Canada (Minister of Environment Canada) v. Hutchinson, 2003 FCA 133

Date: 20030314

Docket: A-737-00

Neutral citation: 2003 FCA 133

CORAM:        STONE J.A.

ROTHSTEIN J.A.

PELLETIER J.A.

BETWEEN:

                                             HONOURABLE CHRISTINE STEWART

                                      in her capacity as Minister of Environment Canada

                                                                                                                                                       Appellant

                                                                                 and

                                                        CHARLOTTE HUTCHINSON

                                                                                                                                                   Respondent

                                       Heard at Halifax, Nova Scotia, on November 4, 2002.

                                   Judgment delivered at Ottawa, Ontario, on March 14, 2003.

REASONS FOR JUDGMENT BY:                                                                               PELLETIER J.A.

CONCURRED IN BY:                                                                                                             STONE J.A.

                                                                                                                                         ROTHSTEIN J.A.

Date: 20030314

Docket: A-737-00

Neutral citation: 2003 FCA 133

CORAM:        STONE J.A.

ROTHSTEIN J.A.

PELLETIER J.A.

BETWEEN:

                                             HONOURABLE CHRISTINE STEWART

                                      in her capacity as Minister of Environment Canada

                                                                                                                                                       Appellant

                                                                                 and

                                                        CHARLOTTE HUTCHINSON

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

PELLETIER J.A.

[1]                 In reasons reported at [2000] F.C.J. No. 1764, (2000) 195 F.T.R. 269, the applications judge allowed the respondent's application for judicial review of the Canadian Human Rights Commission's dismissal of her complaint, when he found that she had been denied procedural fairness in the course of the Commission's investigation. This appeal of that decision raises questions of procedural fairness and the content of the duty to accommodate.

The Respondent's Employment

[2]                 Charlotte Hutchinson (the "respondent") began working for the Federal Public Service in 1971. In March 1985 she was transferred to the Department of the Environment (the "appellant") where she became the Personnel Manager for the Conservation and Protection Branch, Atlantic Regional Office. Her work location was on the 4^th floor of the Queen Square Building in Dartmouth, Nova Scotia.

[3]                 Prior to April 1987, the respondent experienced symptoms which included constant headaches, fatigue, gastrointestinal distress, mental confusion and extreme sensitivity to odours. Exposure to odours precipitated symptoms such as nasal stuffiness, soreness of the throat and nose, swelling of the mucous membranes, mental and physical fatigue and difficulty breathing.

[4]                 This led to a period of sick leave commencing in April 1987, followed by a period of leave without pay commencing in December 1987. On July 12,1988, she applied for and received long-term disability benefits. On her application for long-term disability benefits, the respondent identified "burnout, stress and job incompatibility" as the reasons for the leave. The respondent was away from work from April 1987 until October 1990 with the exception of a short period in which she participated in a french language training course followed by an attempt to return to work, which ended unsuccessfully after one day.    

[5]                 In June 1988, the respondent was diagnosed by her physician, Dr. Beresford, as suffering from environmental illness and burnout, though it appears that this was not communicated to the appellant at that time.

        In August 1990, Health Canada conducted a "fitness for work" assessment of the respondent. This assessment indicated that the respondent qualified as a 'class A' fit for work, i.e. she was fit for work without limitations. However, the assessment did state that it would be advisable that she avoid air conditioning, tobacco smoke, and chemical odour.

        The respondent indicated to the appellant that she could not return to her previous responsibilities. She was then offered a position as an Environmental Engineering Technician which she accepted. This position carried fewer responsibilities and was less stressful but she continued to be paid at her former salary level. It required her to perform field work, including work at the Department's warehouse and its laboratory, and to visit industrial sites such as oil refineries, and pulp and paper mills. The respondent began work in this capacity in October 1990, once again working out of the Queen Square Building. She worked happily and productively in this position until 1995.

        In January 1993, the respondent's position was made seasonal, at her request. She was therefore laid off for approximately four months at the start of 1993, 1994 and 1995.

[9]                 In May 1995, the respondent returned from her seasonal layoff only to discover that she was experiencing an even greater sensitivity to environmental factors.    Perfume worn by the other employees, and other scents, seemed to aggravate her environmental illness. In an attempt to accommodate the respondent, the appellant undertook various efforts to ameliorate the working conditions in the Queen Square Building. Management discussed potential solutions directly with the employees who were the subject of many of Ms. Hutchinson's complaints. "No scents" awareness signage was posted. After rejecting a mandatory no-scent policy as inappropriate, the appellant implemented a voluntary no-scent. Furthermore, a "sensitivity session" was held to increase awareness of this problem among other employees. The respondent's view was that these efforts were completely ineffective as they did not alter the behaviour of her colleagues.

[10]               In addition, the respondent's condition was aggravated by renovations which were underway in her office area.    The appellant moved the Respondent's office within the building to spaces which were not being renovated so as to minimize her contact with irritants from the renovations.

[11]            In September 1995, the respondent began a period of sick leave which ended in May 1996. The following month, she was again seen by a physician at Health Canada who advised that the respondent was fit for work with limitations. In a letter dated June 21, 1996, the physician strongly recommended a work location other than Queen Square, suggesting a place "where sufficient gassing off of building materials, furniture, flooring etc. had taken place." The physician went on to say:

We recommend that she avoid exposure to perfume and other strong odours such as cleaning chemicals and solvent odours. She should not be around any renovation which would involve strong paint odours, dust, new carpet, etc. It would be advisable for her to work in an area with as little in the way of "fabric" as possible i.e. no carpets, curtains, etc. There should be a weekly cleaning program for the office with damp mopping and dusting with a damp cloth. It is preferable for cleaning to be done after hours. ... It is also advisable for her to have a window that opens. The ventilation system should have a regular maintenance schedule and there should be the appropriate amount of fresh air coming in.

