Tremblay v. Canada (Attorney General) (T.D.) [2003] 4 F.C. 296
Date: 20030422
Docket: T-1958-00
Citation: 2003 FCT 465
BETWEEN:
MICHEL TREMBLAY
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA, CARLO ZANETTI
and DANIEL PLOUFFE
Respondents
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of a decision made by an Appeal Board of the Public Service Commission of Canada (the "PSC") appointed pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the "PSEA"). This case, along with the related case in docket T-1201-01, concern section 10 of the PSEA, which requires appointments to and from within the public service to be based on selection according to merit. Both dockets raise the difficult issue of what steps a government department is required to take to accommodate the needs of a disabled candidate while ensuring that other candidates involved are not placed at a disadvantage.
[2] The individual respondents did not participate in the hearing and the relevant government department was represented by the Attorney General of Canada. Therefore, references to the respondent in these reasons are to the Attorney General.
ISSUES
The issue raised in this docket is whether the Appeal Board erred by finding that the Transportation Safety Board of Canada (the "TSB") conducted the selection process in accordance with the merit principle. This issue can be broken down into the following sub-issues:
4. did the Appeal Board err by taking an incorrect view of the duty to accommodate?;
5. did the Appeal Board err by finding that Transport Canada met its obligation to provide reasonable accommodations to the applicant?;
6. did the Appeal Board err in finding that the applicant was not being assessed on his "ability to work effectively under pressure of tight deadlines" in the knowledge test?; and,
7. did the Appeal Board err by finding the applicant did not fulfill his duty to facilitate the search for reasonable accommodations?
FACTS
This is an application for judicial review of a decision of Appeal Board Chairperson B.A. Monk, dated September 22, 2000. Ms. Monk was appointed pursuant to section 21 of the PSEA to hear the applicant's appeal against the appointments of Mr. Carlo Zanetti and Mr. Daniel Plouffe to two Technical Support Officer positions with Transport Canada.
[5] Transport Canada conducted a closed competition to staff two openings for Technical Support Officers (competition numbers 99-MOT-CC-OTT-024854 and 99-MOT-OTT-024853). The applicant met the initial screening criteria and along with other successful candidates was invited to participate in a 3.5 hour written examination on December 15, 1999. The applicant advised the department that he suffered from Multiple Sclerosis ("MS") and would require special accommodation. In order to properly assess his needs, the applicant's examination was postponed to a later date.
[6] The applicant's treating physician, Dr. H.E. Rabinovitch wrote a letter dated December 13, 1999 to Mr. Martin Eley, Chief - Engineering, Aircraft Certification Branch of Transport Canada. Dr. Rabinovitch stated that the applicant suffered from MS, which resulted in limitations on his vision and dexterity. He also mentioned that the applicant is "significantly disabled by fatigue" and requested that the department accommodate this difficulty.
[7] Transport Canada then began to arrange accommodations for the applicant. It appears that this task fell to Ms. Nicole Pharand, a Personnel Administration Officer with the department. She consulted the Public Service Commission's Guidelines for Assessing Persons with Disabilities (the "PSC Guidelines"), which recommend granting candidates who have a limited capacity to read and write 50% more time. In an internal e-mail to several colleagues dated January 13, 2000, Ms. Pharand proposed granting the applicant 100% more time (for total time of 7 hours) and scheduling the exam over three days. The responses of three of her colleagues were placed before the Court. All recommended limiting the time increase to the 50% set out in the PSC Guidelines (for a total time of 5.25 hours).
[8] On January 19, 2000, Ms. Pharand sent an e-mail to the applicant advising him of the proposed accommodations and the new date and time for his examination. The proposal included the following four measures:
(a) the examination would be divided into three parts to be written over a three-day period (January 25-27);
(b) the time for writing the examination would be extended by 50% as allowed by the PSC Guidelines;
(c) any breaks the applicant required would not be counted toward the total time limit; and
(d) the applicant would be provided with a laptop computer and an external mouse.
