Docket:
T-1679-12
Citation: 2014 FC 368
Ottawa, Ontario, April 16, 2014
PRESENT: The Honourable Madam Justice Strickland
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BETWEEN:
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TERESA PANACCI
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This application for judicial review concerns
the decision of the Canadian Human Rights Commission (the Commission), dated
August 1, 2012, which pursuant to subsection 41(1)(d) of the Canadian Human
Rights Act, RSC 1985, c H-6 (the CHRA) refused to consider the
Applicant’s human rights complaint. The basis for the Commission’s decision was
that the Applicant’s allegations of discrimination had been previously
addressed in another forum.
Background
[2]
On November 29, 2004, the Applicant made a
complaint to the Commission alleging that her employer, Canada Border Service
Agency (CBSA), discriminated against her in her employment on the ground of
disability (chronic fatigue syndrome). Specifically, that CBSA treated her in
an adverse detrimental manner by failing to accommodate her and by pursuing a
discriminatory policy or practice, contrary to sections 7 and 10 of the CHRA.
She further alleged that the failure to accommodate was a systemic problem.
[3]
In May 2005, the Commission, pursuant to
subsection 41(1)(a) of the CHRA, decided not to address the complaint
because the allegations of discrimination could be dealt with through a
grievance procedure available to the Applicant. Thereafter, she could, if
necessary, ask to reactivate the complaint.
[4]
On June 17, 2005, the Applicant filed a
grievance against CBSA. It was referred to adjudication by the Public Service
Labour Relations Board (PSLRB). Because the events that led to the grievance
occurred before April 1, 2005, it was adjudicated in accordance with the
provisions of the Public Service Staff Relations Act, SC 2003, c 22, s 2
(PSSRA). The adjudicator issued a decision on January 20, 2011, clarified
as to remedy by a second decision dated May 27, 2011.
[5]
The adjudicator found that the Applicant had
been discriminated against on the basis of her disability. CBSA was ordered to
compensate her for any losses in income and benefits incurred.
[6]
In addition to the complaint against CBSA, the Applicant
filed two other related complaints with the Commission which proceeded to
investigation: one against Health Canada and the other against the Treasury
Board of Canada. The Commission decided not to deal with these complaints. Regarding
Health Canada, it found that the evidence did not establish that its practices
and policies for fitness to work evaluations were discriminatory. As to the
complaint against the Treasury Board, the Commission found that the Treasury
Board was not responsible for the alleged discriminatory acts and that the
evidence did not support a conclusion that its policies discriminated against
persons with disabilities.
[7]
The Applicant filed an application for judicial
review of those two decisions. This Court dismissed the judicial review
application pertaining to the Commission’s decision concerning Health Canada but quashed its decision concerning the complaint against the Treasury Board (Panacci v Canada (Attorney General), 2010 FC 114). The Commission was ordered to conduct a new
investigation of the complaint against the Treasury Board when the Applicant’s
grievance procedure had been completed. If that grievance was upheld and the
complaint against CBSA proceeded before the Commission, then it was directed to
consider whether the complaints against the Treasury Board and CBSA should be investigated
and reported on together.
[8]
On April 19, 2011, the Applicant requested that
her original complaint against CBSA be reactivated by the Commission. By
letter dated August 10, 2012, the Commission informed the Applicant that it had
decided pursuant to subsection 41(1)(d) of the CRHA, not to deal with
her complaint. It is that decision which is the subject of this judicial
review (Decision).
Decision Under Review
[9]
The Record of Decision Under Sections 40/41
states that the Commission decided, pursuant to subsection 41(1)(d) and for the
reasons set out, not to deal with the complaint. The Commission adopted the
conclusions of a March 16, 2012 Section 40/41 Report, as follows:
According to the
decisions in Boudreault, Barrette, and Figliola, while the Commission cannot
rely on the decision of another process to dismiss a complaint but must make up
its own mind, it also has the responsibility to examine whether it is in the
public interest to deal with the complaint before carrying out its own investigation
into the matter. The Commission must ask itself whether the decision-maker in
the other redress procedure turned his/her mind to essentially the same issues
as those that were raised in the human rights complaint, and whether those
issues were dealt with. The Commission can only deal with a complaint that has
been finally decided under an alternative process if (a) the complaint to the
Commission has human rights issues that were not considered by the alternate
decision-maker, or (b) the complainant did not have the opportunity to address
his or her human rights issues through the alternate process.
