Docket: T-461-16
Citation:
2017 FC 451
Ottawa, Ontario, May 8, 2017
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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JASYN EVERETT
WALSH
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant seeks an order setting aside a
decision of the Canadian Human Rights Commission [the Commission], dated
February 26, 2016, in which the Commission confirmed a previous decision rendered
on April 15, 2014, dismissing the Applicant’s complaint under the Canadian
Human Rights Act, RSC, 1985, c H-6 [the Act]. The Applicant alleges that
he was discriminated against by Transport Canada on the basis of disability
resulting from an alcohol dependence condition first by being refused a Marine
Medical Certificate (Certificate) that would have allowed him to be employed as
a seafarer, and then by being issued a restricted Certificate which had the
effect of disqualifying him from 95% of all deckhand jobs.
[2]
This is the second time this case comes before
the Court. On February 23, 2015, Justice Donald J. Rennie, now a judge of
the Federal Court of Appeal, granted the Applicant’s application for judicial review
against the Commission’s decision of April 2014 (Walsh v Canada (Attorney
General), 2015 FC 230 [Walsh 2015]). Justice Rennie held that the
Commission had failed to properly apply the third branch of the test
articulated by the Supreme Court of Canada in British
Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3
SCR 3 [Meiorin] and British Columbia (Superintendent of Motor
Vehicles) v British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [Grismer]
(hereinafter, the “Meiorin
test”) in order to
establish, once a prima facie case of discrimination has been made out, whether
there is a bona fide justification for the discriminatory practice.
[3]
The Meiorin test required Transport Canada to prove on a
balance of probabilities that its policy related to the issuance of
Certificates to persons with the characteristics of the
Applicant (i) was adopted for a purpose or goal that is
rationally connected to the function being performed, (ii) was adopted in good faith, and (iii) was reasonably necessary to accomplish their
purpose or goal, in the sense that these persons could not be accommodated without
undue hardship being incurred (Walsh 2015, at para 25).
[4]
Justice Rennie held that the Commission had
failed to analyze, as was required, whether Transport Canada had accommodated the
Applicant up to the point of undue hardship. As a result, the Commission’s
decision was set aside and the matter was remitted back for reconsideration.
[5]
The Applicant remains dissatisfied with the
Commission’s reconsideration of the matter. He claims that the Commission erred
again in its application of the Meiorin test. He also contends that the duty of
procedural fairness owed to him by the Commission was breached in various ways.
II.
Background
A.
The Applicant’s Application for a Marine Medical
Certificates
[6]
Pursuant to the Marine Personnel Regulations,
SOR/2007-115 (the Regulations) adopted under the Canada Shipping Act, SC
2001, c 26, any person who wishes to be employed as a seafarer cannot be so
employed without holding a Certificate attesting to his or her physical and
mental fitness. Such Certificate can be issued with or without restrictions. The Regulations do not contain a list of physical and/or mental
disabilities that would prevent a seafarer from obtaining a Certificate or that
would result in a seafarer obtaining a restricted Certificate. They rather
leave the assessment of medical fitness for the purposes of the issuance of
Certificates to the professional judgment of Marine
Medical Examiners.
[7]
The Applicant applied for a Certificate on or
around June 2010. Justice Rennie summarized as follows the handling of the Applicant’s
application leading to the decision not to issue a Certificate in August 2010 and
then to the decision to issue a Certificate with a “No
Watchkeeping” restriction in May 2012:
[4] In order to assess whether the applicant was fit to hold a Certificate,
he was examined by TC Marine Medical Examiner Dr. L.A. Leong. After
the examination, Dr. Leong had concerns about the applicant’s health. He
contacted Dr. Peter Janna, a Senior Marine Medical Officer. Dr. Janna
shared Dr. Leong’s concerns regarding the applicant’s fitness for seafaring
duty. Consequently, on or around August 31, 2010, [Transport Canada (TC)]
informed the applicant that he was unfit to hold a Certificate. The
decision letter cited “Alcohol Dependence, Major
Depression, and a Developmental Disorder among other things” as the
reasons for the denial of the Certificate.
[5] The applicant appealed TC’s decision to the Transportation Appeal
Tribunal of Canada (TATC). On November 21, 2011, TATC confirmed the
decision to refuse to issue a Certificate to the applicant as he had not
demonstrated that he met the necessary medical requirements.
[6] Subsequent to the TATC decision, on
December 3, 2011, the applicant emailed Dr. Janna to ask what requirements he
would have to meet to be considered for a Certificate. Dr. Janna
explained that the applicant’s medical history was of concern and until the
applicant’s health issues were addressed and managed, the applicant would not
be deemed fit to hold a Certificate. Dr. Janna also recommended that the
applicant contact his family doctor and be referred to a specialist to address
his issues. Dr. Janna concluded by stating that only after such steps
were taken would the applicant be allowed to undergo another Marine Medical
Examination, and only upon TC’s satisfaction that the applicant’s medical
conditions no longer posed a safety risk would TC “consider
the possibility of issuing” a Certificate.
