Holmes v. Canada (Attorney General), docket T-1229-96

     T-1229-96

BETWEEN:

     BETTY M.E. HOLMES

     Applicant

     - AND -

     ATTORNEY GENERAL OF CANADA

     Respondent

     - AND -

     CANADIAN HUMAN RIGHTS COMMISSION

     Intervenor

     REASONS FOR ORDER

TREMBLAY-LAMER J.

     This is an application for judicial review of the decision of the Canadian Human Rights Commission dated April 19, 1996 dismissing a complaint presented by the Applicant, Ms. Betty M.E. Holmes, that the Department of Veterans Affairs (the "Department") discriminated against her by releasing her from her employment due to a disability, contrary to section 7 of the Canadian Human Rights Act.¹

The Facts

     The Applicant commenced employment as a Payment Support Clerk (CR-03) in the Department on December 30, 1985.² At that time, she had been employed in the public service for over 10 years. Starting in April of 1989, the Applicant began experiencing numbness and pain in her right shoulder at the base of her neck.³ This condition caused her difficulty in fulfilling the duties of her position, which involved a number of very repetitive tasks and could be physically demanding.

     From May of 1989 to November of 1989, the Applicant was assigned receptionist duties to enable her to function in her employment.⁴ This arrangement, however, proved to be unsatisfactory, as the Applicant was unable to handle a typing load. As a result, in August of 1989, the Applicant returned to her substantive position.⁵ She remained there until June of 1990. During this period she was assigned only limited and lighter duties from amongst those specified for her position.

     In June of 1990, she was assigned to a special project to facilitate her recovery.⁶ With the help of an occupational therapist and her own knowledge of what she was capable of doing, she arranged her work station to minimize problems. This assignment also proved to be an unsatisfactory arrangement. The Applicant could not keep up with the work demands. The Applicant therefore returned to her substantive position on November 29, 1990.⁷ On that date, the Applicant reported that she could not perform the duties of her position due to continuing pain in her neck and shoulders.⁸ Having reported her incapacity to perform the duties of her position, she left the workplace. She remained away from work until December 17, 1990.⁹

     From December 17, 1990 until her departure from the workplace on September 4, 1991 on extended sick leave, the Department assigned the Applicant only light duties.¹⁰ On many days, the Applicant was unable to perform any of the duties of her job.¹¹

     Following a meeting with an Employment Equity Officer, the Applicant was offered three hours per day for a period of three weeks to undertake either a job search or a recommended rehabilitation program.¹² The Applicant was asked to present the Workers's Compensation Board with a rehabilitation program. However, as she neglected to do so, her case was closed. She felt she was not healthy enough to undertake rehabilitation.

     In the meantime, the Department's staffing officers were asked to identify possible suitable positions for the Applicant.¹³ Throughout 1991, the Department attempted to determine the nature and extent of the limitations on the Applicant's ability to work. The Applicant was not, however, able to describe her physical limitations with any precision. The Department therefore sought the advice of doctors with the Department of National Health and Welfare ("Health and Welfare").¹⁴

     In August of 1991, the Applicant was assessed by Health and Welfare Canada as fit to work with limitations.¹⁵ The first assessment concluded that the Applicant could perform some sedentary duties but could not engage in strenuous work or heavy lifting. On September 4, 1991, the Applicant went on sick leave.¹⁶ The Applicant's physician then wrote to the Department stating that the Applicant was to be completely off work until December 5, 1991.¹⁷ In mid-November of 1991, the Applicant's physician told the Department that she would not be able to return to work for at least another three months.¹⁸

     In light of the conflicting information it had at hand, the Department asked Health and Welfare for clarification as to whether the Applicant was fit to work.¹⁹ In March of 1992, the Applicant was assessed by Health and Welfare as ready to return to her substantive position although initially on a part-time basis.²⁰ The medical report indicated that the Applicant's hours and duties could be gradually increased back to full duties but that she should avoid any strenuous work.²¹ At about the same time, the Applicant's physician signed a declaration stating that the Applicant was not be capable of pursuing regularly the duties of her substantive position but was capable of regular, gainful work of an alternative nature.²²

     Thus, while Health and Welfare's second evaluation indicated that the Applicant was ready to return to her substantive position, the Applicant's physician was, on the contrary, of the view that the Applicant was only capable of work of an alternative nature.