There was a final
decision in the complainant’s grievance by a PSLRB adjudicator who has
concurrent jurisdiction to apply human rights legislation. That grievance
raised essentially the same allegations as those raised under section 7 in the
present complaint. It is plain and obvious that all of the complainant’s
allegations under section 7 involving the CBSA were considered by the grievance
adjudicator, and that the complainant had the opportunity to address the human
rights issues relating to her own particular circumstances through the
grievance adjudication process.
Although the
grievance adjudicator did not consider the complainant’s section 10 allegation,
which related to the duty to accommodate, it appears that this allegation, if
proven, is unlikely to lead to a practical result. This is because the
respondent has already taken significant steps to improve its compliance with
the duty to accommodate. These steps include the adoption of a comprehensive
duty to accommodate policy, as well as training through the workplace. This
new Policy on the Duty to Accommodate and the related training provided by the
CBSA to its employees appear to address the systemic issues raised by the
complainant. This portion of the complaint appears to be frivolous within the
meaning of the Act, as adjudication of the complaint would not advance the
purposes of the Act, and it would not be in the public interest for the
Commission to deal with.
Issues
[10]
The issues are as follows:
i)
What is the applicable standard of review?
ii)
Was the Commission’s Decision not to deal with
the Applicant’s section 7 CHRA complaint reasonable?
iii)
Was the Commission’s Decision not to deal with the
Applicant’s section 10 CHRA complaint reasonable?
Standard of
Review
Applicant’s
Position
[11]
The Applicant submits that decisions rendered
under section 41 of the CHRA are discretionary and reviewable on the
standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]; Lawrence v Canada Post Corp.,
2012 FC 692 [Lawrence]; English-Baker v Canada (Attorney General),
2009 FC 1253 [English-Baker]). However, that the range of acceptable
outcomes is narrow in this case. Section 41 provides a preliminary screening
of complaints. A decision not to deal with a complaint at this stage results
in its dismissal without investigation. The Applicant submits that the Commission
should only decide not to deal with a complaint at this stage in “plain and obvious”
cases and that this requirement restricts the scope of decisions that will satisfy
a reasonableness standard of review (Canada Post Corp. v Canada (Canadian Human
Rights Commission) (1997), 130 FTR 241, aff’d [1999] FCJ No 705 (FCA),
leave to appeal dismissed [1999] SCC No 323 [Canada Post]).
[12]
Further, that the Commission’s Decision not to
deal with the section 7 complaint had a significant legal component as its
reasoning was based on its interpretation of the Supreme Court’s decision in British
Columbia (Workers' Compensation Board) v Figliola, 2011 SCC 52 [Figliola]
(Canada (Attorney General) v Abraham, 2012 FCA 266 at paras 42-43, 45,
49; Michon-Hamelin v Canada (Attorney General), 2007 FC 1258 at para 20
[Michon-Hamelin]). If the Commission erred in that regard then its Decision
not to deal with the section 7 complaint was unreasonable.
Respondent’s
Position
[13]
The Respondent submits that the appropriate
standard of review is reasonableness, citing Dunsmuir, above, and notwithstanding
Justice Rothstein’s words in Canada Post, above at para 13, to the
effect that the Commission should only decide to deal with a complaint at this
stage in “plain and obvious” cases (Chan v Canada (Attorney General),
2010 FC 1232 at para 14-15 [Chan]; English-Baker, above at para
13).
Analysis
[14]
A standard of review analysis need not be
conducted in every instance. Where the standard of review applicable to a
particular issue before the Court is well-settled by past jurisprudence the
reviewing Court may accept that standard of review (Dunsmuir, above, at
para 62). Jurisprudence has held that the appropriate standard of review with
respect to decisions by the Commission, pursuant to subsection 41(1) of the CHRA,
not to deal with a complaint is reasonableness (Chan, above; English-Baker,
above at para 13; Lawrence, above, at para 18). This standard
applies to both the decision making process and the result (Dunsmuir,
above, at para 47). Such a review must concern itself with the existence of
justification, transparency and intelligibility within the decision making
process and with whether the decision falls within a range of possible,
acceptable outcomes defensible on the facts and the law (Dunsmuir,
above, at para 47).
