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Refugee Law Lab (York University) 2

2003 CHRT 1

CHRT

Communications, Energy and paperworkers union of Canada v. Bell Canada

en

2003-01-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6862/index.do

2023-12-01

Communications, Energy and paperworkers union of Canada v. Bell Canada Collection Canadian Human Rights Tribunal Date 2003-01-10 Neutral citation 2003 CHRT 1 File number(s) T503/2098 Decision-maker(s) Deschamps, Pierre; Sinclair, Grant, Q.C. Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA, FEMMES-ACTION Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent RULING ON DISCLOSURE AND PRODUCTION 2003 CHRT 1 2003/01/10 PANEL: J. Grant Sinclair, Chair Pierre Deschamps, Member [1] This ruling is in response to two motions, one brought by the Canadian Human Rights Commission and one by the Communications, Energy and Paperworkers Union of Canada. Both motions seek an order from this Tribunal that Bell Canada disclose and produce to them the documents specified in the notices of motion. The Commission and CEP argued that the specified documents are arguably relevant to the issues in this case. [2] Bell has opposed both motions on the following grounds: because of their scope, size and nature, the requests are unduly burdensome to Bell in terms of the time required to search for the documents and the costs involved; the Commission and CEP represented from the outset that the only documents that they would rely on to prove their case were 74 documents generated by the Joint Study and selected by the Commission and CEP from among many other documents of the Joint Study. Bell says that it relied on this representation to prepare its defense and conduct its cross-examinations. To order further disclosure at this point in the hearing, would allow the Commission and CEP to materially alter their case to Bell's detriment and they should be estopped from doing so and/or be taken to have waived their right to further disclosure; the Commission and CEP, knowing that Bell challenged the validity of the Joint Study for the purposes of section 11 of the Act, should have reasonably anticipated that more than 74 documents were necessary to make their case and their request is untimely and prejudicial to Bell. [3] The Commission and CEP have consistently taken the position that the Joint Study was their case and they would be relying on the 74 Joint Study documents, which they had identified, to prove their case. [4] The hearing of the complaints by this Tribunal began in January 1999. The Tribunal dealt with a number of preliminary motions brought by Bell and only began hearing the merits of the complaints on April 17, 2000. Rule 6 of the Tribunal's Interim Rules of Procedure requires each party to give written notice of all documents in its possession relevant to any matter in issue in the case. None of the parties provided such disclosure nor have any of the parties, at any time, requested that the Tribunal order such disclosure. [5] The hearing on the merits continued until November 2, 2000, when the Federal Court, Trial Division suspended the hearing because of Tribunal institutional bias. The hearing resumed on September 10, 2001, following the reversal decision of the Federal Court of Appeal. [6] The record shows that there have been disclosure requests by both the Commission and CEP for documents beyond the 74 Joint Study documents. On April 25, 2000, Bell provided, at the request of the Commission, General Circulars pertaining to the issue of establishment. On September 5, 2001, CEP requested from Bell documents relating to population data, documents relating to exhibit HR-76 and reports or analysis relating to the reliability of the Joint Study in Bell's possession. [7] During the January 22, 2002 hearing week, it became apparent to the Tribunal that the issues with respect to each party's case had not yet been fully defined. At this time, Commission counsel told the Tribunal that he had no idea of the specifics of Bell's defense. Bell's counsel, for his part, stated that Bell still did not know the case of the Commission. Further, CEP counsel advised the Tribunal that there remained outstanding disclosure requests and indicated that efforts would be made to resolve them through counsel. If not so resolved, CEP might request a blanket disclosure order from the Tribunal. [8] In an attempt to define the issues and resolve the disclosure questions, the Tribunal, with the agreement of the parties, directed that each party provide a statement of case setting out the material facts to be proved, the legal issues raised by the case, the witnesses to be called and the remedies sought. The Tribunal, again with the agreement of the parties, did not make a blanket disclosure order, but left disclosure questions to be resolved in good faith by the parties. Should any dispute arise relating to disclosure, the Tribunal would deal with it. [9] The Commission, C.T.E.A., CEP and Femmes-Action filed their statements of case on April 2, 2002, and Bell filed on May 13, 2002. The parties continued discussions on document disclosure from that time onward but could not come to any agreement. Thus, these two motions. [10] On the evidence and given our knowledge of the issues in this case, we have concluded that the documents requested meet the test of arguable relevance. Bell did not seriously dispute this. [11] As to the burdensome nature of the disclosure request, evidence given on the motions indicates that the documents requested are located in six to eight filing cabinets at the Bell offices, 1000 De La Gauchetière Street, Montreal. Further, Bell's counsel advised the Tribunal that no JEWC documentation had been found at that location. In response, Commission counsel withdrew the request for disclosure of the JEWC documents unless Bell, on its own initiative, was able to locate them elsewhere. In these circumstances, Bell's counsel conceded that a search for the documents at 1000 De la Gauchetière only would not be unduly burdensome. We agree. [12] In our view, this is sufficient to dispose of the two motions. The Commission and CEP have requested disclosure and production of the documents itemized in the two motions. We fail to see how Bell is prejudiced by disclosure. Bell is free to object to the production of the documents disclosed. Bell is free to object to the admissibility into evidence of any of the documents disclosed or produced. In our opinion, Bell's submissions on waiver, estoppel and reasonable anticipation are premature. ORDER The motions are granted and the Tribunal orders as follows: Bell shall, in a timely manner and using all reasonable efforts, prepare a list of all documents relating to the Joint Study that are found in the filing cabinets referred to in the evidence of Linda Benwell located at the Bell offices, 1000 De la Gauchetière, Montreal. The list shall include any documentation relating to the JEWC job evaluation process and any hard copies of electronic communications, correspondence or documentation for the period 1991-1993 prepared by Michèle Boyer, André Beaudet, Matina Bisbicos or Louise Belle-Isle. If no JEWC documentation is found at 1000 De la Gauchetière, Bell is not required to search elsewhere for such documentation. Bell is not required to search for any Joint Study related electronic communications, correspondence or documentation other than that referred to in paragraph 1. Bell shall provide the Commission and CEP with the list of documents referred to in paragraph 1 and in the event that Bell, on its own initiative, finds any JEWC documentation at some other location, then it shall provide the Commission and CEP with a list of these documents. Bell shall produce copies of any of the documents on the lists referred to in paragraph 4 requested by the Commission and CEP. Bell shall also produce to CEP copies of the documentation requested to paragraphs 3(j) and 3(k) of CEP's Notice of Motion. Any undue costs incurred by Bell for copying the documentation referred to in paragraphs 5 and 6 shall be paid for by the Commission and CEP. The hearing scheduled for the week of Monday, January 13, 2003, is adjourned to Monday, January 27, 2003. If Bell disputes the production as ordered in paragraphs 5 and 6, the Tribunal, on motion, will hear this matter commencing on Monday, January 27, 2003. If Bell does not dispute production, the hearing on the merits will resume on January 27, 2003. If Bell cannot reasonably meet the schedule for disclosure and production, Bell should so advise the Tribunal and the Tribunal will deal with this accordingly. Original signed by J. Grant Sinclair, Chair Pierre Deschamps, Member OTTAWA, Ontario January 10, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T503/2098 STYLE OF CAUSE: CEP et al v. Bell Canada PLACE OF HEARING: Ottawa, Ontario December 16-20, 2002 RULING OF THE TRIBUNAL DATED: January 10, 2003 APPEARANCES: Peter Engelmann For the CEP Francine Charron and Marc Pilon For Femmes-Action Andrew Raven and Patrick O'Rourke For the Canadian Human Rights Commission Gary Rosen, Peter Mantas and Guy Dufort For Bell Canada

2003 CHRT 10

CHRT

Parisien v. Ottawa-Carleton Regional Transit

en

2003-03-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6558/index.do

2023-12-01

Parisien v. Ottawa-Carleton Regional Transit Collection Canadian Human Rights Tribunal Date 2003-03-06 Neutral citation 2003 CHRT 10 Decision-maker(s) Hadjis, Athanasios Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: ALAIN PARISIEN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - OTTAWA-CARLETON REGIONAL TRANSIT COMMISSION Respondent REASONS FOR DECISION 2003 CHRT 10 2003/03/06 MEMBER: Athanasios D. Hadjis TABLE OF CONTENTS I. FACTS A. The Complainant's Employment History with the Respondent B. Events in the Months Leading up to the Complainant's Dismissal C. Events Subsequent to the Complainant's Termination D. The Evidence of the Experts II. LEGAL FRAMEWORK AND ANALYSIS A. The Law B. The Prima Facie Case C. Meiorin Test (i) Steps 1 & 2 (ii) Step 3 III. REMEDY A. Reinstatement B. Damages for Lost Income C. Hurt Feelings D. Policy Review E. Interest F. Retention of Jurisdiction [1] The Complainant worked as a bus operator for the Respondent. Throughout the course of his employment, he was absent from work for a significant number of days, mainly on account of illness. Eighteen years after he was hired, the Respondent dismissed the Complainant due to his chronic absenteeism. As a result, the Complainant filed the present complaint in which he alleges that the Respondent discriminated against him by refusing to accommodate him and by refusing to continue to employ him because of his disability, contrary to s. 7 of the Canadian Human Rights Act (Act). The disability consists principally of post-traumatic stress disorder (also known as PTSD) and ailments related thereto. [2] The Complainant's employer at the time of his termination in 1996 was the Ottawa-Carleton Regional Transit Commission, which operated Ottawa's public transit system (otherwise known as OC Transpo). His complaint was filed several months later and the same organization was named as the Respondent. In 2001, pursuant to s. 9 of the City of Ottawa Act, 1999, OC Transpo's operations, including all its assets and liabilities, were transferred to the amalgamated City of Ottawa.(1) Ms. Lois Emburg, a manager with the City of Ottawa, stated during her testimony that the City of Ottawa is accepting any liability to be attributed to the Respondent in the present case. In light of her representations, the Ottawa-Carleton Regional Transit Commission shall continue to be treated as the Respondent in this case. It should be noted, though, that according to the abovementioned legislative provision, the Respondent was dissolved on January 1, 2001. I. FACTS [3] Most of the facts are not in dispute. All of the parties agree that during his employment with the Respondent (a total of about 18 years and 2 months), the Complainant was absent for about 1664 full days and 33 partial days. His absences were mostly related to illness. The Respondent does not call into question the genuineness of these illnesses. A. The Complainant's Employment History with the Respondent [4] The Complainant was hired by the Respondent as a bus operator in November 1977. His employment was subject to an initial probationary period. The Respondent's records demonstrate that from the outset, the Respondent was concerned with the Complainant's level of absenteeism, so much so that the probationary period was extended by three months in January of 1979. In the month of September 1979, he was even suspended for several days because of his absenteeism, in accordance with the Respondent's policy in place at that time. No evidence was led as to the nature of the illnesses or other causes that resulted in the Complainant's absences during this early period. The Complainant acknowledges that he was made aware early on that excessive absenteeism within the OC Transpo workforce was an ongoing cause of concern for the employer. [5] In his testimony, the Complainant brought up some of the events in his life that he feels may have contributed to the onset years later of post-traumatic stress disorder. In 1979, his relationship with a woman to whom he was engaged to be married suddenly ended. This break-up was devastating for him but it did not lead to his being absent from work. In October of 1980, the Complainant's mother died of cancer. He also describes this loss as devastating, noting that he had maintained a very close relationship with her. He took three days off work on bereavement leave, as permitted under the collective agreement. [6] Only a couple of months later, in December 1980, the Complainant was the victim of a violent assault while he was driving his bus. A passenger wearing army fatigues and a balaclava over his head entered the bus and without any warning hit the Complainant on the side of his face, knocking him unconscious. The Complainant was treated at the hospital and released the same day. He did not return to his job until one week later. [7] No evidence was led detailing the Complainant's attendance during the early 1980's other than an acknowledgement by him and the Commission that he worked on and off. However, his attendance sheets for the years 1984 and following were produced. In 1984, the Complainant was absent for the entire period from March to early September. The attendance sheet indicates that he was in receipt of worker's compensation benefits during this period but no explanation was provided at the hearing as to the nature or cause of his illness or disability. In 1985, the Complaint was absent due to illness for thirteen full days and four partial days. In 1986, he was absent for thirty full days and one partial day. [8] In 1987, the Complainant's father suddenly died. The Complainant testified that this was also a significant and disturbing loss for him. He took the permitted bereavement leave of three days. During 1987, he was absent 42 full days and another 4 partial days, due to illness. The Complainant was on sick leave for 28 full days and seven partial days in 1988. [9] On March 7, 1989, the Complainant was interviewed by management regarding his level of absenteeism. As luck would have it, only two weeks later, another unsettling incident occurred while he was at work. A male passenger entered his bus and began yelling at him. The passenger eventually got off the bus, but just two days later, he confronted the Complainant again. The Complainant was standing outside his bus, at the starting point of his bus route, when the individual approached him. The man had his hand in his pocket and began telling the Complainant that he was going to kill him. Two other bus operators happened to witness the incident and one called over a supervisor. The supervisor reacted by assisting the individual onto another bus, but he did not make a report nor call the police. The Complainant claims that he was genuinely scared of the passenger and that he felt very unprotected and unsafe as a result of the manner in which his employer had dealt with the threat. [10] Although he did not miss any work at the time of these incidents, in the weeks and months that followed, the number of absences due to illness increased significantly. On July 18, 1989, the employer interviewed him regarding his absenteeism. The Complainant recalls that following the March incidents, he began getting pains in [his] stomach and was feeling quite sick. He went off work from December 1989 until February 1990, his medical certificates indicating that he was suffering primarily from gastro-intestinal problems. He returned to his job in early March 1990 but ceased working on March 21, 1990. This leave of absence ended up lasting for 199 working days. During this period, he was compensated by the Workers' Compensation Board, as his disability was deemed to be related to the trauma associated with the death threat made against him. The medical certificates issued by the Complainant's family physician during this period refer to his anxiety state, job tension and adjustment reaction. [11] While the Complainant was on leave in 1990, OC Transpo's Occupational Health Unit (Health Unit) communicated regularly with him to follow up on his status and his expected date of return to work. According to the evidence adduced by the Respondent, the Health Unit had a mandate that included gathering information regarding the condition of employees on sick leave and advising the divisions where they worked (their employing divisions) when and if they were ready to return to work. The Health Unit would also assess whether a non-occupational disability claim was well founded, based on the medical information available. It was composed of several nurses who were employed full time as well as one medical doctor who was not an employee of the Respondent but who would be asked occasionally to provide an opinion. The Health Unit's activities were integral to the program that the Respondent had established to manage the attendance of its employees (Attendance Management Program). One of the main reasons for the existence of this separate unit was to protect the confidentiality of the employees' medical information. As such, the Health Unit never disclosed to management the details of an employee's condition. It would only provide to employing divisions general conclusions and opinions as to an employee's preparedness to return to work. [12] On December 14, 1990, based on the medical information collected from the Complainant and his physician, the Health Unit determined that commencing January 2, 1991, he would be able to resume regular job duties, provided that he be initially assigned to work four hours per day instead of eight. This type of transitional activity was referred to as a process of work hardening. The Complainant performed these modified duties until February 25, 1991, when he went on sick leave, suffering from back pain and abdominal pain, according to the medical certificates submitted to the Respondent at the time. [13] By April 1991, the Complainant's family physician had come to the realization that the Complainant was preoccupied with being assaulted on his job, to the point of almost paranoid feelings. The family physician apparently concluded that the Complainant was suffering from post-traumatic stress disorder. The physician therefore informed the Respondent that the Complainant could not yet return to work. He referred the Complainant to the Royal Ottawa Hospital for a psychiatric assessment. Dr. Hamilton Sequeira, M.D., a psychiatrist, examined the Complainant on May 17, 1991, and made a provisional diagnosis of post-traumatic stress disorder of longstanding with anxiety, depressive, somatic manifestations. In presenting his diagnosis, Dr. Sequiera referred in his report to the 1980 assault and the 1989 threat as well as the sudden deaths of the Complainant's parents. The Complainant's family physician issued an updated medical certificate declaring that the Complainant would be unable to return to work for an indefinite period. The Complainant received workers' compensation benefits while on this extended medical leave. [14] Dr. Sequiera recommended a therapeutic approach for the Complainant that included medications as well as cognitive behavioural therapy to desensitize him from his trauma related negative constructs and feelings. For this latter purpose, Dr. Sequiera sought the assistance of Dr. David Erickson, PhD, R. Psych., who was at that time doing his internship to become a clinical psychologist, a recognition that he achieved in 1994. Dr. Erickson testified that cognitive behavioural therapy involves two components: the behavioural aspect encompasses the breaking down of a person's fear into small manageable steps. The cognitive aspect is conducted once some success has been achieved with respect to the behavioural element, and consists of the individual attempting to imagine in advance, doing the activities which are at the source of his anxiety. [15] Dr. Erickson began treating the Complainant on November 4, 1991. He determined that the Complainant was a good candidate for cognitive behavioural therapy. Between November 1991 and August 1992, Dr. Erickson met the Complainant weekly. He kept the Health Unit abreast of the Complainant's progress. He states in the expert's report that accompanied his testimony in this case, that by July 1992, after eight months of cognitive behavioural therapy combined with medication, the Complainant's state was dramatically improved and ready for a graduated return to work. As part of this transition to full-time work it was agreed between the Health Unit and Drs. Sequeira and Erickson that the Complainant begin this process by driving what was known as the DERC shuttle bus. DERC is the acronym for the Disabled Employees Review Committee, made up of OC Transpo employee and management representatives. The DERC was established by the Respondent in order to assist in the reintegration of disabled employees into the workforce. The DERC shuttle bus was in fact a mini bus in which operators were driven to various locations to take over runs from other drivers. The only passengers on this bus were other OC Transpo employees. [16] The Complainant drove this vehicle from mid-July to mid-September 1992, following which he was assigned to modified duties (four hours per day) driving regular OC Transpo passenger buses. According to Dr. Erickson, by mid-October 1992, the Complainant was symptom-free and back to his normal level functioning. The Health Unit accordingly recommended to the Complainant's employing division that he could return to full time regular job duties beginning October 14, 1992. [17] Between December 7, 1992 and January 14, 1993, the Complainant booked off sick for a total of thirteen full days and two partial days, suffering from blurred vision, dizziness, insomnia and gastroenteritis. Dr. Erickson noted, after speaking with the Complainant on December 14, 1992, that his anxiety problems had returned, in part as a result of driving on some of the routes that he most feared prior to his treatment. Medication was prescribed for him by Dr. Sequeira and regular visits were scheduled with Dr. Erickson. [18] Unfortunately, on January 15, 1993, a bus that the Complainant was driving was hit from the rear by another vehicle, as a result of which he suffered a whiplash injury (cervical neck strain). According to his family physician, the injury was such that he could not return to work until May 1993. Dr. Erickson notes in his expert's report that the Complainant experienced great frustration at being prevented from working as a result of the accident, and some gastro-intestinal problems and headaches that he suffered over this period were likely related to this distress. However, Dr. Erickson points to the absence at that time of any anxiety, mood problems or sleep disturbance that would indicate residual post-traumatic stress disorder. [19] After being on leave due to the work-related whiplash injury for a total of 92 working days, the Complainant returned to his regular job duties at the beginning of June 1993. In August 1993, he went on sick leave for a total of six days and one partial day. According to the medical certificate that he submitted, he was suffering from acute anxiety. By October 1993, the Complainant had developed a major sleep disturbance and had to take another leave of absence that was to extend until June 1994. [20] His sleep had been reduced to two to three hours per night. Dr. Sequeira transferred the Complainant to the care of another psychiatrist with a specialty in sleep disorders. His treatment included prescribing medication to help the Complainant sleep and to prevent the occurrence of periodic partial leg movements that were awakening him during his sleep. By May 1994, this psychiatrist deemed the sleep problems to be now under control and believed that the Complainant was ready to return to work. [21] On May 27, 1994, the Health Unit sent a memo to the Complainant's employing division stating that his prognosis was now for regular attendance at work. The memo referred to an unnamed treating physician of the Complainant who had declared that his medical problem had been resolved and that it should not cause him any future problem. In addition, the Complainant was examined by the external medical practitioner of the Health Unit and the memo notes his observation that the Complainant's attitude was very positive, more so than in earlier assessments conducted by the same doctor in 1992 and 1993. [22] The Complainant therefore returned to his regular job duties on June 2, 1994. Shortly after returning to work, he was confronted by several teenagers while driving his bus, in a manner that he perceived as threatening. He felt scared and vulnerable, as if someone was always out to get him. He found himself unable to sleep again so he took a higher dose of his sleep medication. This resulted in drowsiness that rendered him unable to perform his work properly. On June 5, 1994, the Superintendent of Operational Personnel, Mr. Ron Mooney, having observed the Complainant's reduced faculties, instructed him to cease operating a bus. The superintendent sent a memo several days later to the Health Unit asking that the Complainant be reassessed to determine if he was capable of returning to regular full time employment. [23] By July, 1994, Dr. Sequeira had resumed all of the Complainant's psychiatric care. The Complainant also recommenced receiving treatment from Dr. Erickson. Within weeks, Dr. Sequeira observed that the Complainant had become so depressed, anxious and sleep-deprived that it became necessary to admit him into the Mood Disorders Unit of the Royal Ottawa Hospital. He was diagnosed with major depression, sleep disorder and generalized anxiety disorder. He was discharged from the hospital on September 20, 1994. The depression and sleep troubles were resolved by June 1995. [24] As these problems diminished, though, the presence of post-traumatic stress disorder symptoms became apparent again. His avoidance pattern was consistent with a fear of being assaulted, combined with regular daytime flashbacks. Dr. Erickson implemented another program of cognitive behavioural therapy for the Complainant. According to Dr. Erickson, as part of the therapy, the Complainant exerted great effort, as he relived the fear of being assaulted on a daily basis. In Dr. Erickson's opinion, the therapy proved effective and by February 1996, (the month in which the Complainant was dismissed) the post-traumatic stress disorder had been vanquished. B. Events in the Months Leading up to the Complainant's Dismissal [25] On October 26, 1995, the Health Unit interviewed the Complainant, in accordance with a policy that required such meetings periodically with employees who were in receipt of long-term disability benefits. It determined, based on the Complainant's comments as well as information obtained from his physicians, that he hoped to return to his regular occupation as a bus operator. According to a memo prepared by the Health Unit after the meeting, the Complainant was advised that his job with the Respondent was only protected for a period of 24 months following the date when he began receiving long term disability benefits. This period was to come to an end on February 2, 1996. If by that time he did not return to his own job or to some other job within OC Transpo, the Respondent would make a decision as to his continuing status and would in all likelihood [...] medically terminate him. [26] On December 13, 1995, Dr. Sequeira filled out a form for the Ontario Ministry of Transport. The Complainant's C Class driver's licence, which permitted him to operate buses, had been downgraded because he was disabled on a long-term basis. The application for regaining the permit required that a physician report on the driver's medical condition. Dr. Sequeira stated on the form that the Complainant was ready to regain his licence as he was much improved of the symptomatology of fear-anxiety-avoidance-depression that was part of his post-traumatic stress disorder. [27] On January 31, 1996, Dr. Sequeira and Dr. Erickson signed a letter that they had jointly prepared, addressed to the Health Unit of OC Transpo, in which they stated the following: Alain is now in the final stages. Within a few weeks, the [cognitive behavioural therapy] regarding the post-traumatic anxiety will be sufficiently advanced to allow a safe return to work. The feared stimuli, i.e. clothing worn by his assailant, will no longer prompt incapacitating anxiety. Rather, Alain will experience only mild tremulousness. His sleep disturbance is similarly well controlled. While he continues to have anxiety-related nightmares, they are no longer severe enough to disrupt his sleep. He does continue to have difficulty waking in the morning, however: once he has had time to gradually adjust to a structured daily routine, this problem will return to normal limits. Finally, Alain's depressed mood is no longer an issue. In the past month, he has experienced mild dysphoria an average of 2-3 times per week, where each occasion lasts 1-2 hours. No period of severe or sustained depressed mood has occurred in the past month. Thus, Alain's mood is clearly within normal limits. Drs. Sequiera and Erickson then went on to describe the Complainant's medications, noting that they would not interfere with his ability to operate an OC Transpo bus. It was also pointed out that the Complainant would continue to see both specialists over the following several months, just to deal with any remaining anxieties and to monitor the medications. The following conclusions were made towards the end of their letter: During this time, Alain's health will be best served by beginning with part-time duties, and gradually building up to full-time duties. In the initial period of readjustment, extreme hours are contra-indicated because of their potential for sleep disturbance. We would greatly appreciate being consulted in preparing increases in Alain's scope of duties, as experience from his past has shown that it is possible to do too much too soon. In sum, the prognosis is very good. Alain has worked hard to regain positive and constructive moods, such that he is now well within normal limits. The PTSD-related anxiety is much diminished, and will not interfere with his performance as an operator. (My emphasis) [28] The Complainant contacted the head nurse of the Health Unit to discuss his coming back to work, several days in advance of the February 2, 1996 deadline that the Respondent had set for his return. She advised him to simply show up at work on that designated day and speak to Mr. Mooney, the Superintendent of Operational Personnel. The Complainant did so, and when he met with Mr. Mooney, he explained that he was ready to work, requesting only that some adjustments be made to ease his transition back, in accordance with the recommendations of his psychiatrist and psychologist. Mr. Mooney informed the Complainant that no such work-hardening adjustments would be made available to him and, according to the Complainant, when he asked if he could be assigned to work at some other job at OC Transpo, he was told there was nothing. Instead, Mr. Mooney said that the Complainant's file was under investigation and that the Complainant would be informed of the outcome two weeks later. The Complainant's testimony regarding these meetings was not contradicted and neither the head nurse nor Mr. Mooney testified in this case. [29] On February 6, 1996, Mr. Mooney wrote to the Health Unit asking if the Complainant's present condition, for which he had just received treatment, was the same as the condition for which there had been a prognosis of regular attendance back in May 1994. He also asked if the Health Unit was convinced, based on the medical information, that the Complainant should return to work as a bus operator when his licence was reinstated. In the Health Unit's reply, dated February 9, 1996, specific reference was made to the recently obtained opinions of Drs. Sequiera and Erickson to the effect that the Complainant could begin with part-time duties and gradually build up to full time duties. The Health Unit, however, concluded as follows: Taking into consideration the medical information on file at present, the fact that Mr. Parisien does not hold a class C licence at present, as well as his past record of attendance, the Health Unit is not fully convinced at this time that Mr. Parisien will be able to perform his duties as a bus operator on a regular basis. If the Transportation Division [the Complainant's employing division] is able and prepared to offer Mr. Parisien alternate employment, we will contact his medical advisors to quantify his restrictions and to obtain a more complete prognosis. Please advise us as to your decision. (My emphasis) [30] Mr. Mooney met with the Complainant about a week later, on February 15, 1996, and advised him that his employment was terminated. In a follow-up letter addressed to the Complainant on February 19, 1996, Mr. Mooney stated: This letter is to confirm our meeting held on February 15, 1996 to clarify your employment status with the Commission. Based on the information presented at our meeting we find it necessary to terminate your employment with the Commission due to chronic innocent absenteeism effective February 15, 1996. [31] The Complainant claims that he pleaded with Mr. Mooney to allow him to return to work for OC Transpo but he was told that the decision to terminate would stand. He contends that at the time of his termination he was feeling quite good and wanted to get back right away to his ordinary duties as a bus operator. He acknowledges that he was not yet one hundred per-cent and that he could not have immediately returned to regular full-time bus driving duties. He would, however, have been able to perform modified job duties during a period of transition, as Drs. Sequiera and Erickson had recommended. C. Events Subsequent to the Complainant's Termination [32] The Complainant filed a grievance against his dismissal several days later. The grievance passed through the required stages in the grievance process and was ultimately ruled upon through an expedited arbitration process on December 4, 1998. The labour arbitrator decided that there was just cause for the Complainant's termination and dismissed the grievance. He found that the Respondent reasonably concluded, on the evidence before it that the Complainant would not be able to perform his duties as a bus operator on a regular basis. [33] In a preliminary motion presented to the Tribunal, prior to the hearing on the merits of the present case, the Respondent submitted that the subject matter of the Complainant's human rights complaint fell within the exclusive jurisdiction of the labour arbitrator and that the doctrines of issue estoppel and cause of action estoppel deprived the Tribunal of jurisdiction to hear the matter. The motion was dismissed by Tribunal Chairperson Anne L. Mactavish on July 15, 2002.(2) In her ruling, the Chairperson found that the issue before the arbitrator was whether the Complainant's termination was unjust and not whether he had been a victim of a discriminatory practice within the meaning of the Act. D. The Evidence of the Experts [34] The Commission called Dr. Erickson and Dr. Sequeira to testify as experts at the hearing. They were qualified as persons who have acquired special or peculiar knowledge through study, education and experience with the Complainant, such that they could assist the Tribunal with respect to their interactions with him and their respective fields generally (psychology for Dr. Erickson and psychiatry for Dr. Sequeira). [35] In Dr. Erickson's opinion, between 1989 and 1996 inclusively, the Complainant experienced two distinct episodes of post-traumatic stress disorder, one at the beginning of this period (from the threat to his life in 1989 until his return to work in September, 1992) and another towards the end (from June 1994 until February 1996). Between these bookends, the Complainant also passed through an episode of severe sleep, mood and generalized anxiety, from about October 1993 until June 1995, overlapping onto the final PTSD bookend. Dr. Erickson believes that this episode was likely related - in an indirect way to the Complainant's initial bout with PTSD. [36] Dr. Erickson finds that the Complainant exhibited all of the classic elements of post-traumatic stress disorder, including: · experiencing a traumatic event, · intrusive daytime reliving of that event, as well as recurring nightmares, · avoiding certain behaviours that he used to enjoy in the past, and · being in a state of persistent hyper-arousal. [37] For his part, Dr. Sequeira agrees that the initial diagnosis of PTSD was well-substantiated and that the PTSD had fully developed by 1989. In his opinion, the second episode, in 1994-95, was a re-emergence of the PTSD and not so much a bookend. With respect to some of the other illnesses that caused the Complainant to be absent from work, Dr. Sequeira points out that it is not uncommon for persons suffering from PTSD to also experience generalized anxiety disorder, phobia, major depression and sleep disorder. According to Dr. Sequeira, a connection may even exist between PTSD and some of the other ailments from which the Complainant suffered, including diarrhea and muscle spasms, although it is also possible that these symptoms were unrelated. II. LEGAL FRAMEWORK AND ANALYSIS A. The Law [38] Section 7 of the Act declares that it is a discriminatory practice to refuse to continue to employ an individual, or to treat an employee in an adverse differential manner, on the basis of a prohibited ground of discrimination. Disability is included amongst the list of prohibited grounds of discrimination set out in s. 3 of the Act. According to s. 25, disability, for the purposes of the Act, means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug. [39] Section 15 (a), as it was designated prior to the 1998 amendments to the Act, (3) provides that it is not a discriminatory practice if the differential treatment exercised by the employer is based on a bona fide occupational requirement (BFOR). In 1999, the Supreme Court of Canada, in what are generally referred to as the Meiorin(4) and Grismer (5) cases, had the occasion to restate the approach to be followed whenever such a defence is invoked. The Court reaffirmed that a complainant bears the initial burden of establishing that the standard or policy adopted by the employer-respondent is prima facie discriminatory. [40] Once a prima facie case of discrimination has been established, the employer-respondent may justify the impugned standard by establishing on the balance of probabilities: that the employer adopted the standard for a purpose rationally connected to the performance of the job; 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; that the standardis 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.(6) B. The Prima Facie Case [41] The Commission submits that one need only look at the Respondent's Statement of Particulars, which was prepared prior to the hearing in accordance with the Tribunal's Interim Rules of Procedure, to conclude that a prima facie case has been established. Amongst the items detailed in the document are the material facts that the Respondent seeks to prove in support of its case (Interim Rule 6(1)(a)). The Respondent declares, as a material fact, that the Complainant's absences from work were the result of illnesses, some of which were diagnosed as being PTSD and chronic sleep disorder. After detailing the number of days that the Complainant was absent from work, the Respondent states that on February 15, 1996, the Complainant was dismissed due to chronic absenteeism, as there was no prospect of regular or reliable attendance at work. [42] In a subsequent letter from Respondent counsel to the Commission, it was clarified that at the time of the dismissal, the Respondent considered the Complainant fit to return to full and regular duties as a bus operator. However, the Respondent did not accept that the medical report from Dr. Sequeira and Dr. Erickson dated January 31, 1996, provided any prognosis of regular attendance in respect of the performance of these duties, and the Complainant was consequently dismissed. [43] Two former managers at OC Transpo, Mr. Ron Marcotte and Mr. Gerald Timlin, testified that amongst the factors considered by the Health Unit, when assessing whether an employee has any prognosis of regular attendance, is his or her previous attendance record. Unquestionably, the Complainant's attendance record was poor, but the Commission points out that this came as a result of the Complainant's illnesses, principally PTSD, a mental disability falling within the definition of disability as set out in s. 25 of the Act. [44] Thus, it is argued, all of the elements of the prima facie case have been made out. The Complainant, who suffered from a disability, was dismissed from his employment by the Respondent, at least in part, because of his record of absenteeism. The primary cause of the absenteeism was his disability. Therefore, one of the factors in the Respondent's decision to dismiss the Complainant was his disability, which constitutes one of the proscribed grounds of discrimination under the Act. For a complaint to be substantiated, discrimination need only be one of the factors underlying a respondent's conduct. (7) Accordingly, submits the Commission, the Respondent in the present case is prima facie in breach of the Act. [45] The Respondent disagrees, arguing that in order for a prima facie case to be established, it must be demonstrated that the Complainant has actually been discriminated against. It is not sufficient to contend that merely because a disabled person has been dismissed, discrimination has taken place. It must be shown that the individual was dismissed because of the disability. The Respondent points out that it did not disagree with the opinion of the medical experts to the effect that the Complainant was able to return to work as a bus operator. Counsel for the Respondent reiterated, in his final submissions, the position that he had adopted in his pre-hearing correspondence with the Commission: that is, when the Complainant was dismissed in February 1996, the Respondent considered him fit to return to full and regular duties as a bus operator. The Respondent argues that the decision to dismiss the Complainant, therefore, was not based on any assumption that he was disabled. In the absence of this element, the Commission cannot claim that the Complainant was subject to discriminatory treatment on the basis of a disability. The Complainant was simply let go because of the poor prognosis of his regular and reliable attendance, not his ability to perform the work whenever he would attend. The Respondent's treatment of the Complainant, pursuant to its policy on innocent absenteeism, was no different than that afforded any worker, whether disabled or not, who failed to have a good attendance record and whose predicted attendance in the future was equally unsatisfactory. [46] I find that the facts do not support this argument. The Respondent's decision to dismiss the Complainant was clearly influenced by the Complainant's medical condition, as appears from the evidence of Mr. Timlin, who was then Director of Occupational Health, Safety and Benefits at OC Transpo. He participated in the management process that led to the decision to dismiss the Complainant. Mr. Timlin testified that in deciding to fire the Complainant, OC Transpo relied heavily on the opinion of its Health Unit. The memo that the Health Unit sent to management regarding the Complainant's prognosis could not have been any more clear, stating that its finding took into consideration the medical information on file and the Complainant's past record of attendance. The Respondent cannot now suggest that the Complainant's medical condition was not at least one of the factors that lead to its conclusion to dismiss him. As I indicated earlier, it is not necessary for a proscribed ground to be the only factor underlying a respondent's conduct for there to be a finding of discrimination. I would also add that Mr. Timlin testified that OC Transpo's decision to terminate the Complainant was not influenced at all by the other consideration stated in the Health Unit's memo, that of his lacking a Class C driver's licence. Mr. Timlin explained that the Respondent regularly assists employees, whose permits have been downgraded while on leave, to reacquire the required certification. [47] As an indication that the decision to dismiss the Complainant was not influenced by his medical condition, the Respondent refers to the Complainant's poor overall attendance record, dating back to the 1970's, and well before his affliction with PTSD. It is therefore suggested that the Complainant was simply someone who could not maintain regular and reliable attendance. An employer that suffers the consequences of an employee's failure to fulfill his work obligations should be justified at some point to consider the employment contract as having come to an end. But this argument does not truly reflect the facts of this case either. As I have already stated, the Health Unit's memo, upon which the Respondent's decision to dismiss was based, unquestionably concerned the Complainant's medical condition. Furthermore, although some of the Complainant's absences were not related to PTSD, the largest portion of them was, and, moreover, I accept the evidence of the Commission's experts that some of his other illnesses may have been related to the PTSD. In any event, even if the absenteeism prior to the PTSD was the only factor in his dismissal, why was the Complainant not dismissed before the onset of the disability? It is noteworthy that in the period leading up to his dismissal, the Complainant's longest continuous absence from work occurred while he was recovering from PTSD and other illnesses that may be related to this disorder. [48] I do not accept the Respondent's further submission that the treatment of the Complainant should only be compared to that of other OC Transpo employees with poor non-culpable absenteeism records. The Complainant's attendance record was inextricably linked to his disability. The Respondent concedes that as of the date of the Complainant's dismissal, he was considered fit to return to work. Yet the employer expected him to produce medical or other evidence to demonstrate that he would be able to maintain regular and reliable attendance in the long term, defined by Mr. Timlin to mean as many as twenty years into the future. Other OC Transpo employees who were healthier than the Complainant were able to maintain good attendance records in the past because they lacked his distinguishing characteristic, a disability. It was not suggested that those employees were expected to provide evidence demonstrating a 20-year prognosis of regular and reliable attendance. In this sense, the Complainant, a person who had suffered from a disability, was treated differently than employees who were not disabled. [49] I find that the Respondent's prediction that the Complainant's attendance in the future would be poor was based on the likelihood that he would suffer some form of relapse. When Mr. Mooney, the Superintendent of Operational Personnel, sought the Health Unit's opinion prior to dismissing the Complainant, he was interested in knowing whether the Complainant's condition, at that time, was any different from that for which there had been a prognosis of regular attendance, in 1994, after the Complainant's recovery from the sleep disorder. According to Mr. Timlin's testimony, the employer was in effect seeking some additional guarantee that the Complainant's attendance would improve. [50] I am convinced that underlying the Respondent's decision to dismiss the Complainant was an assumption that he would likely suffer from some sort of recurrence of prior illnesses, which would in turn result in additional absences from work. Conduct that is based on an actual or perceived possibility that an individual may develop a disability in the future constitutes discrimination on the basis of disability, according to the Supreme Court of Canada, in Quebec (C.D.P.D.J.) v. Montreal (City) (Montreal). (8) Although that case dealt with the Quebec Charter of Human Rights and Freedoms,(9) which prohibits discrimination based on a person's handicap, as opposed to his disability, the Court stressed that the objectives of human rights statutes throughout Canada do not vary because of such differences in terminology. (10) [51] The Respondent argues that its motive at all times was to manage the attendance within its workforce. Labour relations law recognizes the right of an employer to dismiss an employee due to excessive innocent absenteeism, provided the employer satisfies the test of demonstrating that the employee has a record of undue absenteeism in the past and that he or she is incapable of regular attendance in the future.(11) However, any discussion relating to the Respondent's motives is irrelevant to the issue before this Tribunal. It is trite law that an intention to discriminate is not a necessary element to proving discrimination under Canadian human rights legislation. (12) If the application of a labour relations policy has as an unintended effect, the adverse differential treatment of an individual based on a proscribed ground of discrimination, there may still be a finding of discrimination against the employer who is implementing the policy. [52] The Respondent is concerned that if this approach is followed, the logical outcome will be that an employer will never be permitted to dismiss an employee whose level of disability-related absenteeism is unacceptably high. In effect, the employer will be compelled to keep an employee who is unable to fulfill his end of the employment bargain, that is, the performance of his work. Counsel for the Respondent directed me to the labour arbitration decision in Re: Air B.C. Ltd. and Canadian Airline Dispatchers Assn., (13) wherein the arbitrator rejected such a suggestion and noted that the existence of human rights legislation does not result in the eradication of the labour relations doctrine of non-culpable absenteeism. [53] The conclusions of the labour arbitrator in that case, though, serve to demonstrate that the Respondent's concerns are, in fact, unwarranted. As is pointed out in the decision, there are two issues to be considered in such cases: first, did the employer meet the tests set out in labour relations jurisprudence to establish a case of non-culpable absenteeism, and then, second, whether the employer's conduct contravenes the applicable human rights legislation. This latter issue is resolved by conducting a BFOR analysis, the approach for which was most recently set out in Meiorin. It is the third step of the Meiorin test that maintains an employer's right to dismiss an employee in such cases, provided the employer demonstrates that it cannot accommodate the employee without imposing undue hardship on itself. Where an employer is able to establish these elements, its decision to dismiss an employee due to his or her non-culpable absenteeism will be justified. [54] When measured against the labour relations test, there is no doubt that the Complainant's record of innocent absenteeism was very high. There is some issue as to what the prognosis for regular attendance was. The medical experts' letter of January 31, 1996 stated that his prognosis was very good, yet in their respective testimonies, they were both forthright in their explanations that this prediction was limited to the short term. It would have been irresponsible of them to have attempted to foretell the state of the Complainant's health to any greater extent. Counsel for the Respondent suggests that I am in some way bound by the findings of fact of the labour arbitrator who, in his ruling regarding the Complainant's grievance, stated that the prognosis for his regular attendance was indeed poor. However, I do not see the necessity to follow this course, considering that the medical evidence of the Commission's experts does not contradict the position of the Respondent that at the time of the dismissal, the prognosis beyond the short term was at the very least uncertain. [55] The point to be made here is that even if the Respondent was correct in its assessment of the Complainant's condition and its decision satisfied the non-culpable absenteeism test formulated in labour relations law jurisprudence, the matter before this human rights tribunal remains undecided. One must still proceed through the BFOR analysis articulated by the Supreme Court of Canada in Meiorin. [56] To summarize on this point, I find that a prima facie case of discrimination has been established. The decision by the Respondent to dismiss the Complainant, in furtherance of its program to manage and improve attendance within its workforce, was based, at least in part, on the Complainant's disability. It is therefore now incumbent upon the Respondent to demonstrate that its decision was based on a bona fide occupational requirement. C. Meiorin Test (i) Steps 1 & 2 [57] The first element of the Meiorin test requires the employer to demonstrate that the standard in issue was adopted for a purpose rationally connected to the performance of the job. A document describing OC Transpo's Attendance Management Program was entered into evidence. Mr. Marcotte testified that the principles set out therein reflect the policy that was in place when the Complainant was dismissed in 1996, although the document itself may have been drafted some months thereafter. According to this text, the stated purpose of the Attendance Management Program was as follows: [...] to reduce the high cost of absenteeism in a way that is consistent and fair to all employees. Employees have an obligation to maintain regular attendance; OC Transpo has a responsibility to; [sic] create working conditions conducive to good attendance, monitor attendance, and to work with employees who are experiencing extraordinary levels of absenteeism. As the Canadian Human Rights Tribunal concluded in Eyerley v. Seaspan International Ltd.,(14) there is an obvious rational connection between a rule designed to maintain reasonable levels of attendance on the job and the requirements of that job. In any event, the Commission did not argue that Step 1 was not satisfied in the present case. [58] It is similarly not in dispute that the Respondent adopted the Attendance Management Program in an honest and good faith belief that it was necessary for the fulfilment of this stated purpose. (ii) Step 3 [59] In order for the Respondent to show that its program regarding innocent absenteeism was reasonably necessary for the accomplishment of its stated purpose of maintaining reasonable levels of attendance, it must be demonstrated that it was impossible to accommodate the Complainant or other employees sharing his characteristics, without imposing undue hardship upon the Respondent. When the Act was amended in 1998, Section 15(2) was added to provide that health, safety and cost are the factors to be considered in determining whether accommodating a person's needs would impose undue hardship on an employer. However, the facts giving rise to the present complaint occurred prior to the passage of this amendment, and, as was pointed out in Desormeaux v. Ottawa Carleton Regional Transit Commission (15), my consideration of the accommodation issue is therefore governed by the principles articulated by the Supreme Court in Central Dairy Pool v. Alberta (Human Rights Commission) (16) and several subsequent cases. Some of these principles have been summarized in Eyerley:(17) In Central Okanagan School District No. 23 v. Renaud (18), Sopinka, J. noted that undue implies that some hardship is acceptable; it is only undue hardship that satisfies this test. In Central Dairy Pool v. Alberta (Human Rights Commission) (19), other relevant factors considered by the Supreme Court include, financial cost, interchangeability of the workforce and facilities, the provisions of the collective agreement, substantial interference with the rights and morale of other employees, and employee safety. Excessive cost may justify a refusal to accommodate those with disabilities, but there must not be too low a value put on accommodating disability. Otherwise it would be too easy to use increased cost as a reason for refusing to accord the disabled equal treatment (20). The provisions of a collective agreement cannot absolve the employer of its duty to accommodate, although substantial departure from its terms is a factor to be considered for undue hardship. (21) [61] The Respondent contends that in cases involving innocent absenteeism releases, the accommodation aspect of the analysis may not be necessary. When assessing an employee's prognosis for regular and reliable attendance, an employer implicitly takes into consideration whether that employee could be accommodated to the point of undue hardship. As Counsel for the Respondent noted, there is nothing incompatible with innocent absenteeism releases and human rights considerations flowing through each other. In such cases, therefore, there no longer remains any need to proceed through the third step in the Meiorin analysis. [62] I respectfully disagree. As the arbitral decision in Air B.C. illustrates, there are two stages involved in reviewing innocent absenteeism dismissals. The first is conducted in accordance with labour relations law and the second in accordance with human rights law. I fail to see how one can assume that once an employer properly concludes that an employee's prognosis for attendance is poor, the employer's duty to accommodate under human rights law is satisfied. A review of the labour arbitration ruling regarding the Complainant's grievance supports this point. OC Transpo's decision to dismiss the Complainant was held to be just, even though the arbitrator did not examine whether the employer had accommodated the employee to the point of undue hardship, in accordance with the human rights principles referred to above. The Arbitrator's comments on the issue were limited to a blanket statement that the Complainant had been amply accommodated in the past to no avail and that therefore, it was not a case where the employer has failed to accommodate a disability. The notion of undue hardship was never even discussed. [63] The Respondent goes on, however, to provide a second reason for not proceeding through an accommodation analysis. Based on the medical opinion of Drs. Sequeira and Erickson, OC Transpo viewed the Complainant as being fit to work as a bus operator at the time of his dismissal. Consequently, there remained no disability for the employer to accommodate. Having come to the conclusion that the Complainant's prognosis for regular and reliable attendance in the long term was poor, the only possible form of accommodation would have been for OC Transpo to tolerate the Complainant's predicted high level of absenteeism. This, argues the Respondent, is not an acceptable form of accommodation. [64] Counsel for the Respondent directed me to the 1992 case of the Ontario Board of Inquiry in Bonner v. Ontario (Minister of Health), (22) which related to a complainant who suffered from periodic bouts of depression. The Board mentioned in its ruling that a person who by reason of handicap cannot work competently on a regular basis is incapable of satisfying the requirements of the position regardless of how he or she might perform when unaffected by that handicap.(23) The Board went on to reject the premise that someone with such a disability should be accommodated in the sense of being tolerated. [65] I find this decision of limited relevance to the present case. First of all, these references constitute obiter dicta, as the principal finding of the Board was that the complainant in that case would not have performed satisfactorily, irrespective of his handicap. Furthermore, the Board did not consider differential treatment of someone who may possibly develop a disability in the future, as being a form of discrimination. This finding is incompatible with the subsequent judgment of the Supreme Court in the Montreal case. Overall, the Board took a narrow view regarding accommodation and undue hardship. The Board asserted that the principle of undue hardship does not require an employer to hire or retain employees who, because of a handicap, are always or occasionally incapable of doing the work, simply because the employer has the resources to tolerate actually deficient work.(24) The law has moved well beyond such an interpretation, as evidenced by the statement of the Supreme Court of Canada, in Meiorin, that the employer bears the burden, under the third step of the analysis, of demonstrating that it is impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship on the employer. (25) [66] Besides, I fail to see how tolerating absenteeism cannot constitute an acceptable type of accommodation. Certainly, all employers must be prepared to accept some level of absenteeism from all employees as it is inevitable that they will be unable to attend their work, from time to time. The issue to be decided is whether this tolerance of a certain level of absenteeism would impose undue hardship on the employer, taking into consideration all the appropriate factors. In the recent Alberta Court of Queen's Bench case of UNA v. Calgary Health Authority,(26) one of the issues to be decided was whether the employer is obliged to hire a qualified woman who is pregnant, for a term position, if it is known from the outset that she cannot complete the entire term due to the impending birth of her child. The Court found that it would be erroneous to assume that accommodating this sort of availability issue would inevitably result in undue hardship. The Court saw no distinction between the duty to accommodate such absenteeism from the duty in cases such as Central Alberta Dairy Pool and Simpsons-Sears, (27) where the employers were obliged to accommodate employees who would be absent on a regular basis, to the point of undue hardship. I do not, therefore, accept the Respondent's suggestion that the third step in the Meiorin analysis has no application in this case. [67] One of the reasons why the Respondent considered that the only form of accommodation available would be to tolerate absenteeism was because it assumed that the Complainant could only and would only work as a bus operator. Yet, the evidence shows otherwise. To begin with, the Health Unit memo, which OC Transpo management relied upon in deciding to terminate the Complainant's employment, suggested in its second paragraph that the Health Unit was willing to contact his medical advisors regarding alternate employment, if his employing division was able and prepared to offer the Complainant such employment. The Health Unit, therefore, had not rejected the possibility of his being able to perform satisfactorily in another job. [68] In addition, the Complainant testified that when he was told that he would not be allowed to return to his job, he asked Mr. Mooney to let him take on some other duties within OC Transpo. Mr. Mooney refused and informed him that no form of rehabilitation would be provided. I found the Complainant's entire testimony forthright and credible and no evidence was led to contradict his recollection of this conversation. Even if the OC Transpo managers who decided to dismiss the Complainant (including Mr. Mooney and Mr. Timlin) thought that the only employment option available in his case was to keep him as a bus operator, the information before them clearly suggested that other options should have been examined. [69] This raises another important failure on the part of the Respondent in dealing with the Complainant. In Meiorin, the Court alluded to the practical usefulness, in conducting the accommodation analysis, of considering separately: the appropriateness of the procedure that the employer adopted to assess the issue of accommodation, and the substantive content of the accommodating standard that was offered to the employee, if any.(28) The Commission submits that, with respect to the Complainant's disability, the Respondent failed to even observe the policies outlined in its own Attendance Management Program, and, as such, neglected to accommodate him procedurally. For instance, the Attendance Management Program provided that all reasonable efforts must be taken to try to rehabilitate or accommodate an employee who is found to be innocently absent from work because of a disability, if this can be done without undue hardship. These accommodation mechanisms included the options offered by the DERC, such as the shuttle bus to which the Complainant had been assigned in 1992. [70] The Attendance Management Program goes on to declare that an employee can only be medically terminated once every reasonable effort has been made to accommodate the employee within the work place. The Commission argues that the Complainant was terminated before any such effort was made. Indeed, I find that the Respondent, on whom rests the burden to demonstrate that the employee could not be accommodated, did not present evidence that any such attempts were made. To the contrary, it appears that the Respondent, having concluded that the Complainant was already fit, proceeded with the dismissal without considering any other options. Yet, as I have already explained, OC Transpo's decision was tainted with an assumption that the Complainant would not be able to regularly attend work, on account of a possible occurrence of illness in the future. [71] There was some suggestion in the medical experts' letter of a process of work hardening that would assist in the Complainant's readjustment. In addition, the Complainant's past experience demonstrated that his recoveries were undermined when confronted with stressful situations, such as driving on routes on which he had been attacked in the past. Ensuring that the Complainant avoided such circumstances may have assisted in preventing any recurrence of his disabilities. The Respondent argues that the Complainant's medical advisors never suggested that he needed to do another job, but that he was ready to return to his duties as a bus driver. I do not find this argument convincing. There is no evidence that any question about alternate employment was ever asked of the experts. Dr. Sequeira and Dr. Erickson certainly were prepared, as indicated in their January 31, 1996 letter, to be consulted by the employer regarding the assignment of duties, presumably as a bus driver. Considering the Respondent's concern that the Complainant would be unable to maintain regular attendance as a bus operator, nothing prevented the Respondent, at this point, from requesting that the Complainant's experts provide their opinion regarding alternate employment. There is no evidence that any such request was made. [72] Do employers have the obligation to make such an enquiry? The Respondent suggests not, citing as authority for its position the recent judgment of the British Columbia Court of Appeal in Oak Bay Marina Ltd. (c.o.b. Painter's Lodge) v. British Columbia (Human Rights Commission) (Oak Bay).(29) The Court found that the employer in that case was entitled to rely on its own experience with the complainant in assessing his ability to perform the job, and was not required to investigate any further into his mental disability by, for instance, obtaining additional expert opinions. However, the findings in this decision are clearly fact-specific. The job in question was that of a guide working on small fishing boats travelling over what were described as among the deadliest waters in British Columbia. The lives of the employer's clients rested in the hands of the guide and it is evident that the Court believed that in the interests of their safety, the employer was entitled to rely on its own empirical knowledge regarding the complainant's capacity to function under these circumstances. In the present case, the Respondent does not question the Complainant's ability to perform his duties well, when he is working. The issue for the Respondent is the Complainant's level of absenteeism. [73] The Court also suggested that the scope of the duty to investigate could vary depending on the nature and size of the employer. The Court distinguished the small business of the employer in that case from, as an example, the operations of a government with entire departments and volumes of information available to it.(30) OC Transpo certainly is more reflective of the latter example. Finally, regarding this question of the duty to investigate, I am guided yet again by the findings in Meiorin. The Court identifies some of the important questions to be asked in the course of the Step 3 analysis, including whether the employer investigated alternative approaches that do not have a discriminatory effect. Implicit in this finding is the duty upon an employer to conduct such an investigation. Without question, there also exists a duty upon the employee to cooperate with the employer in such a process but, as I discussed earlier, I am convinced that the Complainant and his medical advisors were willing and prepared to cooperate in finding a way to rehabilitate him and assure his full reintegration back into the OC Transpo workforce. [74] Assuming the only available accommodation, as suggested by the Respondent, was to tolerate the Complainant's absenteeism in the future, what evidence was presented to demonstrate that this would impose undue hardship on the employer? [75] The work schedule for bus operators was typically established on the basis of four or five booking periods per year. In advance of each period, drivers were permitted to select their routes and dates of work, based on their seniority. One of the options available to them was to work on the spare board. The spare board consisted of a number of drivers (the evidence suggests between 30 and 50 persons) who were available to replace absent workers, as the need arose. These absences were typically unexpected in nature, such as when an operator overslept, was snowed in or fell sick. Spare board drivers received their full salary, whether they were assigned to replace another operator or not. [76] In the event that the number of absentees exceeded the number of drivers on the spare board, OC Transpo was obliged to ask other drivers to fill in, who were then paid on an overtime basis. On occasion, enough overtime operators could not be found, in which case buses did not go out and service to the public was affected. Dissatisfied transit users were known to complain about service interruptions to their local politicians who in turn conveyed these concerns to the OC Transpo management. [77] Mr. Marcotte has served as Manager of Staff Relations and Employee Relations at OC Transpo. He testified as to the complexity associated with attempting to predict how many individuals would be absent on a given day and accordingly, estimating the number of operators to put on the spare board. [78] In the case of longer term absences, where it was known in advance of a booking period that an employee would be unavailable for the entire term, the operator was not permitted to book any shifts. It is my understanding, based on the somewhat sketchy evidence on this issue, that because such absentees had no scheduled shifts, they were not replaced with drivers on the spare board. On the other hand, if it was uncertain whether the duration of the absence would cover an entire booking period, the employee was permitted to book work dates. If he or she was ultimately unable to come in on those days, a spare board driver would have to fill in. [79] To summarize, the hardship that the Complainant's potential future absenteeism may have imposed is the following: · a spare driver, who would receive a salary whether the driver was assigned to a bus route or not, would have to replace him; · between 30 and 50 drivers were assigned to the spare board on any given day. If an insufficient number of spare drivers were available, another operator would have to be paid overtime wages to fill in; · if an overtime employee could not be found, the bus service on that run would be interrupted; · affected transit users could complain to their local politicians who would pass on the complaints to OC Transpo management. [80] I do not find that this evidence demonstrates that accommodating the Complainant's possible absenteeism would impose undue hardship on the Respondent. [81] To begin with, this evidence, introduced through the testimonies of Mr. Timlin and Mr. Marcotte, was basically anecdotal in nature. Mr. Timlin prefaced some of his comments with a warning that his expertise related to the payment of employee benefits, not the work scheduling process. Neither he nor Mr. Marcotte provided any details whatsoever as to the actual financial cost of running the spare board or paying the overtime wages when the spare board was depleted, particularly in comparison to OC Transpo's overall expenditures. No evidence was led as to how frequently the spare board was depleted nor how often transit service to the public was interrupted due to absenteeism. [82] The Complainant had received disability benefits during many of his absences. No evidence was led by the Respondent to indicate the related costs, if any, and the level of hardship to the Respondent arising therefrom. [83] Mr. Marcotte confirmed that a bus operator's absence did not put anyone's health at risk. He also acknowledged that it would be a stretch to contend that excess overtime imposed so much stress on the replacing employees that safety concerns were raised. In fact, the Respondent did not demonstrate what hardship would be imposed on the workforce at large. Most of the alleged hardship relates to the spare board process. Yet the evidence regarding the Complainant shows that during many of these absences, especially while he was being treated for PTSD, he was placed on long-term disability leave. Thus, over a period of nine months in 1992 and for the last eleven months leading up to his dismissal, the Complainant had not booked any shifts. Spare board employees should therefore not have been called upon to replace him in these periods. If the Complainant was likely to be innocently absent in the future, as the Respondent had predicted, it is certainly possible that these absences would have resembled the past incidents and resulted in his being disabled over a long term. The spare board would consequently have been unaffected. [84] Respondent counsel referred me to the recent judgment of the Ontario Divisional Court in Ontario (Human Rights Commission) v. Roosma, (31) which affirmed a decision of the Ontario Board of Inquiry. The case concerned two employees at the Ford automobile plant in Oakville who for religious reasons could not work from sunset on Friday until sunset on Saturday. They sought to be permanently excused from working Friday evenings. The Ontario Human Rights Commission led evidence that the cost to Ford of replacing the employees on those shifts was negligible. The Board of Inquiry disagreed with this assessment by extending the notion of cost to include the real cost of resulting declines in both quality and production, which while difficult to measure were nonetheless deemed real. The Board concluded that accommodating these employees, by arranging for the swapping of shifts or the hiring of part-time or student workers, would impose undue hardship on Ford. [85] The circumstances regarding the Roosma case differ significantly from those of the present case. First of all, the Court did not necessarily adopt the reasons of the Board of Inquiry; it simply concluded that the board's findings met the reasonableness standard of judicial review. The Court noted that the Board was presented with extensive detailed and uncontradicted evidence from Ford, regarding the consequences of accommodating the complainants. Moreover, amongst the factors that influenced the Board's findings was not only the financial cost to Ford but also the interchangeability of its operations, the importance of having the regular operator on each job, the impact of the collective agreement, safety considerations and the substantial effect of accommodation on other workers. (32) [86] As I have already indicated, I have no evidence before me of the actual financial cost regarding the Respondent's measures for accommodating or tolerating absenteeism. Safety issues do not arise and evidence was not introduced regarding the impact of the collective agreement. Aside from the mention of the possible, though unlikely, additional stress on overtime employees, I was not provided with any insight as to how accommodating the Complainant's potential future absenteeism would affect other employees. In addition, contrary to the evidence raised in Roosma with respect to Ford's automobile assembly line workers, the evidence before me suggests that the functions of a bus operator are highly interchangeable. I thus find that Roosma can be distinguished from the present case. [87] The Respondent has failed to establish that accommodating the potential innocent absenteeism of the Complainant after his return to work in February 1996 would have imposed undue hardship on OC Transpo. [88] The complaint is therefore substantiated. III. REMEDY A. Reinstatement [89] In human rights cases, where a complaint of discrimination is found to be substantiated, it is the duty of the Tribunal to attempt to restore a complainant to the position that he or she would have been in, but for the discrimination. (33) The Commission accordingly submits that the Complainant should be reinstated to the position of bus operator or such other suitable occupation as the Tribunal may determine. [90] Respondent counsel argued that reinstatement is inappropriate in the present circumstances. In the seven years since his dismissal, the prognosis for the Complainant's attendance has remained unchanged. Once he is reinstated, and provided the employer's predictions hold true, the parties will again find themselves in the difficult situation of having to deal with the Complainant's excessive absenteeism. This argument appears to me to be predicated on an assumption that is itself related to the Complainant's disability. I have already held that such an assumption is discriminatory and it can therefore play no role in the fashioning of the remedy. [91] I am satisfied that the appropriate remedy would be for the Complainant to be reinstated as a bus operator. I therefore order the Respondent to reinstate the Complainant to the position of bus operator, together with the commensurate seniority and benefits of a full-time permanent employee, the whole with retroactive effect to the date of his dismissal. [92] According to the evidence, the Respondent ordinarily assists employees returning from extended leave in their reintegration into the workforce. This assistance includes the provision of training as well as aid in the reacquisition of any necessary driving permits from the appropriate authorities. The Respondent must provide this assistance to the Complainant. B. Damages for Lost Income [93] The Respondent is ordered to pay to the Complainant damages for his lost wages from February 2, 1996, until the date of his return to full time employment, taking into account other income, statutory deductions and gross-up for the purposes of the Income Tax Act. All of his benefits should also be adjusted accordingly. [94] I do not accept the Respondent's suggestion that the damages for lost wages should only run from the date of the labour arbitrator's decision that the Complainant was justly terminated. The Respondent's liability flows from its decision to end the Complainant's employment, based in part on a discriminatory ground, irrespective of whether the labour arbitrator deemed the dismissal just. [95] Instead of presenting evidence or submissions at the hearing with respect to the calculation of these damages, the parties agreed to work together to determine these amounts. As I explain below, I will retain jurisdiction in case these discussions do not prove fruitful. C. Hurt Feelings [96] The facts giving rise to the complaint precede the 1998 amendments to the Act. Section 53(3) stated, at that time, that the Tribunal could order a respondent to pay up to $5,000 in compensation to a victim of discrimination who had suffered in respect of feelings or self-respect. I am in agreement with the findings of the Tribunal, in Premakumar v. Air Canada (34) and Desormeaux (35), that the $5,000 maximum award must be reserved for the very worst cases that fall within the range of cases in which such awards are warranted. [97] The Complainant testified as to the effect that the termination had on his life. He felt a loss of dignity and feared for his family's economic well-being. The financial impact was so great that it became difficult for him to purchase appropriate food for his family. The evidence does suggest, though, the dismissal did not lead to a recurrence of PTSD and that to the contrary, Dr. Erickson having noted that the Complainant was taking it extremely well". [98] Taking into account these and all of the other circumstances in this case, I order the Respondent to pay to the Complainant the sum of $3,500 as special compensation. D. Policy Review [99] The Commission seeks an order that the Respondent's policy regarding the accommodation of employees with disabilities be reviewed and revised. Over seven years have passed since the Complainant was dismissed. The evidence is that since that time, the employer has changed (to the City of Ottawa) and the accommodation policies and attendance management programs have gone through several modifications and updates. The newest attendance management program that is now being implemented extends to all the employees of the City of Ottawa, not just those working within OC Transpo. Furthermore, the liability in the present case stems in part from the Respondent's failure to apply the program that was in place at the time of the Complainant's dismissal, and was not necessarily the result of a particular defect in the program itself. The Commission's request is consequently denied. E. Interest [100] Interest is payable regarding all of the monetary awards made pursuant to this decision. The interest shall be simple interest calculated on a yearly basis, at a rate equivalent to the Bank Rate (Monthly Series) set by the Bank of Canada. With respect to compensation for hurt feelings, the interest shall accrue from the date of dismissal until the final payment of the award. Interest on the lost wages shall also run from the date of dismissal until the final payment of the award, but shall be calculated as the wages would have become payable to the Complainant. F. Retention of Jurisdiction [102] In the event that any difficulties arise in the implementation of these remedies, including a failure by the parties to reach an agreement regarding the damages for lost wages, I retain jurisdiction to receive evidence, hear further submissions and make further orders. "Original signed by" Athanasios D. Hadjis OTTAWA, Ontario March 6, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T699/0402 STYLE OF CAUSE: Alain Parisien v. Ottawa-Carleton Regional Transit Commission PLACE OF HEARING: Ottawa, Ontario (July 22-24, 2002; September 4-5, 2002; November 15, 2002) DECISION OF THE TRIBUNAL DATED: March 6, 2003 APPEARANCES: Alain Parisien On his own behalf (Complainant) Patrick O'Rourke For the Canadian Human Rights Commission Stephen Bird For the Respondent 1.1 S.O. 1999, c. 14. 2.2 Parisien v. Ottawa Carleton Regional Transit Commission, [2002] C.H.R.D. No. 23 (C.H.R.T.)(QL). 3.3 This provision is now designated as S. 15 (1)(a). See An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, S.C. 1998, c.9, s. 10. 4.4 British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (Meiorin). 5.5 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (Grismer). 6.6 Supra, note 4 3 at 32-33. 7.7 Singh v. Canada (Statistics Canada) (1998), 34 C.H.R.R. D/203 (C.H.R.T.) at para. 174, aff'd Canada (A.G.) v. Singh (April 14, 2000) T-2116-98 (F.C.T.D.); McAvinn v. Strait Crossing Bridge Ltd., [2001] C.H.R.D. No. 36 (C.H.R.T.)(QL) at para. 102; Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 (F.C.A.) at para. 7; Pitawanakwat v. Canada (Secretary of State) (1992), 19 C.H.R.R. D/10 (C.H.R.T.) at para. 85. 8.8 [2000] 1 S.C.R. 665 at 700. 9.9 R.S.Q., c. C-12. 10.10 Supra, note 78 at 689. 11.11See Re: Air B.C. Ltd. aAnd Canadian Airline Dispatchers Assn. (1995), 50 L.A.C. (4th) 93. 12.12 Ontario (Human Rights Commission) v. Simpson-Sears Ltd. [1985] 2 S.C.R. 536 at 547; Robichaud v. Canada (Treasury Board) [1987] 2 S.C.R. 84 at para. 10. 13.13 Supra, note 110. 14.14[2001] C.H.R.D. No. 45 (C.H.R.T.)(QL) at para. 139. 15.15 2003 CHRT 2 16.16 [1990] 2 S.C.R. 489 at 520-21 17.17 Supra, note 14 at para. 141. 18.18 [1992] 2 S.C.R. 970 at 984. 19.19 [1990] 2 S.C.R. 489 at 520-21. 20.20 Grismer, supra, note 34 at para. 41; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at paras. 87-94. 21.21 Renaud, supra, note 1816 at 587. 22.22 (1992), 16 (C.H.R.R.) D/485 (Ont.Bd.Inq.) 23.23 Ibid. at para. 82. 24.24 Ibid. at para. 83. 25.25 Supra, note 4 at 40. 26.26 2002 ABQB 859. 27.27 Supra, note 12. 28.28 Supra, note 4 at 37. 29.29 2002 BCCA 495. 30.30 Ibid. at para 26. 31.31 [2002] O.J. No. 3688 (Ont.S.C.J.-Div.Ct.)(QL) 32.32 Ibid. at para. 158. 33. 33 McAvinn, supra, note 7 at para. 189; Canada v. Morgan, [1992] 2 F.C. 401 at 414-15 (C.A.). 34. 34 (2002), 42 CHRR D/63 at para. 107. 35.35 Supra note 15 at para 128.

