Date: 20091208
Docket: T-1852-08
Citation: 2009 FC 1252
Ottawa, Ontario, December 8, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
NANCY
CAMPBELL
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
case is about Nancy Campbell’s bad back and whether her employer, the Canada
Revenue Agency, discriminated against her because of it. She complained to the
Canadian Human Rights Commission that, even though her immediate supervisor
knew she had a bad back, she was ordered to perform a task which required
considerable bending. She reinjured her back and was off work. When she
returned, the efforts to accommodate her were too little, too late and led to
harassment from her co-workers. Some months later she again injured her back,
was off work again, returned again, and at the time of the last entry in this
file was scheduled to undergo surgery. She also alleges that she was passed
over for better employment because of her disability.
[2]
After
investigating, the Commission dismissed her complaint. This is the judicial
review of that decision.
THE LEGAL PARAMETERS
[3]
The
purpose of the Canadian Human Rights Act is to give effect to the
principle that, within matters subject to federal jurisdiction, individuals
should have equal opportunity. They are not to be hindered or prevented therefrom
by discriminatory practices based on, among other things, disability, and their
needs are to be accommodated.
[4]
Section
7 provides that it is a discriminatory practice to differentiate adversely
against an employee on a prohibited ground of discrimination. Section 14 goes
on to say that it is a discriminatory practice to harass an employee on such
grounds.
[5]
The
Act established the Commission, which has a multi-faceted jurisdiction,
and clothed it with various powers, duties and functions. In Ms. Campbell’s
case it received her complaint, and decided to investigate. The Commission may
then dismiss the complaint or refer it to the Canadian Human Rights Tribunal
for an inquiry. In effect, it vets the complaint, not to determine if the
complaint is justified, but rather to determine whether an inquiry is
warranted. Its role is to determine whether there is a reasonable basis in the
evidence, if believed, to substantiate the complaint (Bell v. Canada
(Canadian Human Rights Commission); Cooper v. Canada (Canadian Human
Rights Commission), [1996] 3 S.C.R. 854 at paragraph 53).
[6]
The
investigator went about her work in a fairly typical fashion. She collected
documents from Ms. Campbell, or her union representative, and from the Canada Revenue
Agency (CRA). She conducted interviews, gave the CRA the opportunity to respond
to Ms. Campbell’s allegations, asked her some questions, summarized the CRA’s
reply and gave her an opportunity to respond. She also carried out some
interviews in person or by telephone.
[7]
The
case law demands that the investigation be thorough. The thread which runs
through the various components of Ms. Campbell’s complaint is that the
investigation was not thorough. The significance of that allegation is that it
brings into issue the principles of natural justice, more particularly
procedural fairness. The general rule is that if the Court comes to the
conclusion that Ms. Campbell was not afforded procedural fairness, judicial
review will be granted and the matter referred back to the Commission for a
fresh investigation and fresh decision (Cardinal v. Kent Institution,
[1985] 2 S.C.R. 643).
THE FACTS
[8]
Ms.
Campbell began working for the CRA in 1999 as a data entry operator for revenue
processing. She has not been guaranteed full-time employment as the work is
seasonal in nature. In 2004 she injured her back at work while picking up a
thimble she had dropped. Various Workplace Safety & Insurance Board (WSIB)
reports were prepared. The CRA was provided with a doctor’s note which
recommended that Ms. Campbell stand up and stretch briefly every 20 to 30
minutes.
[9]
She
entered two job competitions in 2005, but was unsuccessful. She grieved one
competition to the highest level within the CRA. Her grievance was ultimately
dismissed.
[10]
In
Ms. Campbell’s complaint she said that thereafter she was off work now and then
due to back pain. She was off work February 20 and 21, 2006. She said that she
had a doctor’s note not to do any lifting or pulling, but the note provided to
the CRA makes no mention of that.
[11]
When
she returned to work on February 22, 2006 her team leader told her that she
would not have to “pull lists” for the rest of the week, but would have to the
week after. Pulling lists requires manipulating boxes full of cheques some 24
inches in length by 12 inches wide. The box is said to weigh about five pounds.
Incidentally the job description requires occasional lifting of weights of up
to 20 kilos.
[12]
On
February 27, 2006 she was directed to pull lists. She protested, and has a
witness. Nevertheless she began to pull lists, as a result of which she
reinjured her back.
