Date: 20120503
Dockets: A-115-11
A-162-11
Citation: 2012 FCA 135
CORAM: SHARLOW
J.A.
PELLETIER J.A.
STRATAS
J.A.
BETWEEN:
DONNA CASLER
Appellant
and
CANADIAN NATIONAL RAILWAY
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
Donna
Casler filed a complaint with the Canadian Human Rights Commission alleging
that the respondent Canadian National Railway (“CNR”) had discriminated against
her in the course of her employment by subjecting her to adverse differential
treatment on the basis of disability and sex. An investigator prepared a
report, concluding that the complaint should be dismissed. The Commission
agreed and dismissed the complaint.
[2]
Ms.
Casler’s application to the Federal Court for judicial review of the
Commission’s decision was dismissed. Before this Court is an appeal of the
judgment dismissing her application for judicial review (2011 FC 148), as well
as an appeal of a related judgment (2012 FC 287) holding Ms. Casler liable to
CNR for costs in the Federal Court in the amount of $1,000.
[3]
The
principal issue in the Federal Court was the adequacy of the investigation of
Ms. Casler’s complaint. That is also the principal issue in this Court.
For the reasons that follow, I have concluded that the investigation was not
adequate, and that these appeals should be allowed.
The legal test for adequacy of an investigation
[4]
The
leading authority on the question of the adequacy of an investigation by the
Commission is the decision of Justice Nadon in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, affirmed
(1996), 205 N.R. 383 (F.C.A.). For the purposes of this appeal, the relevant
part of the legal test is thoroughness, described by Justice Nadon as follows
(my emphasis):
49 In order for a fair basis to exist for the [Commission]
to evaluate whether a tribunal should be appointed pursuant to paragraph
44(3)(a) of the Act, I believe that the investigation conducted prior to this
decision must satisfy at least two conditions: neutrality and thoroughness.
…
56
Deference must be
given to administrative decision-makers to assess the probative value of
evidence and to decide to further investigate or not to further investigate
accordingly. It should only be where unreasonable omissions are made, for
example where an investigator failed to investigate obviously crucial evidence,
that judicial review is warranted. Such an approach is consistent with the
deference allotted to fact-finding activities of the Canadian Human Rights
Tribunal by the Supreme Court in the case of Canada (Attorney General) v.
Mossop, [1993] 1 S.C.R. 554.
[5]
It is
axiomatic that a decision of the Commission that simply adopts an
investigator’s report and recommendations cannot stand if it is established
that the investigator failed to investigate obviously crucial evidence.
Analysis
[6]
In this
case, the Federal Court judge did not accept Ms. Casler’s submissions that the
investigation was inadequate. However, he assessed those submissions solely on
the basis of procedural fairness, without considering whether the record raised
an unreasonable omission in the investigation, an omission that had to be
addressed before the Commission could make a screening decision about Ms.
Casler’s complaint. In my view, the failure of the judge to consider that
question led him to an erroneous conclusion about the adequacy of the
investigation.
[7]
Ms. Casler
was an employee of CNR from March 12, 1981 to September 28, 2006. She worked
initially as a brakeman and, until October 13, 1998, as a locomotive engineer.
That position ended because of technological advancements. In October of 1998,
she was diagnosed with fibromyalgia and chronic fatigue syndrome. From October
14, 1998 to August 1, 1999, she was on sick leave. On August 1, 1999, she
returned to work as a brakeman. At that time, her doctors and CNR’s doctors
agreed that she should avoid heavy work. She says that the work of brakeman was
too difficult for her during this period, with the result that she missed some
shifts. She was again on sick leave from December 11, 1999 to March 24, 2000.
To this point, the facts are undisputed. Many of the remaining facts are in
dispute to some degree.
[8]
On June
30, 2000, CNR offered Ms. Casler a position that involved operating a weed
trimmer. She stopped doing that work after two days on the advice of her
physician because the physical demands of the work caused her condition to
deteriorate. On July, 6, 2000, CNR offered Ms. Casler light duty work as a
flagperson, which was accepted. It appears that she was able to do that work.
