Date: 20110118
Docket: T-551-10
Citation: 2011 FC 57
Ottawa, Ontario, January 18, 2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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CHARLES HENRY TUTTY
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Applicant
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and
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ATTORNEY GENERAL OF CANADA,
MTS ALLSTREAM INC.,
PETER VAN HORNE, RON HOSEMAN, ELAINE
ADAMSON, AND GRAHAM FISHER
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
underlying question raised on this application concerns the extent to which an
employer is obligated to accommodate a medically disabled employee. Charles
Tutty claims that his employer, MTS Allstream Inc. (MTS), discriminated against
him by failing to accommodate his disability and by terminating his employment
because of that disability.
[2]
The
subject matter of Mr. Tutty’s application is the decision of the Canadian
Human Rights Commission (Commission) rendered on March 8, 2010 by which his
complaint of discrimination under the Canadian Human Rights Act, RS,
1985, c H-6 (Act) was summarily dismissed. Mr. Tutty contends that this
decision was made in breach of the duty of procedural fairness and was
otherwise unreasonable and unlawful. He claims relief in the form of an order
quashing the decision of the Commission.
Employment
Background
[3]
Mr. Tutty
was hired by MTS on November 25, 2002 in the position of Northern Alberta Sales
Manager – Alliance Channel. On November 27, 2004 he was promoted to Senior
Manager, Learning and Development. In October 2007 Mr. Tutty took
disability leave from his employment because of a stress-related illness. In
April 2008 Mr. Tutty was cleared to return to work on a gradual basis
under the supervision of his treating physician and an independent Return to
Work Coordinator, Des Hathaway. It is undisputed that Mr. Hathaway
was paid by MTS for his services. The details of the proposed return to work
plan involved a progressive increase in employment hours over a period of 3 to
6 months and included restrictions on overtime and travel. It was further
understood that Mr. Tutty would continue to be assessed by his physician
and Mr. Hathaway, presumably until his recovery had stabilized.
[4]
On
July 21, 2008 Mr. Tutty was cleared to return to full-time hours at full
salary, but his capacity to return to unrestricted duties remained to be
determined. On August 13, 2008 MTS wrote to Mr. Tutty’s physician asking
a number of questions directed at determining his “overall recovery and
abilities to return to work without restriction/limitation”. Notwithstanding
this outstanding request, MTS terminated Mr. Tutty’s employment on August
21, 2008 on the ostensible basis of a corporate restructuring and the resulting
elimination of Mr. Tutty’s position. It is undisputed that before Mr. Tutty
was terminated he was offered alternative employment at the same salary of
$95,272.34 per annum. Mr. Tutty turned down this offer because the
position involved “extensive travel and overtime” and because it involved “a
demotion putting [me] at the level of the or to [my] disability”. At or around
the same time, Mr. Tutty was offered a lump sum separation allowance
equivalent to 6 months of income and with continuation of benefits. Mr. Tutty
declined this offer and subsequently commenced an action in the Alberta Court
of Queens Bench for wrongful dismissal damages.
[5]
On
February 6, 2009 Mr. Tutty made a complaint to the Commission alleging
that MTS had refused to reasonably accommodate his disability and had
terminated his employment because of that disability. He claimed $15,000.00
for an injury to his dignity and self-respect, an apology and costs.
The Decision Under Review
[6]
The
Commission’s decision to dismiss Mr. Tutty’s complaint is set out in a
letter dated March 8, 2010. That letter offered the following reasons for the
decision:
·
the evidence
suggests that although the requirement to travel or work overtime had an
adverse effect on the complainant due to a disability, the respondent appears
to have accommodated the complainant’s disability;
·
the
complainant’s termination of employment does not appear to be linked to his
disability; and
·
given all
of the circumstances of the complaint, further inquiry by the Canadian Human
Rights Tribunal is not warranted.
[7]
The
above decision was based on an Investigator’s Report which recommended the dismissal
of Mr. Tutty’s complaint as unfounded. In particular, the Investigator concluded
that MTS had fulfilled its obligation to accommodate Mr. Tutty’s medical
disability and that the termination of his employment was unrelated to his
health status.
[8]
The
record establishes that the Investigator conducted a thorough review of the
available evidence including interviews with Mr. Tutty and
Mr. Hathaway and a review of over 250 pages of documentary evidence and
argument. Among other things the Investigator made the following findings or
observations:
·
The
requirement to travel, work overtime and occupy a stressful position had an
adverse effect on Mr. Tutty due to his medical disability.
