Date:
20070312
Docket: A-140-06
Citation: 2007 FCA 97
CORAM: DÉCARY
J.A.
EVANS
J.A.
MALONE
J.A.
BETWEEN:
THE WIKWEMIKONG TRIBAL POLICE
SERVICES BOARD
APPELLANT
and
JAMES DARIN CORBIERE
RESPONDENT
REASONS FOR JUDGMENT
MALONE J.A.
I.
Introduction
[1]
This is an appeal from an order of a Judge of the Federal Court, dated
March 9, 2006 (cited as 2006 FC 312), which allowed Mr. Corbiere’s application
for judicial review with respect to a decision of the Human Rights Commission.
The Commission had dismissed Mr. Corbiere’s complaints against his employer,
Wikwemikong Tribal Police Services Board (Board). The Judge found that the
Commission made a number of errors in its investigation of his complaints of
discrimination under the Canadian Human Rights Act, R.S.C. 1985, c.H-6
(the Act).
[2]
I would allow the appeal for the following reasons.
II. Factual Background
[3]
In February 1992, Mr. Corbiere was employed as a police officer on the
Wikwemikong Unceded Indian Reserve on Manitoulin Island. In
October 1997, during his employment, he sustained work-related back injuries
that made it necessary for him to go on disability leave. He returned to work
in January 1998 under the close supervision of his physician and could only
perform modified duties.
[4]
Despite being placed in light duty and sedentary activities, in June
1998, Mr. Corbiere complained that his back was too sore to continue to work
and he once again went on medical leave. In November 1998, Mr. Corbiere
received medical clearance to return to work, but still could only perform
modified duties.
[5]
Upon his return to work, Mr. Corbiere proposed to the Board that he act
as a “detective constable,” in a position created so as to allow him to perform
limited duties. The Police Chief reserved his decision and in the interim, Mr.
Corbiere performed the duties as outlined in his proposal for a period of three
months. He was then informed by the Board that his proposal would not be
accepted and that his employment would be terminated in thirty days. Mr. Corbiere
was told that he could respond to this decision at a Board meeting to be held on
February 10, 1999.
[6]
Mr. Corbiere attended that meeting and was given an opportunity to rebut
the Board’s decision but the decision to terminate his employment remained
unchanged. On March 28, 2000, he filed a complaint with the Commission
pursuant to section 7 of the Act alleging that the Board had discriminated
against him in the course of employment by failing to accommodate his
disability (being his back injury) and by terminating his employment because of
his disability.
[7]
An investigation was launched and ultimately a decision was reached by
way of an Investigator’s Report (the Report) prepared by Silvilyn Holt dated
September 12, 2003. The Report recommended that the Commission dismiss the
complaint, principally because the decision to terminate his employment was
based on medical evidence which indicated that Mr. Corbiere would not be able
to perform the full duties of a police officer and that there was no funding to
create the position of police constable.
[8]
By letter dated December 15, 2003, the Commission informed Mr. Corbiere
that his complaint had been dismissed pursuant to section 44 of the Act, which
provides that the Commission, on receipt of an investigator’s report, shall
dismiss a complaint if it is satisfied that, having regard to all the
circumstances of the complaint, an inquiry into the complaint is not warranted.
Mr. Corbiere then filed an application for judicial review in the Federal
Court alleging factual errors on the part of the Commission.
III. Decision Below
[9]
Mr. Corbiere was not represented by counsel at the hearing before the
Judge. He argued that the Commission improperly rejected his evidence and
committed an error in its interpretation and application of the three-part test
for accommodation set out by the Supreme Court of Canada in British Columbia
(Public Service Employee Relations Commission) v. British Columbia Government
and Service Employees’ Union (Meiorin Grievance), [1999] 3 S.C.R. 3 [Meiorin].
[10]
In determining the standard of review, the Judge applied the pragmatic
and functional analysis and determined that the applicable standard of review
was correctness.
