Docket: A-298-16
Citation:
2017 FCA 171
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CORAM:
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TRUDEL J.A.
SCOTT J.A.
GLEASON J.A.
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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RANDI BODNAR,
BONITA EBELHER, KENDRA HALDORSON, RON HARRISON, GALLAGHER KEOUGH, MANDELLE
MITCHELL-HIMLER, KEVIN WILLIAMS and CANDICE WESTBURY
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Respondents
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
In this application for judicial review, the
applicant seeks to set aside the August 9, 2016 decision of the Public Service
Labour Relations and Employment Board (the PSLREB or the Board) in Bodnar et
al. v. Treasury Board (Correctional Service of Canada), 2016 PSLREB 71 [Reasons].
In that decision, the Board allowed the respondents’ grievances and found that
the employer had discriminated against them in the application of its National
Attendance Management Policy (NAMP) by including in the calculations required
under the NAMP absences due to a disability or for which family-related leave had
been granted under the applicable collective agreement. The PSLREB determined
that so doing amounted to discrimination based on family status and disability and
thus violated the anti-discrimination article in the collective agreement
between the employer and the respondents’ bargaining agent. By way of remedy,
the PSLREB awarded the respondents damages under paragraph 53(2)(e) and
subsection 53(3) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the
CHRA) and also issued a declaration that the employer’s NAMP violated the anti-discrimination
provision in the collective agreement.
[2]
For the reasons that follow, I believe that the
Board made reviewable errors in reaching these conclusions. I would accordingly
grant this application with costs, set aside the decision of the PSLREB and
remit the respondents’ grievances to a differently-constituted panel of the
Board for re-determination in accordance with these reasons.
I.
Background
[3]
The respondents were employees of Correctional
Service Canada (CSC), employed at the Bowden Institution, where they held
various positions in the Program and Administrative Services bargaining unit
represented by the Public Service Alliance of Canada. At all relevant times, the
applicable collective agreement provided for both sick leave and leave with pay
for family-related responsibilities. The agreement also contained an anti-discrimination
provision.
[4]
In terms of sick leave, article 35.01 of the
collective agreement provided that full-time employees earned sick leave
credits at the rate of a day and a quarter a month. Entitlement to take sick
leave was governed in part by articles 35.02 and 35.03:
35.02 An employee shall be granted sick leave with pay when he or
she is unable to perform his or her duties because of illness or injury
provided that:
(a) he or she satisfies the Employer of this condition in
such manner and at such time as may be determined by the Employer;
and
(b) he or she has the necessary sick leave credits.
35.03 Unless
otherwise informed by the Employer, a statement signed by the employee stating
that, because of illness or injury, he or she was unable to perform his or her
duties, shall, when delivered to the Employer, be considered as meeting the
requirements of paragraph 35.02(a).
[5]
Article 43 of the collective agreement established
an entitlement to 37.5 hours of paid leave per year for leave for family-related
reasons. Such leave could be taken for a variety of reasons, including
situations that do not arise from family status responsibilities that are
accorded protection under the CHRA. For example, under clause 43.03(e),
employees were entitled to up to 7.5 hours of paid leave per year to attend
school functions or appointments with their legal or financial advisors.
Similarly, leave entitlements were granted under the article in respect of any
relative residing with the employee and could be used for such things as
attending a medical or dental appointment with such individuals, regardless of
whether it was necessary for the employee to accompany the individual. As is
more fully discussed below, these sorts of absences are not the type that an
employer must accommodate under the CHRA.
[6]
Finally, article 19.01 of the collective
agreement incorporated several of the protections afforded by the CHRA into the
collective agreement and provided in relevant part that “[t]here shall be no discrimination, interference,
restriction, coercion, harassment, intimidation, or any disciplinary action
exercised or practiced with respect to an employee by reason of […] family
status, mental or physical disability […]”.
