Docket: A-126-15
Citation:
2015 FCA 261
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CORAM:
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NOËL C.J.
NEAR J.A.
RENNIE J.A.
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BETWEEN:
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PETER TATICEK
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Applicant
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and
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CANADA BORDER
SERVICES AGENCY
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Respondent
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REASONS
FOR JUDGMENT
RENNIE J.A.
I.
Introduction
[1]
This is a judicial review of a decision of an
adjudicator appointed under the Public Service Labour Relations Act
(S.C. 2003, c. 22, s. 2). The applicant, Peter Taticek, asks this Court to set
aside the adjudicator’s determination that the respondent Canadian Border
Services Agency (CBSA) did not discriminate against him by failing to
reasonably accommodate his medical condition in his workplace. For the reasons
that follow, I would dismiss the application.
II.
Background
[2]
Mr. Taticek has been employed by the respondent
CBSA since 2007. In November 2010, the applicant sent to his supervisor two
notes from his doctor – dated the 10th and the 25th – that
indicated a need for accommodation as a result of an unspecified medical
condition. In those notes, Dr. Labrosse identified the need for a change of
work environment and a different reporting structure, working under a different
director.
[3]
On December 6, 2010, the respondent sought additional
information from Dr. Labrosse. However, on December 8, 2010, Dr. Labrosse
informed the CBSA that Mr. Taticek would have to take medical leave due to the
worsening of his condition since the November medical notes. On January 19,
2011, Dr. Labrosse reassessed Mr. Taticek and informed the respondent that he
would not be able to return to work until May 2011.
[4]
In February 2011, Mr. Taticek filed a grievance,
alleging that his inability to work was due to the CBSA’s untimely response to
the November medical notes. Despite his doctor’s earlier assessment that he
would not be able to return to until May, the applicant did not return to work
until September 2011.
[5]
On his return to work the applicant was
transferred from the border crossing team (ACROSS) to the Customs Commercial
Systems (CCS) team. Both were within the same organizational division of the CBSA,
reporting to the same director.
[6]
On October 11, 2011, the CBSA was informed for
the first time that Mr. Taticek’s doctor believed that he should in fact be
under the responsibility of a different director general, not merely a
different director. However, neither Dr. Labrosse, nor his new physician, Dr.
Henry, had explained why a change of director general, as opposed to
director, was medically necessary. Nor is there any indication in the record
that Mr. Taticek provided any insight as to why he had to report to a different
director general.
[7]
In March of 2012, the CBSA sought Mr. Taticek’s
consent to seek an explanation from Dr. Henry. After much back-and-forth about
the appropriate form of the consent letter, the CBSA eventually decided that it
had done all it could to accommodate Mr. Taticek.
[8]
From March to June 2012, Mr. Taticek and the
CBSA attempted to address the second aspect of the requested accommodation – an
ergonomic assessment of the applicant’s workspace. Again, the reasons for the
delay in conducting the assessment vary. However, an assessment was ultimately scheduled
for May 9, but had to be delayed until May 22 because the applicant left work
ill mid-day on the 9th.
[9]
It also came to light that one member of the
human resources department referred to Mr. Taticek as “the
Musketeer” in internal emails while his request for accommodation was under
consideration. According to the applicant, he suffered psychological harm and
embarrassment when he found out about this after the fact.
III.
The decision under review
[10]
In a decision dated January 29, 2015, the
adjudicator dismissed the complaint. She found, applying the test from Ont.
Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536 [O’Malley]
that Mr. Taticek had established a prima facie case of discrimination
because the work conditions interfered with his ability to do his job. However,
she found that the CBSA had rebutted that allegation.
[11]
The adjudicator determined that it took over a
year and half for Mr. Taticek’s accommodation requests to be fully resolved.
She found that responsibility for some of this delay could be attributed to the
respondent. Other periods of delay were clearly not the fault of the
respondent; they either constituted reasonable implementation time, or were
caused by the applicant himself. These included Mr. Taticek’s leaving work on
the day of the scheduled ergonomic assessment, his failure to provide adequate
information on what accommodations were needed, and his failure to participate
fully in an effort to identify a new posting that would be more appropriate and
accommodating. There were also delays the responsibility for which was unclear
and which the record before the adjudicator did not resolve.