2003 CHRT 11

CHRT

Hodgins v. Transport North American Express Inc.

en

2003-03-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6880/index.do

2023-12-01

Hodgins v. Transport North American Express Inc. Collection Canadian Human Rights Tribunal Date 2003-03-06 Neutral citation 2003 CHRT 11 File number(s) T745/5002, T746/5102, T747/5202 Decision-maker(s) Mactavish, Anne L. Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: TARA HODGINS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TRANSPORT NORTH AMERICAN EXPRESS INC. KEN DRAGOSISTS KAREN DRAGOSISTS Respondents RULING ON MOTION TO DISMISS COMPLAINT 2003 CHRT 11 2003/03/06 MEMBER: Anne Mactavish [1] Tara Hodgins filed a complaint against her former employer, Transport North American Express Inc. (TNA), alleging that the company failed to provide her with a harassment-free workplace, in breach of its obligations under the Canadian Human Rights Act. She also alleges that her employer treated her in an adverse differential fashion and terminated her employment because of her pregnancy. Ms. Hodgins subsequently filed additional complaints against the former owners of the company, Ken and Karen Dragosists, alleging that both Mr. and Ms. Dragosists sexually harassed her in the course of her employment with TNA. [2] In preparation for the hearing of Ms. Hodgins' complaints, the Tribunal Registry sent pre-hearing questionnaires to each of the parties. Neither Mr. Dragosists nor Ms. Dragosists have responded, or given any indication to date that they intend to participate in the hearing. TNA returned its completed questionnaire. At the same time, David Bazar, one of the current owners of TNA, asked that The Commission consider removing TNA as a respondent in this matter since it seems to me that there can be no useful purpose served by TNA being a respondent. Given that the request was sent to the Canadian Human Rights Tribunal, I understand TNA to be seeking an order from the Tribunal dismissing the complaint against TNA, and have treated Mr. Bazar's correspondence as a motion for such relief. [3] TNA's submissions are very brief. Although Mr. Bazar was afforded the opportunity to file more complete submissions in support of the company's request, he elected not to do so. I must therefore address the company's request based upon the limited information before me. [4] Mr. Bazar indicates that he and his wife acquired control of Transport North American Express Inc. subsequent to the events described in Ms. Hodgins' complaint. As a consequence, neither Mr. Bazar nor his wife have any knowledge of the facts surrounding Ms. Hodgins' allegations. According to Mr. Bazar, the assets of TNA were seized last July, following a demand for repayment by the Bank of Montreal, which was evidently a secured creditor of the company. Mr. Bazar states that TNA's assets were subsequently sold by a Trustee. The company currently has no assets or employees, and is no longer generating any revenue. [5] The Commission's submissions are predicated upon the assumption that TNA has gone through formal bankruptcy proceedings. Mr. Bazar does not, however, assert that TNA was ever in bankruptcy. As a result, I do not need to consider the effects that such a bankruptcy might have had on these proceedings. It may well be that the Trustee referred to in Mr. Bazar's correspondence was appointed under the Bank's security agreement, for the purposes of realizing on the Bank's security. [6] TNA was Ms. Hodgins' employer. Section 65 (1) of the Canadian Human Rights Act makes employers liable for harassment in the workplace, where the harassment involves one or more of the proscribed grounds enumerated in Section 3 of the Act, unless the employer can satisfy the elements of the due diligence defense described in Section 65 (2) of the Act. The fact that control of TNA may have changed in the period between Ms. Hodgins' departure from the company and the present time does not, by itself, operate to relieve the company of liability for any discriminatory conduct that might have occurred in the workplace prior to the change in control. [7] Mr. Bazar asserts that Mr. and Ms. Dragosists are no longer associated with the company, and that the company is currently in litigation with the Dragosists. As a result, Mr. Bazar says, the company is unable to call any witnesses in its defense. There is no suggestion, however, that the Dragosists are unavailable to testify. It is open to TNA to subpoena the Dragosists if it deems their testimony to be necessary for its defense. [8] Accordingly, TNA's motion for dismissal of the complaint against the company is dismissed. Given the limited information provided to the Tribunal regarding the circumstances surrounding the change in ownership of TNA, however, I am dismissing the motion without prejudice to TNA's right to renew its request at the hearing of this matter, provided that such request is supported by a more complete evidentiary foundation. [9] Given Mr. Bazar's assertion that TNA has no assets, and generates no income, Ms. Hodgins and the Commission may wish to consider whether there is any useful purpose to be served in pursuing the complaint against TNA. That is, however, a decision for the Commission and Ms. Hodgins, and not for this Tribunal. Original signed by Anne Mactavish OTTAWA, Ontario March 6, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T745/5002, T746/5102 and T747/5202 STYLE OF CAUSE: Tara Hodgins v. Transport North American Express Inc. and Ken Dragosists and Karen Dragosists RULING OF THE TRIBUNAL DATED: March 6, 2003 APPEARANCES: Dan Pagowski For the Canadian Human Rights Commission David Bazar For Transport North American Express Inc.

2003 CHRT 12

CHRT

Day v. Department of National Defence and Michael Hortie

en

2003-03-07

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6882/index.do

2023-12-01

Day v. Department of National Defence and Michael Hortie Collection Canadian Human Rights Tribunal Date 2003-03-07 Neutral citation 2003 CHRT 12 File number(s) T627/1501, T628/1601 Decision type Ruling Decision status Interim Decision Content Between: Amanda Day Complainant - and - Canadian Human Rights Commission Commission - and - Department Of National Defence and Michael Hortie Respondents Ruling Member: Dr. Paul Groarke Date: March 7, 2003 Citation: 2003 CHRT 12 I. Introduction [1] At the opening of the hearing, the Respondents asked for an order closing the hearing to the public. In the alternative, they requested a ban on publication. The Complainant opposed both requests. After receiving the submissions of all the parties, I rejected the application to close the hearing and issued a ban on publication. I advised the parties that I would provide written reasons at a later date. [2] The matter is governed by section 52(1) of the Canadian Human Rights Act, which gives the Tribunal the authority to: 52.(1) . . . take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the inquiry if the member or panel is satisfied, during the inquiry or as a result of the inquiry being conducted in public, that . . . (b) there is a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; (c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; (d) there is a serious possibility that the life, liberty or security of a person will be endangered. The Respondents acknowledged that they have the onus of establishing that an order protecting the confidentiality of the inquiry is necessary and that it is a high onus. They have also accepted that such an order should not be granted where there are other means of protecting the parties and the witnesses. [3] There are a variety of interests that arise in the application before me. The first set of interests that favours publication seems to lie in the public domain. The common law is based on an independent, impartial and public process. There are also Charter considerations. I was referred to the guarantee of freedom of the press in section 2(b) of the Charter of Rights, which generally requires that the process of adjudication be conducted in public. Section 2(b) may go further, however, since it protects freedom of opinion and expression, which is not possible without access to the information that permits that expression. [4] The second set of interests that favours publication lies in the private realm. Section 11 of the Charter, for example, gives an accused in a criminal case a right to a trial in public. There may be a similar right in the human rights process, which gives either the Complainant or the Respondent the right to ask for a public hearing. Section 7 of the Charter might include some right to a public hearing, if it has a bearing on the psychological integrity of the participants. In Blencoe v. British Columbia (Human Rights Commission) [2002] 2 S.C.R. 307, the Supreme Court has held that there is nothing to prevent the operation of section 7 in the human rights process, where the appropriate circumstances exist. [5] In the immediate case, most of the concerns on the other side relate to the privacy of the person. It is interesting that section 7 may also arise in this context, since it protects the psychological integrity of the person, which could be undermined by an open process. This is borne out by the wording of section 52(1)(d) of the Canadian Human Rights Act, which uses the same language as section 7. I have also been referred to section 8 of the Charter, which has been interpreted in a manner that protects the privacy of the individual person. [6] The question of fairness seems to arise on both sides of the issue, since the idea of public hearings seems to have originated in the belief that public proceedings are open to scrutiny and are therefore inherently more fair than proceedings held in camera. The star chamber looms large in our legal history. The Respondents have argued on the other side that a public process, which destroys the reputation of innocent parties, is fundamentally invasive and unfair. They have submitted that a hearing that permits the publication of extravagant and unjustified allegations is unfair, even if it gives all of the parties a full and ample opportunity to present their cases. I think it is apparent that the concept of fairness in section 52(1)(b) of the Canadian Human Rights Act goes beyond mere procedural concerns. II. The Basic Rule [7] In spite of the wide variety of interests that come into play in the present application, the basic rule seems abundantly clear. Hearings must generally be conducted in public. This is as much a matter of accountability as anything else. The process must not be hidden. I believe this is the right place to begin. The mandate of fact-finding bodies like the Tribunal is to publicly establish what occurred in a given set of circumstances. I think this requires an open process, in which the competing positions are open to public scrutiny. [8] This principle holds, whether the allegations are substantiated or not. The public’s right to know is not restricted to the findings of a Tribunal and generally includes the allegations that have been made, however offensive they may be. There are additional concerns in the context of human rights, since one of the purposes of the human rights process is to educate the public. These kinds of considerations apply in all cases and are not limited to cases where a complaint is made out. The educational purposes of the human rights process are still served by public hearings in situations where the complaints do not succeed. [9] The question is accordingly whether the circumstances before me are sufficient to justify a departure from the general rule. It is enough, in making such a determination, to consult the criteria set out in section 52(1) of the Canadian Human Rights Act, while remaining sensitive to any Charter considerations. III. Closing the Hearing [10] I do not see any need to go beyond general principles in dealing with the request to close the hearing. The public has some right to know what happens at hearings. There are many cases that raise offensive allegations and something more is needed, to justify an in camera proceeding. The human rights process should be open to the public in all but the most compelling circumstances. I think the integrity and reputation of the process would be jeopardized if hearings were closed merely because they deal with sensitive personal matters. One of the effects of closing the hearing would be to seal the entire transcript, a course of proceeding that effectively deletes the hearing from the public record. This goes much too far. [11] In Bouvier v. Métro Express (1992) 17 C.H.R.R. 313, at para. 6, this Tribunal considered a similar application to move in camera, under an earlier and more austere section of the Act, apparently on the basis that it would injure the reputation of the corporate Respondent. The Tribunal refused to close the hearing: In view of how important it is that the judicial process in our society be public, and particularly in the area of human rights where the educational aspect of the process plays a leading role, and in view of the decisions in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175 and Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326, we refused the request by Loomis that the hearing be held in camera. I believe that there is a public right of inspection, which gives ordinary citizens the right to attend legal proceedings and observe how the system operates. [12] This cannot be done behind closed doors, and it would be a mistake to pretend, in effect, that the hearing has not taken place. If the Respondents are entirely blameless, and beyond reproach, that does not change the fact that these allegations were made. I am not convinced that any blame accrues to the Respondents in airing such a fact before the public, which can be interpreted in a variety of ways. I think we have to rely on the ability of the public to distinguish mere allegations from statements of fact. The Respondents would have the usual civil remedies, if a member of the public was to confuse the two. [13] The Complainant has openly expressed her lack of faith in a closed hearing and insisted on her right to confront the Respondents in public. She has also provided written submissions, in which she argues that it would be a mistake to conceal the hearing from the public. I think there is merit in her submissions. The fact that these kinds of allegations are made in the course of the human rights process should not be hidden from the public. This line of reasoning extends beyond the hearing and encompasses the transcript of the proceedings, which should be open to inspection. This serves the societal interest mentioned in section 52, along with the legal and historical purposes of hearings. [14] I should make it clear, before dealing with the application for a ban on publication, that I raised the possibility of briefly closing the hearing, if particular allegations met the requirements of section 52(1) of the Canadian Human Rights Act. I was informed, however, that this was not a practical alternative, given the number of allegations, and would require constant interruptions in the process. It would also require that portions of the transcript be sealed and removed from the public record. I am not comfortable with such a method of proceeding in the present case, and feel that it is preferable to give the public access to the transcript, which would still be subject to any ban on publication. I believe this goes as far as possible, in protecting the privacy interests of the parties and the public’s right to know. IV. THE BAN ON PUBLICATION [15] Publication seems to be a separate matter. The Respondent has referred me to Dagenais v. Canadian Broadcasting Corp., [1994] S.C.J. No. 104 (QL), which dealt with an order restraining the CBC from broadcasting a television program dealing with the subject matter of a criminal indictment. Although the facts of the case have no real bearing on the case before me, the decision of the majority sets out the general test in such an application. A ban on publication should only be issued if: it is necessary to protect the fairness of the trial or hearing; and the salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban. The Respondents have argued that this sets the fundamental parameters in any application for a ban on publication. [16] The same kinds of concerns arise under section 52(1)(b) and (c) of the Canadian Human Rights Act, which nevertheless uses somewhat different language. The section states that a confidentiality order may be granted if the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public. The section recognizes that such a need may arise if there is a real and substantial risk to the fairness of the inquiry”, or a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved. Although the same kinds of concerns might arise under subsection (d), I think it is sufficient to focus on these considerations. [17] It will be apparent that Dagenais and many other cases deal with the freedom of the press. I do not believe that it would be prudent to comment on this aspect of the matter in the absence of submissions from an interested party, who can advance the necessary arguments on behalf of the press. Since Dagenais is a criminal case, it also focuses on the interests of the accused. This brings in the presumption of innocence, which is guaranteed in section 11 of the Charter. The major decision relied upon by the Respondents in this regard is A. v. C. [1994] B.C.J. No. 488 9 (B.C.S.C.) (QL), which dealt with an action for defamation arising out of extravagant complaints made to the police and the College of Physicians regarding allegations of sexual abuse. The court had ordered that pseudonyms be used. The case was cited before me for the proposition that the presumption of innocence protects parties in civil proceedings. [18] I cannot deal with the case at length. At paragraph 23, the B.C. Supreme Court nevertheless adopts the view expressed in Hirt v. College of Physicians and Surgeons of British Columbia [1985] 3 W.W.R. 350, at p. 364, where McFarlane J.A. says: Public accessibility to the courts and to the records of the courts is needed so that society can be assured that justice has been done. Secrecy raises doubts in the public mind. But reasonable limitations upon the principle that justice must be done in the open have been recognized for many years in free and democratic societies. True justice must have respect for the rights or reputations of innocent persons. Although the case discusses a number of other issues, this is the essential proposition that was put before me. [19] Counsel for Respondents rested most of their submissions on the reputation and innocence of individuals who the Complainant accuses of gross misconduct and lurid sexual improprieties. The Respondents argued that the presumption of innocence that applies in a criminal context applies to unsavoury allegations that have been made in other proceedings. It was brought to my attention, for example, that two of the witnesses were the subject of separate complaints to the Human Rights Commission. These complaints were not pursued by the Commission and were never referred to the Tribunal. It was suggested to me that their witnesses are now being dragged back in to the process, against their will. [20] This kind of argument seems more compelling in a case of harassment, where the law of human rights occasionally enters into the area of some of the allegations normally dealt with in the criminal courts. There are allegations of rape and forced sodomy, for example, before me. The real issue seems to be the sexual allegations: it was suggested that these kinds of allegations carry a particular stigma in our society, which attracts the cloak of confidentiality more readily than other allegations. Mr. Houston has stated on the record that horrendous allegations will arise during the course of the examination of witnesses, which may include allegations of child abuse. [21] The Complainant may have competing interests. The Tribunal in Bouvier, supra, at paragraph 7, quotes from Madam Justice Wilson in Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326, at p. 1361, where she recognizes that an open process may serve more personal interests: But in addition to the interest of the public at large in an open court process there may be compelling arguments in its favour related to the interests of litigants generally. Many may feel vindicated by the public airing of the injustices they feel they have suffered alone and without any support in the community. Indeed, this may be the first time that a spouse is able to speak openly about events that have taken place in the privacy of the home. They may welcome the public endorsement for what they have suffered in private ignominy. (p. 1361) The Respondents have essentially argued that this must not be taken too far. A Complainant should not be allowed to publicly punish a Respondent or innocent third parties, when the complaints are not made out. Nor is the hearing a therapeutic process. There is a concern in at least some of the cases with the use of the adjudicative process for improper or collateral purposes. [22] The French version of subsection 52(1)(c) would seem to support such an argument. There must be a balancing. I am nevertheless of the view that at least some of the interests outlined by Madam Justice Wilson can be met by allowing the Complainant to make her allegations in public, with or without a ban on publication. Litigants are entitled to their day in court. The comments of Justice Wilson did not prevent the Tribunal in Bouvier from granting a partial ban on publication in far less compelling circumstances than the circumstances before me. The Respondent took the position that this was not a feasible manner of proceeding in the case before me, given the extent of the allegations and the notoriety of the case in the local community. I have already indicated that I would rather issue a ban on publication than repeatedly close the hearing for portions of the testimony. [23] There is another aspect to this, however, which requires serious consideration. The Complainant has opposed the application for a confidentiality order. There are nonetheless good reasons, as the Respondents have suggested, to protect her privacy in this matter. The Respondents have taken the position throughout the present process that the Complainant is psychologically ill and suffers from delusions. I have been advised that she will be cross-examined on the minute details of her personal life and psychological history, which raises the most serious privacy concerns. I recognize the position that the Complainant has taken: she has nonetheless objected on a number of occasions to the disclosure of the details of her medical and psychological record. It seems to me that a confidentiality order would offer her some protection in this regard. [24] I cannot comment on the merits of the case before me. There is nevertheless no doubt in my mind that many innocent people have suffered enormous personal and public damage as a result of sexual allegations, which our society finds opprobrious. The shame and humiliation that such people suffer should not be underestimated. The system should not victimize them. I believe that the interests of the public and perhaps the Complainant can be protected by reviewing the matter at the end of the hearing, at which time any ban on publication can be lifted. I should note in passing that counsel for the Respondents expressed an additional concern for the language employed by the Complainant in making these allegations, and a concern about less offensive accusations like theft. I do not find these concerns sufficient to justify a ban on publication. V. Order [25] I am accordingly prohibiting the publication of any of the evidence or matters that arise in the course of the present hearing. I believe this is in the interests of all of the parties, including the Complainant, and that publication would undermine the fairness of the inquiry and cause undue hardship to the persons involved. In the circumstances of the case, I am satisfied that this outweighs the normal rules in favour of a public hearing. [26] I should make it clear that this ban is revocable and can be revisited if other parties wish to address the question, or the circumstances of the hearing warrant it. It does not extend to any of my rulings or the final decision in the case. Signed by Dr. Paul Groake Tribunal Member Ottawa, Ontario March 7, 2003 Canadian Human Rights Tribunal Parties of Record Tribunal File: T627/1501 and T628/1601 Style of Cause: Amanda Day v. Department of National Defence and Michael Hortie Ruling of the Tribunal Dated: March 7, 2003 Appearances: Amanda Day, for herself Joyce Thayer, for the Respondent J. David Houston, for Michael Hortie

2003 CHRT 13

CHRT

Day v. Canada (Department of National Defence)

en

2003-03-12

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6878/index.do

2023-12-01

Day v. Canada (Department of National Defence) Collection Canadian Human Rights Tribunal Date 2003-03-12 Neutral citation 2003 CHRT 13 File number(s) T627/1501, T628/1601 Decision-maker(s) Groake, Paul Dr. Decision type Decision Decision Content Canadian Human Rights Tribunal Canada Tribunal canadien des droits de la personne BETWEEN: AMANDA DAY Complainant - and - DEPARTMENT OF NATIONAL DEFENCE AND MICHAEL HORTIE Respondents RULING ON CAPACITY 2003 CHRT 13 2003/03/12 MEMBER: Dr. Paul Groarke I. THE APPLICATION BEFORE ME [1] The following are my reasons on the application of the Respondents for a ruling that the Complainant is not competent to testify in these proceedings. I prefer to phrase this as a question of capacity, and avoid the pejorative associations of the word featured in the caselaw. There is a second question that has arisen in this context, which is whether the Complainant is capable of representing herself. In the circumstances of the case, I do not believe that it would be in the interests of the parties to interrupt the process in order to prepare extensive reasons. I nevertheless feel obliged to issue written reasons before proceeding further. [2] Before dealing with the background to the application, I would comment that the second question might seem to require a higher degree of capacity, since a party who is competent to proceed must be capable of participating in the conduct of the process. This would normally appear to present a higher standard than the capacity to give probative evidence, which need only be sufficient to assist the trier of fact. The usual logic of the situation seems to be reversed, however, in the circumstances before me. That is because the Complainant’s primary difficulty, as Ms. Thayer submitted, is in reciting the sexual allegations at the core of the complaint. This is undoubtedly the most difficult aspect of the matter from a legal perspective. [3] Although I have focussed more directly on the first question, which relates to the Complainant’s ability to testify, the reality is that there is a general concern for her psychological condition that goes to all aspects of the case. I want to reassure the Complainant that, in my view, the other parties have acted out of respect for the integrity of the process and with a keen concern for the Complainant’s well-being. There is nothing improper in the application: on the contrary, I think it would have been inappropriate to proceed without canvassing these issues. This holds true, whatever my ruling on the application. II. GENERAL BACKGROUND OF THE CASE [4] I should state at the outset that the present case seems to have a troubled history. There is no escaping the fact that the psychological history of the Complainant is relevant to the present proceedings. The medical record, which has not been independently proven, indicates that she has been committed in the past. There is no point in hiding this fact: it does not necessarily speak to the Complainant’s present circumstances and as far as I am aware, there is no suggestion from counsel that she is incompetent in the larger legal sense. This merely provides the background to the present application and illustrates, along with the rest of the medical and psychological record, that there are reasons for concern. [5] Although I am not privy to the events that may have transpired before the hearing, the Complainant has indicated on a number of occasions that the Human Rights Commission and the other parties sought an order declaring her incompetent. I am not exaggerating when I say that she feels that there was something like a conspiracy to have her committed. I do not know the full details of the matter, but there is enough on the Tribunal file to suggest that there are reasons for the Complainant’s suspicions. This is not intended as a criticism: this has been a difficult matter for everyone involved with it, and I merely feel obliged to set out the larger set of circumstances behind the present application. [6] The Complainant inevitably feels that any earlier efforts to have her declared incompetent were merely a convenient way of disposing of the present inquiry. It follows that she is extremely suspicious of the present attempt by the other parties to question her capacity to participate in the hearing. She believes that it is beneficial to her psychological well-being to continue and there is at least some medical evidence that supports such a contention. This raises issues that go beyond the scope of my authority, however, and the Complainant’s legal position is that she has a right to proceed. This includes the right to testify and present her account of what occurred. I have warned her that she will be subject to a full and searching cross-examination, which will undoubtedly raise painful memories and prove emotionally difficult. This does not dissuade her. III. BACKGROUND OF THE PRESENT APPLICATION [7] There is no question that the application has been properly and responsibly made. The Complainant displayed erratic behaviour in giving her evidence in chief. This consisted of contorted facial expressions, inappropriate pauses, a pronounced shaking of her head, a raising of her arms and the adoption of various postures, all of which presented a departure from the normal presentation of viva voce evidence. I mention these attributes of her testimony because they are not apparent on the face of the record. The Complainant also used expletives, began sobbing, would occasionally raise her voice or adopt a theatrical and mocking tone, and was unable to continue on a number of occasions. The most difficult aspect of her evidence, from the perspective of managing the case, is that she found it difficult, even impossible, to confine herself to the narrative of events that led to the present complaint. She constantly went into other matters, occasionally in a manner that seems strange and even bizarre, to anyone with a developed sense of relevance. [8] I accept, as counsel has submitted, that the Complainant’s behaviour deteriorated as she gave evidence and eventually culminated in what I have described on the record as a screaming fit, which happened when she found herself unable to describe one of the alleged incidents of sexual harassment. I think this can best be described as formless screaming: there were no words, as far as I could determine, and to a lay person, at least, the Complainant cried inconsolably, like an infant. The Tribunal officer immediately called for order and I left the hearing room, though it is clear that she fell to the floor, writhing, in the words of counsel and remained there until after the room was cleared. Dr. Kaplan, a psychologist for the Respondents, advised the Tribunal Officer to phone 911, a suggestion that was carried out. This should not be interpreted as a comment on the nature of what occurred, which became a source of controversy between the parties. [9] One of the security officers, Ms. Dennis, remained in the hearing room and later testified as to what occurred. Her testimony was measured and careful evidence, and I accept her account of events. The only point that I feel obliged to clarify is that the hearing was not resumed in the absence of the Complainant. This was never a consideration, though the situation might have transpired differently if Ms. Day had been hospitalized. In my view, the matter was handled with the right degree of concern for the well-being of the Complainant and the need to protect the propriety of the process. After the Complainant had recovered, the hearing was briefly resumed, and the Complainant indicated that she wished to continue with her evidence. The other parties understandably requested a recess. The Complainant became visibly angry in response to the submissions of counsel, and I felt it was best to adjourn until the following day, at which time the Respondents brought the present application. [10] I want to be fair. There is a sense in which this puts the matter in the worst light. I should make it clear that the Complainant is an intelligent person who often speaks lucidly and has a real appreciation of the nature and purpose of the present proceedings. She has given coherent testimony that would support the complaints. One of the problems is that she is not familiar with the practices in formal legal proceedings, and like many lay people, does not distinguish between a formal and informal venue. As a result, her manner and language is often inappropriate. She is unrepresented, which has added to her difficulties, and often seems overwhelmed by the minutiae of the evidence. Having said that, and made allowances for her lack of familiarity with legal proceedings, her psychological frailty, and her many interruptions, she appears to understand the process and has some rough ability to conduct her case and present evidence. There is no doubt that this has placed enormous demands on the patience of counsel, and myself, but that is another matter, which goes more to the issue of accommodation. [11] After the application was made, I entered into a voir dire for the purpose of deciding the question of competence. The Respondents called Dr. Kaplan, a clinical psychologist, who was in attendance during the hearing. Dr. Kaplan was qualified as an expert and expressed serious reservations about proceeding. He was of the opinion that the Complainant suffers from a paranoid personality disorder, which makes her perception of events inherently unreliable. He also testified that, in his view, the Complainant had gone into a psychotic state while testifying. Dr. Kaplan also prepared a written report, which has been entered as an exhibit in the voir dire. Ms. Thayer placed considerable reliance on his view that the Complainant was having psychotic episodes at the time that she was experiencing the alleged sexual harassment. The cases suggest that this is a major consideration, but this goes to the merits of the case, and the evidence is far from clear at this point in time. [12] The Complainant called Ms. Dennis in reply, along with two experts, who were duly qualified. Her therapist also appeared at the hearing, though she did not testify. The evidence of Dr. Hunter, a medical doctor with expertise in Post Traumatic Stress Disorder, was essentially that Ms. Day’s behaviour was consistent with such a diagnosis. The other expert witness, Dr. Malcolm, a clinical psychologist, adopted much the same position. Dr. Malcolm has treated the Complainant in the past and was consulted by the Complainant prior to the beginning of the proceedings. Mr. Houston objected vigorously to the fact that Dr. Hunter and Dr. Malcolm believed that it would be an injustice to deprive the Complainant of her right to proceed. These opinions were well intentioned and reflected their view that it would be better for the Complainant to proceed, psychologically. The question of justice is entirely within the keeping of the Tribunal, however, and well outside the scope of expert evidence. [13] The Respondents also attacked the reliability of the testimony of Dr. Hunter and Dr. Malcolm, on the basis that they were poorly apprised of the circumstances before me. They also argued, understandably, that Dr. Kaplan was in a better position to provide an informed opinion as to the Complainant’s behaviour on the witness stand. I think there is some merit to these submissions, which may affect the weight of the testimony but does not negate it. I think it is important, in this context, to appreciate that the Respondents have the burden of satisfying me that the Complainant is incapable of testifying. There is no obligation on the Complainant to prove any positive assertion of fact. The evidence that she called on the voir dire was only called to offset the evidence of the Respondents and the experts were not tendered to prove her competence. [14] I am left with a disagreement between the experts as to the exact nature of the situation that confronts me. I do not propose to enter into the details of this disagreement, though there was a more specific dispute as to what occurred when she began screaming. Dr. Kaplan was of the view that the Complainant was rapidly decompensating. This terminology was the subject of some discussion. The experts on the other side were more inclined to believe that she had experienced a flashback or abreaction, in which she was reliving the traumatic events in question. There was also a suggestion that she was dissociating. I do not propose to settle the dispute: whatever view is adopted, it is evident that the Complainant was not functioning rationally for the duration of the episode. [15] I cannot make a medical or psychological diagnosis, but there are many reasons to believe that she suffers from paranoia in some general sense. I was advised by Dr. Hunter and Dr. Malcolm that this could be a manifestation of the hypervigilance associated with Post Traumatic Stress Disorder. I accept that that she is liable to dissociate on the witness stand and may be in danger of losing contact with reality. She does not trust counsel, has difficulty restraining her emotions, and often loses her way on the witness stand. Some of this must be attributed to the fact that the allegations before me are extremely personal and would be difficult for any litigant. Dr. Hunter testified that Ms. Day had an underlying vulnerability that makes them all the more trying for someone in her position. All of this presents a challenge for the conduct of the inquiry. IV. THE LEGAL BASIS OF THE APPLICATION [16] The cases hold that it is the business of a judge to decide whether a witness is capable of testifying. It is the business of the jury to weigh the evidence. See: R. Harbuz [1979] 2 W.W.R. 105 and Steinberg v. The King (1931) 56 C.C.C. 9 (S.C.C.). As a result, the question should be dealt with at the earliest possible opportunity, in order to avoid the possibility of a mistrial. These concerns do not arise in the situation before me. The caselaw recognizes, moreover, that the question can be considered at a later point, if concerns arise during the course of a witness’ testimony. [17] The law operates on the presumption that a witness has the capacity to testify. This does not require advanced abilities. The same observation can be applied to the question whether a party is capable of conducting its case, which only requires an ability to make basic personal decisions. The Respondents have accepted that they have an obligation to demonstrate, presumably on a balance of probabilities, that the Complainant is incapable of testifying. They rely principally on R. v. Hawke (1975) 7 O.R. (2d) 145 (Ont. C.A.), which is instructive on the general issue. They have also referred me to Sopinka’s Law of Evidence in Canada (2d), at §13.10 et. seq., which provides a very brief account of the law. [18] The court in Hawke uses the antique and now unsettling language of Wigmore, at §i492, in holding that a witness is only disqualified from testifying if the derangement or defect is such as to undermine the witness’ ability to give trustworthy evidence on the specific subject of the testimony. The fact that the Complainant may have a psychological condition or paranoid personality disorder, or may be suffering from Post Traumatic Stress Disorder, does not prevent her from testifying. I do not know if a test has been enunciated in the caselaw, but the question is whether a trier of fact can properly and safely consider the evidence, in making a determination of the facts. The use of the word trustworthy is easily misinterpreted and the issue is not whether her testimony should be believed. It is whether it is capable of being believed. [19] I feel obliged to add that my primary duty is to protect the integrity of the legal process. Although witnesses may occasionally break down, emotionally, there is a certain level of probity that is necessary to conduct a fair hearing. The legal and evidentiary process calls for a relatively calm and dispassionate assessment of the facts in a given case, and the purpose of the hearing must be respected. I have a fundamental obligation to maintain the level of decorum in the hearing that is necessary to maintain the integrity of the process. This is an indispensable attribute of the legal system and guarantees the justice and fairness of the proceeding. [20] The trier of fact must also be able to follow and evaluate the testimony. It must be open to intelligent inspection. The evidence must be presented in some kind of logical and coherent manner, which is capable of rational construction. There may be additional concerns in the immediate case, which relate to the obligation of a tribunal to intervene when the process endangers the psychological well-being of the Complainant. This goes directly to the capacity of the Complainant to present her case, however, and is a secondary concern. V. THE COMPLAINANT’S ABILITY TO TESTIFY [21] The parties have come a considerable distance in discharging their burden to establish the Complainant is incapable of testifying. I have real misgivings about continuing, and doubts about whether the Complainant can participate in the hearing in a meaningful and informed manner. I am particularly concerned about whether she can deal with the rigours of cross-examination, which will have to be faced. I have allowed the Complainant considerable latitude in putting in her evidence-in-chief, but the Respondents are entitled to confront her with the details of the case in cross-examination and I see no way of sparing her from such an exercise. [22] Ms. Thayer submitted that Ms. Day exhibited a lack of understanding of the proceedings and made inaccurate statements of fact from the beginning of the hearing. She gave clear examples, in her estimation, of delusional thinking. There is no doubt that the Complainant’s ability to recall events accurately and testify has already been brought into question. Ms. Thayer submitted that there are two major issues that have repeatedly initiated inappropriate behaviour and breaks with reality. The first is the alleged harassment. The second is her mental well-being. The Respondents accept that Ms. Day can give accurate and even compelling evidence. But that ability deteriorates rapidly when she has to deal with the events at the heart of the case. As a result, her evidence becomes untrustworthy when she deals with the essential allegations of fact. [23] I share the concerns of counsel. It is manifest that the Complainant’s previous breakdown was triggered by her recounting of the details of her allegations. In spite of this, I am unwilling to stop the testimony at this point. It has not been established that she cannot provide a meaningful narrative of the events that led to the filing of the complaints. One of the features of the case is that it is the demands of the process that has created the conditions that led to the Complainant’s breakdown. The situation is not static and the real concern is that the process of testifying may precipitate a more pronounced and prolonged breakdown. I realize that the situation is perilous for the Complainant and that counsel are not happy with the possibility that she may have a more serious episode under the strain of their questioning. This is a matter of speculation, however, and I am not satisfied that we have reached the point where I can find that she is unable to testify. [24] The question of capacity only arises when the cognitive abilities of the witness are fundamentally impaired. The psychiatric testimony in Hawke, for example, established that the witness in question was hallucinating on the stand. She was also accompanied, in her mind, by a little girl called Delores. This companion was, in the words of the witness, at p. 160, supra, in my head telling me to say things that would put me in jail and get tommy off. I have evidence before me that the present complainant has at least been dissociating on the stand, and that she may be moving in and out of reality. There is evidence of psychotic episodes in the past. But there is nothing of these proportions in the situation that comes before me. [25] As I have indicated, the Respondents have also submitted that the Complainant’s psychological condition at the time when she was allegedly harassed renders her incapable of providing evidence that meets the necessary probative standard. This submission is premature, however, and relies upon a variety of factors, such as the diagnosis of her condition. Although the Complainant’s testimony comes with many imperfections, the Respondents have not established the evidentiary basis for such a finding. The evidence of Dr. Kaplan was contested by the other psychological witnesses and is at least open to argument. There may be reasons to be concerned with this aspect of the testimony, but the more immediate concern is with the Complainant’s present condition. [26] It became apparent during the voir dire that the experts have a different view as to the merits of the case. The experts for Ms. Day seem to believe that she was sexually harassed and feel that it is the sexual harassment that provided the traumatic event in the Post Traumatic Stress Disorder that her experts diagnosed. The position on the other side is equally stark, however: it is that Ms. Day suffered from a paranoid personality disorder and merely believed that she was being harassed. Her perceptions have no connection to reality, on this view, and were the product of a psychological disorder. If the latter view is adopted, and the test of the courts is adopted, her evidence is so inherently unreliable that it would be dangerous to put it before a jury. The problem is that this asks me to rule on the merits of the case, in deciding the questions put before me on the voir dire. [27] Although I do not believe that we have reached the point where I can intervene, I believe that the present situation needs to be monitored. If the testimony of the Complainant continues to deteriorate, or it becomes impossible to conduct a proper hearing, it may be necessary to return to the question of capacity. V. THE COMPLAINANT’S ABILITY TO PRESENT HER CASE [28] I have not been able to review the law with regard to the question whether the Complainant is capable of representing herself. The test may be whether she is capable of instructing counsel. This is not a decisive issue at this time, however, and I merely wish to address the concerns that the Respondents have raised with respect to the well-being of the Complainant. The experts who testified on the voir dire disagreed as to the long-term effect of Ms. Day’s participation in the hearing. Dr. Hunter and Dr. Malcolm felt that it was essential, psychologically, that Ms. Day have an opportunity to see the matter through to its logical end. This may be incidental to the purpose of a hearing. I nonetheless feel that Ms. Day has a fundamental right to present her case and that the therapeutic effect of doing so is a valid consideration, in examining the rights of a complainant. [29] I am not as convinced as Dr. Hunter and Dr. Malcolm as to the benefit of the Complainant’s participation in the hearing, and I share some of the concerns expressed by Dr. Kaplan. I do not believe, however, that it would be appropriate to intervene in the interests of the Complainant unless we reach a position where she becomes incompetent in the larger sense and cannot make decisions for herself. Up until that point, the Complainant is the only one who can decide what is in her best interests. She may make choices that run demonstrably against her interests. But that is true of anyone in society and it would be quite wrong, in my view, to treat her as a dependent. This goes directly to the legal question of dignity, which requires that tribunals and courts allow litigants to make their own decisions, however discomfiting that may be. [30] This is a matter of general policy. When I asked Ms. Day whether she was capable of proceeding, she was unequivocal. She feels that she can continue and advise me that she knows how to ask for help. As far as I can determine, she understands her obligations as a witness, is capable of communicating her thoughts and is generally grounded in reality. She also recognizes the need to ascertain whether her perceptions are accurate and well founded. She agreed, on my questioning, that she should not swear in the hearing room and that she is obliged to respect the other participants in the hearing. Whether she can live up to this is another matter. [31] The Complainant is a party to these proceedings and a finding of incapacity will probably deprive her of her right to have the complaint heard by the Tribunal. At this point, at least, I am not prepared to deprive her of that opportunity. The law of human rights is based on the dignity of the person, which requires that a tribunal respect the personal autonomy of those who come before it. This is a fundamental aspect of being a person and guarantees our freedoms. There are hazards in proceeding, and at some point, it may be necessary to intervene. But at this point, the Complainant has the ultimate responsibility for deciding whether she wishes to proceed. We have not reached the point where I can interfere with that decision. VI. RULING [32] I am accordingly of the view that the Complainant is capable of testifying at this point in time and can represent herself. I nevertheless have real concerns about whether she will be able to complete her case. In the circumstances, I think it is premature to rule on the application. It seems more appropriate to close the voir dire and return to the hearing, on the clear understanding that the matter may be reopened on application by the parties. [33] My reading of the law, such as it is, suggests that the evidence on the voir dire may be relevant on issues like credibility and should be applied to the hearing as a whole. I would, however, invite submissions from the parties on the matter. There is also an issue of accommodation that requires consideration. Dr. Paul Groarke OTTAWA, Ontario March 12, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NOS.: T627/1501 and T628/1601 STYLE OF CAUSE: Amanda Day v. Department of National Defence and Michael Hortie RULING OF THE TRIBUNAL DATED: March 12, 2003 APPEARANCES: Amanda Day On her own behalf Joyce Thayer For Department of National Defence J. David Houston For Michael Hortie

2003 CHRT 14

CHRT

Chopra v. Canada (Department of National Health and Welfare)

en

2003-03-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6879/index.do

2023-12-01

Chopra v. Canada (Department of National Health and Welfare) Collection Canadian Human Rights Tribunal Date 2003-03-17 Neutral citation 2003 CHRT 14 File number(s) T492/0998 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content Canadian Human Rights Tribunal CANADA Tribunal canadien des droits de la personne BETWEEN: SHIV CHOPRA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - DEPARTMENT OF NATIONAL HEALTH AND WELFARE Respondent RULING ON DISCLOSURE 2003 CHRT 14 MEMBER: Athanasios Hadjis 2003/03/17 [1] Upon request from the Complainant and the Commission for an Order regarding the production of certain information; [2] And upon noting the consent of the Respondent, Health Canada, to the production of certain information on the condition that it is included in an order of the Tribunal with certain stipulations, the Tribunal orders as follows: The Respondent, Health Canada, shall immediately produce to counsel for the Complainant and the Commission, the names of the individuals who have been identified at Tab 1 of Health Canada’s Disclosure Documents. The names may only be disclosed to the parties and the parties’ expert(s) and may only be used for the purposes of this hearing. The parties, their counsel, and their expert witnesses shall not use these names to contact the individuals. Furthermore, the parties, their counsel and their expert witnesses shall not disclose these names to any other individuals. The expert report of the Complainant or Commission shall be served on the parties no later than March 1, 2003, or five days after the production of the names, whichever is later. The expert report in reply of the Respondent, if any, shall be served on the parties 30 days after receipt of the expert report of the Complainant and Commission, subject to the right of the Respondent to request a further extension if necessary. In the event that there are any difficulties arising out of this Order, the parties may contact the Tribunal to make further submissions. Athanasios Hadjis OTTAWA, Ontario March 17, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T492/0998 STYLE OF CAUSE: Shiv Chopra v. Department of National Health and Welfare PLACE OF HEARING: Ottawa, Ontario ORDER OF THE TRIBUNAL DATED: March 17, 2003 APPEARANCES: David Yazbeck For the Complainant Peter Engelmann For the Canadian Human Rights Commission David Migicovsky For the Respondent

2003 CHRT 15

CHRT

Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec inc. v. Barbe

en

2003-04-02

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6887/index.do

2023-12-01

Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec inc. v. Barbe Collection Canadian Human Rights Tribunal Date 2003-04-02 Neutral citation 2003 CHRT 15 Decision-maker(s) Mactavish, Anne L. Decision type Ruling Decision Content Canadian Human Rights Tribunal CANADA Tribunal canadien des droits de la personne BETWEEN: GROUPE D’AIDE ET D’INFORMATION SUR LE HARCÈLEMENT SEXUEL AU TRAVAIL DE LA PROVINCE DE QUÉBEC INC. Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - JEAN BARBE Respondent RULING ON THE DISCLOSURE OF THE SETTLEMENT AGREEMENT AND ADDITION OF MME DES ROSIERS AS A PARTY 2003 CHRT 15 MEMBER: Anne L. Mactavish 2003/04/02 [1] The Groupe d’aide et d’information sur le harcèlement sexuel au travail de la province de Québec inc. (Groupe d’aide) filed a complaint alleging that Jean Barbe harassed Mireille Des Rosiers in the course of her employment with Société Radio-Canada. It is alleged that this harassment was based upon Mme Des Rosiers’ sex, her race and her national or ethnic origin. Groupe d’aide evidently filed a second complaint on Mme Des Rosiers’ behalf, this complaint against her employer, Société Radio-Canada. The complaint against Société Radio-Canada was settled while the matter was before the Canadian Human Rights Commission. The complaint against M. Barbe has now been referred to the Canadian Human Rights Tribunal for hearing. [2] M. Barbe seeks production of the Minutes of Settlement documenting the settlement between Groupe d’aide and Société Radio-Canada. Groupe d’aide, Radio-Canada and the Commission object to the disclosure of the settlement agreement, submitting that the agreement is privileged, and in any event, is not relevant to any of the matters in issue in the complaint against M. Barbe. [3] The Commission has also asked that Mme Des Rosiers be added as a complainant in this proceeding. [4] In a pre-hearing conference call, the Tribunal member assigned to hear this case offered the parties the option of having these motions determined by a different Tribunal member. I assume that this offer was made on the assumption that it could become necessary to review the contents of the settlement agreement. The Commission and Radio-Canada have both asked that the motions be heard by someone other than the member assigned to hear the case. M. Barbe says that this would be acceptable to him if the agreement is to be divulged in order to determine its relevance. [5] In the circumstances, the motions have been assigned to a different Tribunal member. I. M. BARBE’S REQUEST FOR PRODUCTION OF THE SETTLEMENT AGREEMENT [6] M. Barbe’s request raises two issues. The first is whether the settlement agreement involving Radio-Canada is relevant to this proceeding. The second is whether the agreement is subject to privilege. I will deal first with the issue of relevance, as if I were to conclude that the agreement is not relevant to this proceeding, it would be unnecessary to deal with the question of privilege. A. Is the Settlement Agreement Arguably Relevant to the Case Against M. Barbe? [7] M. Barbe contends that the settlement agreement between Groupe d’aide and Radio-Canada is relevant to issues of both liability and damages. Insofar as liability is concerned, M. Barbe says that both the complaint against Radio-Canada and the complaint against him arise out of the same factual situation in the workplace. M. Barbe was acting in the course of his employment in his dealings with Mme Des Rosiers. M. Barbe believes that the settlement agreement contemplated the withdrawal of the complaint against Radio-Canada and the complaint against M. Barbe. The basis for this belief has not, however, been disclosed to the Tribunal. [8] Having forfeited her rights as against Radio-Canada and M. Barbe, M. Barbe says, Mme Des Rosiers no longer has the right to pursue him in this case. It follows that Groupe d’aide cannot pursue the case on Mme Des Rosiers’ behalf, depriving the Tribunal of jurisdiction in relation to this complaint. Any confidentiality provision in the settlement agreement cannot operate to prevent disclosure when disclosure is required to determine if the Tribunal has jurisdiction to hear the case. [9] Insofar as the question of damages is concerned, M. Barbe says that any monies received by Mme Des Rosiers from Radio-Canada would have to be taken into account by the Tribunal in its assessment of damages against M. Barbe, so as to prevent any double recovery by Mme Des Rosiers. [10] The Canadian Human Rights Commission submits that the complaint against M. Barbe is separate from the complaint against Radio-Canada. The remedies sought against M. Barbe are distinct from those for which Radio-Canada could be liable. As a result, the settlement with Radio‑Canada has no relevance to the case against M. Barbe. The Commission further contends that it does not accord with common sense and fairness that a settlement between Groupe d’aide and Radio-Canada could allow M. Barbe to avoid responsibility. [11] With respect to the question of damages, the Commission says that the only damages to which Mme Des Rosiers could be entitled are those for which she has not already received compensation. The Commission submits that there is no issue of double recovery in relation to non‑pecuniary damages, citing the decision of the Ontario Board of Inquiry in Ghosh v. Domglas Inc. (No. 2), as authority for the proposition that separate awards for non-pecuniary damages may be made against different respondents. [12] Radio-Canada submits that M. Barbe has failed to show how the agreement is relevant to the issues in this case. According to Radio-Canada, the settlement goes beyond the human rights complaint filed against it, but also resolves litigation involving Mme Des Rosiers, Radio-Canada and Mme Des Rosiers’ union. [13] Questions relating to damages will only arise later in the proceedings, Radio-Canada says, and then only if the complaint against M. Barbe is substantiated. As a result, Radio-Canada submits that the issue of disclosure should be deferred until damages are being addressed. [14] Groupe d’aide states that the agreement in issue is between Mme Des Rosiers and Radio‑Canada. According to Groupe d’aide, separate causes of action have been asserted against Radio-Canada and M. Barbe. As Mme Des Rosiers’ employer, Radio-Canada’s liability is for acts of harassment taking place in the workplace, whereas M. Barbe is liable for his own conduct. [15] Groupe d’aide says that M. Barbe should not be able to rely on the settlement between Mme Des Rosiers and Radio-Canada to let him off the hook. Rather, M. Barbe has to take responsibility for his actions and accept the consequences. II. ANALYSIS [16] I am satisfied that the settlement agreement is arguably relevant to issues of both liability and damages. With respect to the issue of liability, the scope of any release that may have been granted by either Groupe d’aide or Mme Des Rosiers seems to me to be potentially relevant to the issue of M. Barbe’s liability. Specifically, the question is whether employees, agents or servants of Radio-Canada were released by or on behalf of Mme Des Rosiers or by Groupe d’aide. [17] Insofar as the question of damages is concerned, I am satisfied that the settlement with Radio-Canada creates the potential for double recovery by Mme Des Rosiers. In both its questionnaire and in its pre-hearing disclosure, the Commission indicates that it may be seeking to recover wages that Mme Des Rosiers may have lost as a consequence of M. Barbe’s alleged actions. Clearly, any monies that Mme Des Rosiers may have already received from Radio-Canada on account of lost wages would have to be taken into account in fashioning a remedy against M. Barbe, so as to prevent double recovery. [18] With respect to the claim for non-pecuniary damages, the question of whether an award of non-pecuniary damages paid by one respondent should be taken into account in granting a similar remedy against a different respondent has arisen in several recent cases. In contrast to the position taken by Commission counsel in this case, the Tribunal’s decision in Woiden et al. v. Lynn indicates that counsel for the Commission took the opposite position in that case. In Woiden, the Commission submitted that any payment on account of non-pecuniary damages by an employer would have to be factored into an award against the harasser himself. The Tribunal’s assessment of damages proceeded on this basis. Similarly, in Bushey v. Sharma , the Tribunal noted that such a payment by an employer could be relevant in certain circumstances. As was previously noted, in Ghosh, the Ontario Board of Inquiry held that separate awards for non-pecuniary damages may be made against different respondents. [19] I do not have to determine whether an award of non-pecuniary damages paid by one respondent should be taken into account in granting a similar remedy against a different respondent at this stage in the proceedings. Suffice it to say that I am satisfied that the quantum of any payment made by Radio-Canada to Mme Des Rosiers for her non-pecuniary losses is arguably relevant to the assessment of the claim for non-pecuniary damages being asserted against M. Barbe. [20] Having concluded that aspects of the settlement agreement relating to the complaint against Radio-Canada are arguably relevant to the claim being asserted against M. Barbe, the issue is then whether the agreement is privileged, and thus protected from disclosure. A. Is the Settlement Agreement Privileged? [21] The Commission contends that the settlement was arrived at through the Commission’s conciliation process, and is thus privileged. According to the Commission, privilege attaches not just to settlement negotiations, but to the settlement agreement itself. The agreement further contains a confidentiality clause, reflecting the parties’ expectation that the agreement would remain private. [22] The Commission states that the agreement in this case does not fall within one of the recognized exceptions to the settlement privilege. According to the Commission, questions relating to the interpretation of the agreement can only arise as between the parties to the agreement itself, and not in relation to a stranger to the agreement, such as M. Barbe. Further, the hearing of the complaint against M. Barbe does not raise issues relating to the interpretation of the agreement, and does not, therefore, create an exceptional situation. [23] The Commission further notes that the settlement agreements in issue in Woiden and Bushey were not arrived at in the course of the Commission’s conciliation process, and that these decisions are therefore distinguishable. [24] Radio-Canada submits that the parties expected that the agreement would remain confidential, primarily to protect the interests of Radio-Canada. If the agreement were disclosed, Radio-Canada says, its rights would be affected. Radio-Canada does not elaborate on what the effect of disclosure would be insofar as Radio-Canada’s rights are concerned. [25] Groupe d’aide has not made any submissions on the issue of privilege. [26] M. Barbe states that the opposing parties have not satisfied the burden on them to establish that the settlement agreement is indeed privileged. Even if the agreement is privileged, M. Barbe says that the privilege attaching to settlements has its limits, citing the exceptions referred to in Sopinka. He cites the Tribunal’s decision in Bushey as authority for the proposition that the privilege relates to settlement negotiations, and not to the settlement agreement. While acknowledging the public policy underlying the principle that settlement negotiations be kept confidential, M. Barbe argues that a party should not be able to rely on a confidentiality provision in a settlement agreement to allow it to pursue a third party, in violation of the terms of the agreement. [27] M. Barbe submits that the jurisprudence establishes that the privilege can be set aside where it can be shown that the document is arguably relevant to a party’s case. He has not, however, cited any authority in support of this contention. [28] Finally, M. Barbe states that the prejudice to him if the agreement is not disclosed outweighs that which will be suffered by the other parties if the agreement is not kept confidential. B. Analysis [29] M. Barbe’s request requires me to balance two important and competing policy considerations: that is, the public interest in promoting the settlement of human rights disputes and the fairness requirement that parties to human rights litigation have a full opportunity to advance their positions. [30] There are two provisions of the Canadian Human Rights Act that must be considered in determining how these competing interests are to be resolved. Subsection 47(3) provides that: Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information. Subsection 50 (4) states: The member or panel may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence. [31] I propose to consider first the more general question of whether a settlement agreement is privileged as against a third party in circumstances such as those that arise here. I will then consider the effect of subsection 47(3) of the Act, as it relates to settlement agreements arrived at through the Commission conciliation process. [32] Insofar as the general issue of settlement privilege is concerned, the law is clear that settlement negotiations are subject to privilege, and may only be disclosed in limited circumstances. There is a compelling public policy basis for this rule: parties should be encouraged to try to resolve their differences through negotiation, and should not be inhibited in their efforts by fear that admissions or concessions made in the course of negotiations could be used against them, in the event that the negotiations do not result in the resolution of the dispute. [33] While the law relating to the privileged nature of settlement negotiations is relatively clear, the law relating to concluded settlement agreements is less clear. Much of the discussion in the jurisprudence centres around the question of whether settlement negotiations lose their privileged character when they result in an agreement. Sopinka suggests that where settlement negotiations result in an agreement, evidence with respect to these negotiations may be tendered in proof of the settlement, where the existence or interpretation of the agreement is in issue. As my colleague noted in Bushey, the exceptions cited by Sopinka relate to the disclosure of settlement negotiations in specific situations. No explicit reference is made to the issue of the discoverability of settlement agreements, nor does Sopinka suggest that settlement agreements may only be disclosed in exceptional circumstances. [34] There is no unanimity in the jurisprudence on this point. In Derco Industries Ltd. v. A.R. Grimwood Ltd., the British Columbia Supreme Court allowed the disclosure to a plaintiff of settlement documents (including documents relating to the negotiations, as well as the settlement agreement itself) where an agreement had been entered into by several defendants in a construction dispute. In ordering that the documents be disclosed, the Court noted that the balancing of competing interests may differ when the request for disclosure comes from a stranger to the negotiations, whose interests may be affected by the settlement. This decision was subsequently affirmed by the British Columbia Court of Appeal. However, the Court of Appeal expressly declined to offer an opinion on whether a stranger to the negotiations is in a different position to the parties themselves. [35] The British Columbia Court of Appeal revisited this issue in Middelkamp v. Fraser Valley Real Estate Board. At issue in Middelkamp was the production of documents exchanged during settlement negotiations that had resulted in a consent order being made. In finding that the documents were privileged, and thus not subject to production, the Court reiterated that without prejudice documents communicated in the course of settlement negotiations were subject to a class privilege, whether or not an agreement was reached. In coming to this conclusion, the Court held that Derco was wrongly decided. It should be noted, however, that the issue in Middelkamp was the discoverability of documents exchanged during settlement negotiations. The discoverability of the settlement agreement itself was not before the Court. [36] This distinction was noted by the Alberta Court of Queen’s Bench in Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co., which considered whether a stranger to unsuccessful settlement negotiations could obtain information regarding the negotiations during examinations for discovery. In concluding that a stranger to the negotiations was not entitled to disclosure of the contents of the failed negotiations, the Court distinguished Derco on the basis that in Derco, there was a concluded settlement. [37] The British Columbia Court of Appeal recently had cause to consider the issue of the discoverability of a settlement agreement in British Columbia Children’s Hospital v. Air Products Canada Ltd., a case involving a settlement between a plaintiff and some of the defendants in a multi-party law suit. The Court concluded that its earlier decision in Middelkamp was binding authority for the proposition that settlement agreements were privileged, and thus immune from disclosure. Notwithstanding this conclusion, however, it appears that the Court did not consider this privilege to be absolute, as the Court went on to affirm the portion of the Motions Judge’s ruling requiring disclosure of any provision in the settlement agreement that could be construed as a release, on the basis that it was potentially relevant to the matters still in issue in the litigation. Thus it appears that disclosure can be ordered in situations where the settlement agreement is potentially relevant to issues still alive in ongoing litigation. [38] It should be recalled that it is the provisions in the settlement agreement between Groupe D’aide and Radio-Canada that could be construed as a release of M. Barbe that I have found to be arguably relevant to the issue of liability in this case. [39] The House of Lords considered the discoverability of correspondence leading up to a concluded settlement agreement in Rush & Tompkins Ltd. v. Greater London Council and Another. The Court concluded that without prejudice correspondence sent in the course of settlement negotiations remain privileged, even if an agreement is concluded. The correspondence was thus inadmissible in subsequent litigation involving the same subject matter, whether it involved the same or different parties. In arriving at this conclusion, the Court noted that allowing admissions made in an effort to effect a compromise to be used in subsequent litigation would serve to discourage efforts to settle. As a result, the Court concluded that settlement negotiations should not be disclosed, whether or not the negotiations subsequently led to an agreement. Once again, however, the Court was concerned with the production of correspondence leading up to the settlement, as opposed to the settlement agreement itself. [40] The English Court of Appeal subsequently had occasion to consider the application of the House of Lords’ decision in Rush & Tompkins to a case where a settlement agreement had been concluded. In Gnitrow Ltd. v. Cape PLC., the Court stayed a claim against a defendant, until such time as the plaintiff disclosed the terms of an agreement entered into between the plaintiff and other parties. Disclosure was required on the grounds that there was a relationship between what the plaintiff was claiming from the defendant, and the monies that the plaintiff had been required to pay to the other parties. In making this order, the Court indicated that each case where access to a settlement agreement was being sought should be considered in light of the specific circumstances in issue. [41] In this case, I have found that there is a potential relationship between the monies that the complainant or Mme Des Rosiers have received from Radio-Canada and the damages claimed against M. Barbe. [42] In determining whether a settlement agreement is privileged, and thus exempt from disclosure, it is helpful to keep in mind the public policy reason underlying the recognition of a settlement privilege. As Sopinka noted, in considering the privilege attached to settlement negotiations, ... the exclusionary role (sic) was meant to conceal an offer of settlement only if an attempt was made to establish it as evidence of liability or a weak cause of action, not when it is used for other purposes. [43] Keeping this principle in mind, it seems that while settlement negotiations are privileged, whether or not an agreement is ultimately reached, the settlement agreement itself is not absolutely privileged, and may be disclosed when it relates to live issues in ongoing litigation. As long as the agreement has potential relevance, other than as an admission against interest, and is not being used simply to establish one party’s liability or the weakness of that party’s position, the privilege does not bar production. [44] Having concluded that the settlement agreement is not subject to an absolute privilege, and may be disclosed when it relates to live issues in ongoing litigation, subsection 50(4) of the Canadian Human Rights Act is no longer relevant. What remains to be determined is whether the fact that the agreement was arrived at through the auspices of the Commission’s conciliation process affects the discoverability of the agreement. [45] The only jurisprudence of which I am aware that considers this provision in the legislation is the decision of the Federal Court of Appeal in Paul. At issue in Paul was the propriety of information relating to failed attempts at conciliation, including an offer of settlement, being provided to the Commissioners of the Canadian Human Rights Commission, for consideration by the Commissioners in deciding how to dispose of the case. [46] The Court concluded that subsection 47(3) contained an absolute prohibition against the disclosure of any information received by the conciliator. The Court noted that such a prohibition was consistent with the common law settlement privilege relating to settlement negotiations, and was all the more necessary in light of the mandatory nature of Commission conciliation. [47] As previously noted, Paul deals with disclosure of settlement negotiations. The Court was not called upon to determine whether a settlement agreement negotiated through the conciliation process could be disclosed. The Court did note, in passing, that Section 48 of the Act requires Commission approval of settlements reached prior to the commencement of hearings. In the Court’s view, a request for Commission approval is the consent to disclosure of the terms of the settlement. This obiter statement could be interpreted to mean that subsection 47(3) requires that consent be provided for the disclosure of conciliated settlement agreements. [48] However, regard must be had to the wording of subsection 47(3) itself. The French version of the subsection states that Les renseignements recueillis par le conciliateur sont confidentiels ..., whereas the English version refers to information received by the conciliator ... in the course of attempting to reach a settlement .... Thus the English version arguably relates only to communications made during negotiations leading up to a settlement, and not to the settlement agreement itself. Such an interpretation would be consistent with the policy considerations discussed earlier in this ruling, in that any concessions or admissions made by a party to a conciliation could not be used against them, once a settlement was concluded. [49] For these reasons I am of the view that the settlement agreement is not protected by either a statutory or common law privilege. C. Should the Agreement be Produced in its Entirety? [50] Even though I have concluded that the settlement agreement is not protected by either a statutory or common law privilege, it is not disputed that the agreement was entered into by the parties in the expectation that it would remain confidential. In these circumstances, I am of the view that the agreement should not be disclosed beyond what is necessary to ensure M. Barbe the opportunity to mount a full answer and defense to the complaint against him. As a result, I am imposing certain terms on the disclosure. [51] In order to ensure that the confidentiality of the agreement is not breached more than is absolutely necessary to provide a fair hearing, I am directing the Commission and Groupe d’aide to deliver a copy of the agreement to the Tribunal Registry within five days of this decision, in order that I may review it, and ensure that only the arguably relevant provisions are disclosed to M. Barbe. [52] What may be arguably relevant at this point will depend on whether the issues of liability and damages are dealt with at the same time. Based upon the information before me, it appears that only a portion of the agreement will likely relate to the issue of liability. Other provisions could be relevant to the assessment of damages. At this point, the issues of liability and damages have not been bifurcated. I propose to review the document, and release to M. Barbe those portions that are arguably relevant to issues of both liability and damages, unless a request is received from any of the parties for a bifurcation of the hearing. Any such request must be received by the Tribunal within seven days of this decision. [53] If a request for bifurcation is received, only those provisions of the agreement that are arguably relevant to the issue of liability will be disclosed, pending a determination of the request for bifurcation. In the event that the member assigned to hear this case decides to bifurcate the hearing, provisions of the agreement that are arguably relevant only to the assessment of damages will not be disclosed at this time. [54] In the event that the complaint against M. Barbe is substantiated, I will review the agreement and direct that those provisions that are arguably relevant to the issue of damages be disclosed. [55] Any provisions of the settlement agreement disclosed to M. Barbe are disclosed upon the following additional terms: The agreement shall only be used by M. Barbe and his counsel for the purposes of the hearing into the complaint against M. Barbe; and No copies are to be made of any of the provisions of the settlement agreement that are disclosed. Within thirty days of the conclusion of the hearing, counsel for M. Barbe shall return any settlement documentation received by him to the Commission, unless an application for judicial review of the Tribunal’s decision has been filed. [56] It should be noted that this decision relates only to the question of the production of the settlement agreement. Its ultimate admissibility will have to be determined by the member hearing the case. [57] Counsel for Radio-Canada asked that I indicate to the parties that no mention will be made of the terms of the settlement in the Tribunal’s decision. It is not up to me to commit the member who will be hearing the merits of this case to say, or not say, something in his decision. Indeed, it would be highly inappropriate for me to do so. If the parties have any concerns in this regard, they may raise these concerns with the member hearing the case. Similarly, any concerns with respect to sealing the record should be addressed in the course of the hearing. III. THE ADDITION OF MME DES ROSIERS AS A COMPLAINANT [58] The Commission has asked that the style of cause in this proceeding be amended to add Mme. Des Rosiers as a complainant. According to the Commission, Mme. Des Rosiers is the person directly aggrieved in this case, and the party to whose benefit any remedies should accrue. The addition of Mme. Des Rosiers as a complainant would avoid any ambiguity in the proceeding, the Commission says, and would not result in any prejudice to the respondent. [59] M. Barbe objects to the request, submitting that Mme. Des Rosiers no longer has any interest in the case. [60] I assume that M. Barbe’s submission is based upon what he believes is contained in the settlement agreement between Mme. Des Rosiers and Radio-Canada. At this point, however, there is no evidence before me to suggest that Mme. Des Rosiers no longer has an interest in the case. [61] I am not prepared to grant the Commission’s request at this point. This case is somewhat unusual, in that the complaint was filed by an organization on behalf of the individual directly implicated in the case. There is no information before me as to why Mme. Des Rosiers did not file the complaint herself in the first place, and I am thus unable to determine whether it would be appropriate to allow her to join the case at this late date. [62] The Commission’s request also presumes that the Tribunal has the jurisdiction to add a complainant after the case has gone through the Commission process, in such circumstances. [63] Accordingly, I am adjourning the Commission’s request to add Mme. Des Rosiers as a complainant, to be dealt with by the member assigned to hear this case, upon the filing of a more complete evidentiary record. Anne L. Mactavish OTTAWA, Ontario April 2, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T736/4102 STYLE OF CAUSE: Groupe d’aide et d’information sur le harcèlement sexuel au travail de la province de Québec inc. v. Jean Barbe RULING OF THE TRIBUNAL DATED: April 2, 2003 APPEARANCES: Linda Smith For Groupe d’aide et d’information sur le harcèlement sexuel au travail de la province de Québec inc. and Mireille Des Rosiers Giacomo Vigna For the Canadian Human Rights Commission Katty Duranleau For Jean Barbe Thierry Bériault For Société Radio-Canada (1992), 17 C.H.R.R. D/216 It should be noted that in an earlier case conference, the Commission indicated that the agreement was entered into by Mme. Des Rosiers, Radio-Canada and Groupe d’aide. (2002) 43 C.H.R.R. D/296 2003 CHRT 5 Sopinka, Lederman and Bryant, The Law of Evidence in Canada, (2d Ed.) at para. 14.220 Ibid. Subsection 50 (1), Canadian Human Rights Act Sopinka, at paras. 14.201-14.224 Canadian Broadcasting Corporation v. Paul, [2001] F.C.J. No. 542, at para. 26 (C.A.) [1984] B.C.J. No. 1979 (1992) 71 B.C.L.R. (2d) 276 [1990] A.J. No. 232. Aff’d [1990] A.J. No. 573, [1990] 5 W.W.R. 377 [2003] B.C.J. No. 591 [1988] 3 All E.R. 737 The Federal Court of Appeal came to a similar conclusion in Bertram v. Her Majesty the Queen, [1996] 1 F.C. 756 (C.A.), stating that there is no doubt that an exclusionary rule or privilege applies to protect evidence being given of negotiations leading to settlement. Once again, however, the Court’s comments related to the negotiations, and not the settlement agreement. The Trial Division of the Federal Court came to a similar conclusion in Almecon Industries Ltd. v. Anchortek Ltd., [2000] F.C.J. No. 2008, which dealt with the discoverability of draft minutes of settlement. [2000] 1 W.L.R. 2327 Sopinka, supra., at para. 14.220 Mueller Canada Inc. v. State Contractors Inc., (1989), 71 O.R. (2d) 397. See also Hudson Bay Mining and Smelting Co. v. Fluor Daniel Wright, [1997] M.J. No. 398 (Man. Q.B.), at para. 37, and Western Canadian Place Ltd. v. Con-Force Products Ltd., [1998] A.J. No. 1295 (Alta. Q.B.) In resolving this ambiguity, reference should be had to the admonition of the Supreme Court of Canada in Ocean Port Hotel Ltd. v. British Columbia, (2001) 204 D.L.R. (4th) 33, that when confronted with ambiguous legislation, it should be inferred that Parliament’s intent was to conform with principles of natural justice (at para. 21).