This event is important because it indicates that at this point in time, CNR
recognized a duty to accommodate Ms. Casler.
[9]
Ms.
Casler’s work as a flagperson came to an end on August 25, 2000. Ms. Casler’s
allegation as to what she was told on that date is recounted as follows in her
original complaint:
On August 25, 2000, I was
informed that the flagperson job was over and that there were no other jobs
available to accommodate my restrictions and limitations. I found this to be
strange as I was aware of other individuals who were being accommodated in
light duty and other positions. One of the guys I was working with on the
weed-eating duties, Bill Selby, was also in need of accommodation due to a
heart condition, and he was kept on and continued to be accommodated until he
got a retirement package, but I was told there were no duties available for me.
I think that the reason I was treated differently from Bill Selby was partly
because of the nature of my disability and partly because I am female.
[10]
On
September 3, 2000, Ms. Casler went back on sick leave. She alleges that she did
so because she believed, because of what she had been told on August 25, 2000,
she had no further prospect of accommodated employment with CNR. She remained
on sick leave until March 7, 2001, when her sick leave benefits expired. Ms.
Casler has not worked since that time.
[11]
CNR admits
it made no accommodation efforts for Ms. Casler after August 2000. The
explanation offered is that Ms. Casler did not ask for accommodation or provide
information about her condition until sometime in 2003, and by that time she
was incapable of any work.
[12]
The
investigator seems to have searched for a specific, overt request from Ms.
Casler after August of 2000. However, it appears that the investigator did not
consider or investigate whether, given the facts as alleged by Ms. Casler, her
need for accommodation in August of 2000 was or should have been known to CNR
because of the state of affairs at that time.
[13]
It is
readily apparent from the record that the parties have opposing views about
what happened during that crucial period at the end of August and the beginning
of September 2000. Ms. Casler alleges that she was compelled to resort to sick
leave benefits at the end of August 2000 because she understood, from what she
had been told, that all efforts to accommodate her were at an end. CNR for its
part relies on the fact that Ms. Casler went on sick leave as proof that she
was medically unfit to work, which CNR argues absolved them of any obligation
to consider further accommodation unless Ms. Casler specifically asked for it.
[14]
And yet if
it is true, as Ms. Casler alleges, that she pursued a claim for sick leave only
because she felt that CNR had given her no option, on what basis can it fairly
be said that CNR acted reasonably in ignoring the accommodation issue once Ms.
Casler went on sick leave? This may well be the most important factual dispute,
but the record does not disclose the position of CNR on a number of questions
that in my view are obviously crucial to a fair determination of this factual
dispute. Specifically, the record does not disclose and the investigator
apparently did not ask:
(a) why Ms. Casler’s position as a
flagperson came to an end on August 25, 2000;
(b) what, if anything, CNR
officials said to Ms. Casler between August 25, 2000 and September 3, 2000,
about her continued employment with CNR; or
(c) what consideration, if any,
CNR gave to the question of accommodating Ms. Casler immediately after the weed
trimming position ended.
[15]
As I read
the record, there were obvious avenues for further investigation about the
situation as it was at the end of August of 2000. Some of these questions could
have been put squarely to CNR. Also, Ms. Casler submitted on numerous
occasions the names of workers apparently in Ms. Casler’s work group who had
been accommodated with lighter work, but no attempt was made to find more
information specifically about those individuals. CNR was never asked for an
explanation about those individuals, and no interviews were sought from them.
[16]
In my
view, these deficiencies in the investigation are sufficiently obvious and
important to justify a conclusion that the investigation does not meet the Slattery
test for thoroughness. It follows that the decision of the Commission cannot
stand, and this matter must be returned to the Commission for a fresh
investigation and a new decision.
Other observations
[17]
I have
noted other deficiencies in the investigation report which, although they are
not cited as a basis for requiring a new investigation, indicate that the first
investigation was in many respects cursory. In my view, it would be helpful if
these additional points were addressed by the new investigator.
What did CNR know, and when?
