Docket: T-616-15
Citation:
2016 FC 538
Ottawa, Ontario, May 12, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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DARCEY NOGA
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Applicant
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and
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JAZZ AVIATION
LP, AND TERRY GREEN, AND SUZANNE ASSEFF
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Respondents
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of the Canadian Human Rights Commission [the Commission]
dismissing the Applicant’s discrimination complaint against her former
employer, Jazz Aviation LP, pursuant to subsection 44(3)(b)(i) of the Canada
Human Rights Act, RSC 1985, c H-6 [the Act].
I.
Background
[2]
Darcey Noga [the Applicant] was employed as a
flight attendant by Jazz Aviation LP [the Respondent, or Jazz] from December 7,
1999, until July 22, 2008.
[3]
On August 28, 2002, the Applicant was diagnosed
with serious mental illness by a psychiatrist and was advised to take medical
leave from work.
[4]
Less than a month following her diagnosis, the
Respondent advised the Applicant it had scheduled an Independent Medical
Examination on her behalf, which she attended.
[5]
The Applicant’s claim for total disability with
Manulife Financial, the Respondent’s insurer, was approved up to August 2,
2007, at which point Manulife withdrew the Applicant’s benefits, on the basis
it determined the Applicant was no longer totally disabled from performing
essential duties of any occupation, as defined by her group contract. She
appealed this decision, which was denied in December 2007.
[6]
A Manulife Vocational Rehabilitation Specialist
contacted the Applicant in late August, and early September of 2007, regarding
participation in rehabilitation. The facts are unclear as to whether the
Applicant was required to contact Manulife to initiate participation, and thus
whether she was “non-compliant” with the rehabilitation process.
[7]
In a letter to the Applicant dated February 8,
2008, the Respondent claimed the Applicant had refused to attend vocational
rehabilitation, and it offered her modified work in a sedentary position as a
Flight Attendant Grooming Audit. She was directed to report at the Toronto base
by February 18, 2008, ten days from the date of the letter. The letter
concludes:
Darcy [sic], if we do not hear from you by
Monday, February 18th, we will deem you have abandoned your position at Jazz
and your employment will be terminated accordingly.
[8]
The Applicant replied, through legal counsel, on
February 14, 2008, explaining that the vocational rehabilitation was simply a
binder of material, not a service, and that she was further appealing
Manulife’s decision to end her benefits. The letter clarified that the
Applicant had not abandoned her employment with Jazz, but that at present, she
remained unable to work.
[9]
In reply, the Respondent sent a further letter
stating that both the Applicant’s non-participation in the vocational
rehabilitation process, and Manulife’s denial of the Applicant’s appeal,
indicated that the Applicant was effectively abandoning her employment with
Jazz. It offered the Applicant a final chance to commence ground duties on
March 10, 2008.
[10]
On March 6, 2008, the Applicant provided the
Respondent with a medical letter from her treating psychiatrist, dated November
13, 2007. The letter described the Applicant’s diagnosis, the coinciding
symptoms, and her treatment plan. The letter made no conclusion regarding the
Applicant’s ability to return to work, other than that it might take longer
than a year from the date of that letter.
[11]
The Respondent sent a letter to the Applicant’s
Union on May 5, 2008, terminating the Applicant’s employment on the basis of abandonment.
She could re-establish the employment relationship if she provided medical
information within 30 days indicating she was “totally disabled” from
employment. The Union communicated to the Applicant the request for her to
provide more medical information, or she would be terminated.
[12]
On May 29, 2008, the Respondent emailed the
Applicant a questionnaire to be answered by the Applicant’s treating physician
in order to clarify the Applicant’s current medical status. The questionnaire
sought information about, inter alia, objective findings supporting the
Applicant’s diagnosis; treatment; her ability to perform regular jobs,
including with modified duties, and duration for such modified duties; her
ability to carry out duties as a Flight Attendant Grooming Audit; and her
prognosis for the foreseeable future.
