Docket: T-690-15
Citation:
2017 FC 689
Ottawa, Ontario, July 17, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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YVONNE
SOULLIÈRE
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Applicant
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and
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CANADIAN BLOOD
SERVICES
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HEALTH CANADA
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Respondents
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and
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THE CANADIAN
HUMAN RIGHTS COMMISSION
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Intervener
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JUDGMENT AND REASONS
I.
Introduction
[1]
This case is about Yanhong Dewan, a young woman
of exceptional kindness and generosity. It has been estimated that just under
half of Canadian adults are eligible to give blood, and of those eligible only
3-5% actually donate (see Canadian Blood Services v Freeman, 2010 ONSC
4885 at para 49 [Freeman]). Ms. Dewan is one of those exceptional
individuals who wanted to donate her blood to help others in need. Regrettably,
she was also one of the many found to be ineligible to donate blood.
[2]
Ms. Dewan’s mother, Ms. Soullière, seeks
judicial review of a March 26, 2015 decision of the Canadian Human Rights
Commission (“Commission”) dismissing the
complaint against Canadian Blood Services (“CBS”),
pursuant to section 44(3)(b)(i) of the Canadian Human Rights Act, RSC
1985, c H-6 [Act] on the basis that further inquiry was not warranted in the
circumstances (the “Decision”). Although it is
regrettable that Ms. Dewan is not eligible to donate blood, I find no reviewable
error in the Commission’s Decision, and therefore this judicial review is
dismissed, for the reasons explained below.
[3]
In an application heard concurrently (Court file
No. T-691-15), Ms. Soullière also seeks judicial review of a related Commission
decision dismissing her complaint against Health Canada (“HC”), also pursuant to section 44(3)(b)(i) of the
Act. Due in part to the outcome of this judicial review (Court file No.
T-690-15), I have also dismissed the HC judicial review. A copy of both decisions
shall be placed in each of these two Court files.
II.
Background
[4]
The genesis of this action occurred when Ms.
Yvonne Soullière (the “Applicant”) filed a
December 5, 2012 human rights complaint against CBS (the “Complaint”) on behalf of her daughter, Yanhong Dewan.
The Complaint alleged that Ms. Dewan was rejected as a blood donor and deemed
indefinitely ineligible on the basis of her inability to understand and
complete the blood donor screening questionnaire, due to her intellectual
disability.
[5]
Although CBS contends that the Commission
properly dismissed the Complaint, CBS submits that the Commission erred by
failing to dismiss the Complaint on the preliminary basis that blood collection
is not a “service customarily available to the general
public” under section 5 of the Act. All statutory references below are
to the Act, unless otherwise specified.
A.
Ms. Yanhong Dewan
[6]
Ms. Dewan’s intellectual disability has not been
specifically identified. However, it is not disputed that she was screened out
of the blood donation process as a result of her disability.
[7]
The Respondent, CBS, is a charitable
organization responsible for managing the blood and blood component (“blood”) supply for all provinces and territories of
Canada, except Québec. It was created in 1998 in response to the tainted blood
tragedy which resulted from the Canadian Red Cross Society’s failure to limit
the transmission of Human Immunodeficiency Virus (HIV) and Hepatitis C through
the blood supply in the late 1970s and early 1980s. The tragedy reportedly
resulted in the infection of more than 20,000 recipients of blood products, and
the death of over 1,000 Canadians. As a result, the Canadian government
appointed the Commission of Inquiry on the Blood System in Canada, known as the
“Krever Inquiry” (Investigation Report at para
9).
[8]
The Krever Inquiry recommended that Canada have
a national system for the collection and delivery of blood, and that there
continue to be a federal entity dedicated to its regulation. CBS was created as
a result to be Canada’s national blood operator. Since Canada considers blood
products to be biological products, CBS is considered a biological drug
manufacturer subject to the Food and Drugs Act, RSC, 1985 c F-27 and, as
such, is subject to regulation by HC.
[9]
CBS collects blood from volunteer donors,
processes them into blood products, and distributes these products to hospitals
across Canada. As part of CBS’ blood donation screening process, potential
donors are asked to complete the “Donor Health Assessment
Questionnaire” (the “DHAQ”). The DHAQ
asks a series of questions to assess the potential donor’s health, potential
for giving blood, and potential risk to the blood system.
C.
The Complaint
[10]
On February 2, 2012, Ms. Dewan attended a mobile
blood donor clinic in Lasalle, Ontario, intending to donate blood. The CBS
nurse screener met with Ms. Dewan alone, and attempted to explain some of the
DHAQ questions in “simpler” language. However,
the nurse ultimately screened Ms. Dewan out of the process and did not allow
her to donate. Ms. Soullière communicated to CBS that she did not agree with
this decision.
[11]
On February 15, 2012, CBS learned that Ms. Dewan
intended to again attempt to donate blood. Since CBS had recently determined
that Ms. Dewan was “indefinitely deferred” and
this would not change if she attended a different clinic, it contacted Ms.
Soullière to dissuade her daughter from attending the upcoming blood donor
clinic.
[12]
Subsequently, there were communications between
the parties. On August 17, 2012, Dr. Skeate, CBS’ Associate Medical Director,
spoke to Ms. Soullière on the telephone and offered to conduct an External
Medical Examination (“EME”) process for her
daughter – a personalized process that CBS may offer when there are issues
arising from the initial screening and DHAQ. The EME involves a customized
approach including a discussion with CBS medical staff, such as Dr. Skeate. Ms.
Soullière did not proceed with the EME on behalf of her daughter. There is some
dispute as to what exactly was communicated and offered in terms of the EME.
[13]
On December 7, 2012, Ms. Soullière filed the
Complaint against CBS on behalf of her daughter. In her Complaint, Ms.
Soullière alleged, among other things, that CBS discriminated against her
daughter on the basis of her intellectual disability by denying her the ability
to donate blood, and by barring her from doing so indefinitely.
[14]
On February 8, 2013, CBS requested that the
Commission dismiss the Complaint, on the basis that it was beyond the
jurisdiction of the Commission, pursuant to section 41(1)(c) of the Act.
Specifically, CBS argued that the Commission lacked jurisdiction because the ‘opportunity to give blood’ does not constitute a
service within the meaning of section 5.
[15]
After considering submissions from the parties,
the Commission prepared a section 40/41 report that recommended dealing with
the Complaint as it was not “plain and obvious”
that CBS did not provide a service within the meaning of section 5. The parties
were given this section 40/41 report and provided submissions in response
to it.
[16]
After reviewing the submissions, on December 18,
2013 the Commission made a final decision under section 41(1) to deal with the
Complaint, finding that on the question of “service”:
The Commission should deal with the complaint
because it is not frivolous. It is not plain and obvious that the activity in
question is not a service. For the reasons discussed above CBS appears to
provide a service when screening potential blood donors. Screening is the first
step of the blood supply system. This first step cannot be artificially
divorced from the other steps in the system (i.e. collecting, testing,
production and distribution), which CBS admits are services customarily
available to the public.
[Section 40/41 Report at para 95]
[17]
As a result of this section 41 decision, the
Commission began its investigation process. The Commission’s investigator (“Investigator”) compiled information received from the
parties and witnesses.
[18]
On December 29, 2014, the Investigator delivered
the Investigation Report (“Report”), which
recommended dismissing the Complaint, on the basis that further inquiry was not
warranted in the circumstances. The parties were invited to – and duly provided
– submissions in response to the Report. They also subsequently provided
replies to one another’s submissions. Consistent with its position before this
Court, CBS agreed that no further inquiry was warranted, but disagreed that the
Complaint was directed to a “service” within the
meaning of section 5 of the Act.
[19]
The Commission ultimately dismissed the
Complaint in its Decision, confirming the finding of the Report that a further
inquiry was not warranted. A summary of the Decision follows.
III.
The Decision Under Review
[20]
The Decision simply states that after reviewing
the Report and the submissions filed in response, the Commission dismisses the
Complaint pursuant to section 43(3)(b)(i) of the Act, because further inquiry
is not warranted, having regard to all of the circumstances.
[21]
It is common ground between the parties that in
these circumstances, the Commission’s reasons are deemed to be those provided
in the Report (Canada (Attorney General) v Sketchley, 2005 FCA 404 at
para 37 [Sketchley]).
[22]
The Report begins by noting that the Commission
does not determine whether discrimination has actually occurred, but rather
whether a complaint requires further inquiry by the Canadian Human Rights
Tribunal (the “Tribunal”). The Investigator, in
coming to her recommendation, states that she reviewed the parties’ positions,
and all of their documentary evidence presented. She also states that she
conducted five telephone interviews – with Ms. Soullière and Ms. Dewan, along
with three CBS representatives: Debra Freeman (the CBS Nurse/Screener who met
with Ms. Dewan when she attempted to donate blood); Dr. Mindy Goldman (Medical
Director of CBS’ Donor and Clinical Services); and Dr. Robert Skeate (an
Associate Medical Director at CBS).
[23]
As for the decision-making matrix, the Investigator
describes the investigation process as constituting three steps: (1) whether
there was support for the allegation of discrimination; and if so (2) whether
it was bona fide justified; and (3) whether any support existed for the
allegation of a failure to accommodate. The detailed Report, numbering some 138
paragraphs, comprehensively summarizes the evidence and submissions considered
for each of these three questions.
A.
Step 1: Whether there was support for the
allegation of discrimination in the provision of a service customarily
available to the general public
[24]
The Report identifies the service at issue in
the Complaint as being CBS’ screening of potential blood donors when
determining a person’s eligibility to donate blood. The Report states that this
service was customarily available to the general public and notes that CBS did
not ask this Court to review the Commission’s section 41 decision to deal with
the Complaint. The Report also notes that CBS provided a full defence to the
investigation.
[25]
The Report further notes that it was not
disputed that Ms. Dewan’s disability affects her comprehension level of words
and language, and that CBS acknowledges that it denied Ms. Dewan the
opportunity to donate blood on the basis that she could not adequately
comprehend the screening and donation process. The screener documented the
reasons for determining Ms. Dewan’s ineligibility thus: “…donor has a mental disability and as per mother has
intellectual ability of 3 to 5 year old child. Mother wanted to answer
questions for daughter. Donor cannot read and doesn’t have an understanding of
timeframes, transmissible disease – unable to understand questions even when
restated in a simpler fashion…” (Report at para 22).
[26]
The Report concluded, under this first step of
the analysis, that CBS had denied Ms. Dewan access to the blood donation
service on a basis related to her disability.
B.
Step 2: Whether CBS’ standard is bona fide
justified
[27]
The Report identified the standard relied upon
by CBS in denying Ms. Dewan access as “the ability to
understand and complete the DHAQ without help (other than from a respondent
screener).” CBS screens all individuals who volunteer to donate blood,
requiring them to comprehend the blood donation process, including the DHAQ,
without the assistance of a third party other than the CBS nurse-screener (with
two exceptions which will be discussed below). The purpose of this is twofold:
to ensure that giving blood will not place the donor’s health at risk, and to
ensure that the donation is safe for transfusion to recipients. The question
for the Investigator was therefore whether this standard could be justified.
[28]
The Report accepted that CBS had adopted the
standard in good faith, and for a purpose rationally connected to the general
function being performed – namely following the recommendations of the Krever
Inquiry in order to safeguard the safety of the blood supply. CBS required
comprehension of the DHAQ without the assistance of a third party, save for two
exceptions: certified American Sign Language (ASL) and foreign language
translation. The rule and its two exceptions were strictly enforced, and
potential donors must answer the questions accurately and appreciate the risks
of blood donation – both to oneself and to others. CBS explained that it
adopted the standard following the recommendations of the Krever Inquiry,
consistent with HC’s regulatory requirements and with the policies and
practices of other major blood operators and policy-making bodies around the
world.
[29]
The Investigator then turned to the question of
whether the standard was reasonably necessary to achieve the purpose or goal,
and noted that this issue is considered by asking whether accommodating Ms.
Dewan would cause undue hardship based on health, safety, and/or cost, a
question which turned on the key third step in the Commission’s matrix.
C.
Step 3: Whether there is support for the
Complainant’s allegation of a failure to accommodate to the point of undue
hardship
[30]
The bulk of the Report’s written discussion
addressed the accommodation issue. The Investigator recommended dismissing the
Complaint, concluding at paragraph 131:
Based on the evidence, the respondent’s
reasons for being unable to accommodate Ms. Dewan by modifying the DHAQ or
permitting a third party (such as the complainant) to help Ms. Dewan answer
questions in the donor screening process, appear justified. The evidence
supports that allowing the complainant’s requested accommodation would result
in undue hardship for the respondent, as it would create undue risk to the
safety of the blood supply.
[31]
Moreover, the Investigator, at paragraph 130 of
her Report, rejected the Complainant’s submission that CBS had breached its
procedural duty to accommodate, relying on Canada (Human Rights Commission)
v Canada (Attorney General), 2014 FCA 131 at para 16 [Cruden], to
conclude that that there is no separate procedural duty to accommodate.
IV.
