PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
CANADIAN NATIONAL RAILWAY COMPANY
REASONS FOR JUDGMENT AND JUDGMENT
[1] Walter Kennedy seeks judicial review of a decision of the Canadian Human Rights Commission dismissing the complaint of discrimination that he filed against his former employer, the Canadian National Railway Company.
[2] I am satisfied that Mr. Kennedy's application must be allowed, as the investigation report upon which the Commission based its decision was fundamentally flawed.
Background
[3] Mr. Kennedy was hired by CN in 1972. In November of 1991, he suffered a work-related injury to his back when he slipped and fell while cleaning a caboose. At the time of the injury, Mr. Kennedy was employed as a Chauffeur/Clerk in CN's facility in Capreol, Ontario.
[4] Mr. Kennedy collected worker's compensation benefits for some time after his accident. There is a conflict in the evidence as to when it was that Mr. Kennedy was fit to return to work, and when he advised CN of his interest in returning to work. Mr. Kennedy asserts that he advised CN of his desire to return to work in November of 1994, and that CN refused to respond to his requests.
[5] In contrast, CN says that Mr. Kennedy did not advise it of his willingness to return to work until September of 1996, by which time the Chauffeur/Clerk positions in Capreol had been eliminated, and there was no position for Mr. Kennedy to come back to.
[6] What is clear is that in the mid-1990's CN began eliminating Chauffeur/Clerk positions. One of the two Chauffeur/Clerks working in the Capreol facility was laid off in October of 1995, although he worked sporadically until September of 1996. The other Chauffeur/Clerk was laid off in September of 1996, working sporadically until December of that year.
[7] Because Mr. Kennedy was not on active service with CN at the time that the Chauffeur/Clerk positions were abolished, he was ineligible for certain income security benefits to which he would otherwise have been entitled.
[8] In April of 2001, Mr. Kennedy filed his human rights complaint with the Commission, asserting that CN had refused to allow him to return to work after his injury, and had failed to accommodate his disability, contrary to the provisions of section 7 of the Canadian Human Rights Act.
[9] It appears that the Commission initially declined to deal with the complaint, on the basis that it was filed more than one year after the last event complained of. However, after Mr. Kennedy challenged that decision by way of judicial review, the Commission decided to investigate the complaint.
The Commission's Decision
[10] The Commission's investigation was completed in September of 2004. After noting that Mr. Kennedy's position was abolished along with many other positions, the investigator stated the following by way of "Overall Analysis":
[41] The evidence gathered during the investigation does not support the complainant's allegation that the respondent refused to accommodate him and prevented him from returning to work. The complainant was not discriminated against on the ground of his disability.
[42] The evidence indicates that in August 1995 and April 1996, the complainant was not considered for the remaining Chauffeur positions because he did not have sufficient seniority. In the Renaud decision (1994), the Supreme Court of Canada held that, "While the provisions of a collective agreement cannot absolve the parties from the duty to accommodate, the effect of the agreement is relevant in assessing the degree of hardship occasioned by interference with the terms thereof". The duty to accommodate can override seniority, if there are no other, less intrusive, accommodation possibilities available. In this case, however, the complainant's position was abolished, along with the positions of a number of other employees who were not disabled, while he was off on leave. The duty to accommodate does not protect against lay-off. [emphasis added]
[11] The Commission's decision dismissing Mr. Kennedy's complaint took the form of a letter dated December 29, 2004, the operative portion of which provides that:
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 evidence does not support the allegations that the complainant was discriminated against on the basis of his disability.
[12] Mr. Kennedy says that the investigator's finding that he did not have sufficient seniority to allow him to return to one of the remaining Chauffeur/Clerk positions in Capreol was contrary to the evidence before the investigator. Moreover, the investigator's conclusion on this point was contrary to the investigator's own earlier finding that Mr. Kennedy in fact had more seniority than the two individuals in Chauffer/Clerk positions at the material times.
[13] To the extent that the Commission's decision was based upon a flawed investigation, Mr. Kennedy says, the decision of the Commission was itself flawed.
