Date: 20090211
Docket: T-1652-07
Citation: 2009 FC 136
Ottawa, Ontario,
February 11, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
RAJDEEP KANDOLA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
An employee who
requires accommodation for a disability must inform his employer of the fact of
the disability, unless it is self-evident, and then co-operate in the
accommodation process; if not, it is he who must bear the consequences. Admitting
to a disability and seeking the employer’s assistance is difficult for some. However,
when disclosure and a request for accommodation have not been made, the
employee cannot later ask that the employer’s assessment of his performance,
made in ignorance of the disability, be set aside, nor can it reasonably be
asked that the employer retrospectively assess what the employee’s performance
might have been if the disability was known and the employee accommodated in
the workplace. It is in large part on this basis that this application to set
aside the decision of the Canadian Human Rights Commission, dismissing the
applicant’s complaint, must be dismissed.
Background
[2]
The
factual background to this application is not in dispute. Mr. Kandola started
work for the Canada Revenue Agency (“CRA”) on February 18, 2002, at the PM-01
classification level. He was accommodated through various measures for his
sleep apnea and obesity. From June to August of 2002, Mr. Kandola and his
supervisor, Mr. Wood, worked together to develop a 60-day performance
improvement plan which successfully addressed certain performance issues,
apparently related in part to accommodation, which had arisen at the outset of
Mr. Kandola’s employment.
[3]
On
February 14, 2004, Mr. Kandola applied for a PM-02 Collections Officer
position. The staffing process was conducted in three stages: (1) a screening
stage, in which candidates who did not meet prerequisites were screened out;
(2) an assessment stage to establish a pool of qualified candidates, comprising
standardized competency assessments, an interview, and reference checks; and
(3) a placement stage in which the hiring manager filled positions out of the
pool of qualified candidates.
[4]
Mr.
Kandola self-identified as a person with disabilities on his application for
the PM-02 position. Also at this time, Mr. Kandola advised Mr. Wood for the
first time that he suffered from a learning disability. He was accommodated by
the CRA at both the testing and the interview stages, through the provision of
additional time to complete the competency test and text-to-speech technology
during the written and oral assessments, among other measures. In the result,
Mr. Kandola was successful at both the interview and the competency test.
[5]
It was at
the reference check stage that the applicant was screened out of the
competition. At this stage, a member of the selection board contacted Mr.
Wood, Mr. Kandola’s supervisor, with four questions relating to on-the-job
performance, with each question (except question 4, below) weighted at a
possible 20 points. The questions put to the supervisor were: (1) Have you
detected any problems regarding this employee’s attendance; (2) to what degree
does this person recognize what needs to be done and take responsibility for
undertaking the appropriate action(s); (3) to what degree does this person
rectify problems by initiating corrective action rather than placing blame; and
(4) are you aware of any reason this candidate ought not to be appointed to the
position of PM-02. A fifth question which had been anticipated was not
applicable to Mr. Kandola and was therefore removed, with the weight of the
others pro-rated accordingly.
[6]
On the
basis of Mr. Wood’s answers to these questions, in which he noted frequent
absences, overdrawn vacation and excessive sick leave, lengthy breaks, problems
with a co-worker, a missed submission deadline, and the need to implement a
performance improvement plan, Mr. Kandola was assigned “marginal” scores in
relation to questions 1, 2, and 3, and was screened out of the competition. He
was informed of this by letter dated October 8, 2004. Alleging that the
reference stage should have been approached taking account of his disabilities,
Mr. Kandola filed a Request for Decision Review, following which his score on
question 1 was augmented by three points, but this was still insufficient to
place him back in the running for the PM-02 position, as noted in the selection
board’s letter of January 13, 2005. In its November 22, 2004 response to Mr.
Kandola, the Review Board had noted:
I realize that some
information regarding your disabilities was disclosed to management in the
early stages of your employment with CRA, and as a result, accommodations were
arranged … However, your learning disability was not formally disclosed to the
managers during the reference check period, therefore no accommodation was
requested nor provided concerning this disability. As your previously disclosed
disability(ies) were formally disclosed and accommodated, it was reasonable for
the selection board to only consider your actual performance in the reference
check.
[7]
A
grievance filed by Mr. Kandola in relation to the selection process was
dismissed at the first level on February 24, 2005. Subsequently, he filed his
complaint with the Commission, alleging inter alia that the reference
check was discriminatory.
[8]
The
investigator assigned to investigate Mr. Kandola’s complaint interviewed the
complainant, Mr. Wood, and the CRA specialist who had assisted Mr. Kandola with
his accommodation requests. In her report, she sets out Mr. Kandola’s
submissions that the selection board failed to consider how his disability
impeded his work performance when it evaluated his reference, and that the
accommodations he required should have given the selection board sufficient
notice that his work performance had been impeded for disability-related
reasons. She also sets out the respondent’s position that during the period to
which the reference related, Mr. Kandola had been accommodated for his obesity and
sleep apnea, but that CRA had not then been notified by Mr. Kandola of his
learning disability and was thus not providing any accommodation relating
thereto.
[9]
On the
evidence before her, the investigator came to the factual conclusions that
after the fact, CRA could not guess as to what the complainant’s performance
could have been during the review period if he had disclosed his learning
disability and received accommodation. She further noted that not all of the
performance deficiencies described by the supervisor could be attributed to
disability (e.g. tardiness, placing blame on others, and lack of experience). Accordingly,
she recommended that the complaint be dismissed pursuant to s. 44(3)(b)(1) of
the Canadian Human Rights Act.
[10]
The
investigation report was disclosed to both parties, who were invited to make
submissions on it. PSAC legal counsel made submissions on Mr. Kandola’s
behalf, suggesting that the investigator had failed to recognize that Mr.
Kandola’s disability was a source of his performance issues as reflected in the
supervisor’s reference, and failed to apply the legal test outlined in Watt v.
Canada (Attorney General), [2006] F.C.J. No. 791, 2006 FC 619, which
asks whether the complainant has made out a case of prima facie discrimination,
and if so, whether the employer has established any defences to that prima
facie discrimination, e.g., that the discrimination corresponds to a bona
fide occupational requirement. The CRA also made brief submissions stating,
among other things, that the deficiencies noted by Mr. Woods were not related
to any disability.
[11]
By letter
dated August 10, 2007, the Commission informed Mr. Kandola that his complaint
had been dismissed pursuant to s. 44(3)(b)(i) of the Canadian Human Rights
Act. The Commission adopted the investigator’s finding and stated that it
is dismissing the complaint because:
[T]he evidence shows the
respondent was not aware of the complainant’s learning disabilities prior to
the staffing process initiated in February 2004, and therefore could not
provide accommodation which would permit the complainant the opportunity to
perform at his optimal level.
Issue
[12]
The sole
issue raised by the applicant is whether his right to procedural fairness was
breached by the failure of the Commission and its investigator to conduct a
thorough investigation of his complaint.
Analysis
[13]
Both
parties accept that matters of procedural fairness are to be reviewed against
the standard of correctness: Sketchley v. Canada (Attorney
General),
[2005] F.C.J. No. 2056, 2005 FCA 404.
[14]
It
is also accepted by both parties that where, as here, the Commission adopted
the investigator’s report, with no apparent independent analysis, the report is
considered to be the reasons of the Commission: Herbert v. Canada (Attorney
General),
[2008] F.C.J. No. 1209, 2008 FC 969.
[15]
The
applicant, relying on Sketchley, submits that the duty to conduct a
thorough investigation has at least two components. First, the investigator
has a duty to investigate all elements of the complaint raised by the
complainant and second, the investigator has a duty to assess all “crucial
evidence”, including interviewing those necessary to gather information for the
Commission to render its decision. The applicant submits that the investigator
erred in both respects.
[16]
The
applicant submits that the Commission effectively failed to investigate his
complaint because it mischaracterized his complaint. The Commission, as has
been noted, dismissed the complaint because it found that on the evidence, the
employer was not aware of applicant’s learning disabilities prior to the PM-O2
competition, and therefore could not have provided accommodation at any time
before then, which would have afforded the applicant the opportunity to perform
at his optimal level.
[17]
The
applicant submits that this wrongly characterizes his complaint as being
directed at the employer’s failure to accommodate him in the work he was doing
as a PM-01. He describes the alleged mischaracterization at paragraphs 49 and
50 of his Memorandum of Fact and Law in this way:
Mr. Kandola alleged
discrimination during the staffing process itself. He complained that the CRA
failed to take his disability into account during its assessment of his
performance, not that he had not been adequately accommodated prior to
the staffing process.
However, the Commission
focused its investigation on events which occurred long before the assessment
stage of the staffing process, in particular, the period of time which formed
the subject of Mr. Kandola’s reference check. This was a fundamental
misapprehension of the crux of the Applicant’s complaint which was directed,
rather, at the way the employer evaluated his reference check, in light
of his disabilities. [references omitted]
[18]
Notwithstanding
counsel’s able submissions, I find that the Commission did not mischaracterize
the applicant’s complaint. While the Commission’s statement as quoted in
paragraph 11 above, could have been differently worded, a reading of the
investigator’s report indicates that she did characterize the complaint
properly. At paragraph 24 of her report she writes:
The complainant states that
both Mr. Woods and the selection committee failed to consider the impact of his
disability on his performance thereby discriminating against him. He states he
should have been provided with an individualized assessment unique to his needs
which would take into account the affects of his disability on his
performance. He states an individualized assessment incorporating a new
standard in relation to his disabilities, such as evaluating his reference in a
different non-discriminatory manner, was not considered.
[19]
In
short, the investigator understood that the applicant’s complaint was that the
performance assessment made by both Mr. Wood and the selection board ought to
have taken into account that he had a learning disability and assessed his
performance in light of that disability. The difficulty with that proposition,
as noted by the investigator and the Commission, is two-fold. First, some of the
performance issues were found by the investigator not to have any relationship
to the disability being asserted. Second, to the extent that the performance
issues were caused or exacerbated by the disability, it is impossible, with any
reasonable accuracy, to make an assessment after the fact as to what his
performance would have been had he been accommodated. This point is aptly made
by Mr. Wood who, in the words of the investigator, said that “he could not
estimate what the complainant’s performance would have been if the complainant
had disclosed this disability earlier and the respondent had provided
accommodation.” It is my view that this is what the Commission was saying in
the passage quoted in paragraph 11, above – without disclosure there was no
accommodation and without accommodation his performance was not optimal but
there was no way to retroactively make an assessment of performance premised on
an assumption that there had been disclosure and accommodation.
[20]
The
applicant also submits that the investigation was not thorough as the
investigator failed to interview key witnesses, namely members of the selection
board. In my view, there was no evidence that they could have offered which
would have been critical to the complaint. It was submitted that they had to be
interviewed for the investigator to ascertain what assessment they made of the
complainant’s performance. While the applicant proposed that many “creative
solutions” might have been adopted by the selection board in assessing his performance,
the fact is that their assessment involved no more than taking the reference
provided by Mr. Wood and assigning a numerical value to it. While it was
submitted that the values assigned by the selection board members raise a
suspicion of discrimination, there was no evidence placed before the
investigator, the Commission, or this Court that the rating guide had been
misapplied or applied in a discriminatory manner to Mr. Wood’s assessment of
the applicant.
[21]
For
these reasons the application for judicial review must be dismissed, with costs
to the respondent.
ORDER
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial
review is dismissed; and
2. The respondent is entitled to
its costs.
“Russel W. Zinn”
Email this Content