[15]
The Applicant relies on Canada Post,
above, to suggest that the “plain and obvious” requirement referenced by
Justice Rothstein serves to restrict the scope of decisions that will satisfy a
reasonableness test, thus, the range of acceptable outcomes is narrow in cases
concerning section 41 of the CHRA. As noted previously, Justice
Rothstein’s comments were addressed in Chan, above. There the Commission
refused, pursuant to subsection 41(1)(d), to consider the applicant’s complaint
because an independent investigator had already conducted an investigation of
her allegations. The applicant argued that the Commission did not have
jurisdiction to hear her complaint.
[16]
Justice Russell held:
[15] In my view,
however, the Applicant has not raised issues that go to jurisdiction. Her
complaint is that the Commission did not appropriately apply subsection
41(1)(d) of the Act to the facts before it. In my view, this issue should
attract a standard of reasonableness. Notwithstanding Justice Rothstein's words
in Canada Post Corp. v. Canada (Canadian Human Rights Commission) (re
Canadian Postmasters and Assistants Assn.) (1997), 130 F.T.R. 241, [1997]
F.C.J. No. 578 [Canadian Postmasters] at paragraph 3, that "the
Commission should only decide not to deal with a complaint at this stage in
plain and obvious cases," the more recent jurisprudence of the court, and
in particular the post Dunsmuir decisions, have used reasonableness as
the appropriate standard of review when the Commission decides not to deal with
a complaint under subsection 41(1)(d). See English-Baker v. Canada (Attorney
General), 2009 FC 1253, [2009] F.C.J. No. 1604, at paragraph 13; Verhelle
v. Canada Post Corp., 2010 FC 416, [2010] F.C.J. No. 481 at paragraphs 6
and 7; Morin v. Canada (Attorney General), 2007 FC 1355 (aff'd 2008 FCA
269), [2007] F.C.J. No. 1741 at paragraph 25.
[17]
While it may be that a decision rendered under
section 41 has a narrow range of acceptable outcomes in the sense that, as a
preliminary screening mechanism the decision is either to deal with the
complaint or not to, the fact that that decision requires a “yes or no” answer
does not change the application of the reasonableness standard. “Just because
there are only two possible outcomes does not mean that any less deference
should be shown to the Tribunal. Nor does it mean that only one option is
reasonable (hence correct) and the other is not” (HBC Imports (c.o.b.
Zellers Inc.) v Canada (Border Services Agency), 2013 FCA 167 at para 9).
[18]
As to the suggestion that the Commission’s Decision
not to deal with the section 7 complaint had a significant legal component as
its reasoning was based solely on its interpretation of Figliola, above,
I cannot agree that this has an impact on the standard of review in this case.
As stated by the Supreme Court in Canada (Canada Human Rights Commission) v
Canada (Attorney General), 2011 SCC 53 at para 24, “In substance, if the
issue relates to the interpretation and application of its own statute, is
within its expertise and does not raise issues of general legal importance, the
standard of reasonableness will generally apply and the Tribunal will be
entitled to deference.”
[19]
Here the Commission was interpreting and
applying subsection 41(1)(d) of its own home statute in arriving at a
discretionary decision as to whether or not it would deal with the Applicant’s
complaint. Accordingly, the standard of review is reasonableness and deference
is owed. Nothing more, nothing less.
ISSUE 1: Was the Commission’s Decision
to dismiss the Applicant’s section 7 CHRA complaint reasonable?
Applicant’s Position
[20]
The Applicant submits that the Commission’s Decision
regarding her section 7 complaint was premised on an improper application of Figliola,
above. In her view, that case stands for the proposition that an unsuccessful
complainant cannot re-litigate his or her human rights complaint in a different
forum. However, in this case the adjudicator did not have the jurisdiction to
apply the CHRA. Thus, the Commission erred in finding that Figliola
applied in this context.