[13]
She
was off work until March 14, 2006. The WSIB reports refer to a doctor’s note
which states “please two weeks of no bending and lifting heavy files.” The
CRA’s internal functional abilities assessment form indicated that there should
be no lifting or carrying at all.
[14]
Ms.
Campbell requested an ergonomic assessment. The CRA has a national ergonomics
program. Because of the sedentary nature of much of the work, many of its employees
develop lower back problems.
[15]
The
assessment was carried out in May, 2006. Its purpose was to evaluate the demands
of the job, review the physical characteristics of her workstation, identify
risk factors that could contribute to the discomfort and pain Ms. Campbell was
experiencing in her lower back, and to provide recommendations to decrease or
eliminate that risk. By that point her physician had recommended no lifting or
carrying, no pulling or pushing, sitting no more than 15 minutes with frequent
stretch breaks, and walking and standing every 30 minutes. The assessor
recommended a special chair, footstool, and an electric sit/stand height
adjustable work surface, which would allow her to alternate working in a sitting
or standing position. Her doctor agreed with these recommendations.
[16]
According
to the manager of revenue processing the ergonomic chair and footstool were
promptly provided. However, there was a problem with respect to the electric
sit/stand workstation. There was one available in the building but it was too
large to fit into Ms. Campbell’s cubicle. It would take up two cubicles.
However, as it was peak season for processing claims there was no space
available. She conferred with CRA’s public works component and was advised that
it would take several months before a smaller workstation could be delivered
and installed. She contacted CRA’s ergonomist to inquire whether there was
another way to accommodate Ms. Campbell. The ergonomist recommended two
workstations at different heights, one for sitting and one for standing. Ms.
Campbell agreed to this arrangement but later on in her complaint said she felt
she had no choice.
[17]
The
standing table was placed in a hallway close to Ms. Campbell’s workstation.
Other employees used the table when Ms. Campbell was not.
[18]
The
workstation had the appearance of a bar, which led some jokesters to order
drinks as they passed by. Ms. Campbell was humiliated. There is nothing in the
record to suggest that she asked her co-workers to refrain from making these
remarks, and there is a divergence of recollection as to whether she voiced her
concerns to her team leader. In any event she stopped using the higher
workstation.
[19]
A
co-worker who also used the higher workstation coped by putting a tip jar on
the table. She too says that she was humiliated, and also stopped using that
particular workstation. It is not clear whether this co-worker has any
disability.
[20]
Be
that as it may, Ms. Campbell came in with a doctor’s note in which the doctor
requested that she remain in her original work station because working
at the table caused her mental anguish.
[21]
Thereafter
the CRA referred her to Health Canada for a fitness-to-work assessment. Health Canada also recommended
an electric sit/stand workstation or if not feasible a stationary sitting station
and stationary standing station should be tried again, but the standing station
should afford Ms. Campbell privacy. Regular stretch breaks would still be
required. She should not be called upon to bend repetitively, carry more than
10 pounds, or push or pull heavy objects.
[22]
Ms.
Campbell’s contract ended September 29, 2006 and she was laid off with other
employees until December 8, 2006. At about this time it was announced that in
the near future a full-time position would be available for six weeks or so.
Ms. Campbell was passed over, which led to intervention on the part of her
union representative. The CRA’s position is that she was not passed over
because of her disability. There were only three full-time positions available
and they went to the three fastest-typing employees.
[23]
When
she returned to work a new workstation was situated in front of her team
leader, with high panels for privacy. She had two tables, one for sitting and
the other for standing. There was a computer on each. However, it was realised
that the computer on the higher table was in a potentially dangerous position.
It was removed and the table returned to normal height.
[24]
She
only worked for three days before she was overcome by back pain. Nothing in the
record indicates exactly what Ms. Campbell did during those three days that
might have aggravated her condition.
[25]
The
WSIB investigated this last incident and conducted its own ergonomic
assessment. It was of the view that an electric sit/stand workstation was
required. It was made available upon Ms. Campbell’s return to work in February,
2007. She makes much of the fact that the WSIB ergonomist criticized the
previous workstation arrangement. However, it must be kept in mind that the
criticism was levelled at the workstation as modified in December, 2006.
However, as regards the earlier workstation in the hallway he said “this
workstation physically accommodates Ms. Campbell as it provides an adequate work
surface at an appropriate height.” The issue was the social interaction with
co-workers.