Appeal Book, pp. 142-143.

      As a result, the appellant attempted to find alternative locations which would meet the respondent's needs. A table prepared by the Canadian Human Rights Commission's investigator, which she incorporated into her Investigation Report, listing these alternatives, as well as those proposed by the respondent, and the parties' reaction to them is reproduced below. It appears from this table that 8 different alternatives were suggested and found wanting:

      Over the course of this period, the subject of teleworking was under discussion. Teleworking could only be implemented upon a request from the respondent. The respondent refused to apply for teleworking from home but indicated that she would be prepared to consider it from an office which she had located which she thought might meet her needs and for which she was personally prepared to pay the rent. The appellant rejected this proposal on the ground that the teleworking policy excluded "satellite" offices, the space was not in a government controlled building, creating possible liability and work safety issues, and noting that prior proposals by the respondent has shown themselves to be unsuitable.

      The respondent was again away from work from approximately August 1, 1996 to April 1997, part of which included her seasonal layoff. She was asked to return to work effective April 1, 1997, working from home. The respondent indicated that she would not work from home and demanded that no use be made of her telephone or fax lines for departmental purposes.    She also prohibited departmental staff from trespassing on her property for work related reasons.    The appellant then directed that the respondent report to work at Queen Square. The respondent referred the appellant's direction to the Regional Safety Officer who found that the respondent was bound to report to work as ordered . The respondent reported for work on April 21, 1997 but left after having been in attendance for only four hours. At that point, she was dismissed on the ground that she was incapable of performing the duties of her office.

Proceedings before the Canadian Human Rights Commission

      Prior to her dismissal, the respondent had filed a complaint with the Canadian Human Rights Commission ("Commission"). The respondent alleged that the appellant had been 'adversely differentiating' against her based on her disability and that it was refusing to accommodate her disability by failing to provide her with a suitable work environment. The respondent also launched a grievance of her dismissal with the Public Service Staff Relations Board on April 29, 1997.

      In accordance with its normal procedure, the Commission appointed Jean-Guy Boissoneault to investigate this complaint. The investigation was temporarily held in abeyance pending the outcome of a Public Service Commission mediation between the parties. After having been informed that the mediation was unsuccessful, the investigation was reactivated in February 1997.

      The complaint was then assigned to Ms. Denise Ommanney, a contract employee of the Commission. The appellant designated Louise Morin Girouard, Director of Staff Relations and Classification, to be Ms. Ommanney's contact person.    Ms. Girouard was the subject of a harassment complaint by the respondent, an issue which Ms. Ommanney raised with her. Ms. Girouard pointed out that the respondent had 14 complaints pending before the Public Service Staff Relations Board against departmental personnel including the Director General of Human Resources and the Deputy Minister. It appeared that anyone who had the knowledge and the authority to respond on behalf of the appellant was the subject of a complaint. Thereafter Ms. Ommanney and Ms. Girouard corresponded with respect to various aspects of the complaint and the investigation.

      On September 25, 1997, Ms. Ommanney wrote to the respondent asking for responses to certain facts alleged by Ms. Girouard, specifically, the point in time at which the appellant became aware of the respondent's diagnosis, the adequacy of the attempts at accommodation, the appellant's response to the respondent's allegation of harassment by another departmental employee, and the respondent's position on teleworking. The respondent replied and contradicted some of the information provided by the appellant. Ms. Ommanney put the respondent's position to Ms. Girouard in a letter dated October 8, 1997. Ms. Girouard responded by letter dated October 22, 1997. This letter figured prominently in the subsequent judicial review of the Commission's decision.

      On November 10, 1997, Françoise Girard, who had assumed conduct of the investigation from Ms. Ommanney, forwarded to the respondent a copy of the Investigation Report recommending the dismissal of her complaint. She advised the respondent that the Report, along with her comments and those of the appellant, would be placed before the Commission for a decision. The respondent was advised that her comments should not exceed 10 pages in length and should be submitted prior to December 12, 1997. A similar letter was sent to the appellant.

      The Investigation Report ran to 57 paragraphs and covered the respondent's complaint and the responses furnished by the appellant. The section dealing with the respondent's work history ended with this paragraph:

The complainant has filed a grievance against her termination. The Deputy Minister was about to hear the grievance in October 1997, when the complainant's Union asked that the hearing be postponed pending the outcome of a complaint to Labour Canada regarding the provisions of its Code. In addition, she has 14 complaints before the Public Service Commission alleging personal harassment against several departmental officials. Mediation has failed to achieve a "no fault" resolution and the process was discontinued. The P.S.C. has asked the complainant to put in writing the allegations before deciding whether they constitute harassment under Treasury Board guidelines.

Appeal Book p. 211

The Investigation Report went on to conclude that, on the evidence, the allegation of discrimination was unfounded.