Issues Raised
[32]
Counsel for Ms. Soullière claims that the
Commission made four reviewable errors in its Decision:
A.
breaching procedural fairness by
i.
relying on an inadequate investigation, and
ii.
failing to address Ms. Soullière’s submissions
in response to the Report, and not addressing the entirety of Ms. Soullière’s
responses;
B.
rendering its decision on the basis of no
evidence, including by failing to consider the alternative accommodation
options raised by Ms. Soullière;
C.
exceeding its jurisdiction by adjudicating the Complaint rather
than applying the threshold test to determine whether further inquiry is
warranted; and
D.
erring in law by:
i.
applying the wrong legal test to determine undue
hardship, and
ii.
rejecting the procedural duty to accommodate Ms.
Dewan’s disability.
[33]
CBS, in addition to denying these claims,
contends that it was in any case unreasonable for the Commission to have
proceeded on the premise – as a foregone conclusion – that blood collection was
a service within the meaning of section 5 of the Act.
[34]
Given that I am writing this decision so that
Ms. Dewan and Ms. Soullière understand why the judicial review is not being
granted, I will proceed to address each of these claims in turn as formulated by
counsel for Ms. Soullière. I will also address whether the Decision as a whole
is reasonable. However, this necessarily means there will be some repetition in
my reasons, given that several of the arguments overlap.
V.
Standard of Review
[35]
There is no dispute that the standard of review
applicable to questions of procedural fairness is correctness (Mission
Institution v Khela, 2014 SCC 24 at para 79). Ms. Soullière argues that the
correctness standard should also apply to issues of jurisdiction and law (of central
importance to the legal system that are outside of the adjudicator’s expertise)
that it has raised, per Dunsmuir v New Brunswick, 2008 SCC 9 at paras
59-60 [Dunsmuir].
[36]
The Commission’s discretion not to refer a
complaint to the Tribunal is reviewable on the reasonableness standard (Halifax
(Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC
10 at para 17 [Halifax]). Nevertheless, Ms. Soullière notes that this
Court has previously held in Gravelle v Canada (Attorney General), 2006
FC 251 at para 39, that decisions dismissing complaints should be more closely
scrutinized than decisions referring complaints to the Tribunal, for the
reasons articulated in Larsh v Canada (Attorney General), [1999] FCJ No
508 (Fed TD) at para 36:
A dismissal is, after all, a final decision
that precludes the complainant from any statutory remedy and, by its nature,
cannot advance the overall purpose of the Act, namely protection of individuals
from discrimination, but may, if wrong, frustrate it.
[37]
Although there is general agreement between the
parties on the broad parameters of standard of review, the parties disagree as
to the standard on particular issues, and those instances will be addressed in
turn below.
VI.
Submissions and Analysis
[38]
First, Ms. Soullière contends that the
Commission erred by relying on an investigation that failed to thoroughly
investigate crucial evidence and adequately address her submissions, including
alternative forms of accommodations proposed by Ms. Soullière that were
rejected by CBS. These proposed accommodations included the following: (1)
clear language interpretation by an independent third party experienced in
working with intellectually disabled individuals; (2) models of accommodation
set out in the World Health Organization’s Guidelines on Assessing Donor
Suitability for Blood Donation; (3) alternative forms for administering
screening questionnaires used in other jurisdictions; (4) United Kingdom models
of accommodation that permit communication in alternative formats; (5) models
based on CBS’ own research, to modify the DHAQ; and (6) allowing disabled
individuals to take the DHAQ home in order to familiarize themselves with it,
before returning for blood donor screening.
[39]
Ms. Soullière, while acknowledging the Investigator
made reference to some (but not all) of her proposed accommodations, contends
the Investigator merely summarized her submissions without evaluating their
merits. She asserts this does not meet the standard of thoroughness required
for procedural fairness. Ms. Soullière states that she even drew these
deficiencies to the Commission’s attention in her submissions responding to the
Report, yet the Commission failed to provide any reasons regarding the proposed
accommodations in its subsequent refusal. Ms. Soullière points to the following
passage from Justice Martineau’s decision in Dupuis v Canada (Attorney General),
2010 FC 511 at para 16 [Dupuis]:
Moreover, where a party's submissions allege
substantial and material omissions in the investigation and provide support for
that assertion, the Commission must refer to those discrepancies and indicate
why it is of the view that they are either not material or are not sufficient
to challenge the recommendation of the investigator; otherwise one cannot but
conclude that the Commission failed to consider those submissions at all.
[40]
Ms. Soullière submits that the Commission’s
failure to address all of the alternative forms of accommodation constitutes a
breach of procedural fairness, and that the opportunity to make submissions in
response to the deficiencies in an investigator’s report does not compensate
for a defect in procedural fairness in the investigation where evidence has
been disregarded or ignored (Herbert v Canada (Attorney General), 2008
FC 969 at para 18 [Herbert]; Slattery v Canada (Human Rights
Commission), [1994] 2 FC 574 (Fed TD) [Slattery] at paras 55-57,
aff’d (1996), 205 NR 383 (FCA)).
[41]
Second, Ms. Soullière alleges that the
Commission further breached her procedural fairness rights in failing to
consider the entirety of her responding submissions to the Investigator’s two
reports (for both the CBS and the HC complaints). Ms. Soullière’s responding
submissions addressed both investigation reports in a single document, and for
the purposes of the CBS complaint, the Commission excerpted and only considered
the submissions pertaining to the CBS Report, and not the portions related to
the HC investigation report. She maintains that some aspects of the submissions
pertaining to the HC investigation report were relevant to both complaints.
i.
Inadequate investigation and alleged failure to consider
crucial evidence
[42]
Justice Mosley discussed the requirements of
procedural fairness in the Commission’s investigation stage in Carroll v
Canada (Attorney General), 2015 FC 287 at para 67 [Carroll]:
The case law clearly establishes that an
investigation which does not deal with the substance of a complaint, fails to
investigate a relevant question, or fails to consider crucial evidence is
unfair because it is not thorough. That unfairness carries over to any eventual
dismissal decision rendered by the Commission. Whether the complainant has been
able to make submissions is irrelevant. If submissions were made but
disregarded, that does not increase the thoroughness of the investigation - it
decreases it.
[43]
Investigations carried out by the Commission
must be neutral and thorough. For instance, an investigation is not thorough
where an investigator fails to investigate crucial evidence (Slattery at
paras 49-50; Hughes v Canada (Attorney General), 2010 FC 837 at paras
32-33 [Hughes]).
[44]
With respect to the argument that the Investigator
overlooked some of the alternative accommodations, I find that any alternatives
not expressly referenced in the Report are all variations of those that are expressly
considered in the Report. Broadly speaking, the alternative accommodations fall
under themes of either having a third party clear language interpreter
participate in the process, or altering the DHAQ directly to be a more plain
language document. The Report extensively canvassed these alternatives and why
it is not feasible for CBS to implement such alternatives without incurring
undue hardship.
