Date: 20130521
Docket: T-1734-11
Citation: 2013
FC 520
Ottawa, Ontario,
May 21, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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BRONWYN CRUDEN and THE CANADIAN
HUMAN RIGHTS COMMISSION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Ms.
Cruden, an employee of the Canadian International Development Agency [CIDA], wished
to be posted to Afghanistan. CIDA refused to post her to Afghanistan partly on the basis of a medical assessment done by Health Canada [HC] that determined
that because of her diabetes, she was medically unfit for that positing. Ms.
Cruden filed complaints of discrimination against CIDA and HC with the Canadian
Human Rights Commission.
[2]
In
this application, CIDA and HC are asking the Court to quash the decision of the
Canadian Human Rights Tribunal [Tribunal] which found that they had
discriminated against Ms. Cruden on the basis of disability, contrary to the Canadian
Human Rights Act, RSC 1985, c H-6 [CHRA]. The relevant provisions
of the CHRA are attached to these reasons as Appendix A.
[3]
Although
the Tribunal found that because of her diabetes it would have caused CIDA undue
hardship to accommodate Ms. Cruden in Afghanistan, it upheld her complaints against
HC (under paragraph 7(b) of the CHRA) and CIDA (under paragraphs 7(b)
and 10(a) of the CHRA) based on its finding that there were “procedural”
shortcomings in the accommodation process.
[4]
With
respect to CIDA, the central issue in this application is whether, in their
employment, employees enjoy – apart from the “substantive” right to be
accommodated by their employers up to the point of undue hardship – a separate “procedural”
right to accommodation that can be independently breached and attract remedies
under the CHRA even when their employer cannot accommodate the
disability without undue hardship.
[5]
In
the decision under review, the Tribunal also found that the application of a
set of medical assessment guidelines led to, or significantly contributed to
HC’s negative assessment of Ms. Cruden’s medical suitability to be posted to Afghanistan. The Tribunal found these medical assessment guidelines were discriminatory
because they did not permit individualized assessments, notwithstanding that
Ms. Cruden’s assessment under these guidelines was ultimately consistent with
the substantive duty to accommodate.
[6]
With
respect to HC, the central issue in this application is whether Ms. Cruden can
be said to have suffered adverse differentiation under paragraph 7(b) of CHRA
by the application of guidelines HC developed, even though the result of
the application of these guidelines to her accords with the decision of the
Tribunal that she could not be accommodated in the job she sought.
[7]
For
the reasons that follow, with the exception of the finding that the Afghanistan
Guidelines have the potential to be discriminatory on a forward-looking
basis, I find that the Tribunal’s decision is unreasonable and must be set
aside because having found that Ms. Cruden’s disability could not be
accommodated without undue hardship, her human rights complaint had to be
dismissed. The Tribunal had no residual jurisdiction to make the findings and
issue the remedial actions it did.
Background
[8]
CIDA
manages Canada's international development assistance program. It has a
corporate section and a programming section. Ms. Cruden, who has a background
in communications, joined CIDA’s corporate section in 2007 in the Results and
Accountability section of the Afghanistan Task Force. Ms. Cruden wished to
become involved in development work in the field, which falls within CIDA’s programming
section. Given her background and lack of field experience, that transition
was problematic. She planned to use her experience and position in the
corporate section to obtain a field posting to Afghanistan. Postings to Afghanistan were possible, even without previous experience in the field or background because it
was not a sought-after posting due to the extremely difficult and war-like
conditions in Afghanistan.
[9]
As
a result of those conditions, persons posted to Afghanistan by CIDA were given periods
of leave during which others replaced them on temporary duty assignments. Ms.
Cruden was on such a temporary duty assignment in Kabul, Afghanistan, from August 6, 2007, to September 7, 2007. She received no medical assessment prior to
this temporary duty assignment and completed it without incident.
[10]
On
January 20, 2008, Ms. Cruden commenced a second temporary duty assignment with
the Kandahar Provincial Reconstruction Team in Kandahar, Afghanistan. Again, she did so with no prior medical assessment. It was to be a six-week
assignment; however, on February 11, 2008, Ms. Cruden had a hypoglycemic
incident while sleeping. A co-worker alerted a Canadian Forces medical officer
who administered intravenous glucose. Ms. Cruden was given medical assistance
at the Kandahar Air Field [KAF], and it was recommended by the doctors there
that she be repatriated to Canada. Although Ms. Cruden informed CIDA that she
disagreed with the assessment and wished to complete her assignment, CIDA ended
her temporary duty assignment and returned her to Canada.
[11]
Ms.
Cruden had previously expressed an interest in several one-year postings that were
to become available in Afghanistan later in 2008. Soon after her return to Canada, to support her desire to be posted, Ms. Cruden obtained a letter from her physician, Dr.
Arnout, who wrote that she was “mentally and physically capable of continuing
her work in Afghanistan.” In order to ascertain Ms. Cruden's fitness to be
re-deployed to Afghanistan, CIDA requested that Ms. Cruden be medically assessed
by HC.
[12]
As
a result of Ms. Cruden’s medical incident in Afghanistan, her need for medical
intervention, and her removal to Canada, Major Robin Thurlow of the Canadian
Expeditionary Force Command, on February 26, 2008, expressed his concern that
no pre-deployment medical assessments were conducted for deployments to Afghanistan lasting less than one year.
[13]
As
a result of Ms. Cruden’s medical incident in Afghanistan, a HC medical officer wrote
a new section for HC’s Occupational Health Assessment Guide [OHAG] to address
postings to Afghanistan, entitled “Medical Evaluation Guidelines for Posting,
Temporary Duty or Travel to Afghanistan (Hardship Post level 5 with Hostility
Bonus)” [the Afghanistan Guidelines]. A first draft of the Afghanistan
Guidelines was circulated on March 18, 2008. The following statement in the
Afghanistan Guidelines under the heading “Absolute medical requirements” played
a significant role in these proceedings:
Employees
do not meet the medical requirements for assignment or posting: […] If they
have a medical condition that would likely lead to a life-threatening medical
emergency if access to prescribed medication and/or other treatment is
interrupted for a short period of time.
[14]
The
same day, HC conducted a pre-deployment medical assessment of Ms. Cruden and
five of its physicians unanimously agreed that Ms. Cruden was not fit to be
redeployed to Afghanistan. Roughly three weeks later, HC wrote to CIDA with its
recommendation that Ms. Cruden not be posted to Afghanistan. Although HC acknowledged
in its letter to CIDA that Dr. Arnout submitted information indicating that Ms.
Cruden’s condition was currently stable, it reasoned that because she was at
risk of destabilization due to her condition, she might require sophisticated
care or treatment not available at that post.
[15]
On
April 10, 2008, CIDA informed Ms. Cruden that she had not been selected for the
position of Director of Kandahar, one of the deployments for which she had
recently applied.
[16]
Ms.
Cruden had also applied for the position of Manager of Results and
Accountability, a position in Canada which required periodic travel to Afghanistan. There was a concern within CIDA about this travel requirement because,
following HC’s assessment, it would remove Ms. Cruden from the competition for
this position.
[17]
On
April 16, 2008, CIDA informed Ms. Cruden that HC had recommended against her redeployment
to Afghanistan. Ms. Cruden sought more information as to the respective roles
and responsibilities of CIDA and HC and was informed by HC that while it had
responsibility to provide recommendations based on its health assessments, the
ultimate decision concerning her deployment to Afghanistan rested with CIDA.
Ms. Cruden then asked CIDA to exercise its discretion and allow her to be
deployed to Afghanistan. On May 21, 2008, CIDA decided that it would follow
HC’s recommendation that Ms. Cruden was not medically fit for a deployment to Afghanistan. In order to permit Ms. Cruden to compete for the position of Manager of
Results and Accountability, however, the requirement to travel to Afghanistan was removed.
[18]
Ms.
Cruden then asked CIDA if there had ever been a situation where it did not
follow HC’s recommendation and also inquired as to whether CIDA would ask HC for
an advance fitness assessment for its future overseas postings.
[19]
CIDA’s
response was that it followed HC’s assessments in almost all cases because its
managers, not being medically trained, were not “in any position to re-evaluate
[HC’s] determination.” It did confirm that it is ultimately CIDA’s managers
who have the final say on posting assignments, “taking into account both the
situation at the post and the medical fitness of the employee.” Lastly, CIDA
declined to issue advance fitness assessment requests on Ms. Cruden’s behalf
since the assessments were only valid for six months and would be of little or
no use for speculative future postings.
[20]
On
June 22, 2008, Ms. Cruden emailed CIDA telling it that she had spent the
weekend reflecting on its strategy to address her situation “via an
accommodation route,” and stated:
I am not a “blonde” – I can clearly see that the
accommodation route is the most viable strategy as very few people are able to
see it as discrimination. What you have to understand is that I have never
allowed myself to accept that I am anything but “normal”. That strategy
requires me to not only accept publicly that I am “disabled”, but that I also
require someone else to accommodate me in some way in order for me to be able
to function. […]
As a result, I have decided to send this over to the
[Public Service Commission] and [Human Rights Commission] in case they are interested
in investigating it further and spend my own efforts on finding a new path for
myself.
[21]
On
August 26, 2008, departing from its earlier response on the issue of advance fitness
requests, CIDA wrote to Ms. Cruden saying that HC had indicated a willingness
to review countries where posting might be possible despite her diabetes.
[22]
On
September 25, 2008, Ms. Cruden met with a HC medical officer and provided the
officer with a list of nineteen countries given to her by CIDA that were
expected to have postings available in the near future. During this meeting,
Ms. Cruden also learned from the medical officer that it was possible to
request an internal review of her circumstances with HC’s Medical Advisory
Committee [HC-MAC]. She was later assured by HC that it would respect the
decision of the HC-MAC, whatever it might be. Accordingly, Ms. Cruden sought a
review by HC-MAC.
[23]
On
November 8, 2008, Ms. Cruden filed her complaints with the Commission that CIDA
and HC had discriminated against her in breach of the CHRA. The wording
of the complaints against CIDA and HC were identical:
I have been denied an assignment because of a
disability that does not affect my job performance and that requires no
accommodation, and no person or Agency has been willing to offer me any
assistance in light of this issue.
Note that this is now the third time in the some 27
years that I have been diabetic that I have had to face discrimination by the
Government. As a result, I am charging that discrimination against diabetics is
systemic in Canada and that the Human Rights Commission (HRC) should investigate
the matter more broadly.
[24]
The
conduct complained of by Ms. Cruden was (1) that she was not being considered
as an individual by the Afghanistan Guidelines, which created a blanket
prohibition against type 1 diabetics; and (2) CIDA’s refusal to re-post her to Afghanistan. As relief, Ms. Cruden sought a posting to Afghanistan, an apology from
certain individuals in CIDA and HC, and a ruling about “what form of
discrimination against diabetics is allowable.” As for “accommodation,”
although Ms. Cruden complained that at that point she had been waiting six
weeks for a response from HC regarding her list of nineteen countries, she
noted immediately thereafter that she was “not looking for accommodation.”
[25]
On
November 28, 2008, HC responded to Ms. Cruden concerning the possible nineteen
countries she had provided. HC had found that five were considered suitable,
five were considered unsuitable, and three were listed as missions with
concerns which would require individual assessment. For the remaining six
missions, it said that insufficient information had been received from the
responsible regional medical officer and that an addendum would follow. It
appears that neither HC or CIDA, or Ms. Cruden, followed up on the suitability
of the remaining six countries.
[26]
On
January 16, 2009, HC-MAC rendered its recommendation that Ms. Cruden undergo a
medical examination with an independent endocrinologist that would include a
review of her history, clinical status, and detailed reports on medical
conditions in Afghanistan. The HC-MAC further said that if the independent
medical endocrinologist was of the opinion that a posting to Afghanistan would not put her or others at risk, that it would sign off on her case as
meeting the medical requirements for this posting. However, if the independent
endocrinologist was of the opinion that a posting to Afghanistan was medically
inadvisable, HC’s recommendation would stand. On February 15, 2009, Ms. Cruden
informed HC that she would be willing to go through the medical exam
recommended by HC-MAC towards “midsummer” 2009. In fact, she chose not to undergo
that examination until September 22, 2009, when she was examined by Dr. Hugues
Beauregard, an independent endocrinologist in Montreal. HC sent Dr. Beauregard
Ms. Cruden’s history and a description of the available medical facilities in Afghanistan, and identified the questions it wanted Dr. Beauregard to answer.
[27]
In
his report dated September 29, 2009, Dr. Beauregard noted that Ms. Cruden faced
exposure to health risks slightly more elevated than non-diabetics even though
she effectively managed her condition of type 1 diabetes. He was of the
opinion that she was fit for deployment to Afghanistan due to the fact that the
health risks could be reduced to an “acceptable level” so long as she could
bring the equipment she needed, and she was fit without restrictions to work at
the Kandahar Air Field.
[28]
On
November 5, 2009, HC asked Dr. Beauregard to clarify the content of his report
taking into account the Afghanistan Guidelines. In its original request to Dr.
Beauregard it had stated: “We would ask that you take the document “Medical
Evaluation Guidelines for Posting, Temporary Duty, or Travel to Afghanistan”
into consideration when making your decisions, as we are required to use these
guidelines when making our decisions.”
[29]
On
November 19, 2009, Dr. Beauregard responded that the Afghanistan Guidelines
would make Ms. Cruden unfit for deployment:
Ms. Cruden is a type 1 diabetic and she needs
insulin to stay alive. If she goes into hypoglycaemia, she absolutely needs
carbohydrate immediately to recover, and if she is deprived of insulin, she
will develop ketoacidosis, go into a coma and will die after a certain number
of days (number that cannot be precisely determined, but probably represents a
“short period of time”).
It appears clear, considering the content of this
part of the document, that Ms. Cruden do [sic] not fulfil the medical
requirements stated.
Dr. Beauregard remained of the view
that Ms. Cruden could manage her diabetes in the prevailing conditions in order
to bring any risk within “acceptable levels:”
In my evaluation and recommendations, I focused on
the fact that she had the willingness and the ability to prevent those two
dramatic situations from occurring, but as in many situations, reaching a risk
free environment is not possible even if she is not posted in Afghanistan. In my recommendation, I refer to the concept of “acceptable risk”: By this I
mean that she is able to face the degree of risk involved in Afghanistan and to manage her diabetes in the conditions prevailing in that country.
[30]
CIDA
also sought further clarification from Dr. Beauregard concerning implications
for travel to remote areas. On November 24, 2009, Dr. Beauregard replied that
the risk of Ms. Cruden travelling was acceptable, as long as she could have
extra food and insulin to carry with her, but that he could not comment on the
risks inherent to the political instability of the area.
[31]
On
December 16, 2009, HC informed CIDA that Dr. Beauregard concluded that Ms.
Cruden did not meet the requirements of the Afghanistan Guidelines, but was
nevertheless fit to work and travel in Afghanistan if she (i) has access to
medication, testing equipment and backup supplies at all times; (ii) lives and
sleeps in a room with a person aware of her condition; and (iii) has extra food
and medication for travel. It concluded by saying that the final decision
whether or not to post Ms. Cruden to Afghanistan was CIDA’s.
[32]
On
September 24, 2009, Ms. Cruden had applied for three overseas postings for the
2010-2011 posting cycle: one in Afghanistan, one in Nepal, and one in Vietnam. On December 30, 2009, Ms. Cruden was advised that she was screened out of the Nepal competition because of her lack of experience, and from the Vietnam competition because she
ranked “low relative to [the other twenty-three] candidates.” On January 11,
2010, CIDA informed Ms. Cruden that in light of the information it received
from HC, no further consideration would be given to posting her to Afghanistan, unless there was a change in her medical condition.
[33]
Ms.
Cruden’s complaints against HC and CIDA were consolidated and heard by the
Tribunal over twelve days in January 2011. It heard testimony from eleven
witnesses. The Tribunal issued its decision and reasons on September 23, 2011:
Cruden v Canadian International Development Agency, 2011 CHRT 13. The
Tribunal divided its analysis into two parts: the complaint against HC and the
complaint against CIDA. The decision concludes with various remedies ordered
against both.
The Complaint
Against HC
[34]
The
Tribunal concluded that Ms. Cruden had established a prima facie case that
she “was adversely differentiated by HC’s assessment process and guidelines on
the grounds of her disability according to section 7(b) of the CHRA.” The
Tribunal’s reasoning in this regard can be found at paragraph 72 of its
reasons. In short, it found a prima facie case was established since
the Afghanistan Guidelines provided that “no one with a chronic medical
condition is allowed to be posted to Afghanistan;” Ms. Cruden has a chronic
medical condition, type 1 diabetes mellitus; “diabetes is encompassed by the
definition of disability in the CHRA;” and Ms. Cruden was prevented from being
posted to Afghanistan because of the application of the Afghanistan Guidelines
to her disability.
[35]
The
Tribunal reasoned that “[o]nce a prima facie case is established, the
onus then shifts to the respondent to provide a reasonable explanation that
demonstrates either that the conduct did not occur as alleged or was
non-discriminatory.” It found that HC had neither established that the conduct
complained of did not occur as alleged or was non-discriminatory: see
paragraphs 73 – 89 of the Tribunal’s reasons. The Tribunal noted several
procedural failings in the way HC dealt with Ms. Cruden’s case, including having
raised her expectations and its delay. The Afghanistan Guidelines were found
to be discriminatory because their wording and application had been “absolute”
or “mandatory” and thus, reasoned the Tribunal, did not permit “individualized”
assessments as is required by human rights law.
The Complaint
Against CIDA
[36]
The
Tribunal also concluded that Ms. Cruden had established a prima facie
case of discrimination against CIDA: “CIDA pursued a medical assessment
practice, pursuant to HC’s policies and guidelines, which deprived [Ms. Cruden]
of an employment opportunity on a prohibited ground of discrimination: her
disability. Therefore, a prima facie case of discrimination has been
established under section 10(a) of the CHRA.”
[37]
It
further found that she had “established that a distinction was made between her
and her co-workers on the basis of her disability by the application of the
Afghanistan Guidelines. This distinction was harmful to [Ms. Cruden’s] career
because she lost the opportunity to work and gain experience in Afghanistan,” this was “adverse differentiation” under paragraph 7(b) of the CHRA
and accordingly she had established a prima facie case of discrimination
against CIDA under that paragraph. Accordingly, it fell to CIDA “to prove that
these prima facie discriminatory practices were based on a bona fide
occupational requirement” [BFOR].
[38]
Section
15 of the CHRA provides that it is not a discriminatory practice “if any
refusal, exclusion, expulsion, suspension, limitation, specification or
preference in relation to employment is based on” a BFOR, the burden of
establishing which lies with the employer. For any such practice to be based
on a BFOR, it must be “established that the accommodation of the needs of an
individual or a class of individuals affected would impose undue hardship on
the person who would have to accommodate those needs, considering health,
safety and cost.”
[39]
The
Tribunal examined whether CIDA’s refusal to post Ms. Cruden because of her
medical condition was a BFOR using the tri-partite test articulated in British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3
SCR 3, at para 54 [Meiorin]:
1.
that
the employer adopted the standard for a purpose rationally connected to the
performance of the job;
2.
that
the employer adopted the particular standard in an honest and good faith belief
that it was necessary to the fulfilment of that legitimate work-related
purpose; and
3.
that
the standard is reasonably necessary to the accomplishment of that legitimate
work-related purpose. To show that the standard is reasonably necessary, it
must be demonstrated that it is impossible to accommodate individual employees
sharing the characteristics of the claimant without imposing undue hardship
upon the employer.
[40]
The
parties agreed that the first two elements of the Meiorin test were
met. As to the third element, the Tribunal reasoned as follows:
“[103] The analysis
at this [third] stage looks at "…first, the procedure […] which was
adopted to assess the issue of accommodation and, second, the substantive
content of either a more accommodating standard which was offered or
alternatively the employer’s reasons for not offering any such standard" (Meiorin
at para. 66). Therefore, I will examine, first, the procedure adopted by
CIDA to assess the complainant’s condition and possible accommodation and,
second, whether accommodating the complainant in Afghanistan would cause CIDA
undue hardship.”
[emphasis added]
[41]
The
Tribunal concluded that CIDA had not met its “procedural duty” to accommodate Ms.
Cruden for many reasons, including the following:
•
“CIDA
did not respond to [Ms. Cruden’s] initial request to exercise its discretion to
allow her to go to Afghanistan;”
•
“CIDA
did not inform [Ms. Cruden] of, nor were the CIDA officials who testified
familiar with, the procedures outlines in FSD9 [“Foreign Service
Directive 9 – Medical and Dental Examinations”], HC’s medical assessment
process or the OHAG;”
•
“CIDA
was actively implicated in the changes that were ultimately seen in the Afghanistan
Guidelines;”
•
“CIDA
did not lead evidence that it explored all reasonable accommodation measures at
the time of [Ms. Cruden’s] request. Although CIDA discussed removing the
travel requirements of her job [which it did], this did not address the
complainant’s need for operational field experience to advance her career.
When [Ms. Cruden] asked for a list of countries to which she could be posted,
it took CIDA over two months to determine that HC would take sufficient charge
of this determination. It took another two months for HC to determine that
insufficient information had been received with respect to six of the 19
countries, and that an addendum would follow once the information was
received. HC never provided the addendum and CIDA did not make efforts to
insure [sic] that an answer to this inquiry was provided;”
•
“CIDA
did not seek another independent medical opinion;”
•
“CIDA
did not attempt up to the point of undue hardship to ensure that the
complainant would obtain her second or third choice for a posting overseas;”
and
•
“CIDA
made attempts to accommodate [Ms. Cruden] but did not offer her any alternative
other than applying for other postings and a position in the Afghanistan task force in Ottawa without travel requirements;”
[42]
On
the other hand, the Tribunal concluded that accommodating Ms. Cruden in a
posting in Afghanistan would have caused CIDA “undue hardship:”
[117] There is sufficient evidence before me to
find that CIDA considered the possibility of implementing these conditions and
arrived at the conclusion that it was not possible. The evidence indicates
significant health and safety risks for the complainant in working in
Afghanistan, as well as safety risks for those fighting the war in Afghanistan
should they have to assist the complainant. For the following reasons, I
find that it would pose an undue hardship on CIDA to have to accommodate the
complainant in Afghanistan.
[emphasis added]
[43]
The
numerous reasons cited by the Tribunal in support of this conclusion included:
•
If
she “needed evacuation,” “[Ms. Cruden] would be in greater risk;”
•
“[I]t
was a challenge to have [Ms. Cruden] work inside the wire without any
travelling requirement because that meant other employees had to travel more to
compensate, which increased their exposure to the dangers in the area;”
•
“[Ms.
Cruden] would [be exposed] to increased stress, infections, and risks of injury
that require more medical attention for a person with type 1 diabetes;”
•
“Dr.
Dupré [“an endocrinologist expert on behalf of the Respondents”] … did not see
any possibility for accommodation. He wrote in his report concerning the risk
of a severe hypoglycaemic event, that it was inevitable for [Ms. Cruden];”
•
The
credible evidence of a Colonel (surgeon) and Major in the Canadian Forces with
operational experience in Afghanistan was that “the medical facilities in Afghanistan are limited and are operating at full capacity. […] and [a] commander may
curtail military operations if he is made aware that a facility is [operating
at or near full capacity] and would be unable to treat casualties;”
•
“There
are no Canadian medical facilities at the Canadian embassy in Kabul. Moreover,
there is no ambulance or 911 services [sic]. In any emergency
situation, a patient would require transportation by armoured car. The journey
may also be delayed due to conflict. Afghan hospitals are considered too
dangerous for western nationals;”
•
“[I]f
a person with type 1 diabetes gets shot there are additional risks to their
health. Risks of being injured or shot, even in the PRT [Provincial
Reconstruction Team compound], were said to be "real not slim" […]
[and] civilian employees posted in Afghanistan are under constant threat of
attack;”
•
“KAF
gets shelled fairly regularly […] [and] during [a nine month period] there were
70 rocket attacks on the KAF. At the time of the hearing of this case, Major
Thurlow testified that the KAF had recently suffered a rocket attack that
landed in the dining facilities, injuring several people and killing one
person;”
•
“The
PRT compound is also under threat of attack. […] "[F]irefights occur 300
to 400m away from the walls of the PRT, requiring employees to stay in
bunkers". […] [I]n 2009, everyone at the PRT was evacuated because of a
threat of a major attack;”
•
“The
constant threat of attack also impacts on medical evacuations. Medical
evacuations can be done either by armoured vehicle or by helicopter. Given the
dangers of travelling by vehicle, most medical evacuations are done by
helicopter. […] Each [helicopter] mission requires two helicopters to be
flown […]. One helicopter will land while the other provides protection.
According to Major Thurlow: […]"Interdiction is common – not unexpected.
These helicopters are shot at – all helicopters are shot at. If they are
flying around, they are shot at. It’s a dangerous job";” and
•
“Major
Thurlow added that Improvised Explosive Devices (IED) constitute another danger
faced by soldiers performing medical evacuations. On one occasion, while
making their way back to the helicopter after placing a casualty on a
stretcher, two stretcher bearers became amputees when they stepped on an IED;
[44]
The
Tribunal continued with twenty additional, safety-related paragraphs on its way
to concluding that accommodating Ms. Cruden in Afghanistan would have caused
not only CIDA, but also Canadian Forces personnel “undue hardship” in the circumstances.
Nevertheless, the Tribunal held that:
CIDA has breached its procedural duty to explore all
reasonable accommodation measures for [Ms. Cruden] and, as a result, a
violation of sections 7 and 10 of the CHRA has been made out against
CIDA. For its part, HC developed the Afghanistan Guidelines, which do
not reflect equality between all members of society. In the course of
employment, [Ms. Cruden] suffered adverse differentiation on the basis of her
disability by the application of the Afghanistan Guidelines. On this
basis, HC has violated section 7(b) of the CHRA. Therefore, both
complaints are substantiated and the Tribunal will consider appropriate
remedial action to eliminate these discriminatory practices.
Remedies
Overtime,
Bonuses, etc.
[45]
Ms.
Cruden claimed considerable compensation for overtime, bonuses, and allowances
that she says she would have earned had she been posted to Afghanistan. The Tribunal did not allow these expenses in light of its finding that posting Ms.
Cruden to Afghanistan would have caused CIDA undue hardship.
[46]
On
the other hand, the Tribunal found that “were it not for the adverse
differential treatment that [Ms. Cruden] received during the whole medical
assessment and posting process,” she “would have obtained a position in another
country” and it was “reasonable to assume that she would have been at a PM-06
level.” Although the Tribunal did “not have sufficient material before [it] to
quantify [the amount she would have earned],” it decided to “remain seized of the
matter” until the parties could make submissions as to the appropriate quantum.
Pain
and Suffering
[47]
Ms.
Cruden claimed the maximum allowable amount for pain and suffering – $20,000.
The Tribunal awarded her $5,000 from each respondent because “of the way [Ms.
Cruden’s] situation was handled by both respondents.”
Wilful
and Reckless Discrimination
[48]
Ms.
Cruden claimed the maximum allowable amount for wilful and reckless
discrimination – $20,000. The Tribunal conceded that Ms. Cruden cited no case
law nor made extensive submissions to support her claim; nevertheless it awarded
Ms. Cruden $5,000 from each respondent because:
•
“HC
told [Ms. Cruden] they would accept the independent medical opinion whatever it
may be. They were aware of what they said and modified their approach when the
opinion was not what they expected;”
•
“[HC]
also worded the "Absolute Medical Requirements" and admitted at the
hearing that it was a poor choice of words and could mislead someone doing an
assessment;”
•
HC
did not try to correct the wording of the guidelines when they submitted the
information to Dr. Beauregard, nor did they give him section one of the OHAG,
which says that the guidelines are instructive not mandatory;”
•
“HC
knew what they were doing;”
•
“On
its part, CIDA refused to respond to [Ms. Cruden’s] email requesting it to
exercise its discretionary power to post her to Afghanistan;” and
•
“CIDA
cannot ignore the fact that no additional information was given to [Ms. Cruden]
on other overseas postings.”
Sick
Leave Credits
[49]
The
Tribunal ordered the reinstatement of 55 days sick leave credit to reimburse Ms.
Cruden for the sick leave she took in the summer of June 2009 because of the
discrimination of which she complained.
Vacation
Day Credits
[50]
Ms.
Cruden sought reinstatement of “vacation time credits totalling 15 days taken
in order to prepare for and attend proceedings related to her complaint.
Pursuant to paragraph 53(2)(c) of the CHRA, [the Tribunal] order[ed] the
reinstatement of the 15 vacation day credits.”
Appointment
and Deployment
[51]
Ms.
Cruden was “seeking an appointment to a position at the EX-01 level within
CIDA, pursuant to paragraph 53(2)(b) of the CHRA [and also] deployment
to an operational position within CIDA’s Geographic Programs Branch (GPB),
pursuant to paragraph 53(2)(b) of the CHRA and requests to be posted to
a family-friendly country of her choice.”
[52]
The
Tribunal concluded that “if it were not for her disability she would have
obtained a posting to Afghanistan or elsewhere because of her abilities to perform
the duties required,” and therefore it ordered that Ms. Cruden be deployed “in
the GPB at the PM-06 level” and that CIDA “work with Ms. Cruden to post her in
a friendly country within her top three choices where there are appropriate
medical facilities and no medical restrictions that she will face.”
Personnel
File
[53]
Ms.
Cruden asked that any reprimand related to the pursuit of her claim be removed
from her file. The Tribunal declined because the behaviour and comments she
made about CIDA management which let to the reprimand were not “done within
appropriate boundaries.”
Legal
Fees
[54]
Ms.
Cruden sought compensation for legal fees in the amount of $2,712.68. Citing Canada
(Attorney General) v Mowat, 2009 FCA 309, wherein the Federal Court of
Appeal held that the Tribunal did not have the authority to make an award of
costs under the provisions of the CHRA, the Tribunal declined to award
legal costs.
Systemic
Remedies
[55]
The
Tribunal reasoned that the Afghanistan Guidelines “must be clarified to
ensure that their interpretation does not lead doctors in excluding every
person with a chronic condition. […] [and that] [t]he wording of the
"Absolute medical requirements" should be changed to reflect a high
medical standard for posting to Afghanistan, while not instituting a complete
ban.” Accordingly, the Tribunal ordered:
(a)
That
HC amend the OHAG to remove any references in the Afghanistan
Guidelines to "Absolute medical requirements", and instead adopt
an approach that simply lists factors that are to be considered as part of an
overall individualized assessment, with an express recognition that no single
factor will necessarily be determinative;
(b)
That
HC amend its policies, or create a new policy, requiring that in cases where a
treating specialist physician provides an opinion on employee fitness that
differs from the initial opinion of the OHMO, and HC does not agree with the
specialist, HC will:
(i) consult with the
treating specialist to explore the bases for the different opinions;
(ii) if still not in
agreement, promptly offer to send the employee for an independent medical
examination by a specialist in the appropriate field;
(iii) if dissatisfied with the
independent specialist, consult with the independent specialist to explore the
bases for the different opinions; and
(iv) ultimately, if no resolution has
been reached, place before the employing department full, objective and
impartial descriptions of all the recommendations as to fitness rendered by the
various physicians who were consulted during the process;
(c)
That
HC and CIDA amend their policies, or create a new policy, to clearly state that
the CHRA and the “duty to accommodate to the point of undue hardship”
must be considered and applied whenever recommendations or decisions are being
made with respect to the medical fitness of civilian employees for postings,
regardless of where those postings might be;
(d)
That
CIDA amend its policies, or create a new policy, so as to put a mechanism in
place to ensure that all employees who apply for postings (and for temporary
duty assignments, in the case of Afghanistan) are first made aware:
(i) that all successful
candidates will be required to undergo a pre-deployment medical assessment by
HC, or by another provider if CIDA deems appropriate;
(ii) that if they receive a
negative assessment, they will have the right under FSD9 to submit a
written opinion from a treating physician to HC which will then provide a
reassessment to CIDA, possibly after offering the employee an opportunity to
undergo an independent medical examination;
(iii) that if HC does not request an
independent medical opinion, CIDA may itself offer the employee an opportunity
to undergo an independent medical examination, the results of which will be
provided to HC for further assessment; and
(iv) ultimately, the final decision
about whether to put a candidate forward for head of mission concurrence lies
with CIDA, and not with HC or any other department.
(e)
That
HC provide training to all managers and OHMOs involved in conducting
pre-deployment medical assessments on:
(i) The application of the
FSD9 to their work; and
(ii) The application of the
CHRA to their work, including insofar as it relates to legal principles
relating to the assessment of health and safety risks as a possible form of
undue hardship;
(f)
That
CIDA provide training to all managers and staff involved in making decisions
about postings and temporary duty assignments on:
(i) The application of the
FSD9 to their work; and
(ii) The application of the
CHRA to their work, including insofar as it relates to the assessment of
health and safety risks as a possible form of undue hardship.”
The steps outlined in paragraph (a)
to (f) were to be completed within one year of the decision. The Tribunal
remained seized until the parties confirmed that the terms of its order, or
further orders, had been implemented.
[56]
Although
not part of the application before the Court, it is noted that clarification
was requested with regards to the implementation of the order that CIDA deploy
Ms. Cruden to a post in a friendly country within her top three choices. That
clarification was rendered by decision dated March 1, 2012. It does not impact
the issues before the Court.
Issues
[57]
CIDA
and HC identified the following eight issues in their memorandum:
i)
What
is the applicable standard of review?
ii)
Was
it reasonable for the Tribunal to find a breach of the CHRA on the basis
of a failure to comply with a “procedural duty” to accommodate?
iii)
Was
it reasonable for the Tribunal to find that the Afghanistan Guidelines
were discriminatorily applied to the Respondent?
iv)
Was
it reasonable to order that the complainant be deployed to a PM-6 position in
the Geographic Programs Branch within CIDA and be posted to a country of her
choice?
v)
Was
it reasonable to order prescriptive remedies against Health Canada and CIDA as to how it must conduct health assessments, interact with external
physicians and communicate with its employees?
vi)
Was
it reasonable to order that the Applicant establish written policies
“satisfactory to” the complainant and the Commission?
vii)
Was
there any evidentiary basis upon which the Tribunal could order the payment of
damages for “wilful and reckless” discrimination?
viii) Was it reasonable to
order crediting of vacation credits for the preparation of the hearing?
[58]
In
my view, the many issues raised by the parties may appropriately be considered
under the following four questions:
1.
What
is the appropriate standard of review of the Tribunal’s decision?
2.
Did
the Tribunal err in finding that there had been a failure to accommodate under
the CHRA on procedural grounds in light of its prior finding that substantive
accommodation of Ms. Cruden was not possible without undue hardship?
3.
Was
the Tribunal’s finding that the application of the Afghanistan Guidelines to
Ms. Cruden by HC was discriminatory contradicted by its own finding that she could
not be accommodated without undue hardship?
4.
Was
there a proper legal or evidentiary basis for the remedies ordered?
1. Standard of
Review
[59]
The
parties are in agreement that the standard of review of the Tribunal’s decision
is reasonableness. The applicants submit that there is only one reasonable
interpretation of the duty to accommodate as found in the CHRA while the
respondents take the position that whether there is one or more than one
interpretation, the interpretation rendered by the Tribunal is reasonable and
ought not be disturbed.
[60]
In
Canada (Canadian Human Rights Commission) v Canada (Attorney General),
2011 SCC 53 [Mowat], which dealt with whether the Tribunal has
jurisdiction to make an order of costs, the Supreme Court held that the Tribunal
was generally entitled to deference respecting the interpretation of its home
statute or the legal rules closely connected thereto. The Tribunal’s decision,
based on its interpretation of the CHRA, was that it had jurisdiction to
award costs. The Supreme Court found otherwise, and held at paragraph 64 of
its reasons that “the text, context and purpose of the legislation clearly
shows that there is no authority in the Tribunal to award legal costs and there
is no other reasonable interpretation of the relevant provisions.”
[61]
In
this case, CIDA and HC submit that there is no reasonable interpretation that
supports the Tribunal’s conclusion that the CHRA creates both procedural
and substantive rights and duties to accommodate such that one may be found in
breach of the procedural duty even if found not to have breached the
substantive duty. Accordingly, they say that while the standard of review is
reasonableness, there is only one reasonable interpretation available and it is
not made by the Tribunal.
2. Procedural
and Substantive Duties to Accommodate
[62]
In
the decision under review, in holding that there are both procedural and
substantive duties to accommodate, each of which may be breached independently
of the other, the Tribunal was either engaged in (i) an interpretation of the wording
of the relevant sections of the CHRA, or (ii) applying the decision of
the Supreme Court inMeiorin to
the facts before it. Regardless of which of these approaches was employed, I
find that the Tribunal’s decision was unreasonable and must be set aside.
Statutory Interpretation
of the CHRA
[63]
An
understanding of the scheme of the CHRA is required in order to properly
understand the duty to accommodate. The scheme of the CHRA relevant to
this application is as follows:
(a)
It
is “discriminatory practices” that are prohibited by the CHRA. It is a
discriminatory practice “in the course of employment, to differentiate
adversely in relation to an employee” because of disability: CHRA
paragraph 7(b). It is also a discriminatory practice to “establish or pursue a
policy or practice … that deprives or tends to deprive an individual or class
of individuals of any employment opportunities” because of disability: CHRA
paragraph 10(a).
(b)
But,
it is not a discriminatory practice if the adverse differentiation, deprivation,
or limitation, etc., is established by the employer to be based on a BFOR: CHRA
paragraph 15(1)(a).
(c)
For
a discriminatory practice to be based on a BFOR “it must be established that
accommodation of the needs of an individual or a class of individuals affected
would impose undue hardship on the person who would be accommodating those
needs, considering health, safety and costs:” CHRA subsection 15(2).
(d)
An
individual or group of individuals who, on reasonable grounds, believe that a
person “is engaging or has engaged in a discriminatory practice may file with
the Commission a complaint:” CHRA subsection 40(1).
(e)
If
the complaint of a discriminatory practice is not substantiated, “the member or
panel conducting the inquiry shall dismiss the complaint” [emphasis
added]: CHRA subsection 53(1). If the complaint of a discriminatory
practice is substantiated, the member or panel may make an order against the
person found to be engaging or to have engaged in the discriminatory practice:
CHRA subsection 53(2).
[64]
What
is evident from the foregoing is the criticality of a finding of a
discriminatory practice. It is an allegation of a discriminatory practice
which grounds the complaint and it is the finding of a discriminatory practice
that provides the Tribunal with jurisdiction to order remedial action.
Moreover, and of particular relevance to this application, a BFOR finding
negates, and is a complete defence to, any allegation of a discriminatory
practice. In short, and in the context of this case, if CIDA establishes that it
cannot accommodate Ms. Cruden’s disability in Afghanistan without undue
hardship, then there is no discriminatory practice and no violation of the CHRA.
[65]
In
this case, HC did not recommend Ms. Cruden for posting in Afghanistan; CIDA agreed, and did not post her to Afghanistan. The Tribunal found that if it was not
for its refusal to post Ms. Cruden to Afghanistan, CIDA would have experienced
undue hardship because there were myriad pitfalls in posting a Type 1 diabetic
with her profile and medical needs into a war zone. The finding of undue
hardship is not contested by Ms. Cruden or the Commission.
[66]
Nevertheless,
despite its finding that it would have caused CIDA undue hardship to post Ms.
Cruden to Afghanistan, the Tribunal found that CIDA and HC violated a separate
procedural duty it understood to be owed in the accommodation process. In
particular, as discussed above, Ms. Cruden’s expectations were raised, emails
were not responded to promptly, and “CIDA did not … [explore] all reasonable
accommodation measures at the time of [Ms. Cruden’s] request.”
[67]
If
the Tribunal was interpreting the CHRA when it found that there is a
procedural duty of accommodation that can be breached notwithstanding that
accommodation is impossible without undue hardship, then that interpretation is
plainly unreasonable. The provisions of the CHRA, as discussed
previously, are clear and unambiguous: If a person cannot be accommodated
without undue hardship then the alleged discriminatory practice is based on a
BFOR; if it is based on a BFOR then it is not a discriminatory practice; and if
it is not a discriminatory practice the Tribunal “shall” dismiss the
compliant. In my view, there is no reasonable interpretation of the CHRA
that permits the Tribunal to continue to examine a complaint and the actions of
the parties once it has found, as it did in this case, that accommodation is
not possible without undue hardship.
Meiorin
[68]
If
the source of this alleged procedural duty to accommodate does not lie in the CHRA,
it might be thought that its source is the decision of the Supreme Court of
Canada in Meiorin, which is referenced by the Tribunal in the following
paragraphs of its decision:
[101]
The third step of the Meiorin analysis examines “...whether the standard
is required to accomplish a legitimate purpose, and whether the employer can
accommodate the complainant without suffering undue hardship” (Kelly at
para. 356; see also McGill University Health Centre at para. 14). The use
of the term "undue" infers that some hardship is acceptable. It is
only “undue hardship” that satisfies this test (see Central Okanagan School
District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at page 984.). Generally,
undue hardship means “disproportionate, improper, inordinate, excessive or
oppressive” and is “...reached when reasonable measures of accommodation are
exhausted and only unreasonable or impracticable options for accommodation
remain” (Council of Canadians with Disabilities v. Via Rail Canada Inc.,
2007 SCC 15 at paras. 130, 140). The complainant must facilitate the search for
meaningful accommodation by responding to reasonable employer requests for
relevant medical information regarding his or her limitations, in order to
allow the employer to initiate a proposal (Tweten v. RTL Robinson
Enterprises Ltd., 2005 CHRT 8; and, Graham v. Canada Post Corporation,
2007 CHRT 40) However, an employee cannot dictate to an employer the precise
terms of an accommodation and cannot expect a perfect solution (see McGill
University Health Centre; and, Hutchinson v. Canada (Minister of the
Environment), 2003 FCA 133).
[102]
It may be ideal for an employer to adopt a practice or standard that is
uncompromisingly stringent, but if it is to be justified it must accommodate
factors relating to the unique capabilities and inherent worth and dignity of
every individual, up to the point of undue hardship (Meiorin at para.
62.). Furthermore, when an employer is assessing whether it can accommodate an
employee it must do an individualized assessment of the employee’s situation.
In this regard, in McGill University Health Centre, the Supreme Court of
Canada stated: “The importance of the individualized nature of the
accommodation process cannot be minimized”.
[103]
The analysis at this stage looks at “...first, the procedure [...] which was
adopted to assess the issue of accommodation and, second, the substantive
content of either a more accommodating standard which was offered or
alternatively the employer's reasons for not offering any such standard” (Meiorin
at para. 66). Therefore, I will examine, first, the procedure adopted by CIDA
to assess the complainant’s condition and possible accommodation and, second,
whether accommodating the complainant in Afghanistan would cause CIDA undue
hardship.
[69]
In
my view, Meorin simply does not reasonably support the proposition that
there exists a separate, procedural duty in the accommodation process which can
be breached notwithstanding a substantive finding of undue hardship and which
would attract remedies on its own. In paragraph 66 of Meiorin, which is
the passage referenced by the Tribunal, the Supreme Court is merely stating
that a court or tribunal can look at the procedure employed in the
accommodation process as a practical tool for deciding whether an employer has
established – on an evidentiary basis – undue hardship:
Notwithstanding
the overlap between the two inquiries, it may often be useful as a practical
matter to consider separately, first, the procedure, if any, which was
adopted to assess the issue of accommodation and, second, the substantive
content of either a more accommodating standard which was offered or
alternatively the employer’s reasons for not offering any such standard: see
generally Lepofsky, supra [emphasis added].
[70]
That
is not to say that the procedure used by the employer when considering
accommodation cannot have significance in any given case; indeed, in practical
terms, if an employer has not engaged in any accommodation analysis or attempts
at accommodation at the time a request by an employee is made, it is likely to
be very difficult to satisfy a tribunal on an evidentiary level that it could
not have accommodated that employee short of undue hardship: See, e.g., Koeppel
v Canada (Department of National Defence), 97 CLLC 230-024, 32 CHRR D/107
at paras 212 – 228 (CHRT). That is the very real and practical effect of the evidentiary
burden to establish a BFOR resting with the employer.
[71]
Madam
Justice Gray of the Supreme Court of British Columbia, in a judgment rendered
after the decision under review, recognized this distinction. She stated in Emergency
Health Services Commission v Cassidy, 2011 BCSC 1003 at paras 33 and 34:
Tribunal
Member Lyster relied on Meiorin as authority for the proposition that an
employer has both a procedural and substantive “duty” to accommodate a disabled
employee to the point of undue hardship. However, in Meiorin, the
Supreme Court of Canada did not consider whether the employer had treated Ms.
Meiorin “fairly, and with due respect for her dignity, throughout the
accommodation process”. The focus of the analysis was whether the Aerobic
Standard was appropriate. McLachlin J. considered that standard both
“procedurally”, relating to how the Aerobic Standard was set, and
“substantively”, relating to whether the employee could be accommodated without
undue hardship to the employer. The distinction between a procedural analysis
and a substantive analysis was an analytical tool for determining whether the
Aerobic Standard was a BFOR, and whether the claimant had been accommodated to
the point of undue hardship.
While
McLachlin J. wrote that it may often be useful to consider any procedure
adopted in assessing accommodation, she did not write that such an analytical
tool created a separate duty that can be breached. The single question
remains of whether the employer could accommodate the employee without
experiencing undue hardship. [emphasis added]
[72]
I
agree. The evidentiary significance of the procedure used by the employer is,
in my view, what the Supreme Court meant in Meiorin when it said that
“it may often be useful as a practical matter to consider … the
procedure, if any, which was adopted.”
[73]
Moreover,
the plain words of paragraph 66 of Meiorin - “the procedure, if any,
which was adopted” [emphasis added] - supports the opposite conclusion to that
reached by the Tribunal, because it contains an acknowledgement that an
employer may not have engaged in any accommodation analysis and yet may
still be able to establish undue hardship. It is clear that one can not be
said to have met a procedural duty to accommodate when one has not engaged in
any procedure at all.
[74]
The
Respondents rely on the decision of the Ontario Divisional Court in ADGA
Group Consultants Inc. v Lane (2008), 91 OR (3d) 649 (Div Ct) [AGDA] wherein
it was found that the decision of the Ontario Human Rights Tribunal that the
employer there had failed both the procedural and substantive duties to
accommodate was reasonable. That case is distinguishable because the finding
of the tribunal in that case was that the employer had discriminated against Mr. Lane by firing him from his employment without establishing that it could not
accommodate his disability without undue hardship. Here the Tribunal found
that CIDA and HC had established that accommodation was not possible without
undue hardship.
[75]
To
a large extent the tribunal and court in AGDA examined the “procedures” used by
the employer as evidence as to whether substantive accommodation was possible
without undue hardship. In that case the employer did very little to either
determine what the essential aspects of the job were, whether Mr. Lane could perform them, and if not what possible accommodation would be required. The
tribunal found that the there was a “rush to judgment” by the employer and it
had failed to prove that it could not accommodate Mr. Lane without undue hardship.
To the extent that the court’s decision suggests that there is a separate
procedural duty of accommodation which can be breached even if the substantive
duty has not, I respectfully disagree.
[76]
As
previously noted, the present case is exceptional since the Tribunal was
satisfied that it would have caused CIDA undue hardship despite finding
that CIDA did not engage in a sufficiently robust accommodation analysis.
Nevertheless, there is but one duty: the duty to accommodate an employee to the
point of undue hardship. The finding that it would have caused CIDA undue
hardship to accommodate Ms. Cruden in Afghanistan should have ended the
Tribunal’s inquiry as the effect of that finding was that there was no
discriminatory practice.
3. The Afghanistan Guidelines
[77]
As
mentioned above, the contentious provision in the Afghanistan Guidelines reads
as follows under the heading “Absolute medical requirements:”
Employees
do not meet the medical requirements for assignment or posting: […] If they
have a medical condition that would likely lead to a life-threatening medical
emergency if access to prescribed medication and/or other treatment is
interrupted for a short period of time.
[78]
The
Tribunal found that HC violated paragraph 7(b) of CHRA which makes it a
discriminatory practice “in the course of employment, to differentiate
adversely in relation to an employee on a prohibited ground of
discrimination.” As the Tribunal put it at paragraph 89 of its decision: “The
application of these guidelines to the complainant resulted in her being
discriminated against in the course of her medical assessment” [emphasis
added]. This statement as well as others in the decision which are set out
below, makes it clear that the finding relating to these guidelines was to the
process HC used, not the result to which the guidelines pointed (indeed, having
found that Ms. Cruden could not be posted to Afghanistan without undue hardship
– effectively the same result as the guidelines directed, that she was not
medically fit to be posted to Afghanistan – such a finding would have been contradictory):
- “The
complainant claims that the guideline and medical assessment process
adversely differentiated against her on the basis of her disability, a
prohibited ground of discrimination” [emphais added].
- “I find
that there is a problem with the manner in which the “Absolute medical
requirements” of the Afghanistan guidelines, are worded and therefore are
open to more than one interpretation.”
- “Throughout
the whole process the complainant’s dignity was not preserved…”
- “The
intention of a guideline or policy may be legitimate, but the manner in
which it is expressed or applied may be deficient.”
[79]
For
the reasons set out above, there is no independent and separate discriminatory
practice as set out in the CHRA that rests only on the accommodation process
or the manner in which a policy or guideline is applied in the accommodation
process, unless of course the process itself or the application of the policy
or guideline is conducted in a substantively discriminatory manner. But there
is no such allegation here. In other words, there is no allegation that, for
example, HC’s delay in responding to emails or raising Ms. Cruden’s hopes had
anything to do with her disability or was, in other words, based on that
prohibited ground of discrimination. Absent a finding that there was such a
substantive discriminatory practice, this complaint against HC had to be
dismissed. In short, it simply cannot be that HC’s “adverse differentiation”
of Ms. Cruden – that is to say its recommendation that she not be posted to Afghanistan because of her diabetes (see paragraph 72 of the Tribunal’s reasons) – is not
vindicated and completely rectified by the finding of undue hardship in
relation to her employer, CIDA. Any other result defies logic and common
sense.
[80]
This
is not to say that there may not be a situation in the future where the
application of the Afghanistan Guidelines would result in an employee being
prevented from a posting in Afghanistan even though that employee’s disability
could be accommodated without undue hardship, but this is not that case.
Moreover, the Tribunal did not even identify any potential situation
where an employee may be disentitled to a posting to Afghanistan by the
application of the Afghanistan Guidelines but could still be accommodated in
such a posting short of undue hardship to his or her employer. Unless one
concrete example or at least general possibility is identified, it is baseless
to assert, in the broadest sense, that the guidelines “differentiate adversely
in relation to an employee,” which is the requirement in paragraph 7(b)
of the CHRA, or “[deprive] or [tend] to deprive an individual or class
of individuals,” which is the requirement in paragraph 10(a).
[81]
HC
acknowledged at the hearing before the Tribunal that the “absolute medical
requirements” heading of the Afghanistan Guidelines was unfortunate as it did
not capture the intention that it was a “guideline” and the Court was given to
understand at the hearing of this application that it was under revision to
reflect that fact. Any issue of compliance of the revised guideline with the CHRA
will be addressed in the context of a specific fact situation that may arise in
the future, i.e. where an employee claims they could be accommodated in an Afghanistan posting but is denied that opportunity through the application of the revised guideline.
[82]
In
summary, absent a finding of a discriminatory practice, Ms. Cruden’s complaint
had to be dismissed. It may be, as the Tribunal found, that the wording of the
Afghanistan Guidelines requires revision; however, absent a finding of a discriminatory
practice in the result achieved when the guidelines are applied to Ms. Cruden
or some other reasonably identifiable future individual or class of
individuals, the Tribunal had no jurisdiction to order the remedies it did.
The application of the Afghanistan Guidelines did not discriminate against Ms.
Cruden as she could not be accommodated in a posting to Afghanistan without undue hardship, there was no discriminatory practice as a result, and the
complaint ought to have been dismissed.
4. Remedies
Awarded
[83]
The
CHRA does not impose on employers a broad duty to manage and promote the
careers of those who are prevented from holding certain positions, or enjoying
certain benefits, for entirely justifiable, legitimate, and defensible reasons,
simply because they possess a certain characteristic. Rather, the focus of the
CHRA is on the negative – it is on the limitation or the refusal, and
the removal of those limitations and refusals that unjustifiably limit
individuals possessing certain characteristics. Here, the limitation was
contained in the Afghanistan Guidelines and the refusal was CIDA’s refusal to
post Ms. Cruden to Afghanistan. As discussed at length above, the CHRA
is clear in stating that if the limitation or refusal was based on a BFOR, there
is no discriminatory practice. The Tribunal found that without the refusal
in this case, CIDA would have experienced undue hardship. That means CIDA’s
refusal was a BFOR. Accordingly, the Tribunal had no authority to award any
remedy. CIDA was under no duty under the provisions of the CHRA to
manage Ms. Cruden’s career to ensure she received posting experience. Its duty
was to impose only those restrictions, and make only those refusals that were
justifiable as a BFOR. This it did and the remedies ordered against CIDA were
made without jurisdiction.
[84]
Similarly,
because of its finding that Ms. Cruden could not be accommodated without undue
hardship there was no basis for the finding that the Afghanistan Guidelines or
HC discriminated against Ms. Cruden. Accordingly, the remedies ordered against
HC were also made without jurisdiction.
[85]
The
decision of the Tribunal is set aside in its entirety. In the ordinary course
when a decision is set aside on judicial review, it is referred back to the tribunal
to make a proper decision; however, that is not an appropriate result in this
case. The Tribunal found that CIDA had established at the hearing that Ms.
Cruden could not be accommodated without undue hardship. As noted above, that
finding was not challenged by either the Commission or Ms. Cruden. In light of
that finding, there was no discriminatory practice and thus there can be no
violation of the CHRA, as was alleged in the complaint. Accordingly,
there is only one possible finding available to the Tribunal, to dismiss the
complaint. Given that, no useful purpose is served by referring the complaint
back to the Tribunal for a rehearing. Remedies on judicial review are
discretionary and in the exercise of my discretion, given those facts, I find
that it is appropriate to quash the decision in its entirety and not refer the
complaint back to the Tribunal.
[86]
The
Attorney General is entitled to costs. If the parties are unable to agree on
quantum, they may file written submissions, not exceeding five pages in length,
within 15 days of this judgment.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is allowed, the
decision of the Canadian Human Rights Tribunal dated September 23, 2011 is set
aside, and the Attorney General is entitled to costs.
“Russel
W. Zinn”
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