The Judge concluded that the Commission committed two errors in
dismissing Mr. Corbiere’s complaint. First, it failed to make the necessary
finding that he suffered from a disability and then failed to apply the Meiorin
test to determine if the elements of a bona fide occupational
requirement were met. As a result, the Judge allowed Mr. Corbiere’s
judicial review application.
IV. Legislative Framework
[11]
The
legislation relevant to this appeal is provided for below:
|
3. (1) For
all purposes of this Act, the prohibited grounds of discrimination are race,
national or ethnic origin, colour, religion, age, sex, sexual orientation,
marital status, family status, disability and conviction for which a pardon
has been granted.
7. It is a
discriminatory practice, directly or indirectly,
(a) to refuse to employ or
continue to employ any individual, or
(b) in the course of employment, to
differentiate adversely in relation to an employee, on a prohibited ground of
discrimination.
44. (3) On receipt of a
report referred to in subsection (1), the Commission
…
(b) shall dismiss the complaint to which
the report relates if it is satisfied
(i) that, having regard to all the
circumstances of the complaint, an inquiry into the complaint is not
warranted, or
(ii) that the complaint should be
dismissed on any ground mentioned in paragraphs 41(c) to (e).
|
3. (1) Pour l’application de la présente loi, les motifs de
distinction illicite sont ceux qui sont fondés sur la race, l’origine
nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation
sexuelle, l’état matrimonial, la situation de famille, l’état de personne
graciée ou la déficience.
7. Constitue un acte discriminatoire, s’il est fondé sur un motif
de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d’employer ou de continuer
d’employer un individu;
b) de le défavoriser en cours d’emploi.
44. (3) Sur réception du
rapport d’enquête prévu au paragraphe (1), la Commission :
…
b) rejette la plainte, si elle est
convaincue :
(i) soit que, compte tenu des
circonstances relatives à la plainte, l’examen de celle-ci n’est pas
justifié,
(ii) soit que la plainte doit
être rejetée pour l’un des motifs énoncés aux alinéas 41c) à e).
|
V. Issues
[12]
The two
issues raised in this appeal are whether the judge erred by:
1. selecting the wrong standard
of review; and
2. concluding
that the Commission failed to properly apply the Meiorin
test.
VI.
Analysis
Issue 1: Did the Judge select the
correct standard of review?
[13]
The role
of the Commission is to investigate complaints and to refer such complaints to
the Canadian Human Rights Tribunal if they warrant further inquiry. The
Commission has very wide discretion when investigating and screening applicants.
The appropriate level of deference was considered by this Court in Bell
Canada v. Communications, Energy and Paperworkers Union of Canada,
[1999] 1 F.C. 113 (C.A.) [Bell Canada] where Décary J.A. explained that
the Act grants the Commission a remarkable degree of latitude when it is
performing its screening function on receipt of an investigation report. At
paragraph 38 he stated:
Subsections 40(2) and
40(4) and sections 41 and 44 are replete with expressions such as “is satisfied”,
“ought to”, “reasonably available”, “could more appropriately be dealt with”,
“all the circumstances”, “considers appropriate in the circumstances” which
leave no doubt as to the intent of Parliament. … it may safely be said as a
general rule that Parliament did not want the courts at this stage to intervene
lightly in the decisions of the Commission.
[14]
This Court
has affirmed this statement in numerous decisions and has interpreted it as
indicating a standard of review of reasonableness (see Bradley v. Canada
(Attorney General) (1999), 238 N.R. 76 (F.C.A.) at para. 9; Zündel v.
Canada (Attorney General) (2000), 267 N.R. 92 (F.C.A.) at para. 5; Gee
v. Canada (Minister of National Revenue) (2002), 284 N.R. 321 (F.C.A.) at
para. 13). In Holmes v. Canada (Attorney General) (1999), 242 N.R. 148
(F.C.A.) at para.5, Décary J.A. reiterated his analysis in Bell Canada and
characterized the decision of the Commission by stating that it is entitled,
and obligated, to have regard to all of the facts and allegations placed before
it.