Standard of Review
[14] The parties are in agreement that the standard of review to be applied to decisions by the Canadian Human Rights Commission to dismiss human rights complaints is that of reasonableness, based upon the comments of the Federal Court of Appeal in Tahmourpour v. Canada (Solicitor General), [2005] F.C.J. No. 543, where Justice Evans stated that:
Subparagraph 44(3)(b)(i) of the Act confers a broad discretion on the Commission to decide whether a complaint should be screened out or proceed to a hearing before a Tribunal. Consequently, the Court will only intervene if the Commission's conclusion is unreasonable, absent a breach of the duty of fairness or other errors of law: Bell Canadav. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113(C.A.) at para. 35; see further Marie-Hélène Blais et al., Standards of Review of Federal Administrative Tribunals, 2005 edn. (MarkhamOnt.: LexisNexis Butterworth, 2004), at 3.2.1.4.
[15] Given that Mr. Kennedy is not alleging any breach of procedural fairness on the part of the Commission in this case, I am satisfied that the Commission's decision should be reviewed against the standard of reasonableness. That is, the question for the Court is whether the decision can stand up to a somewhat probing analysis: Canada(Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at ¶ 56.
[16] With this understanding of the standard of review, I turn now to consider the issues raised by this case, starting with a consideration of what should be viewed as the Commission's decision.
The Contents of the Commission's Decision
[17] Counsel for CN submits that the decision under review is that of the Canadian Human Rights Commission, and not the report of the investigator. Given the fact that the Commission gave only perfunctory reasons for dismissing Mr. Kennedy's complaint, we have no way of knowing which of the investigator's findings were relied upon by the Commission in arriving at its decision.
[18] As a consequence, counsel says, the Court should only consider the reasons given in the Commission's December 29, 2004 letter in assessing this application.
[19] I do not accept counsel's submissions in this regard. It is well established that given the cursory nature of Commission decisions, investigation reports must be read as the Commission's reasons: see Sketchley v. Canada(Attorney General), 2005 FCA 404 at ¶ 37, where the Federal Court of Appeal stated:
The investigator's Report is prepared for the Commission, and hence for the purposes of the investigation, the investigator is considered to be an extension of the Commission (SEPQA, [Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879] at para. 25). When the Commission adopts an investigator's recommendations and provides no reasons or only brief reasons, the Courts have rightly treated the investigator's Report as constituting the Commission's reasoning for the purpose of the screening decision under section 44(3) of the Act (SEPQA, supra at para. 35; Bell Canada v. Communications, Energy and Paperworkers Union of Canada (1999) 167 D.L.R. (4th) 432, [1999] 1 F.C. 113 at para. 30 (C.A.) [Bell Canada]; Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47, 2001 FCA 93 at para. 43 (C.A.)).
[20] Moreover, any deficiencies in the investigation report are relevant on judicial review. Indeed, as Justice Noël observed in Canadian Broadcasting Corporation v. Canadian Human Rights Commission, [1993] F.C.J. No. 1334:
If the report which [the CHRC] adopted in making its decision is flawed, it must follow that the decision itself is equally flawed.
[21] With this understanding as to what will be viewed as the Commission's decision, I turn now to consider whether the Commission's decision in this case was reasonable.
Was the Commission's Decision Reasonable?
[22] As was noted earlier, there was a conflict in the evidence before the investigator as to when it was that Mr. Kennedy advised his employer that he was ready and able to return to work.
[23] That said, the investigation report indicates that by August of 1995, CN was aware that Mr. Kennedy was able to return to work. Further, the report notes that there was an exchange of e-mails within CN in the Fall of 1995, which indicate that efforts were being made to find a Chauffer/Clerk position for Mr. Kennedy.
[24] The investigator also observed that, according to these internal e-mails, as of August 31, 1995, Mr. Kennedy did not have enough seniority to occupy one of the remaining Chauffer/Clerk positions in Capreol, or anywhere else in Ontario for that matter. A further exchange of e-mails within CN in April of 1996 was to the same effect.
