Calgary, Alberta, March 9, 2006
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
and
THE WIKWEMIKONG TRIBAL POLICE SERVICES BOARD
REASONS FOR ORDER AND ORDER
I. Introduction
[1] Mr. James Darin Corbiere (the "Applicant") seeks judicial review of a decision made by the Canadian Human Rights Commission (the "Commission"), pursuant to the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act"). In its decision, the Commission dismissed the Applicant's complaint against the Wikwemikong Tribal Police Services Board (the "Respondent").
II. Background
[2] In February 1992, the Applicant began work as a police officer on the Wikwemikong Unceded Indian Reserve on Manitoulin Island, as an employee of the Respondent. In October 1997, he sustained a work-related lower back injury and went on disability leave.
[3] The Applicant returned to work in January 1998, on modified duties. In July 1998, his back injury flared up and again, he went on disability leave. In November 1998, the Applicant received medical clearance to return to modified duties.
[4] Following his return to work in November 1998, the Applicant proposed to his employer that he act as a "Detective Constable", that is following up on uniform assignments but without engaging in much physical strain. According to the narrative portion of his complaint to the Commission, the Applicant met with the Respondent on November 12, 1998 and was advised that a decision to accept his proposal, or otherwise, would be made within two weeks.
[5] The Applicant performed as a Detective Constable for three months. On March 27, 1999, he was informed at a meeting with the Respondent that he could no longer be accommodated. He was also informed that the Respondent would be issuing a record of employment in thirty (30) days, in other words terminating his employment. The Applicant was advised that he could respond to this decision at a meeting to be held on February 10, 1999.
[6] The Applicant attended the meeting on February 10, 1999 with the Chairperson and other members of the Respondent. The decision to terminate his employment was not changed. On February 27, 1999, the Applicant was given written notice that his employment was over.
[7] On March 28, 2000, the Applicant filed a complaint, pursuant to the Act, alleging that the Respondent had discriminated against him by terminating his employment on the grounds of disability and failing to accommodate his disability.
[8] The complaint was assigned to an Investigator on or about August 11, 2000, according to the chronology that forms part of the certified Tribunal Record. The Respondent objected to the timeliness of the complaint since it had been filed shortly after the twelve-month time period set out in paragraph 41(1)(e). The Commission decided to proceed on January 12, 2001 and the matter was reassigned on February 14, 2001.
[9] The Investigator's Report was provided to the Applicant and in a submission dated October 3, 2003, he expressed his opinion and comments. The Respondent was also given the opportunity to respond to the Report and did so by letter dated October 2, 2003. In an undated letter, the Applicant commented upon the submissions made by the Respondent in the letter from its lawyers. Finally, by letter dated October 16, 2003, counsel for the Respondent provided a "willsay" summary from Mr. Hendry Shawande, a former police chief with the Wikwemikong Police Service.
[10] Mr. Shawande described the efforts that had been made to accommodate the Applicant after his injury. He also stated that the Respondent was unable to afford or justify the creation of the position of Detective Constable.
[11] In the analysis section of the Investigation Report, the Investigator expressed the following opinion about the issue of accommodation:
35. Section 15(2) of the CHRA and the decision of the Supreme Court in the matter of British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (known as the "Meiorin" case) imposes a duty on the employer to accommodate the needs of a person with disability short of undue hardship to enable him or her to perform the essential duties of the job. Factors to be considered in determining whether or not there is undue hardship are health, safety and cost. A requirement that the employer create a new position has not been identified in the Act and or in the jurisprudence as a necessary condition.
...
38. The investigation establishes that as a result of injuries suffered by the Complainant on the job, he was not able to perform the full duties of the police officer position and sought to have the Respondent assign him on a permanent basis to a new job of modified duties consistent with his medical restrictions. While the Complainant argues that his proposal with respect to his job duties was not really asking the Respondent to create a new position, the investigation establishes otherwise. With respect to the function proposed by the Complainant, the evidence from witnesses is that all the police constable [sic] perform their own inspections and follow-up with help from the OPP when required. They were not certain theat [sic] there would be sufficient work for a full time investigator. Moreover, the Complainant acknowledges that the position he was proposing did not exist and never existed within the Respondent workplace.
39. The investigation does not indicate that following his initial injury and re-injury, that the Respondent failed to accommodate the Complainant's disability needs.
40. The investigation does not indicate that in failing to create a new position for the Complainant that the Respondent failed to accommodate the Complainant's disability needs short of undue hardship.
[12] The Investigator's Report is dated September 12, 2003. The Report concluded with the recommendation that the Commission dismiss the complaint, as follows:
41. It is recommended, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, that the Commission dismiss the complaint because:
- The investigation indicates that the Respondent accommodated the Complainant's disability needs by providing him with modified work and participating in the WSIB rehabilitation plan
- The decision to terminate the Complainants [sic] employment was based on medical evidence which indicates that the Complainant would not be able to perform the full duties of a police officer
- The job which the Complainant believes the Respondent should have given him did not exits. [sic]
- The Respondent did discuss with the Complainant the assignment to another position within the Police Services, but the Complainant did not consider it because it would have resulted in the lay off of another person.
[13] By letter dated December 15, 2003, the Commission informed the Applicant that his complaint had been dismissed. The letter provides, in part, as follows:
Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because:
• the investigation indicates that the respondent accommodated the complainant's disability needs by providing him with modified work and participating in the WSIB rehabilitation plan;
• the decision to terminate the complainant's employment was based on medical evidence which indicates that the complainant would not be able to perform the full duties of a police officer; and
• the evidence suggests that no accommodation was possible without imposing an undue hardship.
[14] On June 17, 2004, with leave of the Court, the Applicant commenced this application for judicial review.