[15]
Having
found the correct standard of review, the role of an appellate court is to
apply that standard directly to a decision of the Tribunal. In a recent
decision, Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C. 610, this Court reviewed its role
on the appeal of a decision of the Federal Court on a judicial review
application. Writing for the panel, Rothstein J.A. (as he then was) stated:
However, in more recent
cases, the Supreme Court has adopted the view that the appellate court steps
into the shoes of the subordinate court in reviewing a tribunal's decision. …
The appellate court determines the correct standard of review and then decides
whether the standard of review was applied correctly. … In practical terms,
this means that the appellate court itself reviews the tribunal decision on the
correct standard of review.
[16]
In brief,
because decisions of the Commission are entitled to some deference, the
court will only intervene when an unreasonable decision is made. Accordingly,
the Judge erred in reviewing the Commission’s decision on a correctness
standard. As such, this Court must apply the reasonableness simpliciter
standard directly to the decision of the Commission.
Issue
2: Did
the Judge err by concluding that the Commission failed to properly apply the Meiorin test?
[17]
In McGill
University Health Centre (Montreal General Hospital) v. Syndicat des employés
de l’Hôpital général de Montréal, 2007 SCC 4, the Supreme Court
of Canada recently reiterated that the claimant has a threshold burden to
establish a prima facie case of discrimination. It is not enough to
impugn an employer’s conduct on the basis that what was done had a negative
impact on an individual in a protected group: “It is the link between that
group membership and the arbitrariness of the disadvantaging criterion or
conduct, either on its face or in its impact, that triggers the possibility of
a remedy” (para. 49). Here, it is implicit in the Commissioner’s letter of
December 15, 2003 (supra at para. 8) that such a link was established;
Mr. Corbiere being employed by the Board and being fired for his physical
inability to perform full police duties. Thus, a link is made and the Meiorin
test is engaged.
[18]
In assessing
the Commission’s decision not to refer Mr. Corbiere’s complaints to the
Tribunal, the Judge held that the Commission failed to properly apply the Meiorin
test; specifically, that the investigator did not address the first two
elements of that test in her report.
[19]
The
Supreme Court established the Meiorin test to determine whether a prima
facie discriminatory standard is a bona fide occupational
requirement. It consists of the following three factors:
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.
[20]
The first
step is to identify if there is a rational connection between the general
purpose for which the impugned standard was introduced and the objective
requirements of the job. In my opinion, the Board’s general purpose in
requiring their police officers to have the physical ability to perform full
police duties is to ensure that their employees are able to perform the job of
a police officer (or police constable) safely and efficiently. Paragraph 19 of
the Report states:
19. On the issue of
police patrol, the witness states that this function is a feature of the police
constable job. The amount of time spent on patrol varies from day to day
depending on the situation. However, the patrol function carries an inherent
safety risk as no one can predict how any individual would react when
approached. The officer relies on his or her partner to cover “their back. If
your partner is not physically able to cover you you feel unsafe, you feel
uncomfortable.”
Accordingly, it is clear that there is a rational connection
between this general characteristic and the performance of particular tasks
expected of a police officer.
[21]
Secondly, there
is no indication that the Board did not act honestly and with a good faith
belief that adopting the standard was necessary to ensure that their employees
perform the job safely and efficiently. It did not intend to discriminate
against Mr. Corbiere as a result of his disability.
[22]
Finally,
when determining whether an existing standard is reasonably necessary for the
employer to accomplish its purpose 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. In Meiorin
at para. 63, McLachlin J. (as she then was) considered the factors that may be relevant
when assessing an employer’s duty to accommodate an employee to the point of
undue hardship. Among these factors are the financial cost of the possible
method of accommodation and the prospect of substantial interference with the
rights of other employees.
[23]
Therefore,
in considering the third step in the Meiorin analysis, it is necessary
to turn to the full Report, which revealed the following nine key facts:
a.
The Board
is a small police force of no more than 10 officers.
b. Board funding is based on the
number of officers multiplied by approximately $100,000.00 and is provided by Canada and Ontario on a fixed basis.
c.