[7] On December 9, 2011, the applicant again wrote to Dr. Janna to
advise that his medical issues, specifically his alcoholism, were being
addressed and that he hoped to be found fit to hold a Certificate in the very
near future. The applicant reapplied for a Certificate, and on or around
May 29, 2012, Dr. Leong again examined the applicant and found that he was fit
with two limitations; no bridge watchkeeping; and the certification would be
limited to three months. Consequently, on June 8, 2012, the applicant was
issued a three-month provisional restricted Certificate with the restriction of
“no watchkeeping duties.”
[8]
The June 8, 2012 letter informing the
Applicant of the issuance of the Certificate
with a “No Watchkeeping” restriction provided the following details:
[…] At this point
in time, you will be provided a Marine Medical Certificate with limitations while you undergo a monitoring program. These limitations will be
reviewed at the end of the monitoring period. Those capable of providing
documented abstinence for 2 years are subsequently deemed FIT.
In keeping with the requirements of the Marine
Personnel Regulations, Section 278(3), in order to adequately assess your
medical fitness, you are required to provide the following information:
• A periodic report from your treating physician or
Addiction Specialist regarding your alcohol rehabilitation and their
perspective of your ongoing abstinence. You will be obliged through your
primary caregiver or Addiction Specialist, to provide such reports every
three months for a two-year period if you wish to obtain an Unlimited
Medical Certificate.
Please arrange for your physician to have
this information submitted directly to our office and be advise any expenses
incurred to establish your medical fitness are your responsibility.
[…]
Please find enclosed a short term Marine
Medical Certificate expiring on August 31, 2012. A limitation of No
Watchkeeping duties has been applied as a result of your past alcohol abuse
problems. This limitation may be lifted after two years of confirmed
abstinence.
[Emphasis in
original]
B.
The Applicant’s complaint to the Commission
[9]
The Applicant filed his complaint with the
Commission on June 4, 2012. It was founded both on the initial refusal to issue
a Certificate and on the subsequent decision to issue a Certificate with a “No Watchkeeping” restriction.
[10]
As that restriction was lifted in October 2012, the
Commission first thought there was no need to deal with the Applicant’s complaint.
It is only in July 2013 that the Commission decided to investigate the
complaint. On January 20, 2014, it issued its Investigation Report. The Report found
that the Applicant had established a prima facie case of discrimination
under section 5 of the Act. In particular, it concluded that by
requiring that a seafarer must be physically and mentally fit in order to
obtain a Certificate, Transport Canada had imposed requirements or restrictions
on the Applicant’s employment and that these requirements did not take into
account the Applicant’s past maritime service or his ability to do the work of
a seafarer, including standing watch. It further concluded that these
requirements disadvantaged the Applicant as he was not able to obtain the
Certificate because of his alcohol use, and that their adverse effects were
related to the ground of disability (Walsh 2015, at para 24).
[11]
However, the Investigation Report ultimately
recommended the dismissal of the Applicant’s complaint on the ground that there
was a safety-grounded bona fide justification for Transport Canada’s written
(and unwritten) rules and practices covering seafarers and alcohol dependence.
It further concluded that rules and practices requiring a seafarer to be
physically and mentally fit to work in a safety critical occupation accommodated
seafarers with the characteristics of the Applicant by allowing the issuance of a restricted Certificate to those who are in
verifiable sobriety and treatment (Walsh 2015, at para 13 and 27).
C.
The Commission’s April 2014 Decision and its
Setting Aside by Walsh 2015
[12]
On April 15, 2014, the Commission, being satisfied pursuant
to subsection 44(3)(b)(i) of the Act that an inquiry into the
Applicant’s complaint was not warranted, dismissed the complaint. Its reasons
for the decision were derivative of the Investigation Report.
[13]
As indicated at the outset of these reasons, that
decision was set aside by Justice Rennie because of the Commission’s failure to
consider and apply the third branch of the Meiorin test in its entirety,
namely to ask itself whether Transport Canada had accommodated the Applicant up
to the point of undue hardship. Although he was satisfied that much of the
Investigation Report, including the treatment of the first two steps of the Meiorin
test, was “unassailable”, Justice Rennie held that each of the steps in the Meiorin
test was critical and that the Report only considered half of step 3, leaving aside
the accommodation part of that step. He said this in this respect:
[29] The Investigation Report then considered step 1 of the Meiorin
test: whether these written and unwritten rules and practices were adopted for
a purpose that was rationally connected to the service. The Investigation
Report concluded that the rules and practices were adopted to ensure marine
safety, and specifically to ensure that those working in safety critical
positions as seafarers with Watchkeeping are fit to perform their duties.
[30] Step 2 of the Meiorin test was then considered. At
paragraph 42 of the Investigation Report, the Commission concluded that there
is “no reason to doubt” that [Transport Canada]
adopted the rules in a good faith belief that they contribute to marine safety.