[21]
Although it was replaced by the Public
Service Labour Relations Act (PSLRA) in 2005, the former PSSRA regime
for grievance adjudication in the federal public service is applicable
in this case (Public Service Modernization Act, SC 2003 c 22, s. 61(1)).
The critical distinction between the two regimes is the adjudicator’s power to
apply human rights legislation. Pursuant to section 226(1)(g) of the PSLRA,
adjudicators are expressly authorized to interpret and apply the CHRA and,
pursuant to subsection 226(1)(h), to award remedies set out section 53(2)(e) or
53(3) of the CHRA. This is to be contrasted with PSSRA which, pursuant
to subsection 91(1), limits an adjudicator’s jurisdiction to matters “in
respect of which no administrative procedure for redress is provided in or
under an Act of Parliament”. Thus, PSSRA adjudicators cannot interpret
or apply other statutes including the CHRA.
[22]
In issuing his decision under the PSSRA,
the adjudicator had no jurisdiction to apply the CHRA. Therefore, he did
not address the allegations of systemic discrimination, nor could he award
remedies under section 53 of the CHRA. These include individual and
systemic remedies; compensation for pain and suffering; and, special
compensation for reckless or wilful conduct (MacTavish v Prince Edward
Island, 2009 PESC 18 at para 49; Ontario (Human Rights Commission) v
Shelter Corp., [2001] OJ No 297 (Div Ct) (QL) at para 43 [Shelter Corp.]
; Willoughby v Canada Post Corp. 2007 CHRT 45 at paras 100, 102 [Willoughby]
). The investigator acknowledged that the adjudicator had no jurisdiction to
apply the CHRA and, therefore, could not award damages for pain and
suffering. However, based on Figliola, above, the investigator found
that the Commission must respect the finality of the adjudicator’s decision and,
therefore, should not deal with the complaint.
[23]
The Applicant submits that, as a result, she did
not receive a full determination of her human rights complaint because it was
not possible in the grievance adjudication process. The Commission clearly
erred in concluding that the PSLRB adjudicator had “concurrent jurisdiction to
apply human rights legislation” and, by applying Figliola to her case,
the Commission “effectively denied … [her] access to full redress for the violation
of her human rights.”
[24]
The Applicant referred to prior decisions of
this Court dealing with subsection 41(1)(d) which, similarly to Figliola,
also held that the Commission should decline to deal with complaints if they
have already been disposed of by another administrative decision maker (Canada
Post Corp v Barrette,[2000] 4 FC 145; English-Baker, above; Lawrence,
above, at para 18) but submits that all of these cases are distinguishable
because they involved complainants who were seeking different and better
results before the Commission, which is not the case here. Figliola did
not alter the landscape of subsection 41(1)(d) as demonstrated by the Federal
Court of Appeal’s decision in Canada (Canadian Human Rights Commission) v Canada
(Canada Transportation Agency), 2011 FCA 332 which applied Figiola,
warning against forum shopping and holding that the Commission erred by hearing
the complaint as it had been dismissed in a final decision in another matter.
Respondent’s Position
[25]
The Respondent submits that the Commission’s Decision
to not deal with the section 7 complaint, on the basis that the Applicant’s
allegations were considered by the labour adjudicator and that her complaint
was fully addressed in that forum, was reasonable.
[26]
The Respondent notes that subsection 41(1)
imposes a “screening function” on the Commission to ensure that only those
complaints worthy of being investigated are dealt with. Frivolous or vexatious
proceedings are barred under paragraph 41(1)(d) to “avoid wasting judicial and
institutional resources and imposing unnecessary expenditure on the parties
involved (English-Baker, above, at para 20). To avoid abuse of process,
Parliament has given the Commission the discretion to eliminate such processes
and, unless that discretion is exercised arbitrarily without reasonable grounds,
the courts may not intervene (Morin v Canada (Attorney General), 2007 FC
1355 at paras 31-33). The doctrine of abuse of process is triggered where
allowing the litigation to proceed would violate principles such as “judicial
economy, consistency, finality and the integrity of the administration of
justice (Figliola, above, at paras 25 and 33).