[9] The applicant responded to the proposal in an e-mail to Ms. Pharand on January 24:
I will not attend the exam session because I do not agree with the proposed amendments offered. As requested (this morning) I am providing further details with reference to the proposed amendments offered. Thank you for forwarding my concerns to the appropriate individual(s).
He provided further details about his condition and the side effects he experienced from taking medications for MS:
Specifically, I tire easily; "in Multiple Sclerosis (MS) the fatigue can be out of all proportion to the activities taking place". (http://www.ifmss.org.uk.faqs/english/fatigue.asp).
My resting requirements associated with my permanent disability (MS with Epileptic seizures) are dynamic and transient; frequent breaks (pauses, rests) are required. I am taking medications: Ibuprophen, Dilantin (Phenytoin Sodium; Anticonvulsant). The later effects my level of concentration (Compendium of Pharmaceuticals and Specialities). Also, there are other medical side effects that must be taken into consideration: stress makes the symptoms of MS feel worse . . . Also, "most individuals with MS become excessively tired while performing activities, especially those that require repeated muscle contractions (such as typing)"; I type because my handwriting is illegible; I type slowly; typing time must not be inclusive in the exam time limits.
[10] Upon receiving the applicant's e-mail, the department contacted Mr. Michel Nadeau, a psychologist at the Public Service Commission's Personal Psychology Centre (the "PPC"). Mr. Nadeau informed Ms. Pharand that the PSC Guidelines are not rules that need to be followed; rather, each case must be assessed individually. He recommended that Transport Canada carefully study the applicant's needs and provide him with the extra time needed and/or the appropriate conditions so that he would not be at a disadvantage or advantage. He also stated that how generous the department could be with the time limit would depend on whether the time factor was an important element of the examination.
[11] Transport Canada considered the time factor an important part of the test because Technical Support Officers are often required to respond to a large number of non-discretionary deadlines. The applicant was again invited to sit for the examination on three consecutive days in February in an e-mail from Ms. Pharand dated February 21, 2000:
In response to your e-mail dated January 24, 2000, please be advised that we have discussed your concerns with the Public Service Commission as well as Transport Canada's Staff Relations and it was agreed that the time frames that we are allocating to you to complete the exam are sufficient . . . As previously stated, please note that the time limits include the extra 50% that is allowed by the PSC Guidelines for assessing persons with disabilities. Any breaks that you need during the exam will not be counted towards the total time limit. The portion of the exam assigned to any one day must be completed on the same day that it is started.
[12] The applicant again refused to attend the examination because he felt the accommodations offered did not give him a fair chance to demonstrate his knowledge and abilities. He was informed by Transport Canada that as a result of his refusal to attend the examination, his name would be removed from the list of potential candidates and his application would be given no further consideration. In response to an inquiry from the applicant, Mr. Eley stated in an e-mail dated February 28 that he had an operational need to proceed with the staffing action and that he was at a "loss to understand why we have not received a proposal from you for what terms would be acceptable for sitting the exam." Following the completion of the competition, Mr. Zanetti and
Mr. Plouffe were appointed to the two openings.
[13] The applicant appealed the decision under section 21 of the PSEA and Appeal Board Chairperson Monk was appointed to hear the appeal. Following an oral hearing, she was satisfied that Transport Canada had taken reasonable steps to accommodate the applicant's disability and dismissed the appeal. She found that as the allocated time constraints were not arbitrary, it was "not unreasonable for the Department to conclude that giving the appellant unlimited time in the context of a selection process would place him at an advantage over other candidates, thereby defeating a selection according to merit." Moreover, in her view the applicant had not clearly communicated with the department and failed to make known any deficiencies in the department's proposed accommodations in his e-mail dated January 24, 2000. As such, he had failed in his duty to facilitate the search for acceptable accommodations as required by Central Okanagan School District v. Renaud, [1992] 2 S.C.R. 970.
RELEVANT LEGISLATION
The fundamental principle underlying appointments to or from within the federal public service is the merit principle, which is contained in subsection 10(1) of the PSEA:
Appointments to be based on merit
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
Nominations au mérite
10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
[15] Section 21 provides a mechanism allowing unsuccessful candidates to appeal against an appointment. The relevant portions of section 21 are reproduced here:
21(1) Appeals
21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
[...]
