Docket: A-214-13Citation: 2014
FCA 131
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CORAM:
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PELLETIER J.A.
DAWSON J.A.
WEBB J.A.
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BETWEEN:
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THE CANADIAN HUMAN RIGHTS COMMISSION
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Appellant
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and
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ATTORNEY GENERAL OF CANADA
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and
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BRONWYN CRUDEN
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Respondents
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REASONS FOR
JUDGMENT
WEBB J.A.
[1]
This is an appeal from the judgment of Justice Zinn (2013 FC 520) who
allowed the application for judicial review of the decision of the Canadian
Human Rights Tribunal dated September 23, 2011 (2011 CHRT 13), and set aside
this decision. For the reasons that follow I would dismiss this appeal.
I.
Facts
[2]
The facts are set out in detail in the decision of the Tribunal and in
the reasons of the Federal Court Judge. The facts are not in dispute and can be
briefly summarized as follows. Ms. Cruden has type 1 diabetes and is insulin
dependent. Ms. Cruden was an employee of the Canadian International Development
Agency (CIDA) in its corporate section. She wanted to be a development officer
in the program section but she lacked field experience. To gain field experience
she applied for postings in Afghanistan. In 2007 persons who were to be posted
on temporary assignments to Afghanistan were not required to have any medical
assessment completed prior to being posted.
[3]
She had two temporary assignments in Afghanistan. The first one was in
2007 and it was completed without incident. During her second temporary posting
in 2008 she had a hypoglycemic incident which resulted in her
posting being curtailed and, against her wishes, she was returned to Canada. Following this incident, persons who were to be posted to Afghanistan on temporary assignments were required to be assessed medically before being assigned to
work there. Health Canada also developed the Medical Evaluation Guidelines for
Posting, Temporary Duty or Travel to Afghanistan (the Afghanistan Guidelines).
Although Ms. Cruden applied for other postings in Afghanistan, she was unable
to convince CIDA that the Afghanistan Guidelines did not apply or should not
have been applied to her and she was not offered any other assignment there.
There is no dispute that if Ms. Cruden did not have type 1 diabetes or if the
Afghanistan Guidelines had not been applied, she would have been posted in Afghanistan again.
II.
Decision of the Canadian Human Rights
Tribunal
[4]
The Canadian Human Rights Tribunal (Tribunal) concluded that Ms. Cruden
had established a prima facie case of discrimination against Health
Canada because the Afghanistan Guidelines provided that “no one with a chronic
medical condition is allowed to be posted to Afghanistan” (paragraph 72 of the
decision of Tribunal and paragraph 34 of the decision of the Federal Court
Judge). The Tribunal also found that Health Canada had failed to establish that
the conduct was not discriminatory.
[5]
In relation to the complaint against CIDA, the Tribunal found that Ms.
Cruden had also established a prima facie case of discrimination against
CIDA. In paragraph 90 of the decision of the Tribunal it is noted that:
90 The factual evidence established that she was always
considered a competent employee and, if not for her disability and the
application of the Afghanistan Guidelines, she would have been posted in Afghanistan like the rest of her team.
[6]
The Tribunal also found that “CIDA has not met its
procedural duty to accommodate the complainant. On this basis, CIDA has not
provided a bona fide justification for its discriminatory practices
under sections 7 and 10 of the CHRA” (paragraph 111 of the decision of
the Tribunal).
[7]
However, the Tribunal also noted that:
Although CIDA did not establish that it considered every possible
accommodative measure up to the point of undue hardship, I will examine whether
it would cause undue hardship to CIDA to accommodate the complainant in Afghanistan. I find it necessary to perform this analysis as the parties made substantial
submissions on this point and this determination relates to some of the
remedies sought by the complainant.
[8]
The Tribunal then went on to find that “it would pose an undue hardship
on CIDA to have to accommodate [Ms. Cruden] in Afghanistan” (paragraph 117 of
the decision of the Tribunal). As a result of this finding the Tribunal did not
award any amount that would have been directly linked to a posting in Afghanistan. The Tribunal did, however, award certain other monetary amounts and other
systemic remedies.
III.
Decision of the Federal Court
[9]
At the Federal Court hearing, the parties did not dispute the finding of
the Tribunal that it would have imposed an undue hardship on CIDA to post Ms.