     In April of 1992, in view of these conflicting medical opinions, a Department Official met with the Applicant to discuss her redeployment options.²³ During this meeting, the Applicant indicated that she would be able to perform duties which would not require continual use of the muscles from her neck down to her lower chest area. However, as appears from the minute sheet prepared shortly thereafter, the Applicant came to the conclusion that regardless of group and level most positions, if not all, with the Department required the use of the same muscles as the position she then occupied.²⁴ The Applicant further advised the Department's representative that she would put in a request for early retirement.²⁵

     On May 4, 1992, the Applicant was advised by the Department that it would recommend that she be released pursuant to section 31 of the Public Service Employment Act²⁶ because of incapacity to perform her duties.²⁷ The Applicant challenged the Department's recommendation by appealing to an Appeal Board appointed under the Public Service Employment Act. On September 1, 1992, the Appeal Board dismissed her appeal. In its decision, the Appeal Board rejected an argument advanced by the Applicant that it ought to consider the Applicant's appeal in light of the Canadian Human Rights Act. In light of the Appeal Board's decision, the Department proceeded with the Applicant's release on September 23, 1992.²⁸

     On October 2, 1992, the Applicant filed an application for judicial review of the Appeal Board's decision in the Federal Court, Trial Division. At the same time, on October 26, 1992, the Applicant filed a complaint under the Canadian Human Rights Act. In her complaint, she alleged that on or around September 23, 1992, the Department had engaged in a discriminatory practice by refusing to continue her employment because of her disability, namely a back and shoulder injury.

     In a decision dated June 3, 1993, Muldoon J. set aside the Appeal Board's decision and referred the matter back to the Board with directions that the Board consider the Applicant's complaint in light of the Canadian Human Rights Act. The Respondent, the Attorney General of Canada, appealed Muldoon J.'s decision.

     The Appeal Board decided to reconsider the Applicant's appeal without waiting for the appeal to be heard by the Federal Court of Appeal. On October 8, 1993, the Appeal Board allowed the Applicant's appeal on the basis that the Department had failed to accommodate her as required by the Canadian Human Rights Act. The Respondent filed an application for judicial review seeking to quash that decision.

     On March 29, 1994, the Commission decided to stand down the complaint pending the final outcome of the appeal from Muldoon J.'s decision.²⁹

     On May 3, 1994, the Federal Court of Appeal allowed the appeal from the decision of Muldoon J. The majority of the Federal Court of Appeal held that the powers of the Appeal Board are limited to those set out in its enabling statute, and that such a board does not have the authority to apply the provisions of the Canadian Human Rights Act. The Applicant sought leave to appeal the decision to the Supreme Court of Canada but leave was denied in May 1995. Following the dismissal of the application for leave to appeal, the Applicant consented to an order setting aside the Appeal Board's second decision. As a result, the release of the Applicant by the Department was upheld.

     In February of 1996, the Commission informed the Applicant that it would be reviewing the complaint.³⁰ On February 6, 1996, Mr. P. Alwyn Child prepared a memorandum dealing with the complaint.³¹ The Applicant and the Department were afforded an opportunity to comment on the memorandum.³²

     The Commission considered the Applicant's complaint at its meeting of April 15 and 16, 1996. The material before the Commission consisted of a number of documents, including Mr. P. Alwyn Child's memorandum, the Applicant's written submissions, the Department's written submissions, the investigation report dated October 20, 1993, the complaint form and the Appeal Board's decisions dated September 1, 1992 and October 8, 1993.³³ By a letter dated April 19, 1996 and received on April 24, 1996, the Commission notified the Applicant that considering all the circumstances of her complaint, it had decided no further proceedings were warranted and had therefore closed its file on the complaint.³⁴

     By way of an application for judicial review filed with the Court on May 24, 1996, the Applicant challenges the Commission's finding that no further proceedings were warranted.

     On July 18, 1996, the Commission brought a motion pursuant to Rule 1611 of the Federal Court Rules (the "Rules")³⁵ for leave to intervene in this application for judicial review. On July 25, 1996, upon consent of both the Applicant and the Department, Wetston J., ordered that the Commission be added as an intervenor.

