Ottawa, Ontario, November 29, 2006
PRESENT: THE HONOURABLE MR. JUSTICE ROBERT L. BARNES
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This proceeding arises from a dispute between the Applicant, Barbara Keyes, and her employer, the Canada Border Services Agency (CBSA). Ms. Keyes is a long standing employee of the CBSA having been hired as a Customs Inspector in the Windsor-St. Clair region in 1980.
[2] In early 2001 Ms. Keyes was diagnosed with breast cancer. She was treated with surgery and chemotherapy and, by all accounts, her recovery was protracted and difficult. Until May, 2003 Ms. Keyes received disability insurance benefits. At that point she had recovered sufficiently to return to work on an accommodated basis.
[3] As a temporary measure and by agreement, the CBSA placed Ms. Keyes into an administrative position in its Windsor Verification and Services Office. After completion of that posting in late February, 2004, the parties were unable to reach an agreement with respect to a permanent placement and that impasse has continued to this day.
[4] Suffice it to say that the offers by the CBSA for permanent employment were rejected by Ms. Keyes on the grounds that they failed to sufficiently accommodate her ongoing disability or did not account for the risk of a reoccurrence of her cancer through exposure to pollutants. In turn, Ms. Keyes’ suggestions to the CBSA for employment were rejected as being either unsuitable or administratively untenable.
[5] Further difficulties arose between the parties concerning the completion of a medical assessment by Health Canada at the request of the CBSA. Because Ms. Keyes insisted on having her lawyer attend with her for the medical appointment, the Health Canada physician refused to proceed. The parties were then unable to reach an agreement to complete an independent medical assessment and, as far as I can tell from the Record, no such assessment has ever been carried out.
[6] On March 25, 2004 Ms. Keyes filed a complaint against the CBSA with the Canadian Human Rights Commission (Commission) alleging discrimination on the basis of disability. She contended that the CBSA had failed to offer medically acceptable accommodation and she was thereby denied continued employment.
[7] In accordance with its usual practices, the Commission commenced an investigation of Ms. Keyes’ complaint. The assigned Investigator conducted interviews, reviewed the documentary evidence and wrote a detailed report which contained the following findings and recommendation:
16. On July 19, 2004 the respondent forwarded to the complainant a list of seven independent medical examiners who are located in the Southern Ontario area. The goal was to receive an independent medical evaluation of the complainant’s condition and accommodation requirements.
17. The complainant states that in reviewing this list she found none that were acceptable. She further states that any medical exam performed be done so with the presence of her legal advisor. She is presently in the act of compiling her own medical examiner list for presentation to the respondent. The respondent states it will take the list under advisement. If a mutually acceptable medical examiner [is] located who does not reside in the Windsor area they will provide transportation costs for her, but not for her lawyer.
18. The respondent states that it would be reasonable to request that the complainant provide a Functional Analysis of her present physical abilities and any relevant information of a psychological nature in order for them to adequately find an accommodated position for her.
19. The evidence indicates that the respondent provided an interim accommodation for the complainant from June 15, 2003 until February 23, 2004. This was accomplished through another branch of the CBSA in an attempt to clarify the accommodation requirements of the complainant. However, clarification of the complainant’s accommodation needs was not fulfilled because an independent medical assessment was not conducted during the interim position’s term.
[20.] The respondent also offered permanent accommodation at two locations, both rejected by the complainant.
[21.] The respondent made several attempts to fulfill [its] duty to accommodate the [complainant] and remains co-operative in this regard.
[22.] It is recommended, pursuant to subsection 44(3)(b) of the Canadian Human Rights Act that the Commission dismiss the complaint.
· The evidence does not support the complainant’s allegations.
[8] The Commission invited Ms. Keyes and the CBSA to respond to the Investigator’s Report and each of them provided detailed submissions. The Commission reviewed the Investigator’s Report and the parties’ responses and dismissed Ms. Keyes’ complaint on the same basis as the Investigator had recommended, that is, because “the evidence [did] not support the complainant’s allegation”. It is from this decision by the Commission to dismiss the complaint that Ms. Keyes brings this application for judicial review before the Court.
