Docket: T-2243-14
Citation:
2016 FC 389
Ottawa, Ontario,
April 7, 2016
PRESENT: The Honourable Mr. Justice Bell
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BETWEEN:
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CATHY MANSLEY
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Cathy Mansley [Cst. Mansley] brings an
application for judicial review pursuant to s 18.1 of the Federal Courts Act,
RSC, 1985, c F-7, from a decision of the Canadian Human Rights Commission
[CHRC] which dismissed her complaint that the Royal Canadian Mounted Police [RCMP]
had discriminated against her on the grounds of disability. Specifically, Cst.
Mansley, contends adverse differential treatment by the RCMP on the basis of
alcoholism and Post-Traumatic Stress Disorder [PTSD]. The CHRC concluded, based
on the Investigation Report completed July 4, 2014, that an inquiry by the
Canadian Human Rights Tribunal [the Tribunal] was not warranted. For the
reasons set out herein I would dismiss the application for judicial review.
II.
Relevant Facts
[2]
Cst. Mansley joined the RCMP in August,
1995. After her basic training she was deployed as a general duty police
officer in Nova Scotia. In 2007 the RCMP recommended Cst. Mansley seek
professional counselling in relation to alcohol use. On or about January 21,
2009, Cst. Mansley arrived at the Tantallon Detachment of the RCMP while off-duty
and under the influence of alcohol. One of her co-workers eventually drove her
home. On the evening of January 30, 2009, Cst. Mansley, while off-duty,
attended a private residence and conducted herself in a manner which made the
occupants feel uncomfortable. Later that evening or early morning on January 31,
2009, Cst. Mansley, while off-duty, was found by police officers in her personal
vehicle while under the influence of alcohol. As a result of that incident she
was charged with having the care or control of a motor vehicle while impaired
by alcohol. Cst. Mansley was involved in subsequent alcohol-related incidents,
one of which resulted in charges for impaired operation of a motor vehicle. From
February 16 to March 13, 2009, and from August 5 to September 8, 2010, Cst.
Mansley followed re-habilitation programs for alcohol dependence. Both treatment programs were financed by the RCMP.
[3]
On or about October 7, 2010, the RCMP suspended
Cst. Mansley's employment with pay. As at the date of this judicial review
hearing Cst. Mansley remained suspended with pay. I also note that she suffered
no loss of income during her attendance at the two treatment programs. On April
29, 2011, the Adjudication Board constituted pursuant to the discipline
procedures set out in the Royal Canadian Mounted Police Act, RSC, 1985,
c R-10 rendered its decision regarding Cst. Mansley's conduct in relation to
the incident of January 30 and 31, 2009. The Adjudication Board imposed a
reprimand and the forfeiture of 10 days’ pay, along with a recommendation for
continued counselling until such time as the RCMP Health Services Officer
deemed otherwise. In its decision, the Adjudication
Board noted that Cst. Mansley's PTSD and alcohol abuse were mitigating factors
considered in coming to its decision.
[4]
On November 30, 2011, the CHRC received a
complaint from Cst. Mansley alleging the RCMP discriminated against her based
on disability (alcoholism and PTSD) as a result of its application of the disciplinary
process in relation to the incident of January 30 and 31, 2009. Specifically,
she alleged the RCMP treated her in an adverse differential manner when it
applied its Code of Conduct without taking into account her disabilities, and by
failing in its duty to accommodate.
[5]
Upon receipt of Cst. Mansley’s complaint, the
matter was referred to an investigator pursuant to section 43(1) of the Canadian
Human Rights Act, RSC, 1985, c H-6 [the Act], who completed the
Investigation Report on July 4, 2014. The investigator provided both Cst. Mansley
and the RCMP an opportunity to make submissions regarding the Investigation
Report, which they both did. The parties were also provided the opportunity to
reply to each other’s submissions. Again, both parties took advantage of this
opportunity.
[6]
By letter dated October 1, 2014, the CHRC
informed Cst. Mansley of its decision to dismiss the complaint.
III.
Legislative Scheme
[7]
Section 43(1) of the Act provides that the CHRC
may designate an investigator to investigate a complaint. The investigator
submits his or her findings, accompanied by the responses of the parties, to
the CHRC pursuant to section 44(1) of the Act. In accordance with section 44(3)
of the Act, the CHRC may refer the matter to the Tribunal or dismiss the complaint.
Attached hereto as Appendix ‘A’ are the relevant sections of the Act.
IV.
Impugned Decision
[8]
Since the CHRC’s decision provides only brief
reasons and upheld the recommendation of the Investigator against referring the
matter to the Tribunal, I shall rely on the Investigation Report as the reasons
of the CHRC (Canada (Attorney General) v Sketchley, 2005 FCA 404, [2005]
FCJ No 2056 at para 37; Shaw v Royal Canadian Mounted Police, 2013 FC
711, [2013] FCJ No 772 at para 44 [Shaw]; O’Grady v Bell Canada, 2015
FC 1135, [2015] FCJ No 1165 at para 39).
