Date: 19990422
Docket: T-1754-97
OTTAWA, Ontario, this 22nd day of April, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
LEO J. CORMIER
Applicant
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION and
THE CANADIAN NATIONAL RAILWAY
Respondents
UPON application by the applicant filed August 15, 1997 and amended on January 5, 1998, for judicial review and an order to set aside a decision of the Canadian Human Rights Commission to dismiss the complaint of the applicant alleging discrimination against him by his employer, Canadian National Railway;
UPON hearing the applicant, who appeared on his own behalf, and counsel for the respondent Canadian National Railway, when this matter came on for hearing in Fredericton, N.B. on August 19, 1998, and upon consideration of submissions then made;
O R D E R
IT IS ORDERED that:
| 1. The application is dismissed. |
| 2. Costs are not awarded to either party. |
(signed) W. Andrew MacKay
_______________________________
JUDGE
Date: 19990422
Docket: T-1754-97
BETWEEN:
LEO J. CORMIER
Applicant
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION and
THE CANADIAN NATIONAL RAILWAY
Respondents
REASONS FOR ORDER
MacKAY J.:
[1] By an Originating Notice of Motion filed on August 15, 1997 and amended on January 5, 1998, the applicant seeks judicial review of a decision of the respondent Canadian Human Rights Commission (the "CHRC"), communicated to the applicant by a letter dated July 9, 1997. In that letter, the CHRC informed the applicant of its decision to dismiss his complaint that his employer, the respondent Canadian National Railway ("CNR"), had discriminated against him on the basis of his physical disability sustained in a work-related injury.
[2] For the reasons that follow, an order goes dismissing the applicant's application for judicial review.
Background
[3] The applicant alleged before the CHRC that CNR, his employer, subjected him to discrimination. I note that the applicant represents, in an affidavit sworn on August 14, 1997, in support of this application, that his injury, which precipitated this complaint, resulted from an assault by a fellow employee. That allegation, as I read the record, was not raised before the CHRC. I give no weight to this and any other evidence that was not before the CHRC, since a Court can consider only the evidence that was on record before the administrative decision-maker when the decision under review was made.1
[4] CNR employed the applicant as a steelworker, a position that required physically fit individuals, with appropriate training, who were capable of working with heavy equipment at heights. In February of 1993 he fractured his leg while at work. He did not work again until February of 1995 although he alleged that his doctor and the New Brunswick Workers' Compensation Board ("WCB") cleared him to return to work in December of 1993. However, in October of 1993 the applicant had told CNR that it was doubtful that he could perform the duties of a steelworker, an assertion that he repeated while at a WCB physical assessment meeting in November, a month later. The applicant did not object to the WCB's decision, pursuant to that meeting, that he required vocational rehabilitation for alternate work, and that it would assist to place him once he successfully completed rehabilitation. In March of 1994, the applicant told the WCB and CNR that he could have worked as a steelworker if his duties were limited to account for his inability to climb, or to squat extensively. After reviewing the applicant's medical condition, CNR's medical department made the following conclusions: "unfit climbing/heavy lifting 25 lbs" and "unfit working elevated structures".
[5] The applicant then asked CNR to retrain him in other positions. After CNR contacted its Engineering Department, which was then downsizing, he was told that no other positions were available in his former work section. The applicant complains that CNR then hired other individuals, including students and people from other regions, to perform work for which the applicant considered he was qualified. However, CNR staffed positions in conformity with its collective agreements, so that employees from other regions were entitled to apply for available positions in accord with seniority provisions. Furthermore, student positions, for summer work only, were not permanent or covered by collective agreements.
[6] CNR provided training for the applicant as a crew dispatcher in 1994 but ultimately disqualified him when practical training demonstrated that he was not capable of handling the responsibilities of that role. Moreover, CNR explained that it disqualified the applicant because he did not possess relevant qualifications for the position and had no seniority rights for that position under his collective bargaining agreement.
[7] Before the CHRC, CNR also argued that the applicant had sought relief before the New Brunswick Labour and Employment Board ("NBLEB"). The CHRC noted that the NBLEB concluded that the applicant was and remained medically unfit to perform the duties of a steelworker or a bridge inspector, another position that he sought. Furthermore, the NBLEB held that there was no evidence that an equivalent position was available. Delay in posting the applicant in alternative employment as a payroll clerk in February of 1995 was attributable to several factors, for none of which was CNR responsible. Finally, the NBLEB found no evidence to support the applicant's allegation that CNR employed able-bodied persons before assisting him as an injured worker.
[8] After reviewing the evidence before it, the CHRC's decision sets out, in part:
| 18. The complainant has made two basic allegations: that he was fit to return to work but the respondent kept him out of service from February 1993 to February 1995; and that the respondent failed to accommodate his disability. |
| 19. The complainant could not work from February to December 1993 while recovering from his broken leg. In December 1993, the respondent had evidence that he was not fit to return to his former position. There is no evidence that the complainant was fit to return to work before December 1993, nor is there evidence that he could return to the steelworker position until the orthopaedic surgeon's letter of July 5, 1994 which is ambiguous. Except for the orthopaedic surgeon's July 5, 1994 letter, all other evidence indicates that he was never fit to return to the steelworker position. The complainant himself told the respondent in 1994, the WCB in 1993 and the NBLEB in 1996 that he was not fit to return. There is no evidence that he is fit to return today. There is also no evidence that positions were available in the Engineering Department which was downsizing. There is also no evidence that the respondent kept the complainant out of service by delaying training and placement of the complainant. Workers from the 5.1 Wage Agreement had priority over the complainant and this caused delay in redeploying the complainant from the 10.2 Wage Agreement to the 5.1 Wage Agreement. There is no evidence to support the basic allegation that the complainant was fit to return to work but the respondent kept him out of service from February 1993 to February 1995. |
| 20. There is no evidence that the complainant asked the respondent to return to the steelworker position with accommodation. There is no evidence that the complainant could have been accommodated in the steelworker position. From all evidence, it appears that accommodation as a steelworker or in another position in the Engineering Department was not possible. Therefore, beginning in March 1994, the respondent tried to accommodate the complainant's disability by redeploying him to another position, although it took some time to train and place him. From June to October the respondent trained him to be a crew dispatcher but he could not complete the training. From December 1994 to February 1995 it trained him to be a payroll clerk and was able to place him in that position on February 10. Based on the evidence, it appears that the respondent made reasonable efforts to accommodate the complainant's disability by retraining him for another available position and by placing him. There is no evidence to support the basic allegation that the respondent failed to accommodate the complainant's disability. |
[9] In a July 9, 1997 letter, the CHRC notified the applicant that it had dismissed his complaint for the following reasons:
| Pursuant to s. 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has resolved to dismiss the complaint because: |
| the evidence does not tend to support the complainant's allegation that he was fit to return to his position as a Steelworker; |
| there is no evidence that the respondent delayed training and placement of the complainant; |
| the respondent reasonably accommodated the complainant by providing training for alternative positions on three occasions, in March 1994, June to October 1994, and December 1994 to February 1995, and by placing him in a Payroll Clerk position in February 1995. |
[10] Subparagraph 44(3)(b)(i) of the Canadian Human Rights Act2, relied upon by the CHRC, provides that the CHRC "...shall dismiss the complaint...if it is satisfied...that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted...".
Grounds for review
[11] Within his Amended Originating Notice of Motion, filed January 5, 1998, the applicant represents that he brings this application for judicial review under s. 18.1(4)(d) of the Federal Court Act3. That provision authorizes the Court to grant relief if it is satisfied that the decision in question was made "...in a perverse or capricious manner or without regard for the material before it...".
[12] The only fact set out by the CHRC alleged as erroneous by the applicant is the statement that CNR provided training for him in March of 1994. In addition, in affidavits filed with the Court, the applicant reiterates arguments that he made before the CHRC, and he urges that the CHRC erroneously concluded that CNR did not discriminate against him.
Analysis
[13] It is well settled that subparagraph 44(3)(b)(i) vests discretion in the CHRC. In Slattery v. Canada (Canadian Human Rights Commission)4, Nadon J. held that subparagraph 44(3)(b)(i) provides the CHRC with broad discretion to dismiss complaints before it. He stated that:
| "In the spirit of the Supreme Court of Canada in Mossop, deference must prevail over interventionism in so far as the CHRC deals with matters of fact-finding and adjudication, particularly with respect to matters over which the CHRC has been vested with such wide discretion, as in the case of the decision whether or not to dismiss a complaint pursuant to subsection 44(3). |
| In light of the fact that the power vested with the CHRC under subsection 44(3) is discretionary in nature, I must accept the following guiding statement of McIntyre J. in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pages 7-8: |
| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere." |
[14] The Court may not interfere where the CHRC exercises its statutory discretion in good faith and does not rely on considerations that are irrelevant or extraneous to the statutory purpose. To intervene, the Court must conclude that the CHRC exercised its discretion in a discriminatory, unfair, capricious or unreasonable manner.5 The standard of review in considering a discretionary CHRC decision not to refer a complaint to a tribunal is whether the decision was reasonable, rather than whether it was correct.
[15] The applicant submits that "...the Commission must look at all the forms of discrimination and not only at whether or not the 429 additional days held out of service was reasonable or not." He did not specify what forms of discrimination this referred to other than his physical disability as a result of the accident. The "Complaint Summary" and "Rebuttal" sections from the CHRC Investigation Report indicate that the applicant alleged discrimination only on the basis of his disability. He also alleged that he was treated unfairly when others, including students, were hired by CNR and when he was disqualified for employment as a crew dispatcher, but that unfairness must be related to discrimination on a prohibited ground under the Canadian Human Rights Act, if the CHRC is to have jurisdiction to consider the complaint.
[16] In my view, the CHRC considered the relevant issues in its Investigation Report. It concluded that CNR attempted to accommodate the applicant's disability, and that there was no evidence to the contrary. Further, its report accepted that workers subject to different collective agreements in relation to jobs subject to those agreements had priority over the applicant and it accepted evidence that CNR hired students regularly for summer positions that were not subject to collective agreements. The CHRC addressed the applicant's concerns reasonably, and absent any bad faith. In my opinion the applicant's submission that the CHRC failed to address all forms of discrimination is not substantiated.
[17] I turn now to the error of fact of concern to the applicant as set out in the CHRC's conclusion in its July 9, 1997 letter, that is, the reference in the decision that appears to state that CNR provided training for alternate positions in March of 1994. There is no evidence that the applicant was provided such training at that time. Rather, it appears clear that in March of 1994, the applicant's name was submitted to CNR's Rehabilitation Committee after CNR determined that the applicant could not continue his employment as a steelworker. On March 17, 1994 the Committee agreed to ascertain the applicant's capabilities and to attempt to find alternate employment for him. That is reflected in the CHRC Investigative Report, but "...it took some time to train and place him...". The summary reference to training in March 1994 is an error in fact. However, I cannot ignore that this was only one in a list of factors that the CHRC decision letter indicated the Commission had relied upon. Even if the erroneous finding is not based on any evidence before the CHRC, I am not persuaded that the Commission's decision can be said to be based upon that error, which is required, if the Court were to intervene, under paragraph 18.1(4)(d) of the Federal Court Act.
Conclusion
[18] A review of the CHRC Investigation Report demonstrates that the CHRC analyzed the evidence and arguments of the parties to the complaint and exercised its discretion reasonably and in good faith. I therefore dismiss the applicant's judicial review application.
[19] Costs were not sought by either of the parties and were not discussed when the application was heard. That is not surprising since under the Rules of Court applicable when this proceeding commenced, costs were not awarded, except in a special case, in relation to proceedings for judicial review. In the circumstances, no award of costs is ordered.
(signed) W. Andrew MacKay
_______________________________
JUDGE
OTTAWA, Ontario
April 22, 1999
__________________1 See, for example, Brychka v. Canada (Attorney General) [1998] F.C.J. No. 124 (F.C.T.D.), online: QL (FCJ).
2 R.S.C. 1985, c. H-6 as amended.
3 R.S.C. 1985 c. F-7 as amended.
4 [1994] 2 F.C. 574 (F.C.T.D.), affirmed at [1996] F.C.J. No. 385 (F.C.A.), online: QL (FCJ).
5 See Syndicat des employeés de production du Québec et de L'Acadie v. Canada (Canadian Human Rights Commission) , [1989] 2 S.C.R. 879, (1989), 62 D.L.R. (4th) 385 (S.C.C.) and Garnhum v. Canada (Canadian Human Rights Commission), [1996] F.C.J. No 1254 (F.C.T.D.), online: QL (FCJ).