Date: 20001026
Docket: T-1072-98
Ottawa, Ontario, this 26th day of October, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
CHARLOTTE HUTCHINSON
Applicant
- and -
HONOURABLE CHRISTINE STEWART
in her capacity as Minister of Environment Canada
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
BACKGROUND FACTS
[1] This is an application for judicial review of the decision of the Canadian Human Rights Commission (the "Commission") not to appoint a tribunal to adjudicate the complaints of discriminatory practices in employment that were filed by the applicant against her former employer, the Federal Department of Environment (the "employer").
[2] The applicant, Ms. Hutchinson, a long-time federal government employee, transferred to the regional office of Environment Canada in Dartmouth, Nova Scotia in 1985. In 1987, the applicant was granted sick leave and disability leave as a result of "burnout, stress and job incompatibility". Ms. Hutchinson remained absent with leave until October, 1990. During her leave, the applicant was apparently diagnosed with "multiple chemical sensitivity" or "environmental illness". This condition made Ms. Hutchinson extremely sensitive to various scents: she developed flu-like symptoms upon exposure. A Health Canada examination conducted on the applicant in August, 1990 reported that Ms. Hutchinson was "Class A fit for work without limitations" but that it would be advisable for her to avoid air conditioning, tobacco smoke and chemical odours.
[3] In 1993, the applicant requested that her position be made seasonal. This request was granted. Thenceforth, the applicant was laid off during the winter months, and returned to her position each spring.
[4] Upon returning from seasonal lay-off in 1995, Ms. Hutchinson again experienced health difficulties associated with her employment. The office tower in which the applicant worked was undergoing renovations and a new co-worker wore heavily scented products. In response to these difficulties, Ms. Hutchinson's employer instituted a voluntary scent-free policy and moved the applicant's work area to floors which were not undergoing renovations. Ms. Hutchinson also worked from her home on various occasions.
[5] The applicant reported continuing difficulties in performing her duties, which she attributed to her environmental sensitivity. The employer transferred the applicant to various alternate work sites, including an Environment Canada warehouse and a Department of Veterans Affairs building. The applicant reported for work at these locations but left within hours as she reported becoming ill. An option proposed by Ms. Hutchinson, that she work from a building which house various laboratories, was rejected by Health Canada as being unacceptable. Ms. Hutchinson's supervisors began to express frustration at the lack of medical corroboration of her illness and the lack of information on the specific triggers of her acute sensitivity.
[6] The employer provided an air purifier and an industrial mask for the applicant's use while working at her regular workplace. Ms. Hutchinson found the air purifier useful but did not wish to make use of the industrial mask as she felt it made her look like "the creature from the Black Lagoon".
[7] Two further solutions to the problem were proposed by the applicant: modifications of existing federal government office space (construction of a sealed office with open windows); or the use of an office in a non-government property rented at the expense of the applicant. The employer rejected the first option as it considered the $20,000 cost as being unjustified in light of the uncertainty that it would provide a successful solution. The employer noted that past experience indicated that Ms. Hutchinson was dissatisfied with various alternatives that initially appeared to offer a solution. With respect to the option of allowing Ms. Hutchinson to work from a non-government property, the employer did not feel that this would provide a solution as the office in question would be subjected to exhaust fumes from the street below and due to the employer's concerns about issues of safety and liability.
[8] Throughout this period, Ms. Hutchinson resisted applying for "telework" - a program which allowed federal government employees to work from their homes. The employer had indicated that an application would be accepted. The applicant felt that this was a last resort and did not want to use her home as a workplace. Further, the alternative office space she had located would provide her with more interaction with co-workers.
[9] Ms. Hutchinson also reported being subjected to harassment on the basis of her disability: being told to "Read my lips Charlotte, your office is on the fourth floor" by a supervisor, being given the industrial mask and being sent to work at locations to which unruly employees are banished.
[10] Ms. Hutchinson twice refused to perform her duties due to her belief that the workplace was unsafe. She filed two Refusal to Work forms pursuant to the Canada Labour Code and was placed on leave. These refusals were disallowed by Labour Canada investigators and the applicant was ordered back to work.
[11] On March 27, 1997, the employer wrote to Ms. Hutchinson and directed her to return to work on April 1, 1997 (spring recall) using her home as her workplace. The applicant refused and ordered the employer not to trespass on her property or use her phone lines to contact her.
[12] The employer then ordered the applicant to return to work at her usual workplace on April 21, 1997. The applicant complied. After four hours on the job, the applicant filed a further Refusal to Work. The applicant was dismissed from her employment on the grounds that she was unable to perform the duties of her position.
[13] The applicant filed a complaint with the Commission. After completing an investigation, the Commission dismissed the applicant's complaint as it found that the applicant had been provided with "reasonable accommodation" of her disability by her former employer.