III. Submissions
[15] The principal argument advanced by the Applicant in this application is that the Commission committed a reviewable error in its interpretation and application of the 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, [1999] 3 S.C.R. 3. The Applicant submits that the Commission erred by finding that the Respondent would suffer undue hardship if required to accommodate him by continuing his employment in the position of a "Detective Constable".
[16] For its part, the Respondent submits that the Commission's decision is subject to review on the standard of reasonableness simpliciter and that the decision to dismiss the Applicant's complaint is reasonable.
IV. Discussion and Disposition
[17] The Applicant filed his complaint pursuant to section 7 of the Act which provides as follows:
| 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.
|
[18] The prohibited grounds of discrimination are set out in subsection 3(1) of the Act:
| 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. |
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. |
[19] The Commission dismissed the complaint pursuant to paragraph 44(3)(b) of the Act which provides as follows:
| 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). |
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). |
[20] The Commission is a statutory tribunal, vested with decision-making authority pursuant to the Act. According to the recent decision in Sketchley v. Canada, 2005 F.C.A. 404, the first task of a Court reviewing a decision of an administrative decision-maker is to undertake a pragmatic and functional analysis in order to identify the appropriate standard of review. In Sketchley, the Federal Court of Appeal was considering two decisions made under paragraph 44(3)(b) of the Act and plainly stated that such decisions will always require application of the pragmatic and functional analysis, to determine the appropriate standard of review notwithstanding the prior jurisprudence, saying the following at paragraph 45:
Indeed, regardless of the standard adopted in these proceedings, future courts reviewing subsection 44(3) decisions must apply the pragmatic and functional analysis anew.
[21] The pragmatic and functional analysis involves consideration of four factors: the existence of a privative clause, the expertise of the tribunal, the purpose of the statute and of the particular provision in issue, and the nature of the question.
[22] The Act does not contain a privative clause. This factor weighs in favour of greater deference to the Commission.
[23] Second, the Commission is recognized as an expert tribunal for the purposes of the Act. Deference will be accorded in respect of factual findings made by the Commission; see Canada(Attorney General) v. Mossop, [1993] 1 S.C.R. 554. However, in matters that engage questions of law or the application of legal principles, less deference will be shown.
[24] Third, the purpose of the Act is to prevent discrimination and to provide redress when it occurs. At the same time, however, the Act includes provisions that authorize the Commission to screen complaints that are made. Paragraph 44(3)(b) allows the Commission to exercise discretion about the disposition of complaints following an investigation. This authority points towards a higher degree of deference.
[25] Finally, the nature of the question raised must be considered. Is it a question of fact or law? In this case, the Applicant based his complaint upon an alleged failure of the Respondent to accommodate his disability. This issue involves questions of both fact and law, since it requires the application of legal standards to a factual situation. Generally, the question of accommodation is one of mixed fact and law, calling for greater deference if the question is fact-intensive and less deference if it is law intensive.
[26] In the present case, the question tends to be law-intensive and consequently, less deference will be shown.
[27] On balance, having regard to the four factors and the varying degrees of deference involved, I conclude that the applicable standard of review here is correctness since the question in issue is "law intensive", that is whether there was prima facie discrimination that required consideration of the issue of accommodation.
[28] In my opinion, the Commission committed two errors in making the decision to dismiss the Applicant's complaint. First, it failed to make a finding that he suffered from a disability. This is a threshold question. There is nothing in the Investigation Report that squarely deals with that question, even though the Investigator identified the grounds for the complaint as "disability". The Federal Court of Appeal in Sketchley found an error by the Commission when it failed to make a finding concerning the existence of a disability.
[29] Second, the Commission failed to properly apply the Meiorin test. In Meiorin, supra, the Supreme Court of Canada addressed the elements of a bona fide occupational requirement, or BFOR, at paragraph 54 as follows:
54. Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:
(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.
[30] The Investigator did not address the first two elements of the test. She did not identify the required elements of the Applicant's job. She did not consider whether those requirements either had a rational purpose or that the standards were adopted in an honest and good faith belief that they were essential to fulfil the work-related purpose.
[31] The record is silent about the requirements of the Applicant's position. The Respondent argued that the Court can infer the job requirements from the Investigator's comments about what the Applicant was unable to do.
[32] A similar argument was advanced in Sketchley. It was rejected. Likewise, I reject the argument here. In my opinion, the Investigator, in purporting to apply the Meiorin test, should have turned her mind to the evidence that related to the three elements of that test. If indeed she did, she should have described that evidence in her Report and proceeded to analyse it. Her Report does not
show that she carried out those steps. The Report does not support the conclusions reached nor the decision by the Commission to dismiss the complaint.
[33] In the result, the application for judicial review is allowed and the matter is remitted to a different Investigator to re-investigate the complaint.
[34] The Applicant represented himself. He was successful. In the exercise of my discretion, I award him recovery of disbursements in connection with this application for judicial review.
ORDER
The application for judicial review is allowed. The decision of the Commission is quashed and the matter is remitted to a different Investigator to re-investigate the complaint.
In the exercise of my discretion, I award the Applicant recovery of his disbursements.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1167-04
STYLE OF CAUSE: JAMES DARIN CORBIERE
and
THE WIKWEMIKONG TRIBAL POLICE SERVICES BOARD
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 6, 2006
REASONS FOR ORDER
AND ORDER BY: Heneghan, J.
DATED: March 9, 2006
APPEARANCES BY:
James Darin Corbiere APPLICANT - ON HIS OWN BEHALF
Hugh N. MacDonald FOR THE RESPONDENT
SOLICITORS OF RECORD:
James Darin Corbiere APPLICANT - ON HIS OWN BEHALF
Sudbury, Ontario
Hugh N. MacDonald FOR THE RESPONDENT
Sault Ste. Marie, Ontario