Morassutti v. Expertech Network Installation Inc., 2004 FC 558

Date: 20040414

Docket: T-953-03

Citation: 2004 FC 558

Ottawa, Ontario, this 14^th day of April, 2004

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                         

BETWEEN:

                                                         LUCIEN MORASSUTTI

                                                                                                                                            Applicant

                                                                           and

                                   EXPERTECH NETWORK INSTALLATION INC.

                                                                                                                                        Respondent

                                    REASONS FOR JUDGMENT AND JUDGMENT

[1]                Mr. Lucien Morassutti was dismissed in 1998 from his position as a cable splicer with Expertech Network Installation Inc. He had had successive knee problems and his physician recommended that he be assigned comparatively light duties. Mr. Morassutti argues that Expertech not only failed to accommodate his physical shortcomings but dismissed him because of them, and because of his age. He presented a complaint to the Canadian Human Rights Commission, which appointed an investigator to look into it. The investigator found that there was no factual foundation for the complaint whatsoever, a conclusion endorsed by the Commission. It dismissed the complaint pursuant to s. 41(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. Mr. Morassutti argues that the investigator made a number of errors in his report and that the Commission's decision to endorse it was unreasonable. He asks me to overturn that decision and order the Commission to reconsider after providing him an oral hearing.

[2]                I can find no basis for granting the relief Mr. Morassutti seeks and must, therefore, dismiss this application for judicial review.

I. Issues

[3]                There is one issue in this case:

·            Did the Commission err in accepting the investigator's conclusion that Mr. Morassutti's complaint was unfounded?

II. Analysis

[4]                Mr. Morassutti points to two errors in the investigator's report, each of which I will address in turn:

[5]                First, the investigator made a clear factual error. He wrongly stated that Expertech's own investigator had visited Mr. Morassutti's home and found company property there. Expertech concedes that the investigator made a mistake, but it argues that the mistake was completely irrelevant to the investigator's overall findings and had no impact on the Commission's decision to dismiss Mr. Morassutti's complaint. In the circumstances, I must agree with the respondent.

[6]                The investigator was charged with determining whether there was a factual foundation for Mr. Morassutti's allegations of discrimination based on age and physical disability. In the course of his inquiries, he determined that Mr. Morassutti had actually been dismissed for cause. In particular, Expertech, after its own investigation, found that Mr. Morassutti had misappropriated some company property and was in a conflict of interest respecting certain contracts with Mr. Morassutti's son.

[7]                There was a significant amount of evidence supporting the respondent's concerns and the investigator referred to that evidence in his report. However, the investigator clearly erred when he reported that Expertech's investigator had gone to Mr. Morassutti's home.

[8]                I fail to see, though, how that error could have affected the investigator's ultimate conclusion that Mr. Morassutti's discrimination claims were unfounded and that he had actually been dismissed for cause. There were other sources of evidence supporting Expertech's accusations against Mr. Morassutti. For example, while Expertech's investigator had not visited Mr. Morassutti's home, others had, and they prepared a detailed inventory of the company property they found there. In any case, it was not necessary for the investigator to arrive at any definitive conclusions about the true cause for Mr. Morassutti's dismissal. He simply had to determine whether Mr. Morassutti's age or physical disability played any role in it. He found no evidence to support Mr. Morassutti's complaint - on the contrary, the evidence suggested a valid basis for his dismissal. The error to which Mr. Morassutti points to discredit the investigator's report had no apparent impact on the investigator's findings.

[9]                The second error Mr. Morassutti points to relates to the investigator's finding that Expertech had accommodated Mr. Morassutti's physical limitations. The investigator found that Expectech assigned Mr. Morassutti to comparatively light duties after he injured his knee in 1995. The company gave him assignments that involved seated work instead of climbing up ladders or going down manholes. The investigator reported that Mr. Morassutti's fellow workers corroborated Expertech's position that Mr. Morassutti was given lighter duties.

[10]            However, one of Mr. Morassutti's colleagues, Mr. Horne, said in a letter that he had worked with Mr. Morassutti on a number of occasions during the summer of 1998, and that some of their assignments involved manholes or ladders. He also said that the company never informed him of Mr. Morassutti's limitations. He was aware though, that Mr. Morassutti had a knee problem and offered to do the ladder work for him.

[11]            The investigator stated in his report that Mr. Horne was indeed aware of the fact that Mr. Morassutti had been given comparatively lighter tasks. Mr. Morassutti argues that the investigator's finding contradicts Mr. Horne's letter and cannot be relied on.

[12]            In my view, there is no direct contradiction between the investigator's summary of the evidence on this point and Mr. Horne's letter. Mr. Horne may well have been aware of the arrangements regarding Mr. Morassutti without ever having been so informed by Expertech. He may have been informed by Mr. Morassutti directly. Further, Mr. Morassutti may have agreed to perform more strenuous tasks that summer on days when his knee was not too painful, as one of his supervisors had reported. In any case, most of the evidence before the investigator suggested that Mr. Morassutti had been accommodated in the workplace over the years.

III. Conclusion

[13]            The investigator prepared a thorough and impartial report, in keeping with his legal obligations: Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (F.C.T.D.). He interviewed all of the available material witnesses and considered all of the relevant evidence. Both parties had an opportunity to respond to the report and put their further submissions before the Commission. The Commission considered all of the material before it in dismissing Mr. Morassutti's complaint. I see no basis on which to find that the Commission's decision was unreasonable, and no indication that the process by which Mr. Morassutti's complaint was considered fell short of the requirements of procedural fairness as set out in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879. Therefore, I must dismiss this application for judicial review.

                                                                   JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is dismissed.

2.          The parties may make written submissions regarding costs, which shall be served and filed within 10 days of this judgment.

                                                                                                                             "James W. O'Reilly"            

                                                                                                                                                   J.F.C.                       

                                                                         Annex