2003 CHRT 16

CHRT

Day v. Canada (Department of National Defence)

en

2003-04-04

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6618/index.do

2023-12-01

Day v. Canada (Department of National Defence) Collection Canadian Human Rights Tribunal Date 2003-04-04 Neutral citation 2003 CHRT 16 Decision-maker(s) Groake, Paul Dr. Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: AMANDA DAY Complainant - and - DEPARTMENT OF NATIONAL DEFENCE AND MICHAEL HORTIE Respondents REASONS FOR DECISION MEMBER: Dr. Paul Groarke 2003 CHRT 16 2003/04/04 TABLE OF CONTENTS I. IS THE COMPLAINANT CAPABLE OF TESTIFYING? II. IS THE COMPLAINANT CAPABLE OF PROSECUTING THE CASE? III. DISMISSAL IV. BAN ON PUBLICATION V. PRIVATE RECORDS VI. A FINAL REMARK VII. RULING [1] The following is my second ruling on the question of competence, which originally arose in the course of the Complainant’s evidence-in-chief.I have attached the previous ruling as AppendixA.In the course of that ruling, I expressed misgivings as to the Complainant’s ability to testify and stated that her participation in the process should be monitored.A number of additional concerns arose during cross-examination.I subsequently allowed the Respondents to renew their application for a finding that the Complainant was not capable of testifying. I. IS THE COMPLAINANT CAPABLE OF TESTIFYING? [2] The original application was renewed on the basis of a number of remarks that were made during the early stages of cross-examination.The Respondents have provided me with part of the recent transcript, which has been marked as an exhibit in the voir dire.Counsel have highlighted the passages that concern them and submit that it would be a mistake to continue. They have taken the position from the outset of the hearing that the Complainant’s allegations are the product of a psychological disorder. [3] I have attached some of the more telling references in Appendix B, along with an excerpt in which the Complainant describes her condition during the period when she was allegedly harassed.The most troubling evidence is that the Complainant is convinced that other people have implanted thoughts or phrases in her mind. She believes that this was happening during the period of the alleged harassment.It has also happened more recently.The general idea appears to be that people have implanted subliminal suggestions in her mind, which she is compelled to obey.The Complainant accordingly believes that she has been programmed to act in certain ways. [4] This includes the making of statements that have no obvious connection to the circumstances in which they have been said.The Complainant has testified that she said “I see Helter Skelter” when she saw a picture of a naked woman in the dockyard.She states that she made this statement because someone by the name of Robin had said that she would do so, years before the complaint arose.She was also programmed to say “I have AIDS”, when she was found to be HIV negative, and “oink, oink, get it” in circumstances that can only be described as bizarre.The same person, who she referred to as “Rotten Robin”, also told her that she was to turn herself into a mental institution at some point in time. The story is confused, but this is related to the fact that she agreed to help someone who was a prostitute. [5] The problem is that these kinds of remarks extend to the subject matter of the complaints before me.The Complainant testified that at one point, at least, she believed that God was telling her to make the complaint.She is also convinced that the individual Respondent programmed her to hear certain frequencies and play a popular song on the guitar, without having to learn it. Some of her remarks are less benign.The Complainant stated on two occasions that the Respondent may have programmed her to harm herself or commit suicide.She also stated that the Respondent has been programmed.Since she is aware of this programming, she feels that she is in the best position to cross-examine him. [6] This only sets out the some of the more troubling aspects of the testimony.The Respondents have expressed other concerns. There is evidence of her dissociating on the stand and losing contact with reality, whatever view is taken of her psychological state.Her conduct on and off the witness stand has been erratic and emotional.There are any number of troubling incidents before me, all of which attest to the difficulty that the Complainant has experienced in the hearing.Some of this behaviour is described in my earlier ruling on competence. [7] The Respondents have submitted that the Complainant cannot meet the criteria set out by Dubin, J.A. in R. v. Hawke (1975) 7 O.R. (2d) 145.There seem to be two branches to the test in the jurisprudence.A witness cannot give evidence if the Tribunal is satisfied that either 1) her current psychological state, or 2) her psychological state at the time of the events in question prevents her from giving testimony that could be relied upon by a reasonable trier of fact.This is ultimately a legal and not a psychological question.It is the Tribunal that is in the best position to judge the probative quality of the evidence before it.The most significant consideration in a case like the one before me will normally be the conduct of the witness on the stand. [8] I permitted the Complainant to give her evidence in chief, in spite of the difficulties that she was experiencing on the stand. Some of her evidence was intelligible and reasonably lucid.Some of her more recent testimony, however, has no apparent basis in reality.Although the Complainant has stated that she “reality tests” herself, she is unwilling to consider the possibility that the disordered perceptions that I have described are the product of a psychological condition.In the words of counsel, she will not accept any reality other than her own. [9] The Complainant is unable to discern the difference between her disordered perceptions and reality.This inability goes back to the period of the alleged harassment.The problem lies in separating the more reliable parts of the Complainant’s evidence from the less reliable.This is exactly the kind of situation, it seems to me, where a judge would be forced to declare a mistrial, if this kind of evidence went before a jury.There comes a point where a Tribunal can no longer ascertain the accuracy of a witness’ testimony. [10] I believe that the circumstances before me are more than enough to set aside the usual presumption that a witness is competent.I am satisfied on a balance of probabilities that the Complainant’s testimony fails both branches of the legal test.It would be manifestly unreasonable to make decisions on the basis of her testimony. I do not believe that a trier of fact could safely rely on her evidence, in rendering a decision against the Respondents.It follows that the testimony of the Complainant is not admissible in the proceedings before me. II. IS THE COMPLAINANT CAPABLE OF PROSECUTING THE CASE? [11] I think it is only fair to say that the Complainant’s participation in the present process is fraught with difficulty. The Respondents have argued that she does not have the psychological capacity to prosecute the case.Counsel was unable to provide me with any caselaw on the subject and I have already indicated on the record that this kind of finding comes uncomfortably close to a finding that an individual is not competent in the more general legal sense.This goes well beyond my role.I have neither the authority nor the inclination to express an opinion on the question whether the Complainant is competent in the larger sense.I am nevertheless satisfied, in spite of my concerns, that I have the ancillary authority to determine whether she is capable of participating in the hearing. [12] It is important to be cautious.As I understand it, the law only requires that a person instructing counsel have a basic grasp of the decisions that need to be made in the course of the legal process.I have alreadysuggested to counsel that a Tribunal can only intervene in the clearest cases, when a party loses the ability to make the most fundamental decisions regarding the management of the case.The question whether a party is capable of participating in a legal proceeding is usually decided by determining whether she is capable of instructing counsel.It is the ability and condition of the Complainant that must be examined in this context, rather than the difficulty of the proceedings.Individuals have the right to represent themselves, even where they have little of the training that would normally be required, in dealing with the issues before a Tribunal. [13] The real problem before me is a practical one, since it is the Complainant that has carriage of the case.I realize that the case before me would be difficult for any Complainant, particularly without the advantage of counsel.The Complainant’s difficulties go beyond such ordinary concerns, however.The Complainant has difficulty restraining herself when her emotions are engaged and has often been disruptive.I do not believe that she has the emotional and psychological resources to participate normally in the process, whatever accommodation I can give her.It would be a mistake to be too rigid in these matters, but the decorum and integrity of the process need to be respected.This has a real bearing on the fairness of the process. [14] A party cannot avail itself of the benefits of the legal process and reject the authority of the body with the responsibility for deciding the case.The Complainant has been disruptive and apparently feels that there is a concerted effort to deprive her of her rights.She is quick to interrupt counsel and accuse the other parties of misusing the process.When she realized that I was likely to rule against her on the present application, she turned her attention to the Tribunal.Rather than appear for the last day of the hearing, she took the view, in correspondence with the Registry Officer, that the Tribunal had set out to publicly humiliate her.This can only be taken as another manifestation of her psychological condition. Although the Complainant often exhibits the indicia of an ordinary person, there is an irrational side to her behaviour which continually interferes with her ability to participate in the process. [15] Similar issues have been dealt with in the criminal courts, though there are significant differences between the two processes. The judgement of the Supreme Court in R. v. Whittle [1994] 2 S.C.R. 914 deals incidentally with the fitness of an accused to stand trial.It holds, at p. 933, that an accused only requires a “limited cognitive capacity to understand the process”.Although this sets the threshold very low, it accepts the relevant provision in the Criminal Code, which poses the question whether the accused is able to “conduct a defence” or instruct counsel to do so.The judgement suggests that a party must be able to make a choice, and I would go further and state that it must be a meaningful choice.A party whose choices are entirely arbitrary is not capable of participating in the legal process. [16] As a general principle, it seems unlikely that a person who is incapable of testifying because she suffers from an existing disorder would be able to make the kind of decisions necessary to instruct counsel.I say this because a person who testifies as a witness need only provide a trustworthy narrative of select events.This does not require an ability to make decisions regarding the conduct of the case.I cannot say whether the decision in Whittle throws this into question.It nevertheless seems to me that a party must have some appreciation of the consequences of the decisions that need to be made in prosecuting the matter.In the present case, for example, the Complainant requested an order that the public guardian divulge its records regarding a recent application to have her committed.She appeared unable, however, to recognize that such an application might disclose information that would assist the Respondents, either on the question of competence or the merits of the case. [17] The Complainant has already found it difficult to give her evidence-in-chief.We have only begun her cross-examination, after a month of hearing, and have not come anywhere near the material allegations.I do not want to speculate as to the difficulties that she will experience when counsel endeavours to test her evidence regarding the rather lurid sexual allegations that have come before me.I do not believe that it is feasible to embark on such an endeavour, however, and believe that it would be a mistake to take the process any further.Nor do I believe that the Complainant is capable of cross-examining the individual Respondent in a proper manner and feel obliged to say that there are real dangers in allowing her to do so.I am concerned that she has other reasons for seeking such a confrontation, which have more to do with her psychological fixations than the purposes of the hearing process. [18] In the circumstances, I am satisfied on a balance of probabilities that the Complainant is incapable of participating in the process or instructing counsel to represent her interests.I do not believe that she can make the decisions that are required in prosecuting the case.I am also concerned that her failure to make meaningful decisions will lead her to act in a way that causes her serious and irreparable harm, legally, emotionally and psychologically.I think the report of Dr. Kaplan, which was entered as an exhibit in the voir dire, deserves serious consideration in this context. III. DISMISSAL [19] There is no way of going forward with the hearing at this point in time.There may nevertheless be a number of ways of resolving the present situation.I have raised the possibility, for example, of a mistrial.The essential choice, however, is between adjourning the matter and dismissing the complaints.In theory, at least, the matter could be adjourned sine die, with the idea that another hearing could be held, if the Complainant becomes competent in the future.This would be more feasible if the complaints were of recent origin. [20] In my view, the present case has already been delayed for too long.While the Respondents share some of the responsibility for the delay, at least before the Tribunal, I think that justice lies in bringing the matter to a close.It is time to bring this long and painful process to a close.I am particularly concerned about the individual Respondent, who has had to live with these allegations, in one way or the other, for eight or nine years.Many of the allegations are extravagant and extremely embarrassing.They include allegations of rape and sexual misconduct with children.The Respondents have argued from the beginning that they are entirely without substance.There have been a number of investigations and I do not believe it would serve the interests of justice to return to the case in two or three years, only to restart the process.As the Complainant herself observed, the present process has already exhausted substantial public resources. [21] One of the complaints before me deals with the presence of pornography at the dockyard. This raised institutional issues that concern me.As a practical matter, however, I do not feel that it is possible to sever this complaint from the other complaints.Although the matter is less pressing for the corporate Respondent, there is no doubt that matters like the one before me can only have a demoralizing effect on employees.All three complaints have touched the lives of individual officers and employees, who want to be free of the Complainant’s allegations.In the military context, I also think that the corporate self‑esteem of the Respondent deserves some measure of protection.The present case has a scandalous side, which reaches out beyond those who have been directly affected by the investigation and the hearing. [22] The Complainant has already had the benefit of a lengthy hearing.She has been given every reasonable opportunity to present evidence and in a qualified sense, at least, I think the Respondents have been under jeopardy.I seem to have the reverse of the situation in the courts, where a request for an adjournment is rejected and a party is called upon to present its case.If it fails to do so, the opposing party is entitled to a decision on the merits.Here there is a failure to present evidence, followed at least constructively by a request for an adjournment.I am nonetheless of the view that the fundamental logic of the two situations is the same.Since it would be unfair to adjourn the case, and I have rejected such a possibility, I think the Respondents are entitled to a dismissal.The rules against double jeopardy should apply in both circumstances. [23] One of the virtues of the legal process is its finality.Once a complaint is substantiated or dismissed, the issue of liability is closed.The Tribunal is functus and the matter is res judicata.If the Tribunal has erred, the parties may seek judicial review.Otherwise, the parties must abide by the results.This is one of the benefits of any court or Tribunal process.At some point, people must move on with their lives. IV. BAN ON PUBLICATION [24] There are two other matters that need to be addressed. The first is that I see no compelling reason to maintain the ban on publication of these proceedings.The mere fact that the allegations are offensive is not sufficient to justify a ban on publication.Mr.Hortie may take the dismissal of the complaint as a vindication of his position and anyone who recites the allegations is obliged to respect the fact that the complaint has been dismissed.If they misrepresent the matter, or fail to respect the truth, Mr. Hortie and others have the usual remedies. [25] The public and the press are entitled to review the Tribunal process and the results in particular cases.Freedom of expression requires some freedom of communication.This is a fundamental part of our system and adds to the justice of the process. [26] Although I am concerned about the disclosure of personal information relating to the Complainant, the Complainant has requested that the publication ban be lifted.In spite of my finding that she is not competent to represent herself, I feel obliged to take her views into account. She is firmly of the view that a public airing of the matter is important. V. PRIVATE RECORDS [27] The Respondents are in possession of an extensive amount of personal information concerning Ms. Day.This information includes medical and psychological records, which go into areas of inquiry that are normally outside legal scrutiny.There is the report of Dr. Williams, for example, which was made when the Complainant was committed to the EricMartin Pavilion in November 2000, against her will.This report sets out the Complainant’s precarious emotional and psychological state at the time in considerable detail.The Respondents are also in possession of the notes made by the Complainant in preparing a lengthy account of what occurred.Dr. Kaplan, the expert witness who testified for the Respondents, has similar material in his possession. [28] This is information that would normally be kept within the private sanctum and would not be released to other parties.The material was released because the Respondents had put the Complainant’s general psychological state into issue in the hearing.This provided the basis of their defence.The complaint has now been dismissed, however, these issues have no more life in them.I do not see why the other parties would be entitled to retain this information without compelling reasons.None have been advanced. [29] The Complainant understandably objects to these documents remaining in the possession of the other parties. In my view, her request is a reasonable one. The Supreme Court has recognized that claims of privacy in this area have some constitutional significance.This information is entitled to the same protection as our innermost thoughts.There is no reason for third parties to review such personal information after the hearing has been completed, whether by accident or design. [30] The Respondents have nevertheless expressed a concern that these documents may be destroyed.This is a concern because the Complainant has already stated that she intends to pursue the matter in other forums.She has also stated that she would have destroyed her notes if she had known that they would be disclosed.There are other ways of dealing with these concerns, however.In the circumstances, I think the matter can be dealt with by providing the material to the Tribunal, on the understanding that the material will be kept under seal.If the material is required in the future, the Respondents can apply to the Tribunal for an order to disclose it. VI. A FINAL REMARK [31] I realize the Complainant will be disappointed and perhaps angry with these results.She appears to feel that the entire process has betrayed her.Some of this is a product of her experience on the witness stand.She feels that she has been asked to tell the truth, only to be punished for speaking openly about her psychological experiences.I understand her feelings in this regard, but there is nothing I can say, other than to commend her for speaking candidly.This does not have any bearing on the result. [32] There are limits to the legal process and there are situations where it is simply impossible to proceed.There is nevertheless a positive side to the present hearing.Although there were many difficulties with the process, the most important aspect of the matter may be that the Complainant completed her evidence-in-chief, even if that testimony was ultimately rendered inadmissible.Life is imperfect but there is a real sense in which she has had her day in court.This is important enough to justify the process.There is nothing more that I can say. VII. RULING [33] I am satisfied on a balance of probabilities that the Complainant is incapable of testifying.I am also satisfied that she is incapable of making meaningful decisions regarding the conduct and progress of her case.She does not have the capacity to participate in the hearing.I want it to be clear on the public record that I have serious concerns for her well-being if the process continues. [34] In the circumstances, I am satisfied that the Complainant has had an ample opportunity to present her case, insofar as that is possible. There is no evidence before me to substantiate her allegations and the complaints are dismissed. [35] The ban on publication is hereby lifted. The medical and psychological records pertaining to the Complainant, along with the personal notes, may be held for six months from the expiry of any period of review or subsequent appeal.This should be more than sufficient to review the files.If the Respondents wish to provide the Tribunal with a copy of the relevant material, it will be kept under seal.The other copies in the possession of the Respondents are to be destroyed.I would appreciate a letter from counsel, confirming that each of the Respondents have complied with this direction.I will retain the jurisdiction to vary this aspect of my order, should other circumstances arise. Dr. Paul Groarke OTTAWA, Ontario April4, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NOS.: T627/1501 and T628/1601 STYLE OF CAUSE: Amanda Day v. Department of National Defence and Michael Hortie RULING OF THE TRIBUNAL DATED:April4, 2003 APPEARANCES: Amanda Day On her own behalf Joyce Thayer For Department of National Defence J. David Houston For Michael Hortie APPENDIX A RULING ONCAPACITY Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: AMANDA DAY Complainant - and - DEPARTMENT OF NATIONAL DEFENCE AND MICHAEL HORTIE Respondents RULING ON CAPACITY MEMBER: Dr. Paul Groarke 2003 CHRT 13 2003/03/12 I. THE APPLICATION BEFORE ME [1] The following are my reasons on the application of the Respondents for a ruling that the Complainant is not competent to testify in these proceedings.I prefer to phrase this as a question of capacity, and avoid the pejorative associations of the word featured in the caselaw.There is a second question that has arisen in this context, which is whether the Complainant is capable of representing herself.In the circumstances of the case, I do not believe that it would be in the interests of the parties to interrupt the process in order to prepare extensive reasons.I nevertheless feel obliged to issue written reasons before proceeding further. [2] Before dealing with the background to the application, I would comment that the second question might seem to require a higher degree of capacity, since a party who is competent to proceed must be capable of participating in the conduct of the process.This would normally appear to present a higher standard than the capacity to give probative evidence, which need only be sufficient to assist the trier of fact.The usual logic of the situation seems to be reversed, however, in the circumstances before me.That is because the Complainant’s primary difficulty, as Ms. Thayer submitted, is in reciting the sexual allegations at the core of the complaint. This is undoubtedly the most difficult aspect of the matter from a legal perspective. [3] Although I have focussed more directly on the first question, which relates to the Complainant’s ability to testify, the reality is that there is a general concern for her psychological condition that goes to all aspects of the case.I want to reassure the Complainant that, in my view, the other parties have acted out of respect for the integrity of the process and with a keen concern for the Complainant’s well-being. There is nothing improper in the application:on the contrary, I think it would have been inappropriate to proceed without canvassing these issues.This holds true, whatever my ruling on the application. II. GENERAL BACKGROUND OF THE CASE [4] I should state at the outset that the present case seems to have a troubled history.There is no escaping the fact that the psychological history of the Complainant is relevant to the present proceedings.The medical record, which has not been independently proven, indicates that she has been committed in the past.There is no point in hiding this fact:it does not necessarily speak to the Complainant’s present circumstances and as far as I am aware, there is no suggestion from counsel that she is incompetent in the larger legal sense.This merely provides the background to the present application and illustrates, along with the rest of the medical and psychological record, that there are reasons for concern. [5] Although I am not privy to the events that may have transpired before the hearing, the Complainant has indicated on a number of occasions that the Human Rights Commission and the other parties sought an order declaring her incompetent.I am not exaggerating when I say that she feels that there was something like a conspiracy to have her committed.I do not know the full details of the matter, but there is enough on the Tribunal file to suggest that there are reasons for the Complainant’s suspicions.This is not intended as a criticism:this has been a difficult matter for everyone involved with it, and I merely feel obliged to set out the larger set of circumstances behind the present application. [6] The Complainant inevitably feels that any earlier efforts to have her declared incompetent were merely a convenient way of disposing of the present inquiry.It follows that she is extremely suspicious of the present attempt by the other parties to question her capacity to participate in the hearing.She believes that it is beneficial to her psychological well-being to continue and there is at least some medical evidence that supports such a contention.This raises issues that go beyond the scope of my authority, however, and the Complainant’s legal position is that she has a right to proceed.This includes the right to testify and present her account of what occurred.I have warned her that she will be subject to a full and searching cross-examination, which will undoubtedly raise painful memories and prove emotionally difficult.This does not dissuade her. III. BACKGROUND OF THE PRESENT APPLICATION [7] There is no question that the application has been properly and responsibly made.The Complainant displayed erratic behaviour in giving her evidence in chief.This consisted of contorted facial expressions, inappropriate pauses, a pronounced shaking of her head, a raising of her arms and the adoption of various postures, all of which presented a departure from the normal presentation of viva voce evidence.I mention these attributes of her testimony because they are not apparent on the face of the record.The Complainant also used expletives, began sobbing, would occasionally raise her voice or adopt a theatrical and mocking tone, and was unable to continue on a number of occasions.The most difficult aspect of her evidence, from the perspective of managing the case, is that she found it difficult, even impossible, to confine herself to the narrative of events that led to the present complaint.She constantly went into other matters, occasionally in a manner that seems strange and even bizarre, to anyone with a developed sense of relevance. [8] I accept, as counsel has submitted, that the Complainant’s behaviour deteriorated as she gave evidence and eventually culminated in what I have described on the record as a “screaming fit”, which happened when she found herself unable to describe one of the alleged incidents of sexual harassment.I think this can best be described as formless screaming:there were no words, as far as I could determine, and to a lay person, at least, the Complainant cried inconsolably, like an infant.The Tribunal officer immediately called for order and I left the hearing room, though it is clear that she fell to the floor, “writhing”, in the words of counsel and remained there until after the room was cleared.Dr. Kaplan, a psychologist for the Respondents, advised the Tribunal Officer to phone 911, a suggestion that was carried out.This should not be interpreted as a comment on the nature of what occurred, which became a source of controversy between the parties. [9] One of the security officers, Ms. Dennis, remained in the hearing room and later testified as to what occurred.Her testimony was measured and careful evidence, and I accept her account of events.The only point that I feel obliged to clarify is that the hearing was not resumed in the absence of the Complainant.This was never a consideration, though the situation might have transpired differently if Ms. Day had been hospitalized. In my view, the matter was handled with the right degree of concern for the well-being of the Complainant and the need to protect the propriety of the process.After the Complainant had recovered, the hearing was briefly resumed, and the Complainant indicated that she wished to continue with her evidence. The other parties understandably requested a recess.The Complainant became visibly angry in response to the submissions of counsel, and I felt it was best to adjourn until the following day, at which time the Respondents brought the present application. [10] I want to be fair.There is a sense in which this puts the matter in the worst light.I should make it clear that the Complainant is an intelligent person who often speaks lucidly and has a real appreciation of the nature and purpose of the present proceedings.She has given coherent testimony that would support the complaints.One of the problems is that she is not familiar with the practices in formal legal proceedings, and like many lay people, does not distinguish between a formal and informal venue.As a result, her manner and language is often inappropriate.She is unrepresented, which has added to her difficulties, and often seems overwhelmed by the minutiae of the evidence.Having said that, and made allowances for her lack of familiarity with legal proceedings, her psychological frailty, and her many interruptions, she appears to understand the process and has some rough ability to conduct her case and present evidence. There is no doubt that this has placed enormous demands on the patience of counsel, and myself, but that is another matter, which goes more to the issue of accommodation. [11] After the application was made, I entered into a voir dire for the purpose of deciding the question of competence.The Respondents called Dr. Kaplan, a clinical psychologist, who was in attendance during the hearing.Dr. Kaplan was qualified as an expert and expressed serious reservations about proceeding.He was of the opinion that the Complainant suffers from a paranoid personality disorder, which makes her perception of events inherently unreliable.He also testified that, in his view, the Complainant had gone into a psychotic state while testifying.Dr. Kaplan also prepared a written report, which has been entered as an exhibit in the voir dire.Ms. Thayer placed considerable reliance on his view that the Complainant was having psychotic episodes at the time that she was experiencing the alleged sexual harassment.The cases suggest that this is a major consideration, but this goes to the merits of the case, and the evidence is far from clear at this point in time. [12] The Complainant called Ms. Dennis in reply, along with two experts, who were duly qualified.Her therapist also appeared at the hearing, though she did not testify.The evidence of Dr. Hunter, a medical doctor with expertise in Post Traumatic Stress Disorder, was essentially that Ms. Day’s behaviour was consistent with such a diagnosis.The other expert witness, Dr. Malcolm, a clinical psychologist, adopted much the same position. Dr. Malcolm has treated the Complainant in the past and was consulted by the Complainant prior to the beginning of the proceedings.Mr. Houston objected vigorously to the fact that Dr. Hunter and Dr. Malcolm believed that it would be an injustice to deprive the Complainant of her right to proceed.These opinions were well intentioned and reflected their view that it would be better for the Complainant to proceed, psychologically.The question of justice is entirely within the keeping of the Tribunal, however, and well outside the scope of expert evidence. [13] The Respondents also attacked the reliability of the testimony of Dr. Hunter and Dr. Malcolm, on the basis that they were poorly apprised of the circumstances before me.They also argued, understandably, that Dr. Kaplan was in a better position to provide an informed opinion as to the Complainant’s behaviour on the witness stand.I think there is some merit to these submissions, which may affect the weight of the testimony but does not negate it.I think it is important, in this context, to appreciate that the Respondents have the burden of satisfying me that the Complainant is incapable of testifying.There is no obligation on the Complainant to prove any positive assertion of fact.The evidence that she called on the voir dire was only called to offset the evidence of the Respondents and the experts were not tendered to prove her competence. [14] I am left with a disagreement between the experts as to the exact nature of the situation that confronts me.I do not propose to enter into the details of this disagreement, though there was a more specific dispute as to what occurred when she began screaming.Dr. Kaplan was of the view that the Complainant was rapidly “decompensating”.This terminology was the subject of some discussion.The experts on the other side were more inclined to believe that she had experienced a flashback or “abreaction”, in which she was reliving the traumatic events in question.There was also a suggestion that she was dissociating.I do not propose to settle the dispute: whatever view is adopted, it is evident that the Complainant was not functioning rationally for the duration of the episode. [15] I cannot make a medical or psychological diagnosis, but there are many reasons to believe that she suffers from paranoia in some general sense.I was advised by Dr. Hunter and Dr. Malcolm that this could be a manifestation of the “hypervigilance” associated with Post Traumatic Stress Disorder.I accept that that she is liable to “dissociate” on the witness stand and may be in danger of losing contact with reality.She does not trust counsel, has difficulty restraining her emotions, and often loses her way on the witness stand.Some of this must be attributed to the fact that the allegations before me are extremely personal and would be difficult for any litigant.Dr. Hunter testified that Ms. Day had an underlying “vulnerability” that makes them all the more trying for someone in her position.All of this presents a challenge for the conduct of the inquiry. IV. THE LEGAL BASIS OF THE APPLICATION [16] The cases hold that it is the business of a judge to decide whether a witness is capable of testifying.It is the business of the jury to weigh the evidence. See:R. Harbuz [1979] 2 W.W.R. 105 and Steinberg v. The King (1931) 56 C.C.C. 9 (S.C.C.).As a result, the question should be dealt with at the earliest possible opportunity, in order to avoid the possibility of a mistrial.These concerns do not arise in the situation before me.The caselaw recognizes, moreover, that the question can be considered at a later point, if concerns arise during the course of a witness’ testimony. [17] The law operates on the presumption that a witness has the capacity to testify.This does not require advanced abilities.The same observation can be applied to the question whether a party is capable of conducting its case, which only requires an ability to make basic personal decisions.The Respondents have accepted that they have an obligation to demonstrate, presumably on a balance of probabilities, that the Complainant is incapable of testifying.They rely principally on R. v. Hawke (1975) 7 O.R. (2d) 145 (Ont. C.A.), which is instructive on the general issue.They have also referred me to Sopinka’s Law of Evidence in Canada (2d), at §13.10 et. seq., which provides a very brief account of the law. [18] The court in Hawke uses the antique and now unsettling language of Wigmore, at §i492, in holding that a witness is only disqualified from testifying if “the derangement or defect” is such as to undermine the witness’ ability to give trustworthy evidence on “the specific subject of the testimony”.The fact that the Complainant may have a psychological condition or paranoid personality disorder, or may be suffering from Post Traumatic Stress Disorder, does not prevent her from testifying.I do not know if a test has been enunciated in the caselaw, but the question is whether a trier of fact can properly and safely consider the evidence, in making a determination of the facts.The use of the word “trustworthy” is easily misinterpreted and the issue is not whether her testimony should be believed.It is whether it is capable of being believed. [19] I feel obliged to add that my primary duty is to protect the integrity of the legal process.Although witnesses may occasionally break down, emotionally, there is a certain level of probity that is necessary to conduct a fair hearing.The legal and evidentiary process calls for a relatively calm and dispassionate assessment of the facts in a given case, and the purpose of the hearing must be respected.I have a fundamental obligation to maintain the level of decorum in the hearing that is necessary to maintain the integrity of the process.This is an indispensable attribute of the legal system and guarantees the justice and fairness of the proceeding. [20] The trier of fact must also be able to follow and evaluate the testimony. It must be open to intelligent inspection.The evidence must be presented in some kind of logical and coherent manner, which is capable of rational construction.There may be additional concerns in the immediate case, which relate to the obligation of a tribunal to intervene when the process endangers the psychological well-being of the Complainant.This goes directly to the capacity of the Complainant to present her case, however, and is a secondary concern. V. THE COMPLAINANT’S ABILITY TO TESTIFY [21] The parties have come a considerable distance in discharging their burden to establish the Complainant is incapable of testifying.I have real misgivings about continuing, and doubts about whether the Complainant can participate in the hearing in a meaningful and informed manner.I am particularly concerned about whether she can deal with the rigours of cross-examination, which will have to be faced.I have allowed the Complainant considerable latitude in putting in her evidence-in-chief, but the Respondents are entitled to confront her with the details of the case in cross-examination and I see no way of sparing her from such an exercise. [22] Ms. Thayer submitted that Ms. Day exhibited a lack of understanding of the proceedings and made inaccurate statements of fact from the beginning of the hearing. She gave clear examples, in her estimation, of delusional thinking.There is no doubt that the Complainant’s ability to recall events accurately and testify has already been brought into question. Ms. Thayer submitted that there are two major issues that have repeatedly initiated inappropriate behaviour and breaks with reality.The first is the alleged harassment.The second is her mental well-being.The Respondents accept that Ms. Day can give accurate and even compelling evidence.But that ability deteriorates rapidly when she has to deal with the events at the heart of the case.As a result, her evidence becomes untrustworthy when she deals with the essential allegations of fact. [23] I share the concerns of counsel.It is manifest that the Complainant’s previous breakdown was triggered by her recounting of the details of her allegations.In spite of this, I am unwilling to stop the testimony at this point. It has not been established that she cannot provide a meaningful narrative of the events that led to the filing of the complaints. One of the features of the case is that it is the demands of the process that has created the conditions that led to the Complainant’s breakdown.The situation is not static and the real concern is that the process of testifying may precipitate a more pronounced and prolonged breakdown.I realize that the situation is perilous for the Complainant and that counsel are not happy with the possibility that she may have a more serious episode under the strain of their questioning.This is a matter of speculation, however, and I am not satisfied that we have reached the point where I can find that she is unable to testify. [24] The question of capacity only arises when the cognitive abilities of the witness are fundamentally impaired.The psychiatric testimony in Hawke, for example, established that the witness in question was hallucinating on the stand.She was also accompanied, in her mind, by a little girl called Delores.This companion was, in the words of the witness, at p. 160, supra, “in my head telling me to say things that would put me in jail and get tommy off”.I have evidence before me that the present complainant has at least been dissociating on the stand, and that she may be moving in and out of reality.There is evidence of psychotic episodes in the past.But there is nothing of these proportions in the situation that comes before me. [25] As I have indicated, the Respondents have also submitted that the Complainant’s psychological condition at the time when she was allegedly harassed renders her incapable of providing evidence that meets the necessary probative standard.This submission is premature, however, and relies upon a variety of factors, such as the diagnosis of her condition. Although the Complainant’s testimony comes with many imperfections, the Respondents have not established the evidentiary basis for such a finding.The evidence of Dr. Kaplan was contested by the other psychological witnesses and is at least open to argument.There may be reasons to be concerned with this aspect of the testimony, but the more immediate concern is with the Complainant’s present condition. [26] It became apparent during the voir dire that the experts have a different view as to the merits of the case.The experts for Ms. Day seem to believe that she was sexually harassed and feel that it is the sexual harassment that provided the traumatic event in the Post Traumatic Stress Disorder that her experts diagnosed.The position on the other side is equally stark, however:it is that Ms. Day suffered from a paranoid personality disorder and merely believed that she was being harassed.Her perceptions have no connection to reality, on this view, and were the product of a psychological disorder.If the latter view is adopted, and the test of the courts is adopted, her evidence is so inherently unreliable that it would be dangerous to put it before a jury.The problem is that this asks me to rule on the merits of the case, in deciding the questions put before me on the voir dire. [27] Although I do not believe that we have reached the point where I can intervene, I believe that the present situation needs to be monitored.If the testimony of the Complainant continues to deteriorate, or it becomes impossible to conduct a proper hearing, it may be necessary to return to the question of capacity. V. THE COMPLAINANT’S ABILITY TO PRESENT HER CASE [28] I have not been able to review the law with regard to the question whether the Complainant is capable of representing herself. The test may be whether she is capable of instructing counsel.This is not a decisive issue at this time, however, and I merely wish to address the concerns that the Respondents have raised with respect to the well-being of the Complainant.The experts who testifiedon the voir dire disagreed as to the long-term effect of Ms. Day’s participation in the hearing.Dr. Hunter and Dr. Malcolm felt that it was essential, psychologically, that Ms. Day have an opportunity to see the matter through to its logical end.This may be incidental to the purpose of a hearing.I nonetheless feel that Ms. Day has a fundamental right to present her case and that the therapeutic effect of doing so is a valid consideration, in examining the rights of a complainant. [29] I am not as convinced as Dr. Hunter and Dr. Malcolm as to the benefit of the Complainant’s participation in the hearing, and I share some of the concerns expressed by Dr. Kaplan.I do not believe, however, that it would be appropriate to intervene in the interests of the Complainant unless we reach a position where she becomes incompetent in the larger sense and cannot make decisions for herself.Up until that point, the Complainant is the only one who can decide what is in her best interests.She may make choices that run demonstrably against her interests.But that is true of anyone in society and it would be quite wrong, in my view, to treat her as a dependent.This goes directly to the legal question of dignity, which requires that tribunals and courts allow litigants to make their own decisions, however discomfiting that may be. [30] This is a matter of general policy.When I asked Ms. Day whether she was capable of proceeding, she was unequivocal.She feels that she can continue and advise me that she knows how to ask for help.As far as I can determine, she understands her obligations as a witness, is capable of communicating her thoughts and is generally grounded in reality.She also recognizes the need to ascertain whether her perceptions are accurate and well founded.She agreed, on my questioning, that she should not “swear” in the hearing room and that she is obliged to respect the other participants in the hearing.Whether she can live up to this is another matter. [31] The Complainant is a party to these proceedings and a finding of incapacity will probably deprive her of her right to have the complaint heard by the Tribunal.At this point, at least, I am not prepared to deprive her of that opportunity.The law of human rights is based on the dignity of the person, which requires that a tribunal respect the personal autonomy of those who come before it.This is a fundamental aspect of being a person and guarantees our freedoms.There are hazards in proceeding, and at some point, it may be necessary to intervene.But at this point, the Complainant has the ultimate responsibility for deciding whether she wishes to proceed.We have not reached the point where I can interfere with that decision. VI. RULING [32] I am accordingly of the view that the Complainant is capable of testifying at this point in time and can represent herself.I nevertheless have real concerns about whether she will be able to complete her case.In the circumstances, I think it is premature to rule on the application.It seems more appropriate to close the voir dire and return to the hearing, on the clear understanding that the mattermay be reopened on application by the parties. [33] My reading of the law, such as it is, suggests that the evidence on the voir dire may be relevant on issues like credibility and should be applied to the hearing as a whole.I would, however, invite submissions from the parties on the matter.There is also an issue of accommodation that requires consideration. Dr. Paul Groarke OTTAWA, Ontario March 12, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NOS.: T627/1501 and T628/1601 STYLE OF CAUSE:Amanda Day v. Department of National Defence and Michael Hortie RULING OF THE TRIBUNAL DATED:March 12, 2003 APPEARANCES: Amanda Day On her own behalf Joyce Thayer For Department of National Defence J. David Houston For Michael Hortie APPENDIX B EXCERPTS FROM THE TRANSCRIPTS FOR MARCH 20 AND MARCH 21, 2003 (The passages highlighted by Respondent counsel have been underlined.) From pages 2949 to 2950: CONTINUED BY MS. JOYCE THAYER: Q: I think, Ms. Day, I would just like it if you would explain in general terms your other experience with hypnosis and we'll try to be sensitive, but if you can just give us a general idea.Perhaps I can assist you a bit. Was it a scary experience for you? A: No, it wasn't a scary experience for me at all.It was -- it was a very pleasant and calm experience.It's just that the person -- it's the subject matter of the issues around the -- it's the subject matter that was discussed around this kind of hypnosis thing with the other person that makes me feel a bit worried. THE CHAIRPERSON:I'd like to know something about it.You don't have to say much, but just give me an idea of what the subject matter was. (BRIEF PAUSE) THE WITNESS: It has to do with the Hell's Angels.And there was a woman who got raped and she got into some trouble because the guy tried to kill her.And she went to the police and she couldn't get help and we were making a plan to help her. THE CHAIRPERSON: And who were you afraid of, Ms. Day?Just so I know. THE WITNESS: I'm -- (BRIEF PAUSE) THE CHAIRPERSON:You take your time THE WITNESS:Okay (BRIEF PAUSE) THE WITNESS:I’m afraid of the police. (BRIEF PAUSE) CONTINUED BY MS. JOYCE THAYER: Q: Ms. Day, you've said it was a very calm and pleasurable experience, the hypnosis.And you explained that it came in the context of some fears you had about Hell's Angels and possible -- A: I don't have fears of Hell's Angels.I'm not afraid of Hell's Angels. Q: You're not afraid of the Hell's Angels but the concerns that were being raised at the time related to the Hell's Angels, did it?Is that correct? A: I am a Hell's Angel. Q: You are a Hell's Angel?Now? A: Yes. Q: You're a member of the Hell's Angels? A: Yes. Q: How long have you been a member of the Hell's Angels? A: For a long time. Q: Were you a member of the Hell's Angels when you were with Mr. Hortie? A: Not with Mr. Hortie but I've been a Hell's Angel for a long time. Q: Then you were a Hell's Angel before you -- THE CHAIRPERSON: Can we ask Ms. Day what she means by that?What do you mean by that, Ms. Day? THE WITNESS: My first time I was told I was a Hell's Angel I was about fifteen (15) years old.And my best friend's mom told my best friend to tell me that I was going to be a Hell's Angel. THE CHAIRPERSON: What is a Hell's Angel? THE WITNESS: Well, I've never been entirely sure, myself, but I think a Hell's Angel is somebody who's there to help somebody else when they get raped. From pages 2963 to 2970: THE CHAIRPERSON:I have no difficulty, Ms. Thayer, in you clarifying much more specifically why she was hypnotized. MS. JOYCE THAYER:That’s where I was going next. CONTINUED BY MS. JOYCE THAYER: Q: Well, if you’re just having a conversation about agreeing whether killers and some poor prostitute who -- A: He didn’t -- Q: -- who -- A: -- really -- Q: -- if I might suggest, Ms. Day, if you're discussing that and how you can assist someone who had been -- was potentially at risk in that manner, how did the hypnosis assist you in that particular exercise? A: Well, what he did was he spoke to me very quietly and calmly and he spoke to me in pieces.He didn't tell me a story of what was happening, he just relayed to me -- Q: Hmm hmm. A: -- pieces of information which I was later able to assimilate for myself and he just simply asked if -- if I knew that that person really, really needed help would I be willing to help her and I said yes and I -- we wanted to go out and help her that day but I was told to forget and so then I simply forgot and a lot of time went by until the pieces came back. Q: So is what you're saying to me the manner in which he communicated to you was hypnotic?Is that what you're saying and you didn't recollect it until some later point in time? A: Yes.Well, I was told to forget and it was disappointing at the time but I did forget. Q: So when you say you were told to forget, that's what made you think you were being hypnotized?Is that correct? A: No.Peter told me that Robin was like Ravine and that was why -- that's why I have a piece of information that says that my conversations with Robin -- big Robin have been hypnotic. And in fact, now that I realize some of the things that I've been through in the last ten (10) years, is that I have responded and recalled my instructions from big Robin on -- on when I received the right stimulus, I recall certain things and I know what to say or I know what to do, but I don't necessarily -- when it happens at the time, I have no clue why I'm doing what I'm doing or why I'm saying what I'm saying. But then, later, when I'm able to remember further and go back to that point in time, then I realize that I've said what I said in response to certain stimuli because -- or I did what I did in response to certain stimuli, because I had those instructions. And I've been operating on a -- from a subconscious level which leads me to understand that I have been hypnotised. Q: So when you say you had those instructions, you believe that things that you do today are a result of hypnotic suggestions that were given to you while you were under hypnosis.Is that right? A: Yes, that's right. THE CHAIRPERSON: You can go further. MS. JOYCE THAYER: Yes. THE WITNESS: And I'd like to say that I'm very vulnerable to hypnosis.I would that say that for sure, if -- if somebody was looking for a subject to hypnotise, that I would be a perfect subject because at that -- I -- I am a good subject for hypnosis. CONTINUED BY MS. JOYCE THAYER: Q: Can you give me some examples of behaviour that you have come to recently recognize, or in the last little while, to recognize was induced by a hypnotic suggestion?Can you give us an example of something like that? A: Yes, I can. Q: Please do. A: Well, I know one (1) very strange thing was, during the employer's internal investigation, the investigator asked me about the pornography I was complaining about on the protector. And she said, well, what did you see?And I described -- well, first of all, I described what I saw when I saw the picture and the way that it made me felt (sic) was very strange. And she said, well, what did you see, or something like that.And I -- and it came out of mouth, without me knowing why I was saying it, and I even scared -- scared myself because I didn't understand why I said what I said.And I thought people were going to think that I was crazy because of what I said. Q: What did you say? A: I said, I see Helter Skelter. Q: And you, afterwards, understood that that was something that Robin had planted in your mind during the course of hypnosis? A: Well, Robin gave me instructions and he said that if -- he said that I was going to see the picture.And he said I -- I would know -- I was going to figure out which one (1) it was.He said I will know it when I see it. And when I see it, I'm going to say, I see Helter Skelter. First, he was out on the subject of movies and he says, what's the scariest movie you've ever seen?And I said, well, I -- I can't handle scary movies, I -- I saw The Exorcist but other than that, I haven't seen any scary movies, because I -- I don't enjoy them. And he -- Q: I'm with you on that. A: -- said, well, what's the scariest movie you've ever heard of?And I said, Helter Skelter.And then he said, well, I see Helter Skelter.And that was confusing for us.And I couldn't figure out -- I was like, well, yeah. Q: What about other things, Ms. Day? THE CHAIRPERSON: When did Robin say that to you, Ms. Day? THE WITNESS: We were in his library. THE CHAIRPERSON: I mean in dates.How long ago? THE WITNESS: Well, I can't remember if it was -- I think it was just after I came back from Thailand, so that was 1987, so, and it was long before -- it was just around the time that I'd met Peter, and it was a couple of years before we had Robin, so it must have been, I think, in 1987. CONTINUED BY MS. JOYCE THAYER: Q: Are there any other things that you can think of, besides your reaction to the picture, that were the result of hypnotic conditioning by Robin? A: Anything else that I can think of that were conditioning? Q: Well, your response that you later could link back to hypnotic suggestion? A: Yeah, there's something else I'm supposed to do, and there's something -- there's... (BRIEF PAUSE) A: Yeah, there probably is, but without going from the beginning to the end, and going through it in detail with -- maybe with my therapist or something that I probably... Q: But, there are other things you can -- THE CHAIRPERSON: Well, in what context, Ms. Day? THE WITNESS: In what context? THE CHAIRPERSON: Well, did things come up in the course of the sexual harassment, or the pornography as you just described?Were there other incidents like that?Where you found yourself saying something, or doing something?Because you felt Robin had told you to do so? THE WITNESS: Oh yeah.Yeah, there was another thing, yeah, happened.Oh yeah.Yeah, Robin said -- okay, no -- yeah, I want to get it -- I was going to get a message, well, I got a message and it all had to do with the -- this -- my interpretation of the information that was relayed to me during that meeting, was that I would get a message, and when I got the message, I was supposed to get into a mental institute and tell doctors and nurses about the situation. And, he said that for sure they were going to think that I was really crazy, and he said no matter what I had to go and do it -- or would I go and do it, and I said, yeah, for sure, I'm going to go. And so it became very clear that at one (1) point, when I was having the psychosis, that I had to get to the hospital, and that I was dying, and I didn't understand what that was ab -- about totally, but I guess it also had to do with the fact that I had AIDS, which is something that goes back to when I was a Hell's Angel in -- in high school. So, there's that, then these things that happened in high school, I have AIDS, and then there was -- I was dying, and that was Dr. Brox, and then there was the fact that I had to go to the hospital, and tell them where the -- tell them about that. CONTINUED BY MS. JOYCE THAYER: Q: Amanda, can I ask you about the AIDS?Do you have AIDS? A: Well, what I'm supposed to say is my friend's standing here, and he says, my other friend over standing here, and another friend's here, and we're down in Balka (phonetic) creek, at the bridge, and ov -- behind the high school, we would go down there, and -- and people hang out there, and then I -- Matt's mom says I'm Hell's Angel, and Matt says I'm -- what I want you to do, is when you get this figured out, I want you to say, I have AIDS. And our other friends' name is Adrian (phonetic) and so I'm supposed to say I have AIDS and then he says, well, Adrian, what do you say when she says that and then Adrian says, he wants to say that it's a song by Eric Clapton, Cocaine. And I said, great, then you can be my alibi, and it's like a joke.And then -- and then we said, well, then what are you going to do?And he says, well, I'm going to go to my friend Kevin who's standing there. And Kevin's -- and then -- and then he says, Kevin Duik (phonetic) is famous.And then Matt says, go -- okay, go -- now, go and talk to Berto (phonetic) on the bridge. So I go over and talk to Berto on the bridge.And the problem is, his girlfriend is getting raped and she's being turned into a prostitute and it's something to do with school.And it's -- also, it's something to do with the drama class because the teacher in drama's telling me to act like a prostitute. THE CHAIRPERSON: I'm having a hard time following you, Ms. Day.What are you talking about now? THE WITNESS: These people got murdered later and we didn't understand this guy named Jay Kirk (phonetic) got murdered. THE CHAIRPERSON: Let's take fifteen (15) minutes. THE REGISTRAR: Order please. From pages 2980 to 2983: CONTINUED BY MS. JOYCE THAYER: Q: Were they giving you suggestions when you were being hypnotized, were they giving you suggestions that you were to act on at a later date? A: Well, you see, I told Peter about our day on the bridge, and that we had to go back, and we knew about Jay Kirk, and Tanya Van Tollenburg, but – and they got murdered, and Peter – and I told Peter what I knew about Jay Kirk, and Tanya Van Tollenburg, because I had been – they’d been in our school, and so, Robin knew that my – we had a history of mental illness in my family, and that I had – we had discussed, you know, potentially where we might be later in life, and our cynicisms around that. And Robin suggested to me on that day, when I'm saying it was a hypnotic experience, or at least, it had that effect on me overall, it was that he said what he wanted me to do was get into a mental institute and start telling doctors and nurses all about it. And he wanted, in specific, me to tell them -- THE CHAIRPERSON: Right, and did you follow through on that at a later point? THE WITNESS: Yes, I definitely did, but I -- THE CHAIRPERSON: When? THE WITNESS: -- I mean, I didn't know it was all -- what it was all about.I just knew that those were -- that was what I had to do, and I mean, subconsciously, I acted it out, but I acted out, I have AIDS, I am dying, from Dr. Brox, and -- and the things that Mr. Hortie had said to me were, and I want you to tell people that you're getting messages from other frequencies, and that you -- by the time this is, like, all the sexual harassment crap, when dockyard is over, you're going to be holding your head, and telling them that you're getting messages on different frequencies. So, it was, I mean everything came -- all the stuff, all the instructions I got from different people came out, and while I hadn't been consciously aware of getting all these instructions from different people, I -- I methodically did what I was told to do, and I had no idea why I was doing it. THE CHAIRPERSON: So, when -- THE WITNESS: I -- THE CHAIRPERSON: -- did you act out these suggestions, these commands, when did you act them out?All the way through? THE WITNESS: Well, and the other thing I was supposed to say, this was from a Navy person, he said, if you want to get a message to me at Department of National Defence, I want you to say, Captain Kirk sent me in. Now, that makes you sound like you're a total loony when you say something like that, like -- like Captain Kirk from Star Trek sent you in, like, you sound like you're -- THE CHAIRPERSON: Did you say that? THE WITNESS: Yes, I -- I was saying that on the way to the hospital. THE CHAIRPERSON: Because you had to say that? THE WITNESS: Well, the guy from the Navy, he came down to our high school, and he was talking to us, and then he said, if you ever want to get a message to me at National Defence, to say Captain Kirk sent me in. So, I was saying -- THE CHAIRPERSON: Was it your -- THE WITNESS: -- everything that people had told me to say.It was all true stuff that people told me to say when I was at -- when I was methodically doing all these instructions I was given, I looked like a total loony.But, at the same time, I was having -- I -- I think I was having difficulty, at that time, because my health deteriorated. I hadn't slept for about -- like, three (3) or four (4) weeks -- From pages 2989 to 2991: And so I was very calm and quiet.And then Dr. Schuldrop and the nurse were sitting there and they said -- they said something to me about Dr. Runtz.He said, is Dr. Runtz your psychologist?And I said, yes. And then all of a sudden, without me even knowing, it just seemed to come out of my mouth, like it wasn't even me talking, but I said, yeah, oink, oink, get it? Like, not quite in that tone of voice, I said, oink, oink, get it? And I was just, oh my God, I've just said something like -- and I hoped that they -- maybe they didn't notice that I'd said that.And I was freaking out because I thought, they're going to think that I'm crazy and they're going to keep me in here forever. And I didn't know where the hell that came from and I was just trying to stay calm and hope that they didn't notice.And then the nurse said something like, I think there was a few words there, where did those come from? And then the conversation got diverted somehow.But later I realized that I was supposed to say, oink, oink, get it, when I got in the hospital.But they'd had me drugged up so many times that, the information that I was supposed to tell them, they just kept filling me full of drugs and knocking me out that I couldn't tell them what I was supposed to tell them for going in there and -- but then I didn't even know, like, what it was about and why the hell I was supposed to tell them that. Q: Who told you to tell them that? A: Robin and Peter and -- and it was -- and it was -- they said it was really, really, really important and I was laughing at the time and going oh my god, like, get out of here, that's so stupid and Peter got really mad. He said no, this is really important and Robin was getting really upset in the kitchen and he was yelling from the kitchen at Peter who was in a different room and I was in a different room. We were all in different rooms of the house and that's why it was so weird and Robin was yelling from the kitchen saying this is really important and Peter is going, it is?Okay, okay, okay.I'll do it again. So then he did it again.He goes "Oink, oink.Get it?" and he did that like four (4) or five (5) times and finally I just said okay, okay, okay, okay, I get it. And so -- and then I just forgot about it but then when I ended up in the hospital I was sitting on the couch and then it came out of my mouth "Oink, oink. Get it." and it was just like, where the hell did that come from?Like, and I didn't know, like, for about -- I didn't realize for honestly a couple years after that that was related to my meeting with Robin and Peter and I at that time. So it was -- it was just like my brain just burps up stuff that's in there and I can't control it.It just comes out.It's real stuff and it's related to an event but I don't always know why it's coming out at the time. From pages 2996 to 3000: THE CHAIRPERSON: Did the same thing happen with Mr. Hortie? THE WITNESS: Yeah. Oh yeah. He was totally giving me directions on what he wanted me to do, and he was using suggestion in order to manipulate my behaviour. There is no question. THE CHAIRPERSON: I’d like to hear more about that. MS. JOYCE THAYER: Yeah. CONTINUED BY MS. JOYCE THAYER: Q: Could you give us specific examples of that, Ms. Day?Things that you acted upon, because of suggestions that were given to you by Mr. Hortie? A: Yeah.It's hard, because I'd have to, kind of, chase it around in my head for a bit. Q: Well, I'll give you a minute, and just think about it. A: I know that at one (1) point, he said to me that he knew that I was going through the harassment in the dockyard and he said that -- that he knew I was going to be really crying the blues over it and he said I was going to experience a lot of grief.And he said that I would likely be playing and singing a song which was -- it's a Beatles song -- I can't remember the words. Little darling, it's all right.Just -- the sun will come out or something. Q: And what was the context in which you would be singing that song? A: He said the context of it would be that I would be having so much grief from the harassment that sooner or later I would find myself playing that song and grieving. Q: Did that happen? A: It did.I can finger pick that song perfectly and I can hardly even play the guitar. Q: So that was a message that Mr.Hortie implanted in your mind that you acted on later? A: Yeah.But I -- the funny thing about it was that I actually didn't realise why I was doing that and why I had achieved that until a couple of years after the fact -- that I was doing -- that I was playing that exact song and that I was able to finger pick and play that song because I can't finger pick and play any other songs other than the ones that my guitar teacher taught me when I was a teenager. Q: What other types of things can you recall that Mr. Hortie implanted in your mind that you acted on later? A: He said that there was probably going to be a situation where we didn't see each other for a long time or that we weren't going to be able to communicate together. So, what he wanted me to do was to say the word credence, and that was going to be -- that was going to -- when -- in some situations where we weren't going to be able to talk to each other that I was going to say the word credence. Q: Did that happen? A: Well, yes, it did. Q: Can you explain? A: I was in a conference call with the Tribunal and I was hearing Mr. Hortie's voice in the conference call for the first time.I hadn't talked -- I hadn't heard Mr. Hortie on the phone or in person for quite a few years. And all of a sudden I regurgitated the word credence, and there was talk about the medical -- the medical information and I said I'm not sure if that person has credence.And then I said -- I was having trouble saying my words and then I said, well, I think it's credentials or something.But then I realised after that, like, that I realised that I just regurgitated something. Q: When did Mr. Hortie tell you that? A: It was sometime when he said that we had to get to know each other on a very deep level.Then he had to share -- he -- I had to share personal information with him and he was giving me, kind of, this instruction about I was supposed to say the word credence. THE CHAIRPERSON: Ms. Day, I wonder if I can come in here.Is it fair to say, Ms.Day, so that -- you were in your view you were programmed to say that?Can I put it that way? THE WITNESS: Well, I think I -- I think I have a tendency to just about do whatever.Like -- like -- THE CHAIRPERSON: Just to help me out, just try and stay with -- THE WITNESS: Yes, I would say I was programmed.But like, I'm just telling you that I have a problem and I have a real tendency.Like, my teachers -- I've had situations in -- in the classroom where teachers ask questions and I can answer within three (3) seconds. From page 3002: Q: Let's not worry about those kinds of things.Let's worry about the things where [Mr.Hortie] actually programmed you to do things, Ms. Day. So you said, some of the things he programmed you to do were sexual.Tell us about some of those things. A: I don't think I want to.I know he said that -- he said that, by the time the experience was over, that I was going to be holding my head and telling people that I was hearing things on different frequencies. From pages 3004 to 3006: THE CHAIRPERSON: Are you saying you were doing what you were programmed to do on a conscious level? THE WITNESS: I guess Mr. Hortie was basically programming me on a conscious level but he -- I mean, he was able to use these hypnotic suggestions to program me to do things subconsciously but as far as my psyche and my internal workings of my subconscious, he would have a very hard time to get control of that. MS. JOYCE THAYER: Can we just -- THE CHAIRPERSON: No -- CONTINUED BY MS. JOYCE THAYER: Q: You're talking about the difference between your conscious and your subconscious here and when you say that Mr. Hortie and other people programmed you, I take it you're saying they're programming your subconscious? It's not something that you're aware of but later it happens and you think back and you retrieve it out of your subconscious memory?Is that right, Ms. Day? A: Well, I'm almost wondering if, like, programming is a kind of strong way to say.I mean, it boils down to intent. I have to be honest with you, I don't feel that, like, when my friends have suggested to me that they want me to remember certain key phrases or messages and things, that they're trying to do something harmful or hurt me, but I think that the way that Mr. Hortie is trying to use -- trying to use the hypnotic suggestions and to prog -- I'm saying that Mr. Hortie is very harmful and he is intentionally trying to manipulate me with that kind of -- with exactly that kind of -- Q: And -- A: -- suggestion and mental manipulation -- Q: And -- A: -- and I'm a person that I will -- I'm -- I'm -- I am a perfect target for a manipulator like that. Q: So you're saying that he was able to implant in your subconscious things that you had to act on years later?For instance, when you blurted out the word credence in the course of the conference call? A: Hmm hmm and holding my head and saying that I was getting information on different frequencies. Q: When did you do that? A: On my way to the hospital.I had called Kevin Duik to find out if he was famous and -- and then I was regurgitating all this stuff and that was one of the things that came out and later when I traced it back and I realized that that was -- it was -- the source of it was Mr. Hortie. From pages 3018 to 3020: CONTINUED CROSS-EXAMINATION BY MS. JOYCE THAYER: Q: Ms. Day, when we left off yesterday we were talking about the fact that some of the things that you've done over the course of time has been as a result of suggestions that have been implanted in your subconscious by a number of different people. And you've told us about suggestions that were implanted by Dr. Brox, by some of your friends when you were on the bridge, when you were age fifteen (15), by Robin who was the Hell's Angel and by Mr. Hortie. Were there any other individuals that you can recall in your life, that have given you the same type of suggestions that you've eventually acted on, and had to reconstruct what happened? A: Yes, there have. Q: Could you tell us about those, please? A: When I was a young child, my grandma and my aunt and my mother took me to a church in Calgary.And there was a whole bunch of kids there and we had to see a priest and the priest was talking to us and I was very young. And he asked if there would be any volunteers, and I was one (1) of the kids that put up my hand.And he wrote my name down on a list. And he told us that what he wanted us to do is that if we knew where there was a very, very bad man, that we were going to be able to talk to God. And what he wanted us to do was to look up at the window on the left, up in the church.And when we look up there, then we'll know that God is talking to us and that when we need to tell people where there is a really bad, bad man, that we can tell those people that God is talking to us and God is telling us what to do. And he said that he wanted us to know that, something like, these things are very difficult but we needed to feel safe in ourselves that we -- that we could be a voice for God. Q: And when did you act upon what you were told by the priest as a small child? A: Well, I know that when I had my grievance hearing with Captain Blattman he didn't believe that I'd been sexually harassed and he started asking me all kinds of really, really, really stupid questions that were just really antagonizing. And I remember that I was really scared that after they were going to think I was crazy because I remember looking up to the left and then looking at Captain Blattman and saying squarely to Captain Blattman, and because God is telling me to, because God was telling me to make the complaint. But then, I think my union representative was a little bit disturbed about the fact that I'd said something like that and I was, kind of, disturbed about it myself.And I didn't -- it took me over a year to realize where that -- where that statement I had made was coming from because it was something that I was told to do when I was a very small child and I did it without thinking of it. But when -- it made me look like I was crazy but when -- and then it took me a long time to figure out why I had said that God was telling me to tell them that. From pages 3043 to 3047: CONTINUED BY MS. JOYCE THAYER: Q: Ms. Day, can you tell us about those situations where Mr. Hortie challenged your perceptions in a way that made you feel crazy? A: Yeah.I mean, he did that on a day -- on a daily basis.I think every contact I had with Mr. Hortie was -- was manipulative to the extent that he -- he took my perception of the situation which was standing upright, as an analogy, and he took it and flipped it upside down and told me that it was actually this way, which was his way, and I mean, if I said something's white, he would say, no, that is black. It was that -- it was that distinct. Q: Did it make you feel crazy or question your own -- A: It put me in a situation where I was constantly having to reality test myself.I was constantly have -- I was in crisis all the time because my perception was upside down.I was going to work and going home.It was like -- it's like if -- it's as if I was walking around upside down and I was seeing the whole world upside down. THE CHAIRPERSON: Tell me – THE WITNESS: It was – THE CHAIRPERSON: Tell me more about – THE WITNESS: It was totally – THE CHAIRPERSON:-- this, Ms. Day. THE WITNESS:-- confusing. THE CHAIRPERSON: Ms. Day, I want to hear more about this. Can you give us examples? THE WITNESS: Everything. Just everything. CONTINUED BY MS. JOYCE THAYER: Q: Well, just give us a specific example. I know that it was very persuasive but there must be some things that stand out as particularly challenging or that you just couldn’t believe after you reality checked that he had suggested that? A: Well, just the fact that – just the fact that he could touch my body without my permission was – flipped my reality upside down. Okay? The fact that he could physically touch me, shove his tongue in my mouth, put his penis into my body – into my mouth, into my vagina and into my bottom, the fact that he was allowed – he allowed himself to do those things against my will and without my permission and the fact that he could even just touch me. Like – like that was enough. Q: What are you -- A: After a while it was just like this much of a touch was, like -- I felt like my whole body was on fire.Like, I felt like a burn victim.Even just -- and just anybody. THE CHAIRPERSON:And you're touching yourself very lightly? THE WITNESS:Anybody just even coming within my body space touching me like that felt like -- I felt like a burn victim. THE CHAIRPERSON: What do you mean that it flipped your -- what was the term? Flipped your sense of reality? CONTINUED BY MS. JOYCE THAYER: Q: You said you felt like you were walking upside down all the time? A: Yeah.It felt -- it -- the way -- the way my mind felt from what he was doing was that, like, I was -- my world used to be normal.I used to see -- like, I used to see people normally.Like you're all upright but the way that my mind felt when Mr. Hortie was harassing me, I felt like I was seeing everything upside down.Like, that was how -- sorry for swearing.I'm not going to swear. Q: Right. THE CHAIRPERSON: Say what you want to say. THE WITNESS:I felt so fucked up in my head because the way Mr. Hortie painted my perception of things and interpreted -- he interpreted all my perceptual data and told me what was happening in the work place and in my -- in my own personal life that I was reality testing myself -- THE CHAIRPERSON: And you're saying he had it all wrong? THE WITNESS: He had it all -- he was telling me everything all upside down but that's the only way I can explain it to you. THE CHAIRPERSON: Was it only Mr. Hortie or was it other people as well? THE WITNESS: No, it was only Mr. Hortie.I mean, there were -- but then there were circumstantial things from people in the work place which supported what Mr. Hortie was telling me was happening to me. THE CHAIRPERSON: So how did you deal with that?So you mean you -- THE WITNESS: It -- it has definitely in -- influenced me and it's -- it made me feel like I was completely unable to -- to get out of the situation.I felt trapped because there were circumstantial things which were _- that were very solid evidence that, in fact, I couldn't get help and that I had to conform to the conditions which were being placed on my employment. THE CHAIRPERSON: Ms. Thayer, there's an important question and I think I should ask it.And I know this is difficult for you, Ms. Day.But did you not consider the possibility that the problem was in your mind? THE WITNESS: Of course I considered the prob -- that the problem was in my mind, that's part of reality testing. THE CHAIRPERSON: So, tell me -- THE WITNESS: Because all this stuff was happening and I -- I -- after awhile I got so messed up, that's a better word, I got so messed up that I -- like, I mean, I was getting messed up from the very beginning.Let's just say, I was getting really, really messed up from the very beginning. But I got so severely messed up -- I got so severely messed up that I could just -- I was just -- I felt like I was a carcass.I felt like a dead body, I was completely numb.I mean, I was numb from the beginning, but I'm talking about really, really, really numb.Like -- like, I felt like I'd been injected with anaesthetics, I was so numb.I had no feelings.I had not one (1) iota of a feeling. And that was by Sept -- like, October of '94, when I was back working in the shop in Building 190.I was just -- I was a dead body walking around. THE CHAIRPERSON: And what happened, Ms. Day?Did it get better or worse? THE WITNESS: Well, I just -- I thought, well, I'm going to go right out on a limb.And I told Rod Lundgren that I had to get to a psychologist and that I, you know, if they could -- if they could get a psychologist for me that I'd really appreciate it. And I -- like, I'm really sorry but I'm obviously such -- I'm obviously, you know, I need a shrink right away because I am seriously a messed up person and I cannot function. I mean, and I recognized that I -- that I was -- I mean I was like, flat. Normally, in a day, a person has -- like we go through a range of emotions.In -- in an hour you can have -- I don't know how many emotions you could experience, five (5) or six (6) significant emotions in an hour, just through your natural thoughts or whatever. But, you know -- you know, you'd be up and down, up and down, up and down.But I was like, flat.I didn't feel anything.I was like a -- I was a dead body. And it was just like, you know, I am obviously so crazy because my -- I know I'm being harassed here, and I know all this stuff is happening, but this guy is telling me things like, well, if anybody asks you about my problems, just tell them that we're going to get married, and things like that. And then the threats and then -- and then, as I started talk -- as people were talking to me in the workplace, the physical threats, that he was going to hurt other people, or he was going to hurt me. And I still didn't know where this gun was, you know. He's going to blow off his own head and he's going to do it in my house.This was all really scary stuff.And, yeah, I doubted-- I -- it's a -- I think it's a natural, healthy process.If you're not reality testing yourself, you -- if a person isn't reality testing themself, then those are the kind of people that you see in the hospital. And the fact that I was thinking of myself, that I might be crazy, I think that's an indication that I was really healthy.But I was really, really messed up. And I had to get -- and that's why I asked if I could go to see -- get a psychologist. ADDITIONAL EXCERPT From pages 3077 to 3080: THE CHAIRPERSON: But what you need to address is your ability to give evidence. And the problem is that you said a number of things which make it quite clear that you have difficulty distinguishing between your perceptions and reality. MS. AMANDA DAY: I don't think I -- THE CHAIRPERSON: And that those perceptions -- MS. AMANDA DAY: -- have problems distinguishing between my perceptions and reality.I think, it's clear that the employer has a hazing process, and it's clear that my perceptions were painted by Mr. Hortie.And clearly, when you open up the voir dire, and I understand that there are issues of competence and there are legal issues, which I don't understand. But when people -- I mean, even when people are telling me that they feel that I'm paranoid and delusional, then it influences my perception to the point that I have to question myself, whether or not I am paranoid and delusional. So it's like the Hydenberg (phonetic) uncertainty principle, you -- you can't measure one (1) thing and you can't be certain of the position of one (1) thing, when -- when you're trying to do something else. And it becomes a very difficult situation to cope with.And I'm telling you that, my perception of reality is valid.And your perception of reality is yours. And yours is different and mine is different; that doesn't mean that mine is wrong or that I'm impaired. THE CHAIRPERSON: I think I'm in the position where I have to assume that some of what you told us, happened in your mind rather than in reality. MS. AMANDA DAY: Well, I think that definitely what this person -- what Mr. Hortie did to me, was to get my mind messed up in such a way that he was able to carry out these sexual abuse and sexual assaults and sexual harassment. And that's clear, that there were several things said to me, and that he manip -- manipulated my perception and that he -- Mr. Hortie impaired my perception at the time. But I'm telling you that, now, I'm aware that those things were happening and that I know why I was having so much difficulty.I'm not saying that I'm still having those problems now, which is fundamentally different from the fact that I'm aware of what was happening at the time, in retrospect. (BRIEF PAUSE) MS. AMANDA DAY: However, I, myself, I -- I'm left to question whether or not I'm still subject to influences of directions that I've been given by Mr. Hortie, suggestive suggestions.I'm not sure how suicidal I may be, I'm not sure how harmful I may be to myself. THE CHAIRPERSON: I'm concerned about that, Ms. Day. MS. AMANDA DAY: Yes, and I'm concerned about it, too.And when I went home yesterday, I started to be -- trying to think and trying to figure out what's, you know -- because I think that's the other thing that people like that do, is that they mess you up so much, they -- they can even, you know, kind of predict a future path for you. And, I mean, he was telling me things like, the harassment was going to make me feel -- I was going to feel so, so, so much grief over the fact that I was being harassed by all these people. When he was the one (1) who was painting my perception and telling me that nobody liked me and nobody wanted to work with me. So those are things that have been coming to fruition over the course of time, that I haven't understood.But they've been suggested to me by -- to me by Mr. Hortie.So I'm left to wonder, well, I don't know what else he planted in my mind. THE CHAIRPERSON: Did you -- MS. AMANDA DAY: And whether or not I'm suicidal is another -- is another consideration for -- for a victim of this kind.If you have to consider, I suppose, that there -- that there is a serious danger that I may -- THE CHAIRPERSON: Did you talk to -- MS. AMANDA DAY: -- cause harm to myself -