[45]
The Commission concluded, after considering the
options, that CBS could not accommodate Ms. Dewan without undue hardship. It
did not have to expressly refer in detail to each and every specific one of the
possible alternative accommodation measures. The Report covered the essential
aspects of the alternatives, which is all that is required. Procedural fairness
does not require the Commission to mention every piece of evidence (Bergeron
v Canada (Attorney General), 2015 FCA 160 at para 76; Alkoka v Canada (Attorney
General), 2013 FC 1102 at para 56 [Alkoka]).
[46]
In Hughes at para 34, Justice Mactavish
noted some of the competing considerations when assessing whether an
investigation was deficient:
The requirement for thoroughness in
investigations must also be considered in light of the Commission's administrative
and financial realities. With this in mind, the jurisprudence has established
that some defects in the investigation may be overcome by providing the parties
with the right to make submissions with respect to the investigation report. As
the Federal Court of Appeal observed in Sketchley, the only errors that
will justify the intervention of a court on review are "investigative
flaws that are so fundamental that they cannot be remedied by the parties'
further responding submissions": at para. 38.
[47]
The Commission retains broad discretion to
determine whether further inquiry is warranted (Alkoka at para 41) and
this Court has held that judicial intervention is only warranted where the
Commission failed to consider “obviously crucial”
evidence, not for minor omissions and defects that can be corrected by the
parties’ further submissions to the Commission (Slattery at paras 56 and
57). An investigator is not required to refer to all of the evidence submitted,
nor does its failure to do so necessarily indicate that it failed to take all
of it into account. And as noted in Herbert at para 26, “[w]here the parties' submissions on the report take no issue
with the material facts as found by the investigator but merely argue for a
different conclusion, it is not inappropriate for the Commission to provide the
short form letter-type response.”
[48]
Ms. Soullière correctly observes that the Report
only addresses the alternative accommodations expressly in the course of
recounting the parties’ submissions. However, I do not find that constitutes
overlooking or ignoring the evidence of alternative accommodations. Rather, the
lengthy summaries, followed by brief conclusions, were simply a feature of the Investigator’s
writing style. The Report extensively summarized CBS’ submissions regarding the
limitations and risks of the alternative accommodations, and found these
persuasive. The Report dealt with the substance of the Complaint, and there is
no indication that the Investigator failed to investigate a relevant question
or to consider crucial evidence. Accordingly, I find no procedural unfairness,
in either the process followed by the Investigator, or ultimately – as I will
address next – in the Commission adopting the Investigator’s recommendation.
The Report addresses all key submissions, including the range of alternative
accommodations proposed.
[49]
In sum, procedural fairness does not require
that the Decision expressly itemize all of the evidence submitted. There is, in
my view, no basis upon which to conclude that the Investigator, or in turn the
Commission, failed to consider crucial evidence. Finally, I will also address
the “alternative accommodations” argument as
part of the substantive review of the Decision on the reasonableness standard,
below.
ii.
Failure to address the entirety of Ms. Soullière’s
responses
[50]
I also disagree with Ms. Soullière’s second
procedural fairness allegation that the Commission improperly excised portions
of her responding submissions that pertained to the other complaint against HC,
to which CBS is not a party. Indeed, the Commission properly decided to excise
the portions of Ms. Soullière’s response regarding the HC complaint. Two
complaints were levied by Ms. Soullière (consistent with the Commission’s procedure):
one against CBS, and another against HC. CBS was not privy to the HC complaint,
and had no opportunity to make submissions on any of the issues raised in that
investigation (and vice versa).
[51]
Therefore, it may have been procedurally unfair
to CBS had the Commission conflated the two complaints, considering information
gathered in the HC investigation when making its findings in the CBS complaint.
Again, CBS was not privy to the HC complaint (and vice versa). Otherwise
stated, excising the portions of Ms. Soullière’s response related to the HC complaint,
as the Investigator did, was both appropriate and necessary in the
circumstances.
[52]
Rather, it is what Ms. Soullière advocates for
that would have been procedurally unfair. Counsel for Ms. Soullière chose to
file a single consolidated response to both investigation reports, each of
which proceeded as a separate complaint. The fact that the Commission needed to
sever the information pertaining to each complaint therefore should not have
come as a surprise.
[53]
To conclude, I do not agree with the allegations
of unfairness raised. First, I find the investigation was thorough and neutral,
and that the Commission dealt with all of the relevant issues after considering
the appropriate evidence and submissions. Second, I do not find any unfairness
in the severing of the Applicant’s response to the Report.
B.
Did the Commission render its decision on the
basis of no evidence?
[54]
Ms. Soullière submits the Commission’s
conclusion – that the requested accommodation would result in undue hardship to
CBS by creating a risk to the safety of the blood supply – was based on no
evidence, unreasonable inferences, or mere speculation.
[55]
Ms. Soullière asserts that there was “no evidence before the Commission to suggest that the
proposed alternative accommodation would cause undue hardship to CBS” (Applicant’s
Memorandum of Fact and Law at para 50). In particular, Ms. Soullière states
that there was no evidence of any evidence-based risk analysis having been
conducted by CBS to support its position of undue hardship. Therefore, the Commission
failed to consider whether CBS had demonstrated that it adequately engaged in a
risk analysis in reaching its conclusion that the alternative accommodations
pose undue risk to the safety of the blood supply.
[56]
By contrast, Ms. Soullière points to CBS’
deferral policy for males who have sex with males. Ms. Soullière argues in that
instance, CBS engaged in a thorough evidence-based risk assessment to determine
whether the deferral policy could be changed without causing undue risk to the
blood supply.
[57]
Further, Ms. Soullière states that in a 2009
pilot project, CBS tried having multi-skilled clinic employees - instead of
nurses - perform all clinic functions, found that the change did not compromise
safety, and changed the blood donation process as a result. Ms. Soullière
asserts that in both of these examples, CBS gathered data to determine actual
risk to the safety of the blood supply, but failed to do so in this case.
[58]
Ms. Soullière submits that the facts before the
Commission demonstrated that the alternative forms of accommodation she
proposed may meet the screening requirements established by CBS, yet the
Commission failed to explore the accommodation options analogous to ASL and
foreign language interpretation, such as “plain
language” translation. Therefore, the Commission arbitrarily made its
decision on the basis of no evidence regarding the actual risks posed by the
alternative forms of accommodation.
[59]
This is one of the issues, mentioned above,
where the parties fundamentally differ on the applicable standard of review.
Ms. Soullière contends that findings based on no evidence, unreasonable
inferences, or mere speculation, constitute errors of law subject to the
correctness standard of review, as they are elevated to “jurisdictional errors”. Ms. Soullière relies on Fashoranti
v College of Physicians and Surgeons of Nova Scotia, 2015 NSCA 25 at para
21 [Fashoranti], where the Nova Scotia Court of Appeal relied on its
earlier decision in Fadelle v Nova Scotia College of Pharmacists, 2013
NSCA 26 [Fadelle] at paras 12-17. Fadelle states at paragraph 15
that a finding based on no evidence is an arbitrary finding, and an error of
law.
