Date: 19980216
Docket: T-2767-96
BETWEEN:
WENDY ANN HOUSTON,
Applicant,
- and -
AIR CANADA,
Respondent,
- and -
CANADIAN HUMAN RIGHTS COMMISSION,
Intervenor.
REASONS FOR ORDER
DUBÉ J:
[1] The applicant ("Mrs. Houston") seeks the review of a decision of the Canadian Human Rights Commission ("the Commission") dated November 22, 1996, wherein it decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act ("the Act")1, to dismiss Mrs. Houston's complaint regarding discrimination "because on the evidence the allegation of discrimination is unfounded".
2. Facts and Allegations
[2] Mrs. Houston, a mechanic at Air Canada, was amongst a group of 236 previously laid-off employees who were temporary recalled due to a surge in the amount of work required to be performed by Air Canada in their maintenance department. The term of the recall was for the period from September 20 to December 17, 1993.
[3] On September 20, 1993, Mrs. Houston informed her employer that she was eighteen and a half weeks pregnant. She was examined by an Air Canada physician who placed three strict restrictions on what she could do: no exposure to fumes and solvents, no lifting of heavy objects and no prolonged standing. On September 23, 1993, she was laid-off on the basis that she was medically unfit to perform the work required.
[4] On September 21, 1994, she signed a complaint form in which she alleged that she had been discriminated against by Air Canada on the basis of gender contrary to section 7 of the Act. She claimed that Air Canada was able to accommodate her by giving her alternative work compatible with her condition and she also complained that Air Canada had no specific policy with respect to pregnant employees in the maintenance category.
[5] In response, Air Canada alleges it was unable to provide Mrs. Houston with work for which she had the necessary training and which would be medically suitable. Furthermore, Air Canada stated that it followed the collective agreement which stipulates that "Employees offered recall in accordance with their seniority and not able to return to the active payroll, on account of medical reasons, will have their reporting date delayed until declared medically fit, subject to the approval of the Company Medical Officer".
[6] The Commission then appointed an investigator to file a report to the effect that "the evidence shows that the respondent failed to accommodate the complainant by [not] assigning her modified duties during her pregnancy and instead place her on temporary lay-off effective September 23, 1993". The investigator recommended that a conciliator be appointed to attempt to bring about a settlement of the complaint.
[7] Despite the investigator's report and recommendation, the Commission concluded that Mrs. Houston's allegation of discrimination was unfounded and gave no further reasons for this decision.
2. Issues
| [8] 1. Is the Commission bound to follow the investigator's report? |
| 2. Is the Commission's decision unreasonable in light of the evidence? |
[9] The relevant provision reads as follows:
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44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation. |
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(3) On receipt of a report referred to in subsection (1), the Commission |
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(b) shall dismiss the complaint to which the report relates if it is satisfied |
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(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or |
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[10] It is common ground that the Commission does not have to follow the investigator's report. In a recent decision, my colleague Wetston J. in Jennings v. Canada (Minister of Health Canada)2 stated as follows:
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...the Commission is free to accept or disregard a particular recommendation.(...) Indeed, there are cases where the Commission has disagreed with an investigator's report recommendation: see for instance, Suzanne M. Robinson v. The Canadian Human Rights Commission et al., T-3038-93, January 10, 1995, F.C.T.D. [Please see [1995] F.C.J. No. 16]. |
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[11] Neither is the Commission bound to give reasons for its decision. However, it would be highly recommendable to do so when a decision flies in the face of the recommendation of an investigator arrived at after a very comprehensive investigation report, such as the one filed in this instance.
[12] It is well established that decisions of the Commission on questions of fact are reviewable on a standard of reasonableness3. On that score, there was clearly no duty upon Air Canada to create a position for the applicant but merely a duty to accommodate her from existing positions.
[13] Clearly, the decision of the Commission was based largely on a letter dated October 24, 1996, from Jane A. MacGregor, Manager, Human Rights and Equity Programs of Air Canada. The last two paragraphs of the letter reflect Air Canada's position in the matter:
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We would like to emphasize that we did not have a vacancy which Ms. Houston was either qualified or medically fit to fill. Contrary to her statement, she could not have been accommodated in the stores vacancy because it was located in the aircraft hangar where she would have been exposed to all of the hazardous fumes and products which were forbidden by her medical restrictions. |
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Finally, it is Air Canada's contention that it is not obliged to create a position to accommodate an individual who cannot do his/her normal duties. This would be a clearly untenable precedent. Air Canada, along with other employers, is very conscious of headcounts and, at the time of Ms. Houston's pregnancy, we were in a period of great restraint. Ms. Houston was recalled to do work for a specific contract we had obtained; we did not have other work for her and we were not prepared to carry her as surplus to our approved headcount. |
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[14] Representing herself at the hearing of this judicial review, Mrs. Houston presented a different view of the situation: there were openings available which she could have filled in spite of her medical restrictions. As a permanent employee recalled for term employment she was entitled to all the rights and privileges of a permanent employee. If necessary, Air Canada ought to have displaced another employee occupying a position suitable to her: therefore, the Commission's decision was arbitrary and discriminatory.
[15] Unfortunately for her, the Court cannot intervene in matters of discretionary and administrative decisions, unless the discretion has been exercised on some wrong principle of law, or without regard to relevant factors, or on the basis of irrelevant facts, or without procedural fairness, or that the discretion has been exercised in a discriminatory, capricious or unreasonable manner4. Such is not the case here. The Commission was not bound by the decision or recommendation of the investigator and its own decision, based largely on Air Canada's submission, cannot be said to be unreasonable under the circumstances.
[16] Consequently, this application for judicial review is dismissed.
Judge
OTTAWA, Ontario
February 16, 1998
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1 R.S.C. 1985, c. H-6.
2 T-1235-94, June 13, 1995, F.C.T.D., unreported.
3 See Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at pp. 584-85.
4 See [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7-8.
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