·
MTS
acknowledged the need for accommodation which included time off and a gradual
return to work.
·
Mr. Tutty’s
legal counsel was asked to produce medical information to substantiate his
employment restrictions after July 2008 but nothing was provided to the
Investigator.
·
MTS
had offered Mr. Tutty continued employment but it was refused because of
the requirement for travel and overtime and because it constituted a demotion.
·
Mr. Hathaway
substantiated the steps taken by MTS to accommodate Mr. Tutty’s medical
disability.
·
The
May 21, 2008 medical report made no mention of travel or overtime restrictions
and Mr. Tutty provided no additional medical information to verify his
alleged restrictions after July 2008.
·
MTS
had fully accommodated Mr. Tutty by continuing to pay his salary in the
face of the disability insurer’s denial of his claim, by hiring Mr. Hathaway
and by implementing the recommended gradual return to work plan;
·
MTS
did not appear to have treated Mr. Tutty in an adverse differential
manner;
·
Documentary
evidence provided by MTS indicated that the decision to abolish Mr. Tutty’s
position was made in or around May 2008 and appeared unrelated to Mr. Tutty’s
disability. This evidence was not rebutted by Mr. Tutty.
·
The
evidence indicated that, prior to the termination of Mr. Tutty’s
employment, he was offered a position for which he was qualified with full salary
protection. The evidence further suggests that although the complainant was
not considered for a senior management position in Human Resources, he did not
appear to be qualified for that position.
·
The
evidence suggests that MTS terminated Mr. Tutty’s employment because his
position had been abolished due to a re-organization and because he would not
accept the position offered to him to avoid his dismissal.
[9]
The
Commission invited the parties to comment on the Investigator’s Report and they
did so. The Commission considered the further submissions and dismissed
Mr. Tutty’s complaint.
Issues
[10]
Did
the Commission err in its assessment of the evidence?
[11]
Was
the Commission’s investigation fair, thorough and complete?
Analysis
[12]
The
Commission’s screening function under s 44 of the Act has been compared to the
role of a judge presiding over a preliminary inquiry. The role was described
by the Supreme Court of Canada in Cooper v Canada (Human
Rights Commission), [1996] 3 S.C.R. 854, 140 DLR (4th) 193 at para 53
as follows:
53 The Commission is not an
adjudicative body; that is the role of a tribunal appointed under the Act. When
deciding whether a complaint should proceed to be inquired into by a tribunal,
the Commission fulfills a screening analysis somewhat analogous to that of a
judge at a preliminary inquiry. It is not the job of the Commission to
determine if the complaint is made out. Rather its duty is to decide if, under
the provisions of the Act, an inquiry is warranted having regard to all the
facts. The central component of the Commission's role, then, is that of
assessing the sufficiency of the evidence before it. Justice Sopinka emphasized
this point in Syndicat des employés de production du Québec et de L'Acadie
v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p.
899:
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.
[Emphasis added]
[13]
In
screening complaints, the Commission relies upon the work of an investigator
who typically interviews witnesses and reviews the available documentary
record. Where the Commission renders a decision consistent with the recommendation
of its investigator, the investigator’s report has been held to form a part of
the Commission’s reasons: see Sketchley v Canada (Attorney General), 2005
FCA 404, [2006] 3 FCR 392 at para 37.
[14]
As
noted in the above authorities, the Commission’s decision to dismiss or refer a
complaint inevitably requires some weighing of the evidence to determine if it
is sufficient to justify a hearing on the merits. It is this aspect of the
process that has been said to require deference on judicial review. Deference
is not required, however, in the context of a review of the fairness of the
process including the thoroughness of the investigation. For such issues the
standard of review is correctness.
[15]
Mr. Tutty
argues that the Investigator wrongly concluded that MTS was unaware of the need
for continuing accommodation measures after July 2008. Two passages from the
Investigator’s Report Mr. Tutty relies on are the following:
19. The respondent states that it
is unaware of the complainant’s need for accommodation beyond July 21, 2008 and
that no further accommodation needs were identified by its Return to Work
Coordinator beyond that date.
[…]
24. The respondent reiterates that
it was unaware of the complainant’s need for accommodation beyond July 21, 2008.
In support of the argument that the
Investigator erred, Mr. Tutty points to several pieces of evidence that
were before the Investigator. According to Mr. Tutty, this evidence irrefutably
indicated that as of July 2008 the question of his ability to return to
unrestricted duties remained under review by his physician and, by the time he
was terminated, had not been determined.
[16]
The
essential problem with this argument is that the passages relied upon by Mr.
Tutty do not indicate that the Investigator made a finding that MTS was unaware
of the need for further accommodation. The passages in question are nothing
more than restatements of the MTS argument and nowhere in the Report are they
adopted by the Investigator. The only point made by the Investigator on this
issue was that Mr. Tutty had failed to produce further medical evidence to
substantiate his inability to work overtime or to travel after July 2008.
The record indicates that this point was not contested by Mr. Tutty and
that his counsel had undertaken but failed to provide this evidence.
[17]
There
is no doubt that the Investigator was well aware that the extent of Mr. Tutty’s
capacity was an open issue both at the time of his termination and later during
the Commission’s investigation. This is verified by the Investigator’s
acknowledgment of Mr. Hathaway’s evidence that Mr. Tutty’s travel
restriction “was never reassessed during the gradual return to work period”. Indeed,
there were no material factual disputes between the parties that required
resolution in order to assess the adequacy of the accommodation measures
employed by MTS or to determine the rationale for Mr. Tutty’s
termination. It was acknowledged by everyone that MTS had accepted
Mr. Tutty’s medical disability at face value, and had put in place a
gradual return to work plan that was supervised by Mr. Hathaway. Although
Mr. Tutty had claimed to the Investigator that MTS had not continued to
pay his salary during his medical leave, he now concedes that was incorrect and
MTS had continued to pay him. It is also undisputed that before Mr. Tutty
was terminated he was offered a new position at the same salary but with
reduced responsibilities. Mr. Tutty refused that offer because it was a
demotion and because he assumed that MTS would not continue to respect his
travel and overtime restrictions. This is the essential factual foundation for
the Commission’s conclusions.
[18]
Mr. Tutty’s
similar complaint about para 33 of the Investigator’s Report is equally
unfounded. That passage from the Report was also the Investigator’s reiteration
of MTS’s argument and did not represent a finding that Mr. Tutty was not
medically disabled. Indeed the premise that underlies the entirety of the
Investigator’s analysis is that Mr. Tutty was disabled and required
accommodation. The point that MTS was apparently advocating was only that the
disability insurer had denied Mr. Tutty’s claim to benefits because it had
concluded that his condition did not fulfill the definition of disability in
the insurance contract. Clearly, MTS accepted that Mr. Tutty was disabled
for its corporate purposes because it paid his salary and adopted a graduated
and supervised plan to return him to work. This point was obviously understood
by the Investigator and no serious argument could be advanced by Mr. Tutty
that the actions of MTS were not meaningful forms of accommodation.
[19]
The
Investigator found that the measures adopted by MTS were sufficient to
accommodate Mr. Tutty’s medical disability and that he had not been
treated in an adverse differential manner. This was a conclusion that was
reasonably open on the evidence before the Investigator and the Commission and
it cannot be successfully challenged on judicial review.
[20]
Mr. Tutty
also complains that the Investigator overstepped her authority by conclusively
deciding the legal merits of his claim and by relying upon the fact that his
disability insurance claim had been denied. According to Mr. Tutty, a
human rights investigation is limited to factual matters and cannot delve into
issues of law or rely upon irrelevant matters.
[21]
I
do not accept Mr. Tutty’s assertions that matters of legal interpretation
are outside of the Commission’s authority. An investigation carried out under s
43 of the Act is intended to provide a foundation for the Commission’s decision
about whether a complaint warrants further inquiry. This is usually a fact-laden
exercise but inevitably it involves the application of evidence to the
applicable legal principles: see Sketchley, above, at para 77. It is
well established that this is a screening exercise involving issues of mixed
fact and law. Even if it is correct that a human rights investigation is
purely a fact-finding exercise it is of no legal significance if the
Investigator goes further provided that the Commission is the final arbiter of
whether the matter ought to proceed. I can identify no misapprehension by the
Commission about the role it was undertaking in this case.
[22]
I
also do not agree that the Investigator erred in her approach to the evidence
concerning Mr. Tutty’s disability insurance claim. The weight of the
evidence clearly supported the Investigator’s finding that MTS had stepped in
to pay Mr. Tutty’s salary when the disability insurer refused his claim.
This had nothing to do with whether Mr. Tutty was actually disabled and
the Investigator did not use it for that purpose. It was only relied upon by
the Investigator as some evidence of accommodation. Furthermore, Mr. Tutty
cannot reasonably complain about the Investigator’s approach to the disputed
evidence on this point when he failed to produce available evidence to
corroborate his position.
[23]
Mr. Tutty
argues that this investigation was inadequate and that, by relying upon it, the
Commission breached the duty of fairness. The legal standard by which the
fairness of a human rights investigation is to be measured was discussed by the
Court in Sketchley, above, and, in particularly, in the following
passages:
112 It is clear that a duty of
procedural fairness applies to the Commission's investigations of individual
complaints, in that the question of "whether there is a reasonable basis
in the evidence for proceeding to the next stage" (SEPQA, supra at
para. 27) cannot be fairly considered if the investigation was fundamentally
flawed. As the Supreme Court of Canada noted in SEPQA, supra, "[i]n
general, complainants look to the Commission to lead evidence before a tribunal
appointed under s. 39 [now s. 49], and therefore investigation of the complaint
is essential if the Commission is to carry out this role" (para. 24). This
same consideration -- the indispensable nature of the investigation in the
Commission's handling of each individual complaint -- applies equally to an
investigation undertaken prior to dismissal of a complaint under section
44(3)(b). Where a proper inquiry into the substance of the complaint has not
been undertaken, the Commission's decision based on that improper investigation
cannot be relied upon, since a defect exists in the evidentiary foundation upon
which the conclusion rests (Singh, supra at para. 7).
[…]
120 In Slattery, supra, the
Applications Judge considered the degree of thoroughness of investigation
required to satisfy the rules of procedural fairness in this context. He noted
the "essential role that investigators play in determining the merits of
particular complaints" (para. 53), and also the competing interests of
individual complainants and the administrative apparatus as a whole (para. 55).
He concluded as follows:
56 Deference must be given to
administrative decision-makers to assess the probative value of evidence and to
decide to further investigate or not to further investigate accordingly. It
should only be where unreasonable omissions are made, for example where an
investigator failed to investigate obviously crucial evidence, that judicial
review is warranted...
57 In contexts where parties have
the legal right to make submissions in response to an investigator's report,
such as in the case at bar, parties may be able to compensate for more minor
omissions by bringing such omissions to the attention of the decision-maker.
Therefore, it should be only where complainants are unable to rectify such
omissions that judicial review would be warranted. Although this is by no means
an exhaustive list, it would seem to me that circumstances where further
submissions cannot compensate for an investigator's omissions would include:
(1) where the omission is of such a fundamental nature that merely drawing the
decision-maker's attention to the omission cannot compensate for it; or (2)
where fundamental evidence is inaccessible to the decision-maker by virtue of
the protected nature of the information or where the decision-maker explicitly
disregards it.
121 Weighing the Baker
factors, I agree that this is an appropriate description of the content of
procedural fairness in this context.
[24]
Mr. Tutty
says that the Investigator ought to have interviewed a representative from MTS
and re-interviewed Mr. Hathaway. According to Mr. Tutty, if the
Investigator had done so she would not have misinterpreted the evidence about
his ongoing employment limitations. The fundamental problem with this argument
is that there is nothing in the Investigator’s Report to show that she
misunderstood Mr. Tutty’s situation. She did not conclude that his
condition had been fully resolved but only that MTS had adequately accommodated
his circumstances up to the point of his termination for legitimate business
reasons.
[25]
It
is at least implicit in the Commission’s decision that MTS had no further
accommodation obligation to Mr. Tutty once he had rejected its offer of
new employment and his position was eliminated. So long as the Investigator
was satisfied that the termination of Mr. Tutty’s employment was unrelated
to his disability it was of no consequence that his medical status had not yet
been reassessed or that his return-to-work program had not yet come to its
conclusion. An employer’s duty to accommodate does not, afterall, require that
it hold a legitimate corporate reorganization in abeyance pending the
resolution of an affected employee’s disability. I would add that the
responsibility to accommodate does not rest solely with an employer: see Central Okanagan School
District No. 23 v Renaud, [1992] 2 S.C.R. 970, 95 DLR (4th) 577. The
affected employee must remain open to reasonable workplace adjustments
including the prospect of taking a position of different or reduced
responsibility.
[26]
In
this case, Mr. Tutty turned down an offer of new employment because he
considered it to be a demotion (albeit at the same salary) and because it
required overtime and travel. It was open to the Investigator to take Mr.Tutty’s refusal into
account. In the face of the elimination of his position, Mr. Tutty could
only demand further accommodation for his apparently unresolved limitations if
he accepted a new position while maintaining that he continue in his yet to be
completed return-to-work plan. In the face of a legitimate business
reorganization, Mr. Tutty had no special “right” to be maintained in his
existing position simply because the accommodation he was receiving had not yet
run its course. Furthermore, inasmuch as he claimed to be unable to fulfill
the demands of his old position, Mr. Tutty was in no position to complain that
the offer of continued employment came with reduced responsibilities.
