Date: 20090430
Docket: T-2190-07
Citation: 2009 FC 438
Ottawa, Ontario, April 30,
2009
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
Walter
Kennedy
Applicant
and
Canadian
National Railway Company
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
Walter
Kennedy (the Applicant) seeks Judicial Review pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7 of a decision made by the Canadian Human
Rights Commission (the Commission) on November 20, 2007. The Commission
dismissed the Applicant’s complaint against his employer, the Canadian National
Railway Company (CN) under paragraph 44(3)(b) of the Canadian Human Rights
Act, R.S. 1985, c. H-6 (the Act).
[2]
The
complaint, which was filed with the Commission on April 18, 2001, alleged
that CN had failed to accommodate the Applicant by allowing him to return to
work as a Clerk/Chauffeur with modified duties after a work-related injury (the
Complaint). Following the procedural difficulties described below, a Commission
investigator conducted a fresh investigation and prepared a report dated
February 2, 2007 (the Report). It was before the Commission when it
reached its decision on November 20, 2007.
THE EARLIER PROCEEDINGS
[3]
In
June of 2002, an investigator’s report recommended that the Commission deal
with the Complaint. However, in December of that year, the Commission decided
not to do so because the Complaint was based on acts which had occurred more
than one year before it was filed.
[4]
In
January of 2003, the Applicant applied for judicial review of the 2002
decision. During that judicial review, a document was discovered which had not
previously been disclosed.
[5]
This
led to a supplementary investigator’s report of May 12, 2003 which
recommended that the Commission reopen the Applicant’s file and consider the
Complaint. In November of 2003, the Commission decided to deal with the
Complaint.
[6]
In
September of 2004, a second investigator’s report was completed. It recommended
a dismissal of the Complaint. Thereafter, in December of 2004, the Commission
followed the recommendation and dismissed the Complaint.
[7]
In
January of 2005, the Applicant filed an application for judicial review of the
2004 decision. On June 5, 2006, Justice Anne Mactavish set aside
Commission’s decision to dismiss the Complaint and ordered a fresh
investigation because she found that “the investigation report upon which the
Commission based its decision was fundamentally flawed”: Kennedy v. Canadian
National Railway Co., 2006 FC 697 at para. 2. Justice Mactavish held that
the investigator had wrongly concluded that the Applicant did not have
seniority.
[8]
In
February of 2007, as noted above, the fresh investigation (the Investigation)
led to the Report in which an investigator (the Investigator) recommended a dismissal
of the Complaint. Both parties were provided an opportunity to comment on the
Report and both provided written submissions. The Commission dismissed the
Complaint on November 20, 2007 (the Decision).
THE FACTS
[9]
On
November 3, 1991, the Applicant slipped and injured his back while cleaning a
caboose. As a result he was unable to work.
[10]
In
June of 1992, the Workers’ Compensation Board (the WCB) informed the Applicant
that, in its view, he was capable of returning to work. However, the Applicant
and his family doctor (the Doctor) disagreed and the Applicant was referred to
specialists and received spinal treatments. As late as May 1994, the Doctor
opined that the Applicant could not work.
[11]
In
September 1994, the WCB again advised the Applicant that, in its opinion, he
was fit for modified permanent employment (the Assessment). On
November 21, 1994, the WCB terminated the Applicant’s disability benefits.
The next day, on November 22, 1994, his Doctor agreed with the Assessment
and, according to the Applicant, provided him with a letter to that effect (the
Medical Letter). The Applicant says that he then asked CN’s Transportation
Clerk, Tulio Ricci (the Clerk), to return him to work and provided him with the
Medical Letter. The Applicant says that the Clerk later advised him that the
Medical Letter had been given to Brent Short at CN but that there were no
positions available with modified duties.
[12]
The
Applicant has never produced the Medical Letter and that the Doctor, who wrote
a letter dated November 4, 1997 summarizing his interaction with the
Applicant, made no reference to its existence. Further, on cross-examination on
his affidavit of January 21, 2008, the Applicant stated that he had
returned to the Doctor to ask for copies of the Medical Letter. Notwithstanding
that fact, it was not produced in this proceeding and CN has no record of its
receipt.
