Date: 20001201
Docket: A-795-99
CORAM: LINDEN J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
ERIC SCHEUNEMAN
Appellant
- and -
ATTORNEY GENERAL OF CANADA
(NATURAL RESOURCES CANADA)
Respondent
Heard at Ottawa, Ontario, on November 27, 2000.
Judgment delivered at Ottawa, Ontario, on December 1, 2000.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED BY: LINDEN J.A.
SHARLOW J.A.
Date: 20001201
Docket: A-795-99
CORAM: LINDEN J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
ERIC SCHEUNEMAN
Appellant
- and -
ATTORNEY GENERAL OF CANADA
(NATURAL RESOURCES CANADA)
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] Despite the submissions made by the appellant orally and in his extensive written materials, I am not satisfied that the Motions Judge committed any reversible error when he dismissed the appellant's application for judicial review. The appellant had asked the Court to set aside the decision of an Adjudicator rejecting the appellant's complaint that he had been unjustly dismissed from his employment with Natural Resources Canada.
[2] On the basis of the material before him, the Motions Judge was fully justified in concluding that, contrary to the appellant's contentions, there was neither a reasonable apprehension that the Adjudicator was biased, nor any other kind of procedural unfairness, including the refusal of the Adjudicator to ensure that the proceedings were recorded. The Judge was also correct, in my opinion, to find that the Adjudicator had provided adequate reasons to explain the bases of his decision, even though he had not dealt with each and every aspect of the multiple issues raised by the appellant.
[3] The Motions Judge seems not to have addressed the appellant's submission on the Adjudicator's finding that his termination was in bad faith. However, I am satisfied that, in rejecting the appellant's allegation of bad faith, the Adjudicator was not in error: the employer had permitted the appellant to remain on leave without pay for eight years after he had been told that he could no longer continue working from home.
[4] The appellant also submitted that the Motions Judge had erred in rejecting his argument that his termination violated his equality rights guaranteed by subsection 15(1) of the Canadian Charter of Rights and Freedoms. His argument was that he was dismissed because he suffered from chronic fatigue syndrome and that he had thereby suffered discrimination on the ground of physical disability, a ground of discrimination expressly prohibited by the Charter.
[5] I agree with the Motions Judge's conclusion that the appellant has failed to show that his termination constituted discrimination for the purpose of the Charter. The undisputed evidence was that, after he had exhausted his right to disability leave, he was given leave without pay, a status that enabled him to retain his health and dental benefits, and counted as employment for pension purposes.
[6] He was finally dismissed from employment eight years after first becoming ill. At the time of his termination, the medical evidence was that the appellant could not do any work, even on a part-time basis, and that it was unlikely that he would be able to work in the foreseeable future. The appellant has refused to consider a medical retirement because he regarded the terms as unattractive.
[7] In my opinion these facts do not establish a breach of section 15. The appellant was dismissed because he was unable to perform any work and was unlikely to be able to do so in the foreseeable future. It is a basic requirement of the employment relationship that an employee must be able to undertake work for the employer or, if temporarily disabled by a medical condition from so doing, must be able to return to work within a reasonable period of time. Dismissing a person who cannot satisfy this requirement is not, in the constitutional sense, discrimination on the ground of disability.
[8] I can well understand why the appellant would prefer to remain indefinitely on leave without pay. However, an employer to whom the Charter applies is not obliged by section 15 to comply with best employment practices and indefinitely to retain as an employee, even without pay, an employee who, like the appellant, may not be able to work for several years.
[9] For these reasons I would dismiss the appeal, but without costs.
"John M. Evans"
J.A.
"I agree
A.M. Linden J.A."
"I agree
K. Sharlow J.A."