21(1) Appels
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
[...]
21(2) Duty of Commission when notified of decision
(2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision,
(a) if the appointment has been made, confirm or revoke the appointment; or
(b) if the appointment has not been made, make or not make the appointment.
[...]
21(3) Other measures
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
21(4) Appeal
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
21(2) Mesures
(2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci_:
a) si la nomination a eu lieu, la confirmer ou la révoquer;
b) si la nomination n'a pas eu lieu, y procéder ou non.
[...]
21(3) Autres mesures
(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
21(4) Appel
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.
STANDARD OF REVIEW
The issue raised in this appeal requires an assessment of the Appeal Board's approach to the duty to accommodate as it relates to section 10 of the PSEA. This is an issue of law as to the proper interpretation of the PSEA. As the Appeal Board does not have a high degree of expertise in this area, the appropriate standard of review on the first issue is correctness. The rationale for this approach was set out in Boucher v. Canada (A.G.) (2000), 252 N.R. 186 (F.C.A.) at para. 7:
Turning to the first issue, that of the treatment accorded to the Knowledge factor by the Selection Board, we are of the view that this involves an issue of law as to the requirements of the merit principle and we therefore consider that the PSCAB's decision to confirm that process equally involved a conclusion of law. We are not persuaded that the PSCAB is a tribunal which should be considered to have such expertise in the interpretation of the Public Service Employment Act that a high degree of deference is owed to it on this issue. The Board is appointed ad hoc. We conclude in this respect that the standard of review which the Trial Division should have applied is that of correctness.
The Federal Court of Appeal has since confirmed this as the applicable standard in Buttar v. Canada (A.G.) (2000), 186 D.L.R. (4th) 101 at p. 107 (F.C.A.).
ANALYSIS
Whether the Appeal Board erred by finding that the TSB conducted the selection process in accordance with the merit principle can be broken down into the following sub-issues.
1. Did the Appeal Board err by taking an incorrect view of the duty to accommodate?
One of the disputes between the parties is the extent to which a PSC Appeal Board can apply human rights principles in deciding whether the accommodations provided to the applicant were reasonable. The applicant contends the Appeal Board erred in law by taking "an impoverished and incorrect view of the duty to accommodate." The Appeal Board should have required Transport Canada to demonstrate it was impossible to accommodate him without undue hardship. Concrete evidence to that effect was not provided.
[19] In support of his position, the applicant has referred the Court to the Supreme Court of Canada's decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [hereinafter Meiorin], which dealt with application of British Columbia's Human Rights Code, R.S.B.C. 1996, c. 210 to a public service provider. In cases concerning a complaint under provincial or federal human rights legislation, the Supreme Court has
repeatedly stated that an employer is responsible for providing reasonable accommodation for an employee's disability short of undue hardship, see Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536, Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 and Renaud, supra. In Meiorin the Court undertook a reformulation of the approach used to determine whether a prima facie discriminatory standard is a bona fide occupational requirement ("BFOR"). The applicant refers specifically to step three of the new approach (see para. 54 of Meiorin), where the Court stated that an employer must demonstrate it is "impossible" to accommodate individual's disability without imposing "undue hardship" upon the employer.
[20] The respondent argues the PSEA does not empower a PSC Appeal Board to apply the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "CHRA") or principles applicable to human rights legislation. Legal issues such as the limits of accommodation and undue hardship are outside of the jurisdiction of a PSC Appeal Board and have been entrusted by Parliament to the Canadian Human Rights Commission. An Appeal Board only deals with the issue of reasonable accommodation from the perspective of its impact on the merit principle. In addition, an Appeal Board must also consider whether the accommodations are fair to the other candidates involved in the competition.
[21] The right of appeal in section 21 exists to prevent appointments that are contrary to the merit principle. An Appeal Board is charged with determining whether a particular selection process was conducted in accordance with the merit principle. See Charest v. Canada (A.G.), [1973] F.C. 1217 at p. 1221 (C.A.), where the Court stated that the purpose of a right of appeal under section 21 is not to protect the appellant's rights, but to prevent an appointment being made contrary to the merit principle.
