Date: 20000616
Docket: T-1503-98
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Applicant
- and -
BARRY CRAMM
Applicant
- and -
CANADIAN NATIONAL RAILWAY (TERRA TRANSPORT)
Respondent
- and -
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
Respondent
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
Intervenor
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review under the Federal Court Act1 of a decision of a Canadian Human Rights Review Tribunal (the "Review Tribunal") in relation to the complaint of Mr. Barry Cramm. Mr. Cramm laid a complaint under subsection 10(b) of the Canadian Human Rights Act2 (the "Act") against his employer, Canadian National Railway (Terra Transport) ("CN"), and his union, the Brotherhood of Maintenance of Way Employees ("BMWE"), alleging discrimination, on grounds of disability, in his employment. A Canadian Human Rights Tribunal (the "Tribunal") agreed with Mr. Cramm's complaint and found that the respondents, the company and the union, had engaged in a discriminatory practice under the Act. The respondent CN appealed the decision and the Review Tribunal allowed the appeal, finding that the applicant Mr. Cramm did not have a prima facie case of discrimination. The Canadian Human Rights Commission (the "Commission") and Mr. Cramm now seek judicial review of the decision of the Review Tribunal.
Background
[2] Mr. Cramm began his career at CN in 1974 as a gang labourer and he subsequently became a track maintainer, a permanent employee who worked on a seasonal basis because of the nature of his work. In September 1980, he was involved in a serious accident while he was engaged in his employment and he was badly injured. He received Workers' Compensation benefits until August 1981, but he did not return to work after the accident until 1984. In 1988, CN informed its employees that the railway in Newfoundland was to be closed. Thereafter, Mr. Cramm continued to work for two years with CN, until 1990, dismantling the railway infrastructure in the province.
[3] As a result of the decision to close the railway operations in Newfoundland certain provisions of collective agreements between the railway and its employees' unions became operative. The agreement under which Mr. Cramm's complaint arises is the Employment Security and Income Maintenance Agreement ("ESIMA"), concluded between his union and CN. The terms of the ESIMA give employees affected by the shut down a right to employment security and certain job security benefits that were dependent upon what is referred to as an employee's Cumulative Compensated Service ("CCS"). The two benefits differed and the amount of CCS required for each of them differed. CCS is defined in the ESIMA and the portions of the definition relevant in this case are as follows:
| G. Cumulative Compensated Service means: |
| (i) One month of Cumulative Compensated Service which will consist of 21 days or major portion thereof. |
| (iii) For an employee who renders compensated working service in any calendar year, time off duty, [on] account [of] bona fide illness, injury, authorized maternity leave, to attend committee meetings, called to court as a witness or for uncompensated jury duty, not exceeding a total of 100 days in any calendar year, shall be included in the computation of Cumulative Compensated Service. |
[4] The general rule embodied in clause G(i) of the definition is that CCS for one month is credited when an employee works for at least eleven days in a month. Further, clause G(iii) provides CCS credit for time off duty, not exceeding 100 days each year, for employees who render compensated working service in a calendar year, but who are not working because of a number of circumstances described in that clause. Being off-work for injury or illness are two such circumstances. The requirement to render compensated service in a calendar year was treated by the parties as a requirement that an employee work for pay for one day in a calendar year.
[5] When CN decided to close the railway in Newfoundland, permanent employees with eight years of CCS were entitled to employment security, that is, a guaranteed job or full wages until age 55. Mr. Cramm did not qualify because, at that time, he had less than the 96 months CCS required. It is common ground among the parties that if Mr. Cramm had accumulated CCS under clause G(iii) during all of the years of his absence because of his injury, he would have been entitled to employment security. Mr. Cramm alleged that the calculation of CCS in the ESIMA provisions is discriminatory on the basis of disability and this is the basis for his complaint to the Canadian Human Rights Commission, against both CN and his union.
[6] The complaint was referred to a Canadian Human Rights Tribunal, which found in favour of Mr. Cramm. It held that the method of calculation for CCS discriminated against individuals who were unable to work because of disability, and this was a discriminatory practice within s-s. 10(b) of the Act, which provides:
| 10. It is a discriminatory practice for an employer, employee organization or employer organization
| (a) to establish or pursue a policy or practice, or |
| (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.
|
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_:
| a) de fixer ou d'appliquer des lignes de conduite; |
| 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. |
|
[7] The Tribunal found that Mr. Cramm was disabled when he was unable to work and that the requirement, implicit in clause G(iii) of the definition of CCS, to work for at least one day in a calendar year in order to qualify for CCS was discriminatory in its adverse effect. The Tribunal also found that the 100 day limit of CCS in clause G(iii) of the ESIMA was discriminatory because it treated those with a short-term disability differently than individuals with long-term disabilities.3 The tribunal upheld Mr. Cramm's complaint and found that CN and the union had breached s-s. 10(b) of the Act by their agreement which adversely affected him and others on the basis of disability.
[8] At that time, the Act provided for appeals to and a rehearing by a Review Tribunal in certain circumstances, pursuant to then ss. 55 and 56, which have since been repealed.4 CN appealed the decision of the Tribunal to the Review Tribunal, arguing that the Tribunal had erred in a number of ways. First, CN argued that the ESIMA was not an agreement within the meaning of section 10 of the Act. The Review Tribunal rejected this argument. Second, CN argued that the Tribunal erred in finding that the CCS tended to differentiate adversely against certain employees on the basis of disability. This submission the Review Tribunal agreed with, and the original Tribunal's decision was reversed. Other issues raised on appeal were not dealt with by the Review Tribunal, which found that the agreement was not prima facie discriminatory since it did not tend to differentiate adversely against employees on the basis of disability. Thus, the Review Tribunal did not consider whether, in the application of the agreement, Mr. Cramm was discriminated against as a result of his disability.
[9] In its application for judicial review before this Court, the applicants, the Commission and Mr. Cramm, seek an Order to set aside the Review Tribunal's decision, to send the matter back for reconsideration and to direct the Review Tribunal to address the remaining issues of appeal that were before it.
Standard of Review and the Issues
[10] The standard of review to be applied by this Court to the decision of the Review Tribunal is a necessary preliminary question. This question was considered by the Supreme Court of Canada in Canada (Attorney General) v. Mossop,5 where the majority found that reviewing courts need not show deference to Human Rights Tribunals with respect to general questions of law. In the case of such questions considered by those tribunals, the standard of review is correctness. In Pushpanathan v. Canada (Minister of Citizenship and Immigration),6 Mr. Justice Bastarache, writing for the Supreme Court, reaffirmed that standard for questions of law. He also restated the basis for determining the appropriate standard of review of an administrative decision. That standard is to be determined on a case-by-case basis, taking into account (a) whether there is a privative clause, (b) the expertise of the decision-maker relative to that of the reviewing court, (c) the purpose of the Act in issue as a whole and of the provision in question in particular, and (d) the nature of the issue before the reviewing court.
[11] In this case, the Act contains no privative clause or any other clause limiting authority of this Court on judicial review. The purpose of the Act, set out in s. 2, is to give effect, under the laws of Canada, to the principle of equal opportunity for all without discrimination on the enumerated grounds, including disability. That purpose is to be supported by broad interpretation of the Act, and in this case with particular reference to s-s. 10(b), in the matter of labour relations and collective bargaining.
[12] The comparative expertise of the Review Tribunal, in particular in relation to issues of fact in human rights matters warrants substantial deference by a reviewing court, reflecting the standard established under sub-paragraph 18.1(4)(d) of the Federal Court Act. For the Court to intervene where a tribunal has erred in a finding of fact, the Court must be satisfied that the decision reviewed is based on a finding that is made in a perverse or capricious manner or without regard to the evidence.
[13] Where the issue raised is a mixed question of law and fact, or even a narrow question of law within the special expertise of the administrative decision-maker the standard of review may well be one of reasonableness. Unless the decision is found to be unreasonable the Court would defer to the determination of the tribunal and would not intervene.
