Garvey v. Meyers Transport Ltd., 2005 FCA 327

Date: 20051013

Docket: A-27-05

Citation: 2005 FCA 327

CORAM:        DESJARDINS J.A.

EVANS J.A.

SHARLOW J.A.

BETWEEN:

KENNETH GARVEY

                                                                                                                                            Appellant

and

MEYERS TRANSPORT LIMITED

                                                                                                                                        Respondent

                                       Heard at Toronto, Ontario, on September 26, 2005.

                               Judgment delivered at Ottawa, Ontario, on October 13, 2005.

REASONS FOR JUDGMENT BY:                                                                       DESJARDINS J.A.

CONCURRED IN BY:                                                                                                    EVANS J.A.

                                                                                                                                  SHARLOW J.A.

Date: 20051013

Docket: A-27-05

Citation: 2005 FCA 327

CORAM:        DESJARDINS J.A.

EVANS J.A.

SHARLOW J.A.

BETWEEN:

KENNETH GARVEY

                                                                                                                                            Appellant

and

MEYERS TRANSPORT LIMITED

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

DESJARDINS J.A.

[1]                The appellant, Kenneth Garvey, is appealing a decision of the Federal Court (Garvey v. Meyers Transport Ltd., 2004 FC 1712), dismissing his application for judicial review of a decision of the Canadian Human Rights Commission (the Commission), which dismissed his human rights complaint against the respondent, Meyers Transport Limited (Meyers Transport).

[2]                The appellant was employed at Meyers Transport since January 11, 1993, where he held the position of Terminal Manager. In the spring of 2002, he experienced sudden intense headaches, insomnia and other stress-related illnesses. He saw a doctor and a specialist. He took his three week holiday from August 12 to September 3, 2002. On his return, he and his employer

had several discussions about his retirement. He was offered the position of Special Project Manager, which he refused because it involved a reduction in hours and a corresponding

decrease in salary. On September 20, 2002, he received a letter of termination, with four months working notice of the termination. The letter stated that his performance was substandard.

[3]                On December 9, 2002, the appellant filed a complaint with the Commission, alleging that the respondent had discriminated against him during the course of his employment by proposing to terminate his employment because of his age (63) and by treating him in an adverse differential manner because of his disability (illnesses), contrary to section 7 of the Canadian Human Rights Act (R.S. 1985, c. H-6) (the Act) .

[4]                The investigator for the Commission filed her report on February 10, 2004. She recommended, pursuant to section 47 of the Act, the appointment of a conciliator to attempt to bring about a settlement of the complaint. She also recommended, pursuant to paragraph 44(3)(a) of the Act, the appointment of a Human Rights Tribunal to inquire into the complaint.

[5]                Both the appellant and the respondent were given the opportunity to respond to the content of the investigator's report and availed themselves of this opportunity. The appellant submitted letters dated March 4, 2004, and March 14, 2004. The respondent submitted letters dated March 1, 2004, and March 18, 2004. In the March 18 letter, the respondent set out a chain of events over a three-year period that led to the appellant's termination. Three of the letters,

those dated March 1, March 4 and March 14, were cross-disclosed. The Commission did not, however, disclose to the appellant the respondent's letter of March 18. Consequently, the appellant was not given an opportunity to comment.

[6]                The appellant received, on April 30, 2004, the following letter from the Commission, dated April 27, 2004:

     Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because:

•     the evidence indicates that the complainant's performance and ability to perform his new functions in an efficient and effective manner were a factor in his dismissal, and;

•      the evidence does not support that the respondent had discriminated against the complainant on the basis of age.

Accordingly, the file on this matter has now been closed.

[7]                   The appellant applied for judicial review.

The decision under appeal

[8]                The application judge stated at the outset that the applicable standard of review was reasonableness simpliciter (Canada (Director of Investigation and Research) v. Southam), [1997] 1 S.C.R. 748, para. 56, according to which "a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it".

[9]                Both parties accepted this proposition.

[10]            The appellant contended that the Commission had, in its first key proposition, recognized implicitly that discrimination had occurred but that it was not primary or dominant. The appellant claimed that the Commission erred in so doing since, once discrimination is found, it is not necessary for the discrimination to be primary or dominant. The application judge rejected this contention. He felt that a more reasonable reading of this first key proposition was that the appellant's performance had been a factor in his dismissal. Other factors mentioned in the investigator's report included downsizing and reorganization of Meyers Transport, and these factors could well have been the primary factors. The Commission, he wrote, then proceeded to clearly address the issue of discrimination. The application judge held that the Act did not require the provision of reasons, it only required that the appellant be notified of the Commission's decision. The sparse reasons given by the Commission were sufficient in light of the case law (Kallio v. Canadian Airlines International Ltd. (1996), 113 F.T.R. 275, para. 13).

[11]            Secondly, the appellant pleaded that the respondent's letter of March 18 contained new material facts that were vital to his case and that the letter should have been disclosed to him. Consequently, he claimed, the Commission had denied him procedural fairness since it had not given him an opportunity to comment. The application judge recognized that it would have been preferable to cross-disclose to the appellant all material received from the respondent, but he

held that the failure to disclose was not fatal, considering that the material contained in the March 18 letter was not, in substance, new but had been mentioned or alluded to in the investigator's report.

[12]            The application judge then considered the appellant's third contention that the Commission had not dealt with his disability. The application judge quoted the investigator's report which said that no medical information had been provided with regard to the exact nature of the disability or any limitations imposed as a result. The investigator was of the view that the evidence was too sparse to warrant a recommendation. In light of this, the application judge concluded that it was reasonable that the Commission did not deal with the allegation of discrimination based on disability.

