Date:
20080527
Docket:
A-505-07
Citation:
2008 FCA 191
CORAM: DESJARDINS
J.A.
BLAIS
J.A.
EVANS
J.A.
BETWEEN:
ALLAN BESNER
Appellant
and
THE ATTORNEY GENERAL OF CANADA
(CORRECTIONAL SERVICES OF CANADA)
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on May 27, 2008)
EVANS J.A.
[1]
This is an appeal by Allan Besner from a
decision of the Federal Court in which Justice Mosley dismissed his application
for judicial review of a decision by the Canadian Human Rights Commission under
the Canadian Human Rights Act, R.S.C. 1985, c. H-6, subparagraph 44(3)(b)(i),
that in all the circumstances an inquiry was not warranted into Mr Besner’s
complaint against his employer of discrimination on the ground of disability.
The decision of Justice Mosley is reported as Besner v. Canada (Attorney General), 2007 FC 1076.
[2]
Mr Besner
was formerly employed in the federal public service as a psychologist with
Correctional Services of Canada (“CSC”). He complained to the Commission that
his employer had failed to accommodate his disability and that its discriminatory
conduct culminated in his retirement on medical grounds in 2002.
[3]
The basis
of his application for judicial review of the dismissal of his complaint by the
Commission is that it failed to conduct a sufficiently thorough investigation and,
accordingly, its decision must be set aside as made in breach of the duty of
fairness.
[4]
In
particular, he says, the Commission’s investigator omitted to consider his
principal allegation, namely that the employer ought to have accommodated him
by assigning a broader range of work to him. He asserts that his supervisor
knew both that his medical condition (obsessive-compulsive disorder and
depression) prevented him from completing on time the principal work assigned
to him, namely the preparation of psychological assessments of prison inmates,
and that the work was making his condition worse.
[5]
The
investigator’s report noted that the psychiatrists who had assessed Mr Besner
(his own, Dr Pole, and a Health Canada doctor, Dr Forbes) found that he was not
disabled form performing any of his employment duties, but recommended that his
work schedule be reduced to three days a week. The employer adopted this
recommendation and cut his work assignments by half.
[6]
In
submissions to the Commission in response to the investigator’s report, Mr
Besner’s representative alleged, among other things, that the investigator had
overlooked the aspect of his complaint that the medical assessment undertaken
at the request of CSC was based on the employer’s inaccurate description of his
duties. It was said that the duties described those of a person employed by CSC
as a psychologist, whereas, for the most part, Mr Besner performed only one of
them, namely the preparation of psychological assessments and reports.
[7]
In
dismissing Mr Besner’s complaint of lack of accommodation, the Commission
stated that “the evidence indicates that [the employer] provided medically
supported accommodation to the complainant”, that is, the reduction in both the
number of days to be spent at work and the amount of work to be done.
[8]
We are not
persuaded that, in rejecting the allegation that the Commission failed to
investigate the complaint thoroughly, the Applications Judge committed any
reversible error.
[9]
First, the
duty to investigate requires the Commission to deal with the essential or
fundamental aspects of a complaint. However, the complaint form filed with
the Commission by Mr Besner does not allege that the employer misled the Health
Canada doctor by misdescribing his actual duties. Further, while this matter is
mentioned in the 20 single-spaced pages of submissions made by Mr Besner to the
investigator in response to those of the CSC, it is not given any particular
prominence.
[10]
Second,
this omission from the investigator’s report was brought to the attention of
the Commission by Mr Besner, albeit as the third of three alleged deficiencies.
However, these submissions obviously did not persuade the Commission to send
the matter back for further investigation.
[11]
Third,
when it requested a medical assessment from Dr Forbes, CSC in fact indicated
the extent of Mr Besner’s responsibilities by noting that “counselling and
interviewing” and “psychological assessments and recommendations” were the only
duties performed by Mr Besner that constituted between 67%-100% of his work.
[12]
Fourth, it
was open to Mr Besner to inform the doctors who examined him that he was unable
to perform the particular kind of work assigned to him because he was not also
given any of the other duties of a CSC psychologist. Nonetheless, neither
doctor concluded that his disability required that he be given a wider range of
employment responsibilities.
[13]
In short,
on reading the record as a whole, we are not satisfied that Mr Besner’s
complaint was investigated inadequately so as to warrant our setting aside the
Commission’s decision as vitiated by procedural unfairness.
[14]
For these
reasons, the appeal will be dismissed with costs.
"John
M. Evans"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-505-07
STYLE OF CAUSE:
ALLAN BESNER
Appellant
v.
THE ATTORNEY GENERAL OF CANADA
(CORRECTIONAL SERVICE OF CANADA)
Respondent
PLACE OF HEARING: Ottawa,
Ontario
DATE OF HEARING: May 27, 2008
REASONS FOR JUDGMENT OF THE
COURT BY: Desjardins, Blais, Evans JJ.A.
DELIVERED FROM THE BENCH BY: Evans J.A.
APPEARANCES:
|
Steven Welchner
|
FOR
THE APPELLANT
|
|
Lorne Ptack
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Welchner Law Office
Ottawa, Ontario
|
FOR THE APPELLANT
|
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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