Date: 20051012
Docket: T-386-04
Citation: 2005 FC 1384
Ottawa, Ontario, October 12, 2005
PRESENT:
THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER
BETWEEN:
MICHEL
BEAUREGARD
Applicant
and
CANADA
POST
and
CANADIAN
HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER AND ORDER
[1]
Mr.
Beauregard is asking the Court to set aside the decision of the Canadian Human
Rights Tribunal dismissing his complaint against his employer, Canada Post,
because he had not established the existence of a disability, an essential
element of his complaint based on a prohibited ground of discrimination
(section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 [the
Act]).
BACKGROUND
[2]
Since this
is an application for judicial review of the Tribunal’s decision and not an appeal,
there is no need to relate all the facts described in the Tribunal’s decision.
[3]
We will
simply summarize the general situation as follows:
[4]
Mr.
Beauregard began working for Canada Post in 1993 and held various positions
there, including those of driver, letter carrier and clerk. In August 1997, he
was assigned to the evening shift in the automated area of the letter
processing plant (LPP).
[5]
He was
temporarily assigned to the daytime relief crew at the bulk processing plant
(BPP) from September 7, 1997, until September 14, 1998, when Canada Post asked
him to return to his former position at the LPP in Saint Laurent. In fact, he
did not do so, because he was absent on account of illness. He returned to
work for a few hours on October 7, 1998, and then took more time off, owing to
illness.
[6]
On October
6, 1998, Mr. Beauregard consulted Dr. Payne for a sinus problem but also,
according to him, for insomnia, lack of appetite and stress. Dr. Payne gave
him a medical certificate, which he submitted to his employer on October 7,
1998. He was then asked to complete the appropriate documents in order to open
a claim file with the Commission de la santé et de la sécurité du travail du
Québec (CSST).
[7]
From
October 13 to 28, 1998, Canada Post attempted to reach the applicant by letter
and by telephone in order to obtain additional information about his condition
for the CSST. He was also asked to meet with Dr. Guérin for a medical
assessment. For various reasons related in the decision, things dragged on,
and Mr. Beauregard did not show up for the initial appointment with Dr. Guérin.
[8]
However,
on November 3, 1998, he reported to Canada Post to complete the CSST document.
On November 6, 1998, he met with Dr. Guérin.
[9]
According
to Dr. Guérin, the applicant was uncooperative and refused to answer his
questions, and the interview had to be terminated. Dr. Guérin testified before
the Tribunal that the only clear statement by the applicant was that he could
not work at the “automated plants”.
[10]
On
November 12, 1998, Canada Post suspended the applicant based on his attitude
during the medical assessment. In a subsequent meeting on November 16, Canada
Post informed Mr. Beauregard that it was still unaware of exactly what he
wanted in terms of assignment or what his functional limitations were. The
applicant mentioned that he would be seeing his physician again on November 19
and that, at that point, he would be better informed about his illness.
[11]
On
November 18, Mr. Beauregard saw Dr. Luc Morin, a psychiatrist to whom he was
referred by Dr. Payne. Dr. Morin concluded that the applicant was not able to
work in the automated plants. Accordingly, on November 20, Mr. Beauregard
submitted a redeployment application stating that he was suffering from a
physical disability as a result of a health problem and that his application
was supported by a medical certificate issued by Dr. Payne.
[12]
On
November 25, 1998, another meeting was scheduled to discuss his redeployment.
Canada Post offered a transfer to a full-time clerk position in Matane. Mr.
Beauregard declined the offer.
[13]
In
December 1998, Canada Post asked Dr. Guérin and Dr. Payne to meet in order to
discuss Mr. Beauregard’s case. The parties were unable to reach an agreement
and on December 9, Canada Post ordered the applicant to return to work. On
December 16, 1998, given Mr. Beauregard’s absence, Canada Post dismissed him,
effective December 17, 1998.
[14]
In an
extremely detailed decision some 60 pages long, the Tribunal analysed all the
material led in evidence,
including important medical evidence that included the testimonies of not only
Dr. Payne and Dr. Guérin (named as an expert witness by Canada Post) but
also Dr. Jacques Gagnon (named as an expert witness by Canada Post),
Dr. Gérard Cournoyer and Dr. André Gamache (filed by the Human Rights
Commission and the applicant).