Issues
1. Having regard to the issues raised, what standard of review applies?
2. Did the Commission err by failing to provide sufficient reasons for its decision to dismiss the complaint?
3. Did the Commission err in its assessment of the duty to accommodate?
Standard of Review
[9] The first issue raised by Ms. Keyes is concerned with the content of the duty of fairness to give reasons. Because this is a question of procedural fairness, it is not the subject of a pragmatic and functional analysis and the standard of review is always correctness: see Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] S.C.J. No. 5, [2001] 1 S.C.R. 221, 2001 SCC 4 at para. 65.
[10] Ms. Keyes also contends that the Commission erred in its assessment of whether the employer fulfilled its duty to accommodate. This is a question of mixed fact and law and, in making the determination, the Commission is entitled to some judicial deference. Whether the standard of review is one of reasonableness (see Gardner v. Canada (Attorney General), [2005] F.C.J. No. 1442, 2005 FCA 284 at para. 21) or, possibly, patent unreasonableness (see Hutchinson v. Canada (Minister of the Environment), [2003] 4 F.C. 580, [2003] F.C.J. No. 439, 2003 FCA 133 at para. 67) is not necessary for me to decide. Whatever standard is applicable, I am satisfied that the Commission made no arguable error in its treatment of this issue.
Did the Commission err by failing to provide sufficient reasons for its decision to dismiss the complaint? Did the Commission err in its assessment of the duty to accommodate?
[11] Ms. Keyes does not disagree that the Investigator’s Report can be taken to be a constituent part of the Commission’s decision where the findings and recommendation are simply adopted by the Commission: see Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404 at para. 37. She argues, however, that, in her case, the Investigator’s Report failed to meet the duty to provide meaningful reasons because its conclusion is not supported by any evidentiary analysis. For this point, she relies upon cases like Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25, [2000] F.C.J. No. 1685 (F.C.A.) and Kalin v. Ontario College of Teachers (2005), 75 O.R. (3rd) 523, [2005] O.J. No. 2097 (D.C.) at paras. 45, 58 and 59.
[12] There are fundamental weaknesses to Ms. Keyes’ argument. The authorities which discuss the Commission’s duty to give reasons for its screening decisions have not imposed a fixed or rigorous standard: see Gardner, above, at paras. 23-31 and Johnson v. Maritime Telegraph and Telephone Co., [2004] F.C.J. No. 1171, 2004 FC 951 at para. 37. I do not read those authorities as going so far as to say that the Commission never has a duty to give reasons for its dismissal decisions at the screening stage. However, the Gardner decision, above, holds that, where a complainant has been intimately involved in the investigation process and thereby understands or has the means to understand the basis of the screening decision, no breach of the duty of fairness will arise from the provision of a conclusory or “laconic” decision – even where the Commission rejects the recommendation of the Investigator: see Gardner at para. 28.
[13] In Gardner, above, the Court drew a reasonable inference that the Commission’s decision to dismiss the complaint was based on its acceptance of the employer submissions in response to the Investigator’s Report and the complainant was, accordingly, not disadvantaged. Ms. Keyes contends, however, that she is at a disadvantage because the Investigator’s Report lacks reasoning for its conclusion. She says that she does not understand the basis for the dismissal recommendation.
[14] There is something to be said for avoiding the generic phrasing used here by the Investigator and repeated by the Commission that “the evidence [did] not support the complainant’s allegations”. In this situation the phrase is unduly vague if not potentially misleading. Nevertheless, the basis for the Investigator’s recommendation is simple enough to understand from a careful review of his report. As in the Gardner case, above, there is only one reasonable inference to take from the Investigator’s review of the evidence – that is, that the CBSA’s efforts to accommodate Ms. Keyes’ disability had been reasonable but that the process had broken down before it was complete. It is also apparent that the Investigator believed that the CBSA’s requests for medical and functional capacity evaluations were reasonable and necessary to advance the accommodation process. Those were reasonable conclusions to draw from the evidence placed before the Investigator and, therefore, are not open to challenge on judicial review.