[9]
The Investigator reports having reviewed the
parties’ submissions, all documentary evidence as well as having conducted
telephone interviews with several individuals. The Investigator concluded Cst.
Mansley alledged adverse differential treatment by the RCMP’s application of
its Code of Conduct without taking her disability into account; by the RCMP’s
failure to accommodate her; and by the requirement that she report daily to the
Halifax detachment as a condition of her suspension with pay.
[10]
In determining the merits of Cst. Mansley’s
contentions, the Investigator set out a three-step framework. Step 1 required
the Investigator examine whether Cst. Mansley was adversely impacted in
employment. In the event an allegation of discrimination were made out at step
1, the Investigator would proceed to step 2 to assess Cst. Mansley’s allegation
of a failure to accommodate. Depending upon the Investigator’s findings at step
2, the Investigator may proceed to step 3 to consider any policy, rule,
practice or standard relied on by the RCMP and its rational connection and
necessity to employment.
[11]
With respect to step 1, the Investigator
concluded that Cst. Mansley’s behavior which led to discipline was linked, in
part, to her disabilities. The parties did not dispute this conclusion.
[12]
With respect to step 2 of the investigation, the
Investigator found that Cst. Mansley required accommodation, including various
periods of leave, psychological services and restricted or administrative duties.
The Investigator concluded that the RCMP provided Cst. Mansley with accommodation
that was medically required, including: (i) various periods of leave; (ii)
psychological services; and (iii) restricted or administrative duties.
[13]
With respect to Cst. Mansley’s contention that
the RCMP ought to have accommodated her rather than applying discipline, the
Investigator concluded that Cst. Mansley failed to provide specific information
regarding the accommodation she required. Furthermore, the Investigator
recognized that although the jurisprudence requires an employer consider the role
a disability may have played in the impugned conduct, an employer is not
prevented from applying discipline. The Investigator concluded that the RCMP took
Cst. Mansley’s disability into consideration at the time it imposed discipline.
[14]
With respect to Cst. Mansley’s contention that
the RCMP failed to accommodate her when it imposed a requirement that she
report daily to the Halifax detachment, the Investigator noted the existence of
conflicting expert opinion in that regard. Dr. John Sperry supported the change
in reporting while RCMP Psychologist Gilles Chiasson was of a different view. The
Investigator concluded it was reasonable for the RCMP to accept the opinion of RCMP
Psychologist Chiasson since he had previously treated Cst. Mansley and was
familiar with her personal circumstances.
[15]
In a letter dated October 1, 2014, the
CHRC informed Cst. Mansley of its decision to follow the recommendation found
in the Investigation Report. It concluded: “having
regard to all the circumstances of the complaint, an inquiry by a Tribunal is
not warranted.”
V.
Issues
[16]
Upon reviewing the written submissions of the
parties and having heard Cst. Mansley’s oral arguments, which elaborated
significantly upon her written submission, I would frame the issues as follows:
- Did the CHRC
meet the requirements of procedural fairness?
- Was the CHRC’s
decision to dismiss Cst. Mansley’s complaint reasonable?
VI.
Standards of Review
[17]
Cst. Mansley raises issues related to an
apprehension of bias and procedural fairness. Those issues are to be assessed
on a correctness standard (Phipps v Canada Post
Corporation, 2015 FC 1080, [2015] FCJ No
1079 at para 30; Canada (Attorney General)
v Davis, 2009 FC 1104, [2009] FCJ No 1346
at para 21; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009]
1 SCR 339 at para 43). When reviewing on
the correctness standard, this Court is not required to show deference to the
decision maker: Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir].
[18]
Since the CHRC’s decision not to proceed to an
inquiry is discretionary in nature (Halifax (Regional Municipality) v Nova
Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 at para 25;
Keith v Canada (Correctional Service), 2012 FCA 117, [2012] FCJ No 505
at para 43 [Keith]), it is subject to significant deference and is
reviewed on the reasonableness standard (Halifax, above at para 27; Keith,
above at para 44; Shaw, above at para 25). In Halifax at para 53,
Justice Cromwell concluded that “the reviewing court
should ask itself whether there is any reasonable basis in law or on the
evidence to support that decision”. This Court must consider whether the
CHRC’s decision is justified, transparent and intelligible, and whether it “falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir, above
at para 47).
VII.
Analysis
A.
Procedural Fairness Requirements
[19]
Cst. Mansley contends the Investigator demonstrated
an apprehension of bias by failing to conduct a neutral investigation. She
contends the Investigator accepted “most of what the
respondent told her as reasonable and truthful without questioning it”. She
specifically contends that the Investigator: (1) failed to personally interview
Dr. Sperry; (2) failed to consider a pamphlet produced by a law firm titled Accommodating
Mental Illness in the Workplace: A practical Guide; (3) failed to obtain a
copy of a report provided by her to the RCMP regarding workplace hazards (in
this report Cst. Mansley apparently refers to stress and headaches she was
experiencing sometime between 2005 and 2008); and (4) failed to refer to a
report prepared by Dr. Robert Konopasky related to her PTSD which is dated June
30, 2013. That report obviously post-dates the discipline hearing which is the
subject of the complaint and the filing of the complaint. The test for
reasonable apprehension of bias is set out in Committee for Justice and
Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369. See also Miller
v Canada (Canadian Human Rights Commission), [1996] FCJ No 735, 112 FTR 195
at para 14.