Cruden to a position in Afghanistan. It was the position of the Canadian Human
Rights Commission and Ms. Cruden that the decision of the Tribunal should stand
even though there was a finding of undue hardship, on the basis that there was
a procedural duty (separate and apart from the substantive duty) in the
accommodation process. The Federal Court Judge disagreed and found that once a
finding of undue hardship had been made, the complaint should have been
dismissed as the conduct would not then be a discriminatory practice for the
purposes of the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA).
IV.
Standard of Review
[10]
As noted by this Court in Telfer v. Canada Revenue Agency, 2009 FCA 23, [2009] 4 C.T.C. 123, at para. 18:
18 …on an appeal from a decision disposing of an
application for judicial review, the question for the appellate court to decide
is simply whether the court below identified the appropriate standard of review
and applied it correctly. The appellate court is not restricted to asking
whether the first-level court committed a palpable and overriding error in its
application of the appropriate standard.
This approach was approved by the
Supreme Court of Canada in Agraira v. Canada (Minister of Public Safety and
Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, paragraph 45.
[11]
The parties and the Federal Court Judge all agreed at the hearing of the
application for judicial review that the appropriate standard of review for the
decision of the Tribunal was reasonableness. In this appeal the parties also
submitted that the appropriate standard of review was reasonableness, but the
Canadian Human Rights Commission and Ms. Cruden submit that although the
Federal Court Judge correctly identified reasonableness as the appropriate
standard of review, he did not apply it correctly.
[12]
Subsequent to the hearing of the appeal in this matter, this
Court released its decision in Attorney General of Canada v. Johnstone and
Canadian Human Rights Commission, 2014 FCA 110. In paragraph 44 of that
decision this Court held that the standard of review was correctness in
relation to the two legal issues that were to be decided, which were:
a)
the meaning and scope of “family status” as a prohibited ground
of discrimination, and
b)
the applicable legal test under which a finding of prima facie
discrimination may be made under that prohibited ground.
[13]
While this decision raises the issue of whether reasonableness or
correctness is the appropriate standard of review in this case, I would reach
the same conclusion whether the standard of review is reasonableness or
correctness.
V.
Analysis
[14]
The Federal Court Judge summarized the scheme of the CHRA in
paragraph 63 of his reasons. In the following paragraph he noted that:
64 What is evident from the foregoing
is the criticality of a finding of a discriminatory practice. It is an allegation
of a discriminatory practice which grounds the complaint and it is the finding
of a discriminatory practice that provides the Tribunal with jurisdiction to
order remedial action. Moreover, and of particular relevance to this
application, a BFOR finding negates, and is a complete defence to, any
allegation of a discriminatory practice. In short, and in the context of this
case, if CIDA establishes that it cannot accommodate Ms. Cruden's disability in
Afghanistan without undue hardship, then there is no discriminatory practice
and no violation of the CHRA.
[15]
If the standard of review is correctness, I agree that this is the
correct interpretation of the provisions of the CHRA. If the standard of
review is reasonableness, the following comments of the Supreme Court of Canada
in McLean v. British Columbia
(Securities Commission), 2013
SCC 67, [2013] 3 S.C.R. 895, (which was rendered after the Federal Court
decision in this case) are relevant. Justice Moldaver, writing on behalf of a
majority of the justices of the Supreme Court of Canada, noted that:
38 It will not always be the case that a particular provision
permits multiple reasonable interpretations. Where the ordinary tools of
statutory interpretation lead to a single reasonable interpretation and the
administrative decision maker adopts a different interpretation, its
interpretation will necessarily be unreasonable – no degree of deference can
justify its acceptance; see, e.g., Dunsmuir, at
para. 75; Mowat, at para. 34. In those cases, the
"range of reasonable outcomes" (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339, at para. 4) will necessarily be limited to a single
reasonable interpretation – and the administrative decision maker must adopt
it.