[13]
The Applicant faxed a reply medical letter,
dated May 22, 2008, to what she had been told was the confidential fax number
of Dr. Neal Sutton, the Respondent’s medical consultant, who was to advise the
Respondent of the Applicant’s fitness to perform work. Although the Applicant’s
medical letter did not specifically answer the 17 questions, the Applicant’s
psychiatrist wrote again that the Applicant suffered from mental illness with
significant comorbid symptoms. The letter indicated:
There has been some progress but to confirm
what was stated in my letter of November 13, 2007, Ms. Noga is still unable to
work.
Furthermore, because of the early signs of
progress, it would be detrimental to her treatment to leave Saskatoon at
present. She is still significantly avoidant and her support network is located
in Saskatoon. Moving from Saskatoon would probably result in the reversal of
progress that has been made over the past eight months.
[14]
The Applicant proposed that Dr. Sutton speak
directly to her treating psychiatrist.
[15]
In response, the Respondent requested that the
Applicant provide her entire medical chart. The Applicant declined, believing
such a request was overly broad and invasive of privacy.
[16]
As a result, by letter dated July 22, 2008, the
Respondent informed the Applicant it was terminating her employment [the
Termination Letter]. The Termination Letter indicates:
This letter will serve as notification that
as of today, July 22, 2008 your employment with Jazz is hereby terminated as
you have failed to return to work from an absence, and in addition have failed
to produce documentation sufficient to justify remaining away from the
workplace. We have therefore concluded that you have abandoned your position
with Jazz […]
Upon review of the offer for the two medical
practitioners to speak, and upon the advice of Dr. Sutton, it was Jazz’s
decision to decline this offer, however it was requested that Dr. Sutton
instead be able to review your clinical chart records, with your signed
consent, and from here make an independent determination of your current
restrictions and limitations. This offer was communicated to your Union. The
answer to Jazz was that you were not willing to consent to the release of your
clinical chart records for Dr. Sutton’s review […]
As the information that has been provided by
you to date has been insufficient, and you have declined our further attempts
to resolve this matter, we see no justification for delaying our decision.
Essentially we have no reason to believe that information will be provided to
us now or in the foreseeable future which would provide needed clarity to your
situation.
[17]
The Applicant filed a complaint with the
Commission on July 15, 2009, alleging that the Respondent, in terminating her
employment, had discriminated against her on grounds of disability, contrary to
subsection 3(1) and section 7 of the Act.
[18]
The complaint was inactive pending the Applicant’s
grievance with her Union. The investigation was reactivated with the Commission
on January 4, 2011, and an Investigator was designated to prepare a Report pursuant
to subsections 43(1), and 44(1) of the Act.
[19]
The Investigation Report [the Report] is
detailed. In preparation, the Investigator reviewed all documentation submitted
by the parties, and interviewed the Applicant and four of the Respondent’s
witnesses; Ms. Suzanne Asseff (Manager of Labour Relations, 2007-2008); Ms.
Joan Morant (Occupational Health Nurse); Ms. Joslyn Dicks (former President,
Canadian Flight Attendants Union [CFAU]); and Dr. Sutton (the Respondent’s
medical consultant). The Commission did not interview any of the Applicant’s
proposed witnesses (her doctor and father), concluding that they did not have
direct knowledge of the complaint, or the information sought had already been
provided by the witnesses interviewed or through documentation.
[20]
The Commission concluded that the Applicant’s
termination by the Respondent appears to have been linked to her mental
disability. Due to her medical illness, the Applicant was unable to work and
informed the Respondent about her condition. The Respondent nonetheless
terminated her employment on July 22, 2008, when, ten months after her
disability benefits were terminated, the Applicant did not return to work.
[21]
Accordingly, the Commission went on to assess
whether the Respondent could provide a reasonable explanation for its actions
that is not a pretext for discrimination on a prohibited ground.
[22]
The Commission noted the Respondent’s reasons
for terminating the Applicant’s employment were the Applicant’s failure to: (i)
provide objective medical information to support continued leave; and (ii)
participate in Manulife’s rehabilitation process.
