Date: 19980120
Docket: A-712-96
CORAM: THE CHIEF JUSTICE
LINDEN, J.A.
McDONALD, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
(Respondent)
- and -
TIMOTHY JAMES HERBERT
Respondent
(Applicant)
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
(Respondent)
Heard at Toronto, Ontario, Monday January 19, 1998
Judgment delivered from the Bench at Toronto, Ontario, Tuesday January 20, 1998
REASONS FOR JUDGMENT BY: LINDEN, J.A.
CONCURRED BY: McDONALD, J.A.
DISSENTING REASONS ISSUED
ON JANUARY 23, 1998 BY: THE CHIEF JUSTICE
Date: 19980120
Docket: A-712-96
CORAM: THE CHIEF JUSTICE
LINDEN, J.A.
McDONALD, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
(Respondent)
- and -
TIMOTHY JAMES HERBERT
Respondent
(Applicant)
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
(Respondent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Tuesday January 20, 1998)
LINDEN, J.A.:
[1] This is an appeal from a decision of the Trial Division which, under judicial review, ordered a decision of the Canadian Human Rights Commission dated December 10, 1993, dismissing this complaint, returned to the Commission for
redetermination. While I agree with this disposition, I respectfully disagree with the Commission's reasons offered in support of it.
[2] I am of the view, and all counsel agreed with this view, that there is no general duty on the Commission to inform a complainant specifically that it has the legal authority to dismiss a complaint pursuant to subparagraph 44(3)(b)(i). (See Slattery v. C.H.R.C. A-116-94, March 26, 1996, per Huggessen, J.A.).
[3] Nor is there any disagreement with the principle that there is no obligation on the Commission to follow a recommendation made by an investigator to appoint a Conciliator pursuant to subsection 47(1). It is also clear that reasons need not normally be given for an exercise of this statutory discretion. (See Mercier v. Canada [1994] 3 F.C.R. 3, at page 15, per Décary, J.A.).
[4] In my view, the main question that is at issue here is whether, on these particular facts, there has been a denial of procedural fairness by the Commission.
[5] Briefly, the facts are that Mr. Herbert, who wore a pacemaker, was summarily denied the opportunity to apply for the R.C.M.P. on the basis of its outdated view of existing medical knowledge. Mr. Herbert complained to the C.H.R.C., which began an investigation, that ultimately led to the R.C.M.P., upon analysis of the new medical
evidence, to accept the error of its ways. Discussions took place in which an offer of settlement was made in March 1993 by the R.C.M.P., without admitting liability, allowing Mr. Herbert to apply in the ordinary course for membership and offering, in addition, to pay $2000 in damages. This did not completely satisfy Mr. Herbert, who felt his dream of joining the R.C.M.P. had been denied for 5 years and that the damage he suffered was not adequately reflected in the figure offered. An investigation report was submitted on March 25, 1993, suggesting that a Conciliator be appointed to attempt to settle the matter. The Commission invited comments on the Report from Mr. Herbert, who did so on April 14, 1993, raising his concern about possible future discrimination and other matters. The Commission, on October 27, 1993, invited Mr. Herbert to comment also on the settlement offer that had been made, which he did by letter dated November 10, 1993, indicating that the amount offered was insufficient and that it was too late now for him to apply again from the very start given that he had entered a new career. In his correspondence, Mr. Herbert asked to appear before the Commission personally. At no time during the proceedings before the Commission was Mr. Herbert represented by counsel.
[6] The Commission, following these communications, decided on December 10, 1993, that, "considering all the circumstances of the complaint, no further proceedings are warranted". In its decision, it mentioned only the April 14, 1993 submission of
Mr. Herbert, but it was agreed by counsel that the Commission also had before it Mr. Herbert's letter of November 10, 1993.
[7] Before us, Counsel for the R.C.M.P. indicated that, despite the dismissal of the complaint, the settlement offer remained open to this day, but counsel for Mr. Herbert expressed surprise at this, apparently believing that the offer had expired upon the dismissal of the complaint.
[8] In our view, given the unique facts of this case, and the apparent confusion that existed, the actions of the Commission may well have led Mr. Herbert to believe that what it was deciding on December 10, 1993 was whether the settlement proposed by the R.C.M.P. was adequate or, alternatively, whether the matter should be sent to a Conciliator, as suggested by the investigator. At no time would it have appeared to the respondent, unrepresented by counsel, given the particular history of this proceeding, that the Commission was considering the dismissal of his claim in its entirety at that stage, especially since he had asked to appear personally before it.
[9] In my view, in the specific circumstances of this complex and confusing case, fairness demanded that the true situation be explained to Mr. Herbert and an opportunity to make representations be provided to him following that explanation. The standard of fairness, therefore, was not complied with.
[10] These reasons are not meant to affect at all the decision of the Trial Division of in Fortin v. Canadian Pacific Ltd., [1996] F.C.J. No. 947, the facts of which are considerably different to those of this case, and which is being appealed to this Court.
[11] I feel compelled to say that it would be too bad if, after 10 years since the initial application including 5 years of litigation, this entire process should have to begin anew. The R.C.M.P. now appears to have responsibly recognized the injustice of its position on pacemakers and made changes. It has offered what, at the time, it may have thought was a reasonable monetary offer. The complainant, who was initially treated unfairly, fought valiantly on his own behalf to remedy the injustice, but he will never become a member of the R.C.M.P., which has caused him substantial damage. The Commission, even though I have found its procedure wanting, has acted in good faith throughout. I would express the hope that the parties, all of whom seem honestly to want to resolve the matter fairly, can come to some satisfactory agreement swiftly. If they cannot, then the Commission will undoubtedly, upon reconsideration in the light of these reasons, accept the recommendation contained in the Report to appoint a Conciliator, who will then seek to assist the parties in arriving at a reasonable accommodation.
[12] The appeal should be dismissed with costs of the appeal only.
"A.M. Linden"
J.A.
Toronto, Ontario
January 20, 1998
Date: 19980123
Docket: A-712-96
CORAM: THE CHIEF JUSTICE
LINDEN, J.A.
McDONALD, J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
(Respondent)
- and -
TIMOTHY JAMES HERBERT
Respondent
(Applicant)
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
(Respondent)
REASONS FOR JUDGMENT
THE CHIEF JUSTICE:
[1] I have read the reasons which my colleague, Linden, J.A., has prepared. Regretfully, I am unable to agree with them or with the proposed disposition. I will, therefore, state my reasons briefly. The operative paragraph of the order of the Motions Judge reads:
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IT IS HEREBY ORDERED that the matter be returned to the Commission for redetermination with the law and my Reasons for Order. The applicant is to be given an opportunity to make representations regarding the appropriateness of the Commission disposing of the complaint without reasons despite the investigator's recommendation that a conciliator be appointed. |
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His dispositive reasons are brief and I reproduce them in full:
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The decision of the Commission was made pursuant to subparagraph 44(3)(b)(i) of the Act. I have raised concerns about the Commission's use of this provision in another case, Louis Fortin v. Canadian Pacific Ltd ("CP Rail") (July 10, 1996), T-2989-94 where I wrote that: |
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...even decisions in the most basic administrative areas carry the requirement of fairness. The claimant must be permitted to know the case he or she has to meet and to have an opportunity to refute evidence or allegations, including the appropriateness of disposing of this matter under section 44(3)(b)(i) without reasons. Here, however, following the recommendation from the investigator that a conciliator be appointed and without providing the applicant any such opportunity, the Commission disposed of it on the basis of that statutory provision. |
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The Commission acted in an identical fashion in the case at bar and I must set it aside for the same reasons. |
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[2] I accept the facts as my colleague has stated them, but would add the following:
a. The investigator's report contains the following statements, among others:
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19. By letter dated 17 February 1993 the respondent informed the investigator as follows: |
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Our Director of Health Services has advised us that Mr. Herbert's medical condition is no longer a bar from him applying for engagement into the R.C.M.P. I have attached for your information, correspondence from Dr. Trottier in which he outlines our medical stance. You will note that this opinion has been given for this |
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individual on this occasion and it is not a blanket acceptance of all cases of pacemaker- using individuals. |
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You may now advise Mr. Herbert that we are prepared to accept his application for |
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engagement in the RCMP. He will, of course, be subjected the same criteria utilized in the normal procedures for recruit selection. The C.O. (Commanding Officer) "O" Division has been advised of this decision. |
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20. On 18 February 1993 the investigator informed the complainant of the respondent's position as outlined in its letter of 17 February 1993, in an attempt at resolving the complaint within the context of the Commission's Early Resolution Procedure. |
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21. By letter dated 17 March 1993, the complainant informed the investigator that he has difficulty with certain aspects of the respondent's position. He points out that he is particulary concerned with the statement that, "this opinion is given with respect to the pacemaker only and does not automatically extend to other aspects of the medical condition or other medications that the complainant may be taking." |
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22. The complaint asserts that the empirical medical evidence gathered indicates that his medical condition is corrected by the pacemaker. He points out that he is not taking any medication for this or any other medical condition. He suggests that the respondent's position may well allow it the latitude to disqualify him on the basis of his medical condition, |
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| and he made the following findings: |
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23. The evidence shows that the complainant's reliance on a pacemaker to regulate his heart rhythm will not prevent him from performing all of the duties of a general duty constable. |
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24. Medical evidence suggests that pacemaker technology makes such a device almost 100% reliable. Additionally, the device requires minimal maintenance. |
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26. The evidence also shows that the respondent pursues a policy or practice which deprives persons with pacemaker implant of employment opportunities as general duty constables. |
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| b. The investigator recommended that "in view of the foregoing ..... " a conciliator be appointed to attempt to bring a settlement of the complaint. |
c. It would appear that before submitting his report, the investigator had attempted to settle the complaint, as the record contains two documents (A.B. pages 23-25) indicating that he had mailed to the respondent in early March, 1993 draft minutes of settlement. Paragraphs 1 and 2 of the latter document read:
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1. The Respondent shall, within sixty (60) days of the date on which the Canadian Human Rights Commission advises the parties that it has approved this settlement, process the complainant's application for employment in the RCMP as a General Duty Constable. The complainant shall be subjected to the normal procedures used for recruitment and selection. |
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2. The Respondent shall, within sixty (60) days of the date on which the Canadian Human Rights Commission advises the parties that it has approved this settlement, pay to the complainant the sum of Two thousand dollars ($2000.00) for injury to his feelings and self respect. |
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d. A copy of the investigator's report was sent to the respondent. On 14 April 1993, the respondent wrote to the Commission, in part, as follows: (A.B. page 87):
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I would like to thank the Canadian Human Rights Commission for thoroughly investigating my complaint. Although I am somewhat mystified with the length of the investigation process, I am confident that a mutually agreeable settlement will be attained. |
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e. In that letter, the respondent did not comment on the settlement offer, so the Commission asked the investigator to go round to see the respondent and ascertain
his position in relation to it. In his reply, the respondent stated his objections in part, as follows:
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After four years of pursuing my complaint, I received a settlement offer on March 10th, 1993. As outlined previously in my letter dated March 17th, 1993, I cannot accept certain aspects of the settlement offer, particularly as follows: |
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1) "And whereas this opinion is given with respect to the pacemaker only and does not automatically extend to other aspects of the medical condition or other medications that the complainant may be taking..." |
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Due to the subsequent review by my medical practitioners and their interpretation, we believe this statement to be intentionally vague. The empirical medical evidence that has been gathered indicates that my medical condition is corrected by the pacemaker. Why does the offer of settlement not state this? Why is there reference of medications? I am not taking any medication for any reason. |
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I believe this statement allows the Respondent the necessary latitude to disqualify my application on the basis of my medical condition, not the pacemaker which was the basis of this complaint. |
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2) I also find the token monetary settlement of $2,000.00 to be inadequate and insulting (Please refer to Appendix 3). Any monetary component of the settlement must include compensation for: |
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a) INJURY TO SELF RESPECT AND FEELINGS |
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c) DELAY IN PROCESSING HIS COMPLAINT AND |
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f. He concluded his reply as follows:
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Over the last five years I have completed university, been married and commenced a satisfying career. The Respondent expects me to sacrifice my present career for the remote chance of becoming a General Duty Constable. Is this financially reasonable or rationale? I cannot justify leaving my present career for an opportunity of employment that I should have been granted five years ago. I do not feel that the offer of settlement adequately addresses or compensates for this situation. |
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In conclusion, I trust that the information I have provided adequately expresses my concerns regarding the offer of settlement. I do not find the offer financially or morally reasonable. I request the privilege of personally presenting my case to the Commission at its next meeting. I trust that my reasonable request can be accommodated. If I can be of any further assistance please contact me immediately. |
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[3] The investigator had also sent a copy of the report to the R.C.M.P. for comment. Their reply, dated 5 May, 1993, read, in part:
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I have reviewed the investigator's report along with your forwarding correspondence and have some serious misgivings with two of the concluding comments of the investigator. In the following text, I would like to address these observations and provide further explanation of our position of not having discriminated against Mr. HERBERT. |
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As the initial rejection of this applicant was based on medical concerns, the investigational report was submitted to the Director of Health Services for his review. I have attached a letter addressing his concerns for your consideration and you will note that it is his view that the Royal Canadian Mounted Police has taken a responsible approach to the medical issue of processing applicants who are pace-maker dependent. |
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I have great difficulty in accepting the recommendation found in paragraph number twenty-five (25) of the investigator's report wherein it is stated that: "The evidence also shows that the respondent pursues a policy or practice which deprives persons with pacemaker implant of employment opportunities as general duty constables". This conclusion is incorrect. The R.C.M.P. is tasked with the mandate of providing police services throughout Canada and consistent with this responsibility is ensuring that the membership is physically capable of carrying out these duties so that the members are not a risk to themselves, their fellow officers or the Public. |
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It was only after we received assurances from our Director of Health Services that Mr. HERBERT'S particular condition would not cause any risk, that we advised your C.H.R.C. investigator that his pace-maker condition would not be a bar from his submitting an application for engagement into the R.C.M.P.. For obvious medical/safety reasons we cannot make a blanket statement about the acceptance of people who are pace-maker dependent. As has been indicated, we must review each and every case based on individual circumstances. While well documented concerns did exist to restrict pace-maker dependent persons from being accepted into the R.C.M.P., this direction has now been revised to the extent that each case will be medically reviewed. |
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I also note concerns expressed in paragraph twenty-two, (22) by Mr. HERBERT, regarding the R.C.M.P. position that the Force is now prepared to accept Mr. HERBERT'S application, however, he would be subjected to the same criteria utilized in the normal procedures for recruit selection. One must recall that his |
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application was not processed once it was revealed that he was pace-maker dependent. The Force knows absolutely nothing about any other medical, suitability and security concerns and would be irresponsible if a full review of all these related issues was not conducted. |
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As a final comment, I do not see the need for appointing a conciliator as the R.C.M.P. has addressed the concerns giving rise to the Mr. HERBERT'S complaint and are now fully prepared to accept his application for engagement. |
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We are of the belief that we have satisfactorily addressed a situation by amending our application procedures to reflect the ongoing advances in the medical science field. It is my belief that the early resolution proposal prepared by the investigator and apparently rejected by Mr. HERBERT was a fare (sic.) and equitable settlement. |
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[4] After reviewing the foregoing and other material in its file, the Commission, dismissed the complaint pursuant to subparagraph 44(3)(b)(i) of the Act and informed the respondent of that fact by letter dated 10 December, 1993 (A.B. p. 33). The letter reads, in part:
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The Canadian Human Rights Commission has reviewed your complaint (T41271) against Royal Canadian Mounted Police dated June 6, 1989, alleging discrimination in employment on the ground of disability. The Commission also reviewed your submission dated April 14, 1993. |
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The Commission has decided that, considering all the circumstances of the complaint, no further proceedings are warranted. |
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Accordingly, the Commission has closed the file. |
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[5] I have added the additional facts to emphasize that there was before the Commission, when it decided the matter on 10 December, 1993, a full record, including an indication from the "parties" of their attitude to settlement. It is not surprising to me, therefore, that the Commission decided that it would be futile to
accept the recommendation of the investigator that a conciliator be appointed to settle the matter. Why should the Commission appoint a conciliator pursuant to subsection 47(1) of the Act for the purpose of attempting to bring about a settlement of the complaint when the cause of the complaint had been removed and only monetary compensation remained to be resolved? Furthermore, it was obvious that neither "party" was prepared to yield on the issue of compensation.
[6] The decision which the Commission made was, in my view, the only rational one open to it in the circumstances, since the R.C.M.P. had removed the cause of the
respondent's initial complaint and the possibility of a monetary settlement satisfactory to the respondent, seemed unlikely, at best. In my respectful view, the decision which the Commission made was well within its sphere of expertise. It was neither unreasonable nor unfair either procedurally or in substance. The Motions Judge should have respected it. He did not. I would, therefore, allow the appeal with costs, set aside the decision of the Motions Judge and dismiss the application for judicial review.
"Julius A. Isaac"
C.J.
Toronto, Ontario
January 23, 1998
FEDERAL COURT OF CANADA
Date: 19980120
Docket: A-712-96
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
(Respondent)
- and -
TIMOTHY JAMES HERBERT
Respondent
(Applicant)
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
(Respondent)
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-712-96
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
- and -
TIMOTHY JAMES HERBERT
-and-
CANADIAN HUMAN RIGHTS COMMISSION
DATE OF HEARING: JANUARY 19, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
Delivered from the Bench at Toronto, Ontario
on Tuesday January 20, 1998
APPEARANCES: Mr. Ian McCowan
For the Appellant (Respondent)
The Attorney General of Canada
Mr. Patrick Clement
Mr. Charles Roach
For the Respondent (Applicant)
Timothy James Herbert
Mr. Eddie Taylor
For the Respondent (Respondent)
Canadian Human Rights Commission
Page 2
Deputy Attorney General
of Canada
For the Appellant (Respondent)
Mr. Charles Roach
ROACH, SCHWARTZ AND ASSOCIATES
Barristers and Solicitors
688 St. Clair Avenue West
Toronto, Ontario
M6C 1B1
For the Respondent (Applicant)
Timothy James Herbert
Mr. Eddie Taylor
Canadian Human Rights Commission
Place de Ville, Tower "A"
320 Queen Street
Ottawa, Ontario
K1A 1E1
For the Respondent (Respondent)
Canadian Human Rights Commission
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