Date: 20100203
Citation: 2010 FC 114
Docket: T-183-09
BETWEEN:
TERESA
PANACCI
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
and
Docket: T-184-09
BETWEEN:
TERESA
PANACCI
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
PHELAN
J.
I. OVERVIEW
[1]
These
are two judicial reviews involving the Canadian Human Rights Commission
(Commission) emanating from the same set of facts alleging discrimination on
the basis of disability and failure to accommodate. There is a third matter not
before the Court which is relevant in part to these two matters. T-183-09
relates to a complaint against Health Canada by Ms. Panacci whereas
T-184-09 relates to her complaint against the Treasury Board. For ease of
reference, there will be one set of Reasons. These are the Reasons applicable
for each of the Court files.
[2]
Panacci
also made a third complaint regarding failure to accommodate her disability
against the Canada Border Services Agency (CBSA), the agency at which she
works. This complaint has not yet been investigated by the Commission because
it is the subject of a grievance process. The Commission’s process is in
abeyance pursuant to s. 41(1)(a) of the Canadian Human Rights Act
(Act) pending the result of the grievance process.
[3]
With
respect to the complaint against Health Canada, the Commission found that there
was insufficient evidence to justify an inquiry because the evidence did not
show that the practices and policies of Health Canada in respect
of Fitness to Work Evaluations (FTWE) were discriminatory on the basis of
disability either as to the Applicant or systemically. The Commission’s
investigation was based on its jurisdiction under s. 5 of the Act.
[4]
Regarding
the complaint against the Treasury Board, that complaint was dismissed because
the Treasury Board was not the party responsible for the alleged discriminatory
acts and the evidence did not support a conclusion that its policies
discriminated against people with disabilities.
II. BACKGROUND
A. General
[5]
The
Treasury Board instituted a policy on the “Duty to Accommodate Persons with
Disabilities in the Federal Public Service” (Accommodations Policy) which
applies to all portions of the public service for which the Treasury Board is
the employer, including departments and agencies.
[6]
Pursuant
to that policy, the Treasury Board has the responsibility to inform those
entities for which it is the employer of the Accommodations Policy and to
provide interpretation and guidance thereon. Deputy heads in departments are
responsible for the implementation of this Policy including elimination of “barriers”
generally and addressing individual accommodation requests specifically.
[7]
The
Accommodations Policy outlines actions to be taken in respect of individual
accommodation including consultation with the employee, consulting appropriate
medical and rehabilitation advisers as to appropriate accommodation and
implementing the accommodation of the employee. The Accommodations Policy also
provides that where the type of accommodation required is not clear, experts
may be consulted including not only the employee’s physician but also centres
of expertise within the Public Service Commission or within other departments.
There is no requirement to consult Health Canada.
[8]
The
Treasury Board had another related policy, the Occupational Health Evaluation
Standard (Standard), which sets out policy associated with health evaluations.
The Standard, through delegation from the Treasury Board, makes Health Canada responsible
for carrying out FTWE as the “occupational health service provider”. These FTWEs
may be conducted for a number of reasons including the determining conditions
under which employees with disabilities are able to continue working.
[9]
A
FTWE is a non-mandatory type of evaluation contemplated by the Standard and is
aimed at confirming health capability in regard to the position and what
limitations might be considered. A FTWE was conducted with respect to the
Applicant and the process and conclusions thereof were a primary source of the
complaint of discrimination against Health Canada.
[10]
Within
Health Canada are
Occupational Health and Medical Officers (OHMOs) who, in accordance with the
Occupational Health Assessment Guide, conduct the FTWEs with input from the
departmental manager and the employee’s personal physician or specialist. The
results of a FTWE are a written report to the employer and employee outlining
the capacity to carry out duties and the specific limitations or physical
restriction appropriate to the circumstances. It is the department’s
responsibility to accommodate the employee in accordance with the Accommodations
Policy.
[11]
Health
Canada also has a
process for a review of any OHMO opinion on the FTWE. The review is conducted
by the Program Medical Advisory Committee (MAC), a group of doctors including
OHMOs, an external specialist and the Public Service Health Program National
Medical Advisory Committee. MAC provides advice to the OHMO but neither the
opinions of the OHMO or MAC are binding on the employer.
B. Specific
Facts
[12]
The
Applicant is employed by CBSA as a Customs Inspector where her “substantive
position” was the inspection of mail from a customs perspective. Since 1996 she
has suffered from a number of medical conditions, including Chronic Fatigue
Syndrome. Between 2000 and 2004 she consented to undergo four FTWEs at the
request of CBSA. This judicial review concerns the last of these FTWEs
conducted in 2004.
[13]
From
2000 to 2004 the Applicant did not work in her substantive position but was
deployed in various assignments considered less strenuous than her substantive
position in the postal services.
[14]
On
April 5, 2004, the Applicant returned to her substantive position. Her
chiropractor had provided a note to CBSA outlining certain restrictions to be
placed on the Applicant’s work requirements. CBSA accommodated the Applicant by
providing her with a steady weekday shift (as opposed to the usual rolling
shifts) and advised her that she did not have to deal with heavy parcels.
[15]
Less
than two weeks after the Applicant’s return to work, she reported that she felt
progressively worse. Her new physician, Dr. Malam, advised the Applicant’s
director that the Applicant could not continue in the duties assigned and
suggested that she be placed elsewhere.
[16]
The
CBSA director requested that an up-to-date assessment be conducted of the
Applicant’s condition and limitations as well as a prognosis be given as to
when she could return to her full range of duties if at all. Dr. Jeffries, an
OHMO in Health Canada, was contacted to complete the latest FTWE.
[17]
In
the interim, on May 18, 2004, the Applicant left work feeling ill. Dr. Malam
provided the Applicant with a note which concluded that she should not return
to work until July 14, 2004.
[18]
As
part of the FTWE, Dr. Jeffries engaged an expert, Dr. Goldsand, to provide his
assessment of the Applicant’s condition. The report of Dr. Goldsand and its
follow-up conclusions by Dr. Jeffries appears to have provided the spark to
this dispute between the Applicant and CBSA.
[19]
Dr.
Goldsand provided his “impressions and recommendations” which included the
following comments:
·
The
Applicant had been managing well in her previous, temporary position but
immediately on returning to the postal department, her symptoms returned.
·
The
Applicant was experiencing certain types of pain although it had changed.
·
Her
symptoms, so long as laboratory tests were normal, were consistent with Chronic
Fatigue and regular shift work might help her manage her symptoms.
He also made the following statement:
It is interesting to note that her
chronic fatigue symptoms seem to be more pronounced in the Mail Department and
not in other locations … She reports feeling much healthier outside the Postal
Office and might benefit from a transfer to another department in order to find
more job satisfaction and less pain …
[20]
Dr.
Jeffries reported to CBSA management that while there was some discomfort, it
was not significant. He concluded that the findings did not support the
chiropractor’s recommendation for a fixed shift nor was there any reason that
the Applicant could not perform light to medium work.
[21]
Dr.
Jeffries referred to Dr. Goldsand’s comments set out above and interpreted Dr.
Goldsand’s report to mean that the Applicant’s issues were more a matter of
motivation and job satisfaction than a medical condition. Dr. Jeffries then
suggested that the Applicant might be able to deploy to a job with non-shift
work and thus end her tendency to medicalize her issues.
[22]
The
CBSA director then requested that the Applicant return to work taking shifts as
assigned. He noted that she could do the light to medium work available at the
postal plant. He noted Dr. Jeffries’ comments about motivation and job
satisfaction and suggested that the Applicant seek alternative positions
through the competitive process or seek assistance from the Employee Assistance
Program.
[23]
In
response to Dr. Jeffries’ report, Dr. Malam expressed his strong disagreement
with his conclusions. At the request of the Applicant, Dr. Jeffries referred her
file to the MAC (discussed earlier) for its review.
[24]
On
October 15, 2004, the MAC advised that it believed the Applicant should be
considered unfit for the duties of her substantive position but was fit for a
less physically demanding position with regular hours and no shift work. The
MAC suggested that CBSA find her a suitable position. In this regard, the
Applicant secured exactly what she had sought from Health Canada.
C. Complaints/Decision
(1) Health
Canada
[25]
The
issue raised in the complaint against Health Canada was whether its evaluative
practices (paper reviews, absence of rationale for dismissing other medical
reports, precedence of Health Canada’s own assessment over others) constituted
discrimination on the basis of disability, both in the Applicant’s case and
systemically.
[26]
The
Commission, after a considerable delay, amended the complaint to specify that
the applicable section of the Act was s. 5 and not ss. 7 and 10 as pleaded by
the Applicant. The Applicant before this Court stressed the error of this legal
conclusion.
|
5.
It is a discriminatory practice in the provision of
goods, services, facilities or accommodation customarily available to the
general public
(a)
to deny, or to deny access to, any such good, service, facility or accommodation
to any individual, or
(b)
to differentiate adversely in relation to any individual,
on a prohibited ground of
discrimination.
|
5.
Constitue un acte discriminatoire, s’il est fondé sur un
motif de distinction illicite, le fait, pour le fournisseur de biens, de
services, d’installations ou de moyens d’hébergement destinés au public :
a)
d’en priver un individu;
b)
de le défavoriser à l’occasion de leur fourniture.
|
|
7.
It is a discriminatory practice, directly or indirectly,
(a)
to refuse to employ or continue to employ any individual, or
(b)
in the course of employment, to differentiate adversely in relation to an
employee,
on a prohibited ground of
discrimination.
|
7.
Constitue un acte discriminatoire, s’il est fondé sur un
motif de distinction illicite, le fait, par des moyens directs ou indirects :
a)
de refuser d’employer ou de continuer d’employer un individu;
b)
de le défavoriser en cours d’emploi.
|
|
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.
|
[27]
The
Applicant commenced a judicial review in this Court on the issue of the
applicable section of the Act but that judicial review was withdrawn when the
Commission agreed to include consideration of ss. 7 and 10 in the complaint
investigation.
[28]
The
Investigator’s Report, which was adopted by the Commission and constitutes the
Reasons of the Commission, concluded that ss. 7 and 10 are only applicable to
an employer or an employee or employee organization. The Commission further
concluded that the Health Canada medical assessments were a service customarily
available to the public and therefore determined that the investigation would
continue under s. 5. However, the Commission did hold that the individual
experiences and the broader allegations of discrimination in respect to Health Canada’s assessment practices
would be investigated.
[29]
The
Investigation Report gave a thorough summary of the facts and the parties’
submissions. The Investigator examined the six Commission files related to
other complaints which had been tendered as evidence of systemic discrimination.
The Investigator noted that the six files were findings in relation to the
employer (the entity exercising day-to-day direction) and not Health Canada.
[30]
With
respect to the complaint in relation to the Applicant herself, the Investigator
found that the Applicant had been individually assessed, had a face-to-face
assessment by Dr. Goldstein and that Dr. Jeffries’ opinion did not contradict
the other medical evidence.
[31]
It
was specifically noted that the different medical interpretations, particularly
those of Dr. Malan and Dr. Jeffries, did not amount to discrimination. While
Dr. Jeffries did not concur with Dr. Malan, he was prepared to send the file on
for review by MAC, which review was favourable to the Applicant.
[32]
On
the issue of systemic discrimination, particularly as regards Health Canada’s policy embodied in
the Occupational Health Guide, that policy provided for face-to-face
assessments and for regular review of the Guide itself. OHMOs are trained in
occupational medicine and the Guide contemplates consultations with other
medical professionals. Finally, an appeal mechanism is available, if not
particularly highlighted in information given explaining the Health Canada
process. The Investigator noted that while the six files raise the same
concern, there “does not appear to be enough evidence to support a finding of
systemic discrimination”. The Applicant has argued that this is too high a test
for the issue of whether an inquiry before the Tribunal into the complaint is
warranted.
[33]
In
response to the Investigator’s Report, the Applicant reiterated the facts of
the case and that ss. 7 and 10 were not addressed. The Applicant also contended
that all three complaints should be dealt with together and that the
Investigator had failed to conduct a thorough investigation – an issue repeated
before this Court.
[34]
As
indicated, the Commission accepted the Report, referred only to consideration
under s. 5 of the Act and dismissed the complaint.
(2) Treasury Board
[35]
The
Investigator framed the complaint against the Treasury Board as to whether the
Treasury Board had any responsibility for the alleged failure of CBSA to
properly accommodate her and for Health Canada’s allegedly discriminatory evaluative
practices. The Investigator had concluded that as the “ultimate employer” in
the federal public service, the Treasury Board shared responsibility for both
departments.
[36]
Initially,
the Commission received a recommendation that it not deal with this complaint
against the Treasury Board because the Treasury Board was not a party to the
discriminatory conduct. The Treasury Board had delegated responsibility for the
implementation of the Accommodations Policy to deputy heads of departments (or
their delegates).
[37]
Having
received further submissions, the Commission reversed itself. It concluded that
whether responsibility could be attributed to the Treasury Board was an issue
best determined by an investigation of the complaints against all three named
respondents, the Treasury Board, Health Canada and CBSA. Again, the focus was on whether the
Treasury Board was responsible for the discriminatory acts itself.
[38]
The
Applicant, in subsequent submissions, complained that it was the entire process
of accommodation to return to work which was in issue and particularly whether
the Treasury Board effectively monitored its accommodation policies and their
implementation by departments.
[39]
The
Investigator reported that the Treasury Board had no direct role in the
complainant’s case – any alleged discrimination being that of CBSA and Health Canada. The Treasury Board’s
ultimate responsibility for implementation of employment equity was dealt with
through a framework of delegated responsibility. The Investigator concluded
that the Treasury Board’s “monitoring” and oversight roles do not appear to
suggest that it should be liable for the alleged acts of its employing
departments. The Investigator recommended that the complaint be dismissed
without further investigation.
[40]
In
response, the Applicant reiterated her concern that the three complaints were
not dealt with together and the investigation was not complete. She further
complained that there had been no investigation of Treasury Board’s oversight
roles regarding policies and whether such policies were applied in a
discriminatory fashion. Finally, there was no analysis of systemic
discrimination in the accommodation process.
[41]
The
Commission accepted the Investigator’s findings and dismissed the complaint. In
addition to the usual letter outlining the main findings in the Report, the
Commission explained its change of position and its latest conclusions.
The Commission’s previous
decision on this file was that the issue of whether any responsibility can be
attributed to the Treasury Board may best be determined through investigating
the complaints against all three respondents. However, having reviewed all of
the evidence gathered during the investigation of this complaint, the
Commission is of the view that Treasury Board is not the party responsible for
the alleged discriminatory acts as it had no direct role in how the
complainant’s case was dealt with by her Department. Treasury Board has
delegated responsibility for the implementation of its policies to Departments,
who in functional terms, have direct responsibility for these policies.
The evidence gathered also
supports that the Treasury Board’s policies at issue do not discriminate
against persons with disabilities.
III. LAW
A. Issues
[42]
The
issues regarding the Health Canada complaint are:
(a) Whether the
Commission erred in refusing to consider ss. 7 and 10 of the Act;
(b) Whether
the Commission erred in concluding that there was insufficient evidence to
justify referring the complaint to the Tribunal;
(c) Was there a
proper and thorough investigation of the complaint?
[43]
With
respect to the complaint against the Treasury Board, the issues are:
(a) Did the
Commission err in its interpretation of s. 7 of the Act?
(b) Did
it misapply the law in determining that the Treasury Board was not responsible
for the discriminatory acts nor were its policies and practices discriminatory?
(c) Was there a
proper and thorough investigation of the complaint?
B. Standard
of Review
[44]
As outlined
by Justice Lemieux in Brine v. Canada (Attorney General) (1999), 175 F.T.R. 1
(FCTD), the Commission’s role is primarily to screen complaints to assess
whether the evidence merits referring the complaint to a merits based
adjudication before a Tribunal panel. While the Commission’s decision does not
necessarily determine rights and responsibilities, particularly when the
Commission refers the matter to the Tribunal; where, however, the Commission
dismisses a complaint, that dismissal has profound significance to the
complainant’s rights.
[45]
While
Dunsmuir v. New
Brunswick,
2008 SCC 9 has narrowed the standard of review choices, there remains divergent
choices which vary depending on the issue raised and the context in which it
arises. The determination of the standard depends on the question at issue (Sketchley
v. Canada (Attorney General), 2005 FCA 404).
[46]
With
respect to questions of law and jurisdiction, it is again important to focus on
the nature of the legal question. An issue of whether the Commission has true
jurisdiction to deal with a matter or a question of general law attracts a
standard of correctness (Canada (Attorney General) v. Watkin, 2008 FCA 170).
[47]
In
respect to the Health Canada complaint, both parties accept that the
determination not to consider ss. 7 and 10 should be subject to a correctness
standard of review. I agree that the question of whether ss. 7 and 10 are
applicable to an employer is a question of law to which correctness generally
applies; the issue was not whether Health Canada is an employer which might lead to greater
leeway in the Commission’s interpretation. However, the real issue is not whether
the Commission had true jurisdiction over the entity or subject matter. The
real debate revolved around which provision of the Act conferred that
jurisdiction – s. 5, s. 7 or s. 10. The consequences or lack thereof from this
determination are an important element of this case.
[48]
Procedural
fairness questions are generally simpler to resolve in terms of the standard of
review - it is correctness. This Court has consistently held that the issue of
whether there has been a thorough and neutral investigation of a complaint to
be a question of fairness. See Coupal v. Canada (Attorney General), 2006 FC 255; Egan
v. Canada (Attorney General), 2008 FC 649. The issue
of the investigation may also be considered from the perspective of a failure
of jurisdiction or failure to exercise that jurisdiction. The result of the
standard of review analysis remains the same – correctness.
[49]
On
the issue of the sufficiency of evidence to justify dismissal of a complaint,
the jurisprudence establishes that a decision under s. 44(3) to dismiss is
usually one of fact or mixed law and fact for which the standard of review is
reasonableness (Sketchley, above; Bell Canada v. Communications,
Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.)).
C. Analysis
(1) Health
Canada
[50]
This
issue of whether s. 7 and/or s. 10 of the Act is applicable must be examined in
the context of this case. Considerable effort was spent trying to determine
which department of the Government of Canada is the “employer” for purposes of
the Act. It is an unhelpful search because in the end the government employees
(and certainly in this case) are employees of Her Majesty in right of Canada.
[51]
The
real search is which department committed the discriminatory acts and which
should be a “party” in order that remedial action can be ordered and be effective.
It must be remembered that because the Act is directed at remedial action, the
focus of the inquiry is what happened “in the course of the complainant’s
employment”. (See Robichaud v. Canada
(Treasury Board), [1987] 2 S.C.R. 84.)
There was no question raised as to the Commission’s true jurisdiction to deal
with the Applicant’s complaint. The question was which of at least three
provisions form the basis for the grant of jurisdiction.
[52]
Section 5 is directed at
discriminatory acts in respect of goods, services, facilities or accommodation
customarily available to the general public. Discriminatory matters in respect
of pension or disability benefits fall within the scope of this provision.
While public servants with disabilities may fall within a sector of the general
public, it stretches the normal meaning of “general public” to include persons
such as the Applicant, a public servant who is subject to a Health Canada
review in relation to her employment needs – a service not available to most
other members of the Canadian public.
[53]
While s. 10 raises the very issue
of who is the “employee”, the section could be read to encompass situations
beyond the “direct” employer-employee relationship, e.g. Canadian Pacific
Ltd. v. Canada (Human Rights Commission), [1991] 1 F.C. 571 (C.A.), [1990]
F.C.J. No. 1028. This is particularly the case where the Court is required to
take a “large and liberal” approach in respect of a remedial statute.
[54]
Therefore, it is not “plain and
obvious” (as that test is described in Canada Post Corp. v. Canada (Canadian Human Rights Commission) (re Canadian
Postmasters and Assistants Assn.) [1997] F.C.J. No. 578 (T.D.), aff’d [1999] F.C.J. No. 705 (C.A.)) that
ss. 7 and 10 could not apply to the Applicant’s complaint. This would be a
matter which should have been left to the Tribunal to determine assuming there
had been some factual basis upon which to ground the operation of these
sections.
[55]
Sections 5, 7 and 10 in this case
are the grounds which give the Commission jurisdiction to investigate and to
refer on to the Tribunal if appropriate. There has never been any serious
challenge to the Commission’s jurisdiction to deal with the case.
[56]
In any event, it is immaterial
which section of the Act was used to ground the Commission’s jurisdiction. The
Commission correctly concluded that it had jurisdiction and proceeded to
investigate the existence of discriminatory acts.