[23]
In assessing the first reason – sufficiency of
medical information – the Report notes the following:
- From 2002 –
2007, the Respondent received updates from Manulife regarding the
Applicant’s condition. After being notified that Manulife no longer
considered the Applicant to be totally disabled from any occupation in
August 2007, the Respondent inquired from Manulife about the Applicant’s
limitations for accommodation purposes. Manulife informed the Respondent
of what it assessed to be the Applicant’s capabilities and jobs it
identified as suitable.
- The Respondent
stated that the sedentary ground duties as a Flight Attendant Grooming
Audit met the Applicant’s restrictions, as communicated to it by Manulife.
The duties, performed at the Applicant’s pace, involved observing
cleanliness of the aircraft. Thus, the Respondent considered the Applicant
absent without leave and advised her to report to Toronto to commence work
in this position. At the time, the Applicant had not informed the
Respondent she had a phobia of germs. Had she done so, the Respondent
claims it would have adjusted her duties.
- The Respondent
claims it made every effort to obtain objective medical information from
the Applicant to clarify the nature of tasks she could perform.
Determining an appropriate course of action was difficult, as the
Applicant claimed she was unable to work, yet Manulife had concluded she
was able to perform some level of duties.
- Ms. Morant,
Occupational Health Nurse, stated that the medical information received
from the Applicant’s psychiatrist did not support her continued leave; it
provided no additional information than that which Manulife had on file
when it determined the Applicant was not totally disabled.
- Dr. Sutton
determined that the Applicant’s medical information he reviewed,
consisting only of the May 22, 2008 medical letter, was not objective, did
not indicate measurable abnormality, and did not address the
questionnaire. It was insufficient to enable him to make recommendations
regarding her ability to return to modified duties.
- The Applicant
explained that her psychiatrist declined to answer the questionnaire, as
he had addressed the issues in the November 7, 2007 and May 22, 2008
letters, and in his view, had provided sufficient medical information she
was unable to work.
- There is
conflicting information surrounding what Dr. Sutton was informed of and
requested from the Applicant. His memo to the Commission indicates he does
not believe he was asked to speak with the Applicant’s doctor; had he been
asked, he would have done so, with the Applicant’s written consent. As well,
although the Respondent states that Dr. Sutton requested to review the
Applicant’s complete medical file, Dr. Sutton told the Investigator he
does not recall requesting the medical file. Further, in Ms. Morant’s
experience, Dr. Sutton does not normally request medical chart notes, and
she has no idea why he would have made such a request in this case.
- The Applicant
expressed serious privacy concerns surrounding the Respondent’s use and
protection of her medical information, and she felt that non-medical
professionals had access to it. The Applicant also conveyed this concern
to Ms. Dicks, former president of CFAU, who met with the Applicant to
discuss possible accommodation options.
[24]
The Report explains the Respondent’s Disability
Case Management Policy, implemented to aid in the proper accommodation of
disabled employees’ restrictions and limitations. The Respondent’s temporary
accommodation policy aims to provide reasonable accommodation to the point of
undue hardship. Permanent accommodation may be provided an employee with
sufficient medical information to indicate permanent work restrictions, which
requires additional medical evaluations.
[25]
The Respondent claims the Applicant obstructed
the accommodation process in declining to participate in these policies by
failing to provide consent to Manulife’s release to the Respondent of all
medical information.
[26]
In investigating the Respondent’s second stated
reason for the Applicant’s termination – the Applicant’s failure to participate
in the Rehabilitation Process – the Report notes the parties’ conflicting
positions. The Respondent claims the Applicant did not respond to Manulife’s
offer to participate in vocational rehabilitation services. The Applicant
claims Manulife never offered her vocational rehabilitation services, but
merely provided her with a binder about job searching. The conflicting evidence
uncovered by the investigation shows:
- An August 22,
2007 letter to the Applicant from Manulife indicates the Applicant would
be forwarded a Vocational Job Search kit, and that the Applicant could
contact a member of the Rehabilitation department with any questions.
- A September 4,
2007 letter to the Applicant from Manulife indicates again it would be
sending this kit. The letter also mentions that the Applicant had been
contacted by telephone at the end of August to offer Vocational
Rehabilitation assistance for her job search, and advising the Applicant
to respond within ten days.
- A September 12,
2007 letter to “update” the Applicant on the status of her vocational
rehabilitation plan indicates it was sending the Applicant a kit for her
review to help facilitate her current efforts to return to employment.
Should she require additional assistance with the package, or further
information, she could contact the Rehabilitation Supervisor.
- Ms. Morant, who
spoke with the Applicant on October 19, 2007, believes the Applicant was
aware she had to follow up with Manulife regarding the rehabilitation
service.
[27]
Upon review of all the above, the Report
concludes that the evidence suggests the Respondent has provided a reasonable
explanation for its actions that is not a pretext for discrimination on a
prohibited ground.
[28]
The Report also indicates that the Respondent’s
efforts to determine the nature of the Applicant’s job limitations and its
offer to provide a gradual return to work as a Flight Attendant Grooming Audit
suggests that the Respondent discharged its duty to accommodate. Despite
multiple efforts, the Respondent was unable to determine the exact nature of the
Applicant’s condition in order to address it through its accommodation
policies. Moreover, the Applicant did not inform the Respondent of any
limitations in her ability to carry out the accommodated work offered.
[29]
The Commission also did not uncover evidence
indicating that the Respondent violated the privacy and confidentiality of the
Applicant’s medical information.
[30]
Finally, the Commission concluded that although
there is conflicting evidence as to whether the Applicant had to take action or
make a decision to participate in vocational rehabilitation, the evidence
suggests the Applicant was aware that she had some obligation to follow-up on
the process with her caseworker at Manulife, and that she failed to do so.
[31]
The Commission recommended pursuant to subsection
44(3)(b)(i) of the Act that the Commission dismiss the complaint because: (i)
the evidence does not support the allegations of the complaint; and (ii)
further inquiry is not warranted.
[32]
The Commission provided the parties with copies
of the Report in August 2013, and invited the Applicant and Respondent to make
submissions, which they did on September 10, 2013, and August 21, 2013,
respectively [the Initial Responses].
[33]
The Commission shared each party’s Initial
Responses with the other, and invited the parties to respond to the Initial
Responses, which they did on October 3, 2013 and October 4, 2013, respectively
[the further Responses].
[34]
The Commission referred the parties to
conciliation from November 2011, to May 2012, in an attempt to facilitate settlement,
which was ultimately unsuccessful. The Commission forwarded copies of a
Conciliation Report to both parties on September 30, 2014, and the parties were
invited to respond by the same process as for the Report. The Applicant
submitted her Initial Response on November 6, 2014, to which the Respondent
replied on December 9, 2014. The Applicant did not receive a copy of this reply
until May 11, 2015.
[35]
The Commission dismissed the Applicant’s
complaint by way of letter on March 23, 2015 [the Decision]. In rendering the
Decision, the Commission reviewed the Report and any submissions filed in
response. Under subsection 44(3)(b)(i) of the Act, the Commission dismissed the
complaint, concluding that the evidence did not support the allegations of the
complaint and having regard to all the circumstances, further inquiry was not
warranted.
[36]
Pursuant to Sketchley v Canada (Attorney
General), 2005 FCA 404 at para 37 [Sketchley], because the
Commission’s Decision does not provide detailed reasons, the Report constitutes
the reasons for the Commission’s decision for dismissing the Applicant’s
complaint.
II.
Issues
[37]
The issues are:
- Did the
Commission breach procedural fairness in preparing the Investigation
Report, and concluding the complaint warranted no further investigation?
- Was the
Commission’s Decision unreasonable?
III.
Standard of Review
[38]
The quality and thoroughness of an investigation
upon which the Commission bases its Decision is a matter of procedural fairness
and the standard of review is correctness (Forster v Canada (Attorney
General), 2006 FC 787 at para 47 [Forster]).
[39]
As well, the Commission is afforded broad
latitude in performing its screening function and in interpreting evidence to
determine whether or not a complaint warrants further inquiry (Act, subsections
44(3)(a), (b)). A decision not to refer a complaint to the Tribunal is
discretionary, and is reviewable on the standard of reasonableness (Cooper v
Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at para 53; Slattery
v Canada (Human Rights Commission), [1994] FCJ No 181 at paras 55-57 [Slattery],
aff’d [1996] FCJ No 385 (FCA)).
IV.
Analysis
[40]
The relevant provisions of the Act are attached
as Annex A.
A.
Did the Commission breach procedural fairness in
preparing the Investigation Report, and concluding the complaint warranted no
further investigation?
[41]
The Applicant argues the Commission’s
investigation into her complaint was deficient and constitutes a denial of her
right to procedural fairness (Forster, above, at para 47).
[42]
The Applicant’s Initial Response to the Report
detailed a number of deficiencies in the Report that were not further
investigated or addressed, including:
- the Investigator’s failure to interview any of the Applicant’s
witnesses;
- the Report’s
failure to provide the Commission with rationale for its decisions
regarding credibility and investigative omissions;
- failure to
investigate or assess contradictory evidence provided by the Respondent,
including: (i) whether Dr. Sutton had requested the Applicant’s entire
medical report; and (ii) the Respondent’s statement that “upon the advice
of Dr. Sutton”, it declined the Applicant’s offer to have her psychiatrist
speak to their medical consultant, while the Report indicates Dr. Sutton
was unaware the offer had been made, and that it would have been customary
for him to accept the offer;
- failure to
investigate the substance of Manulife’s vocational rehabilitation program,
in the result that the Respondent’s assertion regarding the Applicant’s
participation was accepted as justification for discriminatory action
against her.
[43]
This Court has affirmed that in making the
decision to move onto conciliation and a hearing before the Tribunal, the
statutory decision-maker has a duty to ensure its decision is based on
sufficient information, gathered through a properly conducted investigation (Watt
v Canada (Attorney General), 2006 FC 619 at para 18). A Decision reached on
the basis of a deficient investigation will itself be deficient, as the
Commission did not have sufficient relevant information upon which it could
properly exercise its discretion (El-Helou v Canada (Courts Administration
Service), 2012 FC 1111 at para 92).
[44]
The Federal Court of Appeal recently outlined
what it considered to be a thorough investigation in Bergeron v Canada
(Attorney General), 2015 FCA 160 at para 74. In essence, an investigator
need not pursue every conceivable angle, as a complainant’s interests must be
balanced against the Commission’s interests in an administratively effective
system. Only where there has been an “unreasonable
omission”, failures to investigate “obviously
crucial evidence”, or the investigation is “clearly
deficient” has procedural fairness been breached (Slattery,
above, at paras 56, 57).
[45]
The Respondent submits that cumulatively the
Applicant’s alleged investigative omissions were before the Commission when it made
its final Decision. Thus, the Commission decided the alleged deficiencies did
not warrant reaching a different conclusion than that of the Investigator: this
decision is owed deference.
[46]
The duty of fairness in the context of a
discretionary, administrative decision of the Commission to dismiss the
Applicant’s complaint following a section 41 investigation is not high, given
that “[t]he investigation process is not intended to
provide the full range of natural justice to a complainant” (Shaw v
Royal Canadian Mounted Police, 2013 FC 711 at para 32 [Shaw]).
[47]
The Investigation in the present case was
detailed and thorough. The Report is lengthy, and sets out the evidence,
including conflicting evidence, uncovered in the process of the investigation.
The Investigator reviewed all submitted documentation and interviewed five
individuals in preparation of the Report.
[48]
The Investigator’s decision not to interview the
Applicant’s suggested witnesses was not procedurally unfair, particularly
considering the Commission’s wide latitude to control its process. Further, the
Investigator was entitled to conclude that the suggested witnesses would not
provide new and probative evidence to which the Investigator did not already
have access. As the Respondent points out, the Applicant has no right to choose
the witnesses interviewed (Shaw, above, at para 32).
[49]
In Slattery, above, the Federal Court
observed that “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”.
Consequently, “[i]t should only be where unreasonable
omissions are made, for example where an investigator failed to investigate obviously
crucial evidence, that judicial review is warranted” (para 56). In other
words, the Court’s intervention on matters of procedural fairness in reviewing
such decisions is limited to “investigative flaws that
are so fundamental that they cannot be remedied by the parties’ further
responding submissions” (Sketchley, above, at para 38).