2003 CHRT 17

CHRT

Brine v. Halifax Port Authority

en

2003-04-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6886/index.do

2023-12-01

Brine v. Halifax Port Authority Collection Canadian Human Rights Tribunal Date 2003-04-29 Neutral citation 2003 CHRT 17 File number(s) T758/0803 Decision-maker(s) Groake, Paul Dr. Decision type Ruling Decision Content Canadian Human Rights Tribunal Canada Tribunal canadien des droits de la personne BETWEEN: BRUCE BRINE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - HALIFAX PORT AUTHORITY AND TRANSPORT CANADA Respondents RULING ON THE APPLICATION TO HEAR THE OBJECTION REGARDING SETTLEMENT PRIOR TO THE HEARING 2003 CHRT 17 2003/04/29 MEMBER: Dr. Paul Groarke [1] The following ruling deals with a request that the Tribunal deal with a preliminary objection to the complaint before hearing the evidence on the merits of the case. The objection is that the Complainant signed a full release with respect to the matter now before the Tribunal. The present controversy concerns the question whether the objection should be dealt with prior to the hearing or after the evidence has been heard. [2] It is agreed that the Complainant suffered a nervous breakdown while he was employed by the Halifax Port Authority and was subsequently dismissed. The employer states that the dismissal was for just cause. The complaint alleges that this constituted discrimination on the basis of disability under section 7 of the Canadian Human Rights Act. The Respondent goes further, however, and argues that the Tribunal has no jurisdiction to proceed with an inquiry, since the Complainant signed a settlement agreement covering the matter. This agreement apparently contained a release stating that the Respondent has satisfied its obligations under the Canada Labour Code and the Canadian Human Rights Act. [3] The Human Rights Commission originally declined to deal with the complaint under section 41(1)(b) of the Canadian Human Rights Act, on the basis that the Complainant had entered into the settlement. This was reviewed in the Federal Court, in Brine v. Canada (Attorney General), [1999] F.C.J. No. 1439 (Q.L.), which returned the matter to the Commission. Justice Lemieux found that the Commission had failed to consider a report on the Complainant’s psychological condition by Mr. Dunphy, one of its own investigators. In paragraph 44 of the report, the Investigator wrote: Evidence provided by the Complainant’s psychologist shows that the Complainant was not emotionally capable of representing his interests when he signed the settlement. The Commission and Complainant are apparently now taking the position that the Complainant was unable to sign a binding release as a result of his psychological incapacity. [4] The Commission and Complainant have argued that the Tribunal is not in a position to determine the validity of the settlement without a full evidentiary record. The Commission submits that the Tribunal: … cannot decide the ultimate fate of this complaint by way of a preliminary motion without … hearing the entire evidence related to the complaint. The Respondent demurs. It argues that the proper approach is to have a separate hearing to deal with the release issue, including evidence and argument, before the inquiry commences. This could also be dealt with in a voir dire at the outset of the hearing. [5] In its submissions, the Commission suggests that the ruling from the Federal Court requires the Tribunal to decide the issue concerning the release after hearing the merits of the case. I do not follow the logic of such an argument. The ruling from the Federal Court deals specifically with the responsibilities of the Commission, which was established as an investigatory body with a mandate to pursue the resolution of complaints. At paragraph 39, Justice Lemieux holds that the Commission is an administrative and screening body with no appreciable adjudicative role. The function of the Commission is somewhat analogous to that of a judge at a preliminary inquiry. It was not established to try the case and does not have the authority to decide the matters that would normally come before a tribunal. [6] The real issue before the Federal Court was whether the Commission had rejected the complaint without considering the evidence and circumstances before it. The Commission is not making the same kind of determination as the Tribunal, however, and cannot adjudicate the matter. If the decision from the Federal Court is significant before me, it is primarily because it establishes that there is a litigious issue between the parties on the settlement. In such a situation, it seems plain that a tribunal cannot determine whether the release is binding without a full evidentiary record. When I say this, I simply mean the full evidentiary record necessary to decide the issue. Whether this requires a full hearing of the case is open to debate. [7] I am not as comfortable as the Respondent with its characterization of the matter as a question of jurisdiction, though the term jurisdiction has been used with considerable abandon in the caselaw. The basic position of the Respondent is nonetheless compelling. It seems unfair to enter into a full hearing when it is unclear whether there is a legal dispute, a lis, between the parties. The Respondent relies on the decision in Chow v. Mobile Oil Canada, [1999] A.J. No. 949 (Q.L.) (Alta. Q.B.), where the Court holds, at paragraph 100, that a similar issue before a Board of Inquiry raises a jurisdictional issue. It was therefore necessary to decide the issue before embarking on the hearing of the complaint. The Respondent argues, on the strength of this, that the present Tribunal cannot enter into an inquiry without hearing and resolving the objection. [8] As I have said, I am inclined to think that the jurisdictional notion is overstated. Even if the release goes to the jurisdiction of the Tribunal to proceed, the Tribunal appears to have some latitude in the matter. In Mohawk Council of Kahnawake v. Jacobs, 1996 F.C.J. No. 757 (Q.L.), the Federal Court reviewed a decision of a Tribunal to hear all of the evidence in the case before deciding a jurisdictional issue. Justice Tremblay-Lamer held that the Tribunal is master of its own proceedings and refused to intervene. There are cases outside the federal arena that adopt the same position, such as Newfoundland (Human Rights Commission) v. Newfoundland (Department of Health), [1998] N.J. No. 129 (N.C.A.). [9] It follows that the Tribunal has the discretion to deal with the question concerning the settlement before or after the hearing, on the basis of what seems best in the circumstances before it. Although it is not available to me, I suspect that the present situation could be resolved by an order for security of costs in the civil courts. Should it become apparent at the end of the case that a hearing was unnecessary, the Respondent would at least have the comfort of knowing that it would receive some compensation for its pains. This is not possible in the human rights process, since the general consensus is that a Respondent is not entitled to costs. This may result in an unfairness. It is all very easy for the Complainant and the Commission to insist that all of the evidence be heard, when they know that the other party will have to bear so much of the freight. [10] There is a related issue under section 48.9(1) of the Act, which states that proceedings (l’instruction des plaintes) before the Tribunal shall be conducted as expeditiously (se fait . . . de façon expéditive) as possible in the circumstances. I think that this prescription applies as much to procedural and preliminary matters as to the hearing on the merits of the case. The Tribunal’s empowering legislation accordingly supports the notion that a case should be decided summarily, if it is possible to do so. The Respondent may not be entitled to costs, or security for costs; it is nevertheless entitled to a prompt and efficient resolution of the matter. The Tribunal should be careful not to penalize a respondent by prolonging a case beyond its natural duration. [11] There are reasons to believe, moreover, that issues relating to releases are inherently preliminary. This is evident in the caselaw under the Rules of Court in the various provinces. In Sinclair-Cockburn Insurance Brokers Ltd. v. Richards [2002] O.J. No. 3288 (Q.L.), for example, the Ontario Court of Appeal dealt with a rather confusing set of facts arising out of a fraudulent bond. At paragraph 14, the Court held as follows: As Mr. Cadsby, counsel for Wiggins, said during oral argument, his client paid a substantial sum of money to buy peace, not just peace from potential liability for a judgment, but peace from even having to respond to a claim from Richards. Sinclair-Cockburn signed an unqualified release. Wiggins is entitled to all the benefits that flow from that release, which include its reputational interest and its interest in not being dragged into a lawsuit. The strength of this rationale may vary from case to case. It nonetheless brings in a set of interests that militates strongly in favour of an early settlement of the issues that arise as a result of a settlement between the parties. [12] The present ruling does not go to the substance of the motion. That is intentional. The Complainant and Commission may want to argue that it is impractical to separate the issue regarding the settlement from the other issues in the case. I say this because they appear to be taking the position that the Complainant’s psychological difficulties deprived him of his ability to enter into a binding agreement. If that is their position, there is an obvious argument that it will be impossible to determine whether the settlement is binding without hearing evidence on the nature and extent of his disability. It may also be necessary to hear evidence with respect to the events that originally gave rise to the complaint. The issue is accordingly whether it is feasible to sever the issue regarding the settlement from the other issues in the case. [13] The submissions before me do not address this issue. The matter will have to be dealt with at the beginning of the hearing, at which time I would invite counsel to advise me whether they feel it is possible to separate the issue regarding the release from the other issues in the case. I agree with the Respondent that it is preferable to decide the settlement issue, if that is possible, before proceeding further. The integrity of the hearing should be preserved as much as possible, however, and I do not see any reason to deal with this in a separate application. In the circumstances of the case, I think it is better to proceed by way of a voir dire. If it becomes apparent on hearing the evidence that the settlement is not binding, the evidence on the voir dire can then be applied to the hearing as a whole. Dr. Paul Groarke OTTAWA, Ontario April 29, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T758/0803 STYLE OF CAUSE: Bruce Brine v. Halifax Port Authority and Transport Canada RULING OF THE TRIBUNAL DATED: April 29, 2003 APPEARANCES: Barry Mason For the Complainant Giacomo Vigna For the Canadian Human Rights Commission Jane O’Neill For Halifax Port Authority and Transport Canada This is quoted at paragraph 14 of the decision in the Federal Court.

2003 CHRT 18

CHRT

Warman v. Kyburz

en

2003-05-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6543/index.do

2023-12-01

Warman v. Kyburz Collection Canadian Human Rights Tribunal Date 2003-05-09 Neutral citation 2003 CHRT 18 Decision-maker(s) Chotalia, Shirish P.; Mactavish, Anne L.; Roberts, Eve, Q.C. Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - FRED KYBURZ Respondent REASONS FOR DECISION 2003 CHRT 18 2003/05/09 PANEL: Anne L. Mactavish, Chair Shirish Chotalia, Member Eve Roberts, Q.C., Member TABLE OF CONTENTS I. INTRODUCTION II. FAILURE OF FRED KYBURZ TO APPEAR AT THE HEARING III. THE ISSUES IV. THE SECTION 13 COMPLAINT A. Did Mr. Kyburz Communicate, or Cause to be Communicated, Repeatedly, the Messages Found at the Web Site in Issue? B. Were These Messages Communicated in Whole or in Part by Means of a Telecommunications Undertaking Within the Legislative Authority of Parliament? C. Is the Subject Matter of the Messages Likely to Expose a Person or Persons to Hatred or Contempt by Reason of the Fact That They are Identifiable on the Basis of a Prohibited Ground of Discrimination? (i) What is the Subject Matter of the Messages Communicated by Mr. Kyburz? (ii) Are These Messages Likely to Expose a Person or Persons to Hatred or Contempt by Reason of the Fact That They are Identifiable on the Basis of a Prohibited Ground of Discrimination? C. Finding Regarding the Section 13 Complaint V. THE SECTION 14.1 RETALIATION COMPLAINT A. The Allegedly Retaliatory Messages B. The Undisclosed Messages C. Analysis of the Retaliation Complaint VI. THE COPYRIGHT NOTICE VII. REMEDY A. The Section 13 Complaint (i) Cease and Desist Order (ii) Special Compensation (iii) Interest (iv) Penalty B. The Section 14.1 Complaint (i) Cease and Desist Order (ii) Compensation for Pain and Suffering (iii) Interest (iv) Special Compensation VIII. ORDER I. INTRODUCTION [1] Richard Warman is a lawyer in Ottawa. On February 2, 2002, Mr. Warman filed a complaint with the Canadian Human Rights Commission against Fred Kyburz. Mr. Warman's complaint alleged that Mr. Kyburz communicated messages through his Internet web site, messages which expose identifiable groups to hatred or contempt, in violation of section 13 of the Canadian Human Rights Act. Mr. Warman's complaint was subsequently amended, with leave of the Tribunal, to include the allegation that Mr. Kyburz retaliated against Mr. Warman for having filed his human rights complaint, contrary to section 14.1 of the Act. This retaliation is alleged to have occurred through the use of Mr. Kyburz' e-mail account and web forum. II. FAILURE OF FRED KYBURZ TO APPEAR AT THE HEARING [2] Mr. Kyburz did not appear at the hearing into Mr. Warman's complaint, nor did anyone acting for Mr. Kyburz appear on his behalf. The record discloses that Mr. Kyburz was personally served with information relating to the complaint. The documents served upon Mr. Kyburz included the Notice of Hearing, which indicated the dates and location of the hearing. Shortly after this material was served on Mr. Kyburz, the documents were returned to the Tribunal, with the notation returned for fraud and lack of jurisdiction written across the top page, followed by what appears to be Mr. Kyburz' signature.(1) Mr. Kyburz also sent the Tribunal a document entitled Copyright Notice, relating to the name Ernst-Friedrich Kyburz. [3] The Tribunal is satisfied that Mr. Kyburz had notice of Mr. Warman's complaint and of the hearing in this matter. This finding is confirmed by the material downloaded from Mr. Kyburz' web forum, which makes it abundantly clear that Mr. Kyburz was aware of the hearing, and elected not to participate in the process. III. THE ISSUES [4] Insofar as Mr. Warman's section 13 complaint is concerned, there are three issues that must be considered in determining whether the complaint has been made out:(2) Did Mr. Kyburz communicate, or cause to be communicated, repeatedly, the messages found at the web site in issue? Were these messages communicated in whole or in part by means of a telecommunications undertaking within the legislative authority of Parliament? and Is the subject matter of the messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? [5] The Tribunal must also determine whether Mr. Kyburz retaliated or threatened retaliation against Mr. Warman for having filed his original section 13 complaint with the Canadian Human Rights Commission, contrary to the provisions of section 14.1 of the Canadian Human Rights Act. [6] In the event that either or both aspects of the complaint are substantiated, the issue of the appropriate remedy will also have to be addressed. IV. THE SECTION 13 COMPLAINT A. Did Mr. Kyburz Communicate, or Cause to be Communicated, Repeatedly, the Messages Found at the Web Site in Issue? [7] Mr. Warman's section 13 complaint relates to a web site located at the www.patriotsonguard.org web address. During his testimony, Mr. Warman identified numerous documents that he had downloaded from this site. These consist of a copy of the site's home page, as well as numerous Daily Information Pages (or DIPs). The home page describes the mission of Patriots on Guard, and states that the web page is presented by Fred Kyburz of Coleman, Alberta. Each DIP starts with a welcoming message, which includes a solicitation to subscribe to a monthly Patriots on Guard newsletter. Subscription fees are to be sent to Fred Kyburz, General Delivery, Blairmore Post Office, Blairmore, Alberta. [8] Mr. Warman testified that he performed a search at the www.register.com web site, which, he explained, will provide the name of the registrant of a particular web address. The results of that search disclose that the registered owner of the www.patriotsonguard.org web site was Fred Kyburz, General Delivery, Blairmore Post Office, Blairmore, Alberta. [9] Based upon the evidence before us, the Tribunal finds that Fred Kyburz controlled the www.patriotsonguard.org web site. The Tribunal is further satisfied that Mr. Kyburz caused the materials found on the site to be communicated. The fact that a web site is a somewhat passive medium, requiring the reader to take positive steps in order to access the posted material does not detract from the fact that, in up-loading the material to the web site, Mr. Kyburz communicated the material in issue. (3) [10] The final matter to be considered is the element of repetition. The extent to which these messages were disseminated is a testament to the effectiveness of the Internet as a communications tool. The Patriots on Guard web site has a visitor counter. As of the time when Mr. Warman downloaded the page on September 10, 2001, 61,370 visitors had accessed the Patriots on Guard site. [11] We are therefore satisfied that Mr. Kyburz communicated, or caused to be communicated, repeatedly, the messages found at the web site in issue. B. Were These Messages Communicated in Whole or in Part by Means of a Telecommunications Undertaking Within the Legislative Authority of Parliament? [12] The messages which form the subject matter of Mr. Warman's section 13 complaint are those that appear on the Patriots on Guard web site. The last such message is dated December 21, 2001, and appears to have been downloaded by Mr. Warman that same day. [13] As will be explained in greater detail further on in this decision, Mr. Warman complained about the content of the Patriots on Guard web site to Mr. Kyburz' Internet service provider, causing the service provider to withdraw service. Mr. Warman testified that the Patriots on Guard web site was shut down permanently some time in late December of 2001 or early January of 2002. [14] It is not entirely clear which version of section 13 governs the Patriots on Guard web site. The Canadian Human Rights Act, as it was originally enacted, did not explicitly deal with Internet communications. This is not surprising, in that section 13 was originally enacted in 1977, well before the Internet came into our lives on a regular basis. As part of the changes to Canadian law effected by the proclamation of the Anti-Terrorism Act (4) on December 24, 2001, the Canadian Human Rights Act was amended to add the following provision to subsection 13(2): For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication ... [15] Ultimately, however, it does not matter whether any communication by Mr. Kyburz took place after the amendments to the legislation(5). The earlier version of section 13 has been found to encompass Internet communications in Citron et al. v. Zündel(6), and we adopt the reasoning of the Tribunal in that case. C. Is the Subject Matter of the Messages Likely to Expose a Person or Persons to Hatred or Contempt by Reason of the Fact That They are Identifiable on the Basis of a Prohibited Ground of Discrimination? (i) What is the Subject Matter of the Messages Communicated by Mr. Kyburz? [16] In order to put the messages in issue into context, it is helpful to review the self-described mission of Patriots on Guard. According to the web site's home page, Patriots on Guard: ... is an organization dedicated to alerting the public about travesties against people's rights and freedoms, specifically by the courts and law enforcement agencies in Canada, and worldwide. This is done through the use of the DIPs. Most of the DIPs consist of copies of articles obtained from other sources, followed by an editorial comment. These editorial comments are frequently written in the first person, and appear to be the work of Mr. Kyburz. [17] The focus of many of the early DIPS is on the supposed misdeeds of Ashkenazi Jews.(7) For example, the October 22, 2000 DIP contains several articles from what appears to be a Syrian news web site, each of which deals with aggression and terrorist acts allegedly committed by the State of Israel. These articles are followed by a commentary by Mr. Kyburz, wherein he explains his understanding of the difference between what he calls blood Jews or Sephardic Jews, and Ashkenazi Jews. Ashkenazi Jews, who Mr. Kyburz says comprise about 90% of the world's Jewish population, are not real Jews, but chose Judaism as a faith sometime in the 13th century. [18] Mr. Kyburz states that he is not an anti-Semite, but rather is writing in order to clarify misunderstandings some people have about Jews. He goes on to say: I am not against Jews. I am against some of the practices of these Ashkenazi Jews. They are the ones who propagate all the violence. They are the ones who are the driving force behind the United Nations. They are the designers of our present usurious money system that brings so much hardships [sic] and destruction. They are the ones in control of the mainstream media disseminating lies and misinformation. They are the ones who are in control of the filth in the movie industry. Communism, terrorism, war and Ashkenazi Jew are synonymous. Mr. Kyburz further states: Again I want to repeat that there are decent Jews, even Ashkenazi Jews. We have to be careful not to attack the Jews but their nefarious actions, and to expose the particular individuals who commit such nefarious actions. We also have to go after their mindless lackeys, the people in government who don't think twice to implement their murderous plans. [19] A similar sentiment is expressed in the October 24, 2000 DIP. Commenting on an article entitled The 'English' Jew behind the foundation of Israel, Mr. Kyburz writes Isn't it amazing that war is always traced back to Ashkenazis who are falsely called Jews. Wherever they are involved deceit, treachery and murder run rampant. [20] On October 25, 2000, Mr. Kyburz published an article written by William Pierce, entitled There will be Hell to pay. This is a lengthy article - one quite remarkable in the level of vitriol that it directs at Jews. The article deals with a number of issues, including the White-slave trade supposedly operated by Jews. Pierce states that the White-slave business flourishes in Israel because in that country slavery is not illegal, as long as the slaves aren't Jews. White-slavery is, in fact, sanctioned by the Jewish religion. [21] Pierce also discusses Jewish involvement in child pornography, referring to the break-up of a child pornography ring in Moscow, which ring was allegedly run by three Jews. He describes the activities of the pornographers in the following terms: Child pornography is an almost unimaginably filthy business. I'm not talking about videos of well-developed 15- or 16-year-old girls having sex. I'm talking about things so perverse and sickening that most Americans can't imagine them. I'm talking about men being filmed having sex with two- and three-year-old girls. I'm talking about small children - White children - being sexually tortured and raped to death in front of the camera for the titillation of the sick freaks who are sexually excited by such horrors. [22] As to the 'sick freaks', that is, the consumers of the child pornography, Pierce states that The freaks, I am sorry to say are not all Jews, although Jews are disproportionately represented among them. [23] Pierce goes on to explain the fact that there was no coverage of these events in the American media, as a result of Jewish control over the media. [24] What is to be done about the people engaged in these pornographic activities? Pierce states that [his] view is that such people should simply be killed on the spot whenever and wherever they are found. Having previously identified Jews as being in control of the media, he goes on to say: More than that, the people who promote and encourage this extreme individualist mind-set through their control of the media should be exterminated root and branch as a class. [25] Pierce does not, however, limit his comments to the killing of Jews engaged in child pornography and media control, but actually suggests that the elimination of all of the Jews in Russia would be justified: The Jews bled Russia dry with 70 years of Marxist rule and murdered tens of millions of Russians - the best Russians - in the communist slave labour camps or in the basement of the secret police headquarters or beside the shooting pits in forests all over Russia and Ukraine; they have forced thousands of the prettiest young Russian women into prostitution and slavery after the fall of communism; and now they kidnap Russian children and rape them to death in front of the camera in order to make child-porn films for rich perverts in the West. The Jews are lucky they still control most of the television and other mass media in Russia - because if the Russian people ever are fully awakened to what the Jews are still doing to them, they will rise up and kill every Jew in Russia - every Jew - and they will be fully justified in doing so. [26] While acknowledging that not all Jews are engaged in child pornography, Pierce posits that all Jews should be held to account for these horrible atrocities, as ... the ones who don't run the child-porn business cover for the ones who do. [27] While it does not appear that Fred Kyburz was the author of this article, section 13 of the Act does not require authorship. The discriminatory practice is made out when a respondent communicates matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination, whether or not the respondent wrote the material himself. [28] As with the previous DIPs, Mr. Kyburz offers his own commentary regarding the article he published on his web site. What does he have to say about the Pierce article? He says: I would like to mention that the Jews who engage in these atrocities are not 'real' Jews. They are the Ashkenazi Jews which [sic] took the Jewish faith for political reasons as we have seen in the previous DIP. I will refer to them in the future simply as Ashkenazis. They are frauds. They are the ones who brought communism into being. They are the ones concocting the many ways of sickening people throughout the world. They are the ones who created the usurious money system in order to bleed us dry. They are the ones who are in control of WHO. They are the ones who push the vaccines to make us sick and dependant on their pharmaceutical corporations. They are the ones controlling the United Nations. Is it any surprise that the United Nations is a murderous outfit? They are the ones dictating our governments." Mr. Kyburz concludes his commentary with the following statement: * Warning * If the good Jews do not denounce the bad Jews (Ashkenazis), they share the guilt! [29] Commenting on televised comments made by a former CSIS agent with respect to groups such as Patriots on Guard, Mr. Kyburz' November 9, 2000 DIP says: First I will tell you that you are very, very insensitive to call the murderers, child molesters, terrorists and pedophiles Jews. They are not Jews, yet they call themselves Jews. They are the Ashkenazis. Are they the seed of Satan? I don't know. I know that it would be impossible for the spawn of Satan to commit worse crimes than these characters commit..." [30] The notion of Ashkenazi Jews as frauds is reinforced in Mr. Kyburz' November 17, 2000 DIP, which contains an extract of a book entitled Truth and Justice versus Lies and Hatred. This book extract questions the extent of the Holocaust, suggesting that somewhere in the vicinity of 2-300,000 Jews actually perished during the Second World War, rather than the oft-cited figure of six million deaths. To some extent, the writer suggests, the Jews were the authors of their own misfortune: The anti-Jewish - falsely dubbed as anti-Semitic stipulations of the National Socialist programs were, in fact, a slap in the face for Jews who were loyal to the German state. The Zionist Movement which operates throughout the world, took these measures as a crucial back-up in their efforts to attain their own goals. That is why Zionist [sic] stoked the fires of confrontation between the Reich Government and the Jews internationally. That is something that we are not supposed to know today. The Zionists were convinced that only if their co-religionists were segregated in their host countries would they be interested in settling Palestine. They even welcomed the Nuremberg Laws because they put wind into the sails of Zionist aspirations. Mr. Kyburz states that he is publishing this excerpt ... to unveil part of the truth regarding the 'Holocaust'. [31] In his November 18, 2000 DIP, Mr. Kyburz follows an article critical of Israeli actions against the Palestinians during the most recent Intifada with the statement that: The Ashkenazis are in their element. Destruction of property and life is their great ability. That's what they do best. They practize [sic] that ability where ever and whenever they find an opportunity. They have done it throughout the centuries. [32] Mr. Kyburz' comments in his December 18, 2000 DIP mark the beginning of a shift in the focus of his attentions. Zionist Jews are now equated with Ashkenazi Jews. According to Mr. Kyburz, the Zionist Jews' agenda should also provoke consternation in the reader: Now folks, the Khazars(8) (Zionist Jews) which [sic] are in control and create the wars for Israel are also in control of the NWO [New World Order(9)] Can you imagine the fate which will await you once these people are in total control? Remember, Stalin was one of them. He killed tens of millions of his own people. Some estimates go as high as a hundred million. These depraved characters have not become more civilized in the meantime. Either they are being stopped or we will have to experience the wrath of their depraved and twisted minds. I, for one, am not too excited to become one of their victims. How about you? The March 25, 2001 DIP refers back to the October 25, 2000 DIP, noting that it: ... shows the real character of the Zionist Jews. Their speciality is child abductions, child pornography, child molestation, slavery and murder. Yes, that's the type in our courts, in the Universities, in governments, in the police, in the medical profession specializing in abortion, everywhere they could have a chance to destroy life. [33] Subsequent DIPs describe Zionist and/or Ashkenazi Jews as the most ruthless terrorists in the world, who do not respect the rights, freedoms or lives of others(10), a criminal and murderous group of thugs, who are sub-human and demented (11), people who will kill a great proportion of the world's population unless they are stopped.(12) [34] Mr. Kyburz' comments are not always limited to Zionist or Ashkenazi Jews but are, on occasion, directed at Jews as a whole. For example, his December 21, 2000 DIP states that The Jews have inflicted an incredible amount of harm throughout the world over centuries. He goes on to refer specifically to Zionist Jews, stating that they will never change their ways because: ...being frauds, criminals, war mongers, pedophiles, anti-life and full of hate is part of them ... It is their nature. They will not and cannot change. If we do not want them to destroy our civilization, our way of life, our rights and freedoms we should make sure that they have no part in the decision making. This means that they will not be allowed in any government institution of any kind. [35] Richard Warman testified that in March of 2001, he became aware of the Patriots on Guard web site, through his involvement in human rights work. He contacted Mr. Kyburz' Internet service provider, alerting it to the nature of the content on the site. As a result, service to the site was cut off, and the site was shut down. According to Mr. Warman, the Patriots on Guard web site was not accessible for several days in April of 2001, although it was back up within a couple of days, through a different service provider. [36] Mr. Warman's efforts to shut down the web site did not go unnoticed by Mr. Kyburz. On April 7, 2001, an e-mail was sent to Mr. Warman from someone identifying himself as Fred Kyburz, using the [email protected] e-mail address. The circumstances surrounding the sending of the e-mail, together with its content establish, on a balance of probabilities, that it was sent by Mr. Kyburz. The correspondence, which was copied to dozens of other recipients, can best be described as a diatribe against Mr. Warman for having caused the Patriots on Guard web site to shut down. [37] In reviewing Mr. Kyburz' message to Mr. Warman, it is apparent that Mr. Kyburz assumed that Mr. Warman was himself Jewish. Indeed, much of his venom is directed at Mr. Warman and his Zionist Jewish brethren : You got the nerve to call me an 'antisemite' [sic]! I am NOT an anti-Semite - unlike yourself! I am anti-vermin, anti-crime, anti-child abuse, anti-child pornography, anti-Zionist propaganda. You are an anti-Semite since your ilk have the blood of thousands of Jews on your hands as well as the blood of millions of white people. You are anti-Semite, anti-white and anti-right.... I have warned you idiots of my intent to expose your communistic Zionist agenda. Now you have given me good reason to make good on my promise. You will see much of your ilk's atrocities exposed. It will show who the TRUE anti-Semites are. You call my exposure of your ilk's devious and criminal actions 'hatred of an identifiable group (ie. in this case Jewish people).' It's not hatred on my part, it is unspeakable hatred by your Zionist brethren's insidious and murderous actions against innocent people (ie. in this case white children). I will write about the possible motives of your Zionist Jewish brethren in the near future. You can holler and scream ANTI-SEMITE as loud as you want, the louder the better. The louder you shout the more I will expose your incredibly devious intentions. So go ahead. I am ready for battle. [38] Mr. Kyburz then began to include regular references to Mr. Warman in his DIPs. For example, in the August 5, 2001 DIP, Mr. Kyburz stated: Remember that these Jews are the Zionist Jews, mostly Ashkenazi Jews - all of them hard core communists. They are also the ones in control of the media everywhere. They are as well in control of Hollywood. Is it any surprise that the news of the media is twisted? Is it any surprise that nothing but scum and stench comes out of Hollywood? Richard Warman ... [here Mr. Kyburz names other individuals who have incurred his wrath] ... am I an anti-Semite by bringing the cold truth to light about these criminal and murderous minds you so fervently support and protect? [39] The December 15, 2001 DIP refers to Mr. Warman's effort to shut down Mr. Kyburz' web site, specifically mentioning Mr. Warman by name. The DIP goes on to say: We have to stop these low lives for what they are and their incredible atrocities. We can only stop their murderous actions by full exposure. It is hard, if not impossible, for a normal individual to understand how anyone could be as evil as they are. The fact is, that we better learn before they are poisoning us with their proposed vaccinations and other medical poisons. [40] In his December 18, 2001 DIP, Mr. Kyburz refers to Mr. Warman as a wretched character, saying that he is a willing flunkey of the Zionist/communist Israeli government. Mr. Kyburz subsequently refers people like Mr. Warman as sub-human criminal minds who ... do not shy away from any crime in order to reach their goal of complete world domination. [41] The final reference to Richard Warman in the Patriots on Guard web site is contained in the December 20, 2001 DIP. Following his observation that The Jews (Zionists) are as evil as they have always been. War is their game. Profits from war is [sic] their aim., Mr. Kyburz goes on to say: Richard Warman, if you can prove me wrong speak up. Write me an e-mail and make your objections known. Don't be a jerk or a coward. Sign your name to your e-mail. And don't try to shut down my web site again because you object to my straight forward talk. If you object to my telling the truth then change your ways and get your fellow Zionist frauds to change. I know to change your characters is a virtual impossibility. To be underhanded, dishonest and a fraud is your nature and your fellow Zionist brethren's nature. [42] It was shortly after this message was posted on the Web that the Patriots on Guard web site was shut down for good. It is unclear from the evidence whether this was as a result of Mr. Warman's efforts. (ii) Are These Messages Likely to Expose a Person or Persons to Hatred or Contempt by Reason of the Fact That They are Identifiable on the Basis of a Prohibited Ground of Discrimination? [43] In considering this question, the Tribunal was aided by the testimony of Dr. Karen Mock, a Psychologist who was qualified as an expert in discrimination, anti-Semitism, racism and hate material. In this case, there was nothing subtle or nuanced about the material contained on the web site, which was clearly hateful on its face. Dr. Mock's testimony was, however, of assistance in identifying some of the traditional anti-Semitic themes referenced in the material, such as the concept of 'blood libel', the Jews' alleged goal of world domination, and their ostensible control of various institutions.(13) [44] The terms hatred and contempt have been judicially considered in previous section 13 cases. In Canada (Human Rights Commission) v. Taylor (14), the Supreme Court of Canada cited with approval the definitions of hatred and contempt utilized by the Tribunal in Nealy v. Johnston (15). In Nealy, the Tribunal said: With hatred the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one hates another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of looking down on another or others. It is quite possible to hate someone who one feels is superior to one in intelligence, wealth, or power. None of the synonyms used in the dictionary definition for hatred give any clues to the motivation for the ill will. Contempt is by contrast a term which suggests a mental process of looking down upon or treating as inferior the object of one's feelings. [45] The Tribunal in Nealy also considered the meaning of the word expose as it is used in section 13. Citing the original Tribunal decision in Taylor, the Nealy Tribunal said: "Expose is an unusual word to find in legislation to control hate propaganda. More frequently, as in the Broadcasting Act Regulations, Post Office Act provisions and in the various related sections of the Criminal Code, the reference is to matter which is abusive or offensive, or to statements which serve to incite or promote hatred. "Incite means to stir up; promote means to support actively. Expose is a more passive word, which seems to indicate that an active effort or intent on the part of the communicator or a violent reaction on the part of the recipient are not envisaged. To expose to hatred also indicates a more subtle and indirect type of communication than vulgar abuse or overtly offensive language. Expose means: to leave a person unprotected; to leave without shelter or defense; to lay open (to danger, ridicule, censure etc.). In other words, if one is creating the right conditions for hatred to flourish, leaving the identifiable group open or vulnerable to ill-feelings or hostility, if one is putting them at risk of being hated, in a situation where hatred or contempt are inevitable, one falls within the compass of section 13(1) of the Human Rights Act. [46] In the Tribunal's view, there can be no doubt that the messages contained on the Patriots on Guard web site are likely to expose people of the Jewish faith to both hatred and contempt. Having singled out Ashkenazi Jews for particular criticism, Mr. Kyburz has discriminated against Jews of European ancestry on the basis of both their religion as well as their national or ethnic origin. [47] Mr. Kyburz does not, however, limit his comments to Jews of European ancestry. In finding that the messages expose Jews generally to hatred and contempt, and not just Ashkenazi Jews, the Tribunal notes that while much of Mr. Kyburz' attention is focused specifically on Ashkenazi Jews(16), some of his commentary addresses the supposed evil nature and mis-deeds of Jews as a whole. Mr. Kyburz further suggests that non-Ashkenazi Jews are complicit in the alleged evil activities of the Ashkenazi Jews. A number of the articles published by Mr. Kyburz on his web site draw no distinction between Ashkenazi Jews and Jews of non-European origin. [48] When read in context, the messages on the Patriots on Guard web site tell the reader that Jewish people are innately devious, treacherous, and murderous. Not only do they want to kidnap, corrupt, and kill white children, their ultimate goal is to take over the world. Such messages can only serve to foster hatred against the Jewish people. Of even greater concern are the messages, notably the Pierce article, that openly advocate the extermination of the Jewish people. [49] Further, Mr. Kyburz' use of terms such as sub-human, scum, vermin and low-lives to describe Jews could most certainly lead some readers to view Jews as inferior beings, causing them to hold Jewish people in contempt. As Dr. Mock testified, this tactic of the dehumanization of the Jewish people was common in Nazi propaganda. By making Jews appear as something less than human, Dr. Mock explained, it became easier to kill them. [50] The persuasive effect of these messages is enhanced by Mr. Kyburz' use of what Dr. Mock described as a pseudo-academic approach, exemplified by his references to the noted historian David Irving and the truth-seeking Ernst Zundel. A further example of this technique are the references to articles published by groups such as the Institute for Historical Review, an organization committed to debunking the 'myth' of the Holocaust. [51] As regards Mr. Warman's allegation that Mr. Kyburz's messages discriminate against Jews on the basis of race, we note that Dr. Mock testified that Jews are not members of a race, but rather share a common religion. We accept Dr. Mock's testimony that Mr. Kyburz has, nevertheless, attempted to 'racialize' Jews, with his suggestion that their various alleged character flaws are inherited or innate. This is evidenced by his frequent comments about people of their ilk, as well as by references to such things as the real character of the Zionist Jews. This tactic is perhaps epitomized by the last DIP, with its comment that Zionist Jews will never change, because ...being frauds, criminals, war mongers, pedophiles, anti-life and full of hate is part of them ... It is their nature. They will not and cannot change. [52] The fact that Jews do not constitute a race does not operate to defeat this aspect of Mr. Warman's complaint. Human rights jurisprudence has interpreted prohibitions against discrimination on the basis of a proscribed ground of discrimination to include the prohibition of discrimination based on perceived membership in the protected group.(17) The Tribunal therefore finds that the messages contained on the Patriots on Guard web site are likely to expose people of the Jewish faith to hatred and contempt on the basis of their perceived race, as well as their religion and, in the case of Ashkenazi Jews, their national or ethnic origin. D. Finding Regarding the Section 13 Complaint [53] As was noted in one of the articles posted on the Patriots on Guard web site, international law recognizes the right of individuals to freedom of opinion and expression. For example, Article 19 of the Universal Declaration of Human Rights(18) provides that such right ... includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media .... [54] While the right to hold and express one's opinions is a cornerstone of a free and democratic society, such a right is not unlimited. In some situations, the protection of society mandates limits on what individuals may say. For this reason, it is unlawful to shout Fire! in a crowded theatre when no fire exists, to phone in a bomb threat, or to threaten to kill another person. [55] In the Taylor case, the Supreme Court of Canada had occasion to scrutinize the reach of section 13 of the Canadian Human Rights Act in light of international law principles, as well as the Charter guarantee of freedom of opinion and expression.(19) The Court concluded that while section 13 infringed the right to freedom of opinion and expression, this infringement was justified in light of international commitments to eradicate hate propaganda, and Canada's commitment to the values of equality and multiculturalism. [56] Having found that Fred Kyburz did communicate, repeatedly, by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament, matter that is likely to expose people of the Jewish faith to hatred or contempt, Mr. Warman's section 13 complaint is substantiated. V. THE SECTION 14.1 RETALIATION COMPLAINT A. The Allegedly Retaliatory Messages [57] After the Patriots on Guard web site was shut down, a Patriots on Guard Internet web forum was established. Mr. Warman explained that a web forum is a domain where people can post messages and view the messages posted by others. The Patriots on Guard web forum was an open forum, which means that anyone could sign up to participate in the forum's discussions. A member could also choose to have any new posting on the site automatically e-mailed to him or her as soon as the material was posted. Mr. Warman signed up to join the web forum, using a false name, and, as a result, was able to access the information posted there. [58] The content of the material posted on the Patriots on Guard web forum is similar in nature to that which appeared on the Patriots on Guard web site, and includes messages signed by Fred Kyburz, sent through the [email protected] e-mail address. The timing of the establishment of the web forum, together with the name of the forum and the subject matter of the debate in the material posted, establishes that the web forum was created by Mr. Kyburz. This finding is confirmed by the exchange of e-mails appearing at Tab 28 of Exhibit HR-1, where Mr. Kyburz refers to my web site http://www.patriotsonguard.org. [59] Further, we find that numerous postings appearing in the web forum originate from Mr. Kyburz. In coming to this conclusion, we note that these messages are signed by Mr. Kyburz, either as 'Fred' or 'Fred Kyburz'. In many cases, the context as well as the content of the messages make it clear that they came from Mr. Kyburz. [60] On February 5, 2002, Richard Warman filed his original complaint with the Canadian Human Rights Commission. On April 26, 2002, Mr. Kyburz posted an exchange of e-mails between himself and a producer of the CTV television show W-5 regarding a television program on the 'de-tax' movement. (20) In the initial e-mails, the producer asks Mr. Kyburz if he would like to participate in the show. Mr. Kyburz declines. After the show was broadcast, Mr. Kyburz sent the producer a lengthy e-mail expressing his disgust with the broadcast. In the course of his comments, Mr. Kyburz stated: Now you can go and complain to the Canadian Human Rights Commission about my anti-semitism [sic] just as did your fellow Zionist Richard Warman, a valued employee of the Federal Court of Canada and the Department of Justice - a great crowd! The CHRC is an organization that has to deny truth as a defense. That's how low these people have sunk. They have to deny truth in order to protect their criminal behaviour. They are so incredibly demented that they believe their own twisted reasoning. Richard Warman must be your treasured ally ... [61] Mr. Kyburz goes on to reproduce a copy of a letter that he says he sent to the Honourable John Richard, the Chief Justice of the Federal Court of Canada, where Mr. Warman was formerly employed. After referring to Mr. Warman's efforts to shut down his web site, and to Mr. Warman's complaint to the Canadian Human Rights Commission, Mr. Kyburz says: I do discuss a wide range of topics on my web site. Some of the topics include slavery, murder, terrorist activities, pedophilia, war, taxes, inalienable rights of individuals, child prostitution, child pornography, etc. I have posted other people's opinions, newspaper articles, as well as my own conclusions. Some of the articles discuss actions of Jews implicated in child pornography, child prostitution, slavery, murder, genocide, etc. These are well-publicized stories. Warman, a Jew, is not happy to have his fellow Jews and their fiendish activities exposed, obviously his motive for his complaint to the Canadian Human Rights Commission. This means that he is in full support of such nefarious acts as child prostitution, child pornography, murder, genocide, slavery and wholesale slaughter of innocent people. No individual with a smidgen of a conscience will engage in, or be in support of, such fiendish and sub-human activities as mentioned above. Mr. Warman obviously has no conscience.... Now Sir, I am asking you herewith to: 1) Dismiss Mr. Richard Warman immediately from his present government position without severance pay. He is not allowed anytime in the future to hold another government position or an advisory position to any government body or government employee. If he is not dismissed by April 12, 2002, without severance pay, I will make public that you fully support the above mentioned crimes being committed by employees of the Department of Justice. I will also make sure that Canadians are made aware that every judge [i]n Canada is in support of the abovementioned crimes (unless a judge demonstrates clearly with his rulings that he does not support any of the above crimes, meaning that his rulings are based on 'the Law of the Land'.) 2) get Mr. Richard Warman to write me an apology 3) get Mr. Richard Warman to ask my previous server (Rackspace), to reinstate my web site on David Icke's web site(21) 4) get the investigation by the Canadian Human Rights Commission against myself and my web site terminated immediately. [62] The letter to the Chief Justice indicates that it was being copied to every Member of Parliament and Senator. Mr. Kyburz also asks readers to write to the Chief Justice ... and give him a piece of your mind. There is nothing in the material before the Tribunal to indicate that Chief Justice Richard ever responded to Mr. Kyburz' letter, nor is there any indication that Mr. Warman suffered any adverse employment consequences as a result of Mr. Kyburz' letter to the Chief Justice. [63] In a subsequent posting, Mr. Kyburz reproduces some of the correspondence exchanged during the course of the Commission investigation into Mr. Warman's complaint. Commenting on one of Mr. Warman's letters, Mr. Kyburz says: Mr. Warman, since you are so diligently following my every written word I do not see the need to send you a copy of this post. I am sure that you will not miss it. I will make sure though that every MP and Senator will receive this post as well as the Chief Justice of the Federal Court of Canada and every Commissioner. Additionally many other people will receive it. I would think that you have the deep desire to become famous. This will come to pass. Many people will become familiar with the name 'Richard Warman' and all it stands for. Aren't you tickled pink?! ... Freedom of speech is non-existent or forbidden when Jewish and Zionist atrocities are involved. Yet, when you talk about NAZI atrocities nobody is allowed to even ask a question. Hypocrisy seems to be a way of life for you and your fellow Zionist brethren. Mr. Warman, to any level headed individual you look like a real jerk. What is good for you is forbidden to everyone else. What you and your fellow Zionists do all day is off limits for everyone else. It seems to me that discrimination is your way of life... You poor fellow. You cry like a baby who misses his mother. Do you think that I should simply take your abuse, your terrorist tactics against myself, your frauds, your lies, your coercion, your threats, your underhandedness, your intimidation, your vile behaviour against me? Don't think that I am your run-of-the-mill victim! You started this fight, you better don't [sic] chicken out now. Show what you are made of. I hate to deal with cowards. You will realize very quickly now that the shit that you stirred up will not settle down quickly. You will find yourself enmeshed in a lawsuit fairly soon - too soon for your liking. You might even face two or more lawsuits. They will be easy to deal with compared to the flyers you will have to face if you don't re-instate my web site with Rackspace with David Icke's web site before the flyers are being distributed (22)... If the Commissioners continue with their investigation against me they will face the same exposure I will give you. You have an interesting time ahead of you. Brace yourself and know that I am not the only one utterly disgusted with your criminal behaviour. [Emphasis in the original text] [64] Mr. Kyburz' threats against Mr. Warman become even more explicit in the next posting, where he states: I just found out today that Mr. Richard Warman will have to face charges of libel and extortion by the end of August. I might take this same approach if this investigation against myself and my web site is not dropped immediately and Mr. Warman has not re-instated my web site with Rackspace and David Icke's web site. Mr. Warman will not be the only defendant should I choose to take this same approach. Every Commissioner as well as you [here Mr. Kyburz names two Commission employees] will be named in the suit. That will be your least worry though. The flyers will be much worse to contend with than the lawsuit. Once the flyers have started they will not stop. The flyers have the capacity to ruin your professional career as well as your life. This is not a threat, it is a warning and fair notice to you all. Careers of judges and police officers have been severely impeded if not destroyed as well as their family lives. Folks, crime does not pay, remember that. Devious accusations by the guilty parties against the people who try to spread the truth will not be successful any longer either. I have given you repeated warnings. I do not wish to destroy anyone's life or career. But people who do not respect the law of the land will have to pay the price for their reckless violations of individual's common law rights and freedoms. Let me tell you: Crime does not pay and a career built on crime will have to be stopped. Mr. Kyburz signs this posting Ernst-Friedrich Kyburz. This posting indicates that it is being copied to Members of Parliament and Senators, Members of the Alberta Legislature, Chief Justice Richard, the Commissioners of the Canadian Human Rights Commission and many others. [65] In a posting dated June 11, 2002, Mr. Kyburz reproduces an article from the National Post dealing with measures being taken by Transport Canada to deal with the threat of terrorism. After commenting on what he says are the criminal actions of government, Mr. Kyburz says I wonder if this idea was concocted by Richard Warman or one of his ilk? These are the people who have the most evil ideas of restricting freedom everywhere. They are the specialists in terrorism, murder and genocide.... After having identified Mr. Warman as a terrorist, Mr. Kyburz goes on to state We have to use every possible method to rid Canada of terrorists. [66] Mr. Kyburz's subsequent web postings contain repeated references to Richard Warman. Some of these are disparaging comments, often related to his perceived Jewish faith. Some are more in the nature of implied threats, such as the comment that Richard Warman has spoiled his future. In some postings, the threat is more direct: the July 22 posting includes a lawyer joke, sent to Mr. Warman to brighten his day. Mr. Kyburz explains sending the joke, saying I know you are feeling down knowing that criminal charges coming your way and flyers in the making about your fine character. On August 1, 2002, Mr. Kyburz says Richard Warman, we have figured you and your devilish racket out. Bra[c]e yourself, the law of action and reaction is in effect. [67] Six days later, Mr. Kyburz posted a news story regarding the death of a police officer named Eric Taylor. Officer Taylor was allegedly shot to death by a man named Don Matthews. The article indicates that Mr. Matthews was the president of the National Constitutional Academy, a group that believes police have no law enforcement power. After asserting that he ... detest[s] violence from any side, Mr. Kyburz says: What will people do when they are pushed into the corner without an escape? What will they do when they can observe day in and day out the relentless assault on our rights and freedoms - when they experience the reckless and devious lying and twisting of the law of the land for purposes of everyone's enslavement by any and every government agency, including the courts and the police? Do the people in these government agencies think that they will escape their devious actions scot free? Do they think that everyone will wait to be slaughtered without any resistance? I am afraid that a number of people will act as Don Matthews did - line one of the NWO flunkies up in the cross hairs and pull the trigger. And yes, Mr. Richard Warman, you have been noted by a number of people, as you are well aware. People do not take kindly any longer to your abusive, menacing, libelous and lawless behaviour. This is not a threat, it is a warning for your consideration before you get yourself in deeper trouble than you are in already. Your Zionist tactics are noted by the enemies you created for yourself. You will not be able to handle them - not even with the help of your Zionist brethren. They will drown themselves in the pig shit they tried to get the entire world into. B. The Undisclosed Messages [68] Included in the material filed with the Tribunal are a group of messages posted on the Patriots on Guard web forum shortly before the hearing was to begin. Counsel for the Commission asked to file this material, notwithstanding that the documents had not been disclosed to Mr. Kyburz in advance of the hearing, as required by the Tribunal's Interim Rules of Procedure. The Tribunal allowed the material to be filed at the hearing, reserving our decision as to what, if any, weight would be attributed to the documents, given that they were not disclosed to Mr. Kyburz before the hearing. [69] The non-disclosure of the documents presents the Tribunal with an interesting dilemma. The disclosure obligations imposed on parties under the Tribunal's Interim Rules of Procedure are designed to ensure that each party is aware of the case that they have to meet in advance of the hearing. In the case of respondents, pre-hearing disclosure also ensures that the respondent is aware of the full extent of the allegations against him, thus enabling the respondent to gauge the extent of his potential exposure. [70] In this case, while Mr. Kyburz would arguably not have been aware of the Commission's intention to rely on the most recent postings, Mr. Warman's complaint did allege that the discriminatory practice was ongoing. Further, had Mr. Kyburz appeared at the hearing, the Tribunal would likely have allowed the Commission to adduce the additional evidence, as it would have been difficult for Mr. Kyburz to demonstrate that he was surprised by the documents, or prejudiced in any way, in that the documents appear to have originated from Mr. Kyburz himself. This raises the question of whether a respondent should be able to put himself in a more advantageous position by refusing to participate in a Tribunal hearing than he would have been in, had he shown up. [71] At the end of the day, however, we do not need to resolve this issue. The additional documents add little to the complaint, in that they simply consist of further examples of the type of messages already described. C. Analysis of the Retaliation Complaint [72] There can be no doubt that Mr. Kyburz both retaliated and threatened to retaliate against Mr. Warman for having filed his section 13 human rights complaint with the Canadian Human Rights Commission. [73] The most obvious example of actual retaliation is the letter Mr. Kyburz apparently sent to Chief Justice Richard, in an effort to get Mr. Warman fired from his employment with the Federal Court of Canada. It does not matter that this effort does not appear to have been successful - a section 14.1 violation is made out when a respondent tries to inflict harm on a complainant for having filed his complaint.(23) By copying the letter to numerous other individuals, Mr. Kyburz clearly intended to maximize the damage to Mr. Warman's reputation. [74] Of even greater concern are the threats to Mr. Warman's life. A reasonable reading of Mr. Kyburz' expression of ostensible concern that someone might line one of the NWO flunkies up in the cross hairs and pull the trigger comment, immediately followed by the reference to Mr. Warman's activities having been noted, is that this was intended as a veiled warning that Mr. Warman's life was in danger. Similarly, the statement in the June 11, 2002 forum posting linking Mr. Warman to terrorism, followed by the exhortation to ... use every possible method to rid Canada of terrorists can reasonably be interpreted as a threat to Mr. Warman's life. [75] There are also clear and repeated threats to subject Mr. Warman to a flyer campaign, with the avowed intent of ruining his career and his life, as well as numerous verbal attacks on Mr. Warman, his character, and his motivations in filing the complaint. [76] While Mr. Kyburz had included references to Mr. Warman in his web postings even before Mr. Warman filed his human rights complaint, as a result of Mr. Warman's efforts to shut down the Patriots on Guard web site, both the content and the frequency of the comments changed after the complaint was filed with the Canadian Human Rights Commission. Not only are the references to Mr. Warman more frequent - they also became more vitriolic. Many messages make direct reference to Mr. Warman's complaint or to the Commission investigation process. As noted, other messages include threats to harm Mr. Warman in various ways. It is clear that the filing of Mr. Warman's complaint was a significant factor in the escalation of Mr. Kyburz' campaign against Mr. Warman. This clearly establishes a breach of section 14.1 of the Canadian Human Rights Act, and accordingly this aspect of Mr. Warman's complaint is also sustained. [77] Before leaving the issue of retaliation, it should be noted that Mr. Warman also testified to his belief that Mr. Kyburz was involved in the laying of criminal charges against him. While this could most certainly constitute retaliatory activity, the documentary evidence before us raises a real question as to whether Mr. Kyburz was behind the laying of the charges.(24) While Mr. Kyburz was most certainly kept advised as to what was happening in relation to the criminal charges, it appears that the charges themselves were actually laid by two other individuals, who had their own objections to Mr. Warman's activities. Having regard to all of the evidence before us in relation to this issue, we are not persuaded that the laying of the criminal charges against Mr. Warman constitutes retaliation by Mr. Kyburz for Mr. Warman having filed his section 13 complaint. Mr. Kyburz does, however, threaten to file criminal charges of his own against Mr. Warman, which, in this context, is a further example of retaliatory conduct. VI. THE COPYRIGHT NOTICE [78] As was noted earlier, Mr. Kyburz sent the Tribunal a document entitled Copyright Notice, relating to the name Ernst-Friedrich Kyburz. Mr. Kyburz did not, however, provide the Tribunal with any explanation of what he hoped to achieve by this action. Suffice it to say that one cannot insulate oneself from liability for breach of a statute such as the Canadian Human Rights Act by the delivery of a copyright notice. VII. REMEDY [79] Having substantiated both Mr. Warman's section 13 complaint and his section 14.1 complaint, the final issue to be determined is that of remedy. Sections 13 and 14.1 of the Canadian Human Rights Act each engage different remedial provisions of the Act, and thus the appropriate remedy for each complaint will be dealt with separately. A. The Section 13 Complaint (i) Cease and Desist Order [80] Where a section 13 complaint is substantiated, section 54(1)(a) of the Act empowers the Tribunal to order the respondent to cease the discriminatory practice, and to take measures in consultation with the Commission to redress the practice or to prevent the same or a similar practice from occurring in the future. [81] Internet communications present a particular challenge for the Tribunal in crafting a meaningful remedy. The unique nature of Internet technology, including the jurisdictional challenges arising from the borderless world of cyberspace, as well as the 'moving targets' created by the use of mirror sites, raise real concerns as to the efficacy of cease and desist orders in relation to hate messages disseminated on the Internet. [82] Despite these limitations, as was noted by the Tribunal in Zündel, a cease and desist order can have both practical and symbolic consequences. On a practical level, such an order should prevent the respondent himself from continuing to communicate material of the nature described in this decision. Further, there is an important symbolic value to the public denunciation of the actions which form the subject matter of Mr. Warman's section 13 complaint. We adopt the observation of the Tribunal in Zündel, that Parliament, on behalf of all Canadians, has determined that the telephonic communication of hate messages is not to be tolerated in our society.... [T]he victims of hate are entitled to obtain the benefit of the full weight of [the Tribunal's] authority. [83] Accordingly, the Tribunal orders that Fred Kyburz, and any other individuals who act in concert with Mr. Kyburz, cease the discriminatory practice of communicating telephonically or causing to be communicated telephonically by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, matters of the type contained in Exhibits HR-1 and HR-2, or any other messages of a substantially similar content, that are likely to expose a person or persons to hatred or contempt by reason of the fact that that person or persons are identifiable on the basis of a prohibited ground of discrimination, contrary to section 13(1) of the Canadian Human Rights Act. For sake of clarity, this order includes the requirement that Mr. Kyburz cease publicizing the Patriots on Guard web site material now posted on the Archive.org web site, or referring anyone to the Archive.org site. [84] Although Mr. Warman's section 13 complaint was filed in relation to the Patriots on Guard web site, it is apparent that since the filing of the complaint, Mr. Kyburz has used the Patriots on Guard web forum as a vehicle for the transmission of his hateful messages. Accordingly, the Tribunal's order extends to cover material posted on the Patriots on Guard forum. Recognizing that some time may be required to dismantle the existing web forum, the Tribunal orders that Mr. Kyburz shut down the Patriots on Guard web forum within seven days of being notified of this decision. This should not be interpreted as giving Mr. Kyburz licence to say what he wants to in the interim period. To this end, the Tribunal orders that Mr. Kyburz cease and desist from posting any new Internet communications of the type that form the subject matter of the section 13 complaint, whether on the Patriots on Guard web forum or elsewhere on the Internet, immediately upon being notified of the Tribunal's decision. [85] The Commission asked that the Tribunal order that service of the Tribunal's decision on Mr. Kyburz could be effected by priority courier and e-mail. Having regard to the very serious potential consequences for Mr. Kyburz if he does not comply with the Tribunal's ruling, the Tribunal is of the view that such an order is not appropriate. Further, in that it is the Federal Court, and not the Tribunal that is responsible for the enforcement of the Tribunal's orders, we are of the view that it would not be appropriate for this Tribunal to purport to dictate to the Federal Court what should constitute sufficient notice to Mr. Kyburz, should enforcement proceedings become necessary. [86] The Commission also asked that the Tribunal order Mr. Kyburz to contact Archive.org in order to have the Patriots on Guard web site material removed from the Archive.org site. We have concerns about the enforceability of such an order. Such a request would in all likelihood require an explanation from Mr. Kyburz as to why he was asking that the material be removed. This could potentially compel Mr. Kyburz to say something that he does not believe to be true, a result that the Federal Court found to be problematic in Stevenson v. Canadian Security and Intelligence Service. (25) Further, in the event that Mr. Kyburz' efforts are unsuccessful, questions could subsequently arise as to the sincerity of his request, requiring the type of subjective assessment that could make enforcement difficult. It seems to us that a request from the Commission to Archive.org, accompanied by a copy of this decision, is much more likely to be effective, and thus we decline to make the order requested. In the absence of statutory authorization, the Tribunal cannot make an order against a non-party to this proceeding. However, we would encourage the proprietors of the Archive.org web site to give serious consideration to removing the offending material from the site. (ii) Special Compensation [87] Where a victim is specifically identified in the communications that constitute the discriminatory practice under section 13 of the Canadian Human Rights Act, subsection 54(1)(b) of the Act authorizes the Tribunal to order a respondent to pay special compensation of up to $20,000. Subsection 54(1)(b) incorporates by reference subsection 53(3) of the Act, which provides that such compensation may be ordered if the Tribunal finds that ... the person is engaging or has engaged in the discriminatory practice wilfully or recklessly. [88] In assessing the appropriateness of such an order in this case, it should be kept in mind that the discriminatory practice in issue here is the communication of hate messages contrary to section 13 of the Act. As a consequence, the only messages in issue at this point are those which form the subject of Mr. Warman's section 13 complaint - that is, the messages that appeared on the Patriots on Guard web site. While the e-mail message to Mr. Warman from Mr. Kyburz and the messages appearing on the Patriots on Guard web forum are relevant to the remedy to be awarded with respect to the section 14.1 violation, we have not considered those messages in connection with the section 13 remedy. [89] Mr. Kyburz began including regular references to Mr. Warman, who he identified by name, in his postings on the Patriots on Guard web site as a result of Mr. Warman's efforts to shut down the site. The references to Mr. Warman are noteworthy for their degree of vitriol, motivated, at least in part, by Mr. Kyburz' perception that Mr. Warman was himself Jewish. This reflects a recurring pattern in Mr. Kyburz' web postings: as soon as anyone disagrees with his views, that person immediately becomes part of the world-wide Jewish conspiracy. [90] Mr. Warman testified that he was not Jewish. In our view, the fact that Mr. Warman was not himself Jewish does not detract in any way from the viciousness of the attacks launched against him by Mr. Kyburz. These attacks were clearly motivated, at least in part, by Mr. Kyburz' perception that Mr. Warman was Jewish. Based upon this belief, Mr. Kyburz ascribed very negative character traits, as well as criminal behaviour to Mr. Warman. Mr. Warman, quite understandably, found this conduct to be very hurtful. In our view, Mr. Warman is a victim of the discriminatory practice. [91] Mr. Kyburz' behaviour was both willful and repeated. In our view, Mr. Warman is entitled to a significant award under this head. Accordingly, the Tribunal awards Mr. Warman the sum of $15,000 as special compensation, pursuant to subsection 54(1)(b) of the Act. (iii) Interest [92] Interest is payable on non-pecuniary awards made under the Canadian Human Rights Act .(26) Interest shall be paid on the monies awarded pursuant to this decision by way of special compensation, in accordance with Rule 9(12) of the Canadian Human Rights Tribunal Interim Rules of Procedure. Interest will start to run from the date of this decision to the date of payment. In no case, however, should the total amount payable on account of special compensation, including interest, exceed $20,000. (27) (iv) Penalty [93] Subsection 54(1)(c) of the Act permits the Tribunal to order a respondent in a section 13 complaint to pay a penalty of up to $10,000. The inclusion of this provision in the 1998 amendments to the Act represents a significant departure from the traditional approach that damage awards in human rights cases were primarily remedial, and not punitive. To date, no order has been made by the Tribunal under this provision. [94] Awards of special compensation made under subsection 54(1)(b) in relation to section 13 complaints are intended to compensate individuals specifically named in hate messages. In contrast, penalties levied pursuant to subsection 54(1)(c) of the Act are intended to reflect society's opprobrium for the respondent's conduct.(28) [95] In deciding whether to order Mr. Kyburz to pay a penalty in this case, Parliament has directed that we take several factors into account. These include ... the nature, circumstances, extent and gravity of the discriminatory practice, as well as the wilfulness or intent of the person who engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person's ability to pay the penalty."(29) Each of these factors will be considered in turn. [96] Insofar as the nature, circumstances, extent and gravity of the discriminatory practice are concerned, we have found that Mr. Kyburz repeatedly communicated messages regarding Jewish people that were nasty, vicious and extreme. Not only did these messages attribute numerous and varied criminal acts to people of the Jewish faith, described therein as innately corrupt and devious, but some messages went so far as to openly advocate the extermination of Jews root and branch as a class. This weighs heavily in favour of the assessment of a significant penalty. [97] We have found that Mr. Kyburz was responsible for the communications on the Patriots on Guard web site. It is clear from the messages themselves that he communicated this information wilfully, knowing that it was upsetting to many people. There is, however, no evidence before the Tribunal to suggest that Mr. Kyburz has been involved in any prior discriminatory practices, which serves as a mitigating factor. [98] The final consideration for the Tribunal is Mr. Kyburz' ability to pay a penalty. In this regard, we note that the only information that we have in relation to this issue is the unsworn assertion contained in one of Mr. Kyburz' web postings that he is impecunious.(30) In closing argument, counsel for the Commission suggested that the burden in this regard lay not on the Commission to show that Mr. Kyburz had resources, but rather on Mr. Kyburz to show that he was unable to pay, as this type of information would be largely within Mr. Kyburz' control. [99] There is at least some jurisprudence to support the Commission's position. In R. v. Noseworthy(31), the Newfoundland Court of Appeal considered the issue of the burden of proof with respect to an individual's ability to pay, noting that: In the ordinary course of any litigation, it is the duty of the party pleading or otherwise relying on a specific circumstance to lead the evidence necessary to establish that circumstance. Because of the presumption of innocence, a criminal trial is different. The entire burden of establishing, beyond a reasonable doubt, all facts necessary to a conclusion of guilt rests with the Crown from beginning to end. The presumption of innocence, however, ends with the conclusion by the trial court that the accused person is guilty of the offence as charged. From then on, any position that is pleaded or relied upon is dealt with on the basis of the normal principle that the party pleading or relying upon a specific factual circumstance has the burden of leading the evidence necessary to establish it. [100] It should be noted that the Court's comments in Noseworthy were made in the criminal law context. The Court noted that the Criminal Code does not impose a general duty on a trial judge to inquire into an individual's ability to pay, except in limited circumstances. In contrast, subsection 54(1.1) mandates that the Tribunal consider the respondent's ability to pay before levying a fine. That said, we are of the view that the Court's comments regarding the burden of proof relating to the ability to pay are equally applicable to our deliberations under this provision of the Canadian Human Rights Act. [101] In this case, there is some evidence before us, albeit evidence that is unsworn and untested by cross-examination, to suggest that Mr. Kyburz may have limited resources. Because of the way the evidence was adduced, we do not feel that we can attribute it much weight, although we have considered it. We have also taken into account the fact that this is evidently a 'first offence' for Mr. Kyburz. While the seriousness of the section 13 breach would otherwise call for a fine at or near the maximum permissible under the legislation, these factors have persuaded the Tribunal that a somewhat reduced penalty is appropriate. Having regard to all of the circumstances enunciated in subsection 54(1.1), we order that Mr. Kyburz pay a penalty in the amount of $7,500. [102] Payment of the penalty shall be made by certified cheque or money order, payable to the Receiver General for Canada, and must be received by the Tribunal within 35 days of Mr. Kyburz being notified of this decision. B. The Section 14.1 Complaint (i) Cease and Desist Order [103] Remedies with respect to violations of section 14.1 of the Canadian Human Rights Act are governed by section 53 of the Act. Where the Tribunal deems it appropriate to do so, subsection 53(2)(a) empowers the Tribunal to order the respondent to cease the discriminatory practice. [104] Mr. Kyburz is ordered to cease and desist from retaliating against Mr. Warman for having filed his human rights complaint with the Canadian Human Rights Commission. This order covers retaliatory conduct including, but not limited to, e-mail communication and web postings, whether on the Patriots on Guard web forum or elsewhere on the Internet, that is similar to the material contained in Exhibits HR-1 and HR-2. Mr. Kyburz is further ordered to cease threatening Mr. Warman, or attempting to interfere with Mr. Warman's employment, whether it be through the use of the Internet, or by other means. [105] Unlike the dismantling of the web forum, which requires some positive action on the part of Mr. Kyburz, we see no reason to delay the effect of this portion of our order. Mr. Kyburz is directed to cease his retaliatory activity immediately upon becoming aware of the Tribunal's decision. (ii) Compensation for Pain and Suffering [106] Subsection 53(2)(e) allows the Tribunal to make an award of up to $20,000 to compensate the victim of a discriminatory practice for any pain and suffering that he experienced as a result of the discriminatory practice. In this case, the Commission asks that Richard Warman be awarded the maximum award permissible under the legislation. [107] Certainly, the retaliatory actions taken by Mr. Kyburz in this case were very serious. Not only did Mr. Kyburz repeatedly disparage Mr. Warman publicly in the most negative terms, it appears that he actively attempted to interfere with Mr. Warman's employment, going so far as seeking to have him fired from his job. Even more worrisome are the veiled threats that Mr. Kyburz made to Mr. Warman's life. [108] It was clear from his testimony that Mr. Warman was somewhat shaken by his experiences with Mr. Kyburz. He described the fear that he felt for his own safety, as well as for the safety of those close to him. He also testified to the impact that Mr. Kyburz' retaliatory actions have had on his day-to-day life, and the measures that he has felt it necessary to take for his own safety, which have included involving the police. [109] That said, Mr. Warman strikes the Tribunal as a resilient individual, who was clearly on something of a personal mission to stop people such as Mr. Kyburz from disseminating their vitriol over the Web. It appears that Mr. Warman's conviction as to the justness of his cause has served to insulate him somewhat from the negative effects that Mr. Kyburz' actions may have otherwise had on a less strong individual. In this regard we note that there is no medical or other evidence before us that would suggest that Mr. Warman has suffered any health-related consequences as a result of Mr. Kyburz' actions. [110] In all of the circumstances, we are of the view that an award of $15,000 for Mr. Warman's pain and suffering is appropriate. (iii) Interest [111] Interest shall be paid on the monies awarded pursuant to this decision for Mr. Warman's pain and suffering, in accordance with Rule 9(12) of the Canadian Human Rights Tribunal Interim Rules of Procedure. Interest will start to run from the date of this decision to the date of payment. In no case, however, should the total amount payable on account of pain and suffering, including interest, exceed $20,000. (32) (iv) Special Compensation [112] Although subsection 53(3) of the Act allows for an award of special compensation in relation to the violation of section 14.1, no such remedy was requested here, and none is being awarded. VIII. ORDER [113] For the foregoing reasons, we declare that Mr. Warman's rights under the Canadian Human Rights Act have been contravened by Fred Kyburz, and order in relation to the section 13 violation that: Fred Kyburz, and any other individuals who act in concert with Mr. Kyburz cease the discriminatory practice of communicating telephonically or causing to be communicated telephonically by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, matters of the type contained in Exhibits HR-1 and HR-2, or any other messages of a substantially similar content, that are likely to expose a person or persons to hatred or contempt by reason of the fact that that person or persons are identifiable on the basis of a prohibited ground of discrimination, contrary to section 13(1) of the Canadian Human Rights Act. This order includes the requirement that Mr. Kyburz cease publicizing the Patriots on Guard web site material now posted on the Archive.org web site, or referring anyone to the Archive.org web site; Mr. Kyburz shall have seven days from the date on which he is notified of the Tribunal's decision to shut down the Patriots on Guard web forum. The Tribunal further orders that Mr. Kyburz cease and desist from posting any new Internet communications of the type which form the subject matter of the section 13 complaint, whether on the Patriots on Guard web forum or elsewhere on the Internet, immediately upon being notified of the Tribunal's decision; Mr. Kyburz shall pay to Mr. Warman the sum of $15,000 as special compensation, pursuant to subsection 54(1)(b) of the Act; Interest shall be paid on the monies awarded to Mr. Warman as special compensation, in accordance with Rule 9(12) of the Canadian Human Rights Tribunal Interim Rules of Procedure. Interest will start to run from the date of this decision to the date of payment. In no case, however, should the total amount payable on account of special compensation, including interest, exceed $20,000; and Mr. Kyburz shall pay a penalty in the amount of $7,500. Payment of the penalty shall be made by certified cheque or money order, payable to the Receiver General for Canada, and must be received by the Tribunal within 35 days of Mr. Kyburz being notified of this decision. With respect to the section 14.1 violation, the Tribunal orders that: Immediately upon becoming aware of the Tribunal's decision, Mr. Kyburz shall cease and desist from retaliating against Mr. Warman for having filed his human rights complaint with the Canadian Human Rights Commission. This order covers conduct including, but not limited to, e-mail communication and web postings, whether on the Patriots on Guard web forum or elsewhere on the Internet, that is similar to the material contained in Exhibits HR-1 and HR-2. Mr. Kyburz is further ordered to cease threatening Mr. Warman, or attempting to interfere with Mr. Warman's employment. Mr. Kyburz shall pay to Mr. Warman the sum of $15,000 for Mr. Warman's pain and suffering; and Interest shall be paid on the monies awarded to Mr. Warman for his pain and suffering, in accordance with Rule 9(12) of the Canadian Human Rights Tribunal Interim Rules of Procedure. Interest will start to run from the date of this decision to the date of payment. In no case, however, should the total amount payable on account of pain and suffering, including interest, exceed $20,000. (Original signed by) Anne L. Mactavish, Chair (Original signed by) Shirish Chotalia, Member (Original signed by) Eve Roberts, Q.C., Member OTTAWA, Ontario May 9, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T726/3102 STYLE OF CAUSE: Richard Warman v. Fred Kyburz PLACE OF HEARING: Ottawa, Ontario (March 17 and 18, 2003) DECISION OF THE TRIBUNAL DATED: May 9, 2003 APPEARANCES: Richard Warman On his own behalf Pam MacEachern For the Canadian Human Rights Commission 1.1 The exchange of e-mails appearing at Tab 30 of Exhibit HR-1 suggest that Mr. Kyburz has returned documents sent to him by both the Commission and the Tribunal with similar annotations, and that these actions reflect a strategic decision on his part. 2.2 Payzant et al. v. McAleer and Canadian Liberty Net, 26 C.H.R.R. D/271, Aff'd 26 C.H.R.R. D/280 (F.C.T.D.). 3.3 Schnell v. Machiavelli and Associates Emprize Inc., 43 C.H.R.R. D/453, at para. 127. 4.4 S.C. 2001, c.41, section 88. 5.5 According to Mr. Warman, the Patriots on Guard site and its contents can still be accessed through the Internet at the Archive.org web site. Mr. Warman explained that Archive.org is a service established by an American university with the stated goal of collecting and cataloging as much of the World Wide Web as possible. There is no indication that Mr. Kyburz asked to have his material archived by Archive.org. Thus it may be Archive.org that is communicating the information at this point, and not Mr. Kyburz. 6.6 (2002), 41 C.H.R.R. D/274. See also Schnell, supra. 7.7 Dr. Mock, the expert called by the Commission, explained that Ashkenazi Jews are Jews of European descent. 8.8 In earlier messages, Mr. Kyburz identified the Khazars as the group of Medieval Europeans who chose Judaism as a religion, and became the Ashkenazi Jews. 9.9 Dr. Mock explained that the 'New World Order' is a somewhat derogatory term used to describe the realignment of power allegedly being effected by Jewish forces. 10.10 Exhibit HR-1, Tab 20 11.11 Exhibit HR-1, Tab 21 12.12 Exhibit HR-1, Tab 22 13.13 At different points in the material, it is alleged that Jews control the media, courts, police, the United Nations, schools and universities, the entertainment industry, the banking system, the United States of America, the Canadian government, pharmaceutical companies, the medical profession and international corporations. 14.14 [1990] 3 S.C.R. 893 15.15 (1989), 10 C.H.R.R. D/6450 at D/6469. (C.H.R.T.) 16.16 It should also be noted that Dr. Mock testified that Ashkenazi Jews make up the majority of the world's Jewish population. 17.17 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665. See also Via Rail Canada Inc. v. Canada (Human Rights Comm.) (No. 2) (1999), 33 C.H.R.R. D/127 (CHRT). 18.18 G.A. Res. 217A (III), U.N. Doc. A/810 (1948). See also the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art.19. 19.19 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c.11, section 2. 20.20 Members of the de-tax movement evidently reject the legal authority of federal and provincial governments to levy taxes or to require that drivers of motor vehicles be licenced. (Exhibit HR-1, Tab 13) 21.21 The Tribunal was not provided with any explanation with respect to the reference to David Icke's web site. 22.22 In earlier web postings, Mr. Kyburz alludes to what he calls 'the flyer program'. This appears to be a tactic used when individuals cross Mr. Kyburz, and seems to consist of the distribution of flyers regarding a target individual's alleged misdeeds in that individual's neighborhood. 23.23 It should be noted that there is no evidence that the letter to Chief Justice Richard was actually sent, beyond Mr. Kyburz' unsworn assertion that he sent it. Regardless of whether the letter was actually sent to the Chief Justice or not, by posting a copy on the web forum, where Mr. Kyburz knew that Mr. Warman and others would see it, Mr. Kyburz clearly intended to upset Mr. Warman, and to damage his reputation, in violation of section 14.1. 24.24 See Exhibit HR-2, Tab 50 25.25 2003 FCT 341 26.26 Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401. (F.C.A.) 27.27 Hebert v. Canada (Canadian Armed Forces), (1993), 23 C.H.R.R. D/ 107 (F.C.T.D.) 28.28 Schnell, supra., at para. 163. 29.29 Canadian Human Rights Act, subsection 54(1.1) 30.30 Exhibit HR-1, Tab 33, at p. 256 31.31 [2000] N.J. No. 255 32.32 See Hebert, supra.