[12]
With respect to the references to Mr. Taticek as
“the Musketeer”, the adjudicator found that
remark was derogatory. However, she noted that this comment did not have any
impact or effect on the issues as the author of the comment had no decisional
responsibility, and that Mr. Taticek was not aware of them at the time that
they were made. As such, she dismissed that element of the complaint.
IV.
Analysis
A.
Standard of review
[13]
The parties agree that the standard of review is
reasonableness. As the Supreme Court of Canada articulated in Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, an inquiry into the
reasonableness of the decision:
… is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[14]
The Court’s role in this application is not to
substitute its conclusions for those of the Board. Instead, it is to evaluate
whether the Board’ conclusion was reasonable.
B.
The reasonableness of the CBSA’s accommodation
[15]
While numerous issues have been raised by the
appellant, there are only two which merit close consideration. The first is
whether the CBSA’s failure to move Mr. Taticek out of the organizational
structure of the director general constituted a failure to accommodate, and the
second is whether the delay in the process of accommodation itself constituted
a lack of reasonable accommodation.
[16]
The applicant objected to the transfer to the
CCS team as being unresponsive to the medical notes. The applicant’s doctors,
and the applicant himself, believed that the applicant needed to be removed
from the director general’s organizational mandate and the employer did not do
so. However, two factors militate against the refusal as being unreasonable.
Firstly, as the adjudicator found and the respondent emphasizes, it was not
until October 11, 2011 that the words “a change of reporting
structure”, as recommended in the first medical note of Dr. Labrosse, were
construed by Mr. Taticek’s subsequent doctor to entail a move to the responsibility
a different director general.
[17]
It is not at all clear from the record before
the adjudicator that this was a logical consequence of the recommendation that
he be moved “to another division.” Secondly,
given Mr. Taticek’s position in the organization, it is not apparent why changing
Mr. Taticek to a different division, in a different building, doing different
work with a different management team, was not responsive to the substance of
the request. As the adjudicator found, Mr. Taticek was now separated from the director
general by four layers of management, compared to three previously.
[18]
Absent an explanation as to why the applicant
had to report to a different director general, the adjudicator’s finding that
the move to the CCS team satisfied the employer’s responsibility to
accommodate, was reasonable. Further, in assessing the issue of whether the
transfer was responsive to the request, the adjudicator considered the
appropriate principles; namely that there was no requirement that the new
position be perfect or that the exercise be one of determining the “best fit” for the employee: Andres v. Canada
Revenue Agency, 2014 PSLRB 86.
[19]
I turn next to the adjudicator’s consideration
of the delays which the applicant suggests constitute a failure to accommodate.
[20]
It is important to consider the nature of the evidence
before the adjudicator. The medical notes were cryptic and vague. Further, the respondent’s
efforts to clarify what was precisely required in order to establish an
appropriate workspace and work environment were frustrated, in part, by the
applicant, such that the process of accommodating Mr. Taticek’s medical needs
dragged on for over a year and a half. But not all of this time was the
respondent’s fault. Some arose from Mr. Taticek’s own conduct. As noted, some
of this was the largely blameless result of an employee and employer attempting
– albeit imperfectly – to work out an arrangement that would reasonably
accommodate Mr. Taticek.
[21]
The adjudicator could have made more explicit
findings with respect to how the delay should be attributed, but the failure to
do so does not render the decision unsound. The principal periods of time were
accounted for. She also canvassed in some detail the lengthy history of Mr.
Taticek’s communications with the CBSA and the measures it took in response to
the requested accommodation. Her conclusion that the CBSA reasonably
accommodated Mr. Taticek and that the delay it took in so doing was not
discriminatory has a solid foundation in the evidence and fell within a range
of reasonable outcomes.
[22]
With regard to the references to Mr. Taticek as “the Musketeer”, I agree with the applicant that the
fact that he was not aware of the comments at the time does not foreclose them
being discriminatory. However, the author of the comments was quickly
reprimanded and taken off the file. There was nothing in the record to indicate
that this epithet rose beyond trivialising the applicant’s request. In the
circumstances, it was open to the adjudicator to reasonably conclude that the
use of this epithet, however unprofessional it was, did not rise to the level
of discrimination. As such I would not interfere with her conclusion.
[23]
I would dismiss the application, with costs.
"Donald J. Rennie"
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“I agree
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Marc Noël
Chief Justice”
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“I agree
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D.G. Near”
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