[26]
In
January, 2007 Ms. Campbell had been issued a medical certificate by the Ottawa Hospital which stated
that she would have to undergo surgery, and would probably need six months of
recovery. Counsel was unable to say whether or not the surgery has taken place.
[27]
Ms.
Campbell continued to work until May, 2007. She has not returned, but according
to the CRA as long as work is available she is welcome to return.
THE INVESTIGATOR’S
REPORT
[28]
The
investigator concluded that the CRA was not on sufficient notice that Ms.
Campbell should not pull lists on February 27, 2006. Thereafter her disability
was accommodated. The teasing of co-workers was not connected to her disability
and did not constitute harassment. As to being passed over and not obtaining
full-time work, she unsuccessfully grieved on one occasion and did not get the
full-time position because others were faster. There was no discrimination
based on her disability.
[29]
The
report was sent to the parties for comment. Both responded. Ms. Campbell’s
representative, a Human Rights Program Officer at the Public Service Alliance
of Canada, complained that Ms. Campbell was only subjected to a brief telephone
interview which was limited to the alleged workplace harassment. The
investigator should have interviewed other witnesses including at least two
co-workers who had been mentioned in Ms. Campbell’s earlier submissions and the
union representative who was involved throughout the accommodation process.
[30]
Issue
was taken with Ms. Campbell’s timesheet on February 27, 2006. I do not consider
this point relevant because Ms. Campbell could have injured her back after only
pulling lists for a few minutes, or for a few hours.
[31]
According
to Ms. Campbell, the CRA failed to provide an electric sit/stand workstation
because it was inconvenient. It was only after the WSIB report that one was
made available. The CRA was given a copy of her submissions and in its reply
pointed out that there was no evidence provided by any medical professional
that the lack of electric sit/stand workstation led to Ms. Campbell’s requiring
surgery. As to being passed over for promotions or full-time work, Ms. Campbell
did not assert that she had raised her disability in the grievance. As to
full-time employment in December, 2006, although the reviewer had noted that
her keystrokes were very good only the three employees with the highest
production were offered a full-time work week for a contract from January 15 to
February 23, 2007. Finally, the CRA was prepared to rehire her, along with
other members of her group, when the workload rose again and when she was fit
to return to work.
[32]
In
a one-page letter the CHRC dismissed Ms. Campbell’s complaint. It stated that
the members of the Commission reviewed the report and submissions filed in
response thereto. The Commission was of the view that the evidence indicated
that the CRA did accommodate Ms. Campbell as recommended by professional
assessments and that she was not harassed because of her disability. As nothing
else was stated, in effect, the report of the investigation becomes the
Commission’s reasons for dismissing the complaint.
ISSUES
[33]
There
are four aspects to Ms. Campbell’s complaint. Permeating throughout is the
allegation that the investigation was not thorough. This spills over to the
Commission’s letter of dismissal in that the very detailed comments on the
investigation report deserved a reply.
[34]
The
Court owes no duty to the Commission when it comes to procedural fairness (Canadian
Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC
29, [2003] 1 S.C.R. 539). Otherwise the standard of review is that of
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190).
[35]
The
first question is whether the CRA discriminated against Ms. Campbell and failed
to accommodate her disability when she was directed to pull lists on February
27, 2006.
[36]
The
second question is whether the CRA adequately accommodated her upon her return
to work in March, 2006 and throughout that year, a year in which an electric
sit/stand workstation was not provided.
[37]
The
third question is whether the CRA failed to provide a harassment-free
workplace.
[38]
Finally,
was she passed over for promotions or full-time work because of her disability?
THE INJURY ON FEBRUARY
27, 2006
[39]
It
is important to limit oneself to what was known on February 27, 2006, and not
to be influenced by subsequent events. The only work restriction in Ms.
Campbell’s file went back to 2004. The recommendation was that Ms. Campbell
stand up and stretch briefly every 20 to 30 minutes. There is no evidence that
she was prevented from doing that. Although she was away for two days the
previous week, the doctor’s note did not put any restrictions on her work. Ms.
Campbell contests this, but was unable to produce a letter which she claims did
place restrictions upon her.
[40]
The
evidence is that she complained, which is backed up by an e-mail from a fellow
worker.
[41]
Her
team leader claims that Ms. Campbell could have refused as she was well-aware
of her rights.
[42]
In
my opinion there was no lack of procedural fairness. There was no need to
personally interview the other co-workers. Although the telephone interview of
Ms. Campbell did not touch upon this incident, she was sent a detailed
questionnaire, a summary of the CRA’s position and the investigator’s report.