[20]
I will respond briefly to each of the
contentions made by Cst. Mansley as it relates to reasonable apprehension of
bias or procedural fairness, as she has framed them. First, there is no
requirement that the Investigator interview Dr. Sperry. The Investigator had
the benefit of Dr. Sperry’s opinion regarding the reporting requirements
imposed upon Cst. Mansley during her suspension with pay and those of RCMP
Psychologist Chiasson. She was entitled to determine that issue based upon the
material before her. The Investigator is the master of her procedure provided she
demonstrates fairness to both parties. The investigator provided ample opportunity
to Cst. Mansley and the RCMP to make submissions, and was entitled to assess
and weigh the material before her. This is not a termination case in which the
standard of procedural fairness might be more elevated. I find the approach
taken by the Investigator meets the requirements of procedural fairness. Second,
there is no requirement on the part of the Investigator to consider promotional
materials prepared by a law firm regarding a topic with which the Investigator
is surely familiar. The Investigator is owed considerable deference in how she
conducts the investigation. While I question whether the correctness standard
applies to this aspect of the case advanced by Cst. Mansley, I am satisfied the
correct approach was adopted and, in any event, it meets the test of
reasonableness. Third, while the Investigator did not seek out a copy of the
workplace hazardous report prepared by Cst. Mansley, she (the Investigator) specifically
refers to it in her Investigation Report and accepts the truthfulness of what
Cst. Mansley had to say about its contents. It cannot be said that the
Investigator’s treatment of this material demonstrates any bias or apprehension
of bias. Finally, given that Dr. Konopasky’s report post-dates both the disciplinary
hearing findings which were the subject of the human rights complaint and the
filing of the complaint itself, the Investigator possessed the jurisdiction to
accept or reject it. Again, while I question whether the standard of review for
this aspect of Cst. Mansley’s contention is correctness, I find the approach
was correct, and in any event, it meets the test of reasonableness. There is no
violation of procedural fairness, nor any apprehension of bias, in the
treatment afforded to Dr. Konopasky’s report.
B.
Reasonableness of the CHRC’s Decision
[21]
In addition to the above-noted bias and
procedural fairness arguments advanced by Cst. Mansley, she contends the Investigator’s
decision is tainted with unreasonableness on several bases. I would summarize them
as follows: Cst. Mansley contends the Investigator did not have the necessary
expertise to conduct this investigation and the reasons are inadequate.
[22]
As stated earlier, the procedure adopted by the
Investigator must be afforded significant deference. Cst. Mansley is challenging
the Investigator’s expertise and knowledge in relation to the issue of PTSD and
alcoholism. Investigators are presumed to have the necessary expertise and are
better equipped than this Court to make factual determinations (Thomas v
Canada (Attorney General), 2013 FC 292, [2013] FCJ No 319 at para 40; Clark
v Canada (Attorney General), 2007 FC 9, [2007] FCJ No 20 at par 65). As
noted above, the Investigator took into consideration the evidence and opinion
from Dr. Sperry and RCMP Psychologist Chiasson. This assessment of the evidence
falls squarely within the CHRC’s and the Investigator’s area of expertise. It
is the role of the CHRC and the Investigator assigned to the file to determine
the probative value of evidence and to draw the appropriate conclusions from
the available information (Lamolinaire v Bell Canada, 2012 FC 789,
[2012] FCJ No 1026 at para 31). As contended by the RCMP, the CHRC, in
following the recommendation of the Investigator, acted in accordance with its
legislative authority pursuant to s 44(3)(b)(i) of the Act. In deciding whether
the matter should be referred to the Tribunal, the CHRC also took into
consideration the submissions of the parties, including the submissions made in
response to the Investigation Report.
[23]
With respect to the adequacy of the reasons, it
is trite law that adequacy of reasons is not a stand-alone ground of review (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] SCR 708 at para 14). In the present case the Investigator
prepared a detailed 19 page summary of her investigation and conclusions. Disagreement
with the conclusion reached by the CHRC is not sufficient to demonstrate that
the decision is unreasonable. I am of the view the Investigator’s determination
was justified, transparent and intelligible (Dunsmuir, above at para
47).
VIII.
Conclusion
[24]
In my view, the decision of the CHRC,
based on the findings of the Investigation Report, meets the standard of
reasonableness and “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir, above at para 47). I am also satisfied that the Investigator
conducted a thorough and neutral analysis based on the various sources of
information available to her and there was no bias, apprehension of bias or
breach of procedural fairness. The intervention of this Court is not warranted.
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