2003 CHRT 19

CHRT

Communications, Energy and Paperworkers Union of Canada v. Bell Canada

en

2003-05-28

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6888/index.do

2023-12-01

Communications, Energy and Paperworkers Union of Canada v. Bell Canada Collection Canadian Human Rights Tribunal Date 2003-05-28 Neutral citation 2003 CHRT 19 File number(s) T503/2098 Decision-maker(s) Deschamps, Pierre; Sinclair, Grant, Q.C. Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA, FEMMES-ACTION Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent RULING ON PRIVILEGE 2003 CHRT 19 2003/05/28 PANEL: J. Grant Sinclair, Chair Pierre Deschamps, Member [1] On December 30, 2002, the Tribunal ordered that Bell Canada disclose all documents relating to the Joint Study located at 1000 De La Gauchetière, Montreal, and produce these documents to the other parties, except for those documents for which Bell may claim privilege. The Tribunal subsequently ordered that CHRC, CEP and Femmes-Actions disclose and produce all documents in their possession relating to the Joint Study, except documents for which privilege was claimed. In the final tally, out of a total of 1,810 documents disclosed, Bell claimed privilege for 13 documents; CEP, 3 out of a total of approximately 148 documents disclosed; and CHRC and Femmes-Actions, none. [2] The documents for which Bell claims privilege are listed in Schedule III of Bell's List of Documents as follows: litigation and collective bargaining privilege: 1490, 1493, 1500, 1501, 1732, 1746; collective bargaining privilege: 1484, 1494, 1495, 1498; litigation, collective bargaining, settlement privilege: 1752, 1753 and 1787. [3] CEP claims settlement privilege for document numbers 21, 53 and 83 listed in Schedule 3 to its List of Documents. [4] The Tribunal was given copies of and has reviewed the Bell and CEP documents for which privilege has been claimed. There is no disagreement among the parties as to the applicable tests for each privilege. Rather, the dispute is whether, on the facts, the documents are subject to the privilege claimed. I. LITIGATION PRIVILEGE [5] To succeed in its claim for litigation privilege, Bell must satisfy all of the following tests: the communication must have been produced with litigation in mind; the communication must have been produced for the dominant purpose of receiving legal advice or as an aid to the conduct of litigation; the prospect of litigation must be reasonable. [6] Bell pointed out that for those documents concerning CEP jobs (1490, 1493, 1500, 1501, 1732) there was no formal litigation between Bell and CEP at the time these documents were created. CEP systemic complaints were filed in 1994. But, Bell argues, it could be reasonably anticipated that, if no agreement was reached on correcting the wage gap, CEP would file complaints with the Commission. [7] With respect to CTEA document 1746, at the time this document was created, there were individual CTEA member complaints filed with the Commission and group complaints filed by CTEA. In this situation, Bell argues that there was outstanding litigation or at least it was reasonable to anticipate that litigation would ensue between Bell and CTEA, absent any agreement on wage gap. [8] The Tribunal finds that Bell has not satisfied all of the tests required pertaining to litigation privilege. In particular, it is our opinion that these documents were not created for the dominant purpose of receiving legal advice or as an aid to the conduct of litigation. Rather, the facts show that they were created for the purpose of determining the extent of the wage gap in relation to the results of the Joint Study submitted to Bell management, CTEA and CEP. The results were to be used by the respective bargaining committees in an attempt to deal with the wage gap identified in the Joint Study. II. SETTLEMENT PRIVILEGE [9] In order for settlement privilege to apply, the party invoking such privilege has the burden of establishing that: a litigious dispute is in existence or is within contemplation; the communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; the purpose of the communication must be to effect settlement. [10] Bell invokes settlement privilege with respect to CTEA documents 1752, 1753 and 1787. Bell has consistently taken the position that the Joint Study results were to be shared by the respective bargaining committees of the parties. Any wage gap identified by the Joint Study was to be addressed through collective bargaining. We have concluded that the CTEA documents for which Bell claims settlement privilege were prepared in this context and not for the purpose of effecting a settlement in a litigious dispute. In our opinion, the collective bargaining process contemplated by the parties does not amount to settlement negotiations. III. COLLECTIVE BARGAINING PRIVILEGE [11] The Commission and CEP disputed that such a privilege exists in Canadian law. But if such a privilege is recognized, all parties agreed that, for collective bargaining privilege to apply, all four of the Wigmore criteria must be met: the communication must originate in a confidence; the confidence must be essential to the relationship in which the communication arises; the relationship must be one which should be sedulously fostered in the public good. the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation. [12] On the basis of our review of these documents, namely, 1484, 1490, 1493, 1494, 1495, 1498, 1500, 1501, 1732, 1746, 1752, 1753 and 1787, we have concluded that only document 1484 satisfies all of the Wigmore criteria. [13] Document 1484 is an internal memorandum from Michèle Boyer of Bell's Pay Equity Group to Diane Long, Bell's chief bargaining representative. The substance of this memorandum, dated March 16, 1992, deals with various strategies of Bell relating to pay equity issues in the context of collective bargaining. [14] Documents 1490, 1500, 1501, 1732, 1746 and 1787 contain tables and graphs relating to various costing scenarios, some referring to CEP jobs and some referring to CTEA jobs. They refer to wage rates effective at different dates. The tables and graphs found in documents 1490, 1500, 1732, 1746 and 1787 are very similar to those found in HR-76 and HR-73. As for the costing scenarios found in document 1501, they are identical to the costing scenarios found in the HR-76 at pages 1247, 1249 and 1251. [15] Document 1493 contains a costing of total Bell pay equity liability using the same 1993/06/01 wage rates as are found on page 1244 of HR-76 relating to pay line gaps. As for document 1752, it compares the male and female pay lines and establishes the percentage and dollar wage gap as of 1992/11/25 for the 98 benchmark jobs using the same wage rates found on page 1244, HR-76. [16] Document 1753 is similar to document 1752 except for the fact that the wage rates are as of 1992/12/01 instead of 1992/11/25. [17] Document 1494 lists on its first page the female dominated jobs to be adjusted in CEP bargaining group. The second page contains a table which reflects the total cost of the 1993 pay equity adjustment for CEP employees if a 0.919% increase is given to female dominated jobs. [18] Document 1495 contains on its first page a count of CEP employees excluding students as of December 31, 1992, June 30, 1993, as well as calculations. The second page contains a table which reflects the total cost of the 1993 pay equity adjustment for CEP employees if a 1% increase is awarded to benchmark female dominated jobs. [19] Documents 1494 and 1495 have costing scenarios using the same wage rates set out on page 11 of document 1490 and at page 1244 in HR-76. [20] The first page of document 1498 is identical to the first page of document 1495. As for the second page, it contains a handwritten count of CEP employees including students as of June 1993 and December 1992. [21] Assuming that Bell has satisfied the first three Wigmore tests, our review of the documents as set out above, shows that the documents are either identical, very similar or closely related to documents already in evidence. When balancing the interests as mandated by Wigmore test four, we conclude that the interests of justice are best served by production of these documents. IV. CEP SETTLEMENT PRIVILEGE CLAIM [22] Documents 21, 53 and 83 found in the CEP's Schedule 3 List are handwritten notes made by Patricia Blackstaffe. Document 21 is a two page document, dated October 11, 1994. Document 53 is a four page document, dated May 24, 1994. Document 83 is a 17-page document, dated April 14, 1994. [23] We have reviewed these documents. They were created after the filing of systemic complaints by the CEP and within the context of mediation. Litigation existed at the time they were created. The content of these documents shows that they were not intended to be disclosed if there was no settlement. Accordingly, we conclude that documents 21, 53 and 83 are privileged. V. RATIFICATION OF AGREEMENT [24] After discussion, the parties reached agreement regarding terms of disclosure/production of certain documents prepared by Bell comprising wage gap calculations and estimates over a specified period of time. Those documents which are covered by this agreement and the terms of the agreement are specified in Exhibit T-5. The Tribunal accepts Exhibit T-5 as part of this Ruling and as an appropriate resolution of the production/privilege issues relating to these particular concerns. Original signed by J. Grant Sinclair, Chair Pierre Deschamps, Member OTTAWA, Ontario May 28, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T503/2098 STYLE OF CAUSE: CEP et al v. Bell Canada PLACE OF HEARING: Ottawa, Ontario (April 29 & 30, 2003) RULING OF THE TRIBUNAL DATED: May 28, 2003 APPEARANCES: Peter Engelmann, Lisa Campbell For the CEP Francine Charron, Louise Grenier For Femmes-Action Andrew Raven, Patrick O'Rourke For the Canadian Human Rights Commission Guy Dufort, Steve Katkin For Bell Canada