[7]
In October 2011, CSC launched the NAMP due to
concerns about excessive employee absenteeism. The NAMP was a unilaterally-promulgated
employer policy. It was intended to be non-disciplinary, to be used as a tool
to assist employees in maintaining adequate attendance levels and to help identify,
as early as possible, situations where employees might require accommodation by
CSC. Under the NAMP, supervisors were required to note circumstances that might
give rise to concern, such as suspicious patterns of absenteeism (like taking
excessive Mondays or Fridays off or reporting sick after a leave request had
been refused for the day in question). Supervisors were also required to flag
situations when employees’ total hours of absence exceeded the average for
their peer group over a rolling 12-month period. When a situation giving rise
to a concern arose or the average was exceeded, the NAMP required supervisors
to make inquiries to be satisfied as to the legitimacy of the absences. If the
absences were culpable, they would not be dealt with under the NAMP but rather
would give rise to a disciplinary response. Similarly, if absences were caused
by situations requiring accommodation, no further action under the NAMP was to
be taken.
[8]
In the event further follow-up was required, the
NAMP provided for cases to be forwarded to the local NAMP coordinator – the Assistant
Warden in the case of the Bowden Institution – for further inquiry. Employees
were entitled to have a union representative present with them when attending a
meeting with the NAMP coordinator. Following the meeting, the NAMP coordinator
could determine that no further action was required or could take a variety of
other actions, including documenting the issues in an employee’s file, imposing
a requirement for medical certificates for further absences due to illness or
taking progressively more severe actions that could ultimately lead to termination.
[9]
All of the respondents in the instant case had
absenteeism records that exceeded the applicable group average, and in 2013 their
situations were reviewed under the NAMP by their supervisors and thereafter by
the NAMP coordinator. In several cases, the coordinator insisted on meeting the
employees – even though their supervisors had validated the reasons for the
absences – as the program was a new one and the coordinator wished to ensure
that it was being applied appropriately. In all cases except one, the
coordinator determined that no further action was required under the NAMP. In
Ms. Ebelher’s case, the coordinator determined that further action was required
as Ms. Ebelher steadfastly refused to discuss her situation with management,
taking the position that all she was required to do was to furnish a medical
certificate to substantiate some of her absences. In light of this refusal, the
NAMP coordinator required that Ms. Ebelher provide medical certificates for all
absences due to illness for a period of three months.
[10]
In some cases, the respondents’ absences were caused
by medical situations that would constitute a disability under the CHRA, which extends
protection for disabling illnesses and injury other than those that are trivial
and transient, like the common cold: Riche v. Treasury Board (Department of
National Defence), 2013 PSLRB 35 at paras. 130-131 and, more generally, Honourable
Justice Russel W. Zinn, The Law of Human Rights in Canada: Practice and
Procedure, Thomson Reuters Canada, Release No. 32, May 2017 at paras. 5:30
and 5:30.1. In other cases, it appears that the employees may not have provided
enough information to determine if their absences due to illness were caused by
a disability. In addition, some of the respondents took time off as
family-related leave to care for children or to care for or take elderly and
disabled family members to medical appointments.
[11]
The respondent employees filed grievances,
alleging that the NAMP and its application to them violated articles 19, 35 and
43 of the collective agreement. The PSLREB conducted a hearing over the course
of three days into the grievances and issued its decision on August 9, 2016.
II.
The Decision of the PSLREB
[12]
The portions of the PSLREB’s decision relevant
to this application for judicial review involve the Board’s treatment of the
respondents’ discrimination allegations. In dealing with this issue, the PSLREB
principally considered the question of whether the respondents had established
a prima facie case of discrimination. The Board noted that a prima
facie case will be made out by a grievor where he or she makes an allegation
that, if believed, would justify a finding in the employee’s favour in the absence
of an answer from the employer (Reasons, para. 141). The PSLREB also held
that the elements of a prima facie case involve showing a connection
between a prohibited ground of discrimination and the “distinction,
exclusion or preference” a grievor complains of (Reasons, para. 142). In
applying the foregoing test, the PSLREB concluded that the group average thresholds
established under the NAMP and the way in which individual employee absences
were counted under the NAMP constituted a prima facie case of
discrimination for two reasons.
