Docket: T-1482-15
Citation:
2017 FC 528
[ENGLISH TRANSLATION]
Ottawa, Ontario, May 29, 2017
PRESENT: The Honourable Madam Justice Roussel
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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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MARCELLE
LUSSIER
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Attorney General of Canada [AGC] is seeking
a judicial review of a decision rendered by an independent reviewer on
July 30, 2015, as part of a request for an Independent Third-Party Review [ITPR].
Governed by a Canada Revenue Agency [CRA] internal directive entitled Canada
Revenue Agency (CRA) Independent Third-Party Review (ITPR) Processing Directive
[Directive], this review processed allowed CRA employees, up to May 2015,
to challenge, among other things, decisions at the final level of the grievance
procedure relating to demotions for non-disciplinary reasons.
II.
Context
[2]
Ms. Lussier has been employed with the CRA since
1988. In August 1999, she was promoted to the position of tax auditor at
the AU-01 group and level for an indeterminate period.
[3]
Since 2002, Ms. Lussier has experienced
productivity issues due to a medical condition. At the CRA’s request, she met
with various health professionals to assess her functional limitations at work,
as well as accommodation measures to improve her performance. She was assigned
to lower groups and levels, while receiving salary protection at the AU-01
auditor group and level. In 2007, she returned to her position as an auditor at
the AU-01 group and level, then in 2008, for a period of nine (9) months, was
appointed on an acting basis to a position of auditor at the AU-02 group and
level.
[4]
In 2010, after the CRA’s management observed
deficiencies in her work performance as an auditor at the AU-01 group and
level, the CRA decided to assign Ms. Lussier to a position as a program
compliance officer at the lower SP-04 group and level, while keeping her salary
at the AU-01 group and level.
[5]
After a trial period of nine (9) months, the CRA
notified Ms. Lussier on July 18, 2012, that a decision had been made to demote
her to the position of general office clerk at the SP‑02 group and level.
She was told that because of her functional limitations she was not meeting the
performance expectations of the position of compliance officer at the SP-04
group and level.
[6]
On August 10, 2012, Ms. Lussier filed an
individual grievance challenging her demotion. She claimed that the CRA failed
to implement reasonable accommodation measures based on her medical condition.
[7]
Ms. Lussier’s grievance was dismissed on August
13, 2013. While acknowledging that Ms. Lussier’s performance issues were
related to her medical condition, the CRA considered that Ms. Lussier was
unable to meet the requirements of her position despite the accommodation
measures put in place to help her meet her targets.
[8]
Since her demotion was unrelated to breaches of
discipline or misconduct and that her grievance could not be referred to
adjudication before the Public Service Labour Relations and Employment Board
under section 209 of the Public Service Labour Relations Act, SC 2003, c.
22, s. 2 [PSLRA], Ms. Lussier requested an ITPR on September 10, 2013.
[9]
The CRA initially refused to refer the grievance
to the ITRP process on the basis that the request was initiated nine (9) days
late. That decision was challenged before this Court, and on January 6,
2015, Justice Michel M.J. Shore allowed the application for judicial review. He
held that the ITPR application should be reconsidered in accordance with his
reasons (Lussier v Canada (Revenue Agency), 2015 FC 10 [Lussier]).
[10]
Before the independent reviewer, Ms. Lussier
claimed, in particular, that the accommodation measures taken by the CRA to
help her meet her performance targets were lacking and inconsistent with the
recommendations made by the health professionals consulted since 2002. She
claimed to have established that she was able to meet the requirements of her
position when favourable conditions were present. She therefore asked the
independent reviewer to order her reinstatement to a position at the AU-01
group and level.
[11]
In response, the CRA argued that the independent
reviewer lacked the jurisdiction to consider Ms. Lussier’s arguments regarding its
accommodation of her medical condition. It submitted that the issues relating
to the duty to accommodate in the workplace fall under the application and
interpretation of the Canadian Human Rights Act, RSC 1985, c. H-6 [CHRA].
Specifically, the Directive states that independent reviewers cannot rule on
questions relating to the interpretation or application of the CHRA.
