BETWEEN:
THE WIKWEMIKONG TRIBAL POLICE SERVICES BOARD
and
Heard at Toronto, Ontario, on February 1, 2007.
Judgment delivered at Ottawa, Ontario, on March 12, 2007.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: DÉCARY J.A.
EVANS J.A.
Docket: A-140-06
Citation: 2007 FCA 97
CORAM: DÉCARY J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
THE WIKWEMIKONG TRIBAL POLICE SERVICES BOARD
APPELLANT
and
JAMES DARIN CORBIERE
RESPONDENT
REASONS FOR JUDGMENT
I. Introduction
[1] This is an appeal from an order of a Judge of the Federal Court, dated March 9, 2006 (cited as 2006 FC 312), which allowed Mr. Corbiere’s application for judicial review with respect to a decision of the Human Rights Commission. The Commission had dismissed Mr. Corbiere’s complaints against his employer, Wikwemikong Tribal Police Services Board (Board). The Judge found that the Commission made a number of errors in its investigation of his complaints of discrimination under the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (the Act).
[2] I would allow the appeal for the following reasons.
II. Factual Background
[3] In February 1992, Mr. Corbiere was employed as a police officer on the Wikwemikong Unceded Indian Reserve on Manitoulin Island. In October 1997, during his employment, he sustained work-related back injuries that made it necessary for him to go on disability leave. He returned to work in January 1998 under the close supervision of his physician and could only perform modified duties.
[4] Despite being placed in light duty and sedentary activities, in June 1998, Mr. Corbiere complained that his back was too sore to continue to work and he once again went on medical leave. In November 1998, Mr. Corbiere received medical clearance to return to work, but still could only perform modified duties.
[5] Upon his return to work, Mr. Corbiere proposed to the Board that he act as a “detective constable,” in a position created so as to allow him to perform limited duties. The Police Chief reserved his decision and in the interim, Mr. Corbiere performed the duties as outlined in his proposal for a period of three months. He was then informed by the Board that his proposal would not be accepted and that his employment would be terminated in thirty days. Mr. Corbiere was told that he could respond to this decision at a Board meeting to be held on February 10, 1999.
[6] Mr. Corbiere attended that meeting and was given an opportunity to rebut the Board’s decision but the decision to terminate his employment remained unchanged. On March 28, 2000, he filed a complaint with the Commission pursuant to section 7 of the Act alleging that the Board had discriminated against him in the course of employment by failing to accommodate his disability (being his back injury) and by terminating his employment because of his disability.
[7] An investigation was launched and ultimately a decision was reached by way of an Investigator’s Report (the Report) prepared by Silvilyn Holt dated September 12, 2003. The Report recommended that the Commission dismiss the complaint, principally because the decision to terminate his employment was based on medical evidence which indicated that Mr. Corbiere would not be able to perform the full duties of a police officer and that there was no funding to create the position of police constable.
[8] By letter dated December 15, 2003, the Commission informed Mr. Corbiere that his complaint had been dismissed pursuant to section 44 of the Act, which provides that the Commission, on receipt of an investigator’s report, shall dismiss a complaint if it is satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted. Mr. Corbiere then filed an application for judicial review in the Federal Court alleging factual errors on the part of the Commission.
III. Decision Below
[9] Mr. Corbiere was not represented by counsel at the hearing before the Judge. He argued that the Commission improperly rejected his evidence and committed an error in its interpretation and application of the three-part test for accommodation set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 S.C.R. 3 [Meiorin].
[10] In determining the standard of review, the Judge applied the pragmatic and functional analysis and determined that the applicable standard of review was correctness. The Judge concluded that the Commission committed two errors in dismissing Mr. Corbiere’s complaint. First, it failed to make the necessary finding that he suffered from a disability and then failed to apply the Meiorin test to determine if the elements of a bona fide occupational requirement were met. As a result, the Judge allowed Mr. Corbiere’s judicial review application.
IV. Legislative Framework
[11] The legislation relevant to this appeal is provided for below:
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3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
44. (3) On receipt of a report referred to in subsection (1), the Commission …
(b) shall dismiss the complaint to which the report relates if it is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
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3. (1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, l’état de personne graciée ou la déficience.
7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d’employer ou de continuer d’employer un individu; b) de le défavoriser en cours d’emploi.
44. (3) Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
… b) rejette la plainte, si elle est convaincue :
(i) soit que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci n’est pas justifié, (ii) soit que la plainte doit être rejetée pour l’un des motifs énoncés aux alinéas 41c) à e).
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V. Issues
[12] The two issues raised in this appeal are whether the judge erred by:
1. selecting the wrong standard of review; and
2. concluding that the Commission failed to properly apply the Meiorin test.