      The appellant responded to Ms. Girard on December 1, 1997, pointing out one minor correction but, predictably, agreeing with the decision to dismiss the complaint. The respondent replied on December 12, 1997 and after receiving an extension of the time to respond, submitted further responses on January 9, February 27, March 10, March 22, and March 26, 1998. In the meantime, in response to a letter advising of the extension granted to the respondent, Ms. Girouard forwarded to Ms. Girard a copy of a decision of the Public Services Staff Relations Board ("PSSRB") dismissing the respondent's grievance of her dismissal, to which reference had been made in the Investigation Report.

      The PSSRB's decision dismissing the respondent's grievance was very critical of the respondent. Ms. Girard made no mention of it in her memorandum forwarding the Investigation Report to the A/Director of Compliance for placement on the Commission's Agenda, and no reference is made to it in the Investigation Report. The decision itself was not forwarded to the Commission. The material forwarded to the Commission for its consideration consisted of:

           -           the Complaint Form and Investigation Report;

           -           a copy of Investigation Report with numbering made by the complainant [respondent in these proceedings];

           -           the complainant's responses to sections of the investigation according to her numbering scheme;

           -           list of evidence provided by the complainant, which was made available to the Commissioners;

           -           complainant's letter dated January 9, 1998;

-           complainant's letter dated February 27, 1998;

-           complainant's letter dated March 10, 1998;

-           complainant's letter dated March 22, 1998;

-           complainant's fax dated March 26, 1998 and attachments;

-           respondent's response to investigation report dated December 1, 1997.

      The Investigation Report, as mentioned, recommended dismissal of the complaint on the ground that discrimination had not been shown.     The Commission accepted the investigator's recommendation and, in a letter dated April 22, 1998, it advised the respondent that it was dismissing her complaint on the following grounds:

Pursuant to section 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has resolved to dismiss the complaint because:

evidence supports that at least two of the alleged comments were made but were not sufficient to constitute harassment under the Canadian Human Rights Act;

the respondent did attempt to accommodate the complainant's disability by moving her to alternate sites, employing her on a seasonal basis, promoting a scent free environment and offering telework:

Proceedings in the Federal Court (Trial Division)   

[24]            Following the dismissal of her complaint, the respondent obtained a copy of the Commission's file by means of an application under the Access to Information Act R.S.C. 1985 c. A-1. There, she discovered Ms. Girouard's letter of October 22, 1997 as well as a copy of the PSSRB's report. In the meantime, she had launched her application for judicial review of the Commission's decision, alleging twenty grounds of review and referencing 323 documents.

[25]            The learned applications judge disposed of the application on the basis of a lack of procedural fairness. The facts which underpinned his decision were the investigator's failure to put the October 22, 1997 letter from Ms. Girouard, and the PSSRB decision, to the respondent for the purpose of allowing her to respond to them. The applications judge relied upon the decisions of the Supreme Court of Canada in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 ( SEPQA) and Radulesco v. Canada (Canadian Human Rights Commission), [1984] 2 S.C.R. 407">[1984] 2 S.C.R. 407 (Radulesco) in coming to the conclusion that the investigator was bound to produce the documents in question to the respondent and to allow her to respond to them.

[26]            The applications judge found that much of the information contained in the October 22 letter was not in the Investigation Report and consequently the respondent did not have an opportunity to respond to it, giving rise to a breach of the duty of procedural fairness:

[para36]     The applicant, in this case, states a response letter to the investigator from the respondent dated October 22, 1997 was not disclosed to her and consequently, she was not able to respond to or answer the points raised in this letter. A perusal of the letter indicates to me that much of the information contained in the letter was not in the report of the inspector which the applicant had an opportunity to respond to by her letter. This is not in accord with the law set out by Lamer J. (as he then was) in Radulesco, supra, nor with the remarks of Sopinka J. in the S.E.P.Q.A., supra, case. The investigator was required to act fairly to the applicant and in order to act fairly to Ms. Hutchinson, the inspector should have advised Ms. Hutchinson of the statements contained in the October 22, 1997 letter so that she could have responded to the statements. After all, Ms. Hutchinson had much at stake here, as the information would have an effect on the outcome of her complaint. I am of the opinion that it was a breach of procedural fairness not to disclose the information contained in the October 22, 1997 letter.

[27]            With respect to the PSSRB decision, the applications judge, relying on the SEPQA case found that the investigator's possession of the report was to be imputed to the Commission itself with the result that there was a duty to disclose it to the respondent so that she could respond to the comments in it which were critical of her.

[28]            After commenting that it was not necessary for the disposition of the application before him, the applications judge went to consider the respondent's allegation that the report was not neutral because it included the reference to the 14 complaints pending before the Public Service Commission. He agreed, in forceful terms, with the respondent's submissions on that point:

[para39]     To my mind the information about the applicant filing 14 complaints before the Public Service Commission has no place in the report. It is irrelevant to the issue of whether or not the applicant has a valid human rights complaint. It does not matter how many times she filed a complaint with another body. By law, she is entitled to file these complaints which may or may not succeed and by law she is entitled to file a human rights complaint. To me, the inclusion of the statement about the 14 complaints in the report is unfair to the applicant. That, as I said, is totally irrelevant to the complaint before the Commission. It also tends to present a somewhat less than neutral picture for the Commission.

Issues

[29]            Before us, the respondent argued the grounds upon which the applications judge had found in her favour, specifically that the failure of the investigator to provide her with a copy of the October 22 letter and the PSSRB's decision resulted in a breach of procedural fairness. She also alleged a lack of neutrality of the part of the Commission, stemming from the fact that the Investigation Report included the comment that she had filed 14 complaints with the Public Service Commission.

      In addition to those grounds, the respondent raised several additional grounds which were before the applications judge but which he did not address as a result of his findings on the issue of procedural fairness. These additional grounds included an allegation the appellant's primary contact with the Commission was in a conflict of interest because the respondent had an unresolved harassment complaint pending against her. She also alleged that the Commission erred in finding that the appellant had accommodated her disability when the real question was whether the appellant had accommodated her to the point of undue hardship.

[31]            Finally, the respondent sought to put before us, as she had before the applications judge, a further report from her physician Dr. Beresford, a document which was not before the Commission. The learned applications judge rejected these submissions.

[32]            Given the basis on which the applications judge disposed of the application for judicial review, the appellant's Notice of Appeal dealt only with issues of procedural fairness. But, faced with the Respondent's expanded grounds as set out above, the appellant filed a short Memorandum in Reply canvassing the issue of the duty to accommodate. Both parties asked that we deal with all issues so as to avoid the delay and expense of referring the matter back to the Trial Division in the event that we found for the appellant on the question of procedural fairness.

Appellant's Submissions

[33]            The appellant argues that the Commission's decision-making process did not violate Ms. Hutchinson's right to procedural fairness. In the appellant's submission, the respondent was given a full opportunity to respond to the investigator's report, which is the document which was placed before the Commission. The appellant, relying on the judgment of MacGuigan J.A. in Canada (Canadian Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (Pathak) urged that the investigative and decision-making phase of the Commission are two distinct phases that cannot be merged into one. Further, the applications judge erred in relying on SEPQA as support for the proposition that all documents before the investigator should also be deemed to be before the Commission. The appellant submits that the failure to disclose the PSSRB decision to the respondent did not result in breach of procedural fairness since it was not before the Commission in its decision-making phase and it was received by the investigator after the Investigation Report was completed.

[34]            With respect to the letter of October 22, 1997, the appellant notes that the applications judge stated that "much of the information in [this] letter was not in the report of the inspector...". The appellant submits that since this letter did not form part of the Investigation Report which was forwarded to the Commission, it follows that the failure to send this letter to the respondent for comment did not result in a breach of procedural fairness. The appellant also argues that the applications judge erred in failing to consider whether the disclosure of these documents would have affected the outcome.

[35]            The appellant further submitted that the applications judge erred in finding that the report was not neutral. The fact of mentioning the 14 past complaints was merely a recital of procedural history, and cannot support a finding of a lack of neutrality on the part of the investigator.

[36]            On the issue of establishing whether the duty to accommodate had been satisfied, the respondent's position is that it was necessary to demonstrate that attempts to accommodate the complainant continued to the point of undue hardship. The appellants position was that all that needed to be shown was that the department had an employment standard that provides alternatives to working in the work place. The appellant submitted that the respondent failed to establish a prima facie case that its' employment standard was discriminatory on a prohibited ground since the employment standard was flexible enough to allow the respondent to continue her employment. In the alternative, if a prima facie case of discrimination is found, the appellant submits that it had become impossible for the employer to accommodate the respondent without undue hardship.

Respondent's Submissions

[37]            In her submissions, the respondent distinguishes Pathak on the basis that in the case at bar, the respondent has attacked the Investigation Report as being inadequate, incomplete, and containing errors of fact. In her opinion, Pathak was not intended to extend to situations involving a denial of natural justice, or inadequacy in the Investigation Report.

[38]            The respondent argues that failure to disclose the PSSRB decision led to the loss of her opportunity to potentially convince the Commission to re-open her case, as well as the opportunity to have a conciliator appointed prior to the settlement of this dispute.

[39]            The respondent relies on Mercier v. Canada (Canadian Human Rights Commission), [1994] 3 F.C. 3 (C.A.) (Mercier) and Madsen v. Canada (Attorney General), [1996] F.C.J. 99 (T.D.) (Madsen) for the proposition that the Commission is obliged to disclose new information to the other party and to permit her to respond, particularly if the information goes to the credibility of the party. This is true even if this information is received after completion of the investigation report. In the alternative, the respondent submits that the documents not before the Commission should be disclosed where one of the grounds of review is an excess of jurisdiction by reason of the denial of natural justice.

[40]            The respondent further submits that the Investigation Report was biassed in favour of the appellant. This bias is evidenced by the fact that the appellant's submissions are well presented in the Investigation Report, while many of the respondent's submissions are omitted.    As a further indication of a lack of neutrality on behalf of investigators, the respondent points to the fact that the respondent's contact person with the Commission was someone against whom the respondent had an outstanding harassment complaint.

[41]            The respondent also claims that the report contained serious mischaracterizations. In addition, the respondent believes that the failure to admit Dr. Beresford's report resulted in a denial of procedural fairness. According to the respondent, the Investigation Report overlooked significant issues including the lack of evidence of undue hardship, the importance of the principle of integrating disabled persons in the workplace, and the allegations of harassment. The respondent submits that based on Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536, (O'Malley) the report and the Commission failed to address the correct legal issue which was whether the appellant took all reasonable steps to accommodate the Complainant up to the point of undue hardship.

[42]            Lastly, the respondent argues that British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Services Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 ( Meiorin) decision calls for a strong emphasis on "inclusiveness" as a fundamental principle of Human Rights Legislation. The respondent argues that Meiorin has set a higher standard with respect to the duty to accommodate, a standard which the appellant has failed to meet.