[14] When the complaint was received in July, 1996, the Commission appointed
Jean-Guy Boissoneault as the investigator of the case. On February 28, 1997 the complaint was assigned and Ms. Denise Ommanney became the inspector for the complaint. Ms. Ommanney completed the investigation report. The file was not completed by Ms. Ommanney and the post report remarks were completed by Françoise Girard.
[15] Ms. Ommanney's Investigation Report was dated November 11, 1997 and it recommended that the Commission "dismiss the complaint because on the evidence the allegation of discrimination is unfounded".
[16] By a decision dated April 22, 1998 the Commission issued its decision which declined to appoint a Human Rights Tribunal and dismissed the complaint on the basis that alleged comments made to her "were not sufficient to constitute harassment" and that "the respondent did attempt to accommodate the complainant's disability".
[17] The applicant commenced this application for judicial review on May 27, 1998.
ARGUMENT
Applicant's Submissions
[18] The applicant submits that the court sitting in judicial review is not limited to consideration of the material that was before the original decision maker. Therefore, the second supplementary affidavit of the applicant to which a medical report of her physician, Dr. Beresford was appended, ought to be admitted into evidence.
[19] With respect to the standard of review, the applicant submits that the decision of the Commission is reviewable on the correctness standard. If the Court is not satisfied that the applicant was afforded "reasonable accommodation to the point of undue hardship" or that no harassment occurred, the application should be allowed.
[20] The applicant also submits that she was denied procedural fairness. The applicant argues that the investigation was flawed, lacked thoroughness and that the Commission did not adequately consider her complaint. The applicant claims that she was denied procedural fairness by not being presented with the opportunity to respond to all of the submissions of the employer. In addition, the investigation was flawed since an individual against whom the applicant had filed a harassment complaint, was the primary employer contact during the investigation.
[21] The applicant submits that the Commission erred in not finding that harassment on the basis of disability had occurred and in misdirecting itself as to the correct legal test for a finding of discriminatory practices.
Respondent's Submissions
[22] The respondent submits that the supplementary affidavit is inadmissible since the jurisprudence of this Court holds that the Court in review is limited to consideration of the material that was before the original decision maker. New material is permitted only when certain limited aspects of procedural fairness are breached.
[23] The respondent submits that while findings of the Commission on questions of law will be reviewable on the correctness standard, the standard will be reasonableness simpliciter with respect to findings made on questions of fact.
[24] The respondent submits that the requirements of procedural fairness were met in this case. Fairness requires the Commission to conduct a reasonably thorough and neutral investigation but the Commission need not interview everyone suggested by the applicant nor disclose all of the statements of adverse parties.
[25] The respondent further submits that the Commission committed no error in law and that the statement that the applicant was offered "reasonable accommodation" does not indicate that the Commission misapprehended the correct legal test for a finding of discriminatory practices.
APPLICABLE LAW
[26] The Canadian Human Rights Act, R.S.C. 1985 c. H-6 (the "Act") contains the relevant statutory provisions applicable to this case and the purpose of the Act is stated in section 2:
| 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. |
2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant_: le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées 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, la déficience ou l'état de personne graciée. |
[27] The Act prohibits discriminatory practices on various grounds in various spheres, including employment. The applicant's complaint to the Commission alleged that she was victimized by discriminatory practices in employment on the basis of a disability. "Disability" is a prohibited ground of discrimination as set out in section 3 of the Act. The alleged discriminatory practices perpetrated by the employer were: requiring the applicant to work in areas where she became ill as a result of her disability; terminating her employment when she refused; and harassment in employment on the basis of her disability. The definition of disability is open-ended and is set out in section 25 of the Act:
| 25. In this Act, "disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug. |
| 25. Les définitions qui suivent s'appliquent à la présente loi. « déficience » Déficience physique ou mentale, qu'elle soit présente ou passée, y compris le défigurement ainsi que la dépendance, présente ou passée, envers l'alcool ou la drogue. |
[28] The prohibition against discriminatory practices in employment is set out in section 7 of the Act. This was the subject of the applicant's complaint to the Commission:
| 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. |
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. |
[29] As stated above, the applicant also complained that she suffered harassment on the basis of her disability. Harassment on the basis of a disability is a prohibited discriminatory practice:
| 14. (1) It is a discriminatory practice, . . . (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination. |
14. (1) Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait de harceler un individu_: . . . c) en matière d'emploi. |
| [30] The finding that an individual or group has been subjected to adverse differential treatment in employment as a result of a disability, or other ground, does not lead inexorably to a finding of liability on the part of the employer. Section 15 of the Act provides that if the treatment is due to a bona fide occupational requirement and the employer establishes that accommodation of the needs of the individual would cause undue hardship, the impugned treatment or conduct is not a discriminatory practice: |
| 15. (1) It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; . . . (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. |
| 15. (1) Ne constituent pas des actes discriminatoires_: a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l'employeur qui démontre qu'ils découlent d'exigences professionnelles justifiées; . . . (2) Les faits prévus à l'alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l'alinéa (1)g), s'il est démontré que les mesures destinées à répondre aux besoins d'une personne ou d'une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coûts, de santé et de sécurité. |
| Procedures of the Commission |
| [31] Upon receiving a complaint, the Commission will appoint an investigator to determine if the complaint warrants the appointment of a tribunal. The investigator will submit a written report of his or her findings, along with a recommendation to either dismiss the complaint or to proceed with the appointment of a tribunal. The Commission will then determine which course to follow. The requirement to submit a report is contained in subsection 44(1) of the Act and the discretionary power of the Commission to dismiss a complaint or appoint a tribunal is set out in subsection 44(3): |
| 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation. |
44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. |
| (3) On receipt of a report referred to in subsection (1), the Commission (a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted . . . (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 . . . |
| (3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_: a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue_: (i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié . . . 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 . . . |