[15] I am satisfied that the Commission’s screening decision was sufficient to inform Ms. Keyes and her counsel of its reasons for the dismissal of her complaint. Indeed, it is difficult to see how any other conclusion could have been reached by the Commission on the facts of this case.
[16] The CBSA remained open to further dialogue to advance the accommodation process but sought its own medical assessment to better understand Ms. Keyes’ employment limitations. That request remained unresolved and, until it was resolved, it was premature to conclude that the CBSA had failed to accommodate. It stands to reason that the Commission did not err in failing to accept Ms. Keyes’ argument that the CBSA had breached its legal obligation to accommodate. There was simply no basis in the evidence for proceeding to the next stage: see Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879, [1989] S.C.J. No. 103 at para. 27.
[17] In the hope that the parties will now work together to find suitable accommodated employment for Ms. Keyes, I will add a few observations about what appears to have brought them to this point.
[18] A careful reading of the correspondence exchanged from time to time between the parties leaves the impression that neither party fully appreciated the legitimate concerns of the other. It is possible that some of these areas of apparent misunderstanding arose because of Ms. Keyes’ insistence that the CBSA communicate with her solely through the union. In any event, the parties took some adversarial postures which may not have been warranted and which appear to have made the search for reasonable accommodation unnecessarily difficult. One example of this involves Ms. Keyes’ refusal to accept either of the two offered positions for permanent employment based on her belief that the working conditions might exceed her capacities and that the air quality at those work sites was at least suspect. Although the CBSA later confirmed that the offered positions would be limited to administrative duties nothing seems to have been done to formally alleviate the concerns of Ms. Keyes and her physician about the prevailing air quality. The CBSA stated that it had never had a workplace complaint on that issue but, in the face of Ms. Keyes’ understandable worry, some environmental testing might well have been appropriate. On the other hand, Ms. Keyes’ insistence that her lawyer attend with her for the scheduled Health Canada medical assessment along with her subsequent unwillingness to accept appointments with any of the seven other CBSA recommended physicians seem, on their face at least, unduly contentious. Indeed, the request by the CBSA for Ms. Keyes to attend for a medical assessment is understandable given the adversarial tone and limited content of the medical reports authored on her behalf by her family physician.
[19] The fact is that both the employer and the employee in circumstances such as this have a mutual responsibility to find a suitable workplace accommodation. To do that they need to work together. In very few cases will there be a perfect solution but in many there will be an acceptable one. The CBSA has stated on the Record in its submissions sent to the Commission and before the Court that it continues to be open to employment modifications. That stated willingness by the CBSA to continue to search for appropriate employment accommodation was a significant factor in the recommendation by the Commission’s Investigator to dismiss Ms. Keyes’ complaint.
[20] The CBSA appears to be willing to find a “permanent solution” subject to the reasonable requirement that Ms. Keyes participate in an independent medical assessment. Accordingly, there is no reason to think that the parties to this disagreement cannot still find a workable solution provided that some effort is taken by both to re-establish the degree of trust and goodwill that is required in the circumstances.
[21] Neither party requested costs against the other and, in those circumstances, no costs are ordered.
JUDGMENT
THIS COURT ADJUDGES that this application is dismissed without costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1256-05
STYLE OF CAUSE: BARBARA J. KEYES v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 20, 2006
APPEARANCES:
Arthur M. Barat Q.C. FOR THE APPLICANT
Joseph Cheng FOR THE RESPONDENT
SOLICITORS OF RECORD:
Barat, Farlam, Millson
Barristers and Solicitors
Windsor, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT