Date: 20051014
Docket: T-2115-04
Citation: 2005 FC 1410
Ottawa, Ontario, October 14, 2005
Present: The Honourable Mr. Justice de Montigny
BETWEEN:
JEANNINE BASTIDE, SUZE AIMÉ, CÉCILE AUGER, JEANNE-ALICE BELLEROSE, BERNARD BENOIT, DANIELLE BERGERON, PRUDENCE BLAIN,
GILLES BOUCHARD (ESTATE OF AIMÉE BOULAY), JEANNINE BOURASSA, MADELEINE BOUTET-BOURGEOIS, HUGUETTE CARON,
JEAN-PAUL CASTONGUAY, JOCELYNE CUTLER, JOSEPH D'ARGENZIO,
LUCIE DAVIAULT, MAUD DUBUISSON, THÉRÈSE DUBÉ, FRANTZ GERMAIN, GINETTE GIGUÈRE, GILLES GRAVEL (ESTATE OF LUCIEN GRAVEL), JOCELYNE JEAN-CHARLES, JOCELYNE JOSEPH, MARCELLE LAJOIE-QUESSY, NICOLE LANDRY, CLAUDETTE LARIVIÈRE, DENISE LAROUCHER,
NICOLE MARCOTTE, GEORGETTE MIGNAULT, SOLANGE PELLETIER,
COLETTE PERRAULT, HENRIETTE PERRON-RHÉAUME, ROBERT ROBILLARD, MARIE-CLAUDE SILENCIEUX, JACQUELINE ST-PIERRE (ESTATE OF NORMANDE ST-PIERRE), RÉJEANNE YIP
Applicants
and
ATTORNEY GENERAL OF CANADA and CANADA POST CORPORATION
Respondents
REASONS FOR ORDER
[1] The original applicants of these applications for judicial review, Jeannine Bastide (on behalf of 35 co-applicants) and Kenneth Doolan (on behalf of 5 co-respondents), were all temporary employees of the Canada Post Corporation at the time that the facts that are relevant to the resolution of the dispute occurred. They all allege that they were discriminated against because the manual dexterity test that they had to take to obtain a permanent position disadvantaged them with respect to younger employees with less seniority.
[2] After reviewing their complaints, the Human Rights Commission decided not to request the appointment of a human rights tribunal, despite the recommendation to that effect made by the investigator responsible for the file. The applicants are applying for a judicial review of those decisions by the Commission. Since the two court files (T-2115-04 and T-2116-04) raise the same issues and were argued together, these reasons are to be read jointly with the orders made for each of the court files.
BACKGROUND
[3] It seems that since 1976, all individuals who have wanted to obtain regular employment as a postal clerk (salary level PO4) in a mechanized plant have had to pass a dexterity test. This test is intended to establish the basic skills to see if the employees are able to proceed with the training program intended to teach them to code postal codes in the mechanized plants. As a matter of fact, the coding work requires dexterity and the capacity to rapidly coordinate a visual observation and the action of the keys on a coding keyboard.
[4] At the relevant time, namely from February 1, 1995 until July 31, 1997, the collective agreement contained a new provision applicable to postal clerks to the effect that a vacant position would be offered to employees and temporary employees "who possess the basic skills and requirements for work in the group in which the vacancy exists."
[5] The dexterity test administered in 1995, which is the subject of this application for judicial review was thus used to evaluate the basic skills of the temporary employees (formerly called "casual help") at the downtown Letter Processing Plant (LPP). Passing the test gave access to a regular part-time or full-time position as a PO4 clerk. It also gave access to the coding training and, if this training was successfully completed, they could obtain a position at the coding desk or the videocoding system.
[6] There was evidence that the downtown LPP receives and processes approximately three million pieces of mail daily. It is highly mechanized and uses cutting-edge technology. Many pieces of equipment require coding on a computer keyboard.
[7] PO4 postal clerks work in the mechanized area and in the manual area, at Mail Preparation or at the Receipt Verification Unit. In the mechanized area, PO4 postal clerks are called CSS clerks (coder, sweeper, sorter). They perform such tasks as feeding the machines, working at a computer keyboard to code mail according to the postal code symbols and emptying machines. In the manual area, PO4 clerks do the work that could not be performed mechanically. As in the mechanized area, the employees do primary sorting and final sorting of mail but do it manually. Finally, in the Receipt Verification Unit, the PO4 clerks check the mailings of certain major clients to ensure that everything is consistent with the contract entered into by the Corporation and its clients and that the fees have been paid.
[8] Even if not all PO4 clerks are called upon to perform coding operations, it is evident that the trend towards mechanization is such that a substantial portion of the staff is called on or will eventually be called on to perform operations requiring coding. To illustrate, from September 1994 to April 1997, the percentage of the clerical staff (PO4) working in the mechanized area increased from 37.1% to 51.9%. On the other hand, during the same period, the percentage of clerks working in the manual area went from 41.3% to 31.1%. That is in fact the determination made by the grievance arbitrator and the Commission's investigator.
[9] Moreover, there is a lot of movement of staff among these regular employees, and that is for many reasons (to meet needs, because of workforce reorganization, because of the introduction of new technologies, etc.). Not to mention that employees doing the coding must be rotated at regular intervals, such as every four hours, to diversify their tasks, which doubles the manpower requirements for the coding.
[10] During a reorganization in early 1995, the downtown LPP had many vacant PO4 clerk positions. These positions were first offered to the regular employees; the positions that were still vacant, which happened to be regular part-time positions, were offered in order of seniority to temporary employees who had passed the dexterity test administered in March 1995.
[11] The temporary employees who were offered and who accepted vacant positions at the PO4 level had, pursuant to the collective agreement, six months to qualify through the coding training. This training requires, for coding at a desk, approximately 210 hours, and for videocoding, 100 hours.
[12] As for the test itself, it calls for the equipment that is used in the normal course of operations. Each candidate has at his or her disposal a computer screen on which appears a reproduction of the keyboard: each key corresponds to a letter and nine of them also have a digit, from 1 to 9. The digits and letters do not appear on the keys, but only in the representation that can be seen on the screen. The keyboard used for the test is analogous to that which is used by a coder at work, except that for the test, this keyboard is hidden by a flat plate: the candidate can work the twenty keys of the key board with his right hand, but he cannot see the keyboard. This prevents the candidate from being distracted from the screen. Each part of the test contains thirty-six codes to be entered, each code containing six characters. To pass the dexterity test, the candidate must reproduce, without error, using the screened keyboard, 60 of the 72 codes presented on the screen.
[13] In order to be able to establish if age was a factor in passing or failing the manual dexterity tests, the Human Rights Commission retained the specialized services of Statistics Canada to obtain a statistical analysis of the incidence of the dexterity test according to the age of the persons to which it was administered. The overall results of the analysis indicated that there is a significant statistical relationship between age and the test results or the failure rate, as the case may be. In fact, it seems that the failure rate increases in proportion to age, namely 1.2% per year.
[14] The complainants went to the Commission on June 20, 1995, as soon as they learned that regular positions would be offered to those who had passed the test. Two formal complaints were filed with the Commission on March 29, 1996, by Jeannine Bastide; the first alleges that the Canada Post Corporation discriminated against the complainants on the basis of their age in a matter related to employment by imposing a dexterity test depriving or tending to deprive them of employment opportunities contrary to section 10 of the Canadian Human Rights Act, R.S. 1985, c. H-6 (the Act), while the second was to the effect that the Corporation discriminated against the complainants on the basis of their age by imposing a dexterity test and refusing to hire them in permanent positions contrary to section 7 of the Act.
[15] Subsequently, on December 14, 2001, a second group (represented by Mr. Doolan) filed a complaint essentially to the same effect as the complaints of Jeannine Bastide. The Commission consented to state an opinion on this complaint even though it had been filed after the one-year time limit provided for under paragraph 41(1)(e) of the Act, because the failure to consider their application could be attributed to the Commission (they had added their names to the list of complainants for the two other complaints three days after they were signed, but this new list had not been attached to the first list and it had not been forwarded to the respondent).
[16] As the union had filed a grievance on July 12, 1995, regarding the Corporation's use of the dexterity test, the Commission initially decided to stay the review of the complaints until the arbitrator's award pursuant to the collective agreement. After examining the testimonial and documentary evidence, the arbitrator dismissed the grievance on November 5, 1999. In his decision, the arbitrator noted that instituting the dexterity test was intended to identify the persons who were likely be able to acquire the manual, visual and mental skills necessary to do the coding. He determined that the dexterity test was valid or, in other words, reliable as an indicator of the eventual ability to code efficiently.
[17] The arbitrator noted that the data compiled by the employer over a few years based on a significant sampling of candidates indicated a rather high correlation between success on the test and success with the training program; furthermore, failure on the test has been a rather accurate indicator of subsequent difficulty with the training program.
[18] He further indicated that the relevance of the test must be evaluated not in relation to a particular position, but according to the work to be performed in the group of PO4 postal clerks. Consequently, he confirmed that the basic skills and aptitudes that the Corporation might be seeking, in this situation, are those required to perform the work in the group, which includes the aptitude to acquire the skills necessary to do the coding.
[19] In a decision dated November 22, 2000, the Quebec Superior Court dismissed the application for judicial review that had been filed by the union. Following that decision, the Commission reactivated the review of the complaints. On November 22, the investigator appointed by the Commission recommended that it adjudicate the complaints. Then, by letter dated February 26, 2002, the Commission notified the complainants that it had decided to adjudicate the complaints.
[20] On November 17, 2003, the same investigator recommended to the Commission to request the appointment of a tribunal to hear the complaints. She arrived at this conclusion based on the following reasons:
- The inquiry established that there was a significant relationship between age and the dexterity test results;
- The third party's good faith as to the connection between the need to succeed on the test and the requirements of the work can be challenged;
- The third party did not demonstrate that it had explored all possible avenues of accommodation for persons with less technological abilities, particularly because of their age (applicants' brief, pages 109-110).
[21] This report was sent to the parties on November 17, 2003. In the accompanying letter, the Commission invited each of the parties to submit its observations on this report by December 19, 2003. Further, the parties were notified that they could communicate their observations to each other.
[22] After studying the investigator's report as well as the observations expressed by both parties on this report, the Commission communicated its decision to the parties by letter dated October 25, 2004. It concluded that the complaints should be dismissed, because [TRANSLATION] "the third party had proven the existence of a bona fide occupational requirement within the meaning of section 15 of the Act." It is this decision that the applicants, represented by Jeannine Bastide and Kenneth Doolan, are seeking to have set aside by way of a judicial review.
ISSUES
[23] The issues raised by this application for judicial review are the following:
- What standard of review applies to the Commission's decision to dismiss the complaints?
- Did the Commission err in deciding to dismiss the complaints?
APPLICABLE LEGISLATION
| 7. It is a discriminatory practice, directly or indirectly,
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7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
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| (a) to refuse to employ or continue to employ any individual, or
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a) de refuser d'employer ou de continuer d'employer un individu;
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| (b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
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b) de le défavoriser en cours d'emploi.
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| 10. It is a discriminatory practice for an employer, employee organization or employer organization
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10. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite et s'il est susceptible d'annihiler les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus, le fait, pour l'employeur, l'association patronale ou l'organisation syndicale :
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| (a) to establish or pursue a policy or practice, or
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a) de fixer ou d'appliquer des lignes de conduite;
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| (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
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b) de conclure des ententes touchant le recrutement, les mises en rapport, l'engagement, les promotions, la formation, l'apprentissage, les mutations ou tout autre aspect d'un emploi présent ou éventuel.
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| 15. (1) It is not a discriminatory practice if
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15. (1) Ne constituent pas des actes discriminatoires :
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| (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
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a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l'employeur qui démontre qu'ils découlent d'exigences professionnelles justifiées;
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| (b) employment of an individual is refused or terminated because that individual has not reached the minimum age, or has reached the maximum age, that applies to that employment by law or under regulations, which may be made by the Governor in Council for the purposes of this paragraph;
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b) le fait de refuser ou de cesser d'employer un individu qui n'a pas atteint l'âge minimal ou qui a atteint l'âge maximal prévu, dans l'un ou l'autre cas, pour l'emploi en question par la loi ou les règlements que peut prendre le gouverneur en conseil pour l'application du présent alinéa;
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| (c) an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;
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c) le fait de mettre fin à l'emploi d'une personne en appliquant la règle de l'âge de la retraite en vigueur pour ce genre d'emploi;
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| (d) the terms and conditions of any pension fund or plan established by an employer, employee organization or employer organization provide for the compulsory vesting or locking-in of pension contributions at a fixed or determinable age in accordance with sections 17 and 18 of the Pension Benefits Standards Act, 1985;
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d) le fait que les conditions et modalités d'une caisse ou d'un régime de retraite constitués par l'employeur, l'organisation patronale ou l'organisation syndicale prévoient la dévolution ou le blocage obligatoires des cotisations à des âges déterminés ou déterminables conformément aux articles 17 et 18 de la Loi de 1985 sur les normes de prestation de pension;
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| (e) an individual is discriminated against on a prohibited ground of discrimination in a manner that is prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be reasonable;
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e) le fait qu'un individu soit l'objet d'une distinction fondée sur un motif illicite, si celle-ci est reconnue comme raisonnable par une ordonnance de la Commission canadienne des droits de la personne rendue en vertu du paragraphe 27(2);
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| (f) an employer, employee organization or employer organization grants a female employee special leave or benefits in connection with pregnancy or child-birth or grants employees special leave or benefits to assist them in the care of their children; or
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f) le fait pour un employeur, une organisation patronale ou une organisation syndicale d'accorder à une employée un congé ou des avantages spéciaux liés à sa grossesse ou à son accouchement, ou d'accorder à ses employés un congé ou des avantages spéciaux leur permettant de prendre soin de leurs enfants;
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| (g) in the circumstances described in section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation.
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g) le fait qu'un fournisseur de biens, de services, d'installations ou de moyens d'hébergement destinés au public, ou de locaux commerciaux ou de logements en prive un individu ou le défavorise lors de leur fourniture pour un motif de distinction illicite, s'il a un motif justifiable de le faire.
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| 15(2) Accommodation of needs
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15(2) Besoins des individus
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| (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
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(2) Les faits prévus à l'alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l'alinéa (1)g), s'il est démontré que les mesures destinées à répondre aux besoins d'une personne ou d'une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coûts, de santé et de sécurité.
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| 15(3) Regulations
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15(3) Règlement
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| (3) The Governor in Council may make regulations prescribing standards for assessing undue hardship.
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(3) Le gouverneur en conseil peut, par règlement, déterminer les critères d'évaluation d'une contrainte excessive.
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| 15(4) Publication of proposed regulations
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15(4) Prépublication
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| (4) Each regulation that the Governor in Council proposes to make under subsection (3) shall be published in the Canada Gazette and a reasonable opportunity shall be given to interested persons to make representations in respect of it.
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(4) Les projets de règlement d'application du paragraphe (3) sont publiés dans la Gazette du Canada, les intéressés se voyant accorder la possibilité de présenter leurs observations à cet égard.
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| 15(5) Consultations
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15(5) Consultations
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| (5) The Canadian Human Rights Commission shall conduct public consultations concerning any regulation proposed to be made by the Governor in Council under subsection (3) and shall file a report of the results of the consultations with the Minister within a reasonable time after the publication of the proposed regulation in the Canada Gazette.
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(5) La Commission des droits de la personne tient des consultations publiques concernant tout projet de règlement publié au titre du paragraphe (4) et fait rapport au gouverneur en conseil dans les meilleurs délais.
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| 15(6) Exception
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15(6) Modification
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| (6) A proposed regulation need not be published more than once, whether or not it has been amended as a result of any representations.
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(6) La modification du projet de règlement n'entraîne pas une nouvelle publication.
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| 15(7) Making of regulations
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15(7) Prise du règlement
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| (7) The Governor in Council may proceed to make regulations under subsection (3) after six months have elapsed since the publication of the proposed regulations in the Canada Gazette, whether or not a report described in subsection (5) is filed.
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(7) Faute par la Commission de lui remettre son rapport dans les six mois qui suivent la publication du projet de règlement, le gouverneur en conseil peut procéder à la prise du règlement.
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| 15(8) Application
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15(8) Application
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| (8) This section applies in respect of a practice regardless of whether it results in direct discrimination or adverse effect discrimination.
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(8) Le présent article s'applique à tout fait, qu'il ait pour résultat la discrimination directe ou la discrimination par suite d'un effet préjudiciable.
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| 15(9) Universality of service for Canadian Forces
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15(9) Universalité du service au sein des Forces canadiennes
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| (9) Subsection (2) is subject to the principle of universality of service under which members of the Canadian Forces must at all times and under any circumstances perform any functions that they may be required to perform.
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(9) Le paragraphe (2) s'applique sous réserve de l'obligation de service imposée aux membres des Forces canadiennes, c'est-à-dire celle d'accomplir en permanence et en toutes circonstances les fonctions auxquelles ils peuvent être tenus.
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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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44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
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| Idem
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Idem
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| (3) On receipt of a report referred to in subsection (1), the Commission
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(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission :
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| (a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
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a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue :
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| (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
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(i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié,
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| (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
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(ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
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| (b) shall dismiss the complaint to which the report relates if it is satisfied
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b) rejette la plainte, si elle est convaincue :
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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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(i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié,
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| (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
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(ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e).
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| 44(4) Notice
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44(4) Avis
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| (4) After receipt of a report referred to in subsection (1), the Commission
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(4) Après réception du rapport, la Commission :
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| (a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and
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a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3);
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| (b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).
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b) peut informer toute autre personne, de la manière qu'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3).
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ANALYSIS
[24] Before examining the issues identified in the preceding paragraph, consideration must be given to the respondent's claim to the effect that certain paragraphs of the affidavits submitted by Jeannine Bastide and Kenneth Doolan should be struck out and are not admissible as evidence in the context of their application for judicial review. These paragraphs are identical and read as follows:
[TRANSLATION]
5. The employees who passed this test, for the most part, were not at all subsequently assigned to tasks for which the test would have been relevant, but, on the contrary, continued performing their usual tasks which in no way required work necessitating the dexterity which the test supposedly verified; however, passing this test assured them of permanency as regular part-time or full-time employees;
7. The development of the so-called dexterity test had not been based on any expertise outside of Canada Post nor had it been negotiated with our union, the Union of Postal Workers (formerly: The Letter Carriers Union of Canada);
8. It was in this way that the applicants, and many other casual helpers at the time in their late thirties and/or older than forty, thus affected by their age in their ability to learn and to adapt to new technologies within a given period of time, and not having had the benefit of academic clerical training in the operation of keyboards and computers, were outclassed by younger employees who had passed this test: the younger employees, while having much less seniority than the applicants, therefore obtained permanent status before them.
[25] It is well established that in matters of judicial review, an affidavit must be limited to a statement of facts. It must not contain opinions, points of view or argument by the affiant. This principle, which has its source in the common law rule on hearsay, can be explained by the fact that it must be possible to cross-examine the affiant. Its expression can now be found in subsection 81(1) of the Federal Court Rules, 1998 which states that "affidavits shall be confined to facts within the personal knowledge of the deponent . . ."
[26] This principle has frequently been applied by this Court to strike out affidavits or parts of affidavits which state a personal opinion or speculation. The same will be true with respect to paragraphs based on hearsay:
- Dragage F.R.P.D. Ltée v. Bouchard, [1994] F.C.J. No. 1259 (F.C.)(QL)
- Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102, appeal dismissed [1995] F.C.J. No. 70 (F.C.A.) (QL);
- Bell Canada v. Canada (Human Rights Commission), [1991] 1 F.C. 356;
- Chopra v. Canada (Treasury Board), [1999] F.C.J. No. 835 (F.C.) (QL);
- Bressette v. Kettle and Stony Point First Nation Band Council, [1997] F.C.J. No. 1130 (F.C.) (QL).
[27] While the paragraphs reproduced above are not determinative in resolving the issue in this case, it is true, nonetheless, that they cannot in fact be taken into consideration. To the extent that they are based on hearsay and do not reflect facts within the personal knowledge of the affiants, the Court must disregard them. What's more, paragraph 8 expresses a pure opinion or makes an argument to the extent that it is stated that the applicants and many more casual helpers in their late thirties or older than forty were "thus affected by their age in their capacity to learn and to adapt to new technologies within a given period of time, and not having had the benefit of academic training in the clerical area involving the operation of keyboards and computers, were outclassed by younger employees who had passed this test." This statement is more akin to an expert opinion than a fact to which the affiants can personally testify.
(A) The applicable standard of review
[28] Under subsection 44(3) of the Canadian Human Rights Act (the Act), the Commission must dismiss the complaint when it is satisfied that an inquiry into the complaint is not warranted having regard to all the circumstances. At this stage of the proceedings, the Commission is therefore called upon to determine whether there is cause to proceed to the next stage which consists in requesting that the Human Rights Tribunal institute an inquiry into the complaint.
[29] Accordingly, it bears repeating that the Commission's mandate is not to give an opinion on the merits of the complaint or to determine if it is justified, but solely to give an opinion as to whether there is sufficient evidence to proceed. As the Supreme Court of Canada indicated in the judgment Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879, "[i]t is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage" (page 899). That is to say that the Commission's decision is an administrative one and is therefore discretionary (see also Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at page 891).
[30] In matters of judicial review, the pragmatic and functional analysis requires the assessment of four contextual factors in order to choose the applicable standard: (1) the presence or absence in the Act of a privative clause or of a statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question - law, fact or mixed law and fact. This analysis can result in three possible standards of review, patent unreasonableness, reasonableness simpliciter and correctness.
- Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraphs 26-35;
- Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraphs 24-27;
- Pushpanathan v. Canada (Minister of Citizenship), [1998] 1 S.C.R. 982, at paragraphs 29-38;
- Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] S.C.J. No. 2, at paragraphs 15-18 (QL).
[31] In this case, the Act does not contain a privative clause or a statutory right of appeal. The fact that the Act is silent on these matters is neutral and does not imply a high standard of review. As to the Commission's expertise, there is no doubt that the Commission has an edge when the issue is whether a complaint should be dismissed.
[32] The intent of the Act is stated in section 2. Its purpose is that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able consistent with their duties as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national origin or bases of discrimination listed in the that section. The Act allows, by various provisions, for limits on this purpose. Sections 41 and 44, for example, place limits on the referral of complaints to the Tribunal. The Commission was given a good deal of latitude and discretion in its decision-making. Consequently, the Federal Court of Appeal has concluded that it can safely be said that, as a general rule, Parliament did not wish the courts to intervene lightly with the Commission's decisions.
The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.), at page 698, Le Dain J.A.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.
See also Gee v. Canada (Minister of National Revenue), [2002] F.C.J. No. 12; 2002 FCA 4 (QL)
[33] As to the nature of the issue, the Commission must determine if a review of the complaints by a tribunal would be warranted. To do so, the Commission must apply a legal principle to the facts that are presented to it; it is therefore a question of mixed fact and law.
[34] After analyzing these four factors, my colleague O'Keefe J. determined that a decision by the Commission not to refer a complaint to the Tribunal must be examined according to the reasonableness simpliciter standard: MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (QL). I concur. I note in passing that this standard of review, is generally applied in similar circumstances by my colleagues of the Federal Court of Appeal, although not unanimously:
- Canada (A.G.) v. Grover, [2004] F.C.J. No. 865; [2004] F.C. 704 (QL);
- Wang v. Minister of Public Safety and Emergency Preparedness, [2005] F.C. 654, [2005] F.C.J. No. 796 (QL);
- Gardner v. Canada (A.G.), [2004] F.C.J. No. 616, [2004] F.C. 493 (QL);
- Singh v. Canada (A.G.), [2001] F.C.J. No. 367; conf. [2002] F.C.J. No. 885 (QL);
- Chopra v. Canada (A.G.), [2002] F.C.J. No. 1082, 2002 FCT 787 (QL);
- Bradley v. Canada (A.G.) (1999), 238 N.R. 76 (F.C.A.), [1999] F.C.J. No. 370;
- Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321, 2002 FCA 4 (QL);
- Takmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60, 2005 FCA 113 (QL).
[35] It is true, as was pointed out by the respondent, that the patent unreasonableness standard is also applied on occasion: McConnell v. Canada (Canadian Human Rights Commission), [2004] F.C.J. No. 1005 (F.C.) (QL); Murray v. Canada (Canadian Human Rights Commission), [2003] F.C.J. No. 763 (F.C.A.) (QL); Elkayam v. Canada (Attorney General), [2004] F.C.J. No. 1099 (QL), upheld by the Federal Court of Appeal at [2005] F.C.J. No. 494. With respect, in my view these decisions do not reflect the majority trend; in fact, the most recent decision of the Federal Court of Appeal on this issue reaffirms that reasonableness simpliciter is the applicable standard:
The general thrust of the decisions of this Court on the subject of the standard of review of a decision dismissing a human rights complaint is that the appropriate standard is that of reasonableness. See Bradley v. Canada (Attorney General), (1999), 238 N.R. 76 (F.C.A.), at para. 13, Tahmourpour v. Canada (Solicitor General), (2005), 332 N.R. 60, 2005 FCA 113 at para. 6. As a result, I conclude that the jurisprudence of this Court is to the effect that the standard of review of a decision of the Commission to dismiss a complaint without inquiry is reasonableness simpliciter.
[36] In any case, for the reasons that follow, it is my opinion that the Commission did not err in dismissing the complaint, whether the standard of patent unreasonableness or of reasonableness simpliciter is applied. Considering the evidence that was before it as well as the state of the law in matters of employment discrimination, it is my view that the reason given by the Commission for refusing to refer the complaint to a tribunal was not unfounded and could be logically defended. As has been stated on many occasions by the Supreme Court, the court's role in the judicial review of a decision is not to decide if it would have arrived at the same conclusion, but rather to determine if the impugned decision can be supported by the tribunal's reasoning. In other words, "there will often be no single right answer to the questions that are under review against the standard of reasonableness . . . Even if there could be, notionally, a single best answer, it is not the court's role to seek this out when deciding if the decision was unreasonable." Law Society of New-Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 51. See also Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 61; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraph 41. If this is the case, it is obvious that the Commission's decision will not be patently unreasonable.
(B) Was the Commission's decision to dismiss the complaint unreasonable?
[37] To determine if sections 7 and 10 of the Canadian Human Rights Act were violated, the Commission had first to consider if the test administered by the Corporation was prima facie a discriminatory practice. In this regard, it seems clear that the Commission implicitly confirmed the investigator's conclusions based on the report from Statistics Canada revealing a statistically significant relationship between age and the results on the dexterity test. In dismissing the evidence on the basis that the Corporation had established the existence of a bona fide occupational requirement, the Commission was in fact presupposing the existence of prima facie evidence of discrimination.
[38] Counsel for the respondent tried to establish that the Corporation had not discriminated insofar as the skills for the job were related to the task to be performed, that each individual was assessed individually, and that the test used in this assessment adequately measured the basic skills required. Citing case law, she tried to convince this Court that there cannot be discrimination on the basis of age when individual assessments are conducted.
[39] I am not persuaded by this argument. It is true that discrimination would be more evident and easier to establish if an age category were expressly excluded from a benefit or an advantage. But in the great majority of cases, discrimination results rather from a standard that appears to be neutral; to the extent that the application of such a standard leads to a disproportionate exclusion of certain categories of persons (whether it be on grounds of age, sex, or another characteristic listed in sections 7 and 10 of the Act), it can be determined that there is discrimination which is systemic or which follows from its adverse effect: O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Bhinder v. C.N., [1985] 2 S.C.R. 561.
[40] It is only at the second stage, where it must be considered whether the restrictions, conditions or preferences of the employer are based on a bona fide occupational requirement within the meaning of section 15 of the Act, that the nature and individualization of the test are relevant. If the employer can demonstrate that a working condition is a bona fide occupational requirement, then this condition will not be considered to be a discriminatory act.
[41] Since the Supreme Court judgments in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (the Meiorin judgment) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (the Grismer judgment) [1999] 3 S.C.R. 868, the classical distinction between direct discrimination and indirect discrimination has been replaced by a common analysis of human rights complaints. According to this method, once prima facie evidence of discrimination has been established, it is incumbent on the respondent to prove, on the balance of probabilities, that there is a justifiable reason for the policy or discriminatory standard. To do this, the respondent must prove that:
(i) it adopted the standard for a purpose or goal rationally connected to the performance of the job. The focus at this step is not on the validity of the particular standard, but rather on the validity of its more general purpose, such as the safe and efficient performance of the job. This inquiry is necessarily more general than determining whether there is a rational connection between the performance of the job and the particular standard that has been selected. Where the general purpose is to ensure the safe and efficient performance of the job, it will not be necessary to spend much time at this stage;
(ii) it adopted the particular standard in good faith, in the belief that it was necessary to the fulfillment of the legitimate work-related goal, with no intention of discriminating against the claimant. At this stage, the focus shifts from the general purpose of the standard to the standard itself;
(iii) the impugned standard is reasonably necessary to accomplish its goal, that is, the safe and efficient performance of the job. The employer must demonstrate that it cannot accommodate the claimant and others affected by the standard without suffering undue hardship. Among the relevant factors to consider in assessing the employer's duty to accommodate an employee are the financial cost of the possible method of accommodation, the relative interchangeability of the workforce and facilities, and the prospect of substantial interference with the rights of other employees.