[57]
Both s. 5 and s. 7 use the same terms
for the offending conduct – to “differentiate adversely” – and s. 10, while
slightly different in wording, targets the same type of offending conduct.
[58]
The Applicant was unable to point
to the potential for any different result or remedy or procedure if the
Commission had investigated the complaint under s. 7 or s. 10 or both. The Act
does not preclude giving the Commission jurisdiction on the basis of more than
one provision. The Appellant has shown no prejudice to her rights for an
investigation or a potential remedy by virtue of the Commission proceeding to
investigate grounded in jurisdiction under s. 5.
[59]
Most fundamentally, the Commission
carried out a full, fair and thorough investigation. Each aspect of
discrimination, both individual and systemic, was addressed by the Investigator.
In the end, the Applicant received that which she had sought by means of the
review process outlined in Health Canada’s policies.
[60]
Whatever the frailties of the
Commission’s legal analysis may be, the Commission did carry out its duty to
properly investigate and reached a reasonable conclusion well within its area
of expertise. To some extent, this is a case of – to use the vernacular – “no
harm, no foul”.
[61]
For those reasons, I would dismiss
the judicial review in respect of the Health Canada matter.
(2) Treasury Board
[62]
The
initial complaint regarding the Treasury Board was not clear as to how the
Treasury Board might be responsible for the discriminatory acts alleged.
[63]
While
there was some concern that the Treasury Board was an “employer” directly or
indirectly by virtue of the Financial Administration Act and that there
may be issues as to the legal ability of the Treasury Board to delegate its
responsibilities to deputy-heads, the various submissions during the
investigation clarified that the potential basis of Treasury Board’s responsibility
for discriminatory acts was systemic in nature.
[64]
It
became clear that the gravamen of the complaint against the Treasury Board was
its failure to monitor the implementation of its employment and accommodation
policies and not that such policies were in themselves discriminatory. In this
regard, the case is significantly different from Sketchley, above.
[65]
A
fair reading of the Investigator’s Report indicates it was directed at the
issue of delegation and whether the policies themselves were discriminatory
particularly in their application to individual situations.
[66]
The
Investigator, and through her the Commission, examined the wrong question. The
Applicant complained that the Treasury Board failed to provide adequate
enforcement mechanisms and that it did not fulfill its duty to monitor the
implementation and application of Treasury Board employment discrimination
policies.
[67]
The
Investigator failed to consider the policy monitoring obligations of the
Treasury Board. As such, the Commission in adopting the Investigator’s Report
made an unreasonable decision by failing to address the subject matter of the
complaint. Therefore, the Commission committed both a legal error and reached
an unreasonable conclusion on the facts in issue.
[68]
Further,
the failure to address the substance of the complaint means that the Commission
did not have a fair and adequate basis upon which to evaluate whether there was
sufficient evidence to warrant a referral to the Tribunal.
[69]
The Investigator
failed to meet the criteria of a thorough and neutral investigation. The Court
will not lightly interfere with the results of an investigation but will do so
“where unreasonable omissions are made, for example, where an investigator
failed to investigate obviously crucial evidence …” (Sketchley, above,
para. 44).
[70]
The
failure to properly investigate the core issues of the complaint appears to be
due in part to separating the complaint against the Treasury Board from the
complaint against CBSA. The Investigator went off investigating indirect
discrimination by the Treasury Board in respect of acts by CBSA which had not
been proven to be discriminatory. At that point the investigation became muddled,
and proceeded without context and without determination of the core facts and
the relationship and roles of CBSA and Treasury Board.
[71]
A
critical weakness of the investigation is that it was divorced from any actual
findings of discrimination. It is difficult, if not impossible, to investigate
not only the nature of any delegation to deputy heads but importantly whether
policies were properly implemented by the applicable departments and monitored
subject to ongoing oversight by Treasury Board without a factual basis.
[72]
Therefore,
this judicial review will be granted, the Commission’s decision quashed and a
new investigation is ordered to be conducted after the grievance decision. If
the grievance is upheld and the complaint against CBSA proceeds before the
Commission, the Court directs the Commission to consider whether the complaints
against the Treasury Board and CBSA should be investigated and reported on
together.
“Michael
L. Phelan”
Ottawa, Ontario
February 3, 2010
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