[22] The applicability of human rights principles to the competitive staffing process arose in Canada (A.G.) v. Girouard, 202 F.T.R. 1, 2001 FCT 83, aff'd [2002] 4 F.C. 538, 2002 FCA 224. In Girouard at para. 35, McKeown J. found that an Appeal Board erred by not addressing the question of whether reasonable accommodation was provided in light of the requirements of the merit principle.
[23] Based on the decision in Girouard, it is apparent that the standard from Meiorin, supra is not an appropriate yard-stick for an appeal based on the merit principle. The purpose of an appeal under section 21 of the PSEA is not to identify discriminatory standards and determine whether they can be justified. Rather, its function is to ensure that the selection board made an appointment based on the merit principle. It is an Appeal Board's task to determine whether the accommodations provided to an individual allowed him or her to compete on an equal footing with the other candidates. The accommodations must be fair not only to the individual in question, but also to the other candidates.
[24] Having said that, human rights principles need not be placed in a separate water-tight compartment from the merit principle as they may have limited applicability in a section 21 appeal. The Appeal Board in Girouard erred by focussing strictly on human rights principles and ignoring the merit principle, see Girouard (F.C.T.D.) at para. 32. However, there is nothing wrong with drawing upon human rights principles, as Cullen J. did in Schut v. Canada (Attorney General), [1998] F.C.J. No. 806 at para. 14 (T.D.) (QL), as long as they are utilised as part of an appropriate analysis under the merit principle. Human rights cases may provide a rich source of jurisprudence for an Appeal Board or a Court to draw upon when determining whether an individual has been provided with reasonable accommodations in light of the merit principle.
[25] The Appeal Board Chairperson Monk examined the reasonableness of the accommodations provided to the applicant in light of the merit principle as required. In doing so, she did not err by relying upon an "impoverished and incorrect view of the duty to accommodate" as alleged by the applicant. The standard laid out here will also be used by this Court to evaluate whether Transport Canada satisfied the obligation to provide reasonable accommodations to the applicant.
2. Did the Appeal Board err by finding that Transport Canada met its obligation to provide reasonable accommodations to the applicant?
The applicant submits that Appeal Board Chairperson Monk improperly "glossed over" the positive duty upon Transport Canada to provide reasonable accommodations. The department relied too heavily upon the PSC Guidelines and did not adequately tailor the accommodations to his specific needs.
[27] The respondent argues the Appeal Board was correct in finding that the department took reasonable steps to accommodate the applicant's disability. The accommodations offered by Transport Canada were reasonable as they were consistent with the advice received from the applicant's physician, the recommendations of the PPC and the PSC Guidelines. Allowing the applicant an open-ended time frame was not feasible because the time factor was a relevant feature of the job. Moreover, the department had a responsibility to ensure that the accommodations did not bestow upon the applicant an advantage over the other candidates.
[28] A critical characteristic of the merit principle is its flexibility, as this allows for the equitable assessment of candidates with differing needs. In order for merit principle to operate effectively, the department in question must be responsive to the particular needs of individual candidates. As Campbell J. stated in Canada (A.G.) v. Bates, [1997] 3 F.C. 132 at para. 40 (T.D.):
. . . the merit principle must be cognizant of, and where necessary responsive to, the critical reality of the history of the case and the life situation of the individuals involved.
[29] The need for flexibility when applying the merit principle is reinforced by the PSC Guidelines. The second section of the PSC Guidelines sets out a number of general guidelines to aid departments when making decisions about accommodations. Those guidelines emphasize that decisions must be made on a case-by-case basis, as shown by guidelines 3 and 4:
3. USE A CASE-BY-CASE APPROACH
Given the wide variation in the nature, severity and age of onset of a disability, accommodations to the regular test or testing conditions must be made on a case-by-case basis in order to ensure that the assessment is appropriately adapted for the candidates.
4. CONFER WITH THE CANDIDATE BEFORE TESTING
Before deciding what accommodations are required or arranging for the testing session, obtain as much information as necessary on the candidate's disability in a professional and sensitive manner; the best sources of information is generally the candidate. For example, find out from the candidate about any modifications or adjustments that were made in any previous testing situation.
[30] In the case at bar, Transport Canada adopted a rigid approach to the merit principle and failed to fulfill its duty to provide reasonable accommodations to the applicant. The Court acknowledges that Transport Canada made an effort to accommodate the applicant and does not take issue with the substance of the department's proposal. Rather, the Court is concerned with the department's failure to conduct an analysis that was tailored to the circumstances of the applicant. By failing to do so, Transport Canada did not have a real understanding of what was necessary to accommodate the applicant and could not have known if its proposal actually addressed his needs. For the same reason, it is impossible for the Court to now determine whether the proposed accommodations would have allowed him to compete on an equal basis or given him an advantage over the other candidates.
[31] Transport Canada's failure to conduct a case-by-case analysis becomes evident when the following facts are highlighted. First, there is no evidence that Transport Canada consulted with the PPC or an outside expert before making its first proposed set of accommodations on January 19, 2000. At that time, the only expert opinion that Transport Canada had about the applicant's situation was the letter from Dr. Rabinovitch. That letter only provided information on the symptoms suffered by the applicant as a result of MS and did not include information on how the department might accommodate the applicant.
[32] Second, the department relied too heavily upon the PSC Guidelines. The department's internal e-mail communications from early January 2000 demonstrate that the department improperly treated the PSC Guidelines as a boundary on what accommodations could be provided. When Ms. Pharand proposed the applicant be granted 100% more time, the responses included statements like "stick to the time guidelines" and references to the PSC Guidelines as allowing a "maximum" of 50% more time. The response of Mr. Hugh O'Connor provides a good example:
Mt. [sic] Tremblay's certificate stating that he is significantly disable [sic] by fatigue could have implications in terms of being able to accomplish the job.
The PSC suggestion to provide the candidate with 50% more time, where the capacity to read and write are limited may not help in this case. However, in the absence of details I support your proposal, provided the time increase is limited to that in the PSC guidelines, i.e. a maximum of 50%.
Government departments do not simply fulfill their obligations by following the recommendations made in the PSC Guidelines. Allowing that to be the case would undercut the purpose underlying guidelines 3 and 4. Assessment must be conducted on a case-by-case basis, something which Transport Canada failed to do.
[33] Third, there is insufficient evidence for the Court to conclude that the proposed recommendations received approval from the PPC. In his oral testimony at the Appeal Board hearing, Mr. Eley stated the department had asked the PPC if its proposals were reasonable and they replied that they were (see p. 31 of the Transcript). The only evidence of the PPC's opinion on the
matter is Mr. Nadeau's e-mail to Ms. Pharand dated February 25, 2000, and nowhere in that e-mail does Mr. Nadeau give his approval to the proposed accommodations. His recommendations did not address the personal circumstances of the applicant or the particulars of the department's proposal. To the contrary, he emphasised the need for the department to undertake an individualized assessment of the applicant's situation:
[TRANSLATION] Consequently, the department has to study carefully the case of a handicapped applicant and provide him/her the extra time needed and/or the appropriate conditions so that he/she would not be at a disadvantage (or advantage). Furthermore, the existing guidelines are not per se rules to follow; each case must be assessed individually. Before taking your decision, you must identify if the time factor is an important element and if it is an indication of the work to be done. If so, we could not be as generous af [sic] if the time factor does not have an impact on the knowledges [sic] demonstrated.
[34] There is no evidence the department ever followed Mr. Nadeau's advice. This is particularly critical because, as outlined above, no expert consultation was sought when the proposed accommodations were initially drawn up. This means that no expert was involved in formulating the accommodations and at no time did an expert ever approve of those accommodations. This case can be contrasted with the related case in docket T-1201-01, where the relevant government department consulted with the PPC and a neuropsychologist when devising its accommodations. A government department or selection board need not consult an outside expert in every case where a disabled candidate is involved. In some cases, reliance on the PSC Guidelines or consultation with the PPC will suffice. The critical point is that a selection board must take the necessary steps to understand a candidate's situation and what measures are needed to adequately accommodate his or her disability. I am not satisfied that Transport Canada did that in this case.