Relevant Legislation

[43]            The following provisions of the Canadian Human Rights Act are relevant to this dispute:

Analysis: Preliminary Issue

[44]            Before addressing the respondent's allegations, there is a preliminary point which is the admissibility of the respondent's Supplementary Affidavit including the Dr. Beresford's

report. This point can be disposed of summarily. The applications judge properly applied the authorities in refusing to allow the additional evidence to be introduced. It was not before the Commission and therefore, absent considerations such as denial of natural justice, there was no right to have it considered by the applications judge. See Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 cited by the applications judge.

Analysis: Procedural Fairness

[45]            Turning to the issue of procedural fairness, the obligations imposed by the duty of fairness vary with the circumstances, as the Supreme Court has said on a number of occasions, notably in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, and more recently in Baker v. Canada, [1999] 2 S.C.R. 817 at paragraphs 21:

As I wrote in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682,

"the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case". All of the circumstances must be considered in order to determine the content of the duty of procedural fairness ...

[46]            In Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A), Lord Denning M.R. set out the ways in which the duty of fairness might vary from the requirements of natural justice:

The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not put every detail of a case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover, it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But in the end, the investigation body itself must come to its own decision and make its own report. (emphasis added)

      In SEPQA at para. 33, Sopinka J. approved the summary disclosure obligations to which Lord Denning M.R. made reference:

I agree with the reasons of Marceau J. that the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto. (emphasis added)

[48]            In Madsen, the Court held that where submissions made in response to disclosure of the substance of the case raised new facts, they should be disclosed to the party opposite to enable them to respond:

[para28]      Applying the Mercier test to the facts in the case at bar, I am of the view that if either party's second submissions contained facts that differed from those set out in the Investigation Report, Conciliation Report or earlier submissions, then the rules of procedural fairness may have required the CHRC to cross-disclose the second set of submissions and to permit the parties to file a third set of submissions. However, I must also express my agreement with the Federal Court of Appeal, that the rules of procedural fairness do not require the CHRC to "systematically disclose to one party the comments it receives from the other". [Mercier at 253-254.]    Otherwise, the submissions/reply process could conceivably continue ad infinitum. (emphasis added)

[49]            It is clear from Madsen and Mercier, that the obligation to disclose submissions arose in the context where those submissions were to be placed before the Commission. The underlying principle was established ten years earlier in Radulesco. There is nothing in any of these cases which would support the proposition that every exchange between an investigator and an interested party must be disclosed to the other party. The right to know the case to be met and to respond to it arises in connection with material which will be put before the decision maker, not with respect to material which passes through an investigator's hands in the course of the investigation.

[50]            Consequently, the learned applications judge erred when he held that the October 22, 1997 letter ought to have been passed on to the respondent so as to allow her to respond. To the extent that the Investigation Report disclosed information contained in the letter, the respondent amply exercised her right of response. To the extent that information in the letter was not contained in the Investigation Report, and was not otherwise before the Commission, the right to respond did not arise.

[51]            The same is true of the PSSRB decision which did not come into the investigator's hands until after the Investigation Report was completed. The investigator concluded, and rightly so, that the decision was irrelevant to the issue to be decided and did not include it in the material which was forwarded to the Commission. The PSSRB decision is critical of the respondent, to the point where it would have been unfairly prejudicial to the respondent to place it before the Commission. The investigator displayed mature judgment in simply putting the decision aside.

[52]            The respondent argues that it is precisely because the decision is so critical of her that she ought to have been given the chance to respond. In my view, this argument leads nowhere since the decision was not placed before the Commission. The decision is the result of an adjudicative process which the respondent herself initiated. She is understandably disappointed in the result. But that disappointment does not give rise to a right to reargue the entire issue with the investigator under the guise of responding to the appellant.

[53]            The learned applications judge held, on the authority of SEPQA, that possession of the decision by the investigator was possession by the Commission, thereby giving rise to a duty to give the respondent a chance to respond before her complaint was disposed of by the Commission. But, as was pointed out by MacGuigan J.A. in Pathak, the fact that the Commission may be found to be in possession of a document so as to be liable to produce it when required to, does not mean that the document was before the Commission in its deliberations:

[para21]      But that is not in my view to say that for all purposes the persons of the investigator and the Commission are to be merged. All the documents were in the Commission's custody and of easy access, but it could not be said that they were actually before the Commission when it made its decision. To hold otherwise would be to create a limitless legal fiction merging the mostly separate identities of the investigator and the Commission.

[54]            Consequently, I can see no basis for the notion that the investigator's possession of the decision, without anything further having been done with it, gives rise to a duty of disclosure and a corresponding right to respond.

[55]            In so far as the evenhandedness of the Investigation Report is concerned, the best evidence of the investigator's attitude is her refusal to forward the PSSRB decision to the Commission. The reference to 14 complaints to the Public Service Commission, which the applications judge found objectionable, is a purely factual reference made in the context of a summary of the respondent's employment history. The applications judge's conclusion as to lack of neutrality suggests that it was not the fact that the complaints were irrelevant which troubled the applications judge, but rather his view that disclosure of the complaints was prejudicial to the respondent. But it is only prejudicial if one infers from the number of complaints that they were either excessive or unjustified. There is nothing in the body of the Investigation Report which suggests that the investigator communicated such views. As for the members of the Commission, I have no reason to believe that they did not understand that the respondent had a right to make those complaints, and that they had nothing to do with her human rights complaint.