[13]
First, the PSLREB held that it was prima
facie discriminatory to include absences for family-related leave in the
calculation to set the NAMP group average threshold and in the compilation of
an individual employee’s absences to ascertain whether he or she exceeded the
relevant group threshold. In reaching this conclusion, the Board drew no
distinction between those absences that might arise from family status
responsibilities that are accorded protection under the CHRA and those that are
not accorded such protection, but for which an employee would nonetheless be
entitled to paid leave under article 43 of the collective agreement (Reasons,
paras. 145-149).
[14]
Secondly, the PSLREB concluded that the
inclusion of absences caused by a disability in the group average threshold
under the NAMP and counting such absences in an employee’s absenteeism level to
determine if the NAMP threshold was exceeded likewise established a prima
facie case of discrimination. The Board reached this conclusion even though
the NAMP contemplated that if an employee were suffering from a disability
requiring accommodation no further action under the NAMP should be taken after
this need was identified. The PSLREB pointed to the fact that meetings were
held with the NAMP coordinator (at which a union representative could be
present) as well as the fact that the coordinator compiled notes of these
meetings as indicia of the discriminatory nature of the employer’s
conduct, noting that the employer “left no room for an
assessment on an individual basis, regardless of the reasons for the lack of
attendance” (Reasons, para. 161). However, these actions had nothing to
do with the way in which the group average threshold or individual employee
absence numbers were calculated under the NAMP.
[15]
After determining that the respondents had made
out a prima facie case of discrimination, the Board held that the
employer had not discharged its burden of justifying the situation as it called
no evidence to establish a bona fide occupational requirement defence
(Reasons, para. 157). The Board also concluded that the employer was
justified in imposing on Ms. Ebelher the three month requirement to provide
medical certificates to justify absences due to illness in light of her failure
to cooperate in the accommodation process (Reasons, paras. 155-156).
III.
The Issues
[16]
The parties raise three issues.
[17]
First, they differ as to the standard of review
to be applied. The applicant says that correctness applies to review the legal
determinations made by the PSLREB concerning the requirements for a prima
facie case of discrimination and that the reasonableness standard applies
only to the review of the determinations of fact or of mixed fact and law made
by the PSLREB. The respondents, on the other hand, argue that the
reasonableness standard applies to the review of the entirety of the Board’s
decision.
[18]
Second, they differ as to whether the Board
committed a reviewable error in finding a prima facie case of
discrimination to arise merely from the inclusion of certain types of absences
in the calculations under the NAMP. The applicant says that in so doing the
Board erred as one of the necessary pre-conditions for a prima facie case
is the presence of some sort of adverse treatment by the employer. The applicant
asserts that there was no such adversity in the present case as nothing adverse
flowed from the way in which the NAMP group average thresholds were calculated
or from the inclusion of disability or family leave-related absences in
totalling the respondents’ absences to see if they exceeded the threshold. The
applicant therefore says that it was unreasonable for the Board to have found prima
facie discrimination in the absence of any adverse impact on the employees.
The respondents, on the other hand, assert that there was a reasonable basis
for the Board to have reached the conclusions it did, particularly in light of
that fact that the NAMP coordinator chose to meet with all the respondents and
to document their situations in notes to file even though, in many cases, their
supervisors were satisfied that no further action was required.
[19]
Finally, the applicant says that the PSLREB
erred in conflating family-related leave under the collective agreement with the
sorts of leave that an employee might be entitled to insist he or she be
granted under the CHRA by reason of family status responsibilities. The applicant
notes in this regard that in Johnstone v. Canada (Border Services), 2014
FCA 110, 372 D.L.R. (4th) 730 [Johnstone], Canadian National Railway
Co. v. Seeley, 2014 FCA 111, 458 N.R. 349 [Seeley] and Flatt v.
