A-437-96
CORAM: STRAYER, J.A.
MacGUIGAN, J.A.
McDONALD, J.A.
Between:
BUDDY LEE
Appellant
(Applicant)
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION
THE BRITISH COLUMBIA MARITIME
EMPLOYERS ASSOCIATION
Respondent
(Respondent)
Heard at Vancouver, BC on April 24 and 25, 1997
Reasons delivered from the Bench at Vancouver, BC
on Friday, April 25, 1997
REASONS FOR JUDGMENT: MacGUIGAN J.A.
A-437-96
CORAM: STRAYER, J.A.
MacGUIGAN, J.A.
McDONALD, J.A.
Between:
BUDDY LEE
Appellant
(Applicant),
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION
THE BRITISH COLUMBIA MARITIME
EMPLOYERS ASSOCIATION,
Respondent
(Respondent).
REASONS FOR JUDGMENT
(Delivered from the Bench at Vancouver, BC
on Friday, April 25, 1997)
MacGUIGAN J.A.
This is the fourth hearing of the Appellant's challenge, on the basis of discrimination based on disability under the Canadian Human Rights Act (the "Act"), of his deregistration by his employer as a longshore worker.
The Appellant has a disability, resulting from a childhood accident, of "a speech impediment, a somewhat awkward gait and a lack of coordination in his left extremities" (Appeal Book I, 101) which involved him in several work incidents in the years 1981 to 1983 that raised questions as to his productivity or ability to work safely.
After a thorough review of the evidence a single-member Human Rights Tribunal concluded as follows in 1989:
| This evidence supports the Employer's analysis that there was little work on the waterfront which Buddy Lee could perform safely or productively. The incident at Casco demonstrated he could not load and unload sacks, which was one of the most common assignments on the waterfront. He failed at stacking liquor cartons as indicated by the incident at Empire. He was unable to perform any of the duties at the wheat loading facility and, without assistance, he could not perform the work expected of a holdman on a log ship. |
| More importantly, witness after witness testified that they feared for Buddy Lee's safety. These opinions were not impressionistic views but were based upon eye witness reports concerning Buddy Lee's inability to walk on logs, his stumbling on the top of container trucks, his slipping on a ladder, his crawling on hands and knees to wrestle with grain sacks and his lack of awareness when working around siwashing cables or moving forklifts. |
A three-member Review Tribunal concluded in 1995 that the initial Tribunal applied the correct legal definition of a bona fide occupational requirement (BFOR) under s. 15(a) of the Act when it found that the employer's standards in respect of fitness, specifically the state of being coordinated, constituted a BFOR.
The Appellant challenged this finding before the Review Tribunal, and continued to do so before Muldoon J. on judicial review and before this Court on further appeal, on the ground that the BFOR had been established by impressionistic evidence without any or sufficient evidence of a scientific or medical nature.
The only scientific or medical evidence as to the Appellant's condition was a standard medical examination on 11 May 1979 which pronounced him suitable for longshoring work. However, this was found by the initial Tribunal to be "an imperfect and cursory medical examination" (Appeal Book I, 133). When a second medical examination was ordered by the employer, the Appellant refused or failed to attend. The only reliable evidence available, therefore, was that of fellow workers or supervisors.
Although McIntyre J. in Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202 lauded scientific evidence as to BFORs and warned of the dangers of impressionistic evidence, he also stated (212):
| I am far from saying that in all cases some "scientific evidence" will be necessary. |
What kind of evidence is required is obviously a matter of circumstances.