[12]
Alternatively, the CRA argues that Ms. Lussier’s
demotion was warranted because the CRA implemented all the accommodation
measures recommended by health professionals to enable Ms. Lussier to meet her
performance targets at work and to perform the tasks and duties associated with
her position as tax auditor at the AU-01 group and level and as compliance
program officer at the SP-04 group and level.
[13]
On July 30, 2015, the independent reviewer
allowed the ITPR application and ordered that Ms. Lussier be reinstated to her
position as auditor at the AU-01 group and level.
[14]
On the issue of his jurisdiction, the
independent reviewer recognized that he did not have the jurisdiction under the
ITPR process to hear ITPR applications based on the CHRA for reasons of discrimination.
He considered, however, that Ms. Lussier’s application was not based on [translation] “discrimination
on any designated grounds under the CHRA,” but rather on Ms. Lussier’s
demotion. Of the view that workplace accommodation is a fundamental legal duty
of the employer and that the duty to accommodate an employee for health reasons
is not exclusive to human rights, the independent reviewer confirmed that he
had the jurisdiction to hear Ms. Lussier’s challenge and determine whether the
demotion was warranted.
[15]
On the merits of the case, the independent
reviewer found that Ms. Lussier would be able to provide her services with
reasonable accommodation by the CRA despite her medical condition. He also
found that the CRA did not establish the excessiveness of implementing such
measures. In this regard, he emphasized that when an action plan was put in
place to accommodate Ms. Lussier and the plan was carefully followed by the
manager in question, Ms. Lussier was able to perform her work and was even appointed
as an auditor at the AU-02 group and level on an acting basis.
III.
Issues
[16]
This application raises the following two (2)
issues:
a)
What is the applicable standard of review?
b)
Did the independent reviewer make a reviewable
error by finding that he had jurisdiction to decide Ms. Lussier’s request for
review?
[17]
Only the question of jurisdiction is at issue.
The independent reviewer’s finding on the merits of the demotion is not the
subject of this application.
IV.
Analysis
A.
Standard of review
[18]
The AGC argues that the standard of review
applicable to the issue of the independent reviewer’s jurisdiction is
correctness. She claims that the issue of accommodation related to Ms.
Lussier’s medical condition concerns the interpretation or application of the
CHRA, which is neither the independent reviewer’s enabling statute nor
legislation closely connected to his mandate. She adds that there is no
indication that the independent reviewer has any expertise in the application
or interpretation of issues that may relate to the CHRA.
[19]
Alternatively, the AGC submits that if
reasonableness is the applicable standard of review, the independent reviewer’s
interpretation of his jurisdiction is not intelligible and is not within a
range of possible acceptable outcomes which are defensible in respect of the
facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
[20]
For her part, Ms. Lussier argued that the issue
of the independent reviewer’s jurisdiction arises not from the interpretation
or application of the CHRA but rather the interpretation of the Directive. She
is of the opinion that the applicable standard is that of reasonableness.
[21]
The first step in determining the applicable
standard of review is to ascertain whether the case law has already
satisfactorily established the degree of deference corresponding to a specific
category of issues. If the case law does not establish it, the Court must
conduct an analysis to determine the applicable standard of review (Dunsmuir
at paras 57, 62, 64).
[22]
In the case at hand, the parties argue that the
case law has not yet established the applicable standard of review. The
standard of review analysis applicable to a decision made by an independent
reviewer in the context of an ITPR application was previously conducted by this
Court in Canada (Customs and Revenue Agency) v Kapadia, 2005 FC 1568 [Kapadia].
In that case, the respondent sought the quashing of the independent reviewer’s
decision ordering that a selection process be resumed on the basis that the
respondent’s candidacy had been arbitrarily excluded. The Court found that the
standard of review was reasonableness simpliciter (Kapadia at
paras 8–15).
[23]
Since this decision precedes Dunsmuir and
that the Directive in the case at hand is subsequent to the one in Kapadia,
the Court intends to conduct a standard of review analysis.
