Date: 20081016
Docket: T-1743-06
Citation: 2008 FC 1163
Ottawa, Ontario, October 16, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
VICTOR
KWONG
Applicant
and
THE MINISTER OF HUMAN
RESOURCES
AND SOCIAL DEVELOPMENT
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Victor Kwong seeks to overturn a decision of the Canadian Human
Rights Commission dismissing his complaint of discrimination on the basis of
disability. Mr. Kwong felt he was discharged from a government-sponsored
self-employment assistance program after the organizers failed to accommodate
his disability. However, the Commission concluded, after an investigation, that
the evidence did not support Mr. Kwong’s complaint. In addition, it found that
Mr. Kwong had been dismissed from the program, not because of discrimination,
but because he had failed both to comply with its requirements and to support
his requests for accommodation with adequate medical information.
[2]
Mr. Kwong compiled considerable documentation to support his application
for judicial review, for which he is to be commended, especially since he acted
for himself. I have reviewed all of his materials. However, I cannot find any
basis for overturning the Commission’s decision and must, therefore, deny this
application for judicial review.
[3]
Mr. Kwong’s application raises the following questions:
- Did the Commission fail to treat him
fairly?
- Was the Commission’s decision
reasonable in light of the evidence?
I.
Factual Background
[4]
Mr. Kwong is unable to work long hours because of persistent migraines
and lower back pain. The migraines are often triggered by florescent lighting
or certain kinds of computer monitors. They cause his vision to become blurred.
[5]
In 2003, Mr. Kwong applied for income support under the respondent’s Self-Employment
Benefits Program. The Program, delivered by a third party called the Toronto
Business Development Centre (TBDC), normally provides 52 weeks of income
support while the participants receive help in developing plans to become
successfully self-employed. The program can be extended to 78 weeks for persons
with disabilities. Also, the weekly work hours can be reduced from 35 to 20.
[6]
Mr. Kwong was accepted into the program in October 2003 for a 52-week
period, at 35 hours a week, to develop a plan to set up a business as a
computer consultant. He signed a contribution agreement confirming these
arrangements and left blank the portions of the agreement relating to
disabilities. However, Mr. Kwong had previously notified officials of his
circumstances and requested an LCD computer monitor and an ergonomic chair,
both of which, after some delays, were provided to him. Some discussion of a
possible extension of the program took place soon after the agreement was
signed, but no steps were taken at that point either by Mr. Kwong or TBDC to
change it. The agreement stipulated that the respondent could terminate it if
Mr. Kwong failed to comply with its requirements, including timely submission
of an acceptable business plan.
[7]
Mr. Kwong’s business plan was due in December 2003. TBDC notified him in
January 2004 that his plan was late, and granted him an extension to the end of
January. At that point, Mr. Kwong reiterated his request for reduced hours and
an extension of the program to 78 weeks. A series of e-mails between Mr. Kwong
and officials involved in the program over the ensuing months made clear that
the respondent was willing to accommodate Mr. Kwong’s request so long as it was
made in writing and supported by a medical opinion. The respondent also made
clear that the extension was contingent on Mr. Kwong’s submission of his
business plan.
[8]
The parties finally reached an impasse in June 2004. Mr. Kwong had
submitted some documentation supporting his request but nothing that indicated
that he needed more time to complete the program. The respondent continued to
insist that Mr. Kwong submit his business plan before his request for an
extension could be granted. Mr. Kwong refused. On June 16, 2004, the respondent
terminated Mr. Kwong’s involvement in the program. Even so, the respondent
encouraged Mr. Kwong to re-enroll in another program before his eligibility for
benefits expired, and offered to assist him in doing so. Mr. Kwong was not
interested because he would have had to repeat portions of the program he had
already completed. He continued to request an extension of the initial program.
When that did not materialize, he made his complaint of discrimination to the
Commission.
II. The
Commission’s Decision
[9]
An investigator for the Commission reviewed the evidence and concluded
that Mr. Kwong’s involvement in the program had been terminated because he had failed
to comply with its requirements, not because of discrimination. In particular,
the investigator noted that officials seemed willing to provide Mr. Kwong the
extension and reduction of hours he desired, so long as he made his request in
writing and provided some medical documentation to support it. Mr. Kwong finally
made a written request in May 2004, to which he attached Occupational Therapist
Assessments from 1999 and 2000, neither of which indicated that Mr. Kwong could
not work full-time. Mr. Kwong also provided a doctor’s note dated April 30,
2004 that simply stated that Mr. Kwong’s migraines were accompanied by “visual
symptoms”.
[10]
In the circumstances, the investigator concluded that the evidence did
not support Mr. Kwong’s complaint that he had been terminated from the program
because of his request for accommodation. Rather, the evidence showed that Mr.
Kwong had been terminated because of his failure to provide a business plan.
[11]
After reviewing the investigator’s report and Mr. Kwong’s comments on it
(the respondent had none), the Commission accepted the investigator’s
conclusion. It dismissed Mr. Kwong’s complaint because a further inquiry was
not warranted (Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 44(3)(b)(i);
see Annex).
III. Did
the Commission fail to treat Mr. Kwong fairly?
[12]
Mr. Kwong argues that the investigator overlooked an important issue –
whether the respondent’s accommodation policy was adequate. In particular, Mr.
Kwong argues that there was no clear application procedure for disability
accommodations and, therefore, he did not know when or how he was supposed to
make his request. Given that the Commission relied on the investigator’s
conclusion, it had failed to give fair consideration to his complaint.
[13]
The respondent submits that the investigator properly considered the
facts and correctly concluded that there was no evidence that Mr. Kwong had
been treated differentially because of his disability. In light of that
finding, the investigator did not have to go on to consider whether the
respondent’s accommodation policy was adequate. Further, the respondent submits
that Mr. Kwong was fairly treated throughout the proceedings, having been given
ample opportunities to provide evidence to the investigator and make
submissions to the Commission.
[14]
In my view, the investigator thoroughly reviewed the relevant facts and
explained his conclusion that Mr. Kwong’s complaint of discrimination was
unsupported by the evidence. I see no basis for Mr. Kwong’s suggestion that the
investigator overlooked an important issue or that the investigator treated him
unfairly.
IV. Was the
Commission’s decision reasonable in light of the evidence?
[15]
Mr. Kwong expresses considerable frustration at the manner in which he
had been treated by the respondent and submits that the Commission failed to
appreciate his circumstances. In particular, he notes that the respondent
expected him to raise the issue of an extension at the beginning of the program
yet, when he did so (in October 2003), he was told to bring it up later.
Further, while the respondent points to the fact that Mr. Kwong signed an
agreement to participate in a 52-week program at 35 hours a week, it had no
mechanism in place by which he could have requested an extension of the program
before he signed the agreement. Mr. Kwong also questions why the respondent
insisted on submission of his business plan before granting his extension. He
explained to me that he needed to build a disability accommodation plan into
his business plan because he knew that when he was self-employed his ability to
work long hours at a computer terminal would be limited. In other words, his
business plan and his accommodation plan were intertwined. He needed the
respondent to permit him to adapt to the program requirements according to his
needs and to allow him to address those needs in his business plan. In effect, by
demanding that he submit his business plan, Mr. Kwong suggests that the
respondent required him to show that he did not need any accommodation of his
disability before granting him the accommodation he required. As he explained it
to me, he felt that he got “into a loop” that he could not get out of.
[16]
Before me, Mr. Kwong also alleged that he did submit a business plan in
January 2004 but, because it addressed issues relating to his disability, it
was rejected. He provided a portion of the business plan to me but nothing that
would support his allegation that it had been rejected because it contained
references to his disability. Nor does it appear that any evidence to this
effect was provided to the investigator. The partial draft business plan
contains the examiner’s notes, some of which indicate that he or she was uncertain
why Mr. Kwong had included general statements about his disability but had
omitted details about how he would get his business off the ground. I cannot
see a basis for Mr. Kwong’s claim that his business plan was rejected because
he wished to include in it a strategy for coping with his disability.
[17]
Mr. Kwong suggests that the requirement to submit a business plan, in
itself, created a barrier for him. He did not receive the LCD monitor he
required until March 2004. At some point, the ergonomic chair was, apparently,
stolen. In the circumstances, Mr. Kwong says he should have been granted an
extension simply on his request and should not have been required to submit a
business plan until later, if at all. In fact, he suggests that it would have
been reasonable for the respondent to prepare a business plan for him. However,
I see nothing in the record suggesting that Mr. Kwong’s difficulties in
submitting a business plan were connected to the delays in delivering the
monitor and chair. He did not make that claim at the time the business plan was
due.
[18]
Mr. Kwong disputes the respondent’s assertion that its decision to
terminate the agreement was due to his failure to submit a business plan.
Rather, he says that the decision to dismiss him from the program was taken in
March 2004 (not June), even before he was asked to provide medical support for
his request for an extension. Further, he suggests that the demand for medical
documentation violated his right to privacy. Again, I do not see evidence in
the record to support Mr. Kwong’s claim about when the decision to terminate the
agreement was taken. Further, I do not regard the request for medical
information as being offensive to Mr. Kwong’s privacy rights.
[19]
It seems obvious to me that there was a failure of communication here –
on both sides. The respondent could have made clearer the process for obtaining
an extension of the program at reduced hours. Mr. Kwong could have made clearer
his personal circumstances and, as he saw it, the relationship between his
request for accommodation in the form of an extension and his business plan.
And he could have supported his request with proper documentation.
[20]
The question for me, however, is whether the Commission unreasonably
concluded that an inquiry into Mr. Kwong’s complaint was unwarranted. In my
view, in light of the evidence before it, the Commission’s conclusion was
reasonable. The evidence canvassed by the investigator indicated that the
respondent was willing to accept Mr. Kwong’s business plan up until June 14,
2004 which, in itself, amounted to an extension of 26 weeks. The respondent
seemed willing to extend Mr. Kwong’s involvement in the program so long as he
provided proper medical documentation for his request and, by submitting his
business plan, showed that he could complete the program successfully. The
respondent was also willing to help Mr. Kwong enroll in another program before
his eligibility for benefits expired. Given this evidence, it was reasonable
for the Commission to conclude that Mr. Kwong’s complaint of discrimination was
unsupported by the evidence and did not warrant an inquiry.
V. Conclusion
[21]
Mr.
Kwong’s application for judicial review is dismissed. I am not persuaded that
the Commission’s conclusion - that his involvement in the program had been
terminated because of his failure to comply with the program’s requirements and
to submit medical information supporting his request for an extension – was
unreasonable. There is no order relating to costs.
JUDGMENT
THIS COURT’s
JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
There
is no order relating to costs.
“James
W. O’Reilly”
Annexe “A”
|
Canadian
Human Rights Act,
R.S.C. 1985, c. H-6,
Report
44. (1) An investigator shall, as soon as possible
after the conclusion of an investigation, submit to the Commission a report
of the findings of the investigation.
…
Idem
(3) On receipt of a report referred to in subsection (1), the Commission
…
(b) shall
dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the
complaint, an inquiry into the complaint is not warranted,
|
Loi
canadienne sur les droits de la personne, L.R., 1985, ch. H-6
Rapport
44.
(1) L’enquêteur présente son rapport à la Commission le
plus tôt possible après la fin de l’enquête.
[…]
Idem
(3) Sur réception du rapport d’enquête prévu au
paragraphe (1), la Commission :
[…]
b) rejette
la plainte, si elle est convaincue :
(i) soit que, compte tenu des circonstances relatives à
la plainte, l’examen de celle-ci n’est pas justifié,
|
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