[14] The standard of review in this as in other cases ultimately turns on the nature of the matter or issue before the reviewing court. In this case the issues are primarily two. The applicants urge that the Review Tribunal erred in finding that CCS, as provided for in the ESIMA, did not tend to differentiate adversely against employees on the basis of disability. In reaching that conclusion it is said by the applicants that the Review Tribunal erred in its analysis of the appropriate comparator group and also in its determination that the agreement did not constitute a prima facie case of adverse effect discrimination on the basis of disability. The second issue raised by the Commission's submissions is whether the Review Tribunal erred in neglecting to consider whether the CCS, as provided in the ESIMA, in fact differentiated adversely against Mr. Cramm on the basis of disability.
[15] In my view, the nature of the matter here of concern in relation to each of the two issues is such that each ultimately is a question of law, but the first issue raises a general question of law for which the appropriate standard of review is correctness, and the second issue raises a narrow issue, within the special competence of the Review Tribunal. Unless the latter determination by the Review Tribunal can be found to be unreasonable, this Court would not intervene.
Selection of the "Comparator Group"
[16] Adverse effect, or indirect, discrimination may arise if an employment rule, honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, affects a person or a group of persons differently from others to whom it may apply.7 Where the different treatment is based upon a prohibited ground, the discriminatory effect is prohibited.
[17] A person alleging discrimination on the basis of disability has to show that he or she was treated differently than others with different abilities. In this case the Tribunal making the first decision compared Mr. Cramm's situation to that of employees who were not disabled and who had not taken unpaid time off work on the basis of illness or disability, or who had taken less than 100 days of unpaid leave. On this basis, the Tribunal concluded that because Mr. Cramm was off work because of disability and consequently lost Cumulative Compensated Service, he was discriminated against by adverse effects of the CCS. For its purposes, the neutral rule, of which the effects were assessed, was that established by clause G(i) of the ESIMA, that is, that one acquired CCS for each month in which 11 days of work are counted.
[18] The Review Tribunal, in contrast, identified a different comparator group and arrived at the conclusion that no prima facie case of discrimination on the basis of disability was made out. The tribunal compared Mr. Cramm's situation with that of those who were off work for an equivalent time for one of the other reasons listed in clause G(iii) of the ESIMA (i.e., bona fide illness, authorized maternity leave, attendance at committee meetings or as a witness or for uncompensated jury duty). The Review Tribunal concluded that Mr. Cramm was treated no differently than any person who was absent for the same period of time for one of those stipulated reasons, and thus his complaint of discrimination was not established on a prima facie basis.
[19] The Review Tribunal relied on a case of this Court, referred to as the Dumont-Ferlatte decision.8 There the complainants argued that they were subjected to discrimination as a result of a rule in their collective agreement that withheld sick-leave credits and bilingual bonuses for months in which the employee worked less than ten days. The complainants were employees who had taken unpaid maternity leave and who were unable to collect these credits and bonuses during the time of their leaves. The Commission supported their position, but a Human Rights Tribunal dismissed the complaints as not presenting a prima facie case of discrimination. Madam Justice Tremblay-Lamer upheld the decision of the Tribunal. As in this case, the critical issue was the selection of the appropriate comparator group. In Dumont-Ferlatte, the Tribunal compared the women on maternity leave with those taking unpaid leaves of other types. From the decision of Tremblay-Lamer J., at paragraph 47:
| The evidence before the Tribunal was that maternity leave is a form of leave without pay. Since no work is done because of maternity, the employee receives no pay. Accordingly, the Tribunal was correct to compare maternity leave with other forms of leave without pay provided for in the collective agreement, including paternity leave without pay, adoption leave without pay, leave without pay for the care and nurturing of pre-school age children, leave without pay for relocation of spouse, leave without pay for personal needs, sick leave without pay, leave without pay for education and training, military leave without pay, leave without pay to participate in the activities of an international organization, leave without pay to run in an election and leave without pay for union activities. [Translation] |