3. Did the Appeal Board err in finding that the applicant was not being assessed on his "ability to work effectively under pressure of tight deadlines" in the knowledge test?
Before the Appeal Board, the applicant argued that Transport Canada improperly incorporated the requirement that a candidate be able to work to effectively under tight deadlines into the examination. He contended that his invitation to write the written examination meant he had already satisfied this criteria and that the examination was designed to assess the knowledge component of the Statement of Qualifications. The applicant's allegation was based on comments made by Mr. Eley in an e-mail to the applicant dated February 28, 2000:
In closing I would like to draw you attention to the Statement of Qualifications where "Ability to work effectively under pressure of tight deadlines" is a rated requirement. This is an important consideration for us because of the operational nature of our work and the large number of non-discretionary deadlines that we have to meet.
[36] In response, Transport Canada argued that it could not have allowed the applicant unlimited time and that its proposal was reasonable when the need for a candidate who could work effectively under tight deadlines was taken into account. The department considered the time factor a necessary part of the examination because the successful candidate would have to work under many non-discretionary deadlines.
[37] The Appeal Board was of the opinion that the written examination was designed to assess the knowledge component of the candidate's qualifications and that his "ability to work effectively under pressure of tight deadlines" would be assessed at a later stage. Accordingly, the Appeal Board found that the applicant had not been rejected on this basis because this qualification had not yet been assessed. The relevant portion of the Appeal Board's decision is para. 32:
The appellant's remaining allegation, allegation 7, deals with the "ability to work effectively under pressure of tight deadlines", a personal suitability requirement listed in the statement of qualifications for both positions. It appears from the wording of his allegation that the appellant wrongly assumed that meeting the educational and experience criteria was sufficient to establish that he satisfied this criterion. However, the appellant was never assessed on this requirement. In my opinion, Mr. Eley made an inappropriate comment in his 28 February 2000 e-mail to the appellant when he raised the question of this requirement. Had the appellant passed the written examination, the Selection Board would have been obliged to assess the appellant on that criterion just as it was required to do for all other candidates. Since the appellant was not assessed on this requirement, there is no basis to presume he would or would not have satisfied it. There is no foundation for this allegation and it too is dismissed.
[38] There is not a sufficient evidentiary basis for finding that the Appeal Board erred in this respect. The evidence before the Court on this point was incomplete on this point and I cannot say with precision at what stage this qualification was to be assessed. The Court defers to the finding of the Appeal Board on this point.
[39] The Appeal Board's finding also raises an interesting side issue that was discussed at the oral hearing of this application. The logical extension of the Appeal Board's reasoning is that if the applicant's "ability to work effectively under pressure of tight deadlines" was not being tested by the written examination, then it was not a legitimate basis upon which Transport Canada could limit the time available to the applicant. This is not to say that the written examination could not have been used to assess this qualification, but rather that it was not designed for that purpose in this competition. It is also important to point out that Transport Canada was entitled to limit the time available to the applicant for other reasons, such as ensuring fairness to other candidates.
4. Did the Appeal Board err by finding the applicant did not fulfill his duty to facilitate the search for reasonable accommodations?
The Appeal Board also found the applicant had failed to fulfill his duty to facilitate the search for acceptable accommodations as required by Renaud, supra. The duty upon an individual was described by Sopinka J. in the following terms at pp. 994-995:
To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.
[41] The Appeal Board was correct in finding the applicant could have done more to facilitate the search for accommodations. While the applicant did place before Transport Canada the facts relating to his disability and a general idea of what accommodations would be necessary, he did not take advantage of the opportunity to make suggestions about what type of accommodations would satisfy his needs when presented with the department's initial proposals. The bulk of his e-mail of January 24, 2000 was a reiteration of the symptoms he suffered from due to MS. The only concrete suggestions made by the applicant were for frequent breaks and that typing time not be inclusive in any time limits. The applicant could have been more explicit in making known to the department why he felt its proposal was deficient and suggest possible remedies for any shortcomings.