[24]
According to the case law, it should be assumed
that the reasonableness standard applies to a decision by an administrative
body that is interpreting its home statute or statutes closely connected with
its function and with which it is particularly familiar (Edmonton (City) v
Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at para 23 [Edmonton
East]; Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at para
46; McLean v British Columbia (Securities Commission), 2013 SCC 67 at para
21; Alberta (Information and Privacy Commissioner) v Alberta Teachers'
Association), 2011 SCC 61 at paras 30, 34, 39 [Alberta Teachers’
Association]). The same applies to questions of fact, discretion or policy,
and questions where the legal issues cannot be easily separated from the
factual issues (Dunsmuir at para 51).
[25]
However, this presumption is rebutted in the
presence of the four (4) categories of issues identified in Dunsmuir which
call for correctness, namely constitutional questions regarding the division of
powers, issues “ both of central importance to the
legal system as a whole and outside the adjudicator’s specialized area of
expertise”, “true questions of jurisdiction or
vires”, and issues “regarding the jurisdictional
lines between two or more competing specialized tribunals” (Edmonton
East at para 24; Dunsmuir at paras 58–61).
[26]
In the case at hand, the issue of the
independent reviewer’s jurisdiction involves the independent reviewer’s
interpretation of the Directive governing the ITPR process.
[27]
The ITPR process was established in accordance
with section 54(1) of the Canada Revenue Agency Act, S.C. 1999, c.17,
which enables the CRA, as a “separate agency”
for the purposes of the PSLRA, to develop a staffing program governing, in
particular, appointments and remedies available to employees.
[28]
Under paragraph 51(1)(g) of this same act, the
CRA may provide, for reasons other than breaches of discipline or misconduct,
for the demotion to a position at a lower maximum rate of pay, establish the
circumstances and manner in which, and the authority by which those measures
may be applied, varied, or rescinded.
[29]
The Directive came into force on May 1,
2015. It applies to disputes that involve either (1) staffing, in accordance
with the CRA’s staffing policy, or (2) labour relations, in certain specific
circumstances, including termination or demotion of an employee for reasons
other than breaches of discipline or misconduct.
[30]
According to sections 2C and 2F of the Directive,
when an employee requests an ITPR, the CRA’s Office of Dispute Management [ODM]
examines the application to determine whether it is eligible and, if so,
assigns the case to an independent reviewer. As soon as he or she agrees to take
over a case, the independent reviewer contacts both parties to inform them of
his or her mandate and confirm that they have the power to review the case. He
or she specifies the nature of the case and the issues to be reviewed and
describes the review process and timelines (section 3F, paragraph 2 of the
Directive). Throughout the process, the independent reviewer gives expression
to the principles of procedural fairness, including the right to be heard, to
question opposing party’s arguments and to access documents introduced by the
opposing party (section 3F, paragraph 16 of the Directive). The reviewer is
also authorized to make decisions on jurisdiction and on processing matters (section
3F, paragraph 6 of the Directive). Once the review process is complete, the
reviewer makes a final and binding decision in a final report (section 3F,
paragraph 25 of the Directive).
[31]
According to paragraph 28 of section 3F of the
Directive, in cases of demotion, the reviewer can apply the following
corrective measures: (1) order employee’s reintegration or return to the
previous classification group and level, but not rule on issues relating to the
interpretation or application of the Canadian Human Rights Act; (2)
order payment of lost pay and benefits.
[32]
In this context, the Court is of the view that
the independent reviewer is interpreting his home statute, i.e., the Directive,
to establish whether he has the jurisdiction to decide Ms. Lussier’s application
to be reinstated. Furthermore, and until proven otherwise, he shall be
considered as having particular familiarity with employment-related issues.
Deference with respect to his findings is therefore appropriate, thus favouring
application of the reasonableness standard. (Dunsmuir at para 54; Alberta
Teachers’ Association at para 30).
[33]
Furthermore, the Court considers that the
independent reviewer’s jurisdiction raises a mixed question of fact and law as
to whether the decision to demote Ms. Lussier was justified given the CRA’s
duty to accommodate her medical condition. This factor also militates in favour
of a curial deference.