[42] In his written and oral submissions, counsel for the applicants focused on the third requirement of the test summarized in the previous paragraph to maintain that the dexterity test could not constitute a bona fide occupational requirement. An attempt was made to maintain that the test did not aim at measuring a person's ability to perform a specific task, but rather to identify the employees that would obtain permanent status. But this argument was made without strong conviction, and rightly so it seems to me, because the evidence does not support that finding.
[44] It may well be that not all the PO4 employees will be called upon to do coding at a given time, but the evidence presented by the Corporation and accepted by the arbitrator is to the effect that a large majority of these employees will eventually be called upon to perform coding, considering the rapid mechanization in this area of activity and the necessary mobility of staff assigned to these tasks.
[45] Furthermore, nothing supports the finding that the Commission would have used this test unless it sincerely believed that it was necessary to fulfill its goal and for discriminatory reasons. I further note that counsel for the applicants did not seriously attempt to argue that the Corporation did not sincerely believe that the test was necessary.
[46] There remains the third requirement, according to which the employer must demonstrate that he cannot accommodate the persons affected by the standard without undue hardship. In this regard, counsel for the applicants maintained that there was no evidence leading to the conclusion that the employer could not accommodate the older employees without undue hardship.
[47] However, in its Meiorin judgment, the Supreme Court explicitly acknowledged that an individual assessment to determine if the person has the aptitudes or skills required to perform the work can constitute a form of accommodation in itself. Another illustration of this principle can be found in the judgment written by Sopinka J. in Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297, at paragraph 30:
While it is not an absolute requirement that employee be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing. If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it.
.
[48] It is true that individualized assessment does not always constitute sufficient accommodation. The assessment must also assess the persons based on a realistic standard that reflects his or her true capacities and his or her potential contribution. In other words, the test must be reliable and relevant, and measure the qualifications that are truly required to perform the work in question in an efficient and optimal manner. In this case, the evidence led by the Corporation to the effect that a rather close correlation can be established between the results obtained on the test and the rate of success achieved during the subsequent training was not really challenged by the applicants. And contrary to the situation that prevailed in the judgment Québec (Commission des droits de la personne et des droits de la jeunesse) v. Nicolet (Ville), REJB 2001-25299, the test itself did not advantage an age category in its very design nor in its makeup.
[49] When it is demonstrated that a standard or an occupational requirement is justified, it does not become discriminatory for the sole reason that it produces variable results based on personal differences. On this subject, it can be useful to recall what McIntyre J. wrote in the judgment Bhinder v. Canadian National Railway Company, [1985] 2 S.C.R. 561, at page 589:
To conclude then that an otherwise established bona fide occupational requirement could have no application to one employee, because of the special characteristics of that employee, is not to give s. 14(a) a narrow interpretation; it is simply to ignore its plain language. To apply a bona fide occupational requirement to each individual with varying results, depending on individual differences, is to rob it of its character as an occupational requirement and to render meaningless the clear provisions of s. 14(a). In my view, it was error in law for the Tribunal, having found that the bona fide occupational requirement existed, to exempt the appellant from its scope.
[50] Furthermore, the Corporation asserted that without the test, the failure rate during the training would constitute undue hardship. Indeed, the evidence presented to the Commission established that without the test, the Corporation would be unable to organize its staffing in due time and would spend considerable amounts on training.
[51] I am therefore of the view that on the basis of the facts and the documentary evidence presented to it, the Commission could reasonably find that the Corporation had established the existence of a bona fide occupational requirement within the meaning of section 15 of the Act. Not only was the assessment personalized and relevant to the purpose sought, but the Corporation also proved that without the test it would be impossible for it to accommodate without sustaining undue hardship.
[52] Consequently, this application for judicial review is dismissed.
"Yves de Montigny"
Judge
Certified true translation
K. Harvey
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