[15]
Dr. Morin
did not testify. A single note that he prepared after attending an
approximately 45-minute-long meeting was filed.
[16]
Dr.
Berthiaume, who holds a management position with Canada Post and deals
specifically with CSST applications, also testified.
[17]
After
summarizing the evidence, the Tribunal held at paragraph 222 of its decision
that, in the fall of 1998, “there was no evidence that the
Complainant had symptoms of adjustment disorder with anxio-depressive mood or
any other psychiatric symptoms and as such there is no disability within the
meaning of the Act”.
[18]
The
Tribunal also found no evidence that the alleged stressor (described as an
essential element by the doctors) existed (paragraphs 223 to 233).
[19]
The
Tribunal ended by stating that it was convinced that Mr. Beauregard was unhappy
at a job that he found degrading and that the “plant” was a source of
frustration and job dissatisfaction for him. However, the Tribunal continued,
that did not justify the conclusion of a disability within the meaning of the
Act. The Tribunal therfore dismissed the complaint.
ISSUES
[20]
We should
state at the outset that Mr. Beauregard indicated in his notice of application
that the Commission had failed in its mandate to defend him by neglecting to
name Dr. Gamache and Doctor Cournoyer as expert witnesses or to advise him that
the settlement offer had been withdrawn.
[21]
The
Commission had obtained leave to intervene on these issues.
[22]
However,
at the hearing, after the Court informed him that, in the context of judicial
review, it had no authority to consider issues of liability of a third party
such as the Commission, the applicant agreed to withdraw any claims in that
respect. He indicated that, in fact, he had not dealt with those points in his
memorandum of fact and law. Therefore, the Commission was not heard.
[23]
In his
one-page memorandum, Mr. Beauregard simply stated that the Tribunal had ignored
the testimony of Dr. Berthiaume and that this was a fatal flaw that justified
setting aside the decision.
[24]
At the
hearing, Mr. Beauregard relied on other points raised in his notice of
application for judicial review, arguing that the Tribunal had also erred in
its assessment of the medical evidence by failing to take into consideration
that
(i) Dr. Berthiaume had
admitted to amending his notes on file, which is prohibited by the Collège des
médecins;
(ii) Dr. Guérin had taken 15
minutes for his examination, contrary to the standard of the Collège des
médecins; and
(iii)
Dr.
Gamache had forgotten to note in his medical report that Mr. Beauregard’s
risk of relapse was 50 per cent plus one.
[25]
Mr.
Beauregard also argued that the Tribunal erred in finding Dr. Gagnon credible,
even though, according to the applicant, Dr. Gagnon clearly attempted to
exaggerate his case by insinuating the existence of a personality disorder
when, in fact, it was simply a personality trait.
[26]
Finally,
Mr. Beauregard offered a new argument to the effect that the Tribunal had erred
in failing to consider in its credibility assessment section 85 of the Code
of ethics of physicians (2002 G.O.2.7354), to the effect that a physician
must refrain from issuing to any person a false certificate or any information,
either verbal or written, which he knows to be erroneous.
[27]
The
applicant acknowledged that, although the Code of ethics of physicians
had been included in the Commission’s book of authorities, no one had raised
the argument before the Tribunal, nor had this aspect been discussed during
testimony or on cross-examination. Thus, there was no evidence to support the
allegation that the Tribunal should have considered this provision or the
impact of a breach of the Code of ethics of physicians in its assessment
of the evidence.
[28]
Accordingly,
as was indicated in the hearing, the Court cannot consider this new argument.
ANALYSIS
[29]
At
paragraphs 34 to 46 of Quigley v. Ocean Construction Supplies Ltd.,
Marine Division, [2004] F.C.J. No. 786 (T.D.) (QL), Gibson J. conducted a
pragmatic and functional analysis to determine the standard of review
applicable to the Tribunal’s decisions. He concluded that the patent
unreasonableness standard applies to the assessment of the facts, which
includes the assessment of the credibility and probative value of testimony
presented before him. Gibson J. applied the same standard in International
Longshore and Warehouse Union (Local 400) v. Hoster, (2002) 2 F.C.