We are all agreed that the following statement of Muldoon J. (Appeal Book III, 475-476) admirably applies the law to the present case:
| In the absence of professional opinion serving as scientific evidence, lay, eye-witness' factual observation can serve to prove the individual claimant's personal capacities. (Graat v. The Queen, [1982] 2 S.C.R. 819). Here determination of the applicant's abilities to perform his various duties is a question of fact, about which a lay witness of fact, especially one experienced in the relevant duties, or job, can give cogent testimony, if credible, which can be entirely probative and determinative of the question. Such was the evidence put before the original tribunal |
| Such evidence is not "impressionistic" if not founded on a dilute generality (i.e. "a young man's game"), but founded on specific credible observations of this particular complainant's manner of performing, and abilities to perform, the very specific job or jobs. So, it was, in the present case. |
The Appellant also argued that Muldoon J. erred in not giving effect to the guidelines issued by the Canadian Human Rights Commission pursuant to s. 27(2) of the Act, which were in force at the time of the Appellant's deregistration. We find it unnecessary to consider the substance of the guidelines, since we are of the opinion that their revocation in 1988, before the first of these hearings, was retroactive. The Act states in s. 27(3) that
| (3) A guideline issued under subsection (2) is, until it is subsequently revoked or modified, binding on the Commission, any Human Rights Tribunal . . . and any Review Tribunal . . . |
| [emphasis added] |
We interpret the words "until . . . subsequently revoked" to mean that, after revocation, such procedures have no binding power even with respect to earlier facts.
Moreover, as the Review Tribunal held, it was not open to the Appellant to argue the guidelines since no issue as to them was raised in his notice of appeal to that Tribunal.
Finally, the Appellant alleged that Muldoon J. was in error in failing to find that the use of the word "misfit" about him by Mike Cahan, the person directly responsible for his dismissal, was discriminatory. Indeed, in oral argument Appellant's counsel alleged that Muldoon J. had effectively called his client a misfit, and threatened this Court that, if we did not disown that conclusion, he would resign from legal practice within a month.
Cahan's statement was made to a Commission investigator and was as follows (Appeal Book I, 73):
| "Q Which other employee had been deregistered because they constitute a safety risk? |
| A We did not deregister that many, because there are not many misfits in our work force." |
Admittedly, this amounts to an indirect allegation that the Appellant was a misfit, though not made insultingly to his face and in fact made long after he was employed. Moreover, it was not made in relation to the statutory ground of discrimination, viz., disability. Indeed, Cahan testified that he was never aware during the time of the Appellant's employment, which would have been the relevant time for a discriminatory discharge, that he even had a disability. The use of the word "misfit", when it did occur, was in relation to safety risks (as the question specifies) rather than to the disabled.
The heart of Muldoon J.'s statement is one with which we are respectfully in complete accord (Appeal Book III, 477-478):
| "Misfit" is not a happy word, but it does not show that . . . [the employers] were prejudiced against Buddy Lee, as alleged by counsel . . . The word . . . relates only to the activity or skill about which it is spoken. In the circumstances of this case, and this applicant, it promotes no complaint which is capable of changing the outcome. |
To be discriminatory under the Act, the word would have had to indicate a prejudicial state of mind in relation to disability. Here, it did not, both because of Cahan's lack of knowledge of the Appellant's disability and because of the wording of the question being replied to.
The Trial Judge's one reference to the Appellant as a misfit has to be read, as his own words indicate, in the same non-pejorative sense in which he describes himself as a misfit in some contexts.
We are agreed that the appeal fails on all grounds.
In light of the Respondent's self-denial on costs, there should be no order as to costs.
(Sgd.) "Mark MacGuigan"
J.A.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: BUDDY LEE
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION, THE BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION
COURT NO.: A-437-96
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: April 24 and 25, 1997
REASONS FOR JUDGMENT OF MacGUIGAN J.A.
delivered from the Bench at Vancouver, BC
on Friday, April 25, 1997
APPEARANCES:
Mr. Dugald Christie for Appellant
(Applicant)
Mr. Patrick M. Gilligan-Hackett for Respondent
The British Columbia
Maritime Employers Association
SOLICITORS OF RECORD:
Mr. Dugald Christie for Appellant
| Barrister & Solicitor (Applicant) |
| Vancouver, BC |
Alexander Holburn for Respondent
Vancouver, BC The British Columbia
Maritime Employers Association