Mr. Tutty’s refusal to accept new employment was, in the human rights
context at least, a highly relevant factor in the assessment of the accommodation
question.
[27]
Mr. Tutty
had also initially disputed the assertion by MTS that it had voluntarily
continued his salary notwithstanding the disability insurer’s denial of the
claim. As the Investigator noted and as the record indicates, Mr. Tutty had
received a letter of denial from his disability insurer but, despite a request
from the Investigator on December 8, 2009 and an assurance from
Mr. Tutty’s counsel to follow this up, nothing was provided to corroborate
Mr. Tutty’s evidence. This, too, was a relevant point because MTS
maintained that it had substantially accommodated Mr. Tutty by continuing
to pay his salary when it had no employment obligation to do so. According to
a letter from MTS’s counsel to the Investigator dated November 25, 2009, this
was also an issue that had been directly addressed during the discovery process
in Mr. Tutty’s collateral wrongful dismissal action. Mr. Tutty was
asked to waive the implied undertaking of confidentially so that this evidence
and other potentially relevant evidence could be produced to the Investigator
but, inexplicably, he refused. The fact that Mr. Tutty has now conceded
the correctness of MTS’s position on this point does not extinguish it as a
live issue before the Investigator and one for which an adverse inference could
be drawn.
[28]
Although
Mr. Tutty complains that the Commission’s investigation was inadequate,
the record discloses that he was not particularly forthcoming in producing
evidence which could have contradicted his allegations. For example, the
Investigator noted an unfulfilled request to Mr. Tutty’s counsel for
medical verification of the continuing need to limit Mr. Tutty’s overtime
and travel after he returned to full-time hours in July 2008. This was an
important issue for the Investigator because, as she noted in her report, the
second medical report from Mr. Tutty’s physician in May 2008 made no
mention of ongoing concerns about travel or overtime. Nevertheless, there is
nothing in the record to show that this request was ever satisfied. At the
same time, the Investigator had evidence from Mr. Hathaway confirming that
he had spoken with Mr. Tutty throughout his return to work and Mr. Tutty
“was doing well”. The Investigator’s interview notes with Mr. Hathaway
also state that, although Mr. Tutty’s travel restriction had not been
reassessed, MTS had accommodated his needs at least up to the point of his
termination.
[29]
As
I noted in Maciel v Canada Revenue Agency, 2007 FC 244, 310 FTR 82 no
human rights investigation will ever be perfect. There is almost always
another witness who could have been interviewed or another question that might have
been asked. But the Commission does not have unlimited resources and must be
able to place reasonable limits over its investigative functions: see Herbert
v Canada, 2008 FC
969, 169 ACWS (3d) 393, at para 18. The test is not one of perfection nor does
it require that every line of enquiry be exhausted. This investigation was
thorough and more than sufficient to determine what had happened. That
Mr. Tutty is not in agreement with the outcome and can point to a
different and more favourable interpretation of the evidence is not a basis for
judicial review.
[30]
While
Mr. Tutty contested the assertion by MTS that his termination was the result
of a legitimate business reorganization, he offered nothing beyond speculation
to contradict the documentary evidence provided by MTS to corroborate its
position. Mr. Tutty’s only counter to the Commission and to the Court is
that he was not privy to any evidence which might have supported his
suspicions. But the fact that he had no evidence does not establish an error
on the part of the Investigator who reasonably relied upon the evidence that
was produced. I do not agree with Mr. Tutty’s argument that a tribunal
hearing ought to proceed simply as a means of discovery and as a supplement to
the Investigator’s fact-finding role.
[31]
Mr. Tutty
also asserts that the Commission must have overlooked his response to the
Investigator’s report because its decision fails to mention any of the points
he had raised. There is nothing, however, in those final submissions that had
not already been considered by the Investigator and the Commission did not err
by failing to explicitly comment on its contents. It was, in short, a bare
re-argument of the case which was obviously insufficient to convince the
Commission that its investigator’s findings were unwarranted.
Conclusion
[32]
In
the result, this application is dismissed with costs payable to MTS in the
amount of $2,500.00 inclusive of disbursements.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is dismissed with costs payable to
MTS in the amount of $2,500.00 inclusive of disbursements.
“ R. L. Barnes ”
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