Canada (Attorney General), 2015 FCA 250, 479 N.R. 309, leave to appeal to
SCC refused [2016] C.S.C.R. No. 8 [Flatt] this Court held that to
establish a prima facie case of discrimination based on family status
responsibilities, a claimant must establish four factors: (1) a family member
is under his or her care and supervision; (2) the family obligation at issue
engages the individual’s legal responsibility for the family member as opposed
to personal choice; (3) the claimant has made reasonable efforts to meet the
family obligation through another solution and no alternate solution to granting
the requested leave is available; and (4) the workplace rule in issue
interferes in a manner that is more than trivial or insubstantial with the
fulfilment of the family obligation (applicant’s memorandum of fact and law,
para. 17). The applicant says that many of the situations contemplated under
article 43 of the collective agreement do not meet the forgoing criteria and,
thus, it was an error to conclude that counting all such leave in the NAMP gives
rise to prima facie case of discrimination based on family status.
[20]
While the respondents do not contest that there
is a difference between family-related leave under the collective agreement and
leave that an employee might be entitled to insist on receiving in conformity
with the employer’s obligations to accommodate family status needs under the CHRA,
they contend that nothing turns on this distinction in the present case as the
PSLREB was alive to this distinction and the respondents were, in any event,
entitled to the family-related leave they took under both the CHRA and the
collective agreement.
IV.
Analysis
A.
What standards of review are applicable?
[21]
Turning, first, to the standard of review issue,
the majority of the Supreme Court of Canada recently confirmed in Stewart v.
Elk Valley Coal Corp., 2017 SCC 30 at paras. 19-22, 39 C.C.E.L. (4th)
1 [Elk Valley Coal] that the reasonableness standard of review applies
to a human rights tribunal’s assessment of whether a prima facie case of
discrimination is made out if, in conducting the assessment, the tribunal applies
the well-established test for a prima facie case. In Elk Valley Coal
at paragraph 24, the Supreme Court noted that this test requires three things:
first, that complaints show they have a characteristic protected from discrimination
under the applicable human rights statute; second, that they show that they
experienced adverse impact and; finally, that they establish that “the protected characteristic was a factor in the adverse
impact”. In my view, these principles apply equally to cases where it is
a labour adjudicator who addresses the human rights issues.
[22]
In light of the foregoing as well as the
decisions of this Court in Johnstone and Seeley, where this Court
applied correctness to review of the definition of family status discrimination
under the CHRA, I concur with the applicant that the correctness standard
applies to those portions of the Board’s decision setting out the test for what
constitutes a prima facie case of discrimination whereas the
reasonableness standard applies to the review of the balance of the decision.
Thus, the reasonableness standard of review applies to the second issue whereas
the correctness standard applies to the third.
[23]
More specifically, the second issue, concerning the
Board’s finding of a prima facie case of discrimination, engages the
reasonableness standard of review because the applicant is contesting the way
in which the PSLREB applied the test for a prima facie case to the facts
before it. A similar challenge to the tribunal’s reasoning was made by the
employer in Elk Valley Coal, and the majority of the Supreme Court of
Canada held that the reasonableness standard applied.
[24]
Conversely, in the third issue, the applicant asserts
that the PSLREB applied the incorrect legal test for a prima facie case
of family status discrimination, arguing that the PSLREB ignored the applicable
test from Johnstone, Seeley and Flatt and instead
concluded that any absence under article 43 of the collective agreement,
regardless of the reason for it, could give rise to a prima facie case
of discrimination. The applicant says that in so doing the PSLREB erroneously
extended human rights family status protection beyond the bounds established by
this Court. The third issue therefore calls for this Court to engage in
correctness review to ascertain if the PSLREB applied the correct legal test
for family status discrimination.
B.
Was the Board’s finding concerning a prima facie
case of discrimination reasonable?
[25]
Having identified the standards of review to be
applied, I turn now to the second issue, namely, the reasonableness of the
Board’s finding that the respondents established a prima facie case of
discrimination. In assessing this issue, I am mindful of the caution of the
majority of the Supreme Court in Elk Valley Coal that reviewing courts
must actually provide deference to expert tribunals’ conclusions regarding a prima
facie case of discrimination. Writing for the majority, the Chief Justice
noted in this regard at paragraph 27 in Elk Valley Coal that:
[…] Deference requires respectful attention
to the Tribunal’s reasoning process. A reviewing court must ensure that it does
not only pay “lip service” to deferential review while substituting its own
views: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
at para. 48. If the decision is within a “range of possible, acceptable
outcomes” which are defensible in respect of the evidence and the law, it is
reasonable: Dunsmuir, at para. 47; see also Newfoundland and Labrador
Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708, at para. 16.