| ISSUES |
| [32] The applicant stated the issues to be as follows: |
1. Should this Court consider the medical report of Dr. Patricia Beresford?
2. What is the appropriate standard of review?
- . (a) Did the Commission err in making a decision without a fair and adequate
basis for doing so?
| (1) Was the Investigation Report a thorough and neutral investigation that |
considered all relevant evidence and did not consider irrelevant evidence?
- . (a) Was the applicant denied procedural fairness as a result of a failure to
disclose the whole substance of Environment Canada's submissions and a failure to permit her the opportunity to respond?
(b) Was the applicant denied procedural fairness by the Commission's decision to permit Environment Canada's primary contact with the Commission to be a person against whom the applicant had an outstanding harassment complaint and who had a conflict of interest?
5. Did the Commission err in concluding that the applicant was not subjected to harassment under the Canadian Human Rights Act?
- . (a) Did the Commission err in asking whether Environment Canada attempted
to accommodate the applicant's disability rather than whether it had accommodated her to the point of undue hardship? or
| (b) In the alternative, did the Commission err in concluding that Environment |
Canada accommodated the applicant to the point of undue hardship?
| [33] Issue 1 |
Should this Court consider the medical report of Dr. Patricia Beresford?
The applicant has asked the Court to consider the second supplementary affidavit of the applicant, sworn to April 21, 1999 and the medical report of Dr. Patricia Beresford which was not before the investigator or the Commission. I am of the opinion that this affidavit and report cannot properly be considered on this judicial review application as neither the affidavit nor the report were before the tribunal whose decision is being reviewed. Justice Gibson in Farhadi v. Canada (Minister of Citizenship and Immigration) [1998] 3 F.C. 315 (F.C.T.D.) at page 329 stated:
[20] It is trite law that a reviewing court is bound by the record filed before the federal board, commission or other tribunal the decision of which is under appeal.10 Reviewing court jurisprudence has followed this rule, noting that if evidence not before the initial tribunal is introduced on judicial review, the review application would effectively be transformed into an appeal or a trial de novo.11 While I am satisfied that a jurisdictional exception exists to the rule that new evidence is not admissible on judicial review,12 I am also satisfied that an issue as to jurisdictional error of the tribunals does not arise here.
I agree with this statement of the law.
| [34] I now propose to deal with Issue 4(a). |
Was the applicant denied procedural fairness as a result of a failure to
disclose the whole substance of Environment Canada's submissions and a failure to permit her the opportunity to respond?
In Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission) [1989] 2 S.C.R. 879 (hereinafter S.E.P.Q.A. case), Justice Sopinka described the process by which the Commission deals with a complaint. At page 899, Sopinka J. stated:
The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. Accordingly, I conclude from the foregoing that, in view of the nature of the Commission's function and giving effect to the statutory provisions referred to, it was not intended that the Commission comply with the formal rules of natural justice. In accordance with the principles in Nicholson, supra, however, I would supplement the statutory provisions by requiring the Commission to comply with the rules of procedural fairness. In this regard, I adopt the statement of Lord Denning, MR, in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), quoted hereunder. The Race Relations Board was charged with duties similar to those of the Canadian Human Rights Commission. In determining that it was an investigatory body with the duty to act fairly, Lord Denning said, at p. 19:
| In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion. . . . In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report. |
| [35] Lamer J. (as he then was) in Radulesco v. Canadian Human Rights Commission |
(1984) 55 N.R. 384 (S.C.C.) said at pages 387 - 388:
[13] Respondent Commission acknowledges that it must act on a quasi-judicial basis when it decides to dismiss a complaint as unsubstantiated under s. 36(3)(b) of the Canadian Human Rights Act. It also acknowledges that procedural fairness requires that the complainant be provided with an opportunity to make submissions, at least in writing, before any action is taken on the basis of the report; however, a hearing is not necessarily required. Finally, the Commission acknowledges that in order to ensure that such submissions are made on an informed basis, it must, prior to its decision, disclose the substance of the case against the party.