[56]            However, the fact of the 14 complaints does have some significance in light of the respondent's allegation that it was unfair for the Commission to deal with the appellant through a person who was the subject of an unresolved harassment complaint. The record discloses that the investigator raised the matter with the appellant and was told that the respondent had made complaints against all those with the knowledge and the authority to deal with the matter. The respondent scoffs at the notion that there was no one else in an organization with thousands of employees who could deal with this complaint. In her view, Ms. Girouard was in a conflict of interest and ought not to have been made the departmental spokesperson

[57]            Once the investigation process is engaged, the parties are adverse in interest. Consequently, the departmental contact person is under no obligation to be indifferent to the outcome. It can hardly be a rare occurrence in the world of human rights complaints that an investigator deals with a person who has an interest in seeing the claim fail, particularly in the case of individual (as opposed to corporate) respondents. I find no breach of any duty to the respondent in the appellant's choice of contact person for its dealings with the Commission.

Analysis: Adequacy of the Investigation

[58]            The respondent's remaining submissions are that the investigation into her complaint was inadequate, that it failed to consider her complaint that she had been harassed, that the Commission used the wrong analytical framework, and finally that the Commission erred in law in finding that the appellant had satisfied its duty to accommodate, which the respondent articulates as an obligation to accommodate to the point of undue hardship.

[59]            Dealing first with the adequacy of the investigation, this question was touched upon in Slattery v. Canada (Canadian Human Rights Commission), [1994] 2 F.C. 574 (T.D.) (Slattery), where Nadon J. (as he then was) commented on this issue, at para. 55:

In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interests in procedural fairness and the CHRC's interests in maintaining a workable and administratively effective system ...

[60]            Nadon J. went on to consider the test for the intervention of the court where there are gaps in the investigation report:

[para57]      In contexts where parties have the legal right to make submissions in response to an investigator's report, such as in the case at bar, parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision-maker. Therefore, it should be only where complainants are unable to rectify such omissions that judicial review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.

I take the applicable principle to be that where parties have the opportunity to supply the omissions in an investigation report, a court ought not to intervene unless it is satisfied that the exercise of that right would not overcome the prejudice caused by the faulty investigation.

[61]            The respondent's position is that the Investigation Report was inadequate because the investigator was improperly trained and that, as a consequence, there were omissions and mischaracterizations of her position. The question of training is one for the Commission. This Court can only address the fruits of that training in the form of the process followed and the report produced. It is clear that the Investigation Report does not delve into the minutiae of environmental sensitivity to the degree that the respondent would have liked. But it is equally clear that the investigator understood the nature of the respondent's condition and gave her the opportunity to respond to the appellant's comments and to the Investigation Report itself. The record before us does not allow us to identify what material the respondent forwarded to the Commission. However, it is known that the respondent made five submissions to the Commission with respect to the Investigation report. We have not been directed to an error of the sort described by Nadon J. which would justify our interference on the basis of the adequacy of the investigation.

Analysis: Harassment

[62]            The respondent also claims that the Commission did not deal with her allegations of harassment which she framed as follows in her Complaint (Appeal Book p. 60):

In addition to my struggle to obtain a safe working environment, I have been the recipient of comments about my disability. For example, in a meeting in September 1995 the manager of the Pollution Control Division stated "Read my lips, Charlotte, your office is on the fourth floor", although I had informed him working there would make me sick. He also stated that if they had known about my illness, they would [not] have hired me in their branch, and that if I left my position they would probably not fill it. He further commented that I had no sick leave left and should not expect to be paid, although I was entitled to apply for, and later was granted, advanced sick leave.

[63]            These allegations were discussed in the Investigation Report. The investigator concluded that the remark with respect to "Read my lips" was made in frustration in the context of a meeting where the respondent's manner apparently provoked a reaction. The remark about not hiring the applicant was made in the context that one would not generally place a person with environmental sensitivity in a job which required her to attend at various industrial sites. As for sick leave, the investigator was not able to determine if the remark was made and, in any event, the respondent was given advance sick leave. In dismissing the complaint, the Commission must be taken to have given effect to the investigator's assessment of the merits of the harassment complaint.

Analysis: Standard of Review of the Commission's Decision

[64]            Before embarking upon a discussion of Commission's decision on the merits, it is necessary to consider the question of standard of review. The decision in question is a decision to dismiss a complaint after the investigation phase, without referring the complaint to a tribunal. The clearest statement of the standard of review of such decisions is found in Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. 1655 (F.C.A.) where Décary J.A. said the following:

[para3]      MacKay J. was of the view, and rightly so, that the standard of review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the Court unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supportable on the evidence before the Commission. He came to the conclusion that the circumstances were not such as to warrant the intervention of the Court.

[65]            Evans J., as he then was, had occasion to consider this problem in a case where there was an issue of credibility. This is how he concluded his analysis:

[para32]      More recently, the issue was been considered by Hugessen J. in Miller v. Canada (Attorney General) (F.C.T.D.; T-391-98, September 28, 1998), where he said this:

... it is said that the Commission erred in failing to order an oral hearing because there were issues of credibility involved in the case. The law in my view is clear, that the Commission is under no obligation to order an oral hearing. Where, as here, there is no liberty issue at stake in the investigation being conducted, there is never an obligation in my view to conduct an oral hearing. Indeed, when one looks at the nature of the discretion which is given to the Commission by the text of the statute, it is quite obvious that there will be cases where the Commission can dismiss a complaint because in its view there is insufficient evidence to support the complaint, whereas, if the complaint went forward, there would have to be an oral hearing. To put the matter another way, the discretion which is given the Commission is manifestly a discretion to do away with the requirement of an oral hearing before the tribunal.

