Date: 20091104
Docket: A-78-08
Citation: 2009 FCA 320
CORAM: NADON
J.A.
SEXTON
J.A.
SHARLOW
J.A.
BETWEEN:
PETER BOLDY
Appellant
and
ROYAL BANK OF CANADA
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
The
appellant Mr. Boldy filed a complaint to the Canadian Human Rights Commission
alleging that his employer, Royal Bank of Canada, discriminated against him by failing to
accommodate his disability. By letter dated February 9, 2007, Mr. Boldy was
informed that his complaint had been dismissed by the Commission because, based
on the findings of the investigator, Mr. Boldy’s accommodation request was not
rationally connected to his disability. Mr. Boldy applied to the Federal
Court for judicial review of the Commission’s decision. That application was
dismissed by Strayer D.J., for reasons reported as Boldy v. Royal Bank of
Canada, 2008 FC 99. Mr. Boldy now appeals to this Court. The task of
this Court is to determine whether the Federal Court judge selected the appropriate standard of review and applied it
correctly (Telfer v. Canada (Revenue Agency),
2009 FCA 23 at paragraphs 18 and 19.).
[2]
Mr. Boldy
was first employed by the Royal Bank in 1986. In 2002, he occupied the position
of Technical Systems Analyst. In or about February of that year, he complained
to the Royal Bank’s Corporate Investigation Services about certain financial
irregularities and over-configuration of Royal Bank’s mainframe computers. With
respect to those complaints, Mr. Boldy considers himself a whistle-blower,
attempting to expose corporate improprieties.
[3]
By letter
dated October 16, 2002, Mr. Boldy was informed by the Royal Bank that the
complaints were investigated and found to be without foundation. Mr. Boldy
disputes that there was a proper investigation. It is not possible to discern
from the record whether there was any merit to Mr. Boldy’s 2002 complaints or
his subsequent allegations that they were not properly investigated by the
Royal Bank.
[4]
Also in
2002, Royal Bank expressed concern about Mr. Boldy’s health and well-being, and
referred him to an appointment with Dr. Murphy, a psychiatrist. Dr. Murphy
expressed the opinion that Mr. Boldy suffered from a mental illness that made
him unable to continue working. On the strength of that report, Mr. Boldy went
on disability leave. He received short-term disability benefits beginning in
October of 2002 and long term disability benefits beginning in February of 2003
and ending almost three years later. Mr. Boldy alleges that the Royal Bank’s
professed concern about his health was in reality a form of retaliation against
him for his complaints, and that he was coerced into applying for disability
benefits.
[5]
In October
of 2004, counsel for Royal Bank received a letter from Mr. Boldy’s then counsel
suggesting that Mr. Boldy’s physicians had opined that he could return to work
subject to certain conditions, including an independent public investigation
into what Mr. Boldy considered his whistle-blowing allegations. Mr. Boldy
characterizes this attempt to obtain an independent investigation as a request
for accommodation of his disability. The requested accommodation is stated in these
terms by Mr. Boldy’s then counsel, in a letter dated October 17, 2006 to the
investigator appointed by the Commission to investigate Mr. Boldy’s complaint
(Appeal Book, page 81):
|
A
type of quasi independent review and analysis of the circumstances whereby
objective analysis could be performed and recommendations made relating to
the concerns Mr. Boldy brought to the attention of [the Royal Bank].
|
[6]
In support
of Mr. Boldy’s position, Royal Bank was provided with a copy of a report from
Dr. Robert Rehaluk in which the idea of an independent review of Mr. Boldy’s
concerns was set out in some detail. The report was redacted so that Dr.
Rehaluk’s diagnosis of Mr. Boldy’s condition was not disclosed to Royal Bank.
The redaction appears to have been motivated by Mr. Boldy’s concern about the
stigma sometimes attached to persons with mental disabilities. Mr. Boldy had
provided an unredacted copy of Dr. Rehaluk’s report to Manulife, the
administrator of Royal Bank’s long term disability program, but did not consent
to Manulife sharing that copy with Royal Bank without assurances that the
diagnosis would not be disclosed to non-medical personnel.
[7]
Royal Bank
did not consider the report of Dr. Rehaluk to be evidence that Mr. Boldy was
fit to return to work. Indeed, the report indicated that he was not fit to
return to work and would not be fit unless the suggested investigation were to
occur. The Royal Bank refused to initiate any such investigation because its
position was that an investigation had already occurred and no basis was found
for Mr. Boldy’s allegations.
[8]
Mr.
Boldy’s complaint to the Commission alleges a failure to accommodate his
disability or perceived disability. Reasonable accommodation is a duty an
employer owes in certain circumstances to an employee with a physical or mental
disability. The investigator appointed by the Commission was required to
consider, among other things, whether and how the requested accommodation could
alleviate Mr. Boldy’s disability (the existence of which was undisputed).
[9]
The
investigator conducted an investigation and made a report after receiving
submissions from Mr. Boldy and Royal Bank. He recommended that the Commission
dismiss the complaint on the basis that Mr. Boldy’s accommodation request was
not rationally connected to his disability. The Commission accepted that
recommendation and dismissed the complaint.
[10]
Mr. Boldy
applied to the Federal Court for judicial review of the Commission’s decision.
Strayer D.J. dismissed the application on the basis that the Commission’s
decision was based on the correct legal principles and was reasonable on the
facts.
[11]
Mr. Boldy
argues that Strayer D.J. was wrong to refer in his reasons to the diagnosis
stated by Dr. Murphy in his 2002 report, because by 2004 a different diagnosis
had been reached by Mr. Boldy’s psychiatrist, Dr. R. Rehaluk, and his clinical
psychologist, Dr. Nexhipi.
[12]
I am not
persuaded that Strayer D.J. erred in this respect. Assuming in Mr. Boldy’s
favour that the 2004 reports of Dr. Rehaluk and Dr. Nexhipi can be understood
to state a new diagnosis (which in my view is not clear), the reasons of
Strayer D.J. indicate that he was aware of those reports. He was not required
to recount their contents in detail.
[13]
Mr. Boldy
also argues that Strayer D.J. should not have found the decision of the
Commission to be reasonable when it was based on an investigator’s report that
did not state or disclose an understanding of the 2004 diagnosis. Mr. Boldy
argues that it is not reasonable to find that there is no rational connection
between the disability and the requested accommodation in the absence of an
understanding of the disability. Given the particular facts of this case, I
cannot accept that argument.
[14]
The
requested accommodation was an independent public investigation of what Mr.
Boldy considered to be his whistle blowing complaints. Dr. Nexhipi and Dr.
Rehaluk express the opinion in their 2004 reports that such an investigation,
if conducted in a manner and resulting in a conclusion acceptable to Mr. Boldy,
would alleviate his feelings of betrayal and mistrust which were either a cause
or a manifestation of Mr. Boldy’s disability. The reports set out the analysis
underlying that opinion, but in my view the analysis falls short of
establishing how or why the investigation sought by Mr. Boldy would or could
alleviate his disability. In my view, it was reasonably open to the
investigator, and thus the Commission, to find that there was no rational
connection between Mr. Boldy’s disability and the accommodation he requested.
[15]
Mr.
Boldy argues that the decision of the investigator, the Commission and Strayer
D.J. was the result of unconscious bias in favour of the Royal Bank and against
Mr. Boldy. There is no factual foundation for this allegation and I would
reject it.
[16]
I
conclude that there is no basis upon which the intervention of this Court can
be justified. I would dismiss this appeal with costs.
“K.
Sharlow”
“I
agree.
M. Nadon J.A.”
“I
agree.
J. Edgar Sexton J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-78-08
APPEAL FROM
A REASONS FOR JUDGEMENT AND JUDGMENT OF THE HONOURABLE STRAYER, DEPUTY JUDGE OF
THE FEDERAL COURT DATED JANUARY 25, 2008, ON COURT FILE NO. T-433-07
STYLE OF CAUSE: Peter
Boldy v.
Royal Bank of Canada
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 14, 2009
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: NADON J.A.
SEXTON J.A.
DATED: November 4, 2009
APPEARANCES:
|
Peter Boldy
|
THE APPELLANT,
ON HIS OWN BEHALF
|
|
Richard J.
Charney
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Peter Boldy
Toronto, Ontario
|
THE APPELLANT,
ON HIS OWN BEHALF
|
|
Ogilvy Renault
LLP
Toronto, Ontario
|
FOR THE RESPONDENT
|
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