Docket: T-1207-14
Citation:
2015 FC 230
Ottawa, Ontario, February 23, 2015
PRESENT: The
Honourable Mr. Justice Rennie
|
BETWEEN:
|
|
JASYN EVERETT WALSH
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This judicial review application arises from a
decision of the Canadian Human Rights Commission (the Commission) to dismiss
the applicant’s complaint against Transport Canada (TC). The applicant alleged
that TC had discriminated against him on the basis of disability by first
refusing to provide him with a Marine Medical Certificate (Certificate), and thereafter
providing him with a restricted Certificate. For the reasons that follow the
application is granted.
II.
Facts
A.
Background to the human rights complaint
[2]
The applicant is Jasyn Everett Walsh, a seafarer
who sought to obtain a Marine Medical Certificate in or around June, 2010.
[3]
Under the Marine Personnel Regulations,
SOR/2007-115 (Marine Personnel Regulations), the Minister of Transport
issues Certificates to seafarers. The Certificate confirms the holder’s
physical and mental fitness. It is essential to employment as a seafarer – no
one can work without a Certificate and no one can employ a seafarer without a
Certificate (see Marine Personnel Regulations subsection 269(1)). A
Certificate may, however, be issued with restrictions. The Marine Personnel
Regulations do not include a list of physical and/or mental disabilities
that may prevent a seafarer from obtaining a Certificate; nor do they list any
disabilities that would result in a seafarer obtaining a restricted
Certificate.
[4]
In order to assess whether the applicant was fit
to hold a Certificate, he was examined by TC Marine Medical Examiner Dr. L.A.
Leong. After the examination, Dr. Leong had concerns about the applicant’s
health. He contacted Dr. Peter Janna, a Senior Marine Medical Officer. Dr.
Janna shared Dr. Leong’s concerns regarding the applicant’s fitness for
seafaring duty. Consequently, on or around August 31, 2010, TC informed the
applicant that he was unfit to hold a Certificate. The decision letter cited “Alcohol Dependence, Major Depression, and a Developmental
Disorder among other things” as the reasons for the denial of the
Certificate.
[5]
The applicant appealed TC’s decision to the
Transportation Appeal Tribunal of Canada (TATC). On November 21, 2011, TATC
confirmed the decision to refuse to issue a Certificate to the applicant as he
had not demonstrated that he met the necessary medical requirements.
[6]
Subsequent to the TATC decision, on December 3,
2011, the applicant emailed Dr. Janna to ask what requirements he would have to
meet to be considered for a Certificate. Dr. Janna explained that the
applicant’s medical history was of concern and until the applicant’s health
issues were addressed and managed, the applicant would not be deemed fit to
hold a Certificate. Dr. Janna also recommended that the applicant contact his
family doctor and be referred to a specialist to address his issues. Dr. Janna
concluded by stating that only after such steps were taken would the applicant
be allowed to undergo another Marine Medical Examination, and only upon TC’s
satisfaction that the applicant’s medical conditions no longer posed a safety
risk would TC “consider the possibility of issuing”
a Certificate.
[7]
On December 9, 2011, the applicant again wrote
to Dr. Janna to advise that his medical issues, specifically his alcoholism,
were being addressed and that he hoped to be found fit to hold a Certificate in
the very near future. The applicant reapplied for a Certificate, and on or
around May 29, 2012, Dr. Leong again examined the applicant and found that he
was fit with two limitations; no bridge watchkeeping; and the certification
would be limited to three months. Consequently, on June 8, 2012, the applicant
was issued a three-month provisional restricted Certificate with the restriction
of “no watchkeeping duties.”
[8]
In October, 2012, TC issued an unrestricted
Certificate to the applicant.
B.