I am in general agreement with this statement of the law and, since the Commission's conclusion was not irrational on the facts before it, I do not find that the Commission erred in law in dismissing the complaint.

Larsh v. Canada (Attorney General), [1999] F.C.J. No. 508

[66]            This Court considered the standard of review of a decision to forward a complaint to a tribunal in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) where the following appears:

[para38]      The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances",

"considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion

(see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.

[67]            It is clear that the decision of the Commission to dismiss a complaint is entitled to some deference. The standard of review is either reasonableness or patent unreasonableness. However, it is not necessary for me to decide which of the the two is the proper standard for I am satisfied that the decision in this case meets the less deferential standard of reasonableness.

Analytical Framework and Duty to Accommodate

[68]            Turning to the substantive question, the respondent's final point is that, in dismissing her complaint, the Commission applied the wrong test. She says that the question which the Commission had to determine was not whether the appellant had accommodated the respondent but whether it had accommodated her to the point of undue hardship.     The appellant's position is that its employment standard provided for alternatives to working in the workplace and therefore was not discriminatory. On the appellant's view of things, the question of accommodation to the point of undue hardship does not arise. Both parties rely upon the decision of the Supreme Court of Canada in Meiorin, which was not released until after the Commission had disposed of the respondent's complaint, in support of their position.

[69]            Ever since O'Malley the Supreme Court has recognized a distinction between direct discrimination and adverse effects discrimination. Direct discrimination is intentional; adverse effects discrimination occurs when a rule of general application adopted for bona fide reasons has a discriminatory effect on certain groups on a prohibited ground. In O'Malley, the Court recognized different remedies arising from each of these forms of discrimination. In the case of direct discrimination, a discriminatory rule is struck down unless it can be justified. In the employment context, justification can be a Bona Fide Occupational Requirement (BFOR). A BFOR is a rule or standard adopted honestly and in good faith which is reasonably necessary to the safe and efficient performance of the work and does not place an unreasonable burden on those to whom it applies. See Meiorin at para. 20. In adverse effect discrimination, the rule which has the discriminatory effects is not struck down but the rule-maker has an obligation to accommodate to the point of undue hardship those adversely affected by the rule. See O'Malley at para. 23.

[70]            For reasons which were canvassed in detail in Meiorin, the Supreme Court has abandoned this two stream approach and has adopted a unified three step analysis to replace the approach which it taught in O'Malley. Under the new approach, once it is shown that a rule or a policy, whether directly or by way of adverse effects, distinguishes between individuals on a prohibited ground, the employer must show that the rule was adopted for a purpose rationally connected to the performance of the job. This addresses the general purpose of the policy with a view to ensuring that it has a rational connection with the work the employee is required to do. If it does not, that is the end of the analysis. If there is a rational connection in general terms, then the employer must show that the particular rule was adopted "with an honest and good faith belief that it was necessary to the accomplishment of its purpose". See Meiorin at paras. 60 and 61. This addresses the subjective element in that a standard adopted with discriminatory animus cannot be a BFOR.    Finally, the employer must establish that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose and that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

[71]            I do not take Meiorin to have changed the content of the duty to accommodate:

[24]    However, the divergent approaches taken by the arbitrator and the Court of Appeal suggest a more profound difficulty with the conventional test itself.    The parties to this appeal have accordingly invited this Court to adopt a new model of analysis that avoids the threshold distinction between direct discrimination and adverse effect discrimination and integrates the concept of accommodation within the BFOR defence.

[68] ... By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible.    Courts and tribunals must bear this in mind when confronted with a claim of employment-related discrimination.    To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible.    A standard that allows for such accommodation may be only slightly different from the existing standard but it is a different standard nonetheless.

[72]            Meiorin prescribes a shift from a rule-and-exception analysis to the elaboration of standards designed to be inclusive of what previously was treated as an exception. The duty to accommodate now operates as a principle in the design of workplace standards, rather than a template by which exceptional treatment is evaluated. But the core obligation of the employer to the employee remains unchanged.

[73]            The issue in Meiorin was the effect of an explicit threshold standard by which a female firefighter was excluded from further employment because she could not pass a particular test designed to determine aerobic capacity. This was adverse effects discrimination because an apparently neutral standard had a disproportionate impact on women. The issue in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, a case where the Court applied Meiorin, was a visual acuity standard for the issuance of driver's licenses, a case of direct discrimination. These are both cases where the issue is the effect of a discrete, explicit standard or policy which serves as a screening tool. There is no such policy in this case.

[74]            There is an obvious distinction between this case and Meiorin which is that the transaction between the appellant and the respondent was not driven by a pre-existing policy. Instead, we find a course of dealings in which the parties operate from an understanding of their respective rights and obligations. That understanding may have been rooted in rights guaranteed or obligations imposed by the collective agreement, the legislative scheme governing employment in the public service, human rights legislation, health and occupational safety legislation or departmental policies. It would be very difficult to extricate from this matrix a discrete coherent policy which one could subject to an orderly analysis as in Meiorin. This is not to say that the Meiorin analysis is not relevant to a course of conduct. But it does suggest that the analysis may have a different starting point.