[31] Finally, the Investigation Report went on to consider the first half of
step 3 of the Meiorin test. The Investigation Report questioned
whether [Transport Canada] had a “[BFJ] for its rules,
considering health, safety and cost.” However, the Investigation
Report did not analyze, as was required, whether [Transport Canada] had
accommodated persons with the characteristics of the applicant without
incurring undue hardship. Specifically, under the controlling
jurisprudence of the Supreme Court of Canada the Investigation Report was
required to analyze undue hardship in terms of both the initial refusal by [Transport
Canada] to issue a Certificate on August 31, 2010, as well as undue hardship in
the context of the Certificate issued on June 8, 2012, with the restriction of
No Watchkeeping.
[14]
Justice Rennie found the
lack of an undue hardship analysis in the context of the restricted Certificate
issued in June 2012 to be of particular concern given the Investigation Report’s
failure to “consider ways in
which [Transport Canada] may have accommodated the [A]pplicant, such as
imposing a No Lone Watchkeeping restriction”, since
at the time this Certificate was issued, the Applicant had commenced sobriety
and treatment (Walsh 2015, at para 32).
[15]
Justice Rennie held this error to be determinative
and he sent the matter back to the Commission “for re-determination of the third step in
the Meiorin test” (Walsh
2015, at para 35).
D.
The Supplementary Investigation Report and the Impugned
Decision
[16]
Pursuant to Justice Rennie’s judgment, the
Commission conducted a further investigation and issued a Supplementary Investigation
Report on October 30, 2015. The Supplementary Report recommended no
further inquiry into the Applicant’s complaint, holding that it was reasonably
necessary, on the basis of the evidence gathered, to deny a Certificate to
people with alcohol dependency resisting treatment and to provide a restricted
Certificate to an alcohol dependent applicant who has relatively new sobriety.
[17]
The Supplementary Report’s main findings, which
are found at paragraphs 44 to 49 of the Report, can be summarized as follows:
a)
According to the Supreme Court of Canada, an “accommodation” in the human rights law context refers
to what is required in the circumstances of each case to avoid discrimination
and failure to accommodate may be established by evidence of arbitrariness in
setting the practice or rule, by an unreasonable refusal to provide individual
assessment, or perhaps, some other way (Grismer, at para 21-22); however,
where safety is at issue in determining whether there is undue hardship, the
magnitude of the risk and the identity of those who bear it are relevant
considerations (Central Alberta Dairy Pool v Alberta (Human Rights
Commission), [1990] 2 S.C.R. 489, at para 62 [Central Alberta Dairy Pool]);
b)
In the present matter, the mandate of Transport
Canada is to ensure a safe and secure maritime industry, which includes determining,
through individual medical assessments, the mental and physical fitness of
those who seek to perform the safety sensitive function of a seafarer so as to protect
the safety of the crew, the vessel, the environment and the public at large;
c)
There is no dispute that the Applicant’s alcoholism
coupled with reports from several medical professionals regarding his excessive
consumption of alcohol and apparent lack of insight into the consequences of
this behavior at the time, were central to Transport Canada’s decision of
August 2010 refusing the Applicant a Certificate;
d)
The May 2012 restricted Certificate and the
subsequent unrestricted Certificate of October 2012, were issued on the basis
of evidence that the Applicant had stopped drinking and had begun treatment;
e)
At issue is whether Transport Canada
accommodated the Applicant to the point of undue hardship when it issued the
May 2012 restricted Certificate;
f)
The duty to accommodate depends on context and
part of that context is that Transport Canada is not an employer, but rather a
regulatory body whose role it is to certify and possibly identify potential
accommodation measures a Certificate applicant may require, not to offer
treatment suggestions to applicants or require potential employers to
periodically conduct field sobriety testing to certain individuals;
g)
The Applicant provided several examples of how
it would not be an undue hardship for Transport Canada to have accommodated
him, including imposing a “No Lone Watchkeeping”
rather than a “No Watchkeeping” restriction but
bearing in mind that the seafarer position requires sound judgment and ability
to make quick decisions, Transport Canada opted for a cautious approach.
[18]
The investigator concluded as follows, at para
49 of the Supplementary Report:
While it is important to balance the
[Applicant’s] accommodation needs, the undue hardship in this case also needs
to consider the perspective of those whose safety may have been at risk (ie.
the general public) if [Transport Canada] were to have issued him an
unrestricted medical certificate. The [Applicant’s] sobriety was still
relatively new and he had a significant history of alcoholism that included
blackouts which rendered him cognitively impaired. Based on all the evidence
gathered during this supplementary investigation, [Transport Canada] has shown
an undue hardship in the form of a real risk to the safety of others.
Therefore, [Transport Canada] has accommodated the [Applicant] to the point of
undue hardship when considering the factors of safety and security of the [Applicant],
the maritime industry and the general public.
[19]
On February 26, 2016, the Commission endorsed
the recommendation contained in the Supplementary Report that no further
inquiry was warranted into the Applicant’s complaint.
III.
Issue
[20]
As was the case in Walsh 2015, the
Applicant claims both procedural and substantive errors on the part of the
Commission. In particular, he contends that the Commission:
i)
did not properly apply the Meiorin test;
ii)
failed to consider his submissions of February
2014, November 2015 and January 2016 and thereby to provide adequate
reasons for dismissing his complaint; and
iii)
was bias in a number of ways.