2003 CHRT 2

CHRT

Desormeaux v. Ottawa-Carleton Regional Transit

en

2003-01-14

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6617/index.do

2023-12-01

Desormeaux v. Ottawa-Carleton Regional Transit Collection Canadian Human Rights Tribunal Date 2003-01-14 Neutral citation 2003 CHRT 2 Decision-maker(s) Mactavish, Anne L. Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: FRANCINE DESORMEAUX Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - OTTAWA-CARLETON REGIONAL TRANSIT COMMISSION Respondent REASONS FOR DECISION MEMBER:Anne L. Mactavish 2003 CHRT 2 2003/01/14 TABLE OF CONTENTS I. MS. DESORMEAUX'S EMPLOYMENT WITH OC TRANSPO A. Ms. Desormeaux's Attendance History B. How Did OC Transpo Deal With Ms. Desormeaux's Absenteeism? C. The Termination of Ms. Desormeaux's Employment II. LEGAL FRAMEWORK III. ANALYSIS A. Implications of the Adams Decision B. What is the Standard? C. Is There a Prima Facie Case of Discrimination? (i) Was Ms. Desormeaux Disabled? (ii) Was Ms. Desormeaux's Disability a Factor in the Decision to Terminate her Employment? C. Has OC Transpo Discharged its Burden? (i) Rational Connection (ii) Good Faith (iii) Did OC Transpo Accommodate Ms. Desormeaux to the Point of Undue Hardship? IV. REMEDY A. Reinstatement B. Wage Loss C. Gross-up D. Special Compensation E. Interest F. Apology G. Lost Wages for Attendance at the Hearing H. Consultation with the Canadian Human Rights Commission I. Retention of Jurisdiction V. ORDER [1] During her nearly nine years of employment as a bus operator with the Ottawa-Carleton Regional Transit Commission (OC Transpo), Francine Desormeaux was frequently absent from work. Her absences were caused by a variety of health problems including migraine headaches, kidney stones, gall bladder problems, ovarian cysts, viruses, a broken ankle, a back injury, bronchitis and stress. After numerous warnings from her employer, Ms. Desormeaux's employment with OC Transpo was terminated because of her chronic innocent absenteeism. Ms. Desormeaux alleges that this constitutes discrimination on the basis of disability, contrary to the provisions of section 7 of the Canadian Human Rights Act. I. MS. DESORMEAUX'S EMPLOYMENT WITH OC TRANSPO [2] After working for a number of years as a supervisor in a child care facility, Francine Desormeaux began work as a bus operator at OC Transpo in March of 1989. OC Transpo provides public transit in the National Capital Region. [3] Ms. Desormeaux says that she went through a period of adjustment, as she became used to driving a bus for her employer. Working in public transit presents a number of challenges for new employees, as they become used to dealing with the public, navigating the city and operating large vehicles. As junior employees, new drivers also get the least attractive shifts, including split shifts, as well as night and weekend work. [4] Despite these challenges, Ms. Desormeaux successfully completed an initial probationary period, and drove for OC Transpo for a number of years without any major incidents. It appears that apart from the issue of the frequency of her absences from work, Ms. Desormeaux was a good bus driver. She clearly enjoyed working with the public, and was generally a competent and reliable employee. Ms. Desormeaux's level of attendance was, however, a matter of concern to her employer, virtually from the day that she started working for OC Transpo. A. Ms. Desormeaux's Attendance History [5] Ms. Desormeaux reviewed OC Transpo's records of her attendance, in conjunction with the diaries that she kept throughout the period of her employment. In so doing, she was able to identify the reasons for most of her absences from work. Her testimony in this regard is summarized in the following table: Total Days Absent from Work Migraine-related Absences Significant Periods of Absence for Other Medical Reasons 1989 (from March 28) 21 full days 2 part days 9 full days 2 part days 6 full days - bronchitis 6 full days - minor gynaecological surgery 1990 16 full days 4 part days 8 full days 1 part day 6 full days, 2 part days - bronchitis 2 full days - gall bladder 1991 34 full days 2 part days 2 full days 3 full days - bronchitis 16 full days - gall bladder 10 full days, 1 part day - surgery - wisdom teeth 3 full days, 1 part day - sprained ankle 1992 52 full days 1 part day 3 full days 41 full days - gall bladder 5 full days - stomach flu 1993 96 full days 1 part day 2 full days 1 part day 8 full days - bronchitis/flu 79 full days - back injury 1994 26 full days 1 part day 7 full days 1 part day (1) 12 full days - back injury 1995 52 full days 5 part days 3 full days 2 part days 12 full days, 1 part day - ovarian cyst 32 full days - broken ankle (injury on duty) 1996 24 full days 7 part days 6 full days 3 part days 15 full days - 1 part day - ovarian cyst 1997 41 full days 1 part days 14 full days 1 part day 21 full days - kidney stones 1998 (to Jan.30) 3 full days 3 full days Total 365 full days 24 part days 57 full days 11 part days [6] It is evident from Ms. Desormeaux's testimony that the above table does not reflect the full extent of her absenteeism. There were several occasions when Ms. Desormeaux was ill, and unable to work, where she entered into an informal arrangement with a co-worker to cover for her. Under this arrangement, the co-worker would report to work in Ms. Desormeaux's stead. Ms. Desormeaux then paid her co-worker directly for the day worked. Ms. Desormeaux estimates that this occurred on three or four occasions. It is common ground that this practice was contrary to the policies of OC Transpo. B. How Did OC Transpo Deal With Ms. Desormeaux's Absenteeism? [7] Having its employees attend work on a regular and reliable basis is clearly important to OC Transpo, which delivers time-sensitive public transport. In an effort to manage employee absenteeism, OC Transpo has had a number of attendance management policies over time. [8] Ron Marcotte was Ms. Desormeaux's supervisor at the time that her employment with OC Transpo was terminated. He explained that during the early years of Ms. Desormeaux's employment with OC Transpo, excessive absenteeism was treated in the same way that other performance problems were dealt with: that is, as a disciplinary matter. Employees who were chronically absent from work were subject to progressive discipline, with sanctions ranging from reprimands up to and including dismissal. This view of chronic innocent absenteeism as a disciplinary matter is evident in the way in which Ms. Desormeaux's absenteeism was managed in the early stages of her career. [9] As previously noted, Ms. Desormeaux's absenteeism was a matter of concern to OC Transpo from the time that she started working for the organization. Ms. Desormeaux met with Chris Walton, who was the Operations Relations Officer and Ms. Desormeaux's supervisor, for a probationary evaluation on October 27, 1989. The appraisal document indicates that there were no concerns with respect to Ms. Desormeaux's performance, apart from her absenteeism. As of October, 1989, Ms. Desormeaux had missed 20 full or part days of work. According to the document, Mr. Walton spoke to Ms. Desormeaux about her attendance during the course of her evaluation meeting. [10] It appears from the documentation that Mr. Walton told Ms. Desormeaux on February 23, 1990 that serious consideration was being given to terminating her employment. In this and subsequent meetings, Ms. Desormeaux assured Mr. Walton that her attendance would improve. [11] By April of 1990, Ms. Desormeaux had been absent from work on 13 occasions, for a total of 37 full and part days. Mr. Walton again met with Ms. Desormeaux to discuss her unsatisfactory level of attendance. At the time that Ms. Desormeaux was notified of the meeting, Mr. Walton advised her that Due to the seriousness of this matter a decision on your future employment will be made. Ms. Desormeaux testified that she discussed the difficulties that she was having in adjusting to working at OC Transpo. She also told Mr. Walton about her migraine headaches and other health problems. Despite OC Transpo's concerns, Ms. Desormeaux successfully completed her probationary period, and was made a permanent employee. She was advised, however, that her attendance would be monitored on a regular basis. [12] Three months later, Ms. Desormeaux was given a one day suspension because of her absenteeism, and because she was involved in a minor accident. This suspension was imposed after another meeting with Mr. Walton, in the course of which Ms. Desormeaux again referred to her migraines. Ms. Desormeaux also advised Mr. Walton about problems that she was experiencing with her gall bladder, which would likely require surgery in the future. Ms. Desormeaux grieved this suspension, claiming that the majority of her absences were illness-related. In the course of the first level grievance hearing, Ms. Desormeaux's union argued that Ms. Desormeaux was experiencing severe migraine headaches, that she was receiving medical attention for the problem, and that she had scheduled all of her medical appointments outside of her working hours. An OC Transpo representative explained that Ms. Desormeaux's frequent absences created difficulties, as there were not always enough staff available to replace her. Ron Marcotte, who was then the Assistant Superintendent of Operating Personnel, was also in attendance at the grievance meeting. His notes indicate that: Ms. Desormeaux was advised that the situation was of her own doing. It was also noted that there were various options open to her at OC Transpo should she want to seek assistance. It was stressed that the Commission was not trying to terminate her but are trying to put her career on the right path. It appears that the only option identified to Ms. Desormeaux with respect to the assistance available to her at OC Transpo was the Employee Assistance Program (EAP). [13] This grievance was resolved on the basis that if Ms. Desormeaux was not absent from work on more than five occasions, or for more than 12 days over the next 12 months, and did not have another accident for which she was at fault, consideration would be given to reducing the suspension. Ms. Desormeaux testified that Mr. Walton told her that she would have to do whatever it took to get herself to work. It was recognized that Ms. Desormeaux might require surgery for her gallstones, and she was instructed to contact Mr. Walton in order to make arrangements for this absence. [14] It should be noted that this was the only occasion during Ms. Desormeaux's employment with OC Transpo when she was given a specific attendance target. Ms. Desormeaux met this target, although she says that to do so, she reported to work on occasion while taking Tylenol 3. Tylenol 3 contains codeine, and driving while taking it is contraindicated. [15] Ms. Desormeaux was interviewed regarding her attendance on December 9, 1992 and again on July 20, 1993. There is little information as to what was discussed in the course of these meetings. [16] On June 19, 1994, OC Transpo's policy regarding the Employment of Disabled Employees came into effect. This policy, which reflects a shift away from the disciplinary treatment of health-related absences, established a protocol for the consideration of requests for accommodation. It is common ground that although this policy remained in effect for a couple of years, Ms. Desormeaux's situation was never addressed in accordance with the policy, as no one, including Ms. Desormeaux herself, considered her to be disabled. [17] On July 11, 1994, Ms. Desormeaux met with Ron Marcotte, who had by this point replaced Mr. Walton as Ms. Desormeaux's supervisor. The purpose of this meeting was to discuss Ms. Desormeaux's unacceptable level of attendance. The contemporaneous documentation indicates that Ms. Desormeaux advised Mr. Marcotte that her absences were primarily due to her migraine headaches and the personal problems that she was experiencing at the time. Ms. Desormeaux was again warned that more serious discipline could be imposed if her level of attendance did not improve, and was once again referred to the EAP for assistance. [18] Mr. Marcotte met with Ms. Desormeaux again on December 6, 1995, to discuss her attendance. Rob Vye, Ms. Desormeaux's union representative, was also present at this meeting. Mr. Marcotte noted that if Ms. Desormeaux's absences for compensable injuries were excluded, her level of attendance had improved somewhat. Nevertheless, he advised Ms. Desormeaux that her attendance was still unacceptable, and cautioned her that if her level of attendance did not improve, the issue of her medical fitness to continue working would have to be addressed. A similar discussion took place between Ms. Desormeaux and Mr. Marcotte on August 29, 1996. [19] In November of 1996, OC Transpo introduced a new attendance management policy. Amongst other things, the purpose of this policy was to reduce absenteeism, while making every reasonable effort to provide assistance, accommodation, and rehabilitation to employees, and to provide employees with clear and fair communication of the employer's attendance expectations. In cases of illness or injury, the program required supervisors to ascertain from an independent medical consultant whether the employee in question suffered from a 'disability', within the meaning of the Canadian Human Rights Act, which required accommodation. The policy also advised supervisors to try to get employees to agree to a defined reasonable level of attendance for the future, suggesting that the plant average for absenteeism is a reasonable standard. Article 8 of the policy provides that, before terminating the employment of an individual for chronic innocent absenteeism, OC Transpo must be satisfied that, amongst other things, ... an honest effort has been made to accommodate the involved employee. [20] This attendance management program contemplated a more pro-active approach to managing employee absenteeism than did its predecessor. In accordance with this approach, employees whose absenteeism rate put them in the top 25 percent of the OC Transpo workforce were contacted with respect to their absenteeism, and many were interviewed regarding the situation. In this context, in March of 1997, OC Transpo bus operators, including Ms. Desormeaux, were notified that the absenteeism rate for the first months of 1997 was up 30% over the same period in 1996. Drivers who had been absent in the first three months of 1997 were advised that excessive absenteeism was threatening to compromise OC Transpo's ability to meet its service requirements, and were reminded of the necessity of regular attendance. [21] On September 29, 1997, Ms. Desormeaux and Mr. Vye met again with Mr. Marcotte. Although Mr. Marcotte did not question the legitimacy of Ms. Desormeaux's absences, he was concerned as to her medical fitness to work on a regular and reliable basis. Ms. Desormeaux testified that she asked Mr. Marcotte to tell her precisely how many days a year that she would be allowed to miss. It is common ground that Mr. Marcotte refused to do so, telling Ms. Desormeaux that her rate of attendance would simply have to improve. [22] Because of his concerns with respect to Ms. Desormeaux's fitness for work, Mr. Marcotte invoked Article 15.3 of the collective agreement in force between OC Transpo and the Amalgamated Transit Union, of which Ms. Desormeaux was a member. This Article allows OC Transpo to request that an employee provide a certificate from her doctor attesting to her fitness for work, where the employer has reasonable grounds for believing that the employee may be medically unfit to work on a regular basis. The collective agreement further contemplates that the employer may not be satisfied with the medical certificate provided by an employee. In such circumstances, the employee can be asked to provide a further certificate from a physician selected by OC Transpo. Mr. Marcotte explained that he was not seeking information about Ms. Desormeaux's diagnosis, but rather about the prognosis for attendance at work in the future. [23] In order to safeguard the confidentiality of employee medical information, requests of this nature are routed through OC Transpo's Occupational Health unit. On September 30, 1997, Louise Culham, an Occupational Nurse, wrote Ms. Desormeaux, asking her to provide a letter from her physician, giving an opinion as to Ms. Desormeaux's ability to perform work on a regular basis. Ms. Culham asked Ms. Desormeaux to have her doctor consider the following questions: Do you have a medical condition that could cause your attendance to be in excess of reasonableness? Is your problem of a temporary or chronic nature? What is the prognosis that you can perform your duties on a regular full-time basis? [24] Ms. Desormeaux's family doctor, Dr. Anne Meehan, responded to OC Transpo's request by letter dated October 16, 1997. Dr. Meehan's letter states: ... during the past year [Ms. Desormeaux] has had a few problems which have necessitated an absence from work. The first problem related to migraine headaches. Over time we have resolved that these are related to mechanical neck dysfunction. As a result, she has begun a program of regular neck exercises, as well as physiotherapy, which have significantly reduced both the severity and frequency of her headaches. The other problem which arose this past year was one of a renal calculi. The problem has resolved and is not likely to become an ongoing problem. Finally, Ms. Desormeaux is being investigated for a possible mass on her ovary. She is under the care of Dr. Treehuba for the investigation and potential treatment. This ovarian abnormality is not causing her any problem at the present. Hence, in response to your specific questions, the only problem among the above list which is possibly of a longer-term nature is that of migraines. In view of the definite improvement Ms. Desormeaux has experienced through her own efforts, and through physiotherapy, I do not anticipate that they will significantly interfere with her ability to perform her duties on a regular full-time basis. Both the renal calculi and the ovarian problem are isolated events and unlikely to become chronic or to recur ... Dr. Meehan was not specifically asked whether Ms. Desormeaux suffered from a disability, and consequently, her letter did not address this issue. There is no indication in Dr. Meehan's letter that Ms. Desormeaux required any form of accommodation in the workplace. [25] Louise Culham subsequently advised Mr. Marcotte that: [Ms. Desormeaux] does possibly have a problem which is of a longer-term nature. However, in view of the definite improvement Ms. Desormeaux has experienced through her own efforts, her physician did not feel that this should significantly interfere with her ability to perform her duties on a regular full-time basis. Although Dr. Meehan's stated that Ms. Desormeaux suffered from a condition that could have longer-term implications, no one from OC Transpo followed up with Dr. Meehan, nor was any attempt made to obtain an independent medical assessment of Ms. Desormeaux. [26] The evidence suggests that OC Transpo would handle an employee in Ms. Desormeaux's situation quite differently today. Lois Emberg was OC Transpo's Employment Equity Co-Ordinator at the time, and had responsibility for human rights and employment equity. According to Ms. Emberg, if a letter such as the one from Dr. Meehan was received from an employee's doctor now, OC Transpo's staff physician would likely follow up on Dr. Meehan's letter, and an effort would be made to determine whether the employee suffered from a disability. Consideration would also be given to whether the employee needed accommodation, and what could be done in this regard. [27] Ms. Desormeaux, Mr. Vye and Mr. Marcotte met again on November 6, 1997(2), in order to discuss the results of the medical inquiry and Ms. Desormeaux's prognosis for regular and reliable attendance at work. Ms. Desormeaux testified that she told Mr. Marcotte that she was doing everything that she possibly could to attend work regularly. She says that she again asked Mr. Marcotte to specify how many days' absence could be tolerated, and that he declined to do so, telling her only that he wanted to see a substantial improvement in her attendance. [28] Ms. Desormeaux testified that in the course of this meeting, Mr. Vye told Mr. Marcotte that Ms. Desormeaux's migraines could constitute a disability, and suggested that they look at ways in which Ms. Desormeaux could be accommodated. Mr. Marcotte agrees that the question of whether Ms. Desormeaux was disabled was raised by Mr. Vye at some point, although he was uncertain if the issue was raised at this meeting. Mr. Vye did not testify. There is no mention of any such discussion in the documentation prepared by Mr. Marcotte with respect to this meeting. [29] I accept Ms. Desormeaux's testimony in this regard, and find that on November 6, 1997, OC Transpo was made aware that Ms. Desormeaux potentially suffered from a disability. Mr. Marcotte testified that he had between 300 and 350 employees under his supervision in 1998, and that over the course of his career at OC Transpo, he conducted somewhere between 700 and 800 performance-related employee interviews. It is therefore not surprising that he was unable to recall when the issue first arose. Given that her employment was in issue, this meeting was obviously of greater importance to Ms. Desormeaux than it was to Mr. Marcotte, and her recollection as to the timing of Mr. Vye's comments is thus more likely to be reliable. Ms. Desormeaux says that Mr. Marcotte was 'not hearing' what Mr. Vye was saying, and thus it is not surprising that the discussion was not mentioned in the documentation relating to this meeting. From Ms. Desormeaux's testimony it does not appear that the issue of accommodation was explored in the course of this meeting. [30] According to Ms. Desormeaux, Mr. Marcotte closed the meeting by saying I don't want to have to call you back in here next September for another meeting. She understood from this that she had another year to try to improve her attendance. [31] Mr. Marcotte's letter documenting this meeting refers to the assurances given by Ms. Desormeaux regarding the steps that she was taking to control her migraines, and states Further, I am encouraged to hear that you realize that you can take actions on your own to assist in controlling your problems and that it is solely up to you. [32] Although the disability issue was raised during the November 6 meeting, Mr. Marcotte did not follow the procedure set out in the Attendance Management Program. He did not send Ms. Desormeaux for an independent medical assessment in order to ascertain whether Ms. Desormeaux did indeed suffer from a 'disability' within the meaning of the Canadian Human Rights Act. Similarly, he did not ask that Dr. Meehan be consulted with respect to this question. [33] Between November 6, 1997, and the termination of her employment on January 30, 1998, Ms. Desormeaux was absent from work on four separate occasions for a total of seven full days. Ms. Desormeaux says that all of these absences were attributable to migraine headaches. She explained that she was taking Norgesic Forte, a very powerful medication, for these headaches, and could not have safely driven a bus. Each of these absences was documented by an OC Transpo absence form, signed by Dr. Meehan, indicating the reason for the absence. [34] Ms. Desormeaux was also late for work on two occasions in this period, as a result of having slept in. C. The Termination of Ms. Desormeaux's Employment [35] On January 30, 1998, Ms. Desormeaux and Mr. Vye met with Mr. Marcotte and Mr. Walton, at which time Ms. Desormeaux was advised that her employment with OC Transpo was being terminated. Ms. Desormeaux stated that she was shocked, as she thought that she had another year to prove herself. [36] Mr. Walton's contemporaneous notes of the meeting confirm that Ms. Desormeaux told Mr. Marcotte and Mr. Walton that all of her recent absences had been due to migraines. According to Ms. Desormeaux, Mr. Vye again suggested that her headaches constituted a disability and that OC Transpo should look at ways to accommodate her. Ms. Desormeaux says that Mr. Marcotte responded by saying that OC Transpo's decision would stand. [37] Mr. Marcotte agrees that the issue of Ms. Desormeaux suffering from a disability that required accommodation was raised by Mr. Vye during this meeting. Mr. Walton's notes record Mr. Marcotte responding by stating that while some of Ms. Desormeaux's absences may have been due to migraines, she had also missed substantial periods of work for other reasons. Mr. Marcotte testified that he did not have any information from OC Transpo's health unit to indicate that there was a need to explore possible accommodative measures. Similarly, Mr. Marcotte says that he had no information suggesting that there was a need to obtain an independent medical assessment. [38] Based upon the opinion provided by Dr. Meehan, Mr. Marcotte stated that in November of 1997, OC Transpo's expectation was that Ms. Desormeaux would be able to provide regular and reliable attendance in the future. According to Mr. Marcotte, Dr. Meehan's opinion indicated that there was no impediment to Ms. Desormeaux's attending work on a regular basis. In the weeks following the November 6 meeting, Ms. Desormeaux was absent from work on several occasions, totaling 7 full and 2 part days. This led the employer to conclude that the prognosis for reliable future attendance by Ms. Desormeaux was very poor. Thus the decision was made to terminate her employment for chronic innocent absenteeism. II. LEGAL FRAMEWORK [39] Ms. Desormeaux's complaint is brought pursuant to section 7 of the Canadian Human Rights Act. Section 7 makes it a discriminatory practice to refuse to employ someone on a prohibited ground of discrimination. Section 3 of the Act designates disability as a prohibited ground of discrimination. [40] Pursuant to section 15(1)(a) of the Act, it is not a discriminatory practice to treat an employee in a differential fashion, where the differential treatment is based upon a bona fide occupational requirement. [41] Counsel for OC Transpo submits that the standard of proof in a human rights case is something higher than the ordinary civil standard of balance of probabilities, relying on the decision of the Alberta Court of Queen's Bench in Berry v. Farm Meats Canada Ltd.(3) as authority for this proposition. I disagree. At the federal level, the standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. (4) [42] OC Transpo further contends that arbitral jurisprudence affirms the right of an employer to receive its part of the employment bargain, that is, to have an employee provide work in exchange for compensation. While arbitrators do take human rights principles into consideration, counsel says, nevertheless, employment contracts may be frustrated through no fault of the individual employee. [43] The interface between human rights and arbitral jurisprudence was discussed in the recent decision of this Tribunal in Eyerley v. Seaspan International Ltd.(5), and I adopt the reasoning in that case. Labour relations concepts do not operate freely, but are constrained by human rights legislation. [44] The Supreme Court of Canada revisited the approach to be taken in human rights cases in its decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU(6) ('Meiorin') and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (7) ('Grismer'). The historic distinction between direct and indirect discrimination has been replaced by a unified approach to the adjudication of human rights complaints. Under this approach, the initial onus is still on a complainant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent.(8) [45] Once a prima facie case of discrimination has been established, the onus shifts to the respondent to prove, on a balance of probabilities, that the discriminatory standard or policy is a bona fide occupational requirement. In order to establish this, the respondent must now prove that: i) it adopted the standard for a purpose that is rationally connected to the performance of the job; ii) it adopted the standard in good faith, in the belief that it is necessary for the fulfilment of that legitimate work-related purpose; and ii) 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 an individual employee sharing the characteristics of the claimant without imposing undue hardship on the employer.(9) [46] The term 'undue hardship' is not defined in the Act, however, Meiorin and Grismer provide considerable guidance in determining whether or not an undue hardship defense has been made out. In Meiorin, the Supreme Court observed that the use of the word 'undue' implies that some hardship is acceptable - it is only 'undue' hardship that will satisfy the test. (10) The Supreme Court has further observed that in order to prove that a standard is reasonably necessary, a respondent always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship.(11) It is incumbent on the respondent to show that it has considered and reasonably rejected all viable forms of accommodation. The onus is on the respondent to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship.(12) In assessing the adequacy of the respondent's efforts to accommodate, regard may be had to the prospect of substantial interference with the rights of others. (13) The adoption of the respondent's standard has to be supported by convincing evidence. Impressionistic evidence will not generally suffice. (14) Finally, factors such as the financial cost of methods of accommodation should be applied with common sense and flexibility in the context of the factual situation under consideration.(15) [47] It is not necessary that discriminatory considerations be the sole reason for the actions in issue for a complaint to succeed. It is sufficient if the complainant's disability was a factor in the decision to terminate her employment.(16) III. ANALYSIS A. Implications of the Adams Decision [48] The Amalgamated Transit Union grieved the termination of Ms. Desormeaux's employment. The grievance proceeded through an expedited arbitration process, and was heard by the Hon. George Adams, Q.C. on July 27, 1998. On August 5, 1998, Mr. Adams rendered a decision wherein he concluded that OC Transpo had just cause to dismiss Ms. Desormeaux. Accordingly, the grievance was dismissed. [49] Prior to the commencement of this hearing, the respondent brought a motion challenging the jurisdiction of the Tribunal on a number of bases. One of the respondent's arguments was that the doctrine of res judicata prohibited the Tribunal from taking jurisdiction over Ms. Desormeaux's complaint due to the application of issue estoppel. [50] I dealt with this motion in a preliminary ruling, wherein I found that issue estoppel did not arise in this case, as the issue before Mr. Adams was not the same as the issue before the Tribunal, nor were the parties to the two proceedings the same. [51] The arbitration before Mr. Adams proceeded on the basis of an agreed statement of facts. In the course of the Tribunal hearing, counsel for the respondent contended that, in the event that there is an issue regarding any of these facts, I should apply the doctrine of issue estoppel, and take these facts as having been proven in the arbitration proceeding. [52] It is not open to the respondent to try to re-litigate an issue that I have already dealt with in my preliminary ruling. I have already decided that I am not bound by the findings of Arbitrator Adams. However, having looked closely at the submissions of counsel for the respondent, it seems that what she is really arguing is that Ms. Desormeaux should not be permitted to resile from admissions made on her behalf at the arbitration. [53] I do not find it necessary for me to address this argument, in light of the evidence adduced before me in this hearing, as it does not appear that either the Commission or Ms. Desormeaux take substantial issue with the facts agreed to before Mr. Adams. B. What is the Standard? [54] The employment standard in issue in this case is OC Transpo's requirement that its employees attend work on a regular and reliable basis. C. Is There a Prima Facie Case of Discrimination? [55] In considering this complaint, I must first determine if Ms. Desormeaux and the Commission have established a prima facie case of discrimination on the basis of a disability. The respondent contends that no prima facie case has been established here, as it has not been proven that Ms. Desormeaux suffered from a disability. OC Transpo submits that the evidence does not establish that Ms. Desormeaux suffers from migraine headaches, and that all of the other illnesses and injuries that she has suffered over the years are transitory ailments, and do not rise to the level of disabilities. (i) Was Ms. Desormeaux Disabled? [56] Ms. Desormeaux testified that she suffered from chronic headaches for many years prior to being hired by OC Transpo. According to Ms. Desormeaux, her headaches usually start during the night, and begin with neck pain. The pain gradually moves forward into one side of her head. If Ms. Desormeaux stands up while suffering from one of these headaches, she experiences nausea and vomiting. She also becomes very sensitive to light. The headaches have historically occurred once or twice a month, and typically lasted anywhere from one to three days. These headaches persisted throughout the time that Ms. Desormeaux worked for OC Transpo. [57] Ms. Desormeaux has frequently sought medical assistance for her headaches. At the time that Ms. Desormeaux joined OC Transpo, she was being treated by her family physician, then Dr. Lyla Graham. In 1990, Dr. Graham referred Ms. Desormeaux to Dr. H. Rabinovitch, a neurologist, for further investigation. Dr. Rabinovitch examined Ms. Desormeaux on January 11, 1990, and subsequently reported his findings to Dr. Graham. Dr. Rabinovitch's report notes I expect that she probably has mixed migraine, tension headaches .... I will arrange for an EEG and CAT scan but I think it is very doubtful that much else will be found ... Ms. Desormeaux says that she underwent both the EEG and the CAT scan, but was never advised of the test results. Her understanding was that she would only be notified if something noteworthy was disclosed by the tests. There is no record of the findings of either test. [58] In July of 1996, Ms. Desormeaux changed family doctors, and began seeing Dr. Meehan on a regular basis. Dr. Meehan testified in these proceedings, describing her observations with respect to Ms. Desormeaux's headache condition, as well as the various forms of treatment and types of medication that she prescribed for Ms. Desormeaux over the years. [59] According to Dr. Meehan, the symptoms that Ms. Desormeaux described with respect to her headaches were consistent with those Ms. Desormeaux reported to Dr. Rabinovitch in 1990, and are classic symptoms of more severe migrainous-type headaches. Dr. Meehan explained that the cause of migraine headaches is not known, but certain 'triggers' can bring on headaches. Treatment for migraines consists of trying to identify and avoid these triggers, and can include prophylactic medication aimed at preventing recurrences. Various types of analgesic medications are also prescribed to reduce the level of pain quickly and effectively, with as few side effects as possible. [60] The treatment of migraine headaches often involves an element of trial and error, according to Dr. Meehan. In Ms. Desormeaux's case, Dr. Meehan recommended that Ms. Desormeaux try physiotherapy to reduce muscle tension in her neck. Reducing neck tension can lessen the severity of migraine headaches. She also had Ms. Desormeaux try a variety of medications, in an effort to identify the most effective form of treatment for the headaches. Because fluctuations in female hormonal levels can often trigger migraine headaches, Dr. Meehan eventually started Ms. Desormeaux on a course of Depo-Provera, medication that suppresses ovulation, and eliminates the menstrual cycles that often trigger migraines. (17) [61] Dr. Meehan stated that she did not see any need to refer Ms. Desormeaux to a neurologist for further assessment. According to Dr. Meehan, Ms. Desormeaux had already been assessed by a neurologist, and did not exhibit any symptoms that would cause Dr. Meehan to question the accuracy of Dr. Rabinovitch's diagnosis. [62] Since becoming Ms. Desormeaux's family doctor in 1996, Dr. Meehan also treated Ms. Desormeaux for kidney stones, ovarian cysts, a respiratory infection and viral gastroenteritis. [63] By the Fall of 1997, when she was asked for an opinion regarding Ms. Desormeaux's fitness for work, Dr. Meehan says that all of Ms. Desormeaux's health problems, apart from the migraines, had resolved, and would not cause any ongoing problems. Insofar as Ms. Desormeaux's migraines were concerned, Dr. Meehan says that they were under better control, but that the nature of Ms. Desormeaux's condition was such that one could not predict when the headaches would occur. Ms. Desormeaux's headaches impaired her ability to perform her job. Further, many of the medications used to treat migraine headaches have side effects that would make driving a bus unsafe. [64] The starting point for my determination of whether or not Ms. Desormeaux suffered from a disability must be the definition of 'disability' contained in section 25 of the Canadian Human Rights Act. Unfortunately, this section is of limited assistance in this case, in that the definition that it provides is somewhat circular: 'disability' is defined as - any previous or existing mental or physical disability ... [65] The most recent judicial pronouncement as to what constitutes a disability is the decision of the Supreme Court of Canada in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City).(18) The Supreme Court determined that the term 'handicap', (which is used synonymously with 'disability' in the human rights context)(19), ... must not be confined within a narrow definition that leaves no room for flexibility.(20) [66] Counsel for OC Transpo submits that Ms. Desormeaux did not suffer from a disability, contending that it has not been properly established that Ms. Desormeaux in fact suffers from migraine headaches. Counsel submits that diagnosing migraine headaches is beyond the expertise of Dr. Meehan as a family physician. In the absence of a diagnosis by a neurologist, counsel says, I cannot find that Ms. Desormeaux suffers from migraines. [67] There are several reasons for rejecting counsel's submission. I am satisfied that the diagnosis and treatment of migraine headaches is within the expertise of the reasonably competent family practitioner. Further, Ms. Desormeaux was assessed by a neurologist in 1990. Dr. Rabinovitch concluded that Ms. Desormeaux probably suffered from mixed migraine, tension headaches. Dr. Meehan testified that Ms. Desormeaux's symptoms were classic symptoms of more severe migrainous-type headaches. There is no medical evidence before me that would lead me to question either Dr. Meehan's opinion or Dr. Rabinovitch's finding. [68] Further, even if I were to accept counsel's submission in this regard, I would still find that Ms. Desormeaux's headaches constitute a 'disability' within the meaning of the Canadian Human Rights Act. It is undisputed that Ms. Desormeaux has suffered from chronic, debilitating headaches for many years. Whether these headaches are properly classified as migraines, or some other type of headache, is immaterial. Ms. Desormeaux's description of the symptoms, and the effect that these symptoms, as well as the necessary medication, have on her ability to function has not been challenged. It is clear that she has long suffered from a chronic headache condition that periodically causes her to become significantly incapacitated, and interferes with her ability to do her job. This, in my view, constitutes a 'disability' within the meaning of the legislation. [69] For reasons that will be set out further on in this decision, I find it unnecessary to determine whether the other illnesses and injuries that Ms. Desormeaux has suffered over the years are transitory ailments or disabilities. (ii) Was Ms. Desormeaux's Disability a Factor in the Decision to Terminate her Employment? [70] Having found that Ms. Desormeaux was disabled, it remains to be determined whether her disability was a factor in OC Transpo's decision to terminate her employment. [71] OC Transpo contends that Ms. Desormeaux was not dismissed because of a disability. Based upon Ms. Desormeaux's track record, and the medical information available to it, OC Transpo says that it came to the conclusion that Ms. Desormeaux would not be able to attend work on a regular and reliable basis in the future. Moreover, from Dr. Meehan's report, OC Transpo was satisfied that Ms. Desormeaux's continued absences from work were not due to a disability. [72] I do not accept OC Transpo's submissions in this regard. It is clear that the decision to terminate Ms. Desormeaux's employment was predicated upon the employer's assessment of Ms. Desormeaux's future prospects for regular attendance, based, in part, on her past attendance record. Regardless of whether one considers the absences caused by her other ailments to be disability-related, a significant portion of Ms. Desormeaux's absences were headache-related. As I have previously noted, it is not necessary that discriminatory considerations be the only reason for the actions in issue for a complaint to succeed. Taking disability-related absences into account in deciding to terminate an individual's employment for excessive absenteeism is prima facie discriminatory. (21) [73] It must also be recalled that the culminating incidents giving rise to Ms. Desormeaux's dismissal were the absences between November of 1997 and January 30, 1998. It is uncontradicted that all of these absences (other than the two mornings that she was late for work as a result of having slept in) resulted from Ms. Desormeaux being ill with headaches. [74] In these circumstances, I am satisfied that the Commission and Ms. Desormeaux have established a prima facie case of discrimination on the basis of disability. D. Has OC Transpo Discharged its Burden? [75] Having found a prima facie case of discrimination on the basis of disability, the onus is on OC Transpo to establish that attending work on a regular and reliable basis is a bona fide occupational requirement for a bus operator. There are three elements which must be established in order to demonstrate the existence of a bona fide occupational requirement. Each of these elements will be considered in turn. (i) Rational Connection [76] OC Transpo must first establish that it adopted its standard of regular and reliable attendance for a purpose or goal that is rationally connected to the performance of the job. The focus at this stage is not on the validity of the standard in issue, but rather on the validity of its more general purpose. (22) [77] There is no dispute in this case that the requirement that bus operators attend work on a regular and reliable basis is rationally connected to the delivery of timely public transit. (ii) Good Faith [78] The second element that must be established by OC Transpo is that it adopted its standard of regular and reliable attendance in good faith, in the belief that it is necessary for the delivery of timely public transit. [79] In his final submissions, counsel for the Commission stated that the Commission was not suggesting that OC Transpo acted other than in good faith. Nevertheless, throughout the hearing, the Commission challenged the actions of OC Transpo in utilizing a standard of 'regular and reliable attendance', and not providing Ms. Desormeaux with a specified number of days for which she could be absent from work. The only time that this was done was in 1990, when Ms. Desormeaux was told that she could not be away from work on more than five occasions, or for more than 12 days over 12 months. According to the Commission, fairness required that employees be provided with a numerical target for their attendance. The plant average for absenteeism was suggested as one possible defined standard. [80] Ron Marcotte explained that there is no permissible maximum number of days that OC Transpo employees can be away from work. Employees are expected to attend work as required, although OC Transpo recognizes that individuals will be unable to report to work from time to time for health-related reasons. OC Transpo's concern with providing employees with a specific number of days that they can miss is that this will create an expectation in the workforce that everyone can miss that many days, without consequence. Instead, the standard of 'regular and reliable attendance' provides flexibility, allowing the employer to tailor its response to the particular circumstances of each individual's situation. By way of example, Mr. Marcotte testified that there were employees whose attendance records may have been worse than Ms. Desormeaux's was in 1997-8, but who were at an earlier stage in the attendance management program. The employment of these individuals would not have been terminated, as they would have been provided with further opportunities to achieve regular and reliable attendance. [81] In closing argument, counsel for OC Transpo submitted that the facts of this case graphically illustrate the problems that can arise when an employee is given a fixed maximum number of days that they can be off of work. Ms. Desormeaux herself testified that on the one occasion that she was provided with a numerical target, she drove a bus with Tylenol 3 in her system, in order to meet the target set for her. [82] I do not accept the submissions of the Commission as to the need for a fixed number of days of permissible absence. The Supreme Court of Canada has indicated that employment standards must not be arbitrary, and should provide for individual accommodation.(23) Imposing the arbitrary requirement that a disabled employee's absenteeism not exceed a plant average, a condition not imposed on other employees, would clearly be discriminatory.(24) As a result, I find that OC Transpo has satisfied the good faith component of the Meiorin test. (iii) Did OC Transpo Accommodate Ms. Desormeaux to the Point of Undue Hardship? [83] The final issue to be determined is whether OC Transpo has established that its standard of regular and reliable attendance is reasonably necessary for delivery of timely public transit. To show that the standard is reasonably necessary, it must be demonstrated that it would have been impossible to accommodate Ms. Desormeaux without imposing undue hardship on her employer. [84] The starting point for my analysis must be an assessment of Ms. Desormeaux's health status at the time that OC Transpo made the decision to terminate her employment. Ms. Desormeaux suffered from a litany of health problems over the years, and also suffered also a number of injuries. There is nothing in the evidence before me, however, to suggest that there is a relationship between the various conditions giving rise to her high level of absenteeism, or a single root cause for her inability to attend work on a regular basis. Rather, it appears that Ms. Desormeaux has simply been very unlucky over the years, having experienced a number of different, unrelated illnesses and injuries. Most of these conditions appear to have been self-limiting, and the evidence indicates that by the Fall of 1997, the only condition that was likely to cause long term problems for Ms. Desormeaux was her migraine headaches. In other words, there is nothing in the medical evidence before me to suggest that Ms. Desormeaux was any more likely to suffer from health problems (apart from those related to her headache condition) than was any other OC Transpo employee. [85] Lois Emberg testified that Dr. Meehan's comment that Ms. Desormeaux's migraines were potentially of a longer-term nature should have triggered a concern that Ms. Desormeaux may have been suffering from a disability. In such a case, Ms. Emberg says, no decision should have been made to terminate Ms. Desormeaux's employment until such time as the disability issue had been properly explored. Instead, what happened was that OC Transpo gave Ms. Desormeaux three more months to establish a pattern of regular and reliable attendance. When she could not do so because of her headaches, her employment was terminated. [86] In considering whether accommodation would have been possible, I must examine the implications that Ms. Desormeaux's migraine condition would likely have had for her ability to attend work on a regular and reliable basis after January of 1998. One way of predicting future absenteeism would be to look at Ms. Desormeaux's past history. As of January of 1998, Ms. Desormeaux had been employed by OC Transpo for approximately 8.75 years. In that time, she had missed 57 full days and 11 part days due to headaches. This translates to an average of 6.5 full days and 1.25 part days each year that Ms. Desormeaux was unable to attend work because of her migraine condition. Some minor upward adjustment to this number may be necessary to take into account the fact that Ms. Desormeaux did miss periods of time for other reasons, for example as a result of her back injury, when she was off of work for 79 days. During these absences, Ms. Desormeaux may well have suffered migraines, and been otherwise unable to work. Similarly, it is possible that a further upward adjustment might have to be made, in order to take into account the effect that Ms. Desormeaux's unrecorded absences would have on her rate of absenteeism. It is not clear, however, from the evidence if any of these unrecorded absences were migraine-related. [87] On the other hand, there is some suggestion that Ms. Desormeaux's past attendance history, insofar as her migraine-related absences are concerned, might not be an accurate predictor for her future attendance, and that some improvement in this regard could reasonably have been anticipated. The uncontradicted medical evidence before OC Transpo at the time that the decision was made to terminate Ms. Desormeaux's employment was that progress had been made in identifying one of the causes of her headaches. Dr. Meehan's October, 1997 report advised OC Transpo that steps were being taken to address the problem of Ms. Desormeaux's mechanical neck dysfunction, and that a definite improvement in her condition had been noted. While Ms. Desormeaux had repeatedly assured Mr. Marcotte that her migraines were being brought under control, here, for the first time, OC Transpo had medical evidence to suggest that an improvement in Ms. Desormeaux's ability to attend work on a regular basis could be anticipated. [88] However, between the November 6, 1997 meeting and the termination of her employment on January 30, 1998, Ms. Desormeaux was absent from work on four separate occasions, for a total of seven days, because of migraine headaches. In addition, she was late for work on two occasions, having slept in. With respect to these latter two absences, suffice it to say that it does not reflect well on Ms. Desormeaux's work ethic that she would sleep in, and twice be late for work, during a period where her job was clearly on the line. [89] Insofar as the migraine-related absences are concerned, the frequency of Ms. Desormeaux's absences during the three-month period leading up to the termination of her employment could reasonably have caused OC Transpo to question the accuracy of Dr. Meehan's prognosis. Although Mr. Marcotte was made aware of the reason for Ms. Desormeaux's absences in this time frame, no effort was made to obtain clarification of Dr. Meehan's findings. No attempt was made to ask Dr. Meehan whether there was a specific reason why Ms. Desormeaux was experiencing so many migraine-related absences during this period, and whether these absences changed Dr. Meehan's opinion as to Ms. Desormeaux's prognosis for future attendance. Similarly, no attempt was made to obtain an independent medical assessment of Ms. Desormeaux's condition, notwithstanding that such an assessment was expressly contemplated by OC Transpo's attendance management program. [90] Thus, by January of 1998, there was some uncertainty surrounding Ms. Desormeaux's prognosis. In all of the circumstances, I am satisfied that the most reliable predictor for Ms. Desormeaux's future attendance was her long-term attendance history with OC Transpo. [91] The next issue to consider is whether OC Transpo could have accommodated an employee with Ms. Desormeaux's rate of migraine-related absenteeism. OC Transpo's contention that it could not accommodate Ms. Desormeaux's continued sporadic absences from work is founded primarily on operational considerations. In this regard, I note that the termination of Ms. Desormeaux's employment occurred prior to the Bill S-5 amendments to the Canadian Human Rights Act. Section 15 (2) of the amended Act states that the factors that can be considered in relation to the issue of accommodation are health, safety and cost. (25) As a consequence, my consideration of the accommodation issue in this case is governed by the principles articulated by the Supreme Court of Canada in Alberta (Human Rights Commission) v. Central Alberta Dairy Pool (26), and subsequent cases. [92] In Dairy Pool, the Supreme Court provided a non-exhaustive list of the types of factors that could create an undue hardship, including operational considerations such as the size of the employer's operation and the interchangeability of the workforce. Logistical difficulties in replacing absent workers have recently been found by the Ontario Divisional Court to constitute an undue hardship. (27) [93] Mr. Marcotte explained that bus companies run on predetermined schedules. Customers rely upon buses arriving and departing on time, in order to conduct their business and make their connections. If too many operators fail to report to work on any given day, there may not be enough drivers to get all of the buses on the road. This causes interruptions in service, and problems for the citizens of the National Capital Region, who rely on OC Transpo for transportation. Unlike long-term absences, which OC Transpo can anticipate and provide for, intermittent, last minute absences are particularly challenging to address. [94] OC Transpo bus operators bid on routes and schedules in seventeen-week blocks, in accordance with the order of seniority. In each booking period, a certain number of drivers will be assigned to a spare board. The spare board is a pool of 75-100 bus operators who do not have a specific route assigned to them. Rather, the responsibility of the operators on the spare board is to fill in for absent operators, on an as-needed basis. [95] From time to time, there are not enough drivers on the spare board to fill in for all of the operators who are absent from work. In such circumstances, overtime will be offered to operators driving regularly scheduled routes. If there are not enough operators willing to work overtime to pick up the slack, buses may simply not go out, creating gaps in service. [96] Through Mr. Marcotte, OC Transpo introduced a record from January of 2001 regarding service coverage for the week of January 21 to 27. This document indicates that in the course of this week, 626 trips out of a weekly total of 37,445 did not go out on time. There were a number of reasons why these trips were cancelled. Some did not take place because of mechanical problems with the buses, depot delays or accidents. In 106 cases, buses did not leave the depot for reasons that could include the unavailability of operators. [97] Of the 626 cancelled trips, it appears in 395 cases, the buses ultimately did get out. Mr. Marcotte explained that these trips were filled with extras. It is unclear whether he meant employees from the spare board or other employees. This meant that 231 trips out of 37,445 never took place. The utility of these statistics is, however, diminished somewhat as it is not clear how many, if any, of these 231 trips were cancelled as a result of insufficient staff availability, rather than mechanical problems or other reasons. [98] Paul MacDonnell, the former President of the Amalgamated Transit Union, Local 279, suggested that the January, 2001 sample may not reflect typical cancellation rates. According to Mr. MacDonnell, being mid-winter, January is the worst time of year for cancelled trips, because of the high incidence of mechanical problems for the buses. Mr. Marcotte did not address Mr. MacDonnell's comment with respect to the increased level of mechanical problems in the winter months, but suggested that inclement winter weather did not create significant problems with respect to service delivery as Ottawa has great street cleaners. Mr. Marcotte did concede that problems could arise if there was a big snowstorm. He was unable to state whether there was a storm during the week of January 21 to 27, 2001. [99] Mr. Marcotte could not provide comparable information regarding service coverage for the period surrounding the termination of Ms. Desormeaux's employment, although he did say that it was not uncommon for the spare board to be exhausted by employee absences. In such a situation, resort would have to be had to overtime, in order to have the buses run on time. According to Mr. Marcotte, there were even days where we couldn't provide overtime, which presumably meant days when trips had to be cancelled. He did not, however, give any indication of the frequency with which this occurred. [100] OC Transpo is a large employer. Mr. MacDonnell testified that there were anywhere from 1200 to 1500 bus operators working at OC Transpo at any one time. The annual budget for the organization was $150 million. When he was asked why OC Transpo did not simply hire more bus operators, in order to guarantee service coverage, Mr. MacDonnell indicated that OC Transpo had gone through hiring freezes and downsizing. He also stated that it was cheaper for OC Transpo to rely on overtime than to hire more operators. [101] Against this backdrop, I must then determine whether retaining an employee in Ms. Desormeaux's position would create an undue hardship for OC Transpo, as a result of her intermittent absenteeism. In examining this question, reference should be had to the testimony of Ron Marcotte in relation to OC Transpo's attendance management program. According to Mr. Marcotte, in 1995-6, employees coming under the attendance management program were those with an absenteeism rate of 18 days or more each year. By 1997-8, the rate had dropped somewhat. Mr. Marcotte suggested that the threshold for inclusion in the plan might have been 13 days per year, although he did not seem at all sure of this. I have found that a realistic prognosis for Ms. Desormeaux's future migraine-related absences was somewhere in the area of 6.5 full days and 1.25 part days each year - well below the absenteeism rate for 25% of OC Transpo bus operators. Even allowing for a few additional days of absence each year due to transient illnesses such as colds and the flu, I cannot conclude that as of January, 1998, Ms. Desormeaux's future absenteeism rate was likely to be at a level beyond that of a significant portion of OC Transpo's workforce.(28) [102] I accept that intermittent absenteeism could potentially create an undue hardship for an employer where, for example, a small workplace was involved, and the individual in question provided unique services to her employer. In this case however, OC Transpo employs a large workforce, and bus operator duties are largely inter-changeable. OC Transpo recognizes that on any given day a certain number of its bus operators will be unable to attend work. Because of the time-sensitive nature of the service that it delivers, OC Transpo makes provision for these absences through the use of the spare board system, a system that appears to generally work quite well. On the evidence before me, I am not persuaded that Ms. Desormeaux would cause an excessive drain on the spare board system in the future. Accordingly, I am not satisfied that OC Transpo has established that it would have suffered undue hardship if it had continued to employ Ms. Desormeaux. [103] Further, the evidence suggests that it may be possible to reduce Ms. Desormeaux's level of absenteeism somewhat, through the provision of modified duties. From Ms. Desormeaux's testimony, it appears that she is totally disabled in the early phases of a migraine attack, but that as the headache resolves, she is able to function to a certain extent. While she is unable to drive a bus safely, because of the medication in her system, she is able to perform other useful work for OC Transpo. According to Mr. MacDonnell, non-driving jobs are available to bus operators requiring accommodation. [104] Similarly, Mr. MacDonnell testified that there are ways in which OC Transpo could lessen the impact that Ms. Desormeaux's intermittent absences would have on service delivery. By way of example, he suggested that Ms. Desormeaux could be assigned to work on the spare board. Drivers assigned to the spare board are not always called upon to drive, and thus an absent spare board driver is less likely to cause a disruption in bus service. [105] None of these alternatives were explored, prior to the termination of Ms. Desormeaux's employment, as Mr. Marcotte clearly viewed the responsibility for improving the situation as resting solely on Ms. Desormeaux's shoulders. [106] Before leaving the question of accommodation, there are several other issues that bear comment. Although there was testimony as to the cost of providing sick leave benefits, there was insufficient evidence before me regarding the financial condition of OC Transpo for me to conclude that requiring OC Transpo to continue to provide such benefits to Ms. Desormeaux would constitute an undue hardship. (29) [107] OC Transpo led evidence through Lois Emberg, and the filing of its annual employment equity reports, as to the significant number of disabled individuals employed by OC Transpo. While I have considered this evidence, I have found it to be of limited assistance in assessing what happened in the case of Francine Desormeaux. Similarly, there was testimony regarding the Disabled Employees' Review Committee, a joint labour/management committee set up to review accommodative measures for OC Transpo employees. This evidence must be viewed in light of Ms. Emberg's testimony that the Committee only became involved when an employee was going to require accommodation for more than four weeks at a time. As a consequence, Ms. Emberg says, the Committee would not be involved in a case such as that of Ms. Desormeaux, where the issue was intermittent, short-term absences. [108] OC Transpo contends that Ms. Desormeaux never said what she needed by way of accommodation, nor did she provide medical documentation to support such a request. Rather, Ms. Desormeaux repeatedly assured Mr. Marcotte that she would meet the standard of regular and reliable attendance in the future. As a consequence, OC Transpo says, Ms. Desormeaux did not satisfy the obligation on her to facilitate the search for accommodation. [109] It is common ground that Ms. Desormeaux was always very candid with her employer regarding her health problems. It is also true that over the years, she would try to assure her employer that she would do better in the future. However, as the termination of her employment approached, the question of accommodation did surface. I have found that during the November 6, 1997 meeting, Mr. Vye questioned whether Ms. Desormeaux's migraines constituted a disability, and suggested that they look at ways in which Ms. Desormeaux could be accommodated. I have accepted Ms. Desormeaux's testimony that Mr. Marcotte was not hearing what Mr. Vye was saying, and that no substantive discussion regarding accommodation took place. Mr. Vye again raised the issue of accommodation during the January 30, 1998 termination meeting. It is clear that despite being in possession of a medical report indicating that Ms. Desormeaux suffered from a health condition with possible long-term ramifications, which condition was continuing to cause Ms. Desormeaux to miss work, Mr. Marcotte was unwilling to explore what could be done in order to accommodate Ms. Desormeaux's needs. [110] The law regarding the duties of employer and employee in relation to accommodation is clear: it is the responsibility of the disabled employee to bring the facts relating to the discrimination to her employer's attention. Through the efforts of Mr. Vye, Ms. Desormeaux did this. It is not up to the employee to originate a solution - that is the responsibility of the employer.(30) In these circumstances, I am satisfied that Ms. Desormeaux fulfilled her duty to facilitate the search for accommodation. [111] The final issue for me to consider is the question of the liability of the Amalgamated Transit Union. In this regard, counsel for OC Transpo argues that if it is found to have discriminated against Ms. Desormeaux, the Union breached its duty to accommodate by failing to apprise the employer from the inception of the Attendance Management Program that Ms. Desormeaux's migraines required excessive days off. [112] It should be noted that the Union is not a party to Ms. Desormeaux's complaint. A motion was brought by OC Transpo at the commencement of the hearing to add the Union as a respondent. For reasons given at the time, this motion was dismissed. It is not clear from counsel's submissions whether she is now seeking to have an order made against the Union. Having dismissed the request to add the Union as a respondent, even if I were disposed to do so, I do not see how I could make an order against the non-party Union. [113] In any event, on the basis of the evidence before me, I do not see a basis for liability on the Union on either of the theories for union liability set out in the Renaud case. The fact that the Union may have been consulted with respect to OC Transpo's attendance management policy does not make the policy a joint union/management policy. Further, the problem that I have identified in this case originates not in OC Transpo's policy, but in the way Ms. Desormeaux's case was handled by her employer. Similarly, there is nothing before me to suggest that at any time prior to January 30, 1998, the Union did anything to impede efforts to accommodate Ms. Desormeaux. [114] For the above reasons, Ms. Desormeaux's complaint is sustained. IV. REMEDY A. Reinstatement [115] Where a complaint of discrimination is found to be substantiated, it is the duty of a human rights tribunal to attempt to restore the complainant to the position that she would have been in, but for the discrimination. In this case, that duty is best discharged by reinstating Ms. Desormeaux to her position as a bus operator with OC Transpo. Ms. Desormeaux should receive the seniority and benefits, including pension benefits, that she would have had, had she been continuously employed by OC Transpo. She should, as well, receive any training necessary to update her skills and re-familiarize her with workplace policies and procedures. [116] In reinstating Ms. Desormeaux to the position of bus operator, I leave it to OC Transpo, in consultation with Ms. Desormeaux and her union, to identify a position for Ms. Desormeaux which will minimize the impact that Ms. Desormeaux's intermittent absences will have on service delivery. I further direct OC Transpo to consult with Ms. Desormeaux and her union, as well as with Dr. Meehan, if necessary, in order to determine what steps can safely be taken in order to minimize Ms. Desormeaux's absences from work, without her having to resort to driving while under the influence of medication. In this regard, I note that the Amalgamated Transit Union has undertaken to fully co-operate in the implementation of any order that the Tribunal may make against OC Transpo with respect to Ms. Desormeaux's return to the workplace. [117] Finally, Ms. Desormeaux has asked that she not be required to explain or justify each absence from work. With respect, I do not think that Ms. Desormeaux can expect to be able to miss work with impunity. Her employer is entitled to satisfy itself that there is a legitimate explanation for her absences. Ms. Desormeaux should have the same obligations with respect to the provision of medical certificates and other information regarding her absences as do other OC Transpo bus operators. B. Wage Loss [118] Consistent with the principle that human rights tribunals should attempt, insofar as may be possible, to make whole victims of discriminatory practices, Ms. Desormeaux should receive the wages that she has lost as a consequence of the termination of her employment with OC Transpo. OC Transpo says that any such award made to Ms. Desormeaux should be reduced, as she failed to take appropriate steps to mitigate her losses. [119] Following the termination of her employment, Ms. Desormeaux immediately began looking for work, and quickly found part-time employment as a child-care worker and school bus driver. She also drove a school taxi. Ms. Desormeaux was interviewed for a position with a tour bus company, but was not offered a position after explaining the circumstances of her departure from OC Transpo. After numerous other unsuccessful applications, the Employment Insurance office referred Ms. Desormeaux to a consultant in order to assist her in the preparation of a more professional resumé. Ms. Desormeaux also explored the possibility of establishing her own business - a taxi service to drive children to appointments. She did not pursue this venture, however, when she realized that the General Manager of OC Transpo was involved in the licencing process. [120] In February of 1999, Ms. Desormeaux decided to enroll at Mican Business College. She explained that by this point, she had been unsuccessful at arbitration, and had been unable to earn a salary comparable to that she had received while working at OC Transpo, without upgrading her skills. She took computer courses at Mican, to assist her in obtaining an administrative assistant position. She continued to drive a school taxi part-time. [121] After completing the program at Mican in July of 1999, Ms. Desormeaux registered with an office temp agency before obtaining a full-time position with the Gloucester Public Library. She worked there until January of 2000, when she began working as an examiner for the Ontario Ministry of Transport. Ms. Desormeaux was working at the Ministry of Transport at the time of the hearing. [122] OC Transpo points to the numerous driving jobs advertised during the period following the termination of Ms. Desormeaux's employment, submitting that Ms. Desormeaux made a personal decision to go back to school instead of applying for work. As a consequence, OC Transpo says, it should not be responsible for any wages Ms. Desormeaux may have lost between January and July of 1999. I do not agree. [123] At the time that Ms. Desormeaux was fired by OC Transpo, she had been working there for nearly nine years. Her entire career in commercial driving had been with OC Transpo, when she suddenly found herself unemployed, without a positive reference to assist her in finding new employment. Ms. Desormeaux diligently sought work. After being unsuccessful in finding full-time work for a year after the termination of her employment, her decision to upgrade her skills strikes me as entirely reasonable in the circumstances. As a result, I am satisfied that Ms. Desormeaux took reasonable steps to mitigate her losses, and that no adjustment should be made to the award for lost wages in this regard. [124] Ms. Desormeaux should thus be fully compensated for the wages that she lost between January 30, 1998, and the date of reinstatement. The parties are in agreement as to the wages that Ms. Desormeaux would have earned, had she continued working at OC Transpo. From this should be deducted the income that she earned from alternate sources. Ms. Desormeaux is responsible for ensuring that the Employment Insurance authority is reimbursed for any benefits that she received during this period, in accordance with the provisions of the Employment Insurance legislation. [125] In the event that the parties are unable to come to an agreement with respect to the monies owing to Ms. Desormeaux under the terms of this decision, I may be spoken to. C. Gross-up [126] Ms. Desormeaux will now be entitled to a lump sum payment on account of lost wages. This may well result in negative income tax consequences for her. In my view, it would unfairly penalize Ms. Desormeaux if she were to suffer a more onerous income tax burden, by receiving a lump sum payment now, than she would have incurred had the monies been paid to her as salary on an on-going basis between January of 1998 and the date of payment. This would be inconsistent with the remedial goal of making Ms. Desormeaux whole. Accordingly, OC Transpo shall pay Ms. Desormeaux an additional amount sufficient to cover any additional income tax liability that she may incur as a consequence of receiving payment in this fashion. [127] The Commission has also asked for an order requiring OC Transpo to pay for any actuarial costs associated with calculating the interest and gross-up in this case. I am not persuaded that either of these items should be particularly complicated, so as to require the services of an actuary. If the parties are unable to agree as to the appropriate figures in this regard, further submissions may be made to the Tribunal. D. Special Compensation [128] Section 53 (3) of the Act, as it stood in January of 1998, provided for awards of Special Compensation for reckless or wilful conduct, as well as for injuries to feelings or self-respect, to a maximum of $5,000. There will be a range of cases warranting awards of special compensation under the Canadian Human Rights Act, and the $5,000 maximum award must be reserved for the very worst cases.(31) [129] OC Transpo submits that it did not act recklessly or wilfully in terminating Ms. Desormeaux's employment, and that its staff was 'on a learning curve' in relation to its obligations to its disabled employees. Be that as it may, it is clear that Ms. Desormeaux was very shaken by the loss of her employment. The stress that she suffered as a result of being dismissed was compounded by the financial pressures that she suffered. As a single person, Ms. Desormeaux was very concerned about her ability to meet her obligations, in the absence of any income, and was forced to deplete her savings in order to live. She still becomes emotional when discussing the impact that the events surrounding the termination of her employment have had on her. [130] In all of the circumstances, I award Ms. Desormeaux $4,000 as special compensation. E. Interest [131] Interest is payable on awards of special compensation as well as on lost wages. (32) I order that interest be paid on the monies awarded pursuant to this decision, in accordance with Rule 9 (12) of the Canadian Human Rights Tribunal Interim Rules of Procedure. Interest on the award for lost wages should start to run from January 30, 1998, and be calculated as the wages would have become payable to Ms. Desormeaux. Interest on the special compensation shall run from January 30, 1998. In no case, however, should the total amount payable on account of special compensation, including interest, exceed $5,000. (33) F. Apology [132] Ms. Desormeaux seeks an apology for the treatment that she encountered in the course of her employment. She initially requested that the apology come from Mr. Marcotte, but later indicated that she wanted the apology from OC Transpo. [133] OC Transpo contends that I should decline to make the order requested, as it had not received proper notice of the request, in accordance with the Tribunal's Interim Rules of Procedure. Having reviewed the Commission's disclosure, it is clear that OC Transpo was made aware that an apology was being sought, although the Commission did not specify who would be asked to provide the apology. There is no indication that OC Transpo would have done anything different in the presentation of its case, had it had specific notice that the apology was being sought from the organization, or that it was prejudiced in any way. As a consequence, I am satisfied that the apology should not be denied on the basis that there was insufficient notice that the remedy was being requested. [134] More importantly, OC Transpo also contends that the Tribunal does not have the jurisdiction to make such an order, as forcing it to express views that it does not hold would violate OC Transpo's freedom of expression, contrary to the Canadian Charter of Rights and Freedoms. [135] Since receiving the parties' written submissions on this question, it has come to my attention that the constitutional issue is currently before the Federal Court in Stevenson v. Canadian Security Intelligence Service. (34) Any decision that I make in this regard will therefore likely be superseded by the Court's decision. As a result, I propose to defer my decision regarding the apology issue until such time as the parties may have the benefit of the Court's decision in Stevenson, and the opportunity to make submissions regarding its effect. [136] If any party requires an immediate decision from the Tribunal, the Tribunal should be notified, and I will deal with the issue. G. Lost Wages for Attendance at the Hearing [137] The Commission and Ms. Desormeaux ask that she be compensated for the wages that she has lost by reason of her attendance at the hearing. Given that I have already awarded Ms. Desormeaux her lost wages to the date of reinstatement, I am not prepared to make the order requested, as it would result in Ms. Desormeaux recovering twice for the period in question. H. Consultation with the Canadian Human Rights Commission [138] The Commission asks that OC Transpo be ordered to consult with the Commission with respect to its accommodation policy. There are several reasons why I do not think that such a remedy is appropriate, in the circumstances of this case. [139] First, the problem that I have identified in the treatment of Ms. Desormeaux's disability stems not from the wording of OC Transpo's policy so much as from the failure to apply the policy in Ms. Desormeaux's case. Further, the passage of time between the termination of Ms. Desormeaux's employment and the hearing also means that events have largely overtaken things - not only is the attendance management policy that was in effect in January of 1998 no longer in place at OC Transpo - OC Transpo itself no longer exists, having become part of the City of Ottawa, with municipal amalgamation. (35) Accordingly, I decline to order consultation. I. Retention of Jurisdiction [140] I will retain jurisdiction in the event that the parties are unable to agree with respect to the quantification or implementation of any of the remedies awarded under this decision. V. ORDER [141] For the foregoing reasons, I declare that Ms. Desormeaux's rights under the Canadian Human Rights Act have been contravened by OC Transpo, and order that: Ms. Desormeaux be reinstated in her position as a bus operator at the first reasonable opportunity, in accordance with the provisions of this decision; Ms. Desormeaux shall be awarded compensation for lost wages, calculated in accordance with this decision; OC Transpo shall pay to Ms. Desormeaux an amount sufficient to cover any additional income tax liability that she may incur as a consequence of receiving the monies referred to above in this fashion; OC Transpo shall pay $4,000 to Ms. Desormeaux as special compensation; Interest shall be paid on the lost wages and special compensation awarded pursuant to this decision, in accordance with Rule 9 (12) of the Canadian Human Rights Tribunal Interim Rules of Procedure. Interest on the lost wages shall run from January 30, 1998, calculated as the wages would have become payable to Ms. Desormeaux. Interest on the special compensation shall run from January 30, 1998; and Subject to any of the parties requesting an immediate decision, the parties may make further submissions with respect to the apology issue after receipt of the decision of the Federal Court in Stevenson v. Canadian Security Intelligence Service. ORIGINAL SIGNED BY Anne L. Mactavish OTTAWA, Ontario January 14, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T701/0602 STYLE OF CAUSE: Francine Desormeaux v. Ottawa-Carleton Regional Transit Commission PLACE OF HEARING: Ottawa, Ontario (October 2-3, 2002; October 15-18, 2002; October 28-30, 2002) DECISION OF THE TRIBUNAL DATED: January 14, 2003 APPEARANCES: Francine Desormeaux On her own behalf Mark McDonald For the Canadian Human Rights Commission Marion Breen For the Respondent 1.1 OC Transpo's records do not record Ms. Desormeaux being absent for part of October 29, 1994, whereas her diary entry for that day indicates that she was off of work in the afternoon because of a migraine headache. The October 29 absence has not been included here, as it would not have been considered by OC Transpo in its decision to terminate Ms. Desormeaux's employment. 2.2 From the contemporaneous documentation, it appears that this meeting may have originally been scheduled for October 30. 3.3 [2000] A.J. No. 1179 4.4 Canada (Attorney General) v. Anvari, [1993] F.C.J. No. 317 (F.C.A.) 5.5 (2001), 42 C.H.R.R. D/342, at para 134. See also Air B.C. and Canadian Airline Dispatchers Association, (1995), 50 L.A.C. (4th) 93. 6.6 [1999] 3 S.C.R. 3 7.7 [1999] 3 S.C.R. 868 8.8 Ontario Human Rights Commission and O'Malley v. Simpson Sears Limited, [1985], 2 S.C.R. 536 at 558. 9.9 Meiorin, supra. at para. 54. 10.10 In this regard, the decision in Meiorin adopts the reasoning in Central Okanagan School District v. Renaud, [1992] 2 S.C.R. 984. 11.11 Grismer, supra., at para. 32 12.12 Grismer, supra., at para. 42 13.13 Meiorin, supra., at para. 63 14.14 Grismer, supra., at paras 41 and 42 15.15 Meiorin, supra., at para. 63 16.16 Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 (F.C.A.), at p. D/15 17.17 Dr. Meehan and Ms. Desormeaux testified as to the salutary effect that this treatment has had, as it relates to controlling both the frequency and the severity of Ms. Desormeaux's headaches. Given that Dr. Meehan only began treating Ms. Desormeaux's headaches with Depo-Provera injections after Ms. Desormeaux's employment with OC Transpo was terminated, I have not considered the post-termination improvement in Ms. Desormeaux's condition in my deliberations. See Cie. minière Québec Cartier v. Québec, [1995] 2 S.C.R. 1095, and Canada (Attorney General) v. Beaulieu, (1993), 103 D.L.R. (4th) 217 (F.C.A.). 18.18 [2000] 1 S.C.R. 665. 19.19 Ibid., at paras. 46-47, and see Michael Lynk, Disability and the Duty to Accommodate: An Arbitrator's Perspective in K. Whitaker, J. Sack, M. Gunderson and R. Filion, eds., Labour Arbitration Yearbook 2001-2002, Vol. I (Toronto: Lancaster House, 2002) 51 at p. 61. 20.20 City of Montréal, supra., at para. 76 21.21 Re Ontario Human Rights Commission et al. v. Gaines Pet Foods Corp. et al., 16 O.R. (3d) 290 Ont. Div. Ct.). 22.22 Meiorin, supra., at para. 59 23.23 Meiorin, supra., at para. 68. 24.24 Canadian Union of Postal Workers v. Canada Post Corp. [2001] B.C.J. No. 680, at para. 16 (B.C.C.A.). See also Gaines Pet Foods, supra, Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services), [1996] O.J. No. 608, (Ont. Div.Ct.) and Lynk, supra., at p. 95. 25.25 See section 15 (2) of the Act, introduced into the legislation by An Act to Amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, S.C. 1998, c. 9 26.26 [1990] 2 S.C.R. 489, at pp. 520-521. 27.27 Ontario (Human Rights Commission) v. Roosma, [2002] O.J. No. 3688 28.28 In a post-discharge grievance hearing, Ms. Desormeaux's union representative suggested that 20 days per year was a reasonable estimate of her likely future absenteeism rate. Even if this is a realistic estimate of Ms. Desormeaux's likely future absenteeism rate, it must be viewed in light of Mr. Marcotte's testimony that a number of employees at OC Transpo may have had worse attendance than did Ms. Desormeaux. 29.29 In this regard, Mr. MacDonnell testified that the annual cost of providing 20 days of sick benefits would be in the vicinity of $2,000. It will be recalled that OC Transpo's annual budget is $150 million. 30.30 Renaud, supra., at p. 994 31.31 Premakumar v. Air Canada, (2002) 42 C.H.R.R. D/63. See also Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401. (F.C.A.) 32.32 Morgan, supra. 33.33 See Hebert v. Canada (Canadian Armed Forces), (1993), 23 C.H.R.R. D/ 107 (F.C.T.D.) 34.34 File no. T-9-02. The judicial review application is scheduled to be heard on January 16, 2003. 35.35 Despite the fact the OC Transpo no longer exists, I was not asked to add the City of Ottawa as a party.

2003 CHRT 20

CHRT

Ross Boutilier, Loree-Ann Huard, Gaylene Gurr v. Treasury Board and Department of Natural Resources and Human Resources Development Canada

en

2003-05-26

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6782/index.do

2023-12-01

Ross Boutilier, Loree-Ann Huard, Gaylene Gurr v. Treasury Board and Department of Natural Resources and Human Resources Development Canada Collection Canadian Human Rights Tribunal Date 2003-05-26 Neutral citation 2003 CHRT 20 File number(s) T727/3202, T781/3103, T782/3203 Decision-maker(s) Devins, Reva E.; Groake, Paul; Mactavish, Anne L. Decision type Consent Order Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: ROSS BOUTILIER, LOREE-ANN HUARD, GAYLENE GURR Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TREASURY BOARD - and - DEPARTMENT OF NATURAL RESOURCES - and - HUMAN RESOURCES DEVELOPMENT CANADA Respondents ORDER 2003 CHRT 20 2003/05/26 PANEL: Anne L. Mactavish, Chair Paul Groarke, Member Reva Devins, Member [1] Upon reading the agreed statement of facts and the documents referred to therein; And upon being satisfied that it is a discriminatory practice to deny leave to employees for the purpose of participating in public same sex commitment ceremonies and that the complaints are therefore substantiated; And upon the consent of the parties; the Tribunal orders that: The Treasury Board shall cease the discriminatory practice engaged in with respect to the Complainants. The Treasury Board shall within six months of the date of this Order, take such steps as are necessary to eliminate the discriminatory practice in the application of all of the collective agreements to which it is a party. The Treasury Board shall ensure that the steps adopted to redress the discriminatory practice provide employees with leave to participate in public same sex commitment ceremonies on the same terms as leave is available under the collective agreements to heterosexual employees who request leave for the purpose of getting married. From the date of this Order until the adoption of the steps provided for in paragraph 2 of this Order, the Treasury Board shall grant employees who apply for leave for purposes of participating in their public same sex commitment ceremonies leave on the same terms as leave is available to heterosexual employees who request leave for the purpose of getting married. The Treasury Board, or the employing department, shall credit the Complainants for the annual leave that they were obliged to take as a result of the denial of marriage leave as follows: Ross Boutilier: 5 days Gaylene Gurr: 3 days 3 hours Loree-Ann Huard: 5 days The Respondents will pay to the Complainants the sum of $5,000.00 each for pain and suffering pursuant to section 53(2)(e) of the Canadian Human Rights Act. The Respondent Treasury Board will circulate a directive to all Directors of Personnel informing them of the terms of this Order. Anne L. Mactavish Paul Groarke Reva Devins OTTAWA, Ontario May 26, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T727/3202, T781/3103, T782/3203 STYLE OF CAUSE: Ross Boutilier, Loree-Ann Huard, Gaylene Gurr v. Treasury Board and Department of Natural Resources and Human Resources Development Canada PLACE OF HEARING: Ottawa, Ontario ORDER OF THE TRIBUNAL DATED: May 26, 2003 APPEARANCES: Ross Boutilier On his own behalf Loree-Ann Huard On her own behalf Leslie Reaume For the Canadian Human Rights Commission Brian Saunders For the Respondents CANADIAN HUMAN RIGHTS TRIBUNAL File Nos. T727/3202 T781/3103 T782/3203 BETWEEN: ROSS BOUTILIER, LOREE-ANN HUARD, GAYLENE GURR Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TREASURY BOARD - and - DEPARTMENT OF NATURAL RESOURCES - and - HUMAN RESOURCES DEVELOPMENT CANADA Respondents AGREED STATEMENT OF FACTS For purposes of the hearing into these complaints, the parties agree as follows: Ross Boutilier 1. Ross Boutilier is a geologist employed with the Department of Natural Resources Canada (DNRC). He works at the Bedford Institute of Oceanography in Dartmouth, Nova Scotia. He has been employed with the federal Government since May 1986. 2. Her Majesty in right of Canada as represented by the Treasury Board is the employer of Mr. Boutilier. The DNRC is the employing department. 3. Mr. Boutilier is a member of the Professional Institute of the Public Service of Canada (PIPSC). 4. In 1994, Mr. Boutilier was covered by the 1991 Physical Sciences Group collective agreement between PIPSC and the Treasury Board. 5. Article 20.09(b)(iv) of the 1991 Physical Sciences Group collective agreement between the Treasury Board and PIPSC provides for up to five (5) days leave with pay for the purpose of getting married. A copy of article 20.09(b)(iv) of the collective agreement is attached hereto as Exhibit 1. 6. In June 1994, Mr. Boutilier made a verbal request of the DNRC for marriage leave for the period of July 11 to 15. Mr. Boutilier requested the marriage leave for the purposes of participating in a same-sex union celebration with his same-sex partner on July 9, 1994. Mr. Boutilier's request was approved by his immediate supervisor, Dr. Charlotte Keen, and initially by the head of his department, Mr. J. Verhoef, after consultation with the management team. At the time that the leave was initially approved, Mr. Boutilier disclosed that he required the leave for the purpose of participating in a same-sex commitment ceremony. 7. On July 8, 1994, Mr. Boutilier submitted a written request for leave. In his request, Mr. Boutilier requested five (5) days of marriage leave under art. 20.09(b)(iv) of the applicable collective agreement. Alternatively, he requested leave under art. 20.13 of the agreement, which provided the Employer with discretion to grant leave with or without pay for purposes other than those specified in the agreement. In the event the request for leave under both art. 20.09(b)(iv) and 20.13 was denied, Mr. Boutilier requested vacation leave. A copy of the application for leave is attached hereto as Exhibit 2. 8. On July 9, 1994, Mr. Boutilier participated in a commitment ceremony with his same-sex partner. The ceremony took place in Nova Scotia before Reverend Young of the Universal Fellowship of Metropolitan Community Churches. A certificate of Holy Union was issued by Reverend Young: see Exhibit 3 attached hereto. 9. No licence or certificate of marriage was issued under the laws of Nova Scotia in respect of the ceremony, nor were banns read. 10. Following the ceremony, Mr. Boutilier took leave from July 11 to 14, 1994. 11. By memorandum dated August 4, 1994, J. Verhoef, Head of Regional Reconnaissance, denied both Mr. Boutilier's request for marriage leave under art. 20.09(b)(iv) and his request for leave under art. 20.13. A copy of the memorandum is attached hereto as Exhibit 4. 12. On August 19, 1994, Mr. Boutilier grieved the denial of leave under both art. 20.09(b)(iv) and art. 20.13 of the collective agreement. The grievance was referred to adjudication in June 1997 and the adjudicator allowed the grievance. The respondent applied to the Federal Court of Canada for judicial review of the adjudicator's decision. The Federal Court allowed the judicial review application on jurisdictional grounds in November 1998 holding that the adjudicator did not have jurisdiction to deal with the grievance. The Court found that the grievor was required to file a complaint with the Canadian Human Rights Commission. Leave to appeal to the Supreme Court of Canada was denied in September 2000. 13. While Mr. Boutilier's grievance was under consideration, the DNRC did not seek to recover the leave that Mr. Boutilier had taken from July 11 to July 14, 1994. The leave credits have not yet been recovered. 14. On October 21, 2000, Mr. Boutilier filed a complaint against the DNRC under ss. 7 and 10 of the Canadian Human Rights Act in respect of the refusal of his request for marriage leave. On January 24, 2001, he filed a complaint under s. 10 of the Act against the Treasury Board in respect of the Board's interpretation of the marriage leave provision under the collective agreement. 15. As a result of being denied marriage leave, Ross Boutilier was ultimately required to use five (5) days annual leave. 16. Mr. Boutilier is presently covered by the 2002 Applied Sciences and Engineering Groups collective agreement between Treasury Board and PIPSC, which expired on September 30, 2002. Art. 17.13(b)(iv) of this agreement provides for marriage leave. A copy of the relevant article of this collective agreement is found at Exhibit 5. Gaylene Gurr 17. Gaylene Gurr has been an employee of the Government of Canada since September 1997. She works in the Employment Insurance Division of Human Resources Development Canada (HRDC), in Brandon, Manitoba. 18. Ms. Gurr is a member of the Public Service Alliance of Canada (PSAC). Her Majesty in right of Canada as represented by the Treasury Board is the employer for Ms. Gurr and HRDC is the employing department. 19. In 2000, Ms. Gurr was covered by the 2000 Program and Administrative Services Group collective agreement between Treasury Board and PSAC. 20. Article 45.01 of the collective agreement provides for up to five (5) days of leave with pay for the purpose of getting married. A copy of article 45.01 is attached as Exhibit 6. 21. On April 26, 2000 and May 1, 2000, Mr. Gurr requested annual leave of three (3) days and three (3) hours for the purpose of participating in a ceremony with her same-sex partner. Ms. Gurr and her partner refer to their ceremony as a marriage ceremony and not as a commitment ceremony. 22. A co-worker advised Ms. Gurr of the provision for marriage leave under the collective agreement. On May 31, 2000, Ms. Gurr submitted a request to change her previously approved request for annual leave to marriage leave. She requested three (3) days and three (3) hours of marriage leave. A copy of her request for marriage leave is attached as Exhibit 7. 23. On June 2, 2000, Ms. Gurr's request for marriage leave was denied. The reason given to Ms. Gurr was that marriage leave is granted to those who enter a legal marriage. Ms. Gurr was required to use vacation leave instead. 24. On June 3, 2000, Ms. Gurr and her same-sex partner participated in a religious ceremony officiated by the Reverend Walter Gibbons, ordained by the United Churches Canada. Reverend Gibbons issued a marriage certificate: see Exhibit 8 attached hereto. 25. No licence or certificate was issued under the laws of Manitoba in respect of the ceremony. 26. Ms. Gurr subsequently grieved the refusal of marriage leave. In an e-mail, Arlene G. Janman indicated to Ms. Gurr that her request had been denied because marriage leave can only be granted for the marriage of individuals of the opposite sex. Same sex marriages are not granted a marriage license and therefore are not legal. Her grievance was denied at the final level of the departmental grievance procedure and was referred to the Public Service Staff Relations Board (PSSRB). The PSSRB is holding the grievance in abeyance pending the outcome of the Tribunal hearing. 27. On January 8, 2002, Ms. Gurr filed a complaint against the respondent Treasury Board Secretariat under s. 10 of the Canadian Human Rights Act in respect of the Board's interpretation of the marriage leave provision of the collective agreement. The complaint was amended on May 23, 2002. Ms. Gurr also filed a complaint under s. 7 of the Act against her employing department HRDC. 28. Ms. Gurr is currently covered by the 2001 Program and Administrative Services collective agreement between the Treasury Board and PSAC. Art. 45.01 of that agreement provides for marriage leave. A copy of the relevant article of this collective agreement is attached hereto as Exhibit 9. Loree-Anne Huard 29. Loree-Ann Huard has been an employee of the federal Government since April 1989. 30. Ms. Huard is a member of PSAC. Until November 1, 1999, Her Majesty in right of Canada as represented by the Treasury Board was the employer of Revenue Canada employees. Revenue Canada was the employing department. On November 1, 1999, the Canada Customs and Revenue Agency became her employer. 31. At the time she made her request for marriage leave, Ms. Huard was covered by the 1989 Master Agreement between Treasury Board and PSAC. 32. Clause M 21.01 of the 1989 collective agreement provided employees up to five (5) days of marriage leave with pay for the purpose of getting married. A copy of article 21.01 of this collective agreement is attached hereto as Exhibit 10. 33. On May 18, 1994, Ms. Huard applied for marriage leave to participate in a same-sex marriage. This application was initially accepted by Mr. Frank Brock, the supervisor of Ms. Huard. 34. On May 25, 1994, upon learning from a co-worker that Ms. Huard was seeking marriage leave for a same-sex commitment ceremony, Mr. Brock informed Ms. Huard that her marriage leave was denied. 35. On June 25, 1994, Ms. Huard participated in a commitment ceremony with her same-sex partner. 36. Ms. Huard used her annual leave time to participate in the ceremony. 37. Ms. Huard grieved the denial of marriage leave, but was unsuccessful. Ms. Huard was advised by S.M. Black, Director Registered Plans, Headquarters, that in the absence of a particular definition of the term 'marriage' in the Master Agreement, I referred to the definition of 'marriage' found in the Concise Oxford Dictionary (Eighth Ed.) which defines the term 'marriage' as the legal union of a man and woman. I also referred to the Hewens adjudication decision which dealt with the same issue and I have concluded that your intended marriage does not fall within the definition of the word 'marriage'. 38. Treasury Board is no longer the employer of Ms. Huard. Since November 1, 1999, she has been employed by the Canada Customs and Revenue Agency. That Agency reached its own collective agreement with the Public Service Alliance on June 21, 2000. Ms. Huard's employment is currently governed by that collective agreement. 39. On October 16, 2001, Ms. Huard filed a complaint under s. 10 of the Canadian Human Rights Act in respect of the Board's policy on the interpretation of the marriage leave provision of the collective agreement. The complaint named the Treasury Board as respondent. She also filed a complaint under s. 7 of the Act against her employing organization. Marriage Leave under the Collective Agreements 40. Under the Public Service Staff Relations Act (PSSRA), the Treasury Board negotiates collective agreements on behalf of the Government of Canada. The Treasury Board is the Employer for those branches of the Public Service listed in Part I of Schedule I to the PSSRA: see s. 55 of the PSSRA. 41. The Treasury Board does not negotiate collective agreements on behalf of the federal government organizations that are separate Employers. Separate Employers are set out in Part II of Schedule I to the PSSRA. Those Employers negotiate their collective agreements separately. Pursuant to s. 56 of the PSSRA, the collective agreements of separate Employers are subject to the approval of the Governor-in-Council. 42. The Treasury Board is not the Employer for, and does not negotiate collective agreements with, employees working for the Canada Customs and Revenue Agency. By virtue of s. 58 of the Canada Customs and Revenue Agency Act, the Agency negotiates its own collective agreements. 43. Federal government employees are classified into different occupational groups. For collective bargaining purposes, bargaining units are established and certified for one or more of these occupational groups. Bargaining units are represented by bargaining agents at collective negotiations. There are currently 25 bargaining units, each with its own collective agreement with the Treasury Board. 44. There are currently 17 unions which are registered as bargaining agents. A union can be the bargaining agent for more than one bargaining unit. 45. Mr. Boutilier is a member of the Physical Sciences Group and his bargaining agent is the Professional Institute of Public Service Employees (PIPSC). Ms. Gurr is a member of the Clerical and Regulatory (CR) group and Ms. Huard of the Programme Administrative (PM) group. At the relevant times, the Public Service Alliance of Canada (PSAC) was the bargaining agent for these two groups. 46. To initiate the collective bargaining process, the bargaining agent must serve a notice of intent to negotiate. This can be done up to three months prior to the expiration of a collective agreement. At that stage, the unions have a choice of choosing one of two negotiating routes: conciliation/strike or binding arbitration. If there is an impasse in bargaining, this is resolved by the route chosen by the union. If arbitration has been selected by the bargaining agent, then disputes go to a panel of arbitrators who make a final determination. If the conciliation/strike route is chosen, then disputes go before a conciliation board which attempts to resolve the dispute. If the dispute remains outstanding, then the union can opt to go on strike. 47. There are certain issues that are not the subject of collective bargaining. They are set out in s. 57(1) of the PSSRA. In addition, any matters that are the subject of National Joint Council directives are not the subject of collective bargaining unless the bargaining unit has opted out of the directive. The Council consists of all the Public Service bargaining agents and the Treasury Board as Employer. 48. Both the PIPSC and PSAC have given notice to begin collective bargaining in respect of the collective agreements at issue here. 49. Marriage leave is currently available in all collective agreements for which Treasury Board is the Employer. There are, however, certain differences in the marriage leave clause from collective agreement to collective agreement. In some collective agreements, the marriage leave comes under the leave with pay for family related responsibilities clause: see, for example, the collective agreement applicable to Mr. Boutilier at Exhibit 5. Employees are eligible for up to 5 days for family related responsibilities of all sorts. In other collective agreements, up to 5 days of marriage leave is provided independently of other leave taken: see, for example, the collective agreement governing Ms. Huard at Exhibit 10. Another difference found in respect of marriage leave is that in some collective agreements, employees are entitled to receive up to 2 days of marriage leave only. 50. Marriage leave has been in the Public Service collective agreements since the first collective agreements were entered into following the passage of the PSSRA in 1967. Prior to the introduction of collective bargaining, marriage leave was available as a form of special leave starting in the 1950's. The number of days available varied from time to time. Generally, up to five (5) days was available, though this could be reduced if other leave was taken. It was introduced at the time as the amount of annual leave available was generally limited. 51. Marriage leave in the collective agreements has certain limitations. Generally, employees must have worked for one year of continuous employment and it is only for the purpose of getting of married. As a result of this latter requirement, it has to be taken at the time of marriage. It cannot be taken at a time after or before the marriage. Marriage leave has not been made available to common law couples. 52. Treasury Board has consistently taken the position that marriage leave is for purpose of getting married and is not, therefore, available to employees either for purposes of entering into common law relationships or participating in commitment ceremonies. 53. Although Treasury Board is the Employer for purposes of negotiating collective agreements, the day-to-day administration of agreements is left with government departments. Where there is a doubt as to interpretation of a clause in an agreement, the Treasury Board must be consulted as it establishes the Employer's policy with respect to the interpretation and application of clauses of collective agreements. 54. In recent years, both the Treasury Board and some of the bargaining agents, including PSAC and PIPS, have sought to change the marriage clause in collective agreements. The Treasury Board has sought to eliminate marriage leave on the basis that it is no longer required given that employees now have more vacation leave credits than they had in the days when marriage leave was first introduced. Some of the unions have proposed to replace marriage leave with spousal union leave, which would be available for the purpose of declaring spousal union with another person in a public ceremony. As neither side has agreed to accept the other's proposal, the collective agreements clause has been signed with the marriage leave clause has remaining unchanged. Dated at ., this day of , 2003. Ross Boutilier (Complainant) Dated at ., this day of , 2003. Loree-Ann Huard (Complainant) Dated at ., this day of , 2003. Gaylene Gurr (Complainant) Dated at ., this day of , 2003. Canadian Human Right Commission Per: Leslie Reaume (Commission) Dated at ., this day of , 2003. Treasury Board, Department of Natural Resources, Human Resources Development Canada Per: Brian J. Saunders (Respondents)

2003 CHRT 21

CHRT

Bushey v. Arvind Sharma

en

2003-06-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6640/index.do

2023-12-01

Bushey v. Arvind Sharma Collection Canadian Human Rights Tribunal Date 2003-06-05 Neutral citation 2003 CHRT 21 File number(s) T720/2502, T721/2602, T722/2702 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision status Final Grounds Sex Decision Content Between: Connie Bushey Complainant - and - Canadian Human Rights Commission Commission - and - Arvind Sharma Respondent Decision Member: Athanasios D. Hadjis Date: June 5, 2003 Citation: 2003 CHRT 21 Table of Contents I. Facts A. The Complainant’s Perspective (i) Employment and Union Membership (ii) Visits and Calls by the Respondent to the Complainant’s Office (iii) Incident Outside of the Complainant’s Apartment Building (iv) The Subject Matter of the Respondent’s Visits and Calls Becomes Sexual in Nature (v) The Response from Other Union Executives (vi) National UPCE Conference in London, Ontario (vii) Purchase of New Couch for Office and Gifts for the Complainant (viii) Incident at Office of the Local - April 18, 1998 (ix) April 19, 1998 Letter from Complainant to Respondent (x) Changes in the Complainant’s Behaviour (xi) Renewed Contact by the Respondent after the April 18, 1998 Incident (xii) Events after the Complainant’s Return from Labour College (xiii) July 27, 1998 Meeting (xiv) Measures Taken by the Complainant to Avoid Contact with the Respondent B. The Respondent’s Perspective II. Law III. Analysis A. Preliminary Issue – Jurisdiction B. Credibility of the Evidence C. Was the Respondent’s Conduct Sexual in Nature? D. Was the Respondent’s Behaviour Unwelcome? E. Was the Respondent’s Behaviour Persistent or Severe Enough to Create a Hostile Environment? IV. Remedy A. Expenses Related to the Complainant's Change of Residence B. Letter of Apology C. Pain and Suffering D. Wilful and Reckless Behaviour E. Interest F. Sexual Harassment Training and Counselling G. Retention of Jurisdiction [1] The Complainant and the Respondent are employees of Canada Post Corporation (Canada Post). The Complainant alleges that the Respondent sexually harassed her during the period when they were both members of their union’s local executive, from February to August 1998. [2] The Canadian Human Rights Commission (Commission) was the only party represented by legal counsel at the hearing before the Tribunal. The Complainant’s case was essentially introduced through the evidence led by the Commission. The Respondent presented his case on his own. I. Facts A. The Complainant’s Perspective (i) Employment and Union Membership [3] The Complainant has worked at Canada Post since 1982. Her position in 1998 was that of Officer of Testing and Design, within the Service Performance Evaluation section. The section measures the delivery performance of Canada Post’s products. She worked in an office situated in one of several large buildings that are occupied by Canada Post, near the intersection of Riverside Drive and Heron Road, in Ottawa. Her office was on the 3rd floor of the 10-storey structure known as the East Tower. [4] The Respondent was first hired by Canada Post in 1991. His regular position in 1998 was that of Supervisor in Transactional Control Accounting, in what is essentially the billing and accounting department of Canada Post. In April and May 1998, he received an acting assignment at the higher level position of Officer. His office was on the 5th floor of the East Tower, two storeys above the Complainant’s office. [5] Both parties were members of the Union of Postal Communications Employees (UPCE), the bargaining agent for about 3,000 of Canada Post’s employees. The UPCE is a component of the Public Service Alliance of Canada (PSAC). The Complainant became involved in some of the UPCE’s activities in 1994, and, in 1996, she was elected Vice-President of her local, UPCE 70180 (Local). It was the UPCE’s largest local in the country, with about 1,000 members at that time. [6] Although the Complainant and the Respondent worked in the same building, their occupations were completely unrelated. They met for the first time in September 1997, during a union membership meeting. Several days after the meeting, the Respondent went to the Complainant’s office and inquired about how he could get more involved with the union. She advised him to speak to the then President of the Local, Mr. Jim Fraser, or the Chief Shop Steward, Mr. Ken Zarichansky. She also suggested to the Respondent that he consider taking several courses offered by the PSAC. [7] The Complainant testified that from October 1997 until February 1998, the Respondent showed up at her Canada Post office about once every month. She was leery of his visits although there was nothing in his conduct that gave her specific cause for concern. She found it odd that he would keep coming back even though she had advised him to speak to the other members of the Local Executive about getting more involved. [8] On February 19, 1998, a general membership meeting was held to elect the Local’s Executive. Mr. Fraser did not want to run for President again, preferring instead to devote himself entirely to his other duties as Full-time Officer of the Local (a full-time paid position). The members elected the Complainant to replace him as President. The position of Treasurer had also been vacated. By then, Mr. Fraser and other members of the previous Executive had already met the Respondent. They considered him to be a good candidate for Treasurer since he possessed accounting skills, worked in an accounting-related position at Canada Post and had taken college level courses in the Certified General Accounting program. [9] These Executive members recommended the Respondent’s candidacy to the Complainant and they proposed that she, as the newly elected President, nominate him to improve his prospects for election. She testified that she initially objected to their proposal, in light of her general concerns about his visits to her office. She eventually went along with the others’ suggestion and nominated the Respondent for Treasurer. He won the election for the position. [10] The Treasurer’s duties consisted essentially of receiving and depositing the Local’s monies and issuing cheques for disbursements, including those related to the Full-time Officer’s salary. In addition, the Treasurer was involved in the preparation of the annual financial statements and budget. For the issuance of cheques, two signatures were required from either the Treasurer, President, Vice-President or Full-time Officer, although the latter was not permitted to sign his own pay cheque. No more than ten to twenty cheques were issued in a given month. Much of the Executive’s activities related to grievances and disciplinary actions involving the Local’s membership. These matters were dealt with mostly by the Full-time Officer in consultation with the President and the Chief Shop Steward. These tasks did not form part of the Treasurer’s range of duties. The Treasurer was expected to attend executive meetings, which were held about once a month, in the evenings. [11] The Local had leased office space at a nearby building that was owned by the Canadian Labour Congress (CLC). The CLC building was within walking distance from the Canada Post complex where the Complainant and the Respondent worked. All of the Local’s documents, including its financial records, were kept at the office. Access to the office was restricted, but all the Executive members, including the Respondent, were provided with keys and access cards that enabled them to enter at any time, on any day of the week. The Complainant testified that she kept no financial records or other union documents at her Canada Post office. She was not directly involved in the making of payments by the Local, aside from the requirement that she approve mileage claims and other extraordinary expenses. The Complainant claims that the Respondent was instructed, when he took on his duties, to leave these expense-related documents and any cheques that required her signature, in her mail slot at the Local office. After being signed, the cheques were to be mailed by the Full-time Officer who worked there each day. She herself ordinarily went to the Local office daily, mainly to verify if the employer had sent any twenty-four notices requesting a meeting, pursuant to the collective agreement. (ii) Visits and Calls by the Respondent to the Complainant’s Office [12] The Complainant alleges that very soon after the Respondent was elected Treasurer, he began to contact her at work repeatedly, by telephone and in person. She recalls that he was calling her about four to five times per day and that he was coming down to her office just as often. Considering the limited scope of the Treasurer’s duties and the minimal degree of interaction with other Executive members that was required, there was almost no reason at all for him to be in touch with her at work. [13] She states that the subject matter of these calls and visits initially concerned ways to improve the union’s operations. However, the conversations soon began to drift towards personal matters. He began to tell the Complainant details about his family life. He is of East Indian origin and he explained how he had an arranged marriage in accordance with the customs of his culture. She claims that these conversations were distracting her from her work and became very annoying. She occasionally asked him to leave but he often just remained at her doorway and stared at her. [14] Another topic raised by the Respondent with the Complainant was his résumé. According to the Complainant, within five days after the Local’s election, he began asking to sit down and review this document with her. She consented and they met for this purpose at the Local office one afternoon after work. The Complainant claims that she ended up being in the office with the Respondent for two hours. It became evident to her that he was unwilling to accept some of her recommendations just so the meeting could be prolonged and he could spend more time with her. He repeatedly requested additional help with his résumé over the following weeks even though she told him she was too busy to help. (iii) Incident Outside of the Complainant’s Apartment Building [15] On March 10, 1998, the Complainant alleges that an incident took place that changed the nature of the Respondent’s conduct towards her from merely annoying to overtly sexual. Freezing rain was coming down that day and the roads were icy. She had walked over to the Local office on her way home from work, in order to check for any correspondence. The Respondent called the office and she answered. He told her he was going to come in to do some accounting work. He insisted that she not attempt to walk to her nearby apartment but that she wait for him to come by and drive her home. The Complainant initially refused but the Respondent was so insistent, that she finally accepted. [16] As they pulled up to the driveway of her apartment building, the Respondent asked her which of the units was hers and she pointed it out. He then turned to her and asked if he could come into her apartment. She said no, but he replied that it would be alright since he could easily call his wife and tell her he was working late. He suggested that the Complainant could give him a drink. She testified that she again told him no, that he was not coming into her apartment and that he should behave himself. She claims that he told her they could get intimate together. He went on to say, It’s okay if we have sex and Won’t you even give me a kiss? She again told him no, to which he responded that she would have no choice but to kiss him. If she refused to do so in private, he would force a situation upon her where she would have to kiss him in public. She stepped out of the car and slammed the door shut behind her. [17] She was angry and upset, but her greatest concern lay in the fact that she had indicated to him where her ground floor unit was located. In her testimony, the Complainant stated that although she had received lifts home from other Executive members and work colleagues in the past, people with whom she was acquainted for years, no one had ever entered or even requested to come into her apartment. (iv) The Subject Matter of the Respondent’s Visits and Calls Becomes Sexual in Nature [18] According to the Complainant, the Respondent’s uninvited calls and visits continued unabated over the following weeks. His first daily visit typically occurred at 7:30 a.m., as he was coming in to work, followed by another visit between 9:30 and 10:00 a.m., a third one at noon and a final visit in the late afternoon. He became more forward in his comments, telling the Complainant that it was important for him to see her each day. He would say that he liked a particular dress that she was wearing and ask that she wear it again so that his fantasies would come true. He said that he would continue to pursue her until those fantasies came true. He also told her that he would be jealous if she had a relationship with another man. He advised her to not tell anyone about their relationship and that if she did do so, he would deny it. He told her that it is a man’s world, she had no proof and her word would never be believed. She repeatedly told him that they did not have a relationship and that his behaviour was unacceptable. Yet, he continued calling and visiting her. [19] The Complainant testified that the Respondent always made sure that his statements would not be overheard. During his early morning visits, there usually were no other people working nearby. The Complainant’s section was divided up into several offices by partial-height partitions. The evidence is that the co-worker whose office was on one side of hers was legally deaf. In addition, Richard Hudon, whose office was on the other side, testified that he had several illnesses that caused him significant pain, during this period. In order to alleviate the pain, Mr. Hudon tried to focus his complete attention on one thing at a time, typically his work. He was, therefore, often able to block out any other activities going on around him. [20] Even so, Mr. Hudon testified that he witnessed the Respondent’s frequent visits to the Complainant’s office. To his recollection, there were usually three to four visits a day, each about seven minutes long. Mr. Hudon assumed initially that the parties’ conversations were union-related, but after a while, he sensed that the subject-matter was more personal in nature, and he deliberately tried not to overhear. (v) The Response from Other Union Executives [21] The Complainant testified that the day after the March 10, 1998 incident in the Respondent’s car, she called or spoke in person with the following union executives to complain about the Respondent’s conduct: X Jim Fraser – Full-time Officer and former President of Local; X Dave Vaughan – Vice-President of Local; X Tom Matchett – Ontario Regional Director of the UPCE; X Jim Murray – National President of the UPCE. They all told the Respondent that she was overreacting. According to the Complainant, they did not believe that a quiet, nice, little guy like the Respondent could have done what she alleged. She claims that Mr. Murray even told her, Isn’t it funny that you’ve got a boyfriend. He went on to tell her that it was a personal matter that she should resolve for herself, without involving the union. [22] As a result, she realized that she would get little support from these men and that she would have to deal with the Respondent on her own. In spite of that, she soon got into the habit of calling Mr. Fraser or Mr. Vaughan after the Respondent’s uninvited visits. She concluded that if her union colleagues were not going to help her deal with the Respondent’s harassment, she would make an effort to deflect some of the harassment on to them. [23] All four of these men testified in the present case. They confirm having been notified by the Complainant of her allegations and they all, to greater or lesser extents, acknowledge that they had not fully understood or grasped the issues being raised by the Complainant. Messrs. Vaughan and Fraser were particularly apologetic regarding their reactions to her complaints. They also both confirmed that over a period of time the Complainant called them several times a day to complain about the day’s most recent unwanted visits by the Respondent. (vi) National UPCE Conference in London, Ontario [24] In March 1998, the UPCE held its national conference in London, Ontario. The delegates attending from the Local were the Complainant, Mr. Fraser, Mr. Vaughan and Ken Zarichansky, the Chief Shop Steward. The day before departing from Ottawa to go to the conference, the Complainant went to the Local office after work to check for any correspondence. The Respondent showed up at the office while she was there. According to the Complainant, he asked her if she would take him along to the conference, adding that they could stay in the hotel room and have sex. If he did not go with her, he said that he was going to call her at the hotel when she got there to make sure she was alright. She replied that he could not come along and that he was not to call her, at home or at the hotel. She then left. [25] When she got home, she received a call from the Respondent telling her that Mr. Zarichansky was at the Local office and wanted to speak to her about a grievance. She retorted that the Respondent had been specifically instructed to not call her at home, and that if Mr. Zarichansky wanted to speak to her, he could place the call himself. [26] In the Complainant’s opinion, the Respondent had by this time become obsessed with seeing her. For instance, she believes that he was making very frequent visits to the Local office in the hope of running into the Complainant. If the Local received several invoices that required payment, the Respondent had the habit of going to the office repeatedly, over a series of days, and making out one cheque per visit, instead of doing them all at once. He thus created for himself ostensible cause for showing up at the office over several evenings. (vii) Purchase of New Couch for Office and Gifts for the Complainant [27] The Complainant alleges that, on numerous occasions, the Respondent proposed several questionable purchases by the Local, including that of a new couch for the office. The office already had a two seat couch that was in good condition and did not require replacement. According to the Complainant, the Respondent told her that he wanted a new and presumably larger couch to be bought, on which he could have sex with her and other women. [28] Mr. Fraser testified that the Respondent spoke to him about buying a new couch as well. The reason given by the Respondent was so that he could lay down. Mr. Fraser informed the Respondent that spending union funds on a new couch when there was one there already would be unacceptable to the membership. Mr. Fraser and other witnesses noted in their testimonies that both the CLC’s Building and the Canada Post buildings had nursing stations with cots where employees could go if they felt the need to lie down. [29] The Complainant testified that beginning in the month of April 1998, the Respondent began suggesting that the Local should buy a dress and flowers for her on the occasion of her birthday, which was coming up in May. He also proposed that the union organize a birthday party for her. She told him many times that his suggestions were inappropriate. [30] Messrs. Hudon, Vaughan and Fraser recall having gone to lunch at a restaurant one day, with other members of the Local, including the Respondent and the Complainant. While they were all at the table, the Respondent mentioned that the Local should buy a dress and hold a party for the Complainant. According to Mr. Hudon, the comment was made in a serious tone and not in a joking fashion. He describes the comment as having been a conversation stopper. Mr. Fraser and the Complainant told the Respondent that his suggestion was inappropriate. [31] Mr. Fraser also testified that on several occasions, the Respondent had raised with him the idea of purchasing flowers and a dress for the Complainant. Mr. Fraser remembers wondering how the Respondent, who was married with a family, could suggest buying a gift as personal as flowers or a dress. [32] According to the Complainant, the Local did not ultimately ever throw a party nor purchase any gifts of this nature for her. (viii) Incident at Office of the Local - April 18, 1998 [33] In order to update its bookkeeping practices, the Local had purchased the computerized accounting software known as Quicken. This program was readily available at retail stores and was designed to be used by ordinary consumers to keep track of their personal banking and other transactions. The program had been installed on the Local’s computer. As Treasurer, the Respondent was expected to use this software. [34] The evidence suggests that as of 1998, the Respondent was very competent in the use of various computer programs at Canada Post, which were, by all accounts, significantly more complex than Quicken. The Respondent’s supervisor at that time, Franco Chiumera, testified that the Respondent was fairly knowledgeable at learning computer programs and that he demonstrated an ability to pick up programs more quickly than others. The Respondent’s supervisor between 1999 and 2001 was Alex Eloise. He testified that the Respondent’s computer skills were the best in his team and that the Respondent was the driving force behind computer usage in the section. Mr. Eloise also confirmed that the Respondent was a quick study in learning new software. [35] In early April 1998, the Respondent spoke to the Complainant and asked her to train him on Quicken after business hours, at the Local office. She declined, explaining to him that she had not really used the program yet herself. He nonetheless insisted that she train him. According to the Complainant, who has, since that time, had occasion to use Quicken, the software is so simple that she was able to learn how to use it by herself within ten minutes. [36] The Complainant spoke to a colleague from work, Mary Sue Allen, who was already acquainted with the software since she had been using it at home to manage her family’s finances, and asked Ms. Allen to meet the Respondent and provide him with some training. When Ms. Allen first contacted the Respondent, she suggested that it may be more helpful for him to read the software’s on-line manual or take a professional training course. According to Ms. Allen, he declined her suggestion and insisted on receiving the training from her. A meeting was therefore arranged between her and the Respondent for Saturday, April 18, 1998, at 1:00 p.m., at the Local office. [37] As the time of the meeting approached, the Complainant contends that she began to worry about Ms. Allen’s safety, in light of the Respondent’s prior comments about how he wanted to have sex on the couch in the Local office. The Complainant therefore decided to go to the office on that Saturday, to ensure that nothing untoward would happen to Ms. Allen. Unbeknownst to the Complainant, Ms. Allen had developed some concerns of her own. Ms. Allen stated in her testimony that she became uncomfortable with the Respondent’s insistence that she train him. So, on the morning of April 18, she called and cancelled the meeting. [38] The Complainant, being unaware of the cancellation, arrived at the Local office at about 1:00 p.m., when the training was scheduled to begin. She found the Respondent sitting at the desk with an open beer bottle in front of him. Based on his speech, he appeared tipsy, though not drunk. He informed the Complainant that Ms. Allen had cancelled the training session. As the Complainant turned to leave, the Respondent said that he had uncovered a problem with respect to Mr. Fraser’s expense claims. The Complainant, therefore, decided to speak by telephone to Mr. Fraser about this issue. She sat at the desk and the Respondent stood behind her as they spoke through the hands-free speakerphone. Mr. Fraser confirmed in his testimony that this conversation took place and that it lasted about ten to fifteen minutes. [39] After the call was completed, the Respondent asked the Complainant, who was still seated, to pull her chair in so that he could get to the bulletin board behind her. She gave him some space, but he pushed her chair further in, saying he needed even more room. As a result, she was now stuck against the desk, unable to move or get up. At this point, he grabbed her forearms with his hands and began kissing her hair, head and neck. She told him to get the fuck off her but he refused. He said that he was in love with her and she had to agree to have sex with him. She told him to get off her once more, and to get in front of the desk. He again said no, but after she threatened to call the police, he let go and moved to the other side of the desk. The Complainant told him that his behaviour was inappropriate and a violation of the PSAC harassment policy, for which he could be disciplined. He retorted that he was going to force her to kiss him. She replied that she would not kiss him and that she did not want to have sex with him. [40] At this stage, the Respondent confirmed to the Complainant that he had sought the Treasurer’s position just so he could pursue her. He indicated that from where he came, there was no problem with his having a relationship with her. He also reiterated that if she told anyone about his behaviour, she would not be believed, and that it was a man’s world where a woman’s word made no difference. She repeated to him that he was in breach of the PSAC harassment policy and that his behaviour had to cease immediately. She then left the office. She testified that during this incident, she maintained a calm demeanour. She was upset all the same and when she got home to her apartment, she curled up in a ball and just cried. She considered calling the police but assumed it would be to no avail as it would just have been her word against his. The Complainant claims that the Respondent had held her arms so tightly that she developed bruises. Indeed, Mr. Hudon recalls having noticed at work that one of the Complainant’s forearms was bruised, although he does not remember exactly when he made this observation. (ix) April 19, 1998 Letter from Complainant to Respondent [41] The Complainant decided that she had to take some formal action against the Respondent since her verbal warnings about his conduct had not worked. Thus, on Sunday, April 19, 1998, the day after the incident with the Respondent, she drafted a letter addressed to him. It was printed on the Local’s stationery and stated the following: Regarding: Inappropriate Sexual Comments On March 26, April 18, and several other occasions, you have made inappropriate sexual comments to me. These comments have ranged from telling me how beautiful I am to requesting that I do not date anyone else to asking me to have sex with you. On at least four occasions, I have told you to refrain from making these comments. On April 18, 1998, I explained to you that this is a violation of the PSAC Constitution and the PSAC Harassment Policy. Enclosed is a copy of the PSAC Harassment Policy and a copy of the PSAC Constitution, Section 25, Discipline which outline the potential steps that could be taken if this behavior is not stopped. Your sexual comments are unwarranted and unwelcome. Due to the fact that I have on several occasions requested that you refrain from this behavior and you have not adjusted your behavior accordingly, I feel that you are sexually harassing me. In the future, I expect that you will deal with me in a professional, business manner as it is inappropriate for you to continue make [sic] these sexual comments to me. Sincerely [signed] Connie Bushey President, Local 70180 The letter indicates that copies were to be provided to Messrs. Vaughan, Fraser, Murray and Matchett. [42] The Complainant does not mention the alleged incident of physical contact in the letter. She explained in her testimony that the office of Local President was very public in nature and she wanted to keep her personal problems private. She also feared that an assertion by her that she had been assaulted could have been used against her by others, particularly because she felt that without any witnesses, no one would believe her. On Monday, April 20, 1998, the Complainant handed the letter to Messrs. Fraser and Vaughan and asked them to deliver it to the Respondent, who was away from work that day on annual leave. [43] Early the next morning, Tuesday, April 21, 1998, the Respondent telephoned the Complainant at her office and said that he wanted to talk to her about what happened Saturday. She replied that she did not want to talk to him and that he was to leave her alone and not contact her. A short time later, at the indicated time of 9:11 a.m., the Respondent sent her an e-mail message in which he stated: I am sorry, wouldn’t you wish me best of luck for my exam. I still have respect for you. Arvind. [44] The Respondent was to write an examination regarding a job competition later that day. The Complainant asserts that up to that date, no problem had arisen with respect to any of the Respondent’s acts in his capacity as Treasurer and that the only possible matter for him to have apologized about was the incident of April 18th. [45] At 11:00 a.m., apparently after Messrs. Fraser and Vaughan had asked to meet with him, the Respondent called the Complainant to tell her that she had no right to tell them what had happened. He asserted that he was the one being harassed and informed the Complainant that she would never be believed. She replied that he had continued his inappropriate behaviour, despite her warnings against it. She had no choice but to bring the matter to a higher level. [46] Messrs. Fraser and Vaughan met with the Respondent over the lunch hour on April 21. They handed him the letter and told him that the attention that he had been showing to the Complainant was improper. They advised him to cease and desist this conduct and, in particular, to not have any further contact with her other than for union-related business. The Respondent denied having done anything wrong. He offered to resign as Treasurer but Messrs. Fraser and Vaughan replied that he had been doing a good job and his resignation was not necessary. As Mr. Vaughan recalls, the Respondent agreed to not bother the Complainant any more. It was suggested to the Respondent that an apology to the Complainant may be appropriate. He was specifically instructed to not telephone her that day. [47] A shop stewards’ meeting was taking place at the Local office that evening, which the Complainant decided not to attend. Amongst the people present was the Respondent. At about 5:30 p.m., the Complainant received a call at her home from him. He told her that he was at the meeting, that extra pizza had been ordered and that she should come over to have some. She replied that he had been specifically instructed to not call her. He said that he wanted to apologize for his behaviour and that he had to hear her voice. She told him not to call her again and slammed down the phone. [48] On April 22, 1998, the Complainant received a letter from the Respondent that states the following (the text has not been altered or corrected): To: Connie Bushey From: Arvind Sharma Subject: Inappropriate Behaviour Connnie, I am deeply sorry and I am apologising for all conflict it may have cause you. I will endevour to earn your respect again. I am and will be professional and be respectful. I trust that you will forgive me. I do not know what else I should say. Also I want to ask your opinion time to time; therefore, please guide me. Regards, [signed] Arvind At about 7:30 a.m., on the following day, April 23rd, the Respondent walked into the Complainant’s office. She was busy talking on the phone so he left her a message on a small Post-It self-adhesive sheet of paper that he placed on her desk. The note stated (the text is again unaltered): Plse Phone me & say you have forgotten. Connie, I’ll never hurt you. Thx Arvind. The Complainant threw the note in the garbage can and the Respondent left her office. She later retrieved the note and it was entered into evidence at the hearing. [49] Later that day, at about 3:00 p.m., the Complainant met with Messrs. Fraser and Vaughan at the Local office. They called and spoke to the Respondent over the hands-free speakerphone. Mr. Fraser and Mr. Vaughan chastised him for having phoned the Complainant and they reiterated that he was to stop contacting her for anything besides union business. He was also to return the Complainant’s business card that contained her unlisted home telephone number, which he had been given when he became Treasurer. The Respondent agreed to bring the impugned behaviour to an end and to return the business card. [50] The next day, April 24, 1998, the Respondent wrote the following letter to Messrs. Fraser and Vaughan (the text is unaltered): To: Brother Jim/Dave Jim I wanted to talk to you, sorry I was with my Boss. Jim/Dave, I don’t want to hurt anybody. Plse-Plse don’t take me wrong way. I have excellent reputation at work I respect other people. I have Connie’s card which I’ll give you tomorrow and I’ll earn the card back with respect. I did nothing wrong. I’ll not call Connie if I’m at work with an appointment & respectfully. I hope that you will understand me. If you want I’m willing to give you the office key/pass. This is just the note, don’t take wrong way. I talk to respect plse. I’m not bad. Thx Arvind. The Complainant’s business card was indeed returned by the Respondent to Mr. Fraser the following day. Messrs. Vaughan and Fraser did not ask the Respondent to hand in his office key and pass. (x) Changes in the Complainant’s Behaviour [51] The Complainant claims that as a consequence of the Respondent’s actions, she was forced to make numerous changes in her life. She did not live far from her office and was in the habit of walking to and from work. After the April 18th incident, she started driving to her job out of fear that the Respondent would confront her while walking and assault her. [52] She resolved to never allow herself to be alone with the Respondent again. To this end, she informed her manager, Gilles Séguin, about her problems with the Respondent. Mr. Séguin advised her that if the Respondent showed up, she could leave her cubicle and come to his office or go to the section’s common area. As is further discussed below, the Complainant alleges that by May 1998, the Respondent had resumed his daily visits to her office. She therefore began to leave her office whenever he was likely to come by, and go elsewhere, such as the cafeteria. She ended up having to work later hours in order to make up for the time she lost earlier in the day, while away from her desk. [53] The Complainant claims that she also stopped going to the Local office alone. Ordinarily, Mr. Fraser left for home at about 4:00 p.m. The Complainant now had to make sure to take care of any union business at the Local office prior to Mr. Fraser’s departure. This often meant that she had to leave earlier from her job at Canada Post. [54] She contends that all of these changes had a negative impact on her performance at work as well as on her ability to function as President. (xi) Renewed Contact by the Respondent after the April 18, 1998 Incident [55] The Complainant alleges that within a few days after her letter to the Respondent and his conversations with Messrs. Fraser and Vaughan, during which he agreed to not contact her except for union-related business, he resumed his uninvited visits, calls and other communications regarding matters that had nothing to do with the Local’s activities. [56] On April 28, 1998, the Respondent sent the Complainant an e-mail message containing a summary of a management course for women that was being offered at Carleton University. The Respondent stated at the top of the message, Connie, you should attend this program. At about the same time, he spoke to her by telephone about their going together to purchase two new filing cabinets for the Local office. She told him that new cabinets were not needed but that if he insisted on making the acquisition, he was to discuss the matter with Mr. Fraser and make the purchase with him. She considers this request to be another attempt by him to be alone with her. [57] In May 1998, the Complainant began visiting her office again. She claims that his comments during these visits were usually sexual in nature. He related his sexual fantasies about her, described his preferred sexual positions, and repeatedly asked to have sex with her. She always told him that she would not have any sexual relations with him and reminded him that he had been warned to stop this behaviour. [58] The Complainant testified that on one occasion, the Respondent had shown up at her office and began saying that he wanted to have sex with her and that he would not leave her alone unless she did. She shouted back to him to get the fuck out of her office and cease this form of conduct. Her objections were so loud that Mr. Hudon’s attention was drawn away from his work and he rose to see what was going on in the neighbouring cubicle. In his testimony, Mr. Hudon recalled seeing the Respondent rush past him heading out of the Complainant’s office. She, on the other hand, remembers that the Respondent was still in her office when Mr. Hudon walked in. She turned to the Respondent and said, Go ahead, Arvind, tell him, tell him you were demanding sex from me. The Respondent denied her charge and then ran out of the office. [59] She was so upset, Mr. Hudon had to sit with her for a while to calm her down. He recalls that she was crying in great sobs and was somewhat incoherent. He tried to comfort her but, although he is a fairly close friend of hers, he did not think it appropriate at that time to ask about what happened. [60] Mr. Hudon testified that the Respondent would ask him where the Complainant was, whenever he passed by and did not find her. Mr. Hudon refused to answer, since the Complainant had specifically asked him to not divulge her whereabouts. As a result, the Respondent used to leave numerous messages in the Complainant’s voice mail box, often saying that he needed to talk to her and hear her voice. [61] During a weekend in the month of May 1998, the PSAC held a meeting in Hull. Four members of the Local Executive attended, including the Complainant and the Respondent. The Complainant drove everyone to the meeting in her car. On the way back, the Respondent made several comments regarding an upcoming series of labour college courses that the Complainant was to take at the University of Ottawa. The program required that she reside on the university campus for the duration of the training session, which was to last for one month, beginning May 25th. Mr. Vaughan, the Vice President, had been assigned all of her union functions and responsibilities in her absence. The Respondent stated that he wanted her phone number and address at the university campus so that he could call her during the day and come by and visit her, together with his wife, at night. The Complainant told him that she would not give him this information. He was insistent on obtaining it, claiming that she was being rude and insensitive in not providing it. Eventually, one of the other Executive members, Mr. Zarichansky, intervened and stated, in a fairly assertive manner, that the Complainant had clearly said no to the Respondent’s request and that he should leave her alone. [62] When the labour college session ended, a graduation ceremony was held at the university. Several members of the Local Executive attended the event including Mr. Fraser, Mr. Zarichansky and the Respondent. As the Complainant looked out into the audience that day, she saw the Respondent standing with a large bouquet of roses in his arms. She feared that the Respondent was planning on giving her the flowers that he had been talking about for months and that, at the same time, he would finally manage to kiss her in public, as he had first announced to her when he drove her home in March. She was afraid that she would be unable to avoid his embrace. As luck would have it, the ceremony ran long and the Respondent had to leave to attend his child’s birthday party. He handed off the bouquet to Mr. Fraser. According to Mr. Fraser’s testimony, the Respondent had brought the flowers to the event and they were not paid for from the Local’s funds. [63] Since the Respondent never learned how to reach the Complainant at the university, she did not hear from him at all during the training session. When she returned to her Canada Post office in late June 1998, she found numerous messages in her voice mail box from the Respondent in which he stated that he needed to hear her voice and asked her to call him. She also found an e-mail message sent by the Respondent to her on June 12, 1998. The message was not related in any way to the union’s activities. It consisted of a file attachment containing a skill-testing quiz and a comment from the Respondent that he was certain the Complainant would score 98% on the quiz. (xii) Events after the Complainant’s Return from Labour College [64] The Respondent began calling the Complainant again as soon as she returned to work. She reminded him each time that she did not want him to phone her. On occasions when she was away from her office, the Respondent left messages in her voice mail box, asking that she call him. The Complainant describes the tone of his voice on these messages as anxious. Whenever he managed to speak to her, he often explained that all he wanted to do was hear her voice. The Complainant continued her practice of calling Mr. Fraser and Mr. Vaughan after receiving the Respondent’s calls. She testified that by this time, she had begun to feel more worried about and afraid of the Respondent’s conduct, having reached the conclusion that he was obsessed with her. She therefore discussed with Mr. Fraser and Mr. Vaughan the possibility of restricting the Respondent’s access to the Local office by taking away his pass and keys, but they felt that this would be an overreaction and a possible violation of his rights. [65] The Local had acquired a new computer in July 1998, and a software package that was in widespread use at Canada Post was installed on it. The package included the Lotus spreadsheet program. The Respondent called the Complainant and requested that she train him on the program. She flatly refused, especially since the program formed part of the package that he was already presumably using at his Canada Post job. She perceived his request as yet another excuse to get her in a room alone with him. [66] The Respondent served as a union representative on the Joint Health and Safety Committee. The committee’s functions included the conduct of annual workplace inspections regarding the health and safety of Canada Post employees. On July 16, 1998, the Respondent and a management representative carried out the annual inspection on the Complainant’s floor in the East Tower. The Complainant alleges that at one point during the day, while she was on the telephone, she looked up and saw the Respondent standing at her cubicle’s entrance, staring at her and listening to her conversation. He told her she looked unhappy and suggested that the union should buy her flowers to make her feel better. She again reminded him that such a purchase would be inappropriate and that he had already been advised in her letter to cease making these comments. [67] As a result of what she came to regard as the Respondent’s obsession with her, she developed a fear for her safety. This led her to make additional changes to her lifestyle. For instance, she ceased her lunch hour walking and running exercises for fear of crossing paths with the Respondent. She also stopped going to the park at Mooney’s Bay, near her apartment, because she knew that he used to go there often with his family. She even contemplated resigning from the Local Executive, having been frustrated by her fellow union representatives’ unwillingness to intervene. [68] Her fear was compounded by certain statements that the Respondent made to her in late June or early July 1998, about his impending change of residence. The Respondent informed the Complainant that he was planning to move to a location that was only ten minutes away from her home. She alleges that he said he would be living so close to her that he intended to come by and visit her during weekends and evenings. The evidence is that by August 1998, the Respondent and his family did indeed move into a house owned by his father, which is located a short distance away from the Complainant’s apartment. [69] On Friday, July 17, 1998, the Respondent called the Complainant and told her that he would be seeing her the next day. She pointed out to him that the next day was a Saturday and she had no intention of seeing him. He replied that he intended to drop by and visit her at what she assumed was her apartment. She advised him to stay away. Over the course of the weekend, she made sure not to be at home, in case he attempted to visit her. The following Monday, July 20, the Respondent called her early in the morning and asked her how her weekend was. [70] She was now very concerned, sensing that the Respondent had moved beyond the workplace and was invading her home territory. She therefore wrote a second letter to the Respondent, dated July 20, 1998, on the Local’s stationery, in which she stated the following (the text has not been altered from the original): July 20, 1998 Arvind Sharma Regarding: Continuation of Inappropriate Behavior In April 1998, you received a warning letter regarding inappropriate comments and behavior that you had directed towards me. Over the past three months, I do not feel that you have improved on you comments or behavior towards me. It has been noted that you are at the Local several times a week. I personally have noted that you go in to sign a cheque and the next day you are into do one other small task. If appears that you are in the office so many times because you are seeking an opportunity to be with me alone. Due to the initial inappropriate behavior, I no longer feel safe and comfortable to go into the Local during the evening or on the weekend. This is mainly due to the fact that I do not know when you will be there and if you are there what types of comments or behavior that will be exhibited towards me. This is affecting my efficiency as the President of the Local and the efficiency of the Local in the service we provide to the membership. Although, there has been several comments, the most inappropriate and worrisome comments came over the past week. When you indicated I was required to provide you with training on the computer, I firmly and repeatedly told you that I would not provide the training. You responded that I had to provide you training and the trainer had to be me. Even though I said NO several times, you insisted that I train you. Your lack of understanding of the word NO is a very simple word. As you are well versed in the use of computers and the operations of the computer, I do not believe that you needed training on the computer. I really question your motives as to why you would insist on being trained by me. In my opinion, this was your latest plan for you to be alone with me. In the future, I do not want you to arrange or plan situations where you are alone with me. On Thursday, July 16, you stated to me that that Local should buy me flowers to cheer me up. This is similar to the situation when you wanted the Local to buy me flowers and a dress for my birthday. It has been explained to you that the I and the other members of the Local Executive considers this behavior very inappropriate and not acceptable. On Friday, July 17, you stated that you will be seeing me on the weekend. I am uncertain as to why you seem to think that you would be seeing me. In fact the way you said the comment, I was uncertain if you were planning to see me at the Local or if you were planning to stop by my apartment. As I had never discussed or planned to see you this weekend, I am uncertain how you came about with this idea. This could be considered as a form of stalking. This behavior threatens my safety which has a high emotional impact on the victim (me). This further leads me to believe that you are seeking the opportunity to see me alone. On Monday, July 20, you phoned me and stated that you were calling to see how my weekend was. It has been noted that you do not call Jim or Dave or Ken. Is this your way of singling me out so that you can talk to me each and every day? This behavior must stop or further action will be taken. This could lead to formal charges that will be made public through the disciplinary process. Sincerely [signed] Connie Bushey President, UPCE, Local 70180 The Complainant provided copies of the letter to Messrs. Murray, Matchett, Vaughan and Fraser. At the Complainant’s request, Messrs. Vaughan and Fraser met with the Respondent to hand him the letter. Although the Respondent read the letter, he refused to keep it and he handed it back. Messrs. Vaughan and Fraser told him to stop bothering the Complainant, and he apparently consented. [71] Later that day, the Respondent sent the following hand-written letter to Mr. Murray (the text has not been altered from the original): Brother Jim Murray, As our conversation this afternoon, the letter provide to me by Jim Fraser & Dave Vaughan are false and incorrect. I did nothing wrong. I’ll not phone Connie at work instead for union business I’ll phone at the Local. I’m hard worker, honest & helping nature individual. I can say so many things about somebody but they don’t mean they are correct. To solve this problem, I want to meet you, Connie, Tom Matchett personally to over with the family domestic misunderstanding problem. I work until 3:30 PM. Plse let me know when we can meet. I will not resign. I want to move forward. Later that week, the Complainant met with a person responsible for security at Canada Post. This individual advised her that the conduct of the Respondent, as described by her, could constitute a form of stalking. He also informed her that complaints could be filed with the employer, the union, the police and the Canadian Human Rights Commission. However, having been already notified about the Respondent’s request for a meeting, she decided to hold off on the filing of any complaint until after the meeting. (xiii) July 27, 1998 Meeting [72] Pursuant to the Respondent’s request in his July 20th letter, a meeting was convened at the Local office, on July 27, 1998, attended by Messrs. Murray, Matchett, Vaughan and Fraser, together with the Respondent and the Complainant. Mr. Matchett presided over the meeting. According to the Complainant, it was readily apparent to her that the topic of the meeting for the other union representatives was how to resolve the problem so as to maintain the efficient operation of the Local. There was no interest in actually dealing with the Respondent’s behaviour. The Complainant notes that the collective bargaining period was fast approaching and the UPCE could not afford to have outstanding tensions within its largest local. [73] The Complainant claims that as she recounted the incidents to the others, the Respondent continuously interjected with objections and denials, shouting that’s not true and you’re lying. When he denied having suggested that the Local buy her flowers and a dress, Mr. Fraser stepped in and told the Respondent, Yes you did, so stop lying. Although the Respondent initially denied the Complainant’s accusations regarding his repeated requests for sex, he eventually conceded It’s not three times I demanded sex from you, it was once, and I was drunk. [74] Eventually, a proposal was put forth that the Respondent resign from the Health and Safety Committee, that he undertake to visit the Local office on Wednesdays only and that he cease contacting the Complainant. She claims that while the others may have felt that a consensus was reached in the room to accept this proposal as a resolution to the problem, she never expressed any acceptance. She noted that Mr. Matchett closed the meeting by telling the Respondent to just continue with what you are doing and instructing her to stop writing letters to the Respondent. She therefore perceived the proposal as an implicit approval of the Respondent’s stalking and demands for sex. [75] Disappointed with the outcome of this meeting, the Complainant decided to take action against the Respondent. On July 31, 1998, she filed a human rights complaint with the Human Rights section of Canada Post. On August 4, 1998, she laid charges with the PSAC and UPCE, against the Respondent, in accordance with the PSAC’s Constitution and the UPCE’s By-laws. She alleged that the Respondent had engaged in conduct that was prejudicial to the good order and discipline of the union and that he had sexually or personally harassed her. [76] On August 10, 1998, the Respondent sent a letter to Mr. Murray informing him that he was resigning as Treasurer of the Local, effective the same day. [77] On August 31, 1998, Mr. Fraser and the Complainant met with an investigator of the Ottawa‑Carleton Regional Police. A file was opened in the Complainant’s name regarding the Respondent, so that in the event she ever felt the need to call for assistance, the police would already be aware of the background to the case. For additional security, the Complainant gave the police file number to her manager, Mr. Séguin. [78] On October 30, 1998, Canada Post communicated the findings from its investigation into the Complainant’s internal human rights complaint. The investigation was conducted by Ms. Leslie Hine, Human Rights Co-ordinator at Canada Post, who testified that she gathered information by interviewing numerous witnesses, one on one, including the Complainant and the Respondent. Neither the Respondent nor the Complainant were present during the interviews of the other witnesses. Ms. Hine took notes during the interviews. In most cases, the notes were shown to the witnesses and signed by them. Canada Post concluded that the Respondent’s obsessive behaviour and unwelcome sexual requests [were] unacceptable and cannot be condoned by the corporation. The employer therefore ordered the Respondent to attend a human rights sensitization course, to provide a full and frank apology to the Complainant and to cease having any contact with her. In addition, he was suspended from work without pay for two weeks and a copy of the letter setting out these conclusions was placed on his personal file. Any violation of these conditions would result in the immediate termination of his employment. The Respondent initially filed a grievance against the employer’s decision but the grievance was later abandoned. [79] Also on October 30, 1998, the National Executive of the UPCE placed the Local under trusteeship due to serious questions that were raised about its ability to function. The Complainant and the other Executive members were advised that they no longer held their offices. When the Local was brought out of trusteeship a year later, the Complainant was re-elected President. [80] The union investigation committee that enquired into the Complainant’s charges against the Respondent concluded that he had sexually or personally harassed her. The UPCE National Executive adopted the committee’s report and on June 1, 1999, the National Board of Directors of the PSAC suspended the Respondent’s membership in the union for a period of five years. [81] On December 23, 1998, the Complainant filed with the Commission, the present human rights complaint against the Respondent. Separate human rights complaints were also filed with the Commission against the PSAC and the UPCE, in which the Complainant alleged that these employee organizations had failed to provide her with a workplace free from harassment. These latter complaints were settled several weeks before the start of the hearing into the complaint against the Respondent. (xiv) Measures Taken by the Complainant to Avoid Contact with the Respondent [82] The Complainant testified that one of the principal fears that she developed as a result of the Respondent’s alleged behaviour was that he would come to her apartment, particularly after he moved his residence to a location nearby. She claims to have notified her building’s manager and superintendents about her concerns regarding the Respondent. More importantly, although she enjoyed living in the apartment that she had occupied ever since moving to Ottawa eleven years before, she decided that she had to move as far away as possible from the city, so as to make it difficult for the Respondent to visit her. She started looking for a new home in December 1998, and by June 1999, she had purchased and moved into a house located well outside the city. She has continued to work at Canada Post and her commute now takes 1½ hours. She must now drive to work whereas she used to be able to conveniently walk there from her apartment. She has deliberately not installed a telephone in her new home but instead uses a cellular phone only, with a number that is not published in any phone book. [83] Both the Complainant and the Respondent have since changed offices and buildings within the Canada Post complex. Nonetheless, special security measures have been put in place at work by her employer. Her name is not posted anywhere, including her office door and employee lists. Her desk is always placed in a central and public area, away from any corners or stairwells. The Respondent is not allowed access to the building in which the Complainant works. [84] The Complainant acknowledged in her testimony that the Respondent has not spoken to or contacted her again since 1998. In one chance encounter in a store about one year ago, he turned around and walked away from her. The Complainant contends that the change in his conduct can be attributed to his fear of losing his job if he were to ever violate Canada Post’s order that he never come into contact with her. B. The Respondent’s Perspective [85] The Respondent denies the Complainant’s contention that he joined the Local Executive in order to gain an opportunity to keep company with her. The Respondent claims that when he attended the union meeting in September 1997, he noticed that there were no members of visible minority groups on the Local Executive and thought that by getting involved he could become a role model for others. In addition, he saw it as an opportunity to improve his English language skills and to become acquainted with other employees from different departments. He also acknowledges that he was pleasantly surprised to learn that Local Executive Members received a modest fee in return for their participation. [86] The Respondent agrees that he made telephone calls to the Complainant and visited her occasionally, but contends that their conversations always related to union activities. For instance, he regularly came to her office to get her signature on Mr. Fraser’s pay and expense reimbursement cheques. The Respondent then delivered the cheques to Mr. Fraser’s spouse, who worked in a neighbouring building. About four or five of the fifteen to twenty cheques issued each month were made payable to Mr. Fraser. The Respondent categorically denies that his calls and visits occurred with the frequency suggested by the Complainant. The visits were no more than three or four per week, he contends, and would only occur at the Complainant’s request. In addition, the reason that he often went to the Local office after work was because many of the Local’s books and other documents were in disorder and the task of reorganizing them took some time. [87] The Respondent points out that his job did not allow him to be away from his office as often as implied in the Complainant’s testimony. He was supervising two other employees during this period and they relied on him for advice. He had to be available for them at all times. The Respondent’s supervisor at the time, Mr. Chiumera, testified that he had not noticed any abnormal absences. Yet, on cross-examination, Mr. Chiumera admitted that he never tracked or monitored the Respondent’s ordinary work breaks and he would not have noticed if the Respondent was away from his desk for even as many as ten minutes. Mr. Chiumera agreed that it does not take more than a couple of minutes to go down by elevator to the Complainant’s floor. Mr. Chiumera was interviewed by Ms. Hine on August 31, 1998, in the context of the Canada Post human rights investigation. According to her notes, which Mr. Chiumera had read and signed at the end of the interview, he recalled that the Respondent had been away from his desk or on the phone more often [although] not more often than his usual break time, ever since he joined the union Executive. [88] The Respondent is also adamant that no discussions of a sexual nature took place between him and the Complainant. They did engage in friendly conversations about some aspects of their personal lives, such as his arranged marriage. She spoke to him about some of her family background too. However, he insists that no conversations ever occurred relating to how beautiful she was, his sexual fantasies, their having sex or anything else of the sort. He describes his relationship with the Complainant as friendly and he considered her as a sister. [89] The Respondent contends that the only items of furniture that he recommended should be purchased for the Local office were office chairs, filing cabinets and a desk. He also felt that the refrigerator should be replaced. He insists, however, that he never suggested buying a new couch. He submits that the Complainant, Mr. Fraser and Mr. Vaughan are against him and were lying when they claimed otherwise in their testimonies. [90] The Respondent denied ever suggesting that the Local hold a party for the Complainant or buy her a dress and flowers. In addition, the Respondent intimated that the atmosphere in the restaurant, in which he allegedly suggested that the Local buy the Complainant a dress and hold her a party, was too loud for Messrs. Hudon, Vaughan and Fraser to have heard his supposed comment. He noted that these witnesses were unable to recall many other details from that outing. As for the flowers that he held at the Complainant’s graduation ceremony, the Respondent claims that they were not purchased by him, but rather by the Local, and that Mr. Fraser had brought them to the ceremony. At a certain point, Mr. Fraser handed them over to Mr. Zarichansky who later passed them over to the Respondent. [91] In his evidence, the Respondent did not deny or comment in any way about the remarks that he is alleged to have made to the Complainant in his car when he drove her home on March 10, 1998, nor, more importantly, with respect to the incident of physical contact that the Complainant claims took place in the Local office on April 18, 1998. [92] The Respondent acknowledges that a meeting took place on April 21, 1998 between himself and Messrs. Vaughan and Fraser, during which he was presented with the Complainant’s April 19th letter and told to no longer go to her office. He was angered by their comments and denied the alleged conduct. He was upset that this issue had never been raised with him before. The Respondent claims that Messrs. Vaughan and Fraser told him to drop by the Local office later that afternoon to write up a letter of apology addressed to the Complainant and that the matter would then be over with. If he failed to do so, they threatened to make the allegations known publicly. The Respondent showed up at the Local office as he was advised to do, but he insists that he did not draft the letter of apology. He claims that he simply typed the text as it was dictated to him by Mr. Vaughan. After the Respondent printed and signed the letter, he left it with Mr. Vaughan for delivery to the Complainant. Both Mr. Fraser and Mr. Vaughan, who were called as witnesses by the Commission, testified that they did not participate in the preparation of the Respondent’s letter of apology and that they did not assist in the composition of its text. [93] The Respondent further asserts that he did not call the Complainant at home later that evening (April 21) to invite her to the shop stewards’ meeting. However, he admits that he did phone her at work three days later to speak to her about the letter that she had sent him. She invited him down to her office to discuss the matter. When he arrived, he noticed that his letter of apology was on her desk. She told him that he was not being respectful of her and that he should apologize. He replied that he had already provided an apology but he was prepared to go even further. As a demonstration of his respect for her, and to show her that he was not bad and would not hurt her, he wrote out the message on the Post-It note paper, referred to earlier in this decision, and placed it on his letter of apology. She threw both documents in her garbage can and told him to go back to work. [94] In the days and weeks that followed, the Respondent claims that when he and the Complainant ran into each other in the Local office, they exchanged simple pleasantries, asking each other how they and their families were, how their weekend was, and so on. Aside from these conversations, he did not speak to her about anything other than union-related matters, such as her approving his participation at a UPCE conference in Montreal. His relations with her were professional. [95] During the course of this conference, which was held in May 1998, the Respondent claims that none of the other union representatives present, including Messrs. Hudon, Matchett and Murray, complained to him about his conduct with respect to the Complainant. He acknowledges, however, that he never asked them their opinion on the matter either. [96] It is the Respondent’s contention that his family’s decision to change residence had nothing to do with his attempting to live near the Complainant’s home. The Respondent, his wife and his children had been residing in a flat in central Ottawa. This residence lacked a backyard in which the children could play and the living space was relatively limited. The Respondent’s father owns several residential properties within the city, including the one in which they had been living and the one to which they moved. The latter property is a single family dwelling with a large backyard, and is situated only a few minutes’ distance from the Respondent’s workplace. The property had been purchased by the Respondent’s father almost two decades before. Due to some delay related to the departure of the previous tenants of the house, the Respondent was not able to take possession of the house until July 1998. [97] According to the Respondent, there are several incidents that serve to demonstrate that he was not harassing the Complainant and that she willingly interacted with him. Early in April 1998, he claims that she sought his assistance in using the income tax preparation software known as QuickTax. He and Mr. Hudon had distributed copies of the program to union members to help them prepare their returns. The Respondent also recalls the Complainant asking for his support if she ran for the position of national President of the UPCE and promising to support his candidacy for Local President. He also claims that the Complainant called him and asked to be e-mailed the skill-testing quiz, which he sent her on June 12. [98] Some time in May or June 1998, the Respondent and his family were caught in an elevator at the CLC building, in which the Local office was located. They only managed to escape with the assistance of the fire department. When the Complainant heard about the incident, she invited the Respondent to her office to discuss it and any measures that needed to be taken. On another occasion, also in May or June 1998, the Executive was having a meal at a restaurant and the Respondent recalls Mr. Fraser commenting how good it was that the Complainant and the Respondent had put their differences behind them and were friendly with each other again. Presumably, the Complainant made no effort to contradict this remark. According to the Respondent, these events, coupled with the fact that the Complainant did not file a complaint with any authority from February to July 1998, demonstrate that their relationship was friendly and that he was not harassing her. [99] The Respondent was therefore angered when Messrs. Vaughan and Fraser presented him with the Complainant’s letter of July 20, 1998. He disagreed with the letter’s content, although he read only a portion of it before handing it back in rejection. In his opinion, it was he who was being harassed by the Complainant and he made it clear to the other gentlemen that he would not sign another letter of apology. The Respondent offered to resign his Executive post, but Messrs. Vaughan and Fraser again advised him against it. The Respondent then contacted Messrs. Matchett and Murray and asked them to call a meeting in order to resolve the matter, once and for all. [100] That meeting was held on July 27th and, according to the Respondent, an agreement was reached. He points out that although Mr. Fraser’s original suggestion was that the Respondent only visit the Local office on Wednesdays, it was the Complainant who intervened and specifically requested that he be required to resign from the Health and Safety Committee as well. The Respondent therefore disagrees with her contention that she did not accept the proposal that was put forth during the meeting. He notes that following the meeting, he acted in compliance with the understanding that was reached, by resigning from the Committee, curtailing his visits to the Local and eliminating all contact with the Complainant. [101] The Respondent was, as a result, surprised to be informed that the Complainant had filed a human rights complaint against him with Canada Post and with the union. He spoke to his Director and to a human resources officer at Canada Post, about the matter. Upon obtaining further advice from his family, the Respondent decided to resign his position on the Local Executive. The Respondent was later interviewed alone by Ms. Hine over the course of several days. As he answered her questions during the interview, Ms. Hine took notes. On October 20, 1998, Ms. Hine met with the Respondent and handed him her notes for review by him. He refused to read the document nor receive a copy, although he signed and dated the document nonetheless. The Respondent objects to the manner in which Ms. Hine conducted her investigation, citing her failure to interview some of the persons that he identified to her as important witnesses as well as her practice of not allowing him to sit in on the other interviews that she did conduct. The Respondent denies having made many of the statements attributed to him in Ms. Hine’s notes from his interview. [102] In late October 1998, the Respondent was informed of Canada Post’s decision regarding the human rights complaint, during a meeting with Ms. Hine, which was also attended by his Director and a UPCE representative. He disagreed with Canada Post’s findings and filed a grievance that he later abandoned. He claims that he has complied with all the recommendations set out in the decision. As a result of the stress that the Respondent associates with the filing of the various complaints against him, he claims he has developed several medical problems, although no expert evidence was led in support of his contention. [103] The Respondent emphasized throughout his evidence that he is a person with a good reputation within Canada Post and the community at large. He is an industrious employee who regularly works extended hours in order to ensure that his job gets done. He has contributed to the union and its membership by, for instance, working within the Health and Safety Committee, setting up and providing software to union members for the preparation of their income tax returns, inquiring into the establishment of an internet website for the Local, and providing for a sound administration of the Local’s funds. He has supervised other employees and worked with dozens of co-workers within the same workplace. He has worked in areas where 50% to 80% of the workforce is female. Yet, no one other than the Complainant has ever accused him of sexual harassment or any other wrongdoing. This evidence, he argues, supports his contention that he did not sexually harass the Complainant. II. Law [104] According to Section 14(1)(c) of the Canadian Human Rights Act[1] (Act), it is a discriminatory practice to harass an individual on a prohibited ground of discrimination, in matters related to employment. Sexual harassment is deemed to be harassment on a prohibited ground (s. 14(2)). [105] As the Supreme Court of Canada stated in Janzen v. Platy Enterprises Inc.,[2] sexual harassment is broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victim of harassment. Sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being. [106] The Federal Court of Canada-Trial Division elaborated on this definition in Canada (HRC) v. Canada (Armed Forces) and Franke.[3] In order for a complaint of harassment to be substantiated, the Court stated that the following must be demonstrated: The impugned conduct must be of a sexual nature. Requests for sexual favours and propositioning are sexual in nature and constitute a psychological form of sexual harassment. Acts of harassment may also be physical, such as pinching, grabbing, hugging, kissing and leering. The acts could be verbal in nature, as well, encompassing conduct such as gender-based insults or remarks regarding a person’s appearance or sexual habits. The Tribunal’s determination of what is sexual in nature is carried out in accordance with the standard of the reasonable person in the circumstances of the case, keeping in mind the prevailing social norms. The acts that are the subject of the complaint were unwelcome. In other words, it must be determined whether the alleged harasser’s conduct was desired or solicited. This task can be accomplished by assessing the complainant’s reaction at the time of the alleged incidents of harassment, and determining whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome. The Court recognized, however, that a verbal no is not required in all cases and that a repetitive failure to respond to a harasser’s comments could constitute a signal to him that his conduct is unwelcome. In these cases, the appropriate standard to apply will again be that of a reasonable person in the circumstances. Ordinarily, harassment requires an element of persistence or repetition, but in certain circumstances even a single incident, such as a physical assault, may be severe enough to create a hostile environment. The objective reasonable person standard is used to assess this factor as well. The final factor arises where a complaint is filed against an employer regarding the conduct of one of its employees. Fairness requires that in such cases, the victim of the harassment, whenever possible, notify the employer of the alleged offensive conduct. This factor is not relevant to the present case, in light of the fact that there is no complaint before the Tribunal regarding the employer’s conduct. [107] In Stadnyk v. Canada (Employment and Immigration Comm.), the Federal Court of Appeal suggested that where proper expert evidence is before the Tribunal confirming that male-female interaction may be perceived differently by men than by women, then the appropriate standard against which to test for sexual harassment should be that of a reasonable woman.[4] In the present case, however, no such expert evidence was led. III. Analysis A. Preliminary Issue – Jurisdiction [108] At the outset of the hearing, there was some discussion about whether the subject matter of the complaint fell within the jurisdiction of the Act and by extension, the Tribunal. According to s. 2, the Act applies to all matters coming within the legislative authority of Parliament. The making of laws in respect of Canada's postal service constitutes one of the enumerated legislative powers of Parliament pursuant to s. 91(5) of the Constitution Act, 1867.[5] Although the Complainant and the Respondent both work for Canada Post, he only met and dealt with her as a result of their involvement with the union, and not, strictly speaking, in the course of their employment. [109] It is clear from the evidence, however, that many or even most of the alleged acts of misconduct occurred at the parties’ place of employment, during working hours, notably as regards the Respondent’s repeated visits and calls to the Complainant’s office. Moreover, even the acts that allegedly occurred outside of Canada Post’s premises came about within the context of the parties’ work on behalf of their bargaining unit, which is itself inextricably linked to their employment. In other words, the interaction between the Complainant and the Respondent would never have taken place, but for their status as Canada Post employees that led to their union involvement. It seems to me that it is not essential for the facts giving rise to an employment-related harassment complaint to physically take place at the federally-regulated workplace. Any conduct, wherever it may occur, arising somehow in the context of federally-regulated employment is subject to the Act. [110] As the Trial Division of the Federal Court indicated in Cluff v. Canada (Department of Agriculture)[6], the matters related to employment, referred to in s. 14 of the Act, encompass activities that fairly and reasonably may be said to be incidental to the employment or logically and naturally connected with it. I find that the parties’ involvement within the Local meets this definition, and that the subject matter of the complaint therefore falls within the purview of s. 14. As a result, the Tribunal possesses the jurisdiction to deal with the issues raised. B. Credibility of the Evidence [111] I must state at the outset that I prefer the Complainant’s version of the facts over that of the Respondent on practically all counts. The Complainant’s testimony was detailed, comprehensive, forthright and believable. To the contrary, the Respondent’s general denials and suggestions that the Complainant and all of the other witnesses had fabricated much of their evidence are simply not credible. [112] The Complainant tendered into evidence detailed notes recounting the Respondent’s conduct, which she had recorded contemporaneously with the alleged acts. These notes were consistent with her testimony and that of the other witnesses. Indeed, most of the witnesses who know the Complainant attested as to how meticulous and organized she is, both in her work and her union activities. It is entirely consistent with these accounts of her character, to have gathered and maintained this information in the manner presented. [113] Several of the witnesses at the hearing (Messrs. Vaughan, Hudon, Seguin, Chiumera, Fraser, Murray and Matchett) were interviewed by Ms. Hine. Interestingly, the testimony of these witnesses was in almost all respects consistent with the statements that had been recorded by Ms. Hine during her interviews that took place from August to October 1998, only a short time after the impugned conduct occurred. [114] Ms. Hine was herself called as a witness by the Respondent. She provided ample opportunity to these individuals to review and amend the notes, and several witnesses at the hearing pointed out sections where they had indeed corrected the text after having read it at the time. Furthermore, I was impressed with Ms. Hine’s independent recollection of many of the answers given during these interviews, and the care with which, during her testimony before the Tribunal, she identified those elements of her notes that she did not independently recall. I am therefore satisfied that Ms. Hine’s notes accurately reflect the content of her conversations with all of the persons she interviewed. [115] The Respondent was interviewed by Ms. Hine and her notes suggest that he acknowledged some of the material facts alleged against him. For instance, according to the notes, he concedes that he had discussed sex with the Complainant. He also states that one occasion, when he drank, [he] may have been more forward than usual with the Complainant. In his testimony, the Respondent denied having made these comments during the interview. [116] The Respondent, in contrast to the Complainant, was often vague in his evidence and, most remarkably, did not reply at all to some of the more significant allegations made against him. For instance, the Respondent did not comment upon, let alone contradict, the Complainant’s allegations about the March 10th incident in his car and the allegations relating to the April 18th incident at the Local office. The matters that the Respondent chose to refute in his evidence were collateral to the essential aspects of the complaint and his evidence did not serve to undermine the Complainant’s case. [117] An illustration of this is the manner with which the Respondent chose to deal with the question of his April 22nd letter of apology. The Respondent emphasized several times in his testimony that it was Mr. Vaughan who drafted the text of the letter. I do not find the Respondent’s contention convincing. Messrs. Vaughan and Fraser, whose testimony I found credible overall, both denied having assisted the Respondent. More significantly, the usage in the letter of the expression time to time, suggests that the Respondent was the drafter. Commission counsel pointed out how on numerous occasions during the course of the hearing, the Respondent used the same expression in the identical fashion (that is, without being preceded by the preposition from, as is the usual practice). The Respondent’s supervisor, Mr. Eloise, mentioned in his testimony that English is not the Respondent’s first language and that some of his linguistic skills need improvement. Indeed, it is for this reason that the Respondent claims he sought assistance in drafting the letter. However, whether or not Mr. Vaughan assisted the Respondent has very little bearing on the question of determining whether he committed the discriminatory practices alleged. The Respondent appeared to suggest that the letter of apology could not be treated as an admission of his guilt if it was not drafted by him. Yet, irrespective of who drafted the letter, the Respondent signed it and he in fact testified that he agreed with its contents. [118] In any event, the Respondent sent a separate message of apology by e-mail earlier, on the morning of April 21st, which he acknowledges to have drafted himself. The Respondent did not specify in either document what he was sorry about and the evidence is that he had been performing his functions as Treasurer well to that point. The Complainant contends that the apology could therefore only be related to his acts of harassment, notably the April 18th incident at the Local office. The Respondent did not provide any alternate explanation in his evidence as to what his possible transgression could have been. As a result, the Complainant’s contention was left uncontradicted by the Respondent. [119] Another collateral matter that preoccupied the Respondent was the fact that on October 23, 1998, the Complainant had circulated a document to other UPCE locals, in which she complained about the UPCE executive's conduct, including its handling of her complaints against the Respondent. At one point in the multi-page document, which included photocopies of the Complainant's prior correspondence with the UPCE executive, the Respondent's first name was mentioned, probably by inadvertence, since all of the other references to him elsewhere in the document had been stricken out. Yet, the Respondent devoted much energy at the hearing expressing his outrage that his identity had been disclosed, even though it was sent well after the alleged incidents of harassment, and was consequently of little or no relevance to the inquiry into the merits of the complaint. [120] I am mindful of the fact that the Respondent was not represented by legal counsel. While it is important for the Tribunal to afford unrepresented litigants a certain latitude in presenting their cases, particularly where an opposing party has the benefit of legal representation, they are nonetheless obliged to abide by the same evidentiary principles applicable to all human rights cases. All parties, whether represented or not, must suffer the consequences of failing to lead evidence that is essential to making their case or failing to answer the evidence that is led against them. C. Was the Respondent’s Conduct Sexual in Nature? [121] I find that the Respondent’s conduct was sexual in nature. For the reasons that I expressed just above, I accept the Complainant’s evidence in its entirety with respect to the March 10th remarks by the Respondent outside her home, as well as the April 18th incident at the Local office. The Respondent’s statements during both of these events were clearly sexual, consisting of nothing less than direct requests for sexual relations with the Complainant. Furthermore, the latter event was coupled with physical contact. His additional demands for sex, at the Local office, at her office, and by telephone, are also obviously sexual in nature. His conduct was, however, not limited to these comments. It also encompassed some of the behaviour mentioned in Franke as constituting other forms of sexual conduct, including staring or leering at the Complainant and his repeated compliments about her appearance. I find that the inordinate level of attention shown towards the Complainant by the Respondent, as demonstrated, for instance, by his desire to have the union buy her gifts and his attempts to communicate with her outside of the workplace, can also be reasonably perceived in the circumstances as having a sexual connotation. [122] I am therefore satisfied that the Respondent’s conduct was of a sexual nature. D. Was the Respondent’s Behaviour Unwelcome? [123] I am equally persuaded that the Complainant demonstrated to the Respondent that she did not welcome his behaviour. Her letters of April 18th and July 20th could not have been any clearer in expressing her rejection of his conduct. The detail with which she informs him of his inappropriate acts is remarkable. No reasonable person could ever perceive her statements as anything less than an outright disapproval of his behaviour. Yet, the Respondent did not alter his conduct, even after receiving the first letter. The Respondent seemed to suggest that his April 22nd letter of apology had mended the misunderstanding, as he perceived it, that had developed between him and the Complainant. He felt that he could maintain the same level of contact with the Complainant, as a result. Assuming there was ever any basis for him to entertain this thought, it should have been dispelled by the telephone call that he received on April 23rd from the Complainant and Messrs. Vaughan and Fraser, instructing him to cease contacting her. Instead of heeding this warning, however, he recommenced his visits and calls within days. [124] Besides, the Respondent possessed the necessary knowledge to ascertain that his conduct was unwelcome from the time he first joined the Local Executive, in February 1998. The Respondent acknowledged in his evidence that in September 1997, he completed a course offered by the PSAC on sexual harassment. Material regarding sexual harassment was available to all UPCE members, particularly the Local Executive officers. The PSAC Constitution and UPCE by-laws, of which one would expect Local Executive officers to have knowledge, set out these organizations’ sexual harassment policies. In addition, in April 1998, the Respondent attended a lecture given at the Local with respect to personal and sexual harassment. At the May 1998 UPCE conference in Montreal, which the Respondent attended, a session on harassment was conducted. In June 1998, the Respondent attended a course on threats and behavioural awareness. With all this training and information provided or made available to him, the Respondent should reasonably have understood that his conduct was unacceptable. He certainly should have realized, as a result of the Complainant’s constant refusals of his advances and her repeated demands that he leave her alone, that she did not welcome his actions. [125] I am therefore persuaded that the Respondent’s behaviour was unwelcome. E. Was the Respondent’s Behaviour Persistent or Severe Enough to Create a Hostile Environment? [126] I find that the Respondent’s conduct was both severe and repetitive enough to poison the Complainant’s environment, inside and outside her workplace. I accept her evidence that she felt compelled to leave her office and engage in other evasive tactics in order to minimize contact with the Respondent. His persistent behaviour led to her eventual fear for her physical well-being. Her cause for concern was reinforced by the unwanted physical contact against her that took place at the Local office on April 18th. While it is true that the Respondent eventually lifted his grasp from her arms and complied with her demands that he step away, his actions that day alone were serious enough to create a hostile environment, particularly in light of her prior clear and unequivocal rejections of his sexual advances. There is no room for him to claim any misunderstanding on his part. [127] I am persuaded that any reasonable person would find that the Respondent’s behaviour created a hostile environment for the Complainant. [128] For all the above reasons, I have concluded that the Respondent sexually harassed the Complainant, contrary to s. 14 of the Act. IV. Remedy [129] Having concluded that the Respondent sexually harassed the Complainant, I must now determine what remedy, if any, is appropriate. The Tribunal's remedial jurisdiction is set out in s. 53 of the Act, which contemplates the imposition of remedies designed to prevent future discrimination as well as to compensate individual victims. The goal of compensation is to make the victim whole for the damage caused by the act that is the source of the liability. Only the part of the loss that is reasonably foreseeable is recoverable.[7] A. Expenses Related to the Complainant's Change of Residence [130] The Complainant claims that as a result of the Respondent's conduct, which she feared had now developed into a form of stalking, she was compelled to move to a new residence, well outside Ottawa. She hoped that the move to an undisclosed and distant location would prevent, or at least discourage, the Respondent from contacting her outside the workplace. Her decision was prompted in large part by the Respondent's change of residence to a home near the apartment in which she was living at the time. She is therefore seeking compensation for the expenses arising from the move and the additional disbursements incurred by her, due to the distance of the new location from Ottawa. The Complainant testified that she was happy with her apartment and, in particular, with its central location that allowed her to walk to work. Prior to the incidents of sexual harassment, she had not considered changing her residence. [131] I am persuaded that the Complainant's fears were genuine and reasonable in light of the Respondent's continued contact with the Complainant, notwithstanding the numerous directions to him that he cease this behaviour immediately. The Complainant testified that a senior security officer with Canada Post, whom she consulted in July 1998 for advice, told her that the Respondent's conduct corresponded with the profile that is often assigned to stalkers. This information served to reinforce her concern that the Respondent posed a real threat to her mental and even her physical well-being, especially when one considers that he had already physically forced himself upon her on at least one occasion. [132] In this context, I am satisfied that her decision to move away, in reaction to the threat that he posed was reasonably foreseeable and that damages related to this decision are therefore recoverable. There exists, however, a duty on complainants to mitigate their damages.[8] The Complainant in this case seeks reimbursement of the costs associated with the purchase of the single family house to which she moved after she left her apartment. While I have no reason to doubt the Complainant’s sincerity with respect to her affirmation that she had no intention of moving at all, let alone purchasing a house, prior to the harassment that she suffered at the hands of the Respondent, it seems to me that her duty to mitigate her loss calls for her to at least seek out similar accommodations, to the extent possible. She would then, for instance, have been in a position to claim any possible excess rental costs associated with her new dwelling. [133] No evidence was led to suggest that it was difficult or impossible for the Complainant to find a rental unit that would meet her need to distance herself from the Respondent. I find it inappropriate for the Respondent to be obliged to pay the costs associated with the acquisition by the Complainant of a new asset, one that she may sell some day in the future, possibly at a profit. To put it another way, while the Complainant’s move to a location that is distant from the Respondent’s home may have been reasonably foreseeable, the decision by her to purchase a house as a result, was not. I therefore find that the Complainant is not entitled to the costs relating to the acquisition of her home in June 1999. [134] The costs that she is entitled to recover are the following: Expenses related to the move of her furniture and other personal effects: $817.50 Parking fees at work (the Complainant no longer lives within walking distance from her workplace): 750.00 Change of postal address notice: 32.00 New utility hook-ups: 95.00 Higher costs associated with cell phone usage instead of land line: 762.00 Additional automobile-related costs associated with the increased usage arising from the long distance commute to work: 4,200.00 Total: $6,656.50 [135] The Respondent is ordered to pay to the Complainant the sum of $6,656.50, in compensation for the expenses incurred by her as a result of the discriminatory practice (s. 53(2)(c) of the Act). B. Letter of Apology [136] The Commission and the Complainant request a letter of apology from the Respondent. At the time of the hearing, the judicial review of the Tribunal decision in Stevenson v. Canadian Security Intelligence Service[9] was still pending before the Federal Court-Trial Division. One of the issues before the Court was whether the Canadian Human Rights Tribunal possesses the jurisdiction to order respondents to issue letters of apology. Under these circumstances, the Commission and the Complainant requested that the Tribunal retain jurisdiction on this matter pending the outcome of the Court’s judgment. [137] The Court’s decision was released on March 24, 2003.[10] The Court found that the Act cannot be interpreted in such a manner as to empower the Tribunal to make such orders. This decision is binding on this Tribunal and the request for a letter of apology is therefore denied. C. Pain and Suffering [138] Section 53(2)(e) of the Act provides that a person found to have engaged in a discriminatory practice may be ordered to compensate the victim, by an amount not exceeding $20,000, for any pain and suffering that the victim experienced as a result of the discriminatory practice. The Complainant in the present case is requesting that the Respondent be ordered to pay the maximum amount. [139] This statutory provision, together with s. 53(3) (which relates to compensation in cases where the discriminatory conduct was wilful or reckless, and which is further discussed later in this decision), took effect on June 30, 1998. Due to the fact that the Respondent’s discriminatory conduct continued beyond this date, these provisions are applicable to the present complaint.[11] [140] There is no question that the Respondent’s harassment of the Complainant caused a major disruption in her life and significantly affected her well-being. She testified as to the effect that his behaviour had on her emotional state, which included bouts of crying, a growing impatience with work colleagues and others, a pronounced fear of coming into contact with the Respondent and a sense of violation and embarrassment. Several of the witnesses were well-acquainted with the Complainant. They testified as to how independent and strong-willed the Complainant was prior to the Respondent’s harassment, and how her temperament worsened demonstrably during the course of the period when she was harassed. Her performance at her job also deteriorated as a result of the stress she was experiencing and the measures that she adopted to avoid coming into contact with the Respondent. [141] After several months, the Complainant managed to bring her life back to a state of relative normalcy. However, this only came about after she made the decision to move far away from her previous home and after significant security measures were implemented at her workplace that remain in place to this day. [142] Taking into consideration all of the relevant circumstances, I order the Respondent to pay to the Complainant the sum of $12,000 in compensation for her pain and suffering. [143] It appears that as part of the settlement agreement that was reached regarding the complaints that had been filed against the UPCE and the PSAC, the Complainant received some financial compensation for her pain and suffering. My assessment of the damages for her pain and suffering regarding the present complaint, however, takes into account only those factors that relate directly to the discriminatory conduct of the Respondent. These damages are severable from those caused by the conduct of the unions. As such, I am satisfied that no issue of double indemnification arises and that the sums received by the Complainant from the unions need not be deducted from the amounts being awarded in the present decision. D. Wilful and Reckless Behaviour [144] The Complainant and the Commission are also seeking the maximum award available under s. 53(3) of the Act. This provision states that a person who has wilfully or recklessly engaged in the discriminatory practice may be ordered to pay to the victim compensation in an amount not exceeding $20,000. [145] There is overwhelming evidence of reckless conduct on the part of the Respondent. He had received sexual harassment sensitization training several times and was consequently in a position to fully comprehend that his behaviour was unacceptable, not to mention illegal. Yet, he took the unreasonable risk of engaging in unwelcome conduct of a sexual nature towards the Complainant. Moreover, the Respondent continued harassing the Complainant in the face of repeated requests and instructions that he stop. [146] I am satisfied, therefore, that the Respondent’s discriminatory practice was not only reckless but wilful as well. In these circumstances, the Respondent is ordered to pay to the Complainant the sum of $15,000 in damages, pursuant to s. 53(3). E. Interest [147] Interest is payable in respect of all of the monetary awards made in this decision (s. 53(4) of the Act). The interest shall be simple interest calculated on a yearly basis, at a rate equivalent to the Bank Rate (Monthly series) set by the Bank of Canada. With respect to the compensation for pain and suffering and for wilful and reckless behaviour, the interest shall run from March 10, 1998, the date when the Respondent sexually harassed the Complainant in his automobile, to the date of payment. In no case shall the interest regarding each of these awards be allowed to exceed the maximum allowable sum of $20,000.[12] Because the expenses related to the Complainant’s change of residence have been incurred at various times, right up to the hearing dates, I order that the interest arising from these expenses shall run from the date of this decision to the date of payment. F. Sexual Harassment Training and Counselling [148] The Respondent has attended several sexual harassment awareness courses, most of which occurred prior or during the period when he harassed the Complainant. His most recent course was taken in compliance with the reprimands issued by Canada Post after Ms. Hine filed her investigation report. The Commission submits that despite this training, the Respondent never altered his behaviour and continues denying to this day that he ever sexually harassed the Complainant. The Commission points out that the Respondent’s prior sessions were of a relatively short duration, never lasting more than one day. For this reason, the Commission requests that the Respondent be required to attend a series of more intensive and comprehensive training sessions, in accordance with s. 53(2)(a) of the Act. [149] I agree that such training is warranted. I therefore order the Respondent to attend a course on sexual harassment that will comprise at least three full-day sessions. The course will be selected by the Commission. The reasonable cost for this training session will be paid by the Respondent. G. Retention of Jurisdiction [150] I retain jurisdiction in the event that any dispute arises regarding the quantification or implementation of any of the remedies awarded in this decision. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario June 5, 2003 Canadian Human Rights Tribunal Parties of Record Tribunal File: T720/2502, T721/2602 and T722/2702 Style of Cause: Connie Bushey v. Arvind Sharma Decision of the Tribunal Dated: June 5, 2003 Appearances: Connie Bushey, for the Complainant Ceilidh Snider, for the Canadian Human Rights Commission Arvind Sharma, for himself [1] R.S.C. 1985, c. H-6 [2] [1989] 1 S.C.R. 1252 [3] (1999), 34 C.H.R.R. D/140 at paras. 29-50 (F.C.T.D.) [4] (2000), 38 C.H.R.R. D/290 at para. 25 (F.C.A.) [5] (U.K.), 30831 Vict. c. 3, reprinted in R.S.C. 1985, App. II, No. 5 [6] [1994] 2 F.C. 176 (F.C.T.D.) [7] Canada (Attorney General) v. Green (2000), 38 C.H.R.R. D/1 at para. 142 (F.C.T.D.) [8] Ibid. [9] (2001), 41 C.H.R.R. D/433 (C.H.R.T.) [10] Canada (Attorney General) v. Stevenson, 2003 FCT 341 (F.C.T.D.) [11] Nkwazi v. Canada (Correctional Service)(No. 3) (2001), 39 C.H.R.R. D/237 at paras. 257-270 (C.H.R.T.); Woiden v. Lynn (No. 2) (2002), 43 C.H.R.R. D/296 (C.H.R.T.) [12] Canada (Attorney General) v. Hebert (1995), C.H.R.R. D/375 at para. 23 (F.C.T.D.)