[18]
Ms. Casler
insists that she kept CNR apprised of her condition in 2003 and 2004. Indeed,
the record contains many medical reports prepared during that period. But is it
far from clear who received those reports, and when. CNR denies receiving any
reports until it contacted Ms. Casler in early 2003 to enquire about her
status. I will not list all of the factual ambiguities in this regard, but I
offer one example.
[19]
The record
contains many medical reports during the period relevant to Ms. Casler’s
complaint suggesting that Ms. Casler was capable of some work. CNR denies
receiving many of these reports, including some bearing dates in 2004. However,
CNR acknowledges that Ms. Casler filed a grievance on August 23, 2004 alleging
a failure to accommodate her disability. The grievance, which is appended to
Ms. Morrison’s affidavit, states that a recent medical report describing her
condition was attached. However, that medical report is not referred to in Ms.
Morrison’s affidavit, and it is not possible to determine from the record which
report it is, when it was prepared, or whether it had been sent to CNR before
the grievance was initiated. The grievance was never considered on its merits
and it failed for want of timeliness. The investigator did not attempt to
determine what medical reports were received by CNR, and when.
The period relevant to the
complaint
[20]
Ms. Casler’s
complaint to the Commission is dated September 22, 2004. In January of 2005,
the Commission determined that it would deal only with allegations by Ms.
Casler of events that occurred from August 25, 2000 (the date of the
termination of Ms. Casler’s work as a flagperson) to September 24, 2004 (which
I assume was meant to be September 22, 2004, the date of the complaint). That
decision was never challenged, and Ms. Casler has not asserted a claim for any
act of CNR that occurred before or after the specified period.
[21]
Both
parties made submissions to the investigator about events that occurred before
and after the specified complaint period, and the investigator considered those
submissions.
[22]
It is
reasonable to conclude that evidence of events before the specified period may
assist in understanding events that occurred within the specified period.
However, the justification for considering subsequent events is not clear. It
might make sense to consider post-September 24, 2004 events if CNR were
alleging that something that occurred after September 24, 2004 amounted to
reasonable accommodation, or absolved them of any obligation to accommodate.
However, that is not CNR’s position. CNR says that it had no duty to
accommodate after August 25, 2000. The investigator did not attempt to deal
with the question of whether and in what way any of the events after September
24, 2004 were relevant to Ms. Casler’s complaint.
Dates of Ms. Casler’s final sick leave
[23]
The record
states different dates for the commencement of Ms. Casler’s sick leave after
August 25, 2000. At page 3 of CIRB Letter Decision No. 1757, the Canadian
Industrial Relations Board states that her sick leave commenced on September 3,
2000, but also that her flagperson position ended on September 2, 2000 rather
than August 25, 2000, the date alleged by Ms. Casler and apparently undisputed
by CNR. The record does not indicate any attempt to resolve these factual
differences, or to determine whether they are material.
The sex discrimination
complaint
[24]
The investigator
appears to have concluded that Ms. Casler’s allegation of discrimination on the
basis of sex was completely answered by CNR’s statement that some of the
individuals named by Ms. Casler as having been accommodated are female, and
that according to CNR’s website, 90.5% of its employees are male, and 3.3% of
male employees were disabled in comparison to 7.7% of female employees. While
this point was not the subject of submissions, I question whether this is an inadequate
answer (see, for example, the dissenting reasons of Justice Evans in Public
Service Alliance of Canada v. Canada Post Corp., 2010 FCA 56, [2011] 2
F.C.R. 221, adopted by the Supreme Court of Canada in Public
Service Alliance of Canada v. Canada Post Corp.,
2011 SCC 57, [2011] 3 S.C.R. 572).
Conclusion
[25]
For these
reasons, I would allow both appeals and set aside both judgments of the Federal
Court. I would allow Ms. Casler’s application for judicial review of the
decision of the Commission, and I would refer this matter back to the
Commission for reconsideration by a different decision maker after a new
investigation by a different investigator. I would award Ms. Casler her
costs in this Court and in the Federal Court.
“K.
Sharlow”
“I
agree.
J.D.
Denis Pelletier J.A.”
“I
agree.
David
Stratas J.A.”
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