[34]
Finally, the Court is of the opinion that the issue
of whether the independent reviewer has the jurisdiction to adjudicate Ms.
Lussier’s application does not fall within one of the categories of questions
that require the application of the correctness standard of review.
[35]
Consequently, the Court intends to rule on the
independent reviewer’s decision on his jurisdiction to decide Ms. Lussier’s
request for review on the basis of reasonableness. Under this standard, the Court
will intervene only if the decision does not fall within a range of possible
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
at para 47).
B.
Independent reviewer’s jurisdiction
[36]
The AGC submits that it was not open to the
independent reviewer to decide whether he had the jurisdiction to consider and
decide the issue of accommodation measures relating to Ms. Lussier’s disability
and undue hardship. According to the AGC, this issue raises an allegation based
on Ms. Lussier’s disability and falls within the area of human rights,
including sections 3, 7(b), and 15 of the CHRA. But according to the Directive,
the independent reviewer cannot rule on matters relating to the interpretation
or application of the CHRA.
[37]
For her part, Ms. Lussier claims that the independent
reviewer’s decision is consistent with the wording of the Directive. The
Directive cannot be interpreted as usurping the independent reviewer’s
jurisdiction with respect to accommodation.
[38]
For the reasons that follow, the Court is of the
opinion that the independent reviewer’s decision on his jurisdiction to decide
the application is reasonable, even though his reasons are flawed in some
respects (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 12).
[39]
The passage on which the AGC relies appears in
paragraph 28 in section 3F of the Directive. This paragraph deals specifically
with the corrective actions which the independent reviewer can apply. There is
a table containing the corrective measures that apply for each of the three (3)
types of cases specified by the Directive: (1) staffing; (2) lay-off or
demotion for any reason other than lack of discipline or misconduct; and (3) grievances
relating to some Agency grievances under the Procedure for Dealing with
Grievances Presented on CRA Policies. The Directive specifies that in the case
of lay-off or demotion, the independent reviewer can order employee’s
reintegration or return to the previous classification group and level but may
not rule on issues relating to the interpretation or application of the Canadian
Human Rights Act. The independent reviewer may also order payment of lost
pay and benefits.
[40]
Given the location of the limitation and the
fact that this is the only place where it is found in the Directive, it is
reasonable to conclude that this limitation is restricted to corrective
measures. The Court finds convincing Ms. Lussier’s argument that the purpose of
such a restriction is to prevent the independent reviewer from applying
corrective measures that fall within the jurisdiction of the Canadian Human
Rights Tribunal, as provided for in section 53 of the CHRA. Those measures are
more varied than the ones set out in the Directive and may include, among other
things, the authority to order the adoption of a special program, payment of
damages for a discriminatory practice, payment of special compensation in the case
of a wilful or reckless discriminatory practice, as well as the payment of
interest.
[41]
Contrary to the AGC’s claims, the Court is of
the opinion that the limitation provided for in paragraph 28 of section 3F does
not have the effect of preventing the independent reviewer from applying the
whole law of human rights.
[42]
This interpretation is consistent with case law
that recognizes that grievance adjudicators have the authority and jurisdiction
to enforce substantive rights and obligations conferred by human rights
legislation and other employment legislation on the basis that granting such
power encourages the prompt, final, and binding resolution of workplace
disputes (Parry Sound (District), Social Services Administrative Board v O.P.S.E.U,
Local 324, 2003 SCR 42 at paras 40, 41, 50, 52 [Parry Sound]; Tranchemontagne
v Ontario (Director, Disability Support Program), 2006 SCC 14 at para 39 [Tranchemontagne];
British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 at
paras 21, 45, 53 [Figliola]).
