Watson v. Calgary Airport Authority, 2002 FCT 1288

Date: 20021212

Docket: T-319-02

Neutral Citation: 2002 FCT 1288

BETWEEN:

                                                  JAMES WILLIAM WATSON

                                                                                                                                          Applicant

                                                                        - and -

                                      THE CALGARY AIRPORT AUTHORITY

                                                                                                                                      Respondent

                                       REASONS FOR ORDER AND ORDER

CAMPBELL J.

        On January 31, 2002, the Canadian Human Rights Commission (the "Commission") dismissed the Applicant's complaint of discrimination on account of disability against the Respondent, the Calgary Airport Authority (the "CAA") with respect to his employment which terminated some five years before. In the present application, the Applicant argues that in the investigation of his complaint, a fundamental breach of due process occurred, and further that the Commission's decision was not thorough enough, and, thus, should be set aside as being unreasonable.

A. Factual background

        The Applicant's case before the Commission concerned the course of conduct between him and his employer, the CAA, between 1993 and 1997. The factual record before the Commission is extremely detailed; for the purpose of addressing the issues raised, it is only necessary to provide the following precis of the fact pattern to provide an understanding of the context in which the complaint arose.

        The Applicant was hired by Transport Canada in 1983 at the Calgary Airport to work as a Heavy Duty Mechanic; in 1992, his employer became the CAA. During the course of his employment as a heavy-duty mechanic, the Applicant sustained a number of injuries, both at work and outside of work, including a 1988 work-site injury to his lower back, and a 1989 groin injury which required surgery; after these two injuries, the Applicant was transferred to the position of Structural Mechanic/Millwright. In 1995, the Applicant sustained another injury to his back and neck, and underwent a Functional Capacity Evaluation ("FCE") which indicated that he was able to return to work, but would require some modifications; in 1996 the Applicant's physician advised the CAA that the Applicant required restrictions in the workplace, however the CAA's staff physician found that he could return to work without restrictions. In May 1997, the Applicant's physician recommended that he not lift more than 5 pounds of weight, not engage in prolonged periods of sitting, bending or strain, and, as a result, the Applicant

sought and obtained 100 percent of salary short-term disability benefits; in July 1997, the Applicant underwent a second FCE, which determined that he was incapable of performing the majority of requirements of his position, and since no alternate jobs were available to him, the CAA instructed him to seek long-term disability benefits. Finally, as a result of his being found working as a gardener and performing physically demanding jobs while on short-term disability, and denying this fact, in August 1997, the CAA terminated the Applicant's employment for cause; and in April 1998, a collective agreement arbitrator found that this action was warranted.

B. The complaint, the investigation report, and the Commission's decision

        The Applicant's complaint under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, (the "Act") alleges that the CAA failed to accommodate his disability during the course of his employment, contrary to s.7 which reads as follows:

        Section 14(1)(c) of the Act is also important with respect to the Commission's decision:

        The Commission dealt with the Applicant's complaint and an investigation was conducted. The 86 paragraph Investigation Report (the "Report") is very detailed in its description of the contents of the voluminous factual record and arguments presented by both the Applicant and Respondent, but is almost devoid of critical analysis. In fact, there are only two paragraphs which provide any opinion on the evidence; they are as follows:

20. Attempts to locate the two witnesses named by the complainant have been unsuccessful. From the summary provided by his attorney, it appears that the information about which these witness [sic] might have knowledge is not related to the respondent's alleged failure to accommodate the complainant but, rather, to allegations of harassment which are not part of this complaint. The complainant was asked for the names of additional witnesses who could support his allegations, but none was provided.

...

Recommendation

86. It is recommended, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, that the Commission dismiss the complaint because:

1.             the evidence does not support the allegation that the respondent failed to accommodate the complainant, or terminated his employment, because of his disability;

2.             the evidence indicates that the respondent did accommodate the complainant when provided with sufficiently detailed advice from his physicians.

3.             the evidence indicates that the respondent terminated the complainant's employment not because he had requested accommodation, but because he had breached the relationship of trust between employer and employee.

(Applicant's Application Record, Tab 6, Exhibit E)

       The Commission's decision is also devoid of analysis, and merely states that, on an examination of the Report and the submission filed in response, the complaint is dismissed on the basis of the recommendations contained in the Report.

C. The issues for determination

        In the course of oral argument, counsel for the Applicant and Respondent agreed that the recommendation with respect to the Applicant's termination is irrelevant to the Commission's decision and to the determination of the present application. It was also agreed that reasonableness is the appropriate standard of review of the content of the Commission's decision.

        Therefore, at the hearing of the present application, counsel for the Applicant advanced two distinct arguments: by not interviewing the Applicant and his designated witnesses, but interviewing witnesses for the Respondent, a breach in due process occurred; and by not interviewing the Applicant and his designated witnesses, a lack of appreciation and, thus, a lack of thoroughness, occurred in the Report and the Commission's decision, which renders the Commission's decision unreasonable.

1. Due process

        The Applicant argues that, to comply with the standard of fairness as required according to the criteria outlined in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, personal interviews with the Applicant and Respondent were required. On the established authority with respect to the duty of fairness in proceedings under the Act, I do not accept his argument.

        In my opinion, in written argument, the Respondent successfully argues that no breach of due process occurred in the present case according to the following statements of law:

¶ 68.          The fact that the investigator did not interview each and every witness that the applicant would have liked her to and the fact that the conclusion reached by the investigator did not address each and every alleged incident of discrimination are not in and of themselves fatal as well. This is particularly the case where the applicant has the opportunity to fill in gaps left by the investigator in subsequent submissions of her own. In the absence of guiding regulations, the investigator, much like the CHRC, must be master of his own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient. In the case at bar I find that the investigator did not fail to address any fundamental aspect of the applicant's complaint, as it was worded, nor were any other, more minor but relevant points inadequately dealt with that could not be dealt with in the applicant's responding submissions.

Slattery v. Canadian Human Rights Commission (No.2), [1994], 2 F.C.J. 574; affirmed ]1996] F.C.J. No 385 (F.C.A.)(Q.L.).

¶ 10.          ...the investigation must be thorough in the sense that it must be mindful of the various interests of the parties involved. There is no obligation placed upon the investigator to interview each and every person suggested by the parties. The investigator's report need not address each and every alleged incident of discrimination, specially where the parties will have an opportunity to fill gaps by way of response.

Miller v. Canada (Canadian Human Rights Commission, [1996] F.C.J. No. 735 (F.C.T.D)(Q.L.).

¶ 13.         The applicant's complaint is essentially that the investigation conducted by the Commission's investigator was not sufficiently thorough. Yet there is no evidence of a breach of the principles of natural justice or of procedural unfairness. The applicant had the opportunity to comment upon the investigator's report. He did so in writing and those comments were before the Commission, together with the investigator's report, at the time of its decision. The applicant's complaint that certain witnesses were not interviewed was a matter before the Commission as was his concern that prospective witnesses should be interviewed face-to-face. The Commission was aware of these and other concerns of the applicant about the investigator's report. In my opinion, the Commission's decision was supportable on the evidence before it.

Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 388 (F.C.T.D.) (Q.L.).

¶ 11.         Based upon the decisions of this Court in Slattery v. Canadian Human Rights Commission (1996), 205 N.R. 383 (F.C.A.) and Miller v. Canadian Human Rights Commission (1996), 112 F.T.R. 195, the content of the duty of fairness required of the Commission in respect of decisions such as that here under review is reasonably limited. The investigation conducted on behalf of the Commission must be fair, mindful of the interests of the parties involved, and thorough. It must reflect neutrality. The investigative report must be provided to the parties before it is

transmitted to the Commission and the parties must be given a reasonable opportunity to comment in writing on the investigative report. Any comments submitted must be transmitted to the Commission for its

consideration in conjunction with the investigative report itself.

¶ 12.          I am satisfied that the foregoing description of the content of the duty of fairness in respect of decisions of the Commission such as that here under review is consistent with the guidance provided by the Supreme Court of Canada in Baker. [Baker v. Canada (Minister of Citizenship and Immigration), [1999] [2 S.C.R. 817.]

...

¶ 17.         On the facts of this matter, based upon the Commission record that consists primarily of the investigative report, and written comments thereon on behalf of the applicant and the respondent, I am satisfied that the duty of fairness was met. While the applicant is concerned that the investigation did not extend to an interview of one witness whose evidence the applicant regarded as critical, the applicant's concern in this regard was before the Commission when it reviewed the investigation report and I must conclude that the Commission took that concern into consideration and dismissed it. I am satisfied that such action was reasonably open to the Commission, given its broad discretion in arriving at the decision under review.

Lindo v. Royal Bank of Canada, [2000] F.C.J. No. 1101 (F.C.T.D.) (Q.L.).

2. Thoroughness

        It is agreed that it is well established that neutrality and thoroughness for investigations conducted by the Commission is required (Grover v. Canada (National Research Council), [2001] F.C.J. No. 1012 (F.C.T.D.) (QL); and Charlebois v. Canada (Canadian Human Rights Commission), [1998] F.C.J. No. 1335 (F.C.T.D.) (QL).

        In the Applicant's argument to the Investigator, allegations of hostile treatment of the Applicant were detailed, the relevance of which were stated to be:

A poisoned work environment existed for Mr. Watson caused by his employer's failure to deal with the harassment of Mr. Watson because of Mr. Watson's disability"

(Applicant's Application Record, Tab 6, Exhibit D, p.6).

The witnesses tendered by the Applicant, and the Applicant himself, are the sources of evidence on this allegation, none of whom were interviewed. However, the evidence each would likely provide if interviewed was provided in writing by counsel for the Applicant.

        I agree with counsel for the Applicant that the Investigator misunderstood the "harassment" allegation. It is obvious from the content of paragraph 20 of the Report as cited above that the evidence was viewed as grounding for a separate complaint under s.14 of the Act, rather than as critical content of the complaint being advanced under s.7 of the Act. As the conclusion reached by the Investigator in paragraph 20 of the Report displays a fundamental misunderstanding, I find it is unreasonable.

      It is important to note that the Applicant's argument to the Commission with respect to the outcome of the investigation restates the harassment evidence and argument

made to the Investigator:

Hostile Treatment and Harassment

The Investigator wrongly concludes at paragraph 20 of the Investigation Report that allegations of harassment are not part of this complaint.

On June 14, 1996, Mr. Watson's supervisor, Bruce Penman advised Mr. Watson, in the presence of two witnesses, that Mr. Watson was "... a few bricks short of a load". Mr. Watson has handwritten notes that document further instances of Mr. Penman's hostile treatment of Mr. Watson. In addition, the CAA permitted an offensive illustration bearing reference to Mr. Watson to be posted in the Sign Shop, located next door to the Carpenter's Shop (where Mr. Watson worked) and that depicted Mr. Watson as a rabbit in a barrel being chased with a stick. This illustration ridiculed and humiliated Mr. Watson.

A former CAA employee who worked with Mr. Watson, and whose name was provided to the Investigator (but whom the Investigator did not interview), observed that Mr. Watson was certainly in discomfort while working. Furthermore, he witnessed Bruce Penman treat Mr. Watson in an unsupportive and rude manner. This witness describes the workplace in the CAA as "dysfunctional", with those in a supervisory position making it clear to this witness that Mr. Penman wanted Mr. Watson gone from his employment with the CAA, and that Mr. Penman refused to take steps to try to support Mr. Watson.

A different witness whose name was also been provided [sic] to the CHRC (but again whom the Investigator did not interview), can advise that Bill Watson became a target for Bruce Penman. The witness's impression was that Bruce Penman would do whatever he could to put pressure on Mr. Watson and that he never let up on Mr. Watson.

We submit that these are some examples of the harassment of Mr. Watson, based on his disability, which constitutes discrimination in employment against Mr. Watson by the CAA. A poisoned work environment existed for Mr. Watson caused by the CAA's failure to correct the harassment of Mr. Watson.

It is noteworthy that Mr. Watson's inability and/or unwillingness to perform inappropriately [sic] job assignments due to his disability coincided with Mr. Watson's unfavourable job evaluations. Mr. Watson's job reviews are excellent until he began to experience difficulties performing his duties as a result of his disabilities. It was only then that he became subject to unfavourable reviews. It is submitted that the CAA failed in its duty to provide a workplace free of harassment. An employer should be dealt with more seriously when the harassment is caused by supervisors.

(Applicant's Application Record, Tab 6, Exhibit F, p.2). [Emphasis added]

This submission apparently had no impact because the Investigator's recommendations were accepted by the Commission without amendment. Thus, the question arises as to whether the decision of the Commission is unreasonable because it accepts a recommendation which is, in part, based on an unreasonable conclusion.

        With respect to the issue of thoroughness, the Applicant does not take issue with the Respondent's argument that the Commission acts as an administrative or screening body whose task is limited to assessing the sufficiency of the evidence before it in deciding whether a complaint should proceed or be dismissed under s.44(3) of the Act; that is, it does not decide the merits of a complaint (Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1998] F.C.J. No. 1609 (F.C.A.) (Q.L.)).

        However, in oral argument, counsel for the Applicant advanced the proposition that, in reaching a decision, the Commission is bound to apply the standard that is found in [1999] S.C.R. 3">British Columbia (Public Service Commission) v. B.C.G.S.E.U. [1999] S.C.R. 3, which, at paragraph 54, sets out the test for determining whether a prima facie discriminatory standard is a bona fide occupational requirement. However, in the present application, the Applicant does not allege that occupational requirements themselves were discriminatory, but that his employer failed to accommodate his disability; in this respect he argues that he was the victim of a poisoned work environment. Thus, I find that the test advanced is not relevant to the issue of thoroughness of the investigation in the present case.

        In my opinion, the question to be answered does not turn on a point of law; it turns on a point of fact whether, in the screening the Applicant's complaint, a thorough job was done.

        I find it noteworthy that, recently in Basudde v. Canada (Attorney General) [2002] F.C.J. No. 1047, Justice Beaudry dealt with a similar situation where at paragraph 53 he found:

The record discloses that the Applicant made reference to systemic discrimination and a poisoned work environment at HC. The investigation does not evince adequate consideration of the Applicant's claims in this regard. This suggests that the investigation and, in turn, the Commission's decision, were based on an investigation that was insufficiently thorough. Given that the conclusion can be attacked based on its evidentiary bases and the process by which that decision was reached, the decision of the Commission is unreasonable.

        It is obvious on the record in the present case that an important feature of the Applicant's complaint is the poor treatment he suffered in the workplace, both in the failure to accommodate his medical needs by job assignment, and by the harassment of his supervisor. In my opinion, the erroneous conclusion reached by the Investigator with respect to the harassment element of the complaint was not adequately addressed by the Commission, even though it had the evidence and opportunity to do so. Thus, I find the decision of the Commission is unreasonable because it accepts a recommendation which is, in part, based on an unreasonable conclusion. As a result, I find that the decision was made in reviewable error.

        During the course of oral argument, the issue arose as to whether I should exercise my discretion to set aside the Commission's decision and refer the matter back for redetermination. The question addressed was: what will a redetermination accomplish given the fact that the Applicant has been terminated for just cause? As noted above, it is agreed that the termination is irrelevant to whether the Applicant can prove his complaint of discrimination on account of disability during the course of his employment. As I am not satisfied with the thoroughness of the investigation on the complaint, I find no reason to not do what would be usual, that is, refer the matter back for redetermination. If the Applicant is successful on the redetermination, and if he is successful in the tribunal process which might follow, a remedy which is available to him is compensation under s.53(2)(a)(e) of the Act. Thus, I find no reason to deprive him of the opportunity to make his case.

        While I am making no direction that it is necessary to interview the Applicant and his witnesses on the redetermination, I agree with counsel for the Applicant that to do so will provide the best evidence available of the harassment element of the complaint and would hopefully provide a sound basis to evaluate the weight to be given to it.

                                                                    O R D E R

For the reasons provided, I set aside the Commission's decision of January 31, 2002, and refer the matter back for redetermination.

I award costs in favour of the Applicant against the Respondent.

"Douglas R. Campbell"

______________________________

       Judge        

OTTAWA

                                              FEDERAL COURT OF CANADA

                                                            TRIAL DIVISION

                       NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                    T-319-02

STYLE OF CAUSE:                                   JAMES WILLIAM WATSON v.

THE CALGARY AIRPORT AUTHORITY

PLACE OF HEARING:                           Calgary, Alberta

DATE OF HEARING:                               December 2, 2002

REASONS FOR ORDER:                      Campbell J.

DATED:                                                        December 12, 2002

APPEARANCES:

Mr. Harry G. Mugford                                                             For the Applicant

Mr. David R. Laird, Q.C.                                                        For the Respondent

SOLICITORS OF RECORD:

Gowling Lafleur Henderson LLP

Calgary, Alberta                                                                      For the Applicant

Laird Armstrong

Calgary, Alberta                                                                       For the Respondent