[26]
Even with such deference, I believe that the
PSLREB’s decision must nonetheless be set aside because the Board ignored one
of the essential pre-requisites for a prima facie case of
discrimination, namely, proof of adverse impact by a claimant, and unreasonably
found that the respondents had made out a case of prima facie
discrimination in the absence of any proof of adversity.
[27]
More specifically, as noted, the Board found
that the mere fact of including absences due to a disability or for
family-related leave in the group average threshold for the NAMP and in the calculation
of an employee’s total number of absences was prima facie discriminatory.
It was this finding that allowed the Board to issue the declaration that the
NAMP violated article 19 of the collective agreement.
[28]
However, nothing adverse flowed from the
inclusion of such absences in the group average threshold under the NAMP as
this is merely the number to which individual employees’ statistics were
compared. There is nothing discriminatory, per se, in including these
sorts of absences in a group average under an attendance management plan, and
this sort of calculation has been sanctioned in other cases where the plan made
it clear that the employer would accommodate to the point of undue hardship
absences occasioned by a disability: see, for example, Coast Mountain Bus
Company Ltd. v. National Automobile, Aerospace, Transportation and General
Workers of Canada (CAW-Canada), Local 111, 2010 BCCA 447 at paras. 67-69,
298 B.C.A.C. 1 [Coast Mountain Bus]; York University v. York
University Staff Association, 2012 CanLII 41233 (Ont. Labour Arbitration)
at paras. 20-39 [York University]; Spartech Color (Stratford) and IAM
& AM, Local 103 (Attendance), Re, [2008] O.L.A.A. No. 381 at paras.
51-52, 94 C.L.A.S. 168 [Spartech]; Ottawa (City) v. Ottawa Carleton
Public Employees Union, CUPE Local 503, [2008] O.L.A.A. No. 207 at paras.
78, 79 and 87 (Q.L.); Oshawa (City) v. C.U.P.E., Local 250, [1996]
O.L.A.A. No. 31 at paras. 15, 28, 31-38, 44 C.L.A.S. 138 [City of Oshawa].
[29]
Indeed, it is difficult to imagine how an attendance
management plan such as the NAMP could ever function if an employer were
required to subtract all absences due to disability from the group average as
the reasons for an absence are not always immediately apparent, and employees’
medical conditions may well evolve and worsen from a transitory illness to a
disability. It is thus difficult to conceive how a bright line could be drawn in
a timely way between absences due to disability and those due to other reasons
for purposes of calculating a rolling twelve month group average absence rate.
[30]
Thus, as there was nothing adverse in including
absences due to disability or for family-related leave in the group average for
purposes of establishing the relevant threshold under the NAMP, the PSLREB’s
decision was unreasonable as the presence of adversity is an essential
component of a prima facie case of discrimination.
[31]
Likewise, nothing adverse flowed under the NAMP from
including absences due to disability or for family-related leave in the total
number of days an employee was absent for purposes of simply determining if the
employee exceeded the relevant peer group threshold. Under the NAMP (at least
as it was written), all that was to transpire, once the threshold was exceeded,
was that the supervisor was required to be satisfied as to the legitimacy of
the absences and to identify, where possible, situations where an accommodation
was required, as would be the case if the absences were occasioned by a
disability or if the employee were entitled to leave to address family-related
responsibilities accorded protection under the CHRA. If accommodations were
required, the employee was to be removed from the NAMP. Once again, at least at
this initial stage of discussion with the supervisor, nothing adverse occurred.