430 (F.C.T.D.), at paragraph 22.
[30]
I concur
with the analysis of my colleague and shall adopt that standard, which applies
essentially to all the issues raised by Mr. Beauregard.
[31]
On the
question of Dr. Berthiaume’s testimony, it is clear that the Tribunal did not
give it any specific weight or even discuss it in the assessment of the medical
evidence. In so doing, the Tribunal committed no error, in this Court’s view,
as the doctor did cover Mr. Beauregard’s medical condition in his testimony,
which the Court read in full.
[32]
Furthermore,
although it is true that Dr. Berthiaume’s notes, that is, exhibits C-37 and
C-38 filed with the Tribunal by Mr. Harrington, contain some differences, there
is nothing to indicate that anything was falsified. On the contrary, Canada
Post filed and voluntarily disclosed these exhibits. The notes were wholly
irrelevant to the Tribunal’s decision as to whether or not there was a
disability. Accordingly, even if the Tribunal had erred on this issue, this
would on no account have justified the Court’s intervention.
[33]
As for the
defects raised by Mr. Beauregard in respect of the assessment of Dr. Guérin’s
testimony, this Court notes that the Tribunal stated at paragraph 105 of the
decision that the interview with the doctor lasted no longer than 15 or 20
minutes, and at paragraph 117 that Dr. Guérin concluded that the brief
examination did not allow him to arrive at a psychiatric diagnosis. The Court
is satisfied that the Tribunal did not disregard the evidence and considered
the duration of the interview in its assessment.
[34]
With
regard to Dr. Gagnon’s testimony, the Tribunal noted at paragraph 183 that,
while the doctor did not detect major personality disorder during his
examination, he did make some observations about the complainant’s personality:
coldness, rigidity in his thinking and distrust. The Tribunal subsequently
noted at paragraph 186 that the witness used the expression
“probably” when
he stated that the applicant had a personality disorder, because he did not
have all the information at hand for deciding the matter. The Tribunal noted:
“He
said that by personality problem, he was referring to a conflict that was still
unresolved. However, he indicated that he did not mean a personality disorder
when he spoke of a personality problem”.
[36]
The Court
is satisfied that the Tribunal did not commit a reviewable error in its
assessment of that witness’ testimony on this question.
[37]
Finally,
after reviewing the transcript of Dr. Gamache’s testimony, while it is true
that he indicated in response to a question from the Tribunal Chairperson that
the risk of relapse was 50 per cent plus one, he was never asked and never
agreed to include that detail in his report.
[38]
At
paragraph 136 of the decision, the Tribunal specifically refers to the risk of
relapse mentioned by Dr. Gamache. The Court is satisfied that the Tribunal did
not disregard any evidence in this respect.
[39]
In his
reply, Mr. Beauregard acknowledged that any other errors pointed out in his
notice of application for judicial review could be called [TRANSLATION]
“challenges to
the probative value given to certain witnesses by the Tribunal”.
[40]
The Court
closely examined each and every exhibit filed by the applicant and is not
persuaded that the Tribunal’s decision is unreasonable. It is certainly not
patently unreasonable.
[41]
As I
explained at the hearing, the Court cannot substitute its own assessment of the
testimony for that of the Tribunal. The applicable standard of review imposes
a heavy burden that Mr. Beauregard could not discharge.
[42]
Under the
circumstances, the application for judicial review must be dismissed.
[43]
Canada
Post asked the Court to allow its costs. The respondent submitted a draft bill
of costs for a total of $2,831.18. After having considered the circumstances
as a whole and exercising my discretion under section 400 of the Federal
Courts Rules, the Court sets costs at $950 overall (including
disbursements).
ORDER
THE COURT ORDERS that:
1. The application for judicial review be dismissed
with costs.
2. The respondent’s costs are set at a total amount
of $950.
“Johanne
Gauthier”
Michael
Palles
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