Date: 20051025
Docket: A-297-04
Citation: 2005 FCA 346
CORAM: DESJARDINS J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
PATRICK E. QUIGLEY
Appellant
and
OCEAN CONSTRUCTION SUPPLIES, LTD., MARINE DIVISION
Respondent
Heard at Vancouver, British Columbia, on October 25, 2005.
Judgment delivered from the Bench at Vancouver, British Columbia, on October 25, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20051025
Docket: A-297-04
Citation: 2005 FCA 346
CORAM: DESJARDINS J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
PATRICK E. QUIGLEY
Appellant
and
OCEAN CONSTRUCTION SUPPLIES, LTD., MARINE DIVISION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on October 25, 2005.)
EVANS J.A.
[1] This is an appeal by Patrick Quigley from a decision of a Judge of the Federal Court (2004 FC 631) dismissing an application for judicial review by Mr. Quigley of a decision by a Canadian Human Rights Tribunal, dated April 3, 2002, which had found that Mr. Quigley had not been dismissed by his then employer, Ocean Construction Supplies Ltd., in contravention of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. The Tribunal held that, while Mr. Quigley's dismissal was prima facie in breach of subsection 3(1) and paragraph 7(a) of the Act, because it was based on the ground of disability, the employer had established the bona fide occupational requirement defence under paragraph 15(1)(a).
[2] In our opinion, this is a case that is based very largely on the Tribunal's extensive findings of fact, with nearly all of which the appellant did not seriously take issue.
[3] The appellant's case depended essentially on two arguments advanced by counsel. First, he said that the employer could not establish the BFOR defence since it had not adequately assessed Mr. Quigley's physical ability to perform the functions of a deckhand. This was because, counsel said, in the absence of a specific performance standard established by the employer, the employer had not permitted Mr. Quigley a work trial as an additional deckhand on an "inside" tug to see if he could do the job safely and efficiently.
[4] In our opinion, on the facts of this case the law did not require the work trial urged by counsel, and the Tribunal's application of the law to the facts was not unreasonable. Mr. Quigley had had a similar work trial in 1993, three years before his dismissal, and he had not done well in performing the demanding tasks of a deckhand. His medical condition was no better in 1996 than it had been in 1993. His previous experience as a deckhand had been very limited. Mr. Quigley's employment history over the eight years that he was with the company revealed that he had had significant medical problems that had prevented him from working for most of the time.
[5] Counsel's second argument was that, if Mr. Quigley had properly been found to be unable to perform the duties of a deckhand, the employer was under a positive duty to accommodate him by proposing other options, such as an office job, or building bigger bunks on the "outside" tugs that would accommodate Mr. Quigley's disability.
[6] However, the Tribunal found that Mr. Quigley "insisted" that he wanted a deckhand job on the "inside" tug. The only job in the Marine Division of the respondent that Mr. Quigley might have been able to do was that of dispatcher, and that position was occupied. As for the suggestion that a bigger bunk could be constructed on an "outside" tug, we note that the evidence was that Mr. Quigley's inability to sleep on the existing bunks was not the only reason why he could not work on the "outside" tugs. The length of the shifts on those tugs was not compatible with Mr. Quigley's medication.
[7] In our view, the Tribunal did not commit a reviewable error when it concluded that, on the facts, the employer had discharged the duty to accommodate Mr. Quigley up to the point of undue hardship.
[8] For these reasons, the appeal will be dismissed with costs.
(Sgd.) "John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-297-04
STYLE OF CAUSE: Patrick E. Quigley v. Ocean Construction Supplies Ltd.,
Marine Division
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: October 25, 2005
REASONS FOR JUDGMENT: DESJARDINS, EVANS , MALONE JJ.A.
REASONS READ FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
Mr. Paul Champ FOR THE APPELLANT
Mr. Michael W. Hunter FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raven Allen Cameron Ballantyne & FOR THE APPELLANT
Yazbeck LLP
Ottawa, Ontario
Fasken Martineau DuMoulin LLP FOR THE RESPONDENT
Vancouver, British Columbia