[60]
For its part, CBS contends that the applicable
standard of review is reasonableness.
i.
Analysis
[61]
In terms of standard of review, determinations
on questions of fact are entitled to deference (Dunsmuir at para 53),
and so is the Commission’s discretionary decision to dismiss a complaint (Halifax
at para 17).
[62]
In Fadelle, the Nova Scotia Court of
Appeal was dealing with a statute that provided for an appeal on “any point of law”, and was faced with the question of
when an error in an administrative tribunal’s fact finding process may
constitute an appealable error of law – an entirely different context than this
judicial review. As noted in Fashoranti at para 23, and in Fadelle
at para 12, before applying the administrative law standard of review, a court
must isolate any ground of appeal permitted by statute (in that case, on any “point of law”). There is no statutory ground
of appeal in this case.
[63]
Furthermore, nothing in Fadelle held that
fundamentally unreasonable inferences can be an error of law, or that a finding
of an essential fact based on no evidence rises to an error of jurisdiction, in
relation to a standard of review analysis. Rather, the Court of Appeal simply
observed that the factual grounds being challenged were “beyond the Court’s appellate jurisdiction, that is
confined to errors of law” (Fadelle at para 17; emphasis added).
This is an entirely different proposition than the one raised by Ms. Soullière.
[64]
Moreover, even if one puts aside the different
context of Fadelle, and accepts that the Tribunal’s factual findings in
this case were properly considered a question of law, they could well now be
subject to the reasonableness standard of review under modern administrative
law principles. There is simply no indication that any of the categories that
rebut the presumption of reasonableness are present here (see generally Edmonton
(City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47
at paras 22-24 [Edmonton East]; Keith v Canada (Correctional Service),
2012 FCA 117 at para 48 [Keith]).
[65]
Finally, the applicable standard of review would
make no difference in this case. If an important finding, such as whether
alternative accommodations would require undue hardship, was indeed based on no
evidence, it is hard to imagine circumstances where such a decision would not
be unreasonable.
[66]
In any case, I do not find that there is any
foundation to the argument that the Decision was based on no evidence. At best,
the Applicant’s argument in this case might be that the Decision was based on
insufficient evidence.
[67]
Either way, I find that the Commission
reasonably concluded, based on the evidence, that the proposed accommodations
would result in undue hardship because all donors must understand the risks and
responsibilities of blood donation, and the proposals would undermine CBS’
ability to assess that understanding. Briefly, at this stage I would note the
evidence of the tainted blood tragedy and that, as the Ontario Superior Court
of Justice warned in Canadian Blood Services v Freeman, 2010 ONSC 4885
at paras 28-30 [Freeman], blood recipients are also vulnerable and “[i]t is these same groups who would once again suffer devastating
consequences if any reduction of standards led to increased transmission of
pathogens.”
[68]
Given that, in my view, the proper standard of
review for this issue is reasonableness, I will more fully address the evidence
supporting the Commission’s Decision under the next section.
C.
Was the Commission’s Decision reasonable?
[69]
Ms. Soullière makes similar arguments above, in
contending that the Commission’s Decision was procedurally unfair. Specifically,
Ms. Soullière alleges that the Commission did not properly consider all of the
alternative accommodations, such as clear language interpretation, and that the
finding of undue hardship was unsupported by any evidence-based risk analysis.
[70]
CBS takes the position that it cannot modify the
DHAQ or permit a third party to assist Ms. Dewan in answering questions in the
donor screening process.
[71]
As discussed above, the Report canvassed the
positions of the parties in detail and addressed the essential evidence and
issues. The Commission concurred with CBS’ position that the various accommodations
proposed for Ms. Dewan would require undue hardship in the form of undue risk
to the safety of the blood supply. This conclusion was well supported by the
evidence detailed in the Report, and while I do not propose to repeat those
details in full, I will highlight some of the evidence in support of why
waiving or deviating from the established safeguards would result in undue
hardship.
[72]
There was substantial evidence of positive
actions taken by CBS to accommodate individuals like Ms. Dewan, to the extent
possible. It is clear to me that CBS takes a proactive approach to inclusion,
actively seeking to accommodate differences. There was evidence that in
designing the full donor screening process, of which the DHAQ is one part, CBS
has actively sought to use plain, accessible language, including in
collaboration with groups such as Community Living, an organization dedicated
to supporting and advancing the inclusion of people with intellectual
disabilities (Report at paras 40-43). Moreover, CBS closely follows industry
standards internationally, and considers screening questionnaires and processes
used in other countries.
[73]
That said, the screening process is designed to
be thorough and to effectively elicit reliable information about risk factors –
risk to both the potential donor and potential blood recipients. Therefore,
while CBS has strived to replace medical terminology with plain language, some
of the questions are necessarily complex, as the information required is
complex.
[74]
In short, there was evidence that the DHAQ, and
the full screening process, was already designed to be as simple as safety
permitted. CBS’ overarching objective is to collect as much safe blood as
possible to support Canada’s healthcare system; as a result, it is in CBS’
interest to find ways to accommodate potential donors in order to be able to
screen them ‘in’, rather than exclude them. The
fact that CBS takes the results of the Krever Inquiry seriously, and considers
the safety of the blood supply paramount, does not mean that it discriminates
whenever it comes to the limits of possible accommodations.
[75]
The screening process is individualized. CBS
requires that a potential donor understand the process, their responsibilities
as a donor, and the questions, as well as be able to accurately answer those
questions and follow through on the responsibilities. The fact that a potential
donor has an intellectual disability does not render him or her ineligible;
blood donations from some individuals with intellectual disabilities are
accepted, but it is on a case-by-case basis depending on demonstrated
comprehension of the process. Moreover, in addition to the individualized
assessment conducted in the normal screening process, CBS may engage the EME
process to consult physicians and external experts, if necessary.
[76]
CBS generally prohibits any third party (other
than its own screeners) from assisting potential donors. One particular point
of contention was CBS’ policy making an exception for accredited translation
services for ASL and foreign languages, but not allowing for the proposed
accommodation of clear language interpretation. CBS requires that ASL and
foreign language interpreters must be at arm’s-length from the potential donor.
Furthermore, all aspects of the screening process must be translated “verbatim” and not modified in any way, minimizing the
risk of misinterpretation.
[77]
These excepted types of interpreters are
regulated, in that they must be accredited for their translation services. There
was no evidence, on the other hand, that clear language interpretation is
currently a regulated and accredited service. Moreover, as summarized above,
there was evidence that the DHAQ is already as clear and accessible as
possible. Translation services do not alter CBS’ requirement that, in all
cases, the screener be completely satisfied that the potential donor has
provided informed consent and fully understood the questions.
[78]
Finally, I would note that the Report expressly
recognizes Ms. Soullière’s submissions in detail, including her position on
clear language interpretation (see the Report at paras 111-113 and 126-128). Ultimately,
however, the Commission favoured CBS’ submissions regarding whether further
accommodation would result in undue hardship. After reviewing this evidence,
the Report concludes:
Based on the evidence, the respondent’s
reasons for being unable to accommodate Ms. Dewan by modifying the DHAQ or
permitting a third party (such as the complainant) to help Ms. Dewan answer
questions in the donor screening process, appear justified… evidence supports
that allowing the complainant’s requested accommodation would result in undue
hardship for the respondent, as it would create undue risk to the safety of the
blood supply.
(Report at para 131; see also para 134.)
[79]
Returning to the fundamental principles of a
reasonableness assessment, I am satisfied that the Decision meets the
requirements of “justification, transparency and
intelligibility within the decision-making process”, and falls “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above at
para 47). While one might differ with its conclusion to dismiss the Complaint
at the investigation stage, that outcome was nonetheless open to the Commission
in light of the copious amount and quality of evidence on the record. The
Commission’s Decision was thus reasonable.
D.
Did the Commission exceed its jurisdiction and
adjudicate the Complaint?
[80]
Ms. Soullière submits that in dismissing the
Complaint, the Commission acted without jurisdiction or exceeded its
jurisdiction by adjudicating the Complaint rather than applying the threshold
test to determine whether an inquiry is warranted. Ms. Soullière cites the
Supreme Court of Canada’s (“SCC”) discussion of
the role of the Commission, as distinct from that of the Tribunal, in Cooper
v Canada (Human Rights Commission), [1996] 3 S.C.R. 854 [Cooper] at
para 53:
The Commission is not an adjudicative body;
that is the role of a tribunal appointed under the Act. When deciding whether a
complaint should proceed to be inquired into by a tribunal, the Commission
fulfills a screening analysis somewhat analogous to that of a judge at a
preliminary inquiry. It is not the job of the Commission to determine if the
complaint is made out. Rather its duty is to decide if, under the provisions of
the Act, an inquiry is warranted having regard to all the facts. The central
component of the Commission's role, then, is that of assessing the sufficiency
of the evidence before it.
[81]
Ms. Soullière contends that the Commission
overstepped its limited ‘screening’ role by
dismissing the Complaint on the basis of a finding that the alternative
accommodations would result in undue hardship to CBS. Ms. Soullière contends
that evidence relating to undue hardship needs to be weighed by the Tribunal in
order to make this determination. She relies on Freeman at para 5, as
being illustrative of the need for expert evidence to understand the complexity
of the operation of Canada’s blood system, the regulatory framework applying to
the blood system in Canada, the criteria for blood donor screening in other
jurisdictions, and the risk management principles that inform decision-making
related to blood safety issues.
[82]
Ms. Soullière also contends that the circumstances
in this case are similar to those in Dupuis at para 23, where this Court
held:
Moreover, instead of asking whether there
was a factual basis for the applicant's allegations of discrimination, the
investigator appears to have appointed himself as a Human Rights Tribunal by
deciding on the merits of the complaint, apparently preferring the employer's
characterization without genuinely analyzing the basis of the applicant's
allegations. Not only are the investigator's findings arbitrary and capricious,
but it can also reasonably be asked whether the investigation process leading
to the impugned decision was neutral and thorough.
[83]
Beginning with the standard of review question,
I do not agree with, nor do I find any jurisprudential support for, arguments
made by Ms. Soullière that this is a true question of jurisdiction requiring a
review on the correctness standard. Rather, the standard of review applicable
to the discretionary decision of the Commission to dismiss a complaint under section
44(3)(b) of the Act is reasonableness, albeit keeping in mind that this is a
final decision made at an early stage in the proceedings (Keith at para
47).
[84]
Having said this, I acknowledge that in Gupta
v Canada, 2011 FC 56 [Gupta], the correctness standard was applied
to the “jurisdictional” issue of whether, in the
course of making this decision, the Investigator and then the Commission
exceeded their jurisdiction by stepping into the role of the Tribunal. However,
it should be noted that the parties in that case agreed on this point (at para
18).
[85]
More importantly, in Dunsmuir at para 59,
the SCC emphasized that “jurisdiction” is “intended in the narrow sense of whether or not the tribunal
had the authority to make the inquiry”. And post-Gupta (heard by
this Court over 5 years ago), the trend at the SCC has been against
categorizing issues on judicial review as being jurisdictional: see Alberta
(Information and Privacy Commissioner) v Alberta Teachers Association, 2011
SCC 61 at paras 33-34, 39.
[86]
Most recently, in Edmonton East at para
26, the majority of the SCC reiterated that the ‘jurisdictional’
category is limited, if it indeed has any modern application, in stating that “[t]his category is ‘narrow’ and these questions, assuming
they indeed exist, are rare” (emphasis added).
[87]
The majority in Edmonton East held that
it was clear that the Board could hear the complaint about a municipal
assessment, and therefore the issue was “simply one of
interpreting the Board’s home statute in the course of carrying out its mandate
of hearing and deciding assessment complaints” (Edmonton East at
para 26). Given that the presumption of the reasonableness standard was not
rebutted due to jurisdiction or any other reason, the majority found that it
applied.
[88]
There is no question in this case that the
Commission can determine whether to dismiss a complaint pursuant to section
44(3)(b)(i) of the Act. It is nevertheless true that the Commission is not
authorized to usurp the Tribunal’s role and adjudicate a complaint on its
merits. However, that is not what the Commission did in this case.
[89]
Rather, the Commission simply determined that
there was insufficient evidence to justify a full hearing on the merits, in
light of the threshold evidence before it, which was obtained and assessed
through the investigatory process, as is required under the Act. As stated by Justice
Barnes of this Court in Tutty v Canada (Attorney General), 2011 FC 57 at
para 14, “the Commission’s decision to dismiss or refer
a complaint inevitably requires some weighing of the evidence to determine if
it is sufficient to justify a hearing on the merits”, a role analogous
to that of a judge at a preliminary inquiry (Cooper at para 53).
[90]
In other words, the Commission must tread
carefully between determining the sufficiency of evidence, which it may do, and
the wholesale weighing of that evidence, which it cannot do. This can indeed be
very a fine line to delineate, and a delicate tightrope for the Commission to
cross. The best way to describe the balance is that the Commission may screen
the probative value of the evidence. That is part of assessing the sufficiency
of the evidence. As described by Justice Zinn in Gupta at para 24:
Assessing the weight of evidence involves
assessing the evidentiary value of the evidence — in this exercise the
decision-maker assesses the persuasiveness of particular evidence in comparison
with other evidence. Assessing the sufficiency of evidence involves considering
the probative value of the evidence — in this exercise the decision-maker
assesses whether the evidence has a tendency to prove or disprove some
allegation, such as allegations of discrimination and harassment. It is
generally accepted that it is not within the Commission's or the investigator's
authority to weigh the evidence… It is, however, within their power to assess
the probative value of the evidence… [Citations omitted].
[91]
Cases turning on the final step of the test
established in British Columbia (Public Service Employee Relations
Commission) v BCGEU, [1999] 3 S.C.R. 3 [Meiorin], namely whether
accommodation would result in undue hardship, necessarily involve a comparison
of any evidence regarding potential accommodation options and any resulting
hardship. There is no scientific formula for the point at which hardship
becomes “undue”. However, the jurisprudence does
not indicate that the Commission cannot decide to dismiss a complaint on
the basis of undue hardship (i.e. that this consideration can only be assessed
by the Tribunal). In this case, the Commission’s Decision did not cross the
line, in finding that there was insufficient evidence to justify a full hearing
before the Tribunal.
[92]
At the third stage of the Meiorin
framework, the onus is on the respondent (here, CBS) to justify the impugned
standard by establishing, on a balance of probabilities, that no further
accommodation is possible without imposing undue hardship (Meiorin at
paras 54-55). If it is not clear that accommodation would require undue
hardship, at this screening stage of sufficiency, Ms. Soullière argues that one
must conclude that this would properly be referred to the Tribunal for
adjudication on the merits.
[93]
While I agree that the Investigator’s statement
that the submissions of undue hardship “appear
justified” was not the best turn of phrase, it is nonetheless well known
that on judicial review, the decision under review “should
be approached as an organic whole, without a line-by-line treasure hunt for
error”: Irving Pulp & Paper Ltd v CEP, Local 30, 2013 SCC 34
at para 54. The Report concretely found that the “complainant’s
requested accommodation… would result in undue hardship to the
respondent, as it would create undue risk to the safety of the blood supply”
(emphasis added). There was, as discussed above, more than sufficient evidence
to make this determination, which was properly applied in a manner consistent
with the Meiorin analysis, as will be explained next.
[94]
In sum, I find that the Commission considered
all of the evidence and reasonably determined that it was insufficient to
support a finding of discrimination, a decision that properly fell within its
discretion, did not cross the line into the jurisdiction of the Tribunal, and
is entitled to deference. And if I am wrong that deference is owed, I would
nonetheless find that the Commission did not err. The Commission undertook a
balanced screening process in this case, and one that was consistent with its
scope as prescribed by the Act.
E.
Did the Commission err in law?
i.
Did the Commission apply the wrong legal test
for determining undue hardship?
[95]
Ms. Soullière submits that the Commission erred
in law when determining whether accommodating Ms. Dewan’s disability would
result in undue hardship by failing to investigate alternative forms of
accommodation proposed by Ms. Soullière, contrary to Meiorin.
[96]
She asserts that this issue is subject to the
correctness standard, simply stating that it raises a question of law that is
reviewable on a standard of correctness and citing Dunsmuir, at para 50,
without elaboration. In the alternative, she asserts that the error would still
be fatal under the reasonableness standard.
[97]
Once a complainant has established a prima
facie case of discrimination, as the Commission found here, the burden
shifts to the respondent. In other words, it was up to CBS to demonstrate that
it would experience undue hardship if a different, accommodating standard were
used. Meiorin establishes a three-step test for determining whether a prima
facie discriminatory standard is justified (at para 54):
(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.
[98]
While the Meiorin test was originally
developed in the context of discrimination in employment, it also applies to
the public provision of services (British Columbia (Superintendent of Motor
Vehicles) v British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at
paras 21-22, 43-44).
[99]
It is the third step of the Meiorin test
that is primarily at issue in this case. In Meiorin, the government
failed to demonstrate that a particular aerobic standard that most women could
not pass was reasonably necessary to perform the tasks of forest fighter safely
and efficiently. The SCC found that the government did not establish undue
hardship if a different standard were used, as there was no evidence that
another standard would pose undue risk and could not be safely carried out (at
para 79):
Referring to the Government’s arguments on
this point, the arbitrator noted that, “other than anecdotal or
‘impressionistic’ evidence concerning the magnitude of risk involved in
accommodating the adverse-effect discrimination suffered by the grievor, the
employer has presented no cogent evidence . . . to support its position that it
cannot accommodate Ms. Meiorin because of safety risks”. The arbitrator held
that the evidence fell short of establishing that Ms. Meiorin posed a serious
safety risk to herself, her colleagues, or the general public. Accordingly, he
held that the Government had failed to accommodate her to the point of undue
hardship. This Court has not been presented with any reason to interfere with
his conclusion on this point, and I decline to do so. The Government did not
discharge its burden of showing that the purpose for which it introduced the
aerobic standard would be compromised to the point of undue hardship if a
different standard were used.
[100] Ms. Soullière also notes that the fact that Ms. Meiorin was
subjected to individualized testing did not immunize the government, as
individual testing in that case did not negate discrimination. Rather, the SCC
held that Ms. Meiorin had not been tested against a realistic standard that
reflected her capacities and potential contributions.
[101] Extending that result to this case, Ms. Soullière contends that by
failing to properly investigate the alternative accommodations proposed by Ms.
Soullière, the Investigator and thereby the Commission failed to properly apply
the third step of the Meiorin test.
[102] Ms. Soullière also asserts that the Investigator approached the
investigation in three parts, none of which are responsive to the central
issues raised by Meiorin’s three steps. Ms. Soullière submits that an
investigator’s failure to properly apply the Meiorin test is a
reviewable error, citing Walsh v Canada (Attorney General), 2015 FC 230
at paras 23-33 [Walsh].
[103] Contrary to these submissions, I find that the Commission considered
the issues in a manner consistent with the Meiorin test, including the
third step of whether Ms. Dewan could be accommodated without undue hardship.
This case does not resemble Walsh, where the investigator ignored the
crucial third step of the Meiorin test and failed to give any
consideration to the question of accommodation short of undue hardship (Walsh
at paras 31-33).
[104] Here, the Investigator addressed the question of whether undue
hardship would ensue, and concluded it would, given the evidence addressing the
risks to the safety of the blood supply resulting from the adoption of any of
the numerous accommodation measures proposed (canvassed in the Report at paras
40 to 101 of the Report). At paragraphs 93 and 95 of the Report, the Investigator
noted CBS’ submission that “patients’ lives depend on
it fulfilling its mandate to maintain an adequate supply of safe and high
quality blood products”, and that requiring certain accommodations that
will result in placing the lives of others at risk flies in the face of logic (citing
Simcoe (County) v Ontario Public Service Union (2009), 314 DLR (4th) 756 at
para 30 (Ont Div Ct), [2009] OJ No 5221).
[105] The Commission’s consideration of the alternative accommodations and
ensuing hardship is thus an entirely reasonable outcome. This is another
variation of the same argument rejected above (under the rubric of “procedural fairness” and “no
evidence”). Either way, given that the Commission adopted the
appropriate legal test, I cannot find fault with the way that it was applied.
The three steps, disclosed at the outset of the Report and which have been
reviewed at 23 - 31 above, closely follow the Meiorin framework.
[106] As for the crucial question of whether the respondent satisfied its
onus to establish the third step of Meiorin, the Report – unlike in Walsh
– properly considered whether CBS had accommodated persons with the
characteristics of Ms. Dewan to the point of incurring undue hardship, by
considering ways in which CBS could have accommodated Ms. Dewan.
[107] As noted in the Report, CBS provided an individualized assessment to
Ms. Dewan, after having designed the process to be as accessible as possible
and as simple as safety permitted, according to Dr. Goldman’s evidence. That
evidence showed, and the Report noted, that individuals with intellectual
disabilities are not necessarily screened out, save for those who cannot
comprehend the process. Regrettably, Ms. Dewan fit into the latter category, a
result that no one desired. The evidence relied upon in coming to this Decision
was not merely anecdotal or impressionistic.
[108] Ultimately, after considering the alternative accommodations, the
Report concluded that requiring the additional accommodation sought by Ms.
Soullière, on her daughter’s behalf, would require undue hardship by creating
an undue risk to the safety of the blood supply – a reasonable conclusion.
ii.
Did the Commission err in law by rejecting the
procedural duty to accommodate?
[109] Ms. Soullière submits that the Commission erred in rejecting her
argument of a separate, freestanding procedural duty to accommodate under the
Act. According to Ms. Soullière, the Commission misapplied the Federal Court of
Appeal’s decision in Cruden, which held that there is no separate procedural
duty where the respondent has satisfied the three-part Meiorin test for
establishing undue hardship.
[110] Ms. Soullière submits that in order to determine whether undue
hardship has been established, and the Meiorin test is met, it is
necessary for the Respondent to demonstrate that it would be impossible to
accommodate her daughter. This requires that CBS engage in a process of
assessing alternative forms of accommodation, and “[o]n
that basis, the procedural duty to accommodate is relevant to the substantive
duty to accommodate and the consideration of undue hardship”
(Applicant’s Memorandum of Fact and Law at para 71).
[111] In other words, Ms. Soullière argues that CBS’ procedural failure to
search for alternative forms of accommodation led to the breach of its
substantive duty. As a result, Ms. Soullière – once again on this ground –
submits that further inquiry is warranted to determine if alternative
accommodations would cause undue hardship. Ms. Soullière argues that CBS’ rush
to judgment when it advised her that donating blood “was
never going to happen” for Ms. Dewan, was symptomatic of CBS’ failure to
procedurally accommodate and/or explore alternative accommodations.
[112] I disagree. The Commission correctly applied the Federal Court of
Appeal’s decision in Cruden, which held there is no independent
procedural component to the duty to accommodate (at para 16). That decision is
binding on this Court. The paragraph from Meiorin which was relied upon
to make this procedural argument in Cruden, at para 18, reads 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…
[Meiorin, above at para 66;
emphasis added]
[113] This paragraph is simply commentary related to the third step of Meiorin,
which did not intend to create a separate procedural right to accommodate (Cruden
at para 21). The process followed by the respondent in determining whether
accommodation is possible is simply a relevant consideration at the third step,
where the onus is on the respondent. This is further reflected by one of the
considerations suggested by the SCC in Meiorin at para 65: “Has the employer investigated alternative approaches that do
not have a discriminatory effect, such as individual testing against a more
individually sensitive standard?”
[114] Having concluded that the Commission made no legal error, Ms.
Soullière’s complaint underlying this argument – that CBS and then the
Commission did not consider all of the alternative, possible accommodations –
has already been raised and addressed above. This is yet another variation of
that argument, and I have already outlined above my finding that CBS actively
seeks to accommodate Ms. Dewan and those with similar characteristics.
[115] Finally, in making this argument, Ms. Soullière referenced that Ms.
Dewan has been told that blood donation will “never”
happen for her. According to the Report, Ms. Dewan is “indefinitely
deferred” by CBS, which it confirmed, post-hearing, means that Ms. Dewan
may donate blood in the future should the circumstances change and she be able
to pass the screening. The Record suggests that, although Ms. Dewan is
intellectually disabled, she continues to develop. In this spirit, it is my
sincere hope that in the future Ms. Dewan’s will have developed sufficiently to
enable her to pass the screening requirement and be able to realize her
admirable hope of giving blood.
[116] Prior to this section 44 Decision under review, CBS had asked the
Commission not to deal with the Complaint at the preliminary screening stage,
pursuant to section 41 of the Act. At that stage, the Commission decided that
it was not “plain and obvious” that the activity
in question is not a service, and therefore proceeded with the Complaint. When
CBS again raised this argument at the section 44 stage, it was dismissed in the
Report on the basis that the Commission had already considered this issue.
[117] CBS thus argued that even if this Court should find that the
Commission erred in making its decision to dismiss the Complaint based on the
evidence, no inquiry is warranted because blood collection is not a “service” to donors within the meaning of section 5 of
the Act.
[118] The Commission, which intervened in this matter, took the position
that the Court does not need to determine this “service”
issue in order to dispose of the present application. Rather, the Commission
submits that the Court need only decide whether the Commission’s Decision to
dismiss the Complaint under section 44 of the Act was reasonable. In any event,
the Commission took the view that had CBS wished to challenge the December 18,
2013 section 41 decision to deal with the Complaint, it should have judicially
reviewed that decision at the time.
[119] On the latter point, I agree with CBS – and the jurisprudence – that
it could properly wait until the section 44 decision (that which is now under
review) to challenge the service issue.
[120] However, given that I have found that the Commission made no
reviewable error in dismissing the Complaint against CBS under section 44,
there is no reason to review the Commission’s determination on the “service” issue. To be clear, my position is not an
endorsement or rejection of the Commission’s determination on the “service” issue.
VII.
Conclusion
[121] For all of the reasons provided above, this application for judicial
review is dismissed. I find no basis upon which to determine that the decision
was incorrect or unreasonable. As a result, there is no reason to address CBS’
argument that it does not provide a “service”
within the meaning of the Act.
[122] The parties agreed that there will be no award of costs.
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