[16]
Therefore, if the standard of review is reasonableness, there may still
only be one reasonable interpretation based on the wording of the statute and
the tools of statutory interpretation. This was the conclusion of the Federal
Court Judge and I agree with his conclusion, substantially for the reasons that
he stated. Based on the provisions of the CHRA the only reasonable (or
correct) interpretation of the applicable provisions is that once the Tribunal
found that it would have imposed an undue hardship on CIDA to accommodate the
needs of Ms. Cruden in posting her to Afghanistan, the complaint should have
been dismissed. There is no separate procedural duty to accommodate under the CHRA
that could give rise to remedies if the employer establishes that it has
satisfied all three parts of the test for determining whether a prima facie discriminatory
standard is a bona fide occupational requirement as set out in British
Columbia (Public Service Employee Relations Commission) v. British Columbia
Government and Service Employees’ Union (Meiorin), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46.
[17]
The Canadian Human Rights Commission and Ms. Cruden argued that the
existence of a separate procedural duty to accommodate (notwithstanding that it
may impose an undue hardship on the person to accommodate the needs of the
particular person) is supported by the decision of the Supreme Court of Canada
in Meiorin, the decision of the
Ontario Superior Court of Justice, Divisional Court in ADGA Group
Consultants Inc. v. Lane, 91 O.R. (3d) 649 and several human rights
tribunal decisions.
[18]
The particular paragraph in Meiorin that the Canadian Human
Rights Commission and Ms. Cruden rely upon is paragraph 66 which is as follows:
66 Notwithstanding the overlap between the two inquiries,
it may often be useful as a practical matter to consider separately, first, the
procedure, if any, which was adopted to assess the issue of accommodation and,
second, the substantive content of either a more accommodating standard which
was offered or alternatively the employer's reasons for not offering any such
standard: see generally Lepofsky, supra.
[19]
The Federal Court Judge addressed this paragraph of Meiorin in
paragraphs 69 and 70 of his reasons and I agree with his comments. It seems to
me that it should also be noted that this paragraph is part of the discussion
of the third step in the test proposed by the Supreme Court of Canada in
paragraph 54:
54 Having considered the various alternatives, I propose
the following three-step test for determining whether a prima facie discriminatory
standard is a BFOR. An employer may justify the impugned standard by
establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose
rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in
an honest and good faith belief that it was necessary to the fulfilment of that
legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the
accomplishment of that legitimate work-related purpose. To show that the
standard is reasonably necessary, it must be demonstrated that it is impossible
to accommodate individual employees sharing the characteristics of the claimant
without imposing undue hardship upon the employer.
[20]
The comments in paragraph 66 of Meiorin are part of the
discussion related to this third step. This discussion commences with the
following:
Step Three
62 The employer's third
and final hurdle is to demonstrate that the impugned standard is reasonably
necessary for the employer to accomplish its purpose, which by this point has
been demonstrated to be rationally connected to the performance of the job. The
employer must establish that it cannot accommodate the claimant and others
adversely affected by the standard without experiencing undue hardship.
[21]
I agree with the Federal Court Judge that the Supreme Court of Canada
was not intending to create a separate procedural right to accommodate. There
is simply one question for the purposes of the third step of the test: has the
employer “demonstrated that it is impossible to accommodate
individual employees sharing the characteristics of the claimant without
imposing undue hardship upon the employer”? Once the employer has established
this, then it has satisfied the requirements of the third step. Assuming that
the first two steps are also satisfied (which they were in this case), it is a bona
fide occupational requirement and it is not a discriminatory practice.
[22]
In Emergency Health and Services Commission v. Cassidy, 2011 BCSC
1003, [2011] B.C.J. No. 1426, Justice Gray reached the same conclusion and she
noted that:
34 While McLachlin J. wrote that it may often be useful
to consider any procedure adopted in assessing accommodation, she did not write
that such an analytical tool created a separate duty that can be breached. The
single question remains of whether the employer could accommodate the employee
without experiencing undue hardship.
[23]
In ADGA, the tribunal had found that the employer had not
established that it could not accommodate the employee without imposing undue
hardship on the employer. Although there was a separate discussion of the
procedural duty to accommodate, the Divisional Court did not examine the
statutory basis for this procedural duty but rather it appears to have assumed
its existence as it commenced its analysis of the procedural duty to
accommodate with a description of this duty in paragraph 107. This case is not
a persuasive authority for the statutory existence of this duty.
[24]
While there are other decisions of human rights tribunals that have
found that remedies could be granted for a failure to satisfy a procedural duty
to accommodate even though the accommodation of the particular person would
impose an undue hardship on the employer, such decisions cannot lead to a
conclusion that such interpretation is reasonable or correct if that
interpretation cannot be supported by the applicable legislation. As noted in
paragraphs 14 to 16 above, the CHRA does not support this
interpretation.