[13]
The
Clerk, who was interviewed during the Investigation, could not recall if he had
been given the Medical Letter. The Clerk also said he would not have given the
Applicant an opinion about whether positions were available. Brent Short, when
interviewed, had no recollection of the Applicant’s circumstances. The
Investigator concluded at paragraph 25 of her Report that, except for the
Applicant’s assertion that he did so, no evidence showed that he asked to
return to work in November 1994.
[14]
Following
the WCB’s denial of benefits on November 21, 1994, the Applicant appealed
on the basis that he was not fit for work. He asked for full temporary
disability benefits for the period from November 28, 1994 through
January 1, 1995 and continued his appeal even after his Doctor gave him
permission to resume modified duties on November 22, 1994.
[15]
On
April 25, 1995, the Applicant purchased a building and opened a convenience
store. When faced with a settlement offer from CN he advised the Investigator
that he failed to respond to the offer because he was unwilling to disclose the
income from his store. He took this position because he knew that the store
income would be deducted from the settlement amount pursuant to the terms of
his collective agreement.
[16]
On
September 21, 1996, CN announced that ten employees in the Applicant’s
unit who had been recently laid off would be eligible for a permanent lay-off
buyout. The Investigator noted at paragraph 8 of her Report that “[t]he
Respondent states that the buy-out benefits only applied to current employees
under active status”.
[17]
Shortly
thereafter, in a letter dated September 26, 1996, the Applicant requested
a return to work. CN says that this was the first such request.
THE ISSUES
[18]
The
Applicant says that the Commission erred in reaching the Decision because:
1.
it
relied on the conclusions in the Report without addressing the criticism of the
Report in the Applicant’s response;
2.
the
Report’s conclusions involved an assessment of the Applicant’s credibility and
the Investigator should have held an oral hearing before making credibility
findings;
3.
the
Report provided insufficient reasons;
4.
the
Report contained fundamental factual errors.
THE STANDARD OF REVIEW
[19]
The
law is clear that normally, decisions to dismiss complaints pursuant to
subparagraph 44(3)(b)(i) of the Act are reviewed on a reasonableness standard
see Tahmourpour v. Canada (Solicitor General), 2005 FCA 113, [2005]
F.C.J. No. 543 (F.C.A.) paragraph 6. That standard would apply to issue 4.
However, in this case, Issues 1 to 3 involve questions of procedural fairness
which are outside
the standard of review and decision-makers are not entitled to deference: Sketchley
v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392, at paras.
52-54.
DISCUSSION AND
CONCLUSIONS
Issue 1 The
Applicant’s Response
[20]
The
Applicant’s response to the Report was dated February 22, 2007 (the
Response). Therein, the Applicant alleged that the Investigator had made
factual errors. The Applicant’s concern is that the Decision made no reference
to the alleged errors. The certified Tribunal record shows that the Response
was before the Commission when it made the Decision and the Decision referred
to the Response, at least in general terms, when it said “Before rendering
their decision, the members of the Commission reviewed the report disclosed to
you previously and any submission(s) filed in response to the report.”
[21]
In
these circumstances, I conclude that the Commission considered the Response in
the course of reaching the Decision. Further, I can find no requirement on the
Commission to give reasons which address concerns raised in comments on
investigators’ reports. In my view, to impose such a requirement would unduly
complicate and prolong the Commission’s “screening” role. In this regard, see Bell Canada v.
Communications, Energy and Paperworkers Union of Canada, [1999] 1
F.C. 113 (C.A.), at paragraph 38.
Issue 2 Credibility
[22]
The
Applicant says that the Investigator disregarded the Applicant’s assertion that
he requested a return to work in November of 1994. However, this is not an
accurate submission. The Investigator acknowledged the Applicant’s evidence
when she reported that “save the complainant’s assertion that he did no, no
evidence exists to confirm that the complainant requested a return to work in
November 1994.”
[23]
The
Applicant also says that the Investigator reached conclusions and made findings
about the Applicant’s credibility. However, in my view, the Investigator made
findings of fact. She did not assess credibility. The Investigator left it to
the Commission to decide what weight it would give the Applicant’s evidence
when it considered all the circumstances of the case.
[24]
Finally,
the Applicant submits that before making credibility findings, the Investigator
was required to hold a hearing. The Applicant relies on the decision in Khan
v. University of Ottawa, [1997] 34 O.R. (3d) 535, to support this
submission. That decision established the rules of procedural fairness
applicable to the work of University Examinations Committees when they make
credibility findings. However, the case is not applicable here as the
Investigator made no such findings and because procedural fairness does not require an oral hearing given the
Commission’s “screening” role: Slattery v. Canada (Human Rights
Commission),
[1994] F.C.J. No. 181, at
para. 69,
aff’d [1996] F.C.J. No. 385.
Issue 3 The
Sufficiency of the Investigator’s Reasons
[25]
The
Applicant complains that the Report in incomplete because, although it notes
that he admitted that he proceeded with a false WCB appeal, it does not include
his explanation. He explained that he had to ensure that he had an income in
late 1994 after CN refused his request to return to work (the Explanation).
[26]
However,
the Explanation does not alter the material fact which was that, having told CN
he was fit for modified duties, the Applicant continued his WCB appeal on the
basis of total disability. The Explanation merely seeks to justify the
fraudulent appeal on economic grounds. It is not material in the sense that it
could not have made the Commission view the Applicant in a more favourable
light. For this reason, the Investigator did not err in failing to include the
Explanation in the Report.
Issue 4 Factual
Errors in the Report
[27]
The
Applicant submits that the Investigator made factual error when she concluded
that the Applicant received an “appropriate” and “legitimate” offer to settle,
dated March 26, 1999 (the Offer). The Applicant did not respond to the
Offer in spite of CN’s follow-up letter in September of 1999. However, in his
Response to the Report, which was written by counsel for the Canadian Auto
Workers union (CAW), the Applicant said that the Offer was deficient because it
meant that he would have lost his seniority and would have been deprived of
certain bridging benefits which would have entitled him to take early
retirement with an improved pension.
[28]
CAW’s
submissions appear to be premised on the notion that the Applicant requested a
return to work in November of 1994 and CN refused to accommodate his request.
Thus, according to CAW, the Applicant’s entitlements to pension and other
benefits should be calculated as though the Applicant returned to active status
in November of 1994. It is clear that the Investigator did not accept this underlying
premise and was therefore not persuaded by CAW’s arguments.
[29]
It
is also noteworthy that the Applicant raised none of these issues mentioned by
CAW when he was interviewed by the Investigator. At paragraph 38 of her Report,
the Investigator notes:
The complainant states he refused the
respondent’s offer, because, says the complainant, the respondent would have
deducted his convenience store earnings from the total amount in the offer. The
complainant alleges that when he advised the respondent of his decision to
reject the offer, the respondent deemed the complainant to have quit his job.
[30]
The
Investigator concluded that the Offer was legitimate or, put another way, bona
fide. That is not in issue. However, she also concluded that it was
“appropriate” because it was based in CN’s acknowledgment that it had not
recognized his seniority and called him to return to work for the 17 days the
Investigator concluded he should have been recalled. In paragraphs 48 and 49 of
her Report, the Investigator also noted that, if the Applicant had responded to
the offer, a settlement “could” have addressed the Applicant’s benefit and
compensation issues.
[31]
In
my view, given the fact that the Applicant completely ignored the Offer, and
given that the Applicant did not persuade the Investigator that he requested a
return to work in November of 1994, the Investigator’s reaction to CAW’s
submission and her conclusion that the Offer was appropriate was reasonable.
JUDGMENT
NOW THEREFORE THIS COURT
ORDERS AND ADJUDGES that, for the reasons given
above, that the application for judicial review is hereby dismissed with costs
to the Respondent fixed, with the agreement of counsel for both parties, at
$2000.00
“Sandra
J. Simpson”
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