[14] Given the nature and extent of the information which was disclosed to the appellant by the investigator, the respondent Commission acknowledges that the substance of the case against appellant was not communicated to her prior to the decision. The Commission also agrees that, as a result thereof, this appeal should be allowed with costs to the appellant on a solicitor-client basis. Without pronouncing upon all aspects of the standard of conduct the Commission must meet, I agree that the standard enunciated by the respondent is one which must, in all cases, be met. Therefore the failure to meet this standard in this case should result in the appeal being allowed.
| [36] The applicant, in this case, states a response letter to the investigator from the |
respondent dated October 22, 1997 was not disclosed to her and consequently, she was not able to respond to or answer the points raised in this letter. A perusal of the letter indicates to me that much of the information contained in the letter was not in the report of the inspector which the applicant had an opportunity to respond to by her letter. This is not in accord with the law set out by Lamer J. (as he then was) in Radulesco, supra, nor with the remarks of Sopinka J. in the S.E.P.Q.A., supra, case. The investigator was required to act fairly to the applicant and in order to act fairly to Ms. Hutchinson, the inspector should have advised Ms. Hutchinson of the statements contained in the October 22, 1997 letter so that she could have responded to the statements. After all, Ms. Hutchinson had much at stake here, as the information would have an effect on the outcome of her complaint. I am of the opinion that it was a breach of procedural fairness not to disclose the information contained in the October 22, 1997 letter.
| [37] The applicant also states that in January, 1998, after the investigator's report was |
completed but before the Commission rendered its decision and before Françoise Girard who was then looking after the file, sent a post-investigation memorandum to the Director of Compliance, Ms. Morin-Girouard, sent a copy of a Public Service Staff Relations Board decision to Ms. Girard. This was sent to Ms. Girard who was the "Director, Complaints and Investigation, Canadian Human Rights Commission" after the deadline for the parties to make submissions to the investigator had passed. The receipt of the decision, which was critical of Ms. Hutchinson, was not forwarded to Ms. Hutchinson nor to the Commission itself. However, the investigator is part of the Commission and since Ms. Girard appeared to have completed the investigation file after Ms. Ommanney (the investigator on the complaint) left her employment. Then, by the statement of Sopinka J. in the S.E.P.Q.A., supra, case, the Commission is considered to have the decision sent by Ms. Morin-Girouard to Ms. Girard. Sopinka J. stated in the S.E.P.Q.A., supra, case at page 898:
The investigator, in conducting the investigation, does so as an extension of the Commission. I do not regard the investigator as someone independent of the Commission who will then present evidence as a witness before the Commission. Rather the investigator prepares a report for the Commission. This is merely an example of the principle that applies to administrative tribunals, that they do not have to do all the work themselves but may delegate some of it to others.
I find that it was a breach of procedural fairness not to send the decision to Ms. Hutchinson for comment.
| [38] Due to either of these breaches of the duty of procedural fairness, the application |
for a judicial review must be granted.
| [39] Although it is not necessary for the disposition of this application, I wish to |
comment on issue 3(a)(1).
Was the Investigation Report a thorough and neutral investigation that considered all relevant evidence and did not consider irrelevant evidence?
It is my belief that the report of the investigator was not a neutral report as it contained the following reference in paragraph 26 which is under the heading "Complainant's Work History":
The complainant has filed a grievance against her termination. The deputy Minister was about to hear the grievance in October 1997, when the complainant's Union asked that the hearing be postponed pending the outcome of a complaint to Labour Canada regarding the provisions of its Code. In addition, she has 14 complaints before the Public Service Commission alleging personal harassment against several departmental officials. Mediation failed to achieve a "no fault" resolution and the process was discontinued. The PSC has asked the complainant to put in writing the allegations before deciding whether they constitute harassment under Treasury Board guidelines.
To my mind, the information about the applicant filing 14 complaints before the Public Service Commission has no place in the report. It is irrelevant to the issue of whether or not the applicant has a valid human rights complaint. It does not matter how many times she filed a complaint with another body. By law, she is entitled to file these complaints which may or may not succeed and by law she is entitled to file a human rights complaint. To me, the inclusion of the statement about the 14 complaints in the report is unfair to the applicant. That, as I said, is totally irrelevant to the complaint before the Commission. It also tends to present a somewhat less than neutral picture for the Commission.
| [40] For the above reasons, I would allow the application for judicial review and set |
aside the decision of the Commission. A new investigator should be appointed to deal with the complaint.
| [41] In light of the decision I have reached on Issue 4(a), it is not necessary that I rule |
on the other issues.
ORDER
| [42] IT IS ORDERED that the application for judicial review is granted. |
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
October 26, 2000