[27]
The Respondent submits that the Applicant’s
complaint of discrimination on the basis of a disability and failure to
accommodate was fully addressed by the labour adjudicator. The adjudicator
thoroughly reviewed the facts and issues relevant to the Applicant’s complaint,
undertook a discrimination analysis and assessed whether she was accommodated
to the point of hardship. The Commission held that the grievance raised
essentially the same allegations as those found in the section 7 CHRA
complaint and that the adjudication of the grievance had addressed the
allegation of discrimination.
[28]
It would be an abuse of process for the section
7 complaint to proceed in the human rights system and be dealt with a second
time, giving rise to the risk of duplicative proceedings and inconsistent
findings (Figliola, above, at para 33). The principles underlying the
provision at issue in Figliola are the same in the present case. The
issue is whether the substance of the Applicant’s complaint has already been addressed
and it has been. The remedies available in each of the procedures for redress
do not have to be identical in order to oust the jurisdiction of the alternate
process (Byers Transport Ltd. v Kosanovich, [1994] FCJ No 943 at para 39
[Byers Transport Ltd]) and achieve the goals of “fairness and finality
in decision-making” and “the avoidance of the relitigation of issues already
decided by a decision-maker with the authority to resolve them” set out in Figliola,
above, at para 25.
[29]
The Respondent concludes that Figliola,
above, is not distinguishable in this case as the complainant is seeking
a better outcome – a better remedy – in a different forum. There is no basis
to disturb the Commission’s Decision under paragraph 41(1)(d) as it falls
within an acceptable range of outcomes.
Analysis
[30]
The adjudicator did not have jurisdiction to
award remedies under the CHRA (Giroux v Treasury Board (Canada Border
Services Agency), 2009 PSLRB 45) and, in that regard, the Applicant did not
receive a full determination and resolution of her human rights complaint. It
was therefore not reasonable for the Commission to summarily dismiss the
section 7 complaint pursuant to paragraph 41(1)(d) as “trivial, frivolous, vexatious or made in bad faith.”
[31]
As stated by the Federal Court of Appeal in Exeter v Canada (Attorney General), 2012 FCA 119 at para 34:
Where a party wishes to litigate issues that have
previously been settled it is open to the Commission to find that the complaint
is "trivial, frivolous, vexatious or made in bad faith". This is so
because the relitigation of issues previously resolved or settled can
constitute an abuse of process, which would permit the relitigation to be
characterized as vexatious.
[32]
In Figliola, above, the Supreme Court
indicated the approach to be taken when determining whether an applicant was
essentially seeking to relitigate a case in a different forum:
[37] Relying on these underlying principles leads to the Tribunal
asking itself whether there was concurrent jurisdiction to decide human rights
issues; whether the previously decided legal issue was essentially the same as
what is being complained of to the Tribunal; and whether there was an
opportunity for the complainants or their privies to know the case to be met
and have the chance to meet it, regardless of how closely the previous process
procedurally mirrored the one the Tribunal prefers or uses itself. All of these
questions go to determining whether the substance of a complaint has been
"appropriately dealt with". At the end of the day, it is really a
question of whether it makes sense to expend public and private resources on
the relitigation of what is essentially the same dispute.
[33]
However, in applying this principle in the
Section 40/41 Report (at para 40, AAR Vol I at 26), the Commission erred in
finding the following:
The complainant has
also asked the Commission to deal with her complaint, because her grievance was
adjudicated under the provisions of the Public Service Staff Relations Act, and
the adjudicator did not have jurisdiction to award her damages for pain and
suffering. However, according the recent decision in Figliola, the
Commission must respect the finality of the decisions made by other
administrative decision-makers with concurrent jurisdiction to apply human
rights legislation where the issues raised in the other process were
essentially the same as the allegations in the complaint before the Commission.
That is the case with this complaint.
[34]
However, the grievance adjudicator in this case
did not, under the PSSRA, have concurrent jurisdiction with the
Commission to apply the CHRA. In particular, he did not have the power
to award damages for pain and suffering, recognized in Shelter Corp.,
above as “compensation for the loss of the right to be free from
discrimination and the experience of victimization.” Those damages are
available before the Commission under section 53 of the CHRA (Willoughby, above, at paras 100, 102 ).