The applicant’s human rights complaint
[9]
On June 4, 2012, the applicant filed a complaint
against TC with the Commission alleging that the applicant had been
discriminated against by TC on the basis of disability. The complaint was
founded both on the initial refusal to issue a Certificate on August 31, 2010
(the Complaint) and the second provisional Certificate of May, 2012. In
response to the applicant’s complaint, the Commission sent letters to TC and
the applicant asking both parties to provide position statements, and both
parties provided a response to the Commission in June, 2012.
[10]
On January 29, 2013, a Section 40/41 Report was
issued by the Commission recommending that the Commission not deal with the
Complaint as it was vexatious pursuant to section 41(1) of the Canadian
Human Rights Act, RSC 1985, c H-6 (the Act). Specifically, the
Section 40/41 Report concluded that the issues raised in the Complaint had
already been dealt with before the TATC and the applicant had since been issued
an unrestricted Certificate. The Commission provided both the applicant and TC
with the opportunity to submit written comments on the Section 40/41 Report. On
February 14, 2013 the applicant wrote to the Commission explaining why he
disagreed with the Section 40/41 Report’s conclusions. In his response, the
applicant also identified TC’s May 2012 decision to issue the applicant a
restricted “No Watchkeeping” Certificate as discriminatory. I note that it was
not contested that this restriction had a significant impact on the applicant’s
employment opportunities.
[11]
In response to the applicant’s comments, the
Commission issued a Supplementary Report on May 13, 2013. The Supplementary
Report also recommended that the Commission not pursue the Complaint pursuant
to section 41(1) of the Act on the basis that the Complaint was
vexatious. On June 3, 2013, the applicant once again submitted written
comments to the Commission in response to the Supplementary Report. On June
14, 2013, the Commission wrote a letter to TC, again providing an opportunity
for TC to comment on the applicant’s submission.
[12]
On July 24, 2013, the Commission rendered a
decision stating it would deal with the Complaint under subsection 41(1) of the
Act. The reasons for decision explained that the Commission was “persuaded by the submissions of the complainant, neither of
which was responded to or challenged by the respondent, that the complaint
appears to have merit and is not obviously groundless.” On August 26,
2013, the Commission wrote to TC asking for TC’s position on the applicant’s allegations,
and TC provided written comments on September 25, 2013. The applicant was then
provided with a summary of TC’s position, and provided his comments in response
to this summary on December 3, 2013.
[13]
The Commission issued its Investigation Report
on January 20, 2014. The Investigation Report noted that TC had imposed
requirements on the applicant’s employment by requiring that in order to obtain
a Certificate a seafarer must be physically and mentally fit. The
Investigation Report noted that the fitness requirement did not take into
account the applicant’s past maritime services and his ability to do the work
of a seafarer, including standing watch. However, the Investigation Report
ultimately recommended that the Complaint be dismissed pursuant to subparagraph
44(3)(b)(i) of the Act. The reasons for this recommendation included:
(1) TC treated the applicant in an adverse differential manner by failing to
accommodate his disability; (2) the respondent has a bona
fide justification (BFJ) based on safety for its
rules covering seafarers and alcohol dependence; and (3) the rules accommodated
seafarers with a history of alcohol dependence.
[14]
On April 15, 2014, the Commission informed the
applicant and TC via letter of the Commission’s decision pursuant to
subparagraph 44(3)(b)(i) of the Act to dismiss the Complaint. The
Commission’s reasons for this decision were derivative of the Investigation
Report, specifically stating:
Before rendering the decision, the
Commission reviewed the report disclosed to you previously and any
submission(s) filed in response to the report. After examining this
information, the Commission decided, pursuant to subparagraph 44(3)(b)(i) of
the Canadian Human Rights Act, to dismiss the complaint because:
• the evidence does not support that
the respondent treated the complainant in an adverse differential manner by
failing to accommodate his disability;
• the evidence supports that the
respondent has a bona fide justification based on safety for its rules
covering seafarers and alcohol dependence; and
• the evidence supports that these
rules do accommodate seafarers with a history of alcohol dependence.
[15]
In his memorandum of fact and law, the applicant
cites both procedural and substantive errors on the part of the Commission. The
respondent identifies the two issues as whether the Commission breached its
duty of procedural fairness, and whether the decision of the Commission was
reasonable. However, in my view it is clear that this application turns on a
single issue: whether the Investigation Report failed to properly apply the
duty to accommodate test as articulated by the Supreme Court of Canada in British
Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3
SCR 3 (Meiorin) and British Columbia (Superintendent of Motor
Vehicles) v British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (Grismer).
IV.
Relevant legislation
[16]
The purpose of the Act as stated in
section 2 is to ensure individuals are free from discriminatory practices based
on a prohibited ground. The Act’s prohibited grounds of discrimination
include “disability”, which is defined at section 25 as including a “previous or existing dependence on alcohol” The Act
specifically prohibits discrimination based on disability in regards to a
service at section 5:
|
Discriminatory Practices
|
Actes Discriminatoires
|
|
5. It is a discriminatory practice in the provision of goods,
services, facilities or accommodation customarily available to the general
public
|
5. Constitue un acte discriminatoire, s’il est fondé sur un motif
de distinction illicite, le fait, pour le fournisseur de biens, de services,
d’installations ou de moyens d’hébergement destinés au public :
|
|
(a) to deny, or to deny access to, any such good, service, facility
or accommodation to any individual, or
|
a) d’en priver un individu;
|
|
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
|
b) de le défavoriser à l’occasion de leur
fourniture.
|
[17]
Subsection 15(1)(g) of the Act explains
that it is not a discriminatory practice if there is a BFJ for that denial or
differentiation. However, subsection 15(2) clarifies that in order to have a
BFJ, the service provider must accommodate the needs of the individual up to
the point of undue hardship:
|
(2) For any practice mentioned in paragraph (1)(a) to be
considered to be based on a bona fide occupational requirement and for any
practice mentioned in paragraph (1)(g) to be considered to have a bona fide
justification, it must be established that accommodation of the needs of an
individual or a class of individuals affected would impose undue hardship on
the person who would have to accommodate those needs, considering health,
safety and cost.
|
(2) Les faits prévus à l’alinéa (1)a) sont des exigences
professionnelles justifiées ou un motif justifiable, au sens de l’alinéa
(1)g), s’il est démontré que les mesures destinées à répondre aux besoins
d’une personne ou d’une catégorie de personnes visées constituent, pour la
personne qui doit les prendre, une contrainte excessive en matière de coûts,
de santé et de sécurité.
|
A.
Mootness
[18]
Mootness is not raised and is not in issue. The
applicant contends that he was discriminated against for a specified period of
time. While the fact that the alleged discriminatory practice was cured by the
ultimate grant of an unrestricted certificate it does not extinguish the
underlying factual allegation of discrimination. Put otherwise, the refusal of
a bar to grant entry to a patron on the basis of colour is not moot simply
because entry is granted on a subsequent occasion.
B.
The appropriate standard of review
[19]
Before commencing a standard of review analysis,
I note that there is no doubt that the Commission has broad discretion,
pursuant to subsection 44(3)(b)(i), to dismiss complaints where it is satisfied
that further inquiry is not warranted. In Bell Canada v Communications,
Energy and Paperworkers Union of Canada, [1999] 1 FC 113 (CA) at para 38,
the Federal Court of Appeal observed that “the Act
grants the Commission a remarkable degree of latitude when it is performing its
screening function on receipt of an investigation report.” Parliament
did not intend this Court to intervene lightly in the decisions of the
Commission: Hérold v Canada (Revenue Agency), 2011 FC 544 at para 33.