[25]
The Canadian Human Rights Commission also submitted that the finding of
the Tribunal of undue hardship was based, in part, on incidents that occurred
in Afghanistan after Ms. Cruden was denied any further postings in Afghanistan. The Canadian Human Rights Commission did not argue that the finding of undue
hardship by the Tribunal (although based in part on subsequent events) was not
reasonable, but rather that after-acquired evidence, although possibly relevant
in relation to the remedy, was not relevant in determining whether an employer
has complied with the procedural duty to accommodate. The Canadian Human Rights
Commission argued that allowing employers to rely on after acquired evidence
would mean that employers may establish a prima facie discriminatory
standard without determining whether it is a bona fide occupational requirement
and then later seek to justify such standard as a bona fide occupational
requirement.
[26]
However, this argument that after acquired evidence is not relevant to
the procedural duty to accommodate presupposes that such separate procedural
duty exists and that it could result in remedies under the CHRA even if
the employer is able to establish that a prima facie discriminatory
standard is a bona fide occupational requirement. In my opinion, if the
employer is able to establish that a prima facie discriminatory standard
is a bona fide occupational requirement (even if this is based on after
acquired evidence) the complaint should be dismissed.
[27]
In this case, the Tribunal found that to accommodate the needs of Ms.
Cruden in posting her to Afghanistan would have imposed undue hardship on CIDA.
In paragraph 117 of the decision of the Tribunal it is clearly stated that:
117 For the following reasons, I
find that it would pose an undue hardship on CIDA to have to accommodate the
complainant in Afghanistan.
[28]
The reasons for finding that it would impose an undue hardship on CIDA
are outlined in paragraphs 118 to 160 of the decision of the Tribunal. Having
found that it would impose an undue hardship on CIDA to accommodate Ms. Cruden
in Afghanistan, the Tribunal should have found that CIDA was not participating
in a discriminatory practice in relation to its postings in Afghanistan. In paragraph 79 of his reasons the Federal Court Judge also noted that there were no
allegations that the way in which Health Canada conducted itself in its
dealings with Ms. Cruden was related to any prohibited ground of
discrimination. As the Federal Court Judge concluded, once the Tribunal found
that it would impose an undue hardship on Ms. Cruden’s employer, CIDA, to
accommodate her in Afghanistan, the complaint against Health Canada should also have been dismissed.
[29]
The Federal Court Judge noted in paragraph 81 of his decision, there may
be another situation where the application of the Afghanistan Guidelines
could result in a particular employee being denied a posting in Afghanistan even though the needs of such person could be accommodated without imposing an
undue hardship on the employer. However, this is not the case in this matter
and the Tribunal did not identify any such particular situation. The Federal
Court Judge also noted that Health Canada was planning to revise the Afghanistan
Guidelines.
[30]
Ms. Cruden also argued that the duty to accommodate included a duty to
provide other accommodations that would have provided her with similar field
experience to what she would have gained in Afghanistan. Ms. Cruden did not
file a notice of appeal. This particular issue was not raised in the notice of
appeal that was filed by the Canadian Human Rights Commission. The Crown,
however, did not object to Ms. Cruden raising this argument.
[31]
In any event, it is clear from the decision of the Tribunal that the
alleged discriminatory practice was the refusal of CIDA to consider Ms. Cruden
for further postings in Afghanistan (paragraph 90 of the decision of the
Tribunal). It is also clear that the issue related to Health Canada was also in relation to postings to Afghanistan. Therefore, the issue was whether the
discriminatory practice was the practice in relation to postings to Afghanistan and not in relation to postings to any other country. Ms. Cruden, in her
complaint, also noted that she was not seeking accommodation. Therefore, Ms.
Cruden cannot succeed in this argument.
[32]
As a result, I would dismiss the appeal. While costs would normally
follow the outcome, since the Canadian Human Rights Commission has a public
interest mandate, I would not award costs against it. Since Ms. Cruden did not
file a Notice of Appeal and since she only raised one new issue, I would not
award costs against her.
“Wyman
W. Webb”
“I agree,
J.D. Denis Pelletier J.A.”
“I agree,
Eleanor R. Dawson J.A.”
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