[35]
It is also of note that in Figliola, above
at para 36, Abella J. wrote that in determining whether a matter had been
fully, or appropriately, dealt with in another forum, the human rights body
should “be guided less by precise doctrinal catechisms
and more by the goals of the fairness of finality in decision-making and the
avoidance of the relitigation of issues already decided by a decision-maker
with the authority to resolve them...”. Further, the importance of giving
complainants “a chance to air their grievances before an authorized
decision-maker” was noted at paragraph 49. In other words, in determining
whether an issue has been fully dealt with, the Commission should look at the
substance of the matter and balance fairness with protecting the finality of
the previous decision. In this case, fairness suggests that the matter was not
fully addressed, in the context of a remedy, because the adjudicator lacked the
authority to address a part of the Applicant’s claim.
[36]
The Respondent submits that the principles
underlying the provisions at issue in Figliola are the same as in this
case and that the issue is whether the substance of the Applicant’s complaint
has already been addressed. While I would agree that the principles of
fairness and finality in decision making and the avoidance of unnecessary
litigation of issues already decided do apply, I do not agree that the issue of
jurisdiction is a “red herring”. The very quote from Figliola referred
to by the Respondent, “the avoidance of the relitigation of issues already
decided by a decision-maker with the authority to resolve them” (para 36,
emphasis added), belies the jurisdictional issue as, in this instance, the
arbitrator lacked the authority to award damages for pain and suffering and
therefore resolve that aspect of the claim. The same can be said for the
Respondent’s reliance on Byers Transport Ltd., above:
[39] […] the
complaint (i.e. the factual situation complained of) must be essentially the
same in the other “procedure for redress”. But I doubt that the remedies have
to be as good or better under the other provision in order to oust the
jurisdiction of the adjudicator under paragraph 242(3.1)(b). That paragraph
does not require that the same redress be available under another provision of
the Canada Labour Code or some other federal Act. What it requires is that in
respect of the same complaint there be another procedure for redress. […] I
do not believe that for there to be a “procedure for redress… elsewhere” there
must be a procedure which will yield exactly the same remedies, although no
doubt that procedure must be capable of producing some real redress which could
be of personal benefit to the same complainant.”
[37]
As stated in Boutilier, above, in the
context of section 91 of the PSSRA:
[23] […] If
another administrative procedure for redress is available to a grievor, that
process must be used, as long as it is a “real” remedy. It need not be an
equivalent or better remedy as long as it deals “meaningfully and effectively
with the substance of the employee’s grievance”. […] Differences in the
administrative remedy, even if it is a “lesser remedy”, do not change it to a
non-remedy.
[38]
The factual complaint before both the
adjudicator and the Commission was essentially the same in this case. However,
this is not a situation where the remedies available under one regime or
provision were comparable to those available in another. There was no
authority under the PSRLA to award damages for pain and suffering or
damages for engaging wilfully or recklessly in a discriminatory practice
pursuant to section 53(2)(e) or 53(3) which may, if substantiated, be available
to the Applicant pursuant to the CHRA. Therefore, this is not a lesser
but a non-remedy situation. While the potential for relitigation is
regrettable, it is limited in this case to a consideration of the availability
of the section 53 remedies.
[39]
I would also note that the Section 40/41 Report states
that in considering whether a complaint is frivolous within the meaning of the CHRA,
the Commission may refer to various factors in deciding whether or not to deal
with the complaint under section 41(1)(d). One of these factors is whether
there are remedies available under the CHRA for the alleged acts or
omissions that are the subject of the complaint. There is the potential for
such a remedy in this case that was not available before the labour
adjudicator.
[40]
For these reasons the Commission’s Decision to
dismiss the Applicant’s section 7 CHRA complaint was not reasonable.
ISSUE 2: Was the Commission’s Decision
to dismiss the Applicant’s section 10 CHRA complaint unreasonable?
Applicant’s position
[41]
The Applicant submits that it was unreasonable
for the Commission to have dismissed her section 10 complaint at the preliminary
screening stage on the basis that it was unlikely that her complaint would lead
to a practical result. It was not plain and obvious that paragraph 41(1)(d)
applied to her complaint (Canada Post, above at para 3; Canada (Attorney General) v Maracle, 2012 FC 105 at paras 39, 43; Michon-Hamelin,
above, at para 16).