[42] One of the ways in which the applicant could have aided the search for accommodation was by being more forthcoming about the arrangements made by the University of Ottawa to accommodate him while he was studying for his MBA. This is illustrated by an exchange between Appeal Board Chairperson Monk and the applicant concerning his allegation that Transport Canada did not find out about any modifications or adjustments that were made in previous testing situations (at p. 12 of the Transcript):
Monk: Could you give me some information about that.
Tremblay: No consultation. It goes back to a case-by-case basis; if I would have been approached then I could have informed them that in the past assessments have been done differently; the University of Ottawa during my graduate studies; this information that would come out in a case-by-case analysis I was never approached by the department.
Monk: Why did you not share that information with them? For example, that while I was a graduate student at the University of Ottawa I was evaluated by, or how, method X. Why didn't you share that information with the department?
Tremblay: Because that is part if the case-by-case analysis. If I was approached by the department I would be able [to] present how assessments and accommodations had been made in the past. I wanted to see if the department was going to follow the Guidelines.
Monk: And you decided not to initiate that?
Tremblay: I did initiate it.
Monk: Not to volunteer that information without them asking.
Tremblay: I was not aware that I was withholding information.
Monk: No I am not saying you were withholding it, but you didn't volunteer it; I mean, how do I: I'm getting the message from what I'm understanding at this point is that you did not say to; no; I mean I read your e-mails I don't see anything in there that say, for example, that I have been accommodated in other situations such as during my graduate studies by the following methods which may be appropriate in this situation.
Tremblay: That's correct.
Monk: And did you not think it was incumbent upon you yo give that information unless they came to you to assess you individually?
Tremblay: That's what the Guidelines tell them to do.
Monk: So it comes back to failing to follow the Guidelines.
Tremblay: That's correct.
Monk; But I mean if the issue is how is a person with a disability accommodated so that they are fairly assessed then, I guess, I have to ask myself whose job is it; does it all rest with the department or is there also some responsibility of the person being examined to advise the department of I need the following or what you're doing is not appropriate. So I have to think about that.
Tremblay: Yes. That is correct. I continuously prompted the department.
[43] The applicant's testimony leaves the impression that he felt it was solely the department's responsibility to come to him and get the needed information. Ideally, the search for accommodation should be a co-operative process. The applicant could have facilitated the co-operative process by openly sharing information with the department.
[44] Nonetheless, in Renuad, supra the Supreme Court placed the primary onus for devising and implementing accommodations on the employer. The search for accommodations in the case at bar foundered primarily because Transport Canada did not take the necessary steps to discern specifics about the applicant's situation. As a result, the merit principle was not respected and a new competition for these positions is required.
DISPOSITION
This application for judicial review is allowed and the decision of Appeal Board Chairperson Monk is set aside. The matter is referred to the PSC so that it may establish a new selection board to conduct a new competition for competition numbers 99-MOT-CC-OTT-024854 and 99-MOT-OTT-024853. In view of the divided success between dockets T-1958-00 and T-1201-01, there will be no order as to costs.
"Michael A. Kelen" ________________________________
J.F.C.C.
Ottawa, Ontario
April 22, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1958-00
STYLE OF CAUSE: MICHEL TREMBLAY v.
THE ATTORNEY GENERAL OF CANADA,
CARLO ZANETTI & DANIEL PLOUFFE
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: APRIL 7, 2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
MR. MICHEL TREMBLAY
FOR APPLICANT (ON HIS OWN BEHALF)
MR. RICHARD CASANOVA
FOR RESPONDENTS
SOLICITORS OF RECORD:
MR. MICHEL TREMBLAY
1274 COBDEN ROAD
OTTAWA, ONTARIO K2C 3A2
FOR APPLICANT (ON HIS OWN BEHALF)
MR. MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
FOR RESPONDENTS
FEDERAL COURT OF CANADA
Date: 20030422
Docket: T-1958-00
BETWEEN:
MICHEL TREMBLAY
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA, CARLO ZANETTI and DANIEL PLOUFFE
Respondents
REASONS FOR ORDER