Analysis

[13]            The Commission was acting pursuant to subparagraph 44(3)(b)(i) of the Act, which states:

[14]            The Commission has a broad discretion to determine whether, "having regard to all the circumstances", an inquiry into a complaint is warranted (Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 (C.A.). I cannot accept the appellant's contention that the Commission, in its first key proposition, implicitly found that discrimination based on age was a factor in the dismissal but that it was not the primary or dominant factor. The Commission indicated in its first key proposition that the quality of the appellant's performance at work had been a factor in his dismissal. It then proceeded to hold in its second proposition that the

evidence did not support an allegation of discrimination on the basis of age. The application judge made no error in reading the decision of the Commission as he did, nor did he err in his appreciation of the appellant's first contention.

[15]            I agree with the application judge's conclusion that the material in the letter of March 18, 2005, was either mentioned or alluded to in the investigator's report. He could have added that

other facts mentioned in the respondent's letter of March 18, 2005, were already contained in the respondent's letter of March 1, 2004, which had been disclosed to the appellant. For the rest,

I am far from being persuaded by the appellant's argument that they were material to his case. It is however worth repeating what this Court said in Mercier (supra para. 18), that it would be in the Commission's interest, if only to protect itself in advance from any criticism, to require that the parties exchange their respective comments. I would add that the Commission might wish to consider maintaining a full cross-disclosure policy. It proceeded to cross-disclose in this case but failed to carry out this procedure in its entirety.

[16]            The appellant finally claims that the Commission failed to fully consider the evidence with respect to his allegation of disability. On this point, the investigator noted that "no medical information was provided as to the exact nature of the complainant's stress related to illness and ... what limitations, if any, it imposed on his ability to perform his job." The investigator made

no explicit determination on the question of disability but, reading this part of the reasons as

a whole, it is reasonable to infer that he did not think it warranted a reference to conciliation or a hearing before the Tribunal.

[17]            The appellant claims, however, that in his letter of reply to the investigator's report, dated March 4, 2004, he made the following offer to supply additional evidence concerning his alleged disability:

In the Report [at para.] #35, "no medical information has been provided as to the exact nature of my stress related illness". However, a report from our Family Physician could be provided if required by The Commission. I only received the Investigators [sic] Report on the morning of February 18, 2004, and was out of the Country from February 18, 2004 until March 2, 2004, and had to respond to The Report by March 5, 2004. I did not have time to book an appointment or get a letter from the doctor. (Appellant's Record, page 49, first paragraph.)

[Emphasis added.]

[18]            The evidence discloses no effort on the part of the Commission to follow up on this offer, even though the investigator's final report repeats that the appellant's allegation of discrimination on the ground of disability is not supported by medical evidence.

[19]            The question to be determined therefore is whether, on the facts of this case, the duty of fairness required the investigator to advise the appellant that the investigator would wait for a given number of days to allow him to submit a letter from his doctor.

[20]            Sub-sections 43(1), (2) and (4) of the Act provide as follows:

[21]            No regulations have been adopted to guide the investigator in the task he or she is mandated to perform.

[22]            The importance of a thorough investigation was considered by Nadon J. (as he then was) in the leading case of Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), affirmed (1996), 205 N.R. 383 (C.A.) (see also Tahmourpour v. Canada (Solicitor General) 2005 FCA 113, para. 8). In Slattery, Nadon J. explained (at para. 53) that the requirement

of thoroughness of an investigation stems from the essential role played by investigators in the determination of the merits of particular complaints. Nadon J. wrote at para. 56 of his reasons:

Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.

[Emphasis added]

[23]            Subsequent cases have established that a deficient investigation taints the Commission's decision which is based upon the investigator's report, since "[i]f the reports were defective,

it follows that the Commission was not in possession of sufficient relevant information upon which it could properly exercise its discretion" (Grover v. Canada (National Research Council), 2001 FCT 687 at para. 70); see also Singh v. Canada (Attorney General), 2002 FCA 247 (C.A.) at para. 7 and Kollar v. Canadian Imperial Bank of Commerce, 2002 FCT 848 at para. 40.

[24]            In the case at bar, the investigator did not pursue the offer made by the appellant. While it is primarily the responsibility of the appellant to bring forward the evidence available to him

that is required to prove his case, the fact that the investigator did not follow up on the appellant's offer may have led the appellant to believe that a letter from his doctor was not essential or critical to his case.

[25]            But, more importantly, even if the investigator had acted upon the offer made by the appellant and even if a written medical assessment had been forwarded to the investigator by the appellant after the receipt of the investigator's report, the fact of the matter remains that the appellant never gave his employer, at the time of his employment, a medical assessment evidencing a disability. The appellant never requested accommodation on account of his disability nor did he advise the respondent of any limitations or restrictions he had in the performance of his work on account of his disability (Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 994-995).

[26]            Therefore, assuming without deciding that it could be said that the investigator failed to obtain "obviously crucial evidence" (as per Nadon J. in Slattery), the effect of this failure, in the case at bar, would be close to nil. The employer, although aware of the sudden headaches and insomnia of the appellant, was never made aware of any kind of disability which required accommodation.

[27]            I would dismiss this appeal. The respondent does not insist on costs.

                "Alice Desjardins"                         

                             J.A.

"I agree.

     John M. Evans J.A."

"I agree.

     K. Sharlow J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

NOTE: TO COMPLETE

DOCKET:                                                       A-27-05

STYLE OF CAUSE:                                       KENNETH GARVEY and MEYERS TRANSPORT LIMITED

PLACE OF HEARING:                                             Toronto, Ontario

DATE OF HEARING:                                               September 26, 2005

REASONS FOR JUDGMENT:                                Desjardins J.A.

CONCURRED IN BY:                                              Evans J.A.

Sharlow J.A.

DATED:                                                          October 14, 2005

APPEARANCES:

SOLICITORS OF RECORD: