not have up-to-date information on the Applicant’s mental
fitness to return to work. It did not regard the letter from Dr. Rehaluk, the
only medical opinion it had at that point, as evidence of such fitness. It did
not know what had been redacted but assumed it was critical elements of a
medical diagnosis (as was the case). Requests by RBC of the complainant and of Manulife
for access to his medical file were rejected by the Applicant.
[7]
On
August 12, 2005 the Applicant filed a complaint with the CHRC against RBC
alleging discrimination in employment based on his mental disability, due to
RBC’s failure to accommodate his return to work up to the point of undue
hardship. After an attempted mediation, an investigator was appointed. A
summary of his findings are as follows:
It does not appear as though the
complainant’s request for accommodation is rationally connected to his
disability. The objective, relevant medical evidence indicates that the
complainant could not return to work for the respondent. Consequently, as the
respondent had no objective evidence that the complainant was fit to return to
work, it had no duty to accommodate him, beyond continuing his disability
benefits. While the complainant’s psychiatrist may have raised a preference
that the complainant requires an achieved sense of moral vindication prior to
returning to work, it does not follow that his preference is rationally
connected to the complainant’s disability. The evidence indicates that the
complainant’s concerns were investigated by the respondent’s Corporate Security
Department, although not in the complainant’s preferred method.
The report was provided to both RBC and the
Applicant and they were able to make comments which were also put before the Commission
along with the report.
[8]
In
a letter of February 9, 2007 to the Applicant, the Commission advised him that
it had decided to dismiss the complaint because:
Based on the investigator’s findings, it
appears as though the complainant’s accommodation request was not rationally
connected to his disability.
This decision was taken
by the CHRC pursuant to paragraph 44(3)(b) of the Canadian Human Rights
Act which provides that the Commission shall dismiss a complaint if “having
regard to all the circumstances of the complaint, an inquiry into the complaint
is not warranted … .”
ISSUES
[9]
There
appear to be two issues:
(1)
What
is the standard of review for this CHRC decision?
(2)
Applying
that standard, is the decision invalid?
ANALYSIS
Standard of
Review
[10]
The
Applicant contends that the standard of review applicable to the determination
that there was no rational connection between the accommodation and the
disability is reasonableness; that the standard applicable to the issue of
whether there is an onus on RBC to arrange accommodation is correctness; and
the standard applicable to the duty of fairness in the conduct of the
investigation and decision of the Commission is also that of correctness. RBC
argues that the standard of review is that of patent unreasonableness or, in
the alternative, reasonableness.
[11]
Using
the usual criteria for the pragmatic and functional approach, there is of
course no privative clause and no appeal provision in respect of such
decisions, facts which usually are neutral in assessing standard of review. The
purpose of the legislation is obviously to provide remedies for human rights
infringements by a simpler procedure administered by a Commission, whose
general purposes include the promotion of human rights. This should suggest
more deference. As for relative expertise, the Commission and its investigators
have more direct experience with relevant fact situations than do the Courts
and this should suggest more deference. An additional consideration in this
case is that the decision here to dismiss the complaint without a tribunal
hearing is determinative of the rights of the Applicant, and therefore somewhat
less deference should be shown, particularly on questions of law: see
Sketchley v. Canada 2006 3 F.C.R. 392 at paras. 79-80 (F.C.A.); Clark v.
Canada, [2007] F.C.J. No. 20 at paras. 70-71 (F.C.). Looking at the nature
of the question as a guide to the standard of review, it appears to me that a
decision such as the present one concerning a rational connection between the
disability and the obligations of accommodation involves some legal
determination of the scope of the accommodation duty and therefore it becomes a
question of mixed law and fact. Taking all of these factors into account, the
standard of review for that decision is reasonableness. With respect to the
existence of an onus on the employer to find a means of accommodation, it
appears to me that that is essentially a question of finding, and defining, a
legal rule and becomes one of correctness. With respect to determinations of
fairness, it is generally accepted that these are to be reviewed for
correctness without regard to the pragmatic and functional approach.
Was the
decision valid?
[12]
Turning
then to the decision of the Commission, perhaps the most important issue is as
to whether CHRC correctly interpreted the scope of the onus on RBC to
accommodate. It is true that in general an employer is considered to be in the
best position to determine how the complainant can be accommodated without
undue interference in the operation of the business. There is also a duty on
the complainant to facilitate the search for an accommodation: see Board of
School Trustees, School District no. 23 (Central Okanagan) v. Renaud
(1992), 95 DLR 4th 577 at 593. Thus there is a considerable onus on
the employer as a matter of law. I do not understand the reasons of the CHRC,
as set out in the investigator’s report which we must assume to have been
adopted by the CHRC, to ignore this onus on the employer. Instead the
investigator, as set out in the summary of his report quoted above, concluded that
RBC had no duty to accommodate the Applicant in these particular circumstances
because it had no clear evidence that the Applicant could return to work. The
information that had been given, mainly in the form of the redacted Rehaluk Report
contained sentences such as the following:
At present the workplace remains poisoned
and he cannot return to his specific site with the same people or any possible
site he could be transferred to by his current employer.