[43]
It is also recognized that, due to its
quasi-constitutional status, human rights legislation benefits from an
interpretation that is broad and encourages accessible application (Tranchemontagne
at paras 33 and 52; Figliola at para 53). In Tranchemontagne, the
Supreme Court of Canada noted the following at para 26 of its decision:
26 The
presumption that a tribunal can go beyond its enabling statute — unlike the
presumption that a tribunal can pronounce on constitutional validity — exists
because it is undesirable for a tribunal to limit itself to some of the law
while shutting its eyes to the rest of the law. The law is not so easily
compartmentalized that all relevant sources on a given issue can be found in
the provisions of a tribunal’s enabling statute. Accordingly, to limit
the tribunal’s ability to consider the whole law is to increase the probability
that a tribunal will come to a misinformed conclusion. In turn,
misinformed conclusions lead to inefficient appeals or, more unfortunately, the
denial of justice.
[44]
The CHRA itself recognizes that the resolution
of human rights issues does not full under the exclusive jurisdiction of the
Canadian Human Rights Commission [CHRC] and the Canadian Human Rights Tribunal.
According to paragraph 41(1)(b) of the CHRA, when a human rights complaint is
filed with the CHRC, it may declare the complaint inadmissible if it finds that
the complaint is one that could more appropriately be dealt with, initially,
according to a procedure provided for under a different Act of Parliament.
Parliament has therefore considered the possibility that other administrative
bodies may rule on these issues. Counsel for Ms. Lussier also informed the
Court at the hearing that on August 20, 2013, the CHRC refused to consider the
complaint on filed by Ms. Lussier on July 23, 2013, under paragraph 41(1)(a)
of the CHRA on the basis that Ms. Lussier had to first file a grievance under
the PSLRA.
[45]
In Parry Sound, the Supreme Court
of Canada considered the relationship between the jurisdiction of the Ontario
Human Rights Commission and that of a grievance arbitrator. It stated that the
fact that Ontario Human Rights Commission has greater expertise than grievance
arbitrators in respect of human rights violations is an insufficient basis on
which to conclude that a grievance arbitrator ought not to have the right to
enforce the rights and obligations of Ontario’s Human Rights Code and
other employment-related statutes. The Court also noted the advantages of
arbitration, such as accessibility and expertise, and that “the availability of an accessible and inexpensive forum for
the resolution of human rights disputes will increase the ability of aggrieved
employees to assert their right to equal treatment without discrimination, and
that this, in turn, will encourage compliance with the Human Rights Code.”
Finally, the Court noted that it was “of great
importance that such disputes are resolved quickly and in a manner that allows
for a continuing relationship between the parties” (Parry Sound at
paras 52–53).
[46]
In the case at hand, the purpose of the
Directive is to provide a fair, prompt, and cost-effective dispute resolution
mechanism for employees who wish to dispute the rejection of a grievance and
who do not have access to arbitration provided by the PSLRA (Lussier at para
22).
[47]
The independent reviewer has the same role as a
labour relations arbitrator. The Directive also refers to the independent
reviewer as an external arbitrator in the Introduction, which provides
an overview of the ITPR process. The Directive explicitly states that the ODM “assigns cases to an external arbitrator who is mandated to
conduct a review and to make a decision that is final [and] binding…”
[48]
Moreover, it is logical to expect that a regime
that seeks to address situations involving demotions, for reasons other than
breaches of discipline or misconduct, deals with situations where it is alleged
that the employer has breached its duty to accommodate. If we accept the
interpretation proposed by the AGC, employees wishing to challenge their
termination or demotion on the basis of reasons either unrelated or related to
human rights would be forced to split their recourse and proceed using
different forums. Employees could therefore be left without recourse. At the
very least, it could not be argued that such a course of action would be “effective” and “prompt.”
[49]
Given the purpose and wording of the Directive,
as well as the case law that encourages accessible, prompt, and effective application
of human rights legislation, it is therefore reasonable to interpret the
Directive as granting the independent reviewer jurisdiction to decide questions
relating to the CRA’s duty to accommodate.
V.
Conclusion
[50]
In light of the foregoing, the Court is of the
opinion that the independent reviewer’s decision regarding his jurisdiction to
decide Ms. Lussier’s application is reasonable since it falls within a range of
possible acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir at para 47). The Court’s intervention is not warranted.
[51]
For all these reasons, the application for
judicial review is dismissed with costs payable to Ms. Lussier in the amount of
$2,500.
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