[50]
In this case, the Applicant knew the allegations
against her - the Investigator’s recommendation - and the case she was required
to meet was set out in the Report (Khapar v Air Canada, 2014 FC 138 at
para 56). The Applicant was provided an opportunity to respond on two
occasions; initially, and again in Response to the Respondent’s submissions.
The Applicant took advantage of both these opportunities, and made lengthy submissions
which brought to the Commission’s attention what, in the Applicant’s mind,
constituted deficiencies and gaps in the Report. The Decision notes that the
Commission considered the Report and all responding submissions, and in my view
any omissions in the Report were remedied, on a procedural fairness basis, by
the Applicant having had the opportunity to draw the Commission’s attention to
them before rendering its Decision.
B.
Was the Commission’s Decision unreasonable?
[51]
The Applicant submits that the Commission’s
conclusion that the Respondent’s termination of her employment was not on
account of her disability was unreasonable, as there was no credible evidence
it was for any other reason.
[52]
Moreover, the Applicant argues there is no
evidence before the Commission that the Applicant failed to participate in the
rehabilitation program – one of the cited reasons for her termination. In fact,
the Applicant submits there is uncontroverted evidence suggesting the opposite:
that she participated in the program to the fullest extent possible.
Accordingly, the Commission’s decision is based on an erroneous finding of fact,
contradicted by the material before it.
[53]
Further, it is the Applicant’s position that there
was evidence before the Commission that the Applicant had made considerable
effort to provide the Respondent with sufficient medical information necessary
to assess her disability. The Respondent’s medical consultant, Dr. Sutton, was
only provided one of the medical assessments sent to the Respondent, and thus
the fact his assessment was based on incomplete information was not the fault
of the Applicant. Moreover, the Applicant’s unwillingness to provide the
Respondent with her entire medical chart should not be held against her.
[54]
The Report reviews the evidence regarding the
Applicant’s required participation in the Manulife rehabilitation program,
acknowledges that there is conflicting evidence as to whether the Applicant
actually had to take action or make a decision, and ultimately concludes that “the evidence suggests that the complainant was aware that
she had some obligation to at least follow-up on the process with her
caseworker at Manulife, and that she failed to do so”.
[55]
Additionally, the Applicant’s allegation that
the Investigator failed to recognize her efforts to provide sufficient medical
information is not supported on the evidence. The Report reviews in detail the
exchange of requests for medical information between the Applicant and
Respondent: the Investigator explained the questionnaire, the Applicant’s offer
to have her Doctor speak to Dr. Sutton, that Dr. Sutton does not recall this
request, and information that either Dr. Sutton or the Respondent requested her
entire medical charts, a request she was unwilling to grant. This led the Investigator
to conclude that the Respondent was unable to determine the exact nature of the
Applicant’s condition to address it through accommodation.
[56]
The mere presence of contradictory evidence in a
report is not proof an Investigator ignored evidence. As this Court set out in Shaw,
above, at para 25, “[t]he investigator is not obliged
to refer to all the evidence that was submitted.” It was not
unreasonable for the Investigator and the Commission to decide as they did,
particularly given the wide latitude the Commission is afforded in carrying out
its screening function, and in interpreting the sufficiency of evidence to
determine whether or not a complaint warrants further inquiry. Deference is
owed the Commission in its assessment of the probative value of evidence before
it, and in its ultimate decision to investigate further or not (Slattery, above,
at para 57).
[57]
The Investigator found evidence that the medical
information supplied by the Applicant was insufficient for the Respondent’s
medical consultant to properly assess her functional state, and that the
Applicant was uncooperative in complying with the Respondent’s attempts to
obtain additional medical information. I am conscious that dismissal of the
Applicant’s complaint may well preclude any further legal redress for the harm
the Applicant alleges. However, upon review of the Decision and the information
before the Commission, its finding that the Respondent had an explanation for
its actions that was not a pretext for discrimination, and thus the conclusion
that further inquiry was not warranted was reasonable, and was justified by
transparent and intelligible reasons.
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