19980527
A-356-96
(T-2989-94)
CORAM: STRAYER J.A.
DESJARDINS J.A.
McDONALD J.A.
B E T W E E N:
LOUIS FORTIN
Applicant
(Respondent)
" and "
CANADIAN PACIFIC LIMITED
("CP RAIL")
Respondent
(Applicant)
HEARD at Vancouver, British Columbia, on Wednesday, April 29, 1998
JUDGMENT delivered at Ottawa, Ontario, on Wednesday, May 27, 1998
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: DESJARDINS J.A.
McDONALD J.A.
Date: 19980527
Docket: A-356-96
(T-2989-94)
CORAM: STRAYER J.A.
DESJARDINS J.A.
McDONALD J.A.
B E T W E E N:
LOUIS FORTIN
Applicant
(Respondent)
" and "
CANADIAN PACIFIC LIMITED
("CP RAIL")
Respondent
(Appellant)
REASONS FOR JUDGMENT
STRAYER J.A.
Introduction
This is an appeal from a decision of the Trial Division in which the motions judge set aside a decision of the Canadian Human Rights Commission of November 21, 1994 and referred the matter back to the Commission for reconsideration.
Facts
The respondent Fortin had been employed by the appellant Canadian Pacific Limited since 1957 and had occupied a managerial post since 1968. He was transferred to Vancouver in August, 1991.
In late 1992 the appellant commenced an investigation into irregularities in the respondent"s expense account and accounting practices. On March 3, 1993 he was suspended from employment pending further investigations. On March 11, 1993 he informed the appellant that he was an alcoholic and requested treatment through the company"s Employee Assistance Program. The company refused to put him on that program although its officers took some steps to assist him in seeking treatment. A doctor recommended that he be given medical leave from mid-April, 1993 to the end of May, 1993 but the Company refused. On April 23, 1993 the appellant company dismissed him.
On December 7, 1993 the respondent filed a complain with the Commission alleging that he was fired due to discrimination based on a disability, namely alcoholism. An investigation was ordered by the Commission.
The investigator"s report dated July 28, 1994 reported the views of several doctors, including an expert appointed by the Commission, to the effect that the alleged misbehaviour by the respondent in his work was probably related to his alcoholism. It also reported the views of the appellant that such "premeditated and calculated activity" could not have been the result of alcoholism. The investigator expressed the opinion that the appellant knew that the respondent was an alcoholic before deciding to fire him and that the appellant had refused to provide assistance to the respondent through the Employee Assistance Program. The investigator recommended that a conciliator be appointed.
However on November 21, 1994 the Commission advised the parties as follows:
| The Commission has decided, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss the complaint because on the evidence the allegation of discrimination is unfounded. |
It subsequently emerged that in making this decision the Commission had had before it submissions from the appellant employer dated May 2, 1994 and September 8, 1994, neither of which had been conveyed to the employee respondent for comment. When this was objected to by the respondent arrangements were made for disclosure of the company"s submissions to the employee with the opportunity for the latter to comment thereon. After this was completed the Commission issued a second decision on April 18, 1995 with the operative paragraph in identical terms to those of the decision of November 21, 1994.
The respondent employee then filed a notice of motion for judicial review in the Federal Court Trial Division requesting that the Commission"s decision be set aside and the matter referred back on the following grounds: that the Commission"s decision was patently unreasonable and involved an error of law, that it failed to exercise its jurisdiction, that it failed to observe principles of natural justice in not allowing the respondent employee to answer the company"s submissions, and that it based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the Commission.
As noted earlier, the Trial Division Judge allowed the application for judicial review, set aside the decision of the Commission, and referred the matter back for reconsideration. His reasons were issued in two parts, the first part being issued orally on April 9, 1996 when he issued the order, with written reasons being issued on July 10, 1996. The oral and written reasons were not precisely the same, although the written reasons also adopt the oral reasons as part of the reasons for the decision. It is the variation between the two sets of reasons which has given rise to some of the debate in this appeal. In his oral reasons, the motions Judge took the view that the Commission "simply abdicated its responsibility".