[21]
For the reasons that follow, I find that the
Commission unreasonably concluded that Transport Canada met its obligation
under step 3 of the Meiorin
test to accommodate the Applicant to a point of undue
hardship when issuing the May 29, 2012 Certificate which imposed on the
Applicant a “No Watchkeeping” restriction. This
suffices to quash the February 26, 2016 decision dismissing the Applicant’s
complaint. As a result, there will be no need to consider the other issues
raised by the Applicant except to the extent it is necessary to do so in
determining whether, as requested by the Applicant, the matter shall be
remitted to the Comission for reconsideration or referred directly to the
Canadian Human Rights Tribunal.
IV.
Standard of Review
[22]
In dismissing a complaint on the basis that no
further inquiry is warranted, the Commission exercises a screening function (Cooper
v Canada (Human Rights Commission), [1996] 3 S.C.R. 854, [1996] SCJ No. 115
(QL)). This role, in any given case, is to determine whether an inquiry by the
Canadian Human Rights Tribunal is warranted having regard to all the
circumstances of the complaint, not “to determine if
the complaint is made out” (Cooper, above at paras 52-53; Syndicat
des employés de production du Québec et de l'Acadie v Canada (Canadian Human
Rights Commission), [1989] 2 S.C.R. 879, [1989] SCJ No. 103, at pp 898-899).
[23]
In exercising that role, the Commission is
entrusted with a broad discretion (Halifax (Regional Municipality) v Nova
Scotia (Human Rights Commission), 2012 SCC 10 at paras 21 and 25, [2012] 1
SCR 364; Bell Canada v Communications, Energy and
Paperworkers Union of Canada, [1999] 1 FC 113 (CA),
at para 38). This calls, on judicial review, for the application of the
deferential standard of reasonableness (Tutty v Canada (Attorney General),
2011 FC 57, at para 14; Keith v Correctional Service of Canada, 2012 FCA
117, at para 43; Sketchley v Canada (Attorney General), 2005 FCA, 263
DLR (4th) 113, at para 47 [Sketchley]; Dunsmuir v New
Brunswick, 2008 SCC 9, at para 47 [Dunsmuir]). This also means that
the Court will normally not interfere with the Commission’s decisions unless “unreasonable omissions are made, for example where an
investigator failed to investigate obviously crucial evidence” (Slattery v Canada (Canadian Human Rights Commission), [1994] 2
FC 574, [1994] FCJ No 181, [Slattery]).
[24]
As to what will constitute “obviously crucial evidence”, this Court has stated that “the ‘obviously crucial test’ requires that it should have been
obvious to a reasonable person that the evidence an applicant argues should
have been investigated was crucial given the allegations in the complaint” (Gosal v Canada (Attorney General), 2011 FC 570 at para 54).
V.
Analysis
[25]
The Act prohibits discriminatory practices based
on prohibited grounds of discrimination. According to section 3 of the Act,
a disability, which is defined at section 25 of the Act as including a “previous or existing dependence on alcohol”, is such
a ground of discrimination. Section 5 of the Act makes it a
discriminatory practice in the provision of a service generally available to
the general public to deny such service or access to it or to differentiate adversely
in relation to any individual on a prohibit ground of discrimination.
[26]
However, section 5 must be read together with paragraph
15(1)(g) of the Act which provides that such denial or differentiation
is not a discriminatory practice if there is a bona fide justification
for it. According to paragraph 15(2) of the Act, a justification is bona
fide if it is established that the needs of the affected individual cannot
be accommodated without imposing “undue hardship on the
person who would have to accommodate those needs, considering health, safety
and costs”.
[27]
In Meiorin, the Supreme Court of Canada provided some guidance as to what
constitutes a bona fide justification for a prima facie discriminatory
practice in the context of section 5 of the Act by developing the
three-part test referred to at the outset of these Reasons (Meiorin, at
para 54). Step 3 of that test, which is relevant to the present proceedings, requires
Transport Canada to show that its policy regarding the
issuance of Certificates to individuals with a previous or existing dependence on
f alcohol is reasonably necessary to the accomplishment of the purpose for
which it was adopted. It is not disputed that this purpose is to ensure marine
safety, including safety of the ship, the crew members, the public and the
environment, by making sure that those working in safety critical positions as
seafarers are fit to perform their duties.
[28]
Step 3 is met where it can be shown that “it is impossible to accommodate individual employees sharing
the characteristics of the claimant without imposing undue hardship upon the employer”
(Meiorin, at para 54). In
assessing step 3, the courts “should
be sensitive to the various ways in which individual capabilities may be
accommodated” (Meiorin, at para 64). At para
65 of Meiorin, the Supreme Court listed some of the “important questions” that may be asked in this regard:
(a) Has the employer investigated
alternative approaches that do not have a discriminatory effect, such as
individual testing against a more individually sensitive standard?
(b) If alternative standards were investigated
and found to be capable of fulfilling the employer’s purpose, why were they not
implemented?
(c) Is it necessary to have all
employees meet the single standard for the employer to accomplish its
legitimate purpose or could standards reflective of group or individual
differences and capabilities be established?
(d) Is there a way to do the job that is
less discriminatory while still accomplishing the employer’s legitimate
purpose?
(e) Is the standard properly designed to
ensure that the desired qualification is met without placing an undue burden on
those to whom the standard applies?
(f) Have other parties who are obliged
to assist in the search for possible accommodation fulfilled their roles? As
Sopinka J. noted in Renaud, supra, at pp. 992-96, the task of
determining how to accommodate individual differences may also place burdens on
the employee and, if there is a collective agreement, a union.”
[29]
The factors that may be considered when
assessing the duty to accommodate to a point of undue hardship also include the
financial costs of the possible method of accommodation, the relative
interchangeability of the workforce as well as the prospect of substantial
interference with the rights of other employees. However, this list of
considerations is not exhaustive and in all cases, the relevant considerations “should be applied with common sense and flexibility in the
context of the factual situation in each case” (Meiorin, at para 63; Commission
scolaire régionale de Chambly v Bergevin, [1994] 2 SCR
525 at p 546).
[30]
As I indicated previously, Justice Rennie found
that much of the Investigation Report that was before him
was “unassailable” and that the first two steps of the Meiorin test had been “fully applied”
by the Commission (Walsh 2015, at para 35). This means that for the
purposes of this judicial review application, I take it that steps 1 and 2 have
been satisfied. In other words, whether Transport Canada adopted its policy
respecting the issuance of Certificates to seafarers with a previous or existing dependence on alcohol for a purpose rationally
connected to the performance of the work of a seafarer and in an honest and good
faith belief that this policy is necessary to the fulfilment of that safety-related
purpose, is not in dispute before me.
[31]
Rather, Justice Rennie set aside the
Commission’s decision on the ground that it had failed to consider ways in
which Transport Canada may have accommodated the Applicant, such as imposing “No Lone Watchkeeping” restriction (Walsh 2015,
at para 32). What is in dispute before me therefore is not whether the
Commission failed to apply the Meiorin test. The Commission did apply it as clearly evidenced by the
Supplementary Investigative Report. The issue is rather whether, in so doing, the
Commission reached a reasonable conclusion in all the
circumstances of this case, that is a conclusion which “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir, at para 47). In other
words, is the Commission’s conclusion that Transport Canada have accommodated
the Applicant up to a point of undue hardship in May 2012 by issuing a
Certificate with a “No Watchkeeping” limitation,
instead, for instance, of opting for a “No Lone
Watchkeeping” restriction, a reasonable outcome?
[32]
The Applicant claims that a
prima facie discriminatory policy is only justifiable under paragraph
15(2) of the Act where the service provider “has
made every possible accommodation short of undue hardship” (his
emphasis). He contends that Transport Canada has failed to meet that onus.
[33]
In particular, the Applicant argues that there
was no risk in May 2012 in being issued an unrestricted Certificate subject
only to periodic sobriety controls or, alternatively, subject to such controls
and a “No Lone Watchkeeping” limitation since at
that time:
a)
He had been in a verifiable state of sobriety and treatment for 8 months;
b)
The blackouts he experienced as a result of his
alcohol abuse occurred in 2010;
c)
There was no evidence of any cognitive deficits,
withdrawal symptoms, motor deficits, maladaptive behaviors or liver disease;
d)
He had 509 days of previous sea-time experience;
e)
There was no evidence either of any major mental
health issues as confirmed by a psychiatric evaluation
performed in April 2012; and
f)
There was evidence that he was mentally fit and
had full perceptual functioning for a seafarer position as evidenced by the
fact he had successfully passed a difficult Navigation Course in October 2011,
only a few days after having stopped drinking.
[34]
The Applicant submits that Transport Canada’s
failure to meet the undue hardship requirement in May 2012 is further evidenced
by the fact that he was issued an unrestricted Certificate only five months into
the two-year monitoring period required by the May 2012 restricted Certificate
for the “No Watchkeeping” limitation to be lifted. He says that this proves that it was in fact
possible for Transport Canada to accommodate him further on May 29, 2012,
especially given the fact that the only new piece of information leading to the
issuance of the unrestricted Certificate is a letter from his Addiction
Specialist, dated October 10, 2012, reiterating that he was still attending counselling
services and maintaining sobriety.
[35]
The Applicant further claims that nothing on record
rationally supports this sudden and significant change in Transport Canada’s
position regarding his physical and mental fitness to perform Watchkeeping duties
and that the Commission fatally failed to address its mind to this important
consideration in determining whether Transport Canada had
made every possible accommodation short of undue hardship when it issued the
May 2012 restricted Certificate.
[36]
I believe that the Applicant raises a valid point
here.
[37]
There is certainly no controversy over the fact
that where, as is the case here, safety is at issue in determining whether the
undue hardship requirement has been met, both the magnitude of the risk and the
identity of those who bear it are relevant considerations (Central Alberta
Dairy Pool, at para 62). As the Respondent points out, the Commission had
before it evidence of the safety risks at issue in the work of seafarers,
including those posed by alcohol dependency. It also had before it evidence of
Transport Canada’s “unwritten” policy requiring
for all individuals with alcohol dependency that these risks be addressed not
by the subjective self-assessment of the individual concerned but by a two-year
period of verifiable sobriety, with ongoing reporting, which could be shortened
based on an individual assessment.
[38]
The Respondent claims that such policy is sound because
of the very nature of addiction which, contrary to other types of disabilities,
raises impaired judgment issues and carries with it a risk of relapse that is
not in the control of either the affected individual or his or her employer but
which is known to decrease with the length of time in sobriety.
[39]
At first glance, this all make sense. However,
it hardly explains why, in a matter of a few months, Transport Canada made a complete
180-degree turn in its assessment of the Applicant’s fitness to perform Watchkeeping
duties. It does not explain either how this “unwritten”
policy concretely works or the manner in which it was applied to the Applicant.
[40]
The Respondent claims in this regard that the “No Lone Watchkeeping” is not a viable option for
those with alcohol dependency due to the issues of potential impaired judgment
such as the difficulty for both the alcohol dependant seafarer and the
companion Watchkeeper to determine whether the former’s judgment is impaired or,
depending on the degree of impairment, the possible dispute between the two as
to whom the crew should follow. It contends that there was nothing unreasonable
on the part of the Commission to conclude that in not offering the Applicant
the “No Lone Watchkeeping” in May 2012,
Transport Canada had adopted a cautious approach and had proven accommodation
to the point of undue hardship given the safety considerations at play and the
Applicant’s alcohol dependency history.
[41]
However, in my view, in considering whether the
Applicant was accommodated to the point of undue hardship in May 2012 by being
issued a Certificate with a “No Watchkeeping”
restriction, which for all intents and purposes, prevented him from working as
a seafarer, the Commission failed to fully address what appears to me to be a
significant turn of events, that of the lifting of that restriction only five months
after it had been imposed.
[42]
This evidence, which was before the Commission,
begs the following question: if the Applicant was found to be fit in October
2012 to perform the work of a seafarer without any Watchkeeping restrictions,
was Transport Canada overly and unreasonably cautious in denying the Applicant
with a “No Lone Watchkeeping” accommodation a
few weeks earlier given that the record shows that at that time, he had been
sober for eight months and he presented no signs of any major mental health
issues nor any signs of any cognitive deficits, withdrawal symptoms or
maladaptive behavior. In other words, was it reasonably impossible, in such
circumstances, to accommodate the Applicant with a “No
Lone Watchkeeping” restriction in May 2012 without imposing undue
hardship upon the employer given that he was deemed fit for non-restricted
Watchkeeping duties shortly thereafter?
[43]
This turn of events also raises concerns regarding
Transport Canada’s “unwritten” policy respecting
the issuance of Certificates to seafarers with a previous alcohol dependency
issue. As we have seen, this policy provides for a two-year period of
verifiable sobriety, with ongoing reporting, before a seafarer with such
disability can be deemed fit for seafarer work. It also apparently provides
that this two-year period can be shortened.
[44]
Here, it is not clear at all how this policy was
applied to the Applicant. When one reads the letter of June 8, 2012 confirming
the conditions and restrictions attached to the Certificate issued on May 29,
2012, it is clear that if the Applicant wished to obtain “an Unlimited Medical Certificate”, he was to provide
Transport Canada with reports from his treating physician or Addiction
Specialist “every three months for a two year period”.
This was the “monitoring period” at the end of
which these conditions and restrictions would be reviewed. It is also clear that
the “No Watchkeeping” limitation could be lifted
“after two years of confirmed abstinence”. There
is no reference in that letter, expressed or implied, to the possibility that
this monitoring period be shortened. As that letter stands, it appears that the
“No Watchkeeping” limitation would only be
lifted provided Transport Canada was satisfied, after two years of confirmed
abstinence starting on June 8, 2012, that the Applicant was fit for “an Unlimited Medical Certificate”.
[45]
But then, in the October 19, 2012 letter
informing the Applicant of the lifting of the “No
Watchkeeping” restriction, Transport Canada appeared satisfied that the
Applicant was now fit for unrestricted Watchkeeping duties given his ongoing
attendance to counselling services and sobriety since
August 2011. The letter goes on by stating that “[a]t this point, one year has passed and as a result, the
limitation previously applied to your Medical Certificate will be lifted”.
[46]
This is hardly consistent with the approach taken
in the previous letter of June 8, 2012 and it raises questions as to how this “unwritten”
two-year abstinence policy is being implemented in general and was implemented
in the case of the Applicant in particular. In an undue hardship analysis, failure to accommodate may be established in various ways, including
by evidence of arbitrariness in setting the policy (Grismer, at paras
21-22).
[47]
Here, the starting point of the two-year
abstinence monitoring period is anything but clear. The June 2012 letter
clearly suggests that it began at that point in time whereas the October 2012
letter indicates that it started in August 2011. If the starting point was
indeed June 2012, then one wonders on what basis the Applicant could have
been assessed within the first five months of the policy’s 24-month sobriety monitoring
requirement from being wholly unfit for any type of Watchkeeping duties,
including No Lone Watchkeeping, to being totally fit for such duties, without
any restrictions, with no evidence other than this letter from the Addiction
Specialist indicating that the Applicant was maintaining sobriety. This hardly
makes sense and raises concerns as to the potential arbitrariness of the policy.
It is further highly questionable given that Transport Canada allegedly imposed
the “No Watchkeeping” restriction because the
Applicant had not only relatively new sobriety but also little insight into his
condition. Again, if this was really the case - and I could not find any
credible evidence on record supporting the claim that Applicant had little
insight into his condition at the time the May 2012 Certificate was issued -, one
wonders how the policy’s two-year monitoring period could reasonably be reduced
to five months in such circumstances.
[48]
If the starting point was rather August 2011, in
which case the June 2012 letter was misleading in this regard, then one wonders
why the Applicant was deemed fit for unrestricted Watchkeeping duties after the
first year of the required two years of sobriety and counselling services but
unfit for “No Lone Watchkeeping” duties after
eight months of sobriety and counselling services.
[49]
As I indicated previously, the Respondent contends that the two-year monitoring period can be
shortened on the basis of individual assessments made by Marine Medical Examiners,
a feature of the policy which was not mentioned in the June 2012 letter and
which appears to be left entirely to the judgment of these professionals.
However, here, it is not clear at all on what basis the Applicant was assessed
in such a short period of time from being wholly unfit to being totally fit for
Watchkeeping duties. In other words, why was the Applicant deemed fit for such
duties at the mid-way point of the policy’s two-year monitoring period instead
of the full two years or at the 15 month mark or, for that matter, at the 8 month
mark? There is no evidence of a further individual assessment being performed
on the Applicant by a Marine Medical Examiner between May and October 2012. And
yet, according to the Supplementary Investigation Report, the Respondent claims that “the most effective way” to assess for alcohol dependence and ensure outcomes that are “neither arbitrary nor thoughtless” is “through individual assessment through personal medical examinations
and questionnaires” as well
as through further tests or further information that Marine Medical Examiners
are advised to obtain from the applicants’ family doctors (Supplementary Investigation
Report, at para 11). None of that appears to have preceded the October 2012
decision to lift the “No
Watchkeeping” restriction in this case.
[50]
The Supplementary Report goes on to state that according
to Transport Canada’s policy, if the Marine Medical Examiner has “any concerns”, no
Certificate will be issued “because
any compromise to the seafarer’s function could lead to a societal hardship in
terms of injury to other crew, passengers, destruction of cargo or vessel and
environmental impact” (Supplementary Report, at
para 13). Again, there is no clear explanation on record as to what prompted
Transport Canada to move, in a span of five months, from a zero-risk approach
to a no safety-concern position in the case of the Applicant. This hardly
provides a basis for concluding that these outcomes, when considered together,
are “neither arbitrary nor
thoughtless”.
[51]
Furthermore, relieving the Applicant from any
Watchkeeping restrictions only halfway through that alleged two-year safety
critical period signals a steady and successful participation to his
rehabilitation program. Why then was he deemed unfit for a “No Lone Watchkeeping” accommodation after 8 months
into this program? Again, I fail to see any reasonable explanation for this
denial in the material before me in light of this further decision lifting the
restrictions on the Applicant’s Certificate. But more importantly, I do not see
any type of inquiries on the part of the Commission on what is, in my view, an obviously crucial element of this case.
[52]
As mentioned previously, the Respondent claims that
the “No Lone Watchkeeping” is not a viable option for those with alcohol dependency due to the
potential for impaired judgment issues such as determining whose instructions the
crew and the public on board should follow if the alcohol dependent seafarer was
to find himself in a state of impaired judgment. However, this approach, which
does not take into account the particular circumstances of each case, does not
sit well with step 3 of the Meiorin test which discourages blanket accommodation refusals (Grismer, at para 3). This is especially
the case here where the Applicant, shortly after being denied a “No Lone Watchkeeping”, was relieved of any
restrictions regarding his ability to conduct Watchkeeping duties. In my view,
there is a disconnect between these two sharply contrasted positions which lacks
a rational justification in the circumstances of this case.
[53]
Also, as the Supreme Court of Canada pointed out in
Meiorin, courts and tribunals “should be sensitive to the various ways in which individual
capabilities may be accommodated” (Meiorin,
at para 64). Although I appreciate the fact that when it comes to seafarers,
Transport Canada acts as a regulator, not as an actual employer, and that,
therefore, there are some limits to its duty to accommodate, the Commission, in
the Supplementary Investigation Report, appears to recognize that part of
Transport Canada’s role in that regard is to “possibly identify potential accommodations measures an applicant
may require” (Supplementary Investigation Report,
at para 48). It seems that performing “No Lone Watchkeeping” duties under
the supervision of a ship officer, as proposed by the Applicant (Supplementary Investigation Report, at para 27) could alleviate the
safety concerns Transport Canada has regarding this accommodation option by
making sure that there is no ambiguity for the crew and the public as to who is
the person ultimately in charge of giving instructions. I take it that this
option could be in place until the end of the policy’s two-year monitoring
period and subject to the policy’s quarterly abstinence reports. There is no
evidence before me that an employer would not be amenable to such an
arrangement, be it for health, safety or costs concerns. However, there is no
discussion in the Commission’s Supplementary Investigation Report as to whether
it would have been impossible to accommodate the Applicant in this fashion in
May 2012.
[54]
Again, this particular “No Lone Watchkeeping” option does not appear to have been fully
canvassed by the Commission, if at all. In light of the fact that the Applicant
was cleared for unrestricted Watchkeeping duties only a few months after been told
he was unfit for any such duties, including those performed in the presence of
a companion Watchkeeper, it was in my view incumbent on the Commission to look
into this option further. It did not do so.
[55]
I am mindful that the Commission has “a remarkable degree of latitude” when exercising its screening function and that the Court, as a
result, will not interfere lightly when the Commission decides that no further
inquiry is warranted in a given case (Bell Canada v Communications, Energy
and Paperworkers Union of Canada, [1999] 1 FC 113 (CA), at para 38).
However, the Commission’s decision still needs to meet the reasonableness
standard threshold and in applying this standard, the Court must be satisfied
that the Commission did not fail to investigate obviously
crucial evidence.
[56]
Here, in my view, the main flaw in the Commission’s
decision is its failure to consider Transport Canada’s alleged impossibility to
accommodate the Applicant further than by a “No Watchkeeping” restriction in May
2012 in the context of Transport Canada’s decision, shortly thereafter, to lift
all restrictions to the Applicant’s capacity to perform Watchkeeping duties. In
particular, the Commission considered the sequence of events (denial of a
Certificate in 2010, issuance of a restricted Certificate in May 2012 and
issuance of an unrestricted Certificate in October 2012) without regard to the
actual timelines of these decisions when considered in the context of Transport
Canada’s policy. The sharp contrast between the last two decisions, given their
timelines, needed to be explained and further investigated with a view of
determining whether the May 2012 “No Watchkeeping” restriction was in
fact the only accommodation that could be offered to the Applicant at that time
considering all the circumstances of the case.
[57]
This was not done and leaves wide open, in my view,
the issue of whether this outcome was indeed “neither arbitrary nor thoughtless”. I
find nothing in Transport Canada’s submissions in response to the Supplementary
Investigation Report which, as permitted by the jurisprudence (Slattery,
at para 58), overcomes these defects in the investigation.
[58]
The Applicant’s judicial review application will
therefore be granted. As I am not prepared to accept that this case raises a
reasonable apprehension of bias, as contended by the Applicant, the matter will
be remitted to the Commission for reconsideration of the undue hardship
component of the Meiorin test, and not referred directly to the Canadian
Human Rights Tribunal as requested by the Applicant.
[59]
As is well established, any apprehension of bias
must be reasonable and held by “reasonable
and right minded persons, applying themselves to the question and obtaining
thereon the required information” (Committee for Justice and Liberty
v National Energy Board, [1978] 1 S.C.R. 369 at p. 394 [Committee for
Justice]). This onus is a demanding one as allegations of bias are amongst
the most serious.
[60]
The Applicant’s bias claim is first based on the
fact that his compliant was held by the Commission, in its early stages, to be
moot and vexatious due to the issuance of the unrestricted Certificate in
October 2012. I agree with the Respondent that this is no evidence of bias.
This was rather an error on the part of the Commission which was corrected by
the time of the first judicial review application.
[61]
As for the contention that the exchanges between
the Commission’s (second) investigator and Transport Canada raised an
apprehension of bias, the Applicant also failed to meet the Committee for
Justice threshold. Indeed, while the Applicant alleges that the
investigator directed Transport Canada to specific case law, the jurisprudence
she referred to in her discussion with Transport Canada’s representative was
specifically raised by Justice Rennie in Walsh 2015. Furthermore, I see
no basis to the Applicant’s allegation that the Commission’s investigator helped
Transport Canada shape its answer to the Supplementary Investigation Report by
pointing to certain sections of Justice Rennie’s decision. I believe that the
investigator was simply attempting to be as thorough as she felt she had to be in
responding to Justice Rennie’s decision.
[62]
Finally, the Applicant contends that the
granting of a 5-day extension of time for the filing of Transport Canada’s
submissions amounts to a reasonable apprehension of bias. I do not agree. As
pointed out by the Respondent, this request was reasonably sought and
reasonably granted by the Commission as the Transport Canada official providing
these submissions is in a wheelchair, types with a mouth stick and was obliged
to go to the dentist. This does not indicate bias in favour of Transport Canada
all the more so as there is no evidence that the Applicant sought or was
unreasonably denied similar treatment.
[63]
The Applicant does not seek any costs other than
those associated with the Court fees and photocopies. Given the outcome of this
case, these costs are awarded to him.
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