In each instance a very detailed reply was sent by her union representative.
[43]
Procedural
fairness requires that the investigation be both neutral and thorough (Slattery
v. Canada (Human Rights Commission), [1994] 2 F.C. 574, aff’d (1996), 205
N.R. 385 (F.C.A.)). Ms. Campbell submits not only that the investigation was
not thorough in that important witnesses were not interviewed, those were
witnesses who would have supported her. Only Ms. Campbell’s team leader and the
supervisor of the section were personally interviewed, which suggests a lack of
neutrality.
[44]
It
is important to recall that it is not the role of the Court to micromanage the
Commission and its investigator. In Selvarajan v. Race Relations Board,
[1976] 1 All E.R. 12 (C.A.) Lord Denning held that the investigating
body is the master of its own procedure. He stated at page 19 that “it need not
hold a hearing. It can do everything in writing -- moreover it need not do
everything itself. It can employ secretaries and assistants to do all the
preliminary work and leave much to them.” This sentiment was adopted by the
Supreme Court in requiring the Commission to comply with the rules of
procedural fairness (Syndicat des employés de production du Québec et de
l’Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879).
[45]
As
regards the “pulling lists” incident, the investigator formed the view that
there was nothing in the record to contradict the doctor’s note Ms. Campbell
gave to the CRA with respect to her absence on February 21 and 22, 2006. That
note placed no restrictions on her workload. The investigator was provided an
e-mail from Ms. Campbell’s witness to the effect that Ms. Campbell protested
and said she did not want to pull lists.
[46]
Likewise
with respect to the bartender remarks, the investigator accepted that such
remarks were made, and had an e-mail from one of Ms. Campbell’s co-workers.
Again she did not consider it necessary to carry out an interview.
[47]
Nor
did she interview the union representative who had things to say with respect
to the delay in providing an electric sit/stand workstation. She considered the
exchange of e-mails with which she had been provided to be adequate.
[48]
On
the other hand she did interview the three main protagonists, Ms. Campbell, her
team leader, and the supervisor. She formed the view that the others were not
key witnesses. Certainly this is not a case like Grover v. Canada (National
Research Council), 2001 FCT 687, 206 F.T.R. 207 in which it was found that
the investigation was insufficient because a key witness, Mr. Grover’s boss,
was not interviewed. In my view the investigation satisfied procedural fairness
requirements as enunciated in such cases as Slattery, above, Sketchley
v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392, Gravelle
v. Canada (Attorney General), 2006 FC 251, Egan v. Canada (Attorney
General), 2008 FC 649, 341 F.T.R. 1, Herbert v. Canada (Attorney
General), 2008 FC 969, and Hicks v. Canada (Attorney General), 2008
FC 1059, 334 F.T.R. 260.
FAILURE TO ACCOMMODATE
[49]
Turning
to her accommodation upon her return to work, it is not disputed that the ideal
solution was an electric sit/stand workstation. However, there were space
limitations, and the alternative, two workstations at two different heights,
was approved by the ergonomist at the CRA and by Health Canada. It is
unfortunate that Ms. Campbell injured herself again in December, 2006, but
there is no indication whatsoever in the record that the CRA did not observe
the restrictions on her workload, i.e. no lifting, etc. It is unreasonable
based on this evidence to suggest that her disability was not accommodated.
[50]
Although
the union representative was not interviewed with respect to the accommodation
given to Ms. Campbell after her February 27, 2006 injury, and the delays in
providing an electric sit/stand workstation, the investigator had an exchange
of e-mails in that regard.
[51]
The
issue was not whether having the two workstations was a perfect solution.
Clearly it was not. Nor was the issue whether the employee wanted an electric
sit/stand workstation. The issue was whether she was adequately accommodated.
The investigator found that she was. The solution provided was acceptable to
the CRA ergonomist and to Health Canada. The Commission
accepted the investigator’s report and in so doing acted reasonably.
[52]
The
law requires reasonable accommodation, not perfect accommodation (Central
Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970).
WORKPLACE HARASSMENT
[53]
The
investigator stated that there was no intention on the part of the jokesters to
harass her. As Ms. Campbell points out, this is the wrong legal test. The
intention of the harasser is not relevant: see, e.g., Stadnyk v. Canada (Employment
and Immigration Commission) (2000), 257 N.R. 385 (F.C.A.). However, that
remark must be taken in context. The jokesters were not interviewed.
Consequently the investigator has no idea what they intended. The only way to
read the report is that the investigator herself would not have considered such
remarks to constitute harassment, or to cause her to be humiliated.
[54]
Ms.
Campbell suggests that the higher workstation was placed in the hallway as a
warning to co-workers as to what would happen should they demand an ergonomic
assessment. However, it was logical for the workstation to be close to her
regular workstation and she consented, although later she suggests that she was
under some duress.
[55]
Furthermore,
this workstation was used by others, and there is no evidence that they were
suffering from a disability. Consequently it was not unreasonable for the
investigator to conclude that there was no causal link between the remarks and
her disability.
[56]
This
is not to in any way suggest that Ms. Campbell did not consider herself
humiliated. However, the test for harassment is an objective one: Stadnyk v.
Canada (Employment
and Immigration Commission), above. In that case, the Federal Court of
Appeal held that sexual harassment is to be determined objectively from the
perspective of, where the complainant is a woman, the reasonable woman.
Adapting the Court’s reasoning to this case, the test would be that of the
reasonable person with a disability. The Commission has considerable expertise
applying that standard.
[57]
Although
a tort case, I also consider the Supreme Court’s recent decision in Mustapha
v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114 to be instructive.
In the course of replacing an empty bottle of drinking water with a full one,
Mr. Mustapha saw a dead fly and part of another dead fly in the unopened
replacement bottle. He became obsessed with health issues and developed a major
depressive disorder, phobia, and anxiety. He sued the water supplier for
psychiatric injury. He succeeded at trial, but was reversed by the Ontario
Court of Appeal. The Supreme Court dismissed his appeal. Although Chief Justice
McLachlin, speaking for the Court, was of the view that the defendant owed Mr.
Mustapha a duty of care, was in breach thereof and that Mr. Mustapha suffered
personal injury she held that the damages were too remote. Forseeability requires
a victim to be considered objectively. One looks at a person of “ordinary
fortitude” not at a particular victim with his or her particular
vulnerabilities. She added at paragraph 16:
To
say this is not to marginalize or penalize those particularly vulnerable to
mental injury. It is merely to confirm that the law of tort imposes an
obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The law of
negligence seeks to impose a result that is fair to both plaintiffs and
defendants, and that is socially useful. In this quest, it draws the line for
compensability of damage, not at perfection, but at reasonable foreseeability.
Once a plaintiff establishes the foreseeability that a mental injury would
occur in a person of ordinary fortitude, by contrast, the defendant must take
the plaintiff as it finds him for purposes of damage.
[58]
The
purpose of the Canadian Human Rights Act is to prevent and eliminate
discrimination, not to punish: C.N.R. v. Canada (Human
Rights Commission), [1987] 1 S.C.R. 1114 at 1134. It was not reasonably
foreseeable that Ms. Campbell would be humiliated by being called a bartender.
Her lack of privacy while working at the higher workstation in the hallway was
later rectified.
STAFFING ACTIONS
[59]
It
was incumbent upon Ms. Campbell to establish a prima facie case (Sketchley).
With respect to the competitions for positions in 2005, Ms. Campbell grieved one
competition to the highest level of the grievance program. An independent third
party reviewer determined that the staffing process had been conducted fairly
and that she had not been treated arbitrarily. With respect to the application
for full-time employment in September, 2006, she was assessed on objective
criteria, the time related to keystroke production. The three best performing
candidates were offered contracts. It is settled law that objective criteria
can be discriminatory (British Columbia (Public Service Employee Relations
Commission) v. B.C.G.S.E.U. (Meiorin), [1999] 3 S.C.R. 3), but Ms. Campbell
must do more than simply feel that she was discriminated against: she must
present a prima facie case that the objective standard has a
discriminatory effect. In addition, there is nothing to suggest that she asked
for any accommodation, such as brief off-the-clock intervals in order to
stretch her back, or that any requested accommodation was denied.
CONCLUSION
[60]
Although
it is most unfortunate that Ms. Campbell’s workplace injuries have led to
serious pain and discomfort, and perhaps even surgery, the decision of the
Commission that she was not discriminated against and that her disability was
accommodated, was reasonable, and so this judicial review shall be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review of the decision of the Canadian Human Rights
Commission, dated October 23, 2008, is dismissed.
2.
The
whole with costs.
“Sean Harrington”
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