The mere identification of employees who exceed a group average threshold and
initial discussions with them have been found to be permissible in other cases:
see, for example, Honda Canada Inc. v. Keays, 2008 SCC 39 at para. 67,
[2008] 2 S.C.R. 362; Coast Mountain Bus at paras. 67-69; Vancouver
Public Library and CUPE, Local 391 (Bardos), Re, [2015] B.C.C.A.A.A. No. 88
at para. 107, 124 C.L.A.S. 160; York University at paras. 37-38; Spartech
at para. 51; City of Oshawa at paras. 31-38.
[32]
I also note, as both parties agreed, that an
employer has the right to monitor employee absences and to ensure that they are
legitimate. In the case of sick leave, such right is indeed recognized in
article 35 of the collective agreement, which makes receipt of sick leave conditional
upon the employee having established that he or she is ill to the satisfaction of
the employer, including by producing a medical certificate, if requested. Thus,
there is nothing untoward in tasking supervisors with ensuring the legitimacy
of employee absences.
[33]
Therefore, there was nothing adverse in
including absences due to disability or for family-related leave in the total
number of absences simply for purposes of establishing whether an employee
exceeded the relevant group threshold under the NAMP. In reaching the
conclusion it did despite this, the PSLREB’s decision was unreasonable as the
presence of adversity is an essential component for a prima facie case
of discrimination.
[34]
That said, I would note that the foregoing should
not be taken to mean that all decisions taken under the NAMP will necessarily be
incapable of founding a prima facie case of discrimination. If and when
an adverse action is taken by CSC, and if it is taken based on an employee’s
absence due to disability or because the employee took leave to address a
family responsibility that is accorded protection under the CHRA, the employee would
likely be able to make out a prima facie case of discrimination. Indeed,
there might possibly be grounds to argue that such actions occurred in some
instances in the present case due to the way in which the NAMP was applied as
the NAMP coordinator insisted on meeting with all of the respondents and in
making notes about their situations even though their supervisors were
satisfied that there were legitimate grounds for the absences. However, rather
than analyzing whether any of these actions gave rise to adversity and a prima
facie case of discrimination, the Board instead concluded that the mere way
in which absences were counted under the NAMP gave rise to a prima facie
case of discrimination. As noted, this constitutes a reviewable error.
C.
Did the Board err in its treatment of
family-status discrimination?
[35]
While the foregoing provides sufficient grounds
for granting this application, it is useful to briefly address the third issue
so the newly-constituted Board, to whom the case will be remitted, will have
the benefit of this Court’s views in the reconsideration.
[36]
On the issue of family status discrimination, I
agree with the applicant that there is a distinction between family-related
leave under the collective agreement and leave based on family status that an
employee is entitled to receive accommodations in respect of under the CHRA.
The former is considerably wider than the latter, and in the decision under
review the PSLREB committed a reviewable error in conflating the two.
[37]
As noted in Johnstone, Seeley and Flatt,
family status protection under the CHRA – and the corresponding obligation of
the employer to grant leave – is circumscribed by the four criteria listed
above in the case of leave to care for minor or disabled children. It may well
be that these criteria would need to be nuanced somewhat in the case of elder
care responsibilities as there might be a practical and moral need to provide
urgently needed care for a disabled parent or to take them to medical
appointments as opposed to a legal requirement to do so as would exist in the
case of a child. However, in either case, the scope of rights receiving
protection under the CHRA is significantly narrower than the situations covered
by article 43 of the collective agreement. Thus, in ascertaining whether
discrimination has occurred, the Board should have regard to only those
situations where the employee is entitled to claim a right to the leave under
the CHRA based on his or her family status responsibilities.
V.
Proposed Disposition
[38]
It therefore follows that I would allow this
application for judicial review with costs. Given that the errors identified
are interwoven throughout the whole decision and that a re-
hearing is unlikely to be lengthy given the short duration of the first hearing,
I believe that the wisest and fairest course is to set aside the decision in
its entirety and to remit the respondents’ grievances to a newly-constituted
panel of the PSLREB for re-determination in accordance with these reasons.
“Mary J.L. Gleason”
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“I agree.
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Johanne Trudel
J.A.”
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“I agree.
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A. F. Scott
J.A.”
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