VI. Analysis
Issue 1: Did the Judge select the correct standard of review?
[13] The role of the Commission is to investigate complaints and to refer such complaints to the Canadian Human Rights Tribunal if they warrant further inquiry. The Commission has very wide discretion when investigating and screening applicants. The appropriate level of deference was considered by this Court in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) [Bell Canada] where Décary J.A. explained that the Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. At paragraph 38 he stated:
Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as “is satisfied”, “ought to”, “reasonably available”, “could more appropriately be dealt with”, “all the circumstances”, “considers appropriate in the circumstances” which leave no doubt as to the intent of Parliament. … it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.
[14] This Court has affirmed this statement in numerous decisions and has interpreted it as indicating a standard of review of reasonableness (see Bradley v. Canada (Attorney General) (1999), 238 N.R. 76 (F.C.A.) at para. 9; Zündel v. Canada (Attorney General) (2000), 267 N.R. 92 (F.C.A.) at para. 5; Gee v. Canada (Minister of National Revenue) (2002), 284 N.R. 321 (F.C.A.) at para. 13). In Holmes v. Canada (Attorney General) (1999), 242 N.R. 148 (F.C.A.) at para.5, Décary J.A. reiterated his analysis in Bell Canada and characterized the decision of the Commission by stating that it is entitled, and obligated, to have regard to all of the facts and allegations placed before it.
[15] Having found the correct standard of review, the role of an appellate court is to apply that standard directly to a decision of the Tribunal. In a recent decision, Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C. 610, this Court reviewed its role on the appeal of a decision of the Federal Court on a judicial review application. Writing for the panel, Rothstein J.A. (as he then was) stated:
However, in more recent cases, the Supreme Court has adopted the view that the appellate court steps into the shoes of the subordinate court in reviewing a tribunal's decision. … The appellate court determines the correct standard of review and then decides whether the standard of review was applied correctly. … In practical terms, this means that the appellate court itself reviews the tribunal decision on the correct standard of review.
[16] In brief, because decisions of the Commission are entitled to some deference, the court will only intervene when an unreasonable decision is made. Accordingly, the Judge erred in reviewing the Commission’s decision on a correctness standard. As such, this Court must apply the reasonableness simpliciter standard directly to the decision of the Commission.
Issue 2: Did the Judge err by concluding that the Commission failed to properly apply the Meiorin test?
[17] In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, the Supreme Court of Canada recently reiterated that the claimant has a threshold burden to establish a prima facie case of discrimination. It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group: “It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy” (para. 49). Here, it is implicit in the Commissioner’s letter of December 15, 2003 (supra at para. 8) that such a link was established; Mr. Corbiere being employed by the Board and being fired for his physical inability to perform full police duties. Thus, a link is made and the Meiorin test is engaged.
[18] In assessing the Commission’s decision not to refer Mr. Corbiere’s complaints to the Tribunal, the Judge held that the Commission failed to properly apply the Meiorin test; specifically, that the investigator did not address the first two elements of that test in her report.
[19] The Supreme Court established the Meiorin test to determine whether a prima facie discriminatory standard is a bona fide occupational requirement. It consists of the following three factors:
1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
[20] The first step is to identify if there is a rational connection between the general purpose for which the impugned standard was introduced and the objective requirements of the job. In my opinion, the Board’s general purpose in requiring their police officers to have the physical ability to perform full police duties is to ensure that their employees are able to perform the job of a police officer (or police constable) safely and efficiently. Paragraph 19 of the Report states:
19. On the issue of police patrol, the witness states that this function is a feature of the police constable job. The amount of time spent on patrol varies from day to day depending on the situation. However, the patrol function carries an inherent safety risk as no one can predict how any individual would react when approached. The officer relies on his or her partner to cover “their back. If your partner is not physically able to cover you you feel unsafe, you feel uncomfortable.”
Accordingly, it is clear that there is a rational connection between this general characteristic and the performance of particular tasks expected of a police officer.
[21] Secondly, there is no indication that the Board did not act honestly and with a good faith belief that adopting the standard was necessary to ensure that their employees perform the job safely and efficiently. It did not intend to discriminate against Mr. Corbiere as a result of his disability.
[22] Finally, when determining whether an existing standard is reasonably necessary for the employer to accomplish its purpose it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. In Meiorin at para. 63, McLachlin J. (as she then was) considered the factors that may be relevant when assessing an employer’s duty to accommodate an employee to the point of undue hardship. Among these factors are the financial cost of the possible method of accommodation and the prospect of substantial interference with the rights of other employees.
[23] Therefore, in considering the third step in the Meiorin analysis, it is necessary to turn to the full Report, which revealed the following nine key facts:
a. The Board is a small police force of no more than 10 officers.
b. Board funding is based on the number of officers multiplied by approximately $100,000.00 and is provided by Canada and Ontario on a fixed basis.
c. The Board gave Mr. Corbiere long periods of time to recuperate in the hope that he would recover from his back injury.
d. When Mr. Corbiere returned from his disability leave, he proposed to work in a detective constable position, and was allowed to do so for three months. Based on the evidence which was before the Commission, but which was not before the investigator, it is clear that Mr. Corbiere never did eventually perform the full duties of the detective constable position that he was proposing.
e. The Board worked actively with the Workers Safety Insurance Board (WSIB) to accommodate his restrictions and his co-workers performed all the extra field duties in his absence and while he was on limited duties. Moreover, the Board actively cooperated and encouraged him to perform limited duties requiring little or no physical exertion or risk.
f. Mr. Corbiere was unable to complete the following job duties of regular police officers due to safety concerns both of himself and his fellow officers:
i. interrogation of suspects;
ii. enforcement of provincial statutes;
iii. making arrests under federal and provincial legislation;
iv. escort of prisoners, courtroom security or processing arrested persons in custody;
v. execution of warrants of committal and warrants to arrest; and
vi. escort and conveyance of mentally incompetent persons to and from hospitals or other
places.
g. The Board stated that it kept Mr. Corbiere busy during those three months in the hope that he could recover to the point where he could continue to provide some reasonable measure of service. The Board decided to terminate his employment only after receipt of medical assessment that Mr. Corbiere was permanently unable to engage in the regular duties essential to a police officer.
h. The Board determined that it was not possible to assemble sufficient duties in order to create a new permanent position of detective constable. As individual police constables did their own follow-up and investigations there was not sufficient investigative work for a detective constable. Moreover, it was not feasible for the Board to have someone work in this capacity when the Chief of Police routinely found himself dealing with what he considered lesser police duties. Even if the Board could assemble sufficient duties, it did not have the funding to finance this position.
i. The question of accommodation in other unrelated jobs within the Wikwemikong Band Council operations was posed. The Band Council replied that nothing was available. Mr. Corbiere was eventually offered the position of Court Co-ordinator, which he declined because it would have resulted in the lay off of another person.
[24] Accordingly, the investigator reported as follows:
37. The investigation establishes that while the Complainant states that he could have carried out the duties of a police officer, the medical opinion was that he could not carry out the ‘full’ duties. Moreover, specific barriers to his ability to perform his duties were identified. These included safety concerns, e.g. situations with violence and health concerns. The fact that the Complainant himself proposed that a new position be created indicates that he himself was aware of and shared these concerns.
[25] In essence, the core question is whether the Commission could reasonably have been satisfied, having regard to all the circumstances surrounding the complaint, that a referral to the Tribunal is not necessary. The investigation indicated that the Board had accommodated Mr. Corbiere’s disability needs by providing him with modified work and facilitated his participation in the WSIB rehabilitation plan. Moreover, that this plan covered the complete costs of Mr. Corbiere securing a bachelor’s degree and a teacher’s certificate at a projected cost of $690,000.00. The ultimate decision to terminate was based on medical evidence, which indicated that Mr. Corbiere would not be able to perform the full duties of a police officer. The job that Mr. Corbiere believed the Board should have given him simply did not exist, nor is there any funding in the Board’s budget to create such a position.
[26] Accordingly, in my opinion, there was a rational basis for the conclusion reached by the Commission. Its decision, having regard to all the circumstances it was entitled to take into account, cannot be regarded as unreasonable.
VII. Conclusion
[27] Therefore, it was open to the Commission to reasonably conclude that a referral to the Tribunal under section 44 was not warranted. Accordingly, I would allow the appeal, set aside the order of the Judge dated March 9, 2006 and dismiss the application for judicial review. I would grant costs both on appeal and in the Federal Court.
"I agree
Décary J.A."
"I agree
Evans J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-140-06
STYLE OF CAUSE: THE WIKWEMINKONG TRIBAL POLICE SERVICES BOARD
and
JAMES DARIN CORBIERE
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 1, 2007
REASONS FOR JUDGMENT BY: MALONE J.A.
EVANS J.A.
APPEARANCES:
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FOR THE APPELLANT
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RESPONDENT – ON HIS OWN BEHALF
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SOLICITORS OF RECORD:
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Sault Ste. Marie, Ontario
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FOR THE APPLICANT
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Sudbury, Ontario
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RESPONDENT – ON HIS OWN BEHALF
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