[25] This led to the investigator's conclusion that:
The evidence indicates that in August 1995 and April 1996, the
complainant was not considered for the remaining Chauffeur positions because he did not have sufficient seniority.
[26] This in turn led the investigator to his conclusion that the evidence did not support Mr. Kennedy's allegation that CN's refusal to put him back in a Chauffer/Clerk position in its Capreol facility amounted to adverse differential treatment arising out of his disability.
[27] The problem with the investigator's finding is that it is completely at odds with the investigator's own earlier finding that the individuals in the Chauffer/Clerk positions in Capreol at the time that Mr. Kennedy was trying to return to work had less seniority than he did. In this regard, I refer to paragraph 18 of the investigation report, where the investigator stated that:
The respondent submitted Work Records for Chauffeurs in Capreol. These records indicate that Mr. G, who had less seniority than the complainant, was laid off in September 1996 and worked sporadically until December 1996. Mr. B., who also had less seniority than the complainant, was laid off in October 1995 and worked sporadically until September 1996. Like the complainant, they were both spare and relief workers... [names omitted, emphasis added]
[28] With respect, the investigator cannot have it both ways. Mr. Kennedy either had more seniority than the individuals occupying the Chauffer/Clerk positions in Capreol in the Fall of 1995, or he did not.
[29] Having previously found that Mr. Kennedy had more seniority than those that he was seeking to replace, it was simply perverse for the investigator to then find that he was not entitled to a Chauffer/Clerk position because he had less seniority than the other Chauffeur/Clerks in Capreol.
[30] The finding that Mr. Kennedy had less seniority than the individuals occupying the Chauffeur/Clerk positions in Capreol in the Fall of 1995 and the Spring of 1996 was central to the investigator's conclusion that the evidence did not support Mr. Kennedy's claim to have been treated in an adverse differential manner in the course of his employment by reason of his disability. Given the internal inconsistencies within the investigation report on the seniority issue, the investigator's conclusion cannot stand.
[31] As the Commission's decision was based upon a flawed report, it follows that the Commission's decision was itself flawed.
[32] Given that I have found that the inconsistencies in the investigator's findings were patent on the face of the investigator's report, there is no need to consider the extrinsic evidence adduced by Mr. Kennedy. As a result, it is unnecessary to address counsel for the respondent's objection to the use of that evidence.
Conclusion
[33] For these reasons, I am satisfied that the decision of the Canadian Human Rights Commission to dismiss Mr. Kennedy's complaint was unreasonable. The decision is set aside, and the matter is remitted to the Commission for a fresh investigation, by a different investigator.
Costs
[34] Both parties agree that costs should follow the event, on the ordinary scale. However, counsel for CN points out that Mr. Kennedy is being represented by in-house counsel for the CAW - Mr. Kennedy's union. Counsel submits that while Mr. Kennedy is entitled to his costs actually incurred, his union - a non-party to this proceeding - should not get its costs.
[35] I do not accept this submission. There are a number of policy considerations governing the granting of costs, apart from providing partial reimbursement to a successful party. Moreover, if counsel for CN were correct, then no one using a lawyer funded by a Legal Aid certificate would ever be entitled to an award of costs.
[36] Having regards to all of the circumstances, and in the exercise of the discretion conferred upon me by Rule 400 of the Federal Courts Rules, I am of the view that Mr. Kennedy should be entitled to his costs of this application, on the ordinary scale.
JUDGMENT
For these reasons, this Court orders and adjudges that the application for judicial review is allowed, with costs. The decision of the Canadian Human Rights Commission to dismiss Mr. Kennedy's complaint is set aside, and the matter is remitted to the Commission in order that there may be a fresh investigation of Mr. Kennedy's complaint, by a different investigator.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-154-05
STYLE OF CAUSE: WALTER KENNEDY v.
CANADIAN NATIONAL RAILWAY COMPANY
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
| Mr. L. N. Gottheil
|
|
| Mr. William G. McMurray
|
SOLICITORS OF RECORD:
| L. N. Gottheil, Toronto, ON
|
|
| William G. McMurray, Montreal, PQ.
|