The Board
gave Mr. Corbiere long periods of time to recuperate in the hope that he would
recover from his back injury.
d. When Mr. Corbiere returned from
his disability leave, he proposed to work in a detective constable position,
and was allowed to do so for three months. Based on the evidence which was
before the Commission, but which was not before the investigator, it is clear
that Mr. Corbiere never did eventually perform the full duties of the detective
constable position that he was proposing.
e.
The Board
worked actively with the Workers Safety Insurance Board (WSIB) to accommodate
his restrictions and his co-workers performed all the extra field duties in his
absence and while he was on limited duties. Moreover, the Board actively
cooperated and encouraged him to perform limited duties requiring little or no
physical exertion or risk.
f.
Mr. Corbiere
was unable to complete the following job duties of regular police officers due
to safety concerns both of himself and his fellow officers:
i.
interrogation
of suspects;
ii.
enforcement
of provincial statutes;
iii.
making
arrests under federal and provincial legislation;
iv.
escort of
prisoners, courtroom security or processing arrested persons in custody;
v.
execution
of warrants of committal and warrants to arrest; and
vi.
escort and
conveyance of mentally incompetent persons to and from hospitals or other
places.
g.
The Board
stated that it kept Mr. Corbiere busy during those three months in the hope
that he could recover to the point where he could continue to provide some
reasonable measure of service. The Board decided to terminate his employment
only after receipt of medical assessment that Mr. Corbiere was permanently
unable to engage in the regular duties essential to a police officer.
h.
The Board
determined that it was not possible to assemble sufficient duties in order to
create a new permanent position of detective constable. As individual police
constables did their own follow-up and investigations there was not sufficient
investigative work for a detective constable. Moreover, it was not feasible for
the Board to have someone work in this capacity when the Chief of Police
routinely found himself dealing with what he considered lesser police duties. Even
if the Board could assemble sufficient duties, it did not have the funding to finance
this position.
i.
The
question of accommodation in other unrelated jobs within the Wikwemikong Band
Council operations was posed. The Band Council replied that nothing was
available. Mr. Corbiere was eventually offered the position of Court Co-ordinator,
which he declined because it would have resulted in the lay off of another
person.
[24]
Accordingly,
the investigator reported as follows:
37. The investigation
establishes that while the Complainant states that he could have carried out
the duties of a police officer, the medical opinion was that he could not carry
out the ‘full’ duties. Moreover, specific barriers to his ability to perform
his duties were identified. These included safety concerns, e.g. situations
with violence and health concerns. The fact that the Complainant himself
proposed that a new position be created indicates that he himself was aware of
and shared these concerns.
[25]
In
essence, the core question is whether the Commission could reasonably have been
satisfied, having regard to all the circumstances surrounding the complaint,
that a referral to the Tribunal is not necessary. The investigation indicated
that the Board had accommodated Mr. Corbiere’s disability needs by providing
him with modified work and facilitated his participation in the WSIB
rehabilitation plan. Moreover, that this plan covered the complete costs of
Mr. Corbiere securing a bachelor’s degree and a teacher’s certificate at a
projected cost of $690,000.00. The ultimate decision to terminate was based on
medical evidence, which indicated that Mr. Corbiere would not be able to
perform the full duties of a police officer. The job that Mr. Corbiere believed
the Board should have given him simply did not exist, nor is there any funding
in the Board’s budget to create such a position.
[26]
Accordingly, in my opinion, there was a rational
basis for the conclusion reached by the Commission. Its decision, having
regard to all the circumstances it was entitled to take into account, cannot be
regarded as unreasonable.
VII. Conclusion
[27]
Therefore,
it was open to the Commission to reasonably conclude that a referral to the
Tribunal under section 44 was not warranted. Accordingly, I would allow the
appeal, set aside the order of the Judge dated March 9, 2006 and dismiss the
application for judicial review. I would grant costs both on appeal and in the
Federal Court.
"B.
Malone"
"I
agree
Décary J.A."
"I
agree
Evans J.A."
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