Relevant Statutory Provisions:

     Sections 43, 44 and 47 of the Canadian Human Rights Act, are relevant to the present proceeding. These sections provide that:

43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint.

(2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4).

(2.1) Subject to such limitations as the Governor in Council may prescribe in the interests of national defence or security, an investigator with a warrant issued under subsection (2.2) may, at any reasonable time, enter and search any premises in order to carry out such inquiries as are reasonably necessary for the investigation of a complaint.

(2.2) Where on ex parte application a judge of the Federal Court is satisfied by information on oath that there are reasonable grounds to believe that there is in any premises any evidence relevant to the investigation of a complaint, the judge may issue a warrant under the judge's hand authorizing the investigator named therein to enter and search those premises for any such evidence subject to such conditions as may be specified in the warrant.

(2.3) In executing a warrant issued under subsection (2.2), the investigator named therein shall not use force unless the investigator is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.

(2.4) An investigator may require any individual found in any premises entered pursuant to this section to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation being conducted by the investigator.

(3) No person shall obstruct an investigator in the investigation of a complaint.

(4) The Governor in Council may make regulations

(a)      prescribing procedures to be followed by investigators;

(b)      authorizing the manner in which complaints are to be investigated pursuant to this Part; and

(c)      prescribing limitations for the purpose of subsection (2.1).

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.

(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied

(a)      that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or

(b)      that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,

it shall refer the complainant to the appropriate authority.

(3) On receipt of a report referred to in subsection (1), the Commission

(a)      may request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 to inquire into the complaint to which the report relates if the Commission is satisfied

(i)      that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and

(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

(b)      shall dismiss the complaint to which the report relates if it is satisfied

(i)      that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or

(ii)      that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).

(4) After receipt of a report referred to in subsection (1), the Commission

(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

(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).

47. (1) Subject to subsection (2), the Commission may, on the filing of a complaint, or if the complaint has not been

(a)      settled in the course of investigation by an investigator,

(b)      referred or dismissed under subsection 44(2) or (3) or paragraph 45(2)(a) or 46(2)(a), or

(c)      settled after receipt by the parties of the notice referred to in subsection 44(4),

appoint a person, in this Part referred to as a "conciliator", for the purpose of attempting to bring about a settlement of the complaint.

(2) A person is not eligible to act as a conciliator in respect of a complaint if that person has already acted as an investigator in respect of that complaint.

(3) Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.

The Issues

     In essence, the Applicant raises the following grounds of review:

1.      Was the Commission's decision reached in violation of the rules of procedural fairness?

2.      Did the Commission err in law or in fact in finding that the Department satisfied its duty to accomodate?

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Analysis

a)      Procedural fairness

     In Syndicat des employés de production du Québec et de l'Acadie v. Canadian Human Rights Commission,³⁶ Sopinka J., writing for the majority, concluded that the Commission's decision to dismiss a complaint is an administrative one. He noted, however, that classifying a decision as purely administrative is no longer decisive in determining the scope of procedural protections that is required. Thus, it is now incumbent upon the courts to determine the content of the procedural protections to be offered by a board or tribunal by reference to all the circumstances under which that board or tribunal operates. In Syndicat des employés de production du Québec et de l'Acadie, having considered the circumstances under which the Commission operates, Sopinka J. concluded that:

The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It 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. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, I conclude from the foregoing that, in view of the nature of the Commission's function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. In this regard, I adopt the statement of Lord Denning, M.R., in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), quoted hereunder. The Race Relations Board was charged with duties similar to those of the Canadian Human Rights Commission. In determining that it was an investigatory body with the duty to act fairly, Lord Denning said, at p. 19:

In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion.... In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report. [emphasis added]37

     It flows from the foregoing paragraphs that the Commission, in dismissing a complaint, need not comply with the formal rules of natural justice. Rather, the Commission is only required to act fairly. As a result, the Commission need not hold a hearing or put every detail of the case before the parties. It is sufficient for the Commission to inform the parties of the general and broad grounds on which the complaint is based and afford a fair opportunity of answering it. Sopinka J.'s conclusions concerning the Commission's duty of procedural fairness have been applied on numerous occasions.³⁸