[20] The Commission in this case seeks to distinguish Dumont-Ferlatte and urges that here it is inappropriate to restrict the analysis to the narrow variety of unpaid leaves and persons to whom clause G(iii) of the ESIMA applies. The neutral rule, the Commission argues, is that provided by clause G(i), the persons entitled to CCS credit. Instead of confining its analysis to those employees who are in the narrower and exceptional clause G(iii), it is urged the Review Tribunal should have compared Mr. Cramm's case with the group to whom the more general rule, G(i), applies. In addition, the Commission submits that statistical evidence presented at the hearings below has shown that, in effect, the exceptions in G(iii) can be expected to affect disproportionately those who are disabled because few other employees described in that clause are likely to be excluded by the terms of that clause, which restrict its application to those who work one day in a year and limit its CCS creditation to 100 days. The statistical evidence, based on records of workers' compensation in Newfoundland, is not entirely persuasive. One application of clause G(iii), omitted from the statistical review as I understand it and from argument before me, is the possible class of employees who are absent from work for more than one of the reasons set out in the clause in a calendar year, and who do not qualify by minimum monthly service required under clause G(i), but who may claim up to 100 days of absence in the year as credit to CCS. Yet even if more persons affected by illness or injury could not claim the benefit of clause G(iii), that alone does not settle the issue of adverse effects.
[21] The Commission urges that in accord with Battlefords and District Co-operative Ltd. v. Gibbs,9 the different treatment under clause G(iii) for those workers absent for illness or injury for less than 100 days and for those absent for more than 100 days warrants a finding that the clause has an adverse impact on those longer disabled. Gibbs, in my view, found, in light of the purpose of the apparently neutral rule in that case, one identifiable group of persons, suffering mental disability, was adversely affected when compared with persons physically disabled. The neutral rule must be determined in light of its purpose, in that case to benefit persons with a disability.
[22] In Gibbs, Mr. Justice Sopinka emphasized the importance of considering the purpose of the employment rule said to be discriminatory. He stated
| The first step is to determine, in all the circumstances of the case, the purpose of the disability plan. Comparing the benefits allocated to employees pursuant to different purposes is not helpful in determining discrimination -- it is understandable that insurance benefits designed for disparate purposes will differ. If, however, benefits are allocated pursuant to the same purpose, yet benefits differ as the result of characteristics that are not relevant to this purpose, discrimination may well exist.10 |
[23] In my opinion, when viewed in accord with Gibbs, the purpose of clause G(i) differs from the purpose of G(iii). The former defines the qualifications for CCS for all employees, as a basis for work related benefits. Employees who do not work for at least 11 days in a month do not accumulate compensated service for benefits. It is time worked that qualifies and those who do not work for a minimum of 11 days, for whatever reason, gain no CCS. That rule has no more adverse effect upon ill or injured employees, in my opinion, than upon any other group of employees absent from work, for whatever reason, for the same time in the month. Clause G(iii) serves a different purpose. It provides opportunity for employees to accumulate CCS, for up to 100 days in a calendar year when they have been absent from work for stipulated reasons provided they have worked one day in that year. It is the rule established by clause G(iii) that is here questioned by Mr. Cramm's complaint. That is the neutral rule that in this case must be assessed for its adverse effects. It applies to employees otherwise excluded by clause G(i) from claiming CCS because they did not work the minimum required 11 days in a month, and its purpose is to permit absences for specified reasons to count toward CCS, within certain limits. The defined classes of employees to whom clause G(iii) applies provide the appropriate comparator groups in this case.
[24] Under clause G(iii) the appropriate comparator group, to assess whether that clause in light of its purpose, has an adverse effect upon those injured, here treated as "disabled" except by the railway, is the others to whom that clause applies, employees absent for reasons of illness, authorized maternity leave, for attendance at committee meetings, and so on. Here the Review Tribunal found that Mr. Cramm was not treated any differently than any other individual or group who had not worked for the same time as he for reasons set out in G(iii). His disability did not result in any different treatment than was applicable to those who were not working for the designated reasons for the same amount of time.
[25] In my opinion the Review Tribunal was correct in its selection of the appropriate comparator individuals or groups for its analysis. It carefully considered the submissions made by all the parties and followed the process from Gibbs and from Dumont-Ferlatte. The Tribunal concluded that no prima facie case of discrimination was established in this case.
[26] The Commission urged that the Review Tribunal erred by considering the nature of the employment contract in coming to the conclusion that there was no prima facie case of discrimination. That was done in assessing the purposes of ESIMA, an assessment essential in considering the purpose of employment related rules, in accord with the process established in Gibbs. In my opinion, the nature of the rule in question, based on the underlying principle of an employment contract that one is paid for service performed, is an essential element in assessing the purpose of the rule in question. I conclude that the Review Tribunal did not err by considering the nature of an employment contract in its determination that the rule in this case, clause G(iii) did not have a discriminatory adverse effect upon those absent from work by reason of injury, and consequent disability in that sense. The Review Tribunal was correct in concluding that a prima facie case of discrimination on grounds of disability was not here established.
The Individual's Complaint
[27] The applicants, the Commission and Mr. Cramm, submit that the Review Tribunal erred when it failed to consider the complaint of Mr. Cramm, that he was discriminated against on grounds of disability by his exclusion from those who could continue to accumulate CCS, though he was absent from his work more than permitted under clause G(iii).
[28] In my view, the Review Tribunal did not err as suggested. It is true it did not deal with the individual claim apart from its finding that the agreement did not adversely affect disabled employees, including Mr. Cramm, on the grounds of disability. If the agreement did not constitute a prima facie case of discrimination on the basis of disability for employees as a group, it could hardly be found to discriminate against Mr. Cramm on the basis of his individual disability. For the respondent railway, it is also urged, and I agree, that because there was no evidence of Mr. Cramm's circumstances that would set him apart from others disabled who also missed work for a similar time, there was no reason for the Review Tribunal to consider his case as different from those of other employees absent from work for the same time by reason of injury or illness, or other specified reasons. The Review Tribunal's assessment based on the evidence was reasonable.
[29] I conclude that the Review Tribunal did not err in not separately considering the situation of Mr. Cramm. Indeed it was correct, on the basis of its assessment that the agreement did not constitute a prima facie case of adverse effect discrimination on the grounds of disability. The agreement could not become discriminatory because of his individual circumstances, in my opinion.
Conclusion
[30] It is impossible to not have sympathy for Mr. Cramm. He worked for the railway for a long time and had considerable seniority. Had he not been injured at work, he would have been eligible for the full benefits of the ESIMA for qualifying employees.
[31] Nevertheless, I conclude that the Review Tribunal was correct and made no mistake of law in its basic finding that would constitute a reviewable error. For this reason, the application is dismissed, by Order issued on June 13, 2000.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
June 16, 2000
__________________
1 R.S.C. 1985, c. F-7, s. 18.1, as amended.
2 R.S.C. 1985, c. H-6, as amended.
3 Cramm v. Canadian National Railway Co., [1997] C.H.R.D. No. 9 (QL) at paras. 45-56.
4 Repealed S.C. 1998, c. 9, s. 29.
5 [1993] 1 S.C.R. 554 at 585 ("Mossop ").
6 [1998] 1 S.C.R. 982 at para 45, where Bastarache J. wrote: "A clear majority of this Court has found in a number of cases that deference should not be shown by courts to human rights tribunals with respect to 'general questions of law' (Mossop , supra, at p. 585), even legal rules indisputably at the core of human rights adjudication."
7 Ontario Human Rights Commission and Theresa O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536 at 551.
8 Canada (Human Rights Commission) v. Canada (Human Rights Tribunal), [1997] F.C.J. No. 1734 (T.D.).
9 [1996] 3 S.C.R. 566.
10 Ibid. at para. 33.
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