The
letter goes on to say that Peter wants an investigation of his “whistleblowing”
in 2002 by an independent assessor who would hold a public investigation, that
“if guilt is found” parties should be punished appropriately, and that if the
investigation is in favour of Peter he should be “formally welcomed back to the
company”. This was the only medical opinion on the Applicant’s current medical condition
which RBC had prior to these proceedings being started.
[13]
It
appears to me that the CHRC investigator correctly recognized the scope of the legal
obligation on RBC to accommodate if possible. He observed that RBC had
accommodated the Applicant by providing him with disability benefits which
commenced after RBC was advised that he was unable to work. The Applicant
contends that disability benefits cannot be reasonable accommodation in place
of a renewal of employment, and he cites the case of Tozer v. British
Columbia (2000), 36 CHRR D/393 (BC Human Rights Tribunal). That case is
distinguishable because there the employee had provided the employer with
medical opinions clearly indicating she was able to return to work. The
Applicant also cites a railway arbitration which I do not consider particularly
relevant. I believe the investigator was also correct in finding, in effect,
that an employer does not have an onus of accommodating an employee so as to
enable him to come back to work if the employer is not first satisfied that
such employee can return to work.
[14]
Given
these legally correct interpretations of the onus of accommodation, I believe
the investigator and the Commission reached a reasonable conclusion that the
employer was not obliged to take a further step toward accommodation because
the step requested by the Applicant was not rationally connected to his
disability. His request was based on the hypothesis of his clinical psychologist
as conveyed to his psychiatrist as conveyed by him to RBC in a letter from
which unknown material had been deleted and in which a highly speculative
scenario was presented. It would be obvious the doctors had no direct knowledge
of the work situation other than what the Applicant had provided. It was
reasonable for the investigator and the Commission to regard this letter as
quite inadequate as a basis for accommodation by the RBC. Yet the letter made
it clear that no other form of accommodation would be acceptable to the
Applicant on medical grounds. It was therefore reasonable for the investigator
and the Commission to conclude that (in the words of paragraph 44(3)(b)
of the Act) “having regard to all the circumstances … an inquiry into the
complaint is not warranted … .”
[15]
The
Applicant asserts that the investigator did not act fairly in the preparation
of his report. This is not a matter for the pragmatic and functional analysis
of the standard of review. However, the Court is obliged to determine as a
matter of law whether the procedure followed was fair in the circumstances: see
e.g. C.U.P.E. v. Ontario, [2003] 1 S.C.R. 539 at paras. 100, 102-103; Sketchely,
supra, at paras. 52-55. It has been frequently said that the main
requirements of fairness, in an investigation carried out under the Canadian
Human Rights Act, is that the investigator demonstrate neutrality and
thoroughness: see e.g. Slattery v. Canada 1994 2 F.C. 574, para. 49; Miller
v. Canadian Human Rights Commission (1996), 112 FTR 195 at para. 13; McNabb
v. Canada Post Corporation 2006 F.C.J. No. 1424 at para. 74 (F.C.). The
Applicant here complains in effect of a lack of thoroughness. I do not believe
he has demonstrated this. He complains that the investigator treated the
accommodation proposed on his behalf as being his request rather than the
recommendation of his psychiatrist and psychologist. In the context, one can
hardly see it as anything other than the request on behalf of the Applicant;
his real complaint may be that the investigator did not treat the suggestions
in Dr. Rehaluk’s letter as being an expert opinion as to what was reasonable.
He also feels that the investigator did not pay attention to what was being
proposed for accommodation. It appears to me that the investigator gave due
attention to the essential points made on the Rehaluk letter but found it
inadequate to describe a viable form of accommodation. Essential information
was lacking and the letter was emphatic that no other form of accommodation
could possibly enable the Applicant to return to his employment. The Applicant
also argued, as noted above, that the investigator was wrong to treat the
disability benefits provided by RBC as a form of accommodation. For the reasons
stated above, I disagree with this. When there is no reasonable possibility of
a former employee returning to his employment, disability benefits can be seen
as an accommodation. Up to the time of the Rehaluk letter there had been no
indication to RBC that the Applicant could return to work and that letter –
vague, contradictory, based on a mere hypothesis, and significantly redacted –
was not a basis for RBC to conclude that he could return to work. During
argument, the Applicant also complained that the investigator had never
interviewed him although he had indicated an interest in doing so earlier. It
has long been held that an investigator need not interview every possible
witness and normally it is sufficient to meet the requirements of fairness that
the parties be shown the investigator’s report and have an opportunity to make
submissions in respect to it for consideration by the Commission. In this way,
if any information that could have been obtained from the Applicant by the
investigator was left out, the Applicant was able to include that information
in his submission to the Commission. It may further be noted that although the
investigator did not interview the Applicant before making his report, he was
in communication with the Applicant’s lawyer who presumably transmitted to him
any information the Applicant wished him to have.
CONCLUSION
[16]
I
will therefore dismiss this application for judicial review. As the Respondent
has specifically refrained from asking for costs, there will be no costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application for judicial review of the decision of the Canadian Human Rights Commission
of February 9, 2007, dismissing the Applicant’s complaint, be dismissed,
without costs.
“Barry L. Strayer”
Deputy
Judge
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