     In the case at bar, it is submitted that the Commission reached its decision in breach of its duty of procedural fairness because the Department's submissions were never cross-disclosed to the Applicant. In this regard, the parties all made reference to the decision of the Federal Court of Appeal in Mercier v. Canada (Canadian Human Rights Commission),³⁹ wherein Décary J.A., delivering the judgment of the Court, stated that:

I am not saying that the rules of procedural fairness require that the Commission systematically disclose to one party the comments it receives from the other; I am saying that they require this when those comments contain facts that differ from the facts set out in the investigation report which the adverse party would have been entitled to try to rebut had it known about them at the stage of the investigation, properly speaking. [...]; if the Commission were to decide to continue its general practice of not disclosing comments, it will still have to examine each case individually and practise great vigilance so as to avoid a party in a particular case, such as the case at bar, not receiving disclosure of comments that are such as should have been brought to that party's attention. It would seem to me that it would be in the Commission's interest, if only to protect itself in advance from any criticism, to require that the parties exchange their respective comments. Otherwise, and here I am adopting the views of Mahoney J. in Labelle, the Commission will always be exposed to an application for judicial review "because it will always be prima facie arguable that the complainant was not made aware of, and hence was denied a fair opportunity to meet, the whole of the contrary case."40

     The principles established by Décary J.A. in Mercier, have since then been applied in many cases. In Madsen v. Canada (Attorney General),⁴¹ Heald D.J. held that:

Applying the Mercier test to the facts in the case at bar, I am of the view that if either party's second submissions contained facts that differed from those set out in the investigation report, conciliation report or earlier submissions, then the rules of procedural fairness may have required the CHRC to cross-disclose the second set of submissions and to permit the parties to file a third set of submissions. However, I must also express my agreement with the Federal Court of Appeal, that the rules of procedural fairness do not require the CHRC to "systematically disclose to one party the comments it receives from the other". (Ibid at 253-254.) Otherwise, the submissions/reply process could conceivably continue ad infinitum.

He concluded as follows:

I am of the view that the rules of procedural fairness, in the circumstances of this case, required the CHRC to disclose the CEIC's May 9, 1994, submissions to the applicant, and to have allowed him an opportunity to respond. The applicant has met the test in Mercier, in establishing that the May 9, 1994, submissions contained factual allegations that differed from the facts set out in the investigation report, conciliation report or earlier submissions.42

     As indicated above, the Commission is only required to cross-disclose submissions when they contain facts which differ from those set out in the investigation report and in the memorandums, if any, on the basis of which the said submissions were prepared. In the instant case, having reviewed both the Applicant and the Department's submissions,⁴³ I am of the opinion that they did not contain factual allegations different from those set out in the investigation report and/or Mr. Child's memorandum. Rather, they mainly consist in legal submissions on the appropriate test for adverse effect discrimination. Accordingly, I find that the Commission did not breach its duty of procedural fairness in deciding not to cross-disclose them.

b)      The Commission's decision

(i)      The Proper Standard of Review

     The standard of review to be applied to decisions of a Human Rights Commission was addressed by the Supreme Court of Canada in Canada (Attorney General) v. Mossop.⁴⁴ The issue before the Court was whether the courts should defer to the views of a human rights tribunal not only on questions of fact, but also on questions of law. La Forest J., writing for the majority, answered that question in the negative. He concluded that the proper standard on questions of law is one of correctness:

The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability. [emphasis added]45

     In Gould v. Yukon Order of Pioneers,⁴⁶ and in Ross v. New Brunswick School District No. 15⁴⁷, the Supreme Court of Canada reaffirmed the position it had adopted in Mossop.⁴⁸

     The determination of the appropriate legal test for adverse effect discrimination is a question of law which will be reviewable on a standard of correctness. Accordingly, the Commission's decision on that issue must be correct.

     On the other hand, decisions of the Commission on questions of fact will only be reviewable on a standard of reasonableness. In Ross,⁴⁹ the Court indicated that "a finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate." Applying the same reasoning to the facts of the case at hand, I would say that the Commission's finding that no adverse effect discrimination occurred is just such a finding impregnated with facts and which ought not be disturbed unless it can be characterized as unreasonable.

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(ii)      Did the Commission commit a reviewable error?

(aa)      The Legal Test for Adverse Effect Discrimination

     The proper legal test for adverse discrimination was enunciated by the Supreme Court of Canada in Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd.⁵⁰ Where adverse effect discrimination occurs, there is a duty on the employer to take reasonable steps to accommodate the complainant, short of undue hardship. The factors to be considered to determine what constitutes undue hardship were set out by Wilson J. in Central Alberta Dairy Pool v. Alberta (Human Rights Commission)⁵¹ and recently applied by the Federal Court of Appeal in Richmond v. Canada (Public Service Commission).⁵²

     An employer must demonstrate that genuine efforts have been made, short of "undue" hardship, so as to eliminate the adverse effect discrimination suffered by one of its employees. More than a mere negligible effort is required to satisfy the duty to accomodate. However, as stated by Sopinka J., delivering the judgment of the Court, in Renaud v. Board of Education of Central Okanagan No. 23,⁵³ the use of the words "undue" infers that some hardship is acceptable. That said, it is my opinion that the the "undue hardship" standard does not require that an employer act as a placement officer or create a new position expressly suited for the disabled employee comprising new duties that were previously non existent and that do not suit its needs. This is consistent with the less expansive view of the duty to accomodate adopted by Desjardins J.A., writing for the majority, in Richmond.⁵⁴ The employer's obligation is to make a genuine effort to accomodate an employee, efforts that are consistent with the type of work for which the worker was hired.

     It is suggested by the Applicant that, as a result of Mr. P. Alwyn Child's misstatement of the law in his memorandum to the members of the Commission, the Commission's decision must have been based on an error of law respecting the duty to accommodate. With respect, I disagree. In my view, this memorandum did not purport to be a statement of the law on the duty of accommodation. On the contrary, it is a summary addressed to the members of the Commission and is intended to provide them with the factual background of the Applicant's complaint. More importantly, as appears from Ms. Lucie Veillette's affidavit, Mr. Child's memorandum was not the only document before the Commission. The submissions of both the Applicant and the Department were also before it.⁵⁵ In these submissions, the proper legal test for adverse effect discrimination was thoroughly addressed. In Slattery,⁵⁶ Nadon J., held that errors or omissions in an investigation report or memorandum, which could have been and were rectified by the parties through their submissions, will not be enough to call into question the thoroughness of the Commission's decision.

     In light of these submissions and of the Commission's expertise in the area of what constitutes discrimination, I am satisfied that it did apply the appropriate legal test.

(b)      The Finding of Fact

     I turn now to the Commission's finding that no further inquiry was warranted " i.e. that the Department took reasonable steps to accommodate the Applicant, short of undue hardship. I am satisfied that there was evidence upon which the commission could come to this conclusion. The documents before the Commission extensively described the numerous efforts made by the Department so as to accommodate the Applicant.

     It appears from these documents that, prior to recommending that she be released, the Department took the following steps:

1)      From May to August 1989, the Applicant was removed from her substantive position and assigned other duties to enable her to function in her employment. She was assigned receptionist duties. This first attempt, however, proved to be unsatifsfactory, as the Applicant was unable to handle a typing load;

2)      The Applicant returned to her substantive position in August of 1989. She remained there until June 1990. During this period she was assigned only limited and lighter duties. At one point, the Applicant was assigned only one of the duties from amongst those specified for her position;

3)      From June 16, 1990 to November 29, 1990, the Applicant was assigned to a special project to facilitate her recovery. Her work station was arranged to make it more comfortable and to minimize problems " i.e. the Department provided her with an adjustable chair, an adjustable monitor screen arm, step stools, a tray to raise her key board to a normal level and push carts for moving files. Nothwithstanding these adjustments, the Applicant could not keep up with the work demands;

4)      As a result, she returned to her substantive position. From December 1990 until her departure from the workplace on September 4, 1991, on extended sick leave, the Department assigned the Applicant only light duties. Nevertheless, on many days, she was unable to perform any of her duties;

5)      Following a meeting with an Employment Equity Officer, the Applicant was offered three hours per day for a period of three weeks to undertake either a job search or a recommended rehabilitation program. The Applicant was asked to present the Workers's Compensation Board with a rehabilitation program. However, as she neglected to do so, her case was closed;

6)      The Department took steps to find alternative employment for the Applicant. The Applicant's resume was placed on the Departmental Transfer Inventory at the Public Service Commission. Staffing officers were asked to identify possible suitable positions for the Applicant, in vain;

7)      All vacant positions within the Department for which the Applicant was qualified were reviewed. However, the Applicant and the Department's representative came to the concusion that all of these positions required use of the same muscles as those employed in her substantive position;

     As mentioned above, the Commission's finding that no adverse effect discrimination occurred is a finding impregnated with facts " i.e. a question of fact " which ought not be disturbed unless it can be characterized as unreasonable. In the instant case, I cannot convince myself that the Commission's finding was unreasonable. On the contrary, to use the words of McKeown J. in Owen v. Canada (Attorney General),⁵⁷ I would conclude that "based on the evidence it was reasonable for the investigator and the CHRC to conclude there were no reasonable steps that the Department could take to accommodate the applicant short of undue hardship." The exercise of the discretion by the Commission was reasonable.

     The Applicant submits that the situation in the case at bar is akin to that in Beznochuk v. Spruceland Terminals Ltd.,⁵⁸ where the Court found that there was no evidence whatsoever before the Commission to support a conclusion that the employer had made real and genuine efforts to accomodate its employee. This, clearly, is not the case here.

     The Applicant further submits that, to reach the decision it did, the Commission must have concluded that the clear findings of fact made by the Appeal Board " i.e. the Appeal Board's second decision dated October 8, 1993 " on this very issue were in error. In my view, the Applicant's argument is ill-founded. First, the Appeal Board's decision dated October 8, 1993, was set aside and quashed in a judicial review proceeding in this Court on consent. Alternatively, I refer to the Federal Court of Appeal's ruling⁵⁹ that an Appeal Board appointed under the Public Service Employment Act, has no authority to apply the provisions of the Canadian Human Rights Act. In these circumstances, I fail to see how it can possibly be argued that the Commission was in any way bound by the Appeal Board's findings of fact.

     As to the the Applicant's submission that the Commission's finding was not authorized by the Canadian Human Rights Act, I am of the view that it has no merit. It is indubitable that the Commission's finding was open to it under sub-paragraph 44(3)(b)(i) of the Canadian Human Rights Act, which mandates that the Commission dismiss the complaint when, having regard to all the circumstances, it is satisfied that "an inquiry into the complaint is not warranted." In my view, it would be stretching the imagination to characterize the use of the words "no further proceedings are warranted" as an excess of jurisdiction.

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     For these reasons, the application for judicial review is dismissed.

OTTAWA (ONTARIO)

This 8th day of May 1997

    

                                 JUDGE

__________________

¹      R.S.C. 1985, c. H-6, as amended, (hereinafter the "Canadian Human Rights Ac t"). .

²      Applicant's Application record, p. 10.

³      Applicant's Application Record, p. 10.

⁴      Applicant's Application Record, p. 10.

⁵      Applicant's Application Record, p. 10.

⁶      Applicant's Application Record, p. 13.

⁷      Applicant's Application Record, p. 13.

⁸      Applicant's Application Record, p. 13.

⁹      Applicant's Application Record, p. 15.

¹⁰      Applicant's Application Record, p. 16.

¹¹      Applicant's Application Record, p. 16.

¹²      Applicant's Application Record, pp. 19-20.

¹³      Applicant's Application Record, p. 18.

¹⁴      Applicant's Application Record, pp. 17-18.

¹⁵      Applicant's Application Record, p. 18.

¹⁶      Applicant's Application Record, p. 19.

¹⁷      Applicant's Application Record, p. 19.

¹⁸      Applicant's Application Record, p. 19.

¹⁹      Applicant's Application Record, p. 19.

²⁰      Applicant's Application Record, p.21.

²¹      Applicant's Application Record, p. 21.

²²      Applicant's Application Record, p. 21.

²³      Applicant's Application Record, p. 21.

²⁴      Applicant's Application Record p. 21.

²⁵      Applicant's Application Record, p. 21.

²⁶      R.S.C. 1985, c. P-33, as amended, (hereinafter the "Public Service Employment Act ").

²⁷      Applicant's Application Record, p. 22.

²⁸      Applicant's Application Record, p. 10.

²⁹      Applicant's Application Record, pp. 125-126 and 131.

³⁰      Applicant's Application Record, p.132.

³¹      Applicant's Application Record, pp. 133-134.

³²      The Applicant's submissions were filed on February 28, 1996 (Applicant's Application Record, pp. 135-141), and those of the Department on March 1, 1996 (Exhibit A to Ms. Lucie Veillette's affidavit).

³³      See the affidavit of Ms. Lucie Veillette, par. 3.

³⁴      Applicant's Application Record, p. 9.

³⁵      C.R.C. 1978, c. 663, as amended.

³⁶      [1989] 2 S.C.R. 879.

³⁷      Ibid., at pp. 899-900.

³⁸      Garnhum v. Canada (Canadian Human Rights Commission) (re Canada (Canadian Armed Forces)), (October 2, 1996), T-3024-94 (F.C.T.D.); Slattery v. Canada (Canadian Human Rights Commission), (1994), 73 F.T.R. 161 (F.C.T.D.); affirmed (1996) 205 N.R. 383 (F.C.A.); Boahene-Agbo v. Canada (Canadian Human Rights Commission), (October 1, 1994), T-101-94 (F.C.T.D.); Jennings v. Canada (Minister of Health), (June 13, 1995), T-1235-94 (F.C.T.D.) affirmed (February 6, 1997), A-549-95 (F.C.A.); Robinson v. Canada (Canadian Human Rights Commission) (Re: Royal Canadian Mint), (January 10, 1995), T-3038-93 (F.C.T.D.), and Tan v. Canada Post Corp., (June 14, 1995), T-1335-93 (F.C.T.D.).

³⁹      [1994] 3 F.C. 3 (C.A.), (hereinafter the "Mercier " case).

⁴⁰      Ibid., at p. 14.

⁴¹      (1996), 106 F.T.R. 181 (F.C.T.D.).

⁴²      Ibid., at p. 192.

⁴³      The parties' submissions following the tabling of the investigation report, namely a submission letter on behalf of the Applicant from Michael MacDonald, dated November 17, 1993 (filed as Exhibit A to Ms. Lucie Veillette's affidavit), and a submission letter on behalf of the Department from Claude Gavard, dated December 2, 1993 (also filed as Exhibit A to Ms. Lucie Veillette's affidavit). The parties' submissions on Mr. P. Alwyn Child' memorandum, namely a submission letter on behalf of the Applicant from her legal Counsel, dated February 28, 1996 (Applicant's Application Record, at 135-141), and a submission letter on behalf of the Department from Peter D. Clark, dated March 1, 1997 (Exhibit A to Ms. Lucie Veillette's affidavit).

⁴⁴      [1993] 1 S.C.R. 554.

⁴⁵      Ibid., at p. 585.

⁴⁶      [1996] 1 S.C.R. 571.

⁴⁷      [1996] 1 S.C.R. 825.

⁴⁸      Supra, note 44.

⁴⁹      Supra, note 47.

⁵⁰      [1985] 2 S.C.R. 536.

⁵¹      [1990] 2 S.C.R. 489, at pp. 505 and 520-521.

⁵²      (March 26, 1997), A-197-96 (F.C.A.).

⁵³      [1992] 2 S.C.R. 970.

⁵⁴      Supra, note 52.     

⁵⁵      Supra, note 43.

⁵⁶      Slattery v. Canada, supra, note 38.

⁵⁷      (1995), 105 F.T.R. 22 (F.C.T.D.).

⁵⁸      (1995), 16 C.C.E.L. (2d) 14 (B.C.S.C.) aff'd (December 4, 1996), Court File No. C.A.021189 (B.C.C.A.).

⁵⁹      MacNeil v. Attorney General of Canada, [1994] 3 F.C. 261 (C.A.).