[42]
The Commission found that after the Applicant
had filed her complaint the CBSA had taken significant steps to comply with the
duty to accommodate including establishing a Policy on the Duty to Accommodate
(the “Policy”) and conducting related training. However, it was not plain
and obvious that these steps were sufficient to remedy a systemic failure to
comply with the duty to accommodate or that the Applicant’s allegations of
systemic discrimination based on disability were remedied by steps taken in
response to an unrelated complaint about discrimination based on family status.
The Policy was developed in response to an order by
the Canadian Human Rights Tribunal in Johnstone v Canada Border Services, 2010
CHRT 20 [Johnstone], related to discrimination on the ground of family
status. While the Commission noted that the Policy addresses the duty to
accommodate generally and not only on grounds of family status, that it
approved the Policy, and, that CBSA’s manager training adopted components of
the training offered by the Commission, the Applicant submits that this does
not conclusively demonstrate that no further systemic remedies would be
required if her complaints were substantiated. Discrimination based on
disability raises unique issues unlikely to be addressed by a general effort to
improve accommodation procedures.
[43]
Further, that the Commission took an overly
narrow view of her systemic allegations implying that it pertained only to a
lack of understanding and support for the duty to accommodate. However, read
in whole, her complaint alleges that the entire process to which she was
subjected was discriminatory and in need of change. Accordingly, if proven,
additional remedies would be required. Nor did the Policy address those
allegations.
[44]
The Applicant submits that the Treasury Board
already had a broad accommodation policy in place. However, as acknowledged by
this Court in regard to her application for judicial review of the Commission’s
Decision concerning her complaint against the Treasury Board, its “failure to
monitor the implementation” of that policy was the gravamen of the Applicant’s
complaint (Panacci v Treasury Board, 2011 PSLRB 72; Panacci v Canada
(Attorney General), 2010 FC 114 at para 64). This Court found that the
Commission erred in not considering the policy’s implementation in its
investigation. Further, that the Treasury Board complaint was closely related
to the CBSA complaint and directed that the two complaints be investigated
together if the CBSA complaint proceeded. Had this been done the Commission
may have determined that combined remedies against the Treasury Board and CBSA
were warranted. This underscores the unreasonableness of concluding that it
was plain and obvious that the CBSA complaint would have no practical result.
Respondent’s Position
[45]
The Respondent submits
that the Commission’s Decision to not deal with the Applicant’s section 10
complaint because it would have no practical effect and was frivolous within
the meaning of the CHRA is not unreasonable given the comprehensive
nature of the CBSA Policy and its related training efforts. The Policy is a
25-page document that outlines the CBSA’s legal obligations related to the duty
to accommodate and establishes a structured process for dealing with
accommodation requests. As of March 2012, the Policy had been introduced to
414 CBSA managers during 38 training sessions held across Canada. Contrary to the Applicant’s assertions, the Policy deals not only with
discrimination and accommodation on the basis of family status but covers all
prohibited grounds of discrimination, including disability.
[46]
In essence, the Respondent contends that the Applicant’s
2004 complaint has been overtaken by subsequent events. While the complaint
stated that “there is a lack of understanding of the duty to accommodate” by CBSA,
a “lack of support for the implementation of the duty to accommodate,” and a need
for “continuous monitoring”, these issues are now addressed through the Policy
and CBSA managerial training sessions.
Analysis
[47]
Here the investigator
in the Section 40/41 Report found that although the grievance adjudicator did
not consider the Applicant’s section 10 complaint, even if proven it was
unlikely to lead to a practical result because the Respondent had already taken
significant steps to improve its compliance with the duty to accommodate. These
steps included the adoption of the Policy and conducting of related training. Therefore,
that aspect of the complaint was frivolous within the meaning of the CHRA
as adjudication would not advance its purposes and it would not be in the
public interest for the Commission to deal with it.
[48]
With respect to the Policy, the Section 40/41 Report indicates that:
•
In Johnstone, above, the Canadian Human
Rights Tribunal ordered CBSA to cease its discriminatory practices against
employees seeking accommodation and to develop an accommodation policy in
consultation with the Commission;
•
The Canadian Human Rights Tribunal examined
CBSA’s new Policy and was satisfied with it;
•
Although the Johnstone case related
specifically to the ground of family status, the new Policy covers all of the
prohibited grounds of discrimination listed in section 3 of the CHRA;
•
Its Policy states that “The objective of this
policy is to promote a work environment that is inclusive and
non-discriminatory, and to ensure a consistent and coordinated approach to
accommodation of its employees in accordance with CHRA”;
•
The Policy defines “Duty to Accommodate” which
includes the statement that “…Needs that must be accommodated to the point of
undue hardship result from the following grounds:….disability…”;
•
The Policy outlines the roles and
responsibilities of employees, managers/supervisors and others including the
National Coordinator, Disability and Accommodation Care Management Program.
These are set out and include monitoring, evaluating and reporting on the
implementation of the duty to accommodate through quarterly status reports and
monitoring of requests for accommodation on an ad hoc basis to ensure the
policy and procedures have been correctly applied. Further, to recommend,
develop and implement communication plans and education, training and awareness
sessions on the duty to accommodate; monitor quarterly reports for trends,
issues and evaluate the effectiveness of the duty to accommodate program; and,
review the policy on an annual basis and revise as required;
•
The Policy outlines recourse steps for employees
whose accommodation requests have been denied and provides direction for
monitoring and reporting including the monitoring of the application of the
Policy and requiring the taking of any corrective measures required to ensure
compliance;
•
As of June 16, 2011 CBSA had held 38 training
sessions across the country and 414 managers had attended the training;
•
By letter of March 13, 2012 CBSA reported to the
Commission that its training adopts many of the components of training offered
by the Commission. Further, that training covers the prohibited grounds of
discrimination, the employer’s duty to accommodate, outlines the roles and
responsibilities of each person in the accommodation process and identifies the
steps of the accommodation process. CBSA also advised that additional training
was being planned for the next year
[49]
The Policy is found in the record. A review of
it supports the Commission’s conclusion. It is also noteworthy that
managers/supervisors are required, amongst other things, to consult with
employees to determine the nature of the accommodation required; engage in an
individualized assessment of the employee’s need for accommodation and address each
request on a case by case basis; take an active role in exploring and
considering options/alternative approaches and solutions to accommodate the
employee; and, to monitor the accommodation plan.
[50]
Based on this, the Commission reasonably
concluded that the systemic allegation contained in the complaint, if proven,
is unlikely to lead to a practical result because CBSA had already taken significant
steps to improve its compliance with the duty to accommodate. The Applicant in
her submissions states that the Policy did not address all of her allegations
and lists other potential remedies that the Commission could order in relation
to her complaint. In my view, it is not realistic to think that the Policy
would encompass the level of detail proposed by the Applicant. However, if
properly implemented and monitored, the Policy in practice should address those
concerns or provide appropriate recourse if that is not the case.
[51]
I am of the view that the Commission’s finding
that the Applicant’s section 10 allegations of systemic discrimination at the
CBSA were unlikely to yield a practical result and, therefore, not to deal with
her section 10 complaint, falls within an acceptable range of outcomes. The Commission’s
Decision was reasonable.
[52]
As to the Treasury Board complaint, this Court
did not direct that it and the CBSA complaint be investigated and reported on together,
if the latter proceeded. Rather, it directed that the Commission consider this
approach. The Section 40/41 Report noted that a decision by the Commission not
to deal with the CBSA complaint, which was the Decision made, would not impact
the Commission’s ability to investigate the complaint against the Treasury
Board. The status of that investigation is unknown to the Court. However, this
Court previously identified that the basis of the complaint was the Treasury
Board’s failure to monitor the implementation of its employment and
accommodation policies. And, as the only issue that is being remitted back to
the Commission based on this application for judicial review is a narrow one,
being whether the Applicant is entitled to any further remedy pursuant to section
53 of the CHRA arising out of the complaint previously considered by the
labour adjudicator, a joint investigation and report may now be of lesser
import.
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