[75]            In Meiorin, the Court's analysis began from a finding that the policy in question distinguished between people adversely on a prohibited ground. Where one is dealing with a course of conduct, the more appropriate question is, does the transaction between the parties, taken as a whole, result in adverse treatment on a prohibited ground?    If the transaction taken as a whole does not disclose adverse treatment, then the inquiry is at an end. If adverse treatment on a prohibited ground is shown, one proceeds to the three questions which framed the Supreme Court's analysis.

[76]            Did the course of conduct between these parties disclose adverse treatment of the appellant? On the basis of the Investigation Report, it is reasonably open to find that the transaction between the appellant and the respondent, taken as a whole, did not disclose adverse treatment. The respondent identified an issue arising from her environmental sensitivity and the appellant attempted to address the problem through a series of graduated steps. Initially, the respondent was given a change in assignment. This was supplemented by seasonal layoff. When problems developed at Queen Square, various measures were undertaken in an attempt to address the respondent's concerns. When these proved unsuccessful, the appellant canvassed a series of alternate work locations, none of which proved acceptable to both parties. For reasons which I will explain shortly, if the Commission found that some of the alternatives proposed by the appellant were reasonable, the question of the hardship imposed by the respondent's preferred alternative does not arise. On the evidence, it was open to find that some of the appellant's suggested alternatives were reasonable. When the question of alternative locations came to an impasse, the appellant offered the respondent the alternative of working from home by teleworking, an option which the respondent rejected. Taken as a whole, the transaction could reasonably support the conclusion that the appellant did not operate its workplace so as to adversely affect the respondent.

[77]            The respondent resists such a conclusion for several reasons. She says that the apparent reasonableness of the appellant's proposals is based upon a misunderstanding of their limitations. She also argues that the appellant's rejection of her preferred alternative, her own office in a nearby building, showed a refusal to accommodate to the point of undue hardship. With regard to the first objection, the issue is not whether the Commission is right or wrong, but whether it could reasonably come to the conclusion which it did.     As for the question of a complainant's right to hold out for his or her preferred alternative, that issue arose in Ontario (Ministry of Community and Social Services) v. OPSEU (2000), 50 O.R. (3^rd) 560 where the Ontario Court of Appeal found that the employer's "Religious Observance Policy" was sufficient to accommodate the individual needs of adherents of minority religions. An employee claimed the right to paid time off to observe eleven religious holidays.    The employer's policy provided for two paid days off for religious observance and allowed for additional days off to be taken via scheduling changes and earned days off accumulated through the employer's compressed work week option. The letter of the policy would have imposed some restrictions on the employee but the employer was prepared to waive those if the employee accumulated the work time necessary to be able to access the paid days off. The employee took the position that his earned days off from the compressed work week were his to use as he saw fit and that the employer could give him 11 paid days off for religious observance without undue hardship. The Court held that since the employer's policy was sufficiently inclusive to accommodate the claimant, the issue of accommodation to the point of undue hardship did not arise. One of the corollaries of this position is that a claimant cannot refuse a reasonable solution on the ground that the alternative which they favour will not cause the employer undue hardship. The Court's view of this is set out below:

[37] A review of the relevant authorities leads me to conclude that employers can satisfy their duty to accommodate the religious requirements of employees by providing appropriate scheduling changes, without first having to show that a leave of absence with pay would result in undue economic or other hardship. Indeed, in some instances, scheduling changes may provide the fairest and most reasonable form of accommodation. Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, 95 D.L.R. (4th) 577 is a case on point.

[78]            In the end result, the question before us is whether the Commission could reasonably have been satisfied that "having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted". While the advance in the state of the law represented by Meiorin frames the question of the appellant's obligations differently, the fundamental question remains whether the respondent has been subjected to adverse treatment on account of her disability. Whether one appliesMeiorin or O'Malley, it is my view that the Commission could reasonably come to the conclusion that the appellant's response to the respondent's circumstances was such that an inquiry into the complaint was not warranted.

[79]            In the result, I would allow the appeal and set aside the Order of the Trial Division, with costs to the appellant in this Court and in the Trial Division.

                                                                                 "J.D. Denis Pelletier"           

                                                                                                              J.A.      

"I agree

A.J. Stone J.A."

"I agree

Marshall Rothstein J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   A-737-00

APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED OCTOBER 26, 2000, TRIAL DIVISION FILE NO. T-1072-98.

STYLE OF CAUSE: HONOURABLE CHRISTINE STEWART in her

capacity as Minister of Environment Canada v. CHARLOTTE HUTCHINSON

PLACE OF HEARING:                                   HALIFAX, NOVA SCOTIA

DATE OF HEARING:                                     NOVEMBER 4, 2002

REASONS FOR JUDGMENT :                   PELLETIER J.A.

CONCURRED IN BY:                                    STONE J.A.

ROTHSTEIN J.A.

DATED:                      MARCH 14, 2003

APPEARANCES:

MARTIN C. WARD AND                              FOR THE APPELLANT

KATHLEEN McMANUS

ANNE S. DERRICK                                   FOR THE RESPONDENT

SOLICITORS OF RECORD:

MORRIS ROSENBERG, DEPUTY              FOR THE APPELLANT

ATTORNEY GENERAL OF CANADA

BEATON, DERRICK & RING                  FOR THE RESPONDENT

HALIFAX, NOVA SCOTIA