[20]
Nevertheless, the standard of review is
dependent on the nature of the question to be decided. In this case, the
determinative issue is whether the Investigation Report, and therefore the
Commission, applied the proper legal test. This issue is a question of law
reviewable on the correctness standard. In adopting the correctness standard,
the reviewing court “will not show deference to the
decision maker’s reasoning process; it will rather undertake its own analysis of
the question”: Dunsmuir v New Brunswick, 2008 SCC 9 at
para 50.
[21]
I note parenthetically that I am conscious of
the decision in Chopra v Canada (Attorney General), 2007 FCA 268, where
the Federal Court of Appeal concluded that the standard of review of a human
rights tribunal on questions of law will not always be correctness and will
call for deference “on those questions of law with
which it is most intimately familiar”: Chopra at para 56; Brown
v Canada (National Capital Commission), 2009 FCA 274. Further, in Slattery
v Canada (Human Rights Commission), [1994] 2 FC 574 (TD); aff’d [1996] FCJ
No 385 (FCA), the Federal Court held that in the context of procedural fairness
and Commission decisions ““[i]t should only be where
unreasonable omissions are made, for example where an investigator failed to
investigate obviously crucial evidence, that judicial review is warranted.”
More recently, in Attaran v Canada, 2015 FCA 37, the Court of Appeal
stated that “the findings of fact made by the CHRC are
to be reviewed on the standard of reasonableness. If such findings are
reasonable, then the question will be whether the decision to dismiss the
complaint was reasonable, bearing in mind that the decision resulted in a
termination of the matter and therefore the range of possible, acceptable
outcomes may be narrower.”
[22]
Accordingly, even if the appropriate standard of
review is reasonableness, the failure to apply the controlling legal test is
also unreasonable. That is, the failure to analyze accommodation up to the
point of undue hardship was both incorrect and unreasonable.
C.
The Commission failed to apply the Meiorin test
[23]
The applicant alleges that TC discriminated
against him by treating him in an adverse differential manner by failing to
accommodate his disability to the point of undue hardship. In human rights
complaints, the onus is first on the complainant to establish a prima facie case of discrimination: Ontario
(Human Rights Commission) v Simpson Sears Ltd., [1985] 2 S.C.R. 536 at 558. After
a prima facie case of
discrimination is made out under section 5 of the Act, the burden then
shifts to the respondent to establish on a balance of probabilities a BFJ for
the discriminatory practice. The respondent must show that he or she has taken
reasonable steps to accommodate the individual as are open to him or her
without undue hardship, considering health, safety and cost.
[24]
The Investigation Report found that the
applicant had established a prima facie case of discrimination under section 5 of
the Act. Specifically, the Investigation Report concluded that TC had
imposed requirements or restrictions on the applicant’s employment, because in
order to obtain a Certificate a seafarer must be physically and mentally fit. This
fitness requirement did not take into account the applicant’s past maritime
service, nor his ability to do the work of a seafarer, including standing
watch. The Investigation Report also concluded that the fitness requirement
also disadvantaged the applicant since he was not able to obtain the Certificate
because of his alcohol use, and the adverse effects to the applicant were related
to the ground of disability.
[25]
With prima facie discrimination established, the Investigation Report considered
whether there was a BFJ for the discriminatory practice. It is here where the
Investigation Report proved deficient. The Investigation Report failed to
fully assess whether TC had accommodated the applicant up to the point of undue
hardship. That is, the Investigation Report failed to properly apply the third
criteria of the analytical framework set out in Meiorin and Grismer.
In order for a respondent to establish that a discriminatory practice has a
BFJ, the respondent must prove on a balance of probabilities that its practice
satisfies three criteria:
(1) It adopted the standard for a purpose or
goal that is rationally connected to the function being performed;
(2) It adopted the standard in good faith,
in the belief that it is necessary for the fulfillment of the purpose or goal;
and
(3) The standard is reasonably necessary to
accomplish its purpose or goal, in the sense that the defendant cannot
accommodate persons with the characteristics of the claimant without incurring
undue hardship: Grismer at para 20.
[26]
The Investigation Report properly considered criteria
1 and 2 of the Meiorin/Grismer test; however, the Investigation Report
did not address whether TC satisfied its onus to establish criteria 3.
[27]
First, the Investigation Report analyzed whether
TC denied the applicant required accommodation, and found that TC did
accommodate the applicant once it had evidence that his alcohol dependence was
under control. The Investigation Report then outlined the unwritten and
written rules and practices relied on by TC, including the written rule in the Marine
Personnel Regulations that a seafarer must be physically and mentally fit
to work in a safety critical occupation, and the unwritten practice that an
alcohol dependent applicant, not in verifiable sobriety and treatment, is
ineligible for a Certificate. There is also an unwritten practice that an
alcohol dependent applicant, who can provide verifiable evidence of sobriety
and treatment, may be eligible for a restricted Certificate.
[28]
Further, the applicant argued that TC
discriminates against alcohol dependent seafarers by imposing strict No
Watchkeeping restrictions compared to seafarers with other disabilities. For
example, seafarers with other medical limitations, such as a cerebral aneurysm,
have fewer restrictions associated with them than alcohol dependence. The
Investigation Report did not address the applicant’s arguments in this regard.
[29]
The Investigation Report then considered step 1
of the Meiorin test: whether these written and unwritten rules and
practices were adopted for a purpose that was rationally connected to the
service. The Investigation Report concluded that the rules and practices were
adopted to ensure marine safety, and specifically to ensure that those working
in safety critical positions as seafarers with Watchkeeping are fit to perform
their duties.
[30]
Step 2 of the Meiorin test was then
considered. At paragraph 42 of the Investigation Report, the Commission
concluded that there is “no reason to doubt” that
TC adopted the rules in a good faith belief that they contribute to marine
safety.
[31]
Finally, the Investigation Report went on to
consider the first half of step 3 of the Meiorin test. The
Investigation Report questioned whether TC had a “[BFJ]
for its rules, considering health, safety and cost.” However, the
Investigation Report did not analyze, as was required, whether TC had
accommodated persons with the characteristics of the applicant without
incurring undue hardship. Specifically, under the controlling jurisprudence of
the Supreme Court of Canada the Investigation Report was required to analyze
undue hardship in terms of both the initial refusal by TC to issue a
Certificate on August 31, 2010, as well as undue hardship in the context of the
Certificate issued on June 8, 2012, with the restriction of No Watchkeeping.
[32]
The lack of an undue hardship analysis in the
context of the June 8, 2012 restricted Certificate is problematic, given that
at the time the restricted Certificate was issued the applicant had commenced
sobriety and treatment. The Investigation Report failed to consider ways in
which TC may have accommodated the applicant, such as imposing a No Lone
Watchkeeping restriction.
[33]
In my view, the failure to analyze whether TC
could accommodate persons with the characteristics of the applicant without
incurring undue hardship was incorrect and determinative of this application.
D.
The remaining issues
[34]
In light of the above, it is not necessary to
consider the applicant’s procedural fairness arguments regarding document
disclosure, adequacy of reasons, and the right to be heard.
VI.
Conclusion
[35]
Much of the Investigation Report is
unassailable, and indeed, two of the three Meiorin steps were fully
applied. The failure to consider and apply the third component of the test in
its entirety, namely whether TC had accommodated the applicant up to the point
of undue hardship, was incorrect and unreasonable. The matter is therefore
remitted to the Commissioner for re-determination of the third step in the Meiorin
test.
[36]
In reaching this conclusion I am mindful of the
obligation of a court to read the decision under review with a view to
upholding it (Newfoundland and Labrador Nurses' Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62), and to draw inferences or bridge
gaps in the reasoning where appropriate. Here, however, each of the steps in
the Meiorin test is critical, and the Investigation Report, even when
given the most generous reading, does not demonstrate that the question of
accommodation to the point of hardship was considered, explicitly or otherwise.
Email this Content