2003 CHRT 22

CHRT

Dawson v. Eskasoni Indian Band

en

2003-06-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6623/index.do

2023-12-01

Dawson v. Eskasoni Indian Band Collection Canadian Human Rights Tribunal Date 2003-06-17 Neutral citation 2003 CHRT 22 File number(s) T756/0603 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision status Final Grounds Colour Race Decision Content Between: Keith Dawson Complainant - and - Canadian Human Rights Commission Commission - and - Eskasoni Indian Band Respondent Decision Member: J. Grant Sinclair Date: June 17 2003 Citation: 2003 CHRT 22 Table of Contents I. Facts II. Decision III. Interest IV. Order I. Facts [1] Keith Dawson, the Complainant in this matter, filed a complaint with the Canadian Human Rights Commission dated February 27, 1996. In his complaint against the Eskasoni Indian Band, Mr. Dawson alleges that the Chief and Council of Eskasoni discriminated against him because of his race and colour (white) contrary to section 5 of the Canadian Human Rights Act, by denying him social assistance benefits because he is a non-Band member. [2] At the beginning of the hearing, the parties filed an Agreed Statement of Facts with the Tribunal. According to this Statement, the following facts are agreed to: Mr. Dawson is a white male, is not an Eskasoni Band member and is not eligible for membership because he is not a status Indian; Mr. Dawson lives on the Eskasoni Reserve with his wife, who is a status Indian and a Band member. He is entitled to live on the Reserve because of his marriage to his Indian spouse; Eskasoni administers a social assistance plan for eligible persons living on the Reserve under a DIAND/First Nations Funding Agreement covering the fiscal years 2003/2004 to 2007/2008. Similar funding agreements have been in place since 1987; Because he lives on the Reserve, Mr. Dawson is not eligible for provincial social assistance benefits; In 1988, Mr. Dawson applied for social assistance benefits from Eskasoni. He was denied such benefits, because, as a matter of policy, Eskasoni does not give social assistance benefits to non-Band members; In 1996, Mr. Dawson again applied to Eskasoni for social assistance benefits following this Tribunal’s decision in MacNutt v. Shubenacadie Band, [1995] C.H.R.D. No. 14, in which the Tribunal, dealing with a similar fact situation, decided that the denial of social assistance benefits to a non-status person contravened section 5 of the Act; Again Eskasoni denied his request because he was a non-Band member. [3] At the hearing, Eskasoni conceded that Mr. Dawson is entitled to receive social assistance benefits. Eskasoni agreed to pay Mr. Dawson a lump sum, being the total amount of the social assistance benefits that he is entitled to from July 1998 to June 2, 2003, the date of the hearing, minus $100 per month, for each month during this period, which Mr. Dawson estimated to be his earnings from various part time jobs. Eskasoni agreed to pay interest on this net amount for the same time period. Eskasoni also agreed to place Mr. Dawson on its list of those persons on the Reserve who receive social assistance benefits as of June 2, 2003. [4] Finally, Eskasoni agreed to cease and desist its discriminatory practice of denying social assistance benefits to otherwise eligible persons, but who are non-Band members. II. Decision [5] The Commission and Mr. Dawson also asked, by way of remedy, that he be awarded $20,000 for pain and suffering under section 53(2)(e) of the Act and $20,000 for special compensation under section 53(3) of the Act, because of Eskasoni’s alleged wilful and reckless actions. [6] Prior to June 30, 1998, the maximum amount that the Tribunal could award for reckless or wilful conduct or hurt feelings or loss of self-respect was $5,000. With the Bill S-5 amendments, effective June 30, 1998, the Act now provides a maximum of $20,000 for pain and suffering and $20,000 for reckless or wilful behaviour. [7] Mr. Dawson filed his complaint in 1996. Nonetheless the Commission argues that the Bill S-5 amendments apply. Its submission is simply that the denial of the benefits by Eskasoni is a continuing and ongoing discriminatory practice. No other basis or legal authority was offered beyond this. [8] I can not accept this argument. To do so would result in every legislative amendment automatically having retrospective effect so long as a complainant continues to suffer from a long past event. The analysis must be and is much more complex, as demonstrated in the Tribunal’s decision in Nkwazi v. Correctional Service of Canada, (2001) 39 C.H.R.R. D/237, at D/288-290. In this case, for the reasons set out therein, the Tribunal concluded that s. 53 as amended in 1998 has prospective application only. I agree with the Tribunal’s reasons and in the result, the maximum that this Tribunal can award Mr. Dawson in this case is $5,000 for special compensation. [9] Mr. Dawson testified that in the period 1988 to 1996, he had only been able to find occasional part-time work. When his employment insurance benefits ran out, because he was not eligible for provincial social assistance, he applied to Eskasoni. In his evidence he said the denial by Eskasoni was devastating. He believed that he had been paying into the system for twenty years when he was working and he did not mind doing so because some day he may need social assistance. But when that day came, he was denied the benefits. In his view he was denied the same basic rights as the rest of the citizens of this country are entitled to – why? Mr. Dawson expressed these same sentiments in a letter he wrote to the Commission on October 8, 1996. [10] According to the DIAND/First Nations Funding Agreement, in particular, Chapter 3, paragraph 3.01(e) of the Native Community Services Guidelines, Policies and Procedures, Mr. Dawson was clearly entitled to receive social assistance benefits from Eskasoni. Yet in 1988, the Band refused his application because he was a non-Band member. In 1996, even after the Tribunal had decided in the MacNutt case, that such a policy or practice was discriminatory, Eskasoni still refused him social assistance benefits. [11] Eskasoni argued that it was awaiting the final appeal decision in MacNutt before reconsidering its policy of not giving social assistance to non-Band members. In my opinion, Eskasoni acted recklessly in continuing its practice in the face of a clear legal determination that such a practice was discriminatory. On the basis of all of the above evidence, I conclude that Mr. Dawson should be awarded the maximum of $5,000 under section 53(3) of the pre-amendment Act. III. Interest [12] There remains only the question of the rate of interest payable on the net amount of the social assistance benefits. The Commission argued that interest should be payable at the Canada Savings Bond rate, in this case at the rate of 5%. Eskasoni argued for an interest rate of 2%. Neither party offered any evidence in support of their position. [13] Under Rule 9(12) of the Tribunal Interim Rules of Procedure, unless ordered otherwise, interest is to be calculated according to the formula set out in the Rule. No submissions were made by either party that this Tribunal should order otherwise. Accordingly, interest shall be payable by Eskasoni on the net amount of social assistance payments to which Mr. Dawson is entitled to from July 1988 to June 2, 2003, in accordance with Rule 9(12). IV. Order [14] The Tribunal orders that: Eskasoni cease and desist its discriminatory practice of denying social assistance benefits to otherwise eligible persons who reside on the Eskasoni Reserve, because they are non-Band members; Eskasoni pay to Mr. Dawson a lump sum amount being the social assistance benefits he was entitled to from July 1988 to June 2, 2003, less $100 per month for each month during that period, plus interest on this amount from July 1988 to June 2, 2003. Interest is to be calculated in accordance with Rule 9(12) of the Tribunal’s Interim Rules of Procedure; Eskasoni is to place Mr. Dawson on its list of social assistance recipients as of June 2, 2003, so that he will receive the social assistance payments that he is entitled to from that date forward; Eskasoni shall pay Mr. Dawson the sum of $5,000 as special compensation pursuant to s. 53(3) of the pre-amendment Act. No interest is payable on this award. [15] If the parties are unable to agree as to the amount of the social assistance benefits payable to Mr. Dawson or the amount of interest thereon, they shall so advise the Tribunal no later than July 15, 2003. I retain jurisdiction to deal with these matters in the event of a failure of the parties to so agree. Signed by J. Grant Sinclair Tribunal Member Ottawa, Ontario June 17, 2003 Canadian Human Rights Tribunal Parties of Record Tribunal File: T756/0603 Style of Cause: Keith Dawson v. Eskasoni Indian Band Decision of the Tribunal Dated: June 17, 2003 Date and Place of Hearing: Sydney, Nova Scotia Appearances: Keith Dawson, for himself Ikram Warsame, for the Canadian Human Rights Commission Charles Broderick, for the Respondent

2003 CHRT 23

CHRT

Larente v. Canadian Broadcasting Corporation

en

2003-06-26

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6771/index.do

2023-12-01

Larente v. Canadian Broadcasting Corporation Collection Canadian Human Rights Tribunal Date 2003-06-26 Neutral citation 2003 CHRT 23 File number(s) T638/2601 Decision-maker(s) Doyon, Roger Decision type Decision Decision status Final Grounds Age Decision Content Between: Suzanne Larente Complainant - and - Canadian Human Rights Commission Commission - and - Canadian Broadcast Corporation Respondent Ruling Member: Roger Doyon Date: June 26, 2003 Citation: 2003 CHRT 23 [1] On April 23, 2002, the Tribunal decided to allow Suzanne Larente’s complaint, brought under section 7 of the Canadian Human Rights Act against the Canadian Broadcasting Corporation. [2] The Tribunal ordered the Canadian Broadcasting Corporation to reinstate Suzanne Larente, at the first reasonable opportunity, in her position as human resources advisor, which she held at the time of her termination and to restore the pension plan to which she would have been entitled had she not been terminated. [3] On November 3, 2003, Suzanne Larente made an application to the Tribunal that resembled a motion for particulars. She asked the Tribunal to determine who would have to assume the costs related to re-establishing the pension plan to which she would have been entitled had she not been terminated. [4] The Canadian Human Rights Commission and the Canadian Broadcasting Corporation were notified of Suzanne Larente’s application. [5] The Canadian Human Rights Commission informed the Tribunal that it had no submissions to make in relation to Suzanne Larente’s application. [6] The Canadian Broadcasting Corporation filed written submissions and applicable case law with the Tribunal. It argued that Suzanne Larente’s application could not be heard because the decision and the orders made by the Tribunal on April 23, 2003, were final. The Tribunal no longer had jurisdiction; it was functus officio. Accordingly, it could not hear Suzanne Larente’s application. [7] The Canadian Broadcasting Corporation’s submissions were sent to Suzanne Larente, who communicated her comments and arguments. [8] The Tribunal has the parties’ arguments. In its opinion, it is sufficiently informed to take a position without it being necessary to hear the parties. [9] In her application, the complainant Suzanne Larente is seeking a decision by the Tribunal regarding the steps to follow to enforce the decision made by it. The Tribunal must therefore determine if it has jurisdiction to reopen the matter and hear additional evidence in order to set out the enforcement of its decision. [10] In the decision that was made, the Tribunal did not reserve any jurisdiction in regard to the enforcement of the order to restore the pension plan to which Suzanne Larente would have been entitled had she not been terminated. [11] Accordingly, as soon as the Tribunal made its decision, that decision was final. The Tribunal thereby lost all jurisdiction. It became bound by the functus officio rule. The legal term functus officio, according to Black's Law Dictionary, is defined as follows: Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. [12] Further, section 57 of the Canadian Human Rights Act clearly provides that the enforcement of orders by the Tribunal is under the jurisdiction of the Federal Court. [13] Considering the functus officio rule and the case law on that subject, the Tribunal finds that the functus officio rule is applicable to this application and that it does not have jurisdiction to determine who must assume the costs related to re-establishing the pension plan to which Suzanne Larente would have been entitled had she not been terminated. Conclusion [14] Accordingly, the application is dismissed. Signed by Roger Doyon Tribunal Member Ottawa, Ontario June 26, 2003 Canadian Human Rights Tribunal Parties of Record Tribunal File: T638/2601 Style of Cause: Suzanne Larente v. Canadian Broadcasting Corporation Ruling of the Tribunal Dated: June 26, 2003 Date and Place of Hearing: November 21 to 23 and November 27 and 28, 2001 December 13 and 14, 2001 Montreal, Quebec Appearances: Suzanne Larente, for herself Philippe Dufresne, for the Canadian Human Rights Commission Pierre Flageole, for the Respondent

2003 CHRT 24

CHRT

Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec Inc. v. Barbe

en

2003-06-27

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6562/index.do

2023-12-01

Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec Inc. v. Barbe Collection Canadian Human Rights Tribunal Date 2003-06-27 Neutral citation 2003 CHRT 24 Decision-maker(s) Hadjis, Athanasios Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: GROUPE D'AIDE ET D'INFORMATION SUR LE HARCÈLEMENT SEXUEL AU TRAVAIL DE LA PROVINCE DE QUÉBEC INC. - and - MIREILLE DES ROSIERS Complainants - and - JEAN BARBE Respondent REASONS FOR DECISION 2003 CHRT 24 2003/06/27 MEMBER: Athanasios D. Hadjis TABLE OF CONTENTS I. THE PARTIES TO THE COMPLAINT II. FACTS A. December 1996 B. January 1997 C. February 1997 D. March 1997 E. April 1997 F. May 1997 G. August 1997 H. September 1997 I. October 1997 J. November 1997 K. February 1998 L. April 1998 M. Actions Initiated by Ms. Des Rosiers in Response and the Ensuing Consequences III. LAW IV. ANALYSIS A. Credibility of the Evidence B. Was the Impugned Conduct Related to Sex, Race, or National Ethnic Origin? C. Was Mr. Barbe's Conduct Welcome? D. Was the Impugned Conduct Serious Enough to Create a Hostile Environment? V. REMEDY A. Lost Wages B. Expenses C. Non-pecuniary Damages D. Donation to Groupe d'aide E. Interest F. Letter of Apology G. Human Rights Sensitization Training H. Retention of Jurisdiction [1] It is alleged in the present complaint that Mireille Des Rosiers was harassed by Jean Barbe, her supervisor at Canadian Broadcasting Corporation (CBC), on the basis of several prohibited grounds of discrimination, namely her sex (female), her race (Black) and her national or ethnic origin (Haitian), in violation of s. 14 of the Canadian Human Rights Act (Act).(1) I. THE PARTIES TO THE COMPLAINT [2] On April 1, 2003, about five weeks before the hearing was scheduled to begin, the Canadian Human Rights Commission (Commission) notified the Tribunal that it was officially withdrawing as a party. The Commission was consequently not present at the hearing and no representations were made on its behalf. [3] On April 15, 2003, during a conference call that I conducted, Mr. Barbe's lawyer, Me Clément Groleau, declared that he no longer had a mandate to represent his client. Me Groleau stated that Mr. Barbe was in the process of filing for bankruptcy. This was later confirmed by Mr. Barbe himself, during a subsequent conference call. Mr. Barbe also stated that he was not going to be in attendance at the hearing into the complaint. Indeed, neither Mr. Barbe nor anyone representing him appeared at the hearing, which was conducted over the course of three days at the Federal Court of Canada Building in Montreal. According to the Tribunal record, Mr. Barbe resides in Montreal and he was duly served with several notices advising him of the date, time and place of the hearing. [4] On the first day of the hearing, a motion was presented to add Ms. Des Rosiers as a party, and more significantly, as a co-complainant. The complaint form, which was filed on March 8, 1999, was not signed by Ms. Des Rosiers, but rather by a representative of a non-profit support group for victims of harassment called Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec Inc., (Groupe d'aide). Ms. Des Rosiers had sought the assistance of Groupe d'aide after the alleged incidents of discrimination had taken place. She and a representative of Groupe d'aide, Linda Smith, went to the offices of the Commission together, to file the complaint. Ms. Smith explained at the hearing that the Commission employee who received the complaint recommended that a representative of Groupe d'aide sign the document instead of Ms. Des Rosiers. [5] The motion to add Ms. Des Rosiers as a party was therefore formally made by Groupe d'aide. For the reasons that I read into the official record, I granted Groupe d'aide's motion to add Ms. Des Rosiers to the case. I noted that under s. 40(1) of the Act, a group of individuals having reasonable grounds to believe that someone has engaged in a discriminatory practice may file a complaint, whether or not the victim is a member of that group. Section 53(2) specifies that the Tribunal can order remedies for the benefit of the victim of the discriminatory practice, not necessarily the complainant. Thus, it appears that it is not essential for the victim to be the complainant, in order to gain redress under the Act. [6] However, I also noted that s. 48.9(2)(b) of the Act empowers the Tribunal to make rules governing the addition of parties and interested persons to the proceedings. In Desormeaux v. OC Transpo(2), it was held that this provision appears to contemplate the possibility of the Tribunal authorizing the addition of a party, even as a complainant. This power should be exercised with some caution, particularly if any unfairness to any of the other parties would arise as a result. In the present case, since Mr. Barbe did not appear at the hearing, he did not tender a formal objection to the addition of Ms. Des Rosiers as a party. In my ruling, I pointed out that although the complaint was signed by Groupe d'aide, it referred exclusively to events experienced by Ms. Des Rosiers while working with Mr. Barbe. The addition of Ms. Des Rosiers to the case would therefore not raise any new issues or facts of which Mr. Barbe was not already aware. Taking all of these considerations into account, I concluded that no issue of fairness would arise if Ms. Des Rosiers were allowed to join the case as a complainant at this stage and I therefore granted the motion. [7] Due to the withdrawal of the Commission and the absence of Mr. Barbe, the hearing was conducted solely in the presence of two parties, Ms. Des Rosiers and Groupe d'aide, represented by Ms. Smith. Neither of these parties was assisted by legal counsel at the hearing. The facts recounted in this decision are therefore based exclusively on the evidence that was led by the Complainants. II. FACTS [8] Ms. Des Rosiers is a Black woman of Haitian origin who was raised in Montreal. She resided in California for several years, during which time she earned a degree in marketing from the University of California in Los Angeles (UCLA) and worked in the radio-television industry, with American Broadcasting Radio. When she returned to Montreal, she decided to pursue her career within the same field and gained employment with a local private radio station. In 1996, her manager at that station informed her of a project that had been put in place at the CBC for the integration of members of minority groups into its workforce. [9] The project, which was subsidized by the Federal Government's Department of Canadian Heritage, provided funding for the hiring of trainees and the payment of their salaries over an initial period of three months. If the employer decided to continue to employ the trainees after the end of this period, the program would continue to fund a portion of their salaries for several more months. Ms. Micheline Léonard was in charge of the project when Ms. Des Rosiers applied for a trainee position in late 1996. Ms. Léonard testified at the hearing that the project's coordinators wanted to avoid the development of an impression amongst other CBC employees that these trainees were only hired because of their minority status. Consequently, trainees were required to pass a complicated and intensive series of tests and interviews before being hired. [10] Ms. Des Rosiers confirmed in her testimony that she underwent this process. She recalls that she was one of about eight persons to be selected from amongst the three hundred or so applicants. She believes that her extensive knowledge with respect to the artistic milieu, based on her previous broadcasting experience, was an important factor in the decision to hire her for the television show to which she was assigned. The television program in question was entitled La vie d'artiste. Its broadcasts consisted principally of interviews and reports regarding personalities from the artistic world, including actors, playwrights and poets. [11] Ms. Des Rosiers was employed originally as a researcher, but before long, she was assigned researcher-producer duties and she eventually made on-camera appearances. The program was put together by a team of individuals. Mr. Barbe, who was the editor in chief of the show, was the team's supervisor. [12] In her testimony, Ms. Des Rosiers described the various events of alleged harassment that occurred during the course of her employment under Mr. Barbe's supervision. I have set out these events according to the months in which she testified that they occurred. A. December 1996 [13] At Ms. Des Rosiers's first meeting with Mr. Barbe, he mentioned several times that the other researcher on the team, Johanne Comte, was his spouse. Because of the emphasis that Mr. Barbe appeared to be placing on this point, Ms. Des Rosiers felt compelled to comment that Ms. Comte must nonetheless have been well qualified in order to have acquired the job. Ms. Des Rosiers was surprised to hear Mr. Barbe reply, I don't care about her qualifications, it's her ass that interests me. (Je m'en fous de ses compétences, c'est son cul qui m'intéresse.) [14] Later that month, Jocelyn Barnabé, who was Mr. Barbe's supervisor and one of the producers of the television show, asked a small favour of Ms. Des Rosiers and she agreed. Mr. Barbe approached Ms. Des Rosiers afterwards and said that she should have been more aggressive and not agreed to Mr. Barnabé's request. Mr. Barbe added that some of his former girlfriends were Black. He then advised her that in order to succeed, she should screw around. (Tu devrais baiser.) B. January 1997 [15] Mr. Barbe mentioned at a meeting, attended by Ms. Des Rosiers, that he was looking for someone to look after his dog while he was out of town. When someone at the table asked if Ms. Des Rosiers would be interested, Mr. Barbe interjected, She should get along with Charlotte [the dog], she is black like her. (Elle devrait s'entendre avec Charlotte, elle est noire comme elle.) [16] In the same month of January 1997, the production team was having a meal at the Chez Miville restaurant, which is located within the CBC's building in Montreal, the Maison de Radio-Canada. Ms. Des Rosiers mentioned at the table that she knew the former director of the Culture and Variety division at the CBC. Upon hearing this, Mr. Barbe commented that she must have acquired the job through this connection, adding, Was it good? (Est-ce que c'était bon?). Ms. Des Rosiers interprets this statement as implying that she had sexual relations with the former director. C. February 1997 [17] Ms. Des Rosiers had by now collaborated on several features, yet she noticed that her name had not appeared on any of the show's closing credits. At about the same time, she informed Mr. Barbe that she wished to produce a report on the Cinémathèque québécoise. He objected, stating that a story on this topic should only be done by a Québécois. (La Cinémathèque québécoise, c'est les Québécois qui devraient faire ça.) [18] In the same month, Ms. Des Rosiers co-produced a report on the works of playwright Michel Tremblay, focussing on the fact that his plays had been translated into 127 languages. To this end, Ms. Des Rosiers incorporated into the piece several interviews with foreign-language commentators (Italian, Romanian, Japanese and Haitian-Créole). The Haitian commentator, who happens to be Ms. Des Rosier's brother, is an award-winning writer and was the Vice-President of the Union des écrivains et écrivaines québécois. During a pre-screening of the report, Mr. Barbe remarked out loud that he was against the usage of the Haitian. (Je suis contre l'Haïtien dans le reportage.) D. March 1997 [19] Ms. Des Rosiers recalls that Mr. Barbe and Ms. Comte walked into her office together one day. Ms. Comte was carrying a photograph of a well-known Black humorist of Haitian origin, Anthony Kavanaugh. Ms. Comte pinned the photo on Ms. Des Rosiers's bulletin board and said, Here's your new boyfriend. (Voici ton nouveau chum.) Mr. Barbe then added, You [Ms. Des Rosiers] should mate with him. (Tu devrais t'accoupler avec.) Mr. Barbe and Ms. Comte made these comments even though Ms. Des Rosiers was married. [20] Ms. Des Rosiers also remembers walking into Mr. Barnabé's office one day and finding him standing next to Mr. Barbe and Ms. Comte. There were several photographs on the table in front of them and when Ms. Des Rosiers arrived, Ms. Comte picked one up and gave it to her. The photo was of Mr. Barbe in the nude. Ms. Des Rosiers does not know why this photo was shown to her other than to make her feel uncomfortable. E. April 1997 [21] Mr. Barbe remarked to one of the office's secretaries that he noticed she had changed her hair colour. He then turned to address Ms. Des Rosiers and told her that she appeared more white than usual. (Il a dit que je paraissais plus blanche que d'habitude.) F. May 1997 [22] At a party that was held at the end of the show's season, Mr. Barbe told Ms. Des Rosiers that she should get up and dance since it was in your blood. (... que c'était dans votre sang). He then added, while grabbing his crotch, If you dance, you'll get a nice gift. (Si tu danses, tu auras un beau cadeau.) He also commented on her breasts, asking her if they were real (véritables). Ms. Des Rosiers testified that he made similar comments about her breasts throughout the period that she worked for him. G. August 1997 [23] At a production team meeting, Mr. Barbe remarked, I've hired rejects, Arabs, Blacks, Jews. All that's left for me are the handicapped (J'ai engagé des laissés-pour-compte, des Arabes, des Noirs, des Juifs. Il me reste juste des handicapés.) He pointed out that hiring minorities was beneficial (payant) because of the subsidies that were provided. Ms. Comte contributed to the conversation by stating that she was opposed to these advantages that we are giving to minorities. (Moi, je suis contre ces avantages qu'on donne aux minorités.) Ms. Des Rosiers testified that she was shocked to hear these comments, especially since she herself was hired through an employment equity program. She nonetheless restrained herself from making any comment at that time. H. September 1997 [24] Ms. Des Rosiers proposed doing a story about the French author, Marcel Proust. Although the idea was well received by Mr. Barnabé, Mr. Barbe derided her suggestion, stating that she should be doing stories about Créole culture. On this occasion, she turned to him and said, Leave me alone (lâche-moi). She testified that for as long as she worked with Mr. Barbe, he used to repeatedly blurt out to her, Do something on Créole. (Fais donc quelque chose sur le créole.) I. October 1997 [25] During a production meeting, another staff member proposed that a report be done about African music. The discussion then shifted to finding an appropriate musician to interview. Mr. Barbe interjected by turning to Ms. Des Rosiers and saying, She must know that African that you are looking for, all the Blacks know each other (Elle devrait connaître cet Africain que tu cherches, tous les Noirs se connaissent). Ms. Des Rosiers pretended not to hear him but, after being repeatedly baited so as to elicit a reply, she retorted that she wanted them to stop this discussion and move on to something else. J. November 1997 [26] On November 24, 1997, Ms. Des Rosiers met an acquaintance, Ms. Michaëlle Jean, near the main entrance to the Maison de Radio-Canada. At that time, Ms. Jean, who is also Black, was the anchorperson for the newscasts of the CBC's French language all-news network, the Reseau de l'information (RDI). Ms. Des Rosiers was explaining some of the incidents of alleged harassment that she was experiencing at work when, by coincidence, Mr. Barbe, Mr. Barnabé and another male CBC employee passed by. Ms. Des Rosiers introduced the three men to Ms. Jean, after which Mr. Barbe said, What's this? A Black women's meeting, the Blacks are getting together? (Mais c'est quoi? C'est une réunion de femmes noires? C'est quoi, là, les Noires se réunissent?) [27] He then said that he had seen Ms. Jean in the studio where the famous Black fashion model, Iman, had recently been interviewed; adding that he assumed Ms. Jean was there because she also was Black. Ms. Jean testified at the hearing and confirmed that these comments were indeed made. She specifically recalls how bizarre and strange she found Mr. Barbe's persistent remarks about skin colour. Ms. Des Rosiers stated in her testimony that Mr. Barbe went on to compare the women's skin colours and wonder out loud which one had a lighter complexion. [28] When Ms. Des Rosiers returned to her office, about fifteen minutes after this chance encounter ended, she found Mr. Barbe seated in her office chair, leaning back with his feet on her desk. As she walked in, he said, So, you're hanging around Blacks now, eh? (Tu te tiens avec les Noirs maintentant, hein?) K. February 1998 [29] The second week of that month had been designated as Black History Week, an event that had been well publicized within the CBC. Posters to celebrate the occasion had been placed throughout the workplace. On the Monday of that week, as she was seated in her office, she noticed Mr. Barbe and several staff members dancing, singing and laughing outside her door. Mr. Barbe was wearing a Rastafarian-style wig on his head with a Jamaican-style hat on top. He had draped a Jamaican flag over his shoulders and had begun prancing around the work area, moving his hands towards his armpits, acting as if he were a monkey. Later on, the wig was placed on a pole to which a tattered T-shirt was attached, and Mr. Barbe and the other employees paraded around with this object in their hands. [30] This activity was repeated every day that week. Ms. Des Rosiers testified that she felt so humiliated that she made arrangements to work outside the office on the Friday, just so she could avoid her colleagues. Just about every member of the staff, even Mr. Barnabé, participated to varying degrees in this activity. Ms. Des Rosiers points out that she was the only member of a visible minority group to be working on the La vie d'artiste production team. [31] About one week later, a staff meeting was conducted at the Chez Miville restaurant. At the end of the meeting, as Ms. Des Rosiers got up from her chair and turned to step away from the table, she accidentally knocked over a glass of water. Mr. Barbe immediately remarked, It's not surprising that she should knock over a glass, with her big African ass (C'est pas étonnant qu'elle renverse un verre avec son gros cul d'Africaine.) She gave Mr. Barbe an angry look and continued on her way. Her colleague, Claude Laforest, testified that he heard Mr. Barbe make some comment at that meeting over which everyone at the table laughed, but he could not recall the exact words. [32] During another production meeting, which was held on February 28, 1998, the team realized that they needed another report to complete an upcoming show. Ms. Des Rosiers mentioned that she had almost finished a report on Haitians, which had been assigned to her, and she proposed that it could be used to fill in the gap. Mr. Barbe turned to her at this point and said that she should add to her report scenes of sweaty, male Negroes (des mâles nègres en sueur) and that images of sweaty Negroes are always nice (c'est toujours beau des nègres en sueur). Ms. Des Rosiers, trying to ignore Mr. Barbe's comments, continued to discuss the report with Mr. Barnabé. All of a sudden, Mr. Barbe leaned forward towards her and said, Mireille, shut up, shut up. (Mireille, ta gueule, ta gueule.) L. April 1998 [33] During a production meeting, a young female staff member mentioned how fearful she was about visiting her dentist. Everyone around the table soon began to discuss their own painful experiences with doctors. Mr. Barbe remarked that one of his worst experiences was having his penis examined by a doctor to determine whether he had caught some disease. After telling his story, Mr. Barbe turned towards Ms. Des Rosiers and said the disease that he may have caught was because of one of your sisters. (À cause d'une de tes soeurs.) M. Actions Initiated by Ms. Des Rosiers in Response and the Ensuing Consequences [34] Ms. Des Rosiers occasionally discussed some of the above events with Ms. Léonard, including Mr. Barbe's comment about his dog, his statements about hiring minorities and his remark after the water glass was knocked over. Ms. Des Rosiers testified that she hesitated complaining too emphatically, for fear of being accused by others of over-dramatizing the situation. She pointed out that Mr. Barbe was still her boss and she feared that filing complaints of a formal nature against him would harm her career and thereby add fuel to the fire. [35] In February 1998, Ms. Des Rosiers learned that Ms. Léonard's office had spoken to Mr. Barnabé about Mr. Barbe's conduct. Some days later, Ms. Des Rosiers spoke to Mr. Barnabé about the situation. He contended that Mr. Barbe's behaviour was neither sexist nor racist and that after all, Mr. Barbe is just an iconoclast. Mr. Barnabé also advised Ms. Des Rosiers that if she followed through on her complaints, she would lose her job and be the only one to suffer. In mid-April 1998, Ms. Des Rosiers discussed the matter with the CBC's human resources department but she was given no specific advice at this time other than an assurance that the department would be contacting her again in the future. [36] In late April 1998, a meeting, which was arranged by Mr. Barnabé, took place between Mr. Barbe and Ms. Des Rosiers. Mr. Barbe opened by apologizing to Ms. Des Rosiers. He went on, however, to say, Anyway, 'big African ass' is not an insult, I love big asses. Ms. Des Rosiers did not consider this to be an apology but rather, yet another humiliation. [37] She claims that around this time, her work began to be sabotaged. For instance, she would make appointments to interview guests for her reports and the film crew would be deliberately diverted elsewhere, leaving her unable to record the interviews. She also claims that interviews that she was originally assigned to do were redirected to other members of the staff. [38] In mid-May 1998, Ms. Des Rosiers met with a representative of the Commission, who informed her that there existed a harassment policy at the CBC. No one had told Ms. Des Rosiers of this before. The Commission advised her to formally notify the employer of her concerns as soon as possible, in order to avoid falling outside the time limits that are set out in the policy. Ms. Des Rosiers therefore sent her letter of complaint to the President of the CBC on May 19, 1998. [39] The television program's operations for that season ended in the month of June. Ms. Des Rosiers was informed by the CBC that it was inquiring into her complaint. The CBC's human resources department assured Ms. Des Rosiers that her job was not in jeopardy and that she should return to her office when production for the new season would commence, on August 17, 1998. However, when she walked into her office on that day, she found that all her personal effects had been removed. Mr. Barbe was occupying her office and he stated that it was now his. A short time later, she heard Mr. Barbe and Mr. Barnabé speaking to each other in the latter's office. When she approached them to ask what had happened to her things, Mr. Barbe walked away. Mr. Barnabé then told her that because she had complained to the CBC President, he no longer wanted to have her in his department. He accompanied Ms. Des Rosiers to the human resources department where another individual reiterated that she was no longer wanted there, and that she had to leave the building immediately or else security would be called. [40] In the following days, Ms. Des Rosiers contacted Mr. Barnabé's supervisor, who initially told her that having filed a complaint, she should have expected such treatment. However, after Ms. Des Rosiers explained that the initial complaint to Mr. Barnabé was made by Ms. Léonard's office, the supervisor's attitude changed and she agreed to help Ms. Des Rosiers find some other employment at the CBC. Unfortunately, Ms. Des Rosiers was only given a single one-month contract and was assigned some occasional freelance work thereafter, until about May 1999. Since she was unable to make a living from this sporadic work, she began seeking other employment, and finally, on October 10, 2000, she was hired by Air Canada's marketing department, where she is employed to this day. [41] I indicated earlier in this decision that Groupe d'aide filed the present complaint against Mr. Barbe on March 8, 1999. Apparently, a complaint was also filed against the CBC but it was settled while the matter was still before the Commission. A preliminary question arose, in the months leading up to the hearing of the present complaint, regarding the disclosure to Mr. Barbe of the minutes of that settlement. The question was ruled upon by the Chairperson of the Tribunal on April 2, 2003, (3) as a consequence of which, certain portions of the settlement agreement were ordered to be disclosed. However, this document was never produced at the hearing and I have not viewed it. III. LAW [42] According to s. 14(1)(c) of the Act, it is a discriminatory practice to harass an individual on a prohibited ground of discrimination in matters related to employment. The prohibited grounds of discrimination include sex, race, and national or ethnic origin (s. 3(1)). Section 14(2) specifies that sexual harassment is deemed to be harassment on a prohibited ground. [43] The Supreme Court of Canada held in Janzen v. Platy Enterprises Inc., (4) that sexual harassment can be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment. The Court noted that sexual harassment in the workplace attacks the dignity and self-respect of the victim, both as an employee and as a human being. The analytical framework for assessing claims of sexual harassment has been held to be equally applicable where the harassment is related to another prohibited ground, such as race and national or ethnic origin.(5) [44] In order for a complaint of harassment to be substantiated, the following factors are to be considered:(6) The harasser's conduct must somehow be shown to be of a nature that is related to the alleged ground of discrimination.(7) The harassing conduct, particularly in cases of sexual harassment, may be physical in nature, such as pinching, grabbing, hugging and kissing. Harassment can also be verbal in nature, encompassing conduct such as insults or remarks regarding a person's sex, national or ethnic origin, or race, as well as comments regarding a person's appearance or sexual habits. The Tribunal's determination of whether the conduct is related to one of the prohibited grounds of discrimination should be carried out in accordance with the standard of a reasonable person in the circumstances of the case, keeping in mind the prevailing social norms. The acts that are the subject of the complaint were unwelcome. In other words, one must determine whether the alleged harasser's conduct was desired or solicited. This task can be accomplished by assessing the complainant's reaction at the time of the alleged incidents of harassment, and determining whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome. A verbal no is not required in all cases and a repetitive failure to respond to a harasser's comments could constitute a signal to him that his conduct is unwelcome. In these cases, the appropriate standard to apply is that of a reasonable person in the circumstances. Ordinarily, harassment requires an element of persistence or repetition, but in certain circumstances, even a single incident may be severe enough to create a hostile environment. The objective reasonable person standard is used to assess this factor as well. [45] In the sexual harassment case of Stadnyk v. Canada (Employment and Immigration Commission), the Federal Court of Appeal suggested that where proper expert evidence is before the Tribunal confirming that male-female interaction may be perceived differently by men than by women, then the appropriate standard against which to measure the alleged conduct should be that of a reasonable woman. (8) IV. ANALYSIS A. Credibility of the Evidence [46] Without the presence of a responding party at the hearing, Ms. Des Rosiers's evidence was obviously left uncontradicted. Even so, I found her to be a credible witness, who testified in an eloquent and clear manner. I note that in her testimony, the dates to which Ms. Des Rosiers attributed a handful of events differed from those set out in the written complaint that was prepared in March 1999. For instance, according to the complaint form, Mr. Barbe's remark regarding his dog, Charlotte, occurred in December 1997 and not January 1997. Similarly, his comment about how Ms. Des Rosiers appeared more white than usual is indicated as having occurred in October 1997, as opposed to April 1997. I do not perceive these discrepancies as a weakness in her testimony. To the contrary, they serve to demonstrate that instead of blindly restating what was written on the complaint form, Ms. Des Rosiers testified on the basis of her actual memory of the incidents. That she may have occasionally misstated, during her testimony, the month or year of a particular event, is not of any real significance. I also note that the witnesses who were called to testify by Ms. Des Rosiers and Groupe d'aide said that they had not discussed the content of their testimony with the complainants prior to being called to the witness stand, and that they testified based on their independent recollections of the facts and corroborated Ms. Des Rosiers's evidence to a certain extent. B. Was the Impugned Conduct Related to Sex, Race, or National or Ethnic Origin? [47] Ms. Des Rosiers claims Mr. Barbe's impugned conduct, as described in her evidence, relates to at least one, if not more, of the proscribed grounds of discrimination under the Act. [48] It is clear from all of the evidence that a portion of Mr. Barbe's alleged harassing behaviour was sexual in nature, encompassing such things as his gesture towards his crotch at the May 1997 office party, his repeated comments about Ms. Des Rosiers's breasts, his advice that she should screw around and his implication that she got her job because she slept with an executive of the CBC. [49] However, Mr. Barbe's harassment was not just sexual in nature. It also extended to matters related to Ms. Des Rosiers's race and origin. His offensive remarks included making comparisons between Ms. Des Rosiers's skin colour and that of his dog, stating that dancing was in her blood, and making racial comments about her physical features. He made a point of blurting out, in her presence, derogatory racial comments against Africans and Blacks. His conduct revealed distaste on his part for all things pertaining to her Haitian background. His insistence that she report on Créole culture was made in a condescending fashion, as if to suggest that because of her ethnic background she was not worthy or capable enough to comment upon mainstream Quebec or Francophone culture. Mr. Barbe's contemptuous and demeaning behaviour with respect to the Rastafarian wig was strikingly racial in nature and a gross insult to all Black persons, be they of Jamaican, Haitian or any other origin. [50] I am therefore satisfied that the nature of Mr. Barbe's impugned conduct was at times either sexual, racial, or related to Ms. Des Rosiers's national or ethnic origin. C. Was Mr. Barbe's Conduct Welcome? [51] It is clear from Ms. Des Rosiers's evidence that she did not desire nor solicit Mr. Barbe's alleged discriminatory conduct. On several occasions, she openly demonstrated to him that she was offended by his comments. Thus, at one point, she became so fed up with his incessant remarks that she should prepare a report about Créole, that she replied in a forceful manner, Leave me alone! (Lâche-moi!). Similarly, when Mr. Barbe asked Ms. Des Rosiers whether she had begun hanging around with Blacks, following her meeting with Michaëlle Jean, Ms. Des Rosiers angrily retorted, Excuse me! (Pardon!). [52] In general, however, Ms. Des Rosiers did not respond outwardly to Mr. Barbe's comments, but rather pretended to ignore them. I accept her explanation that Mr. Barbe was, after all, her boss and she feared the consequences that a confrontation with him would have on her career, particularly given that she was merely a trainee. It was for this reason that she chose to address the problem through the back channels, so to speak, by expressing her concerns to Mr. Barnabé and Ms. Léonard, in the hope that these individuals were better placed to convey the message to Mr. Barbe. For instance, she complained to Mr. Barnabé about Mr. Barbe's remark that she had no business doing a report on the Cinémathèque québécoise. Unfortunately, Mr. Barnabé was unwilling to intervene and, in fact, became Mr. Barbe's apologist, taking the position that Mr. Barbe was not really racist or sexist, just an iconoclast. In any event, Ms. Des Rosiers eventually realized that she could hardly count on Mr. Barnabé's understanding, considering his participation in the masquerade, as she described it, involving the Rastafarian wig. [53] Besides, it is unreasonable for Mr. Barbe to have ever considered his behaviour towards Ms. Des Rosiers as welcome. How could any person reasonably conclude that Ms. Des Rosiers, a Black woman of Haitian descent, would welcome his masquerade, his crude gestures with his crotch, his repeated remarks about her breasts, his comparison between her and his dog, and his numerous other aspersions against Blacks and Haitians. To do so would be ludicrous. [54] I am therefore satisfied that in the circumstances, Ms. Des Rosiers's response to this conduct was reasonable and that consequently, Mr. Barbe's behaviour was not welcome. D. Was the Impugned Conduct Serious Enough to Create a Hostile Environment? [55] Mr. Barbe's discriminatory conduct began as early as his first meeting with Ms. Des Rosiers, when he made the sexually offensive remark that he was only interested in her colleague's ass, and extended over the entire period that she worked on the La vie d'artiste program. Some particular aspects of his conduct were very serious, notably his weeklong masquerade with the Rastafarian wig. I find that this act alone was of such gravity that one could reasonably conclude that Ms. Des Rosiers was working within a hostile environment. When combined with the myriad of other offensive comments and acts engaged in by Mr. Barbe, touching on numerous facets of Ms. Des Rosiers's identity (her race, her gender and her national/ethnic origin) as well as her dignity as a person, there can be no doubt that her workplace environment had been poisoned. [56] For all these reasons, therefore, I find that Mr. Barbe harassed Ms. Des Rosiers on the basis of all three prohibited grounds referred to in the complaint: race, sex and national/ethnic origin. V. REMEDY A. Lost Wages [57] Ms. Des Rosiers is seeking compensation for the wages that she lost due to the non-renewal of her La vie d'artiste employment contract (s. 53(2)(c) of the Act). Although it was Mr. Barnabé who informed her, on August 17, 1998, that she would not be rehired for the 1998-99 season, Ms. Des Rosiers contends, based on circumstantial evidence, that Mr. Barbe had a hand in this decision. She points out that when she returned to her office on August 17th, Mr. Barbe had occupied it and said it was now his. She also recalls having been told by Mr. Barnabé, on an earlier occasion when she was assigned additional work on a couple of other television programs, that it was Mr. Barbe who had decided to provide her this opportunity. Finally, she claims that the person who replaced her on the La vie d'artiste program was a very close acquaintance of Mr. Barbe. Drawing on these facts, she concludes that Mr. Barbe must have been involved in the decision not to renew her contract. [58] It may in fact be that Mr. Barbe did not want Ms. Des Rosiers to return to the show and it is even possible that he expressed this opinion to Mr. Barnabé. Nonetheless, on the evidence before me, the decision to refuse her renewal was Mr. Barnabé's, or possibly that of the CBC's human resources department, but certainly not Mr. Barbe's. It is noteworthy that the human resources department representative who advised Ms. Des Rosiers to leave the building on August 17, 1998, as well as Mr. Barnabé, both made it clear that they themselves were upset with the filing of the complaint letter with the CBC President. I am unconvinced that the decision not to renew can be ascribed, even in part, to Mr. Barbe. [59] Yet, there still remains one other related issue. Although Mr. Barbe was not involved in the decision not to hire back Ms. Des Rosiers, can the non-renewal nevertheless be indirectly linked to his discriminatory conduct? Had it not been for Mr. Barbe's harassment, Ms. Des Rosiers would not have complained and sent a letter to the CBC President. Mr. Barnabé, in turn, told Ms. Des Rosiers that she was dismissed from the show because she sent the letter. [60] A similar issue came before the Canadian Human Rights Tribunal in Nkwazi v. Correctional Service of Canada (No. 4). (9) The complainant in that case, claiming that her manager had harassed her, complained to higher management, whose reaction, in turn, was to retaliate against the complainant and not renew her casual contract. The Tribunal came to the following conclusion(10): In cases of discrimination, the goal of compensation is to make the victim whole, subject to principles of foreseeability, remoteness and mitigation. In this case, I am satisfied that there is a causal connection between the original discriminatory practices and the loss of Ms. Nkwazi's job: had Ms. Neufeld not treated Ms. Nkwazi in a discriminatory fashion, Ms. Nkwazi would not have complained about her to RPC management, and the retaliation would not have occurred. In other words, the damages that result from the non-renewal of Ms. Nkwazi's casual contract are damages flowing from Ms. Neufeld's original breach of the Act, and may be considered from the perspective of remedy. Was the decision by Mr. Barnabé to refuse the renewal of Ms. Des Rosiers's contract a reasonably foreseeable consequence of Mr. Barbe's harassment? Do the damages arising from the non-renewal flow from Mr. Barbe's breach of s. 14 of the Act? I note that in Nkwazi, the respondent before the Tribunal was the institutional employer, the Correctional Service of Canada, not the individual who actually committed the discriminatory practice against the complainant. As a result, the employer ended up being held liable for the loss of income arising from its decision not to renew the complainant's employment contract.(11) [61] Mr. Barbe is not the employer in the present case and I have already determined that the evidence is insufficient to support the contention that he was involved in the non-renewal of Ms. Des Rosiers's contract. In Canada (Attorney-General) v. Green,(12) the Federal Court-Trial Division stated that the proper test for assessing damages includes the notions of remoteness and foreseeability. The Court referred to an excerpt from Mr. Justice Marceau's reasons in Canada (Attorney-General) v. Morgan (13): The idea is always the same: exclude consequences which appear down the chain of causality but are too remote in view of all of the intervening facts. Whatsoever be the source of liability, common sense still applies. Accordingly, I find that Ms. Des Rosiers's loss in wages arising from the independent decision of the employer, the CBC, (as expressed through the conduct of the show's producer, Mr. Barnabé, and perhaps the CBC's human resources representative), to refuse to renew Ms. Des Rosiers's contract for La vie d'artiste, to be too remote from Mr. Barbe's discriminatory conduct. It would strain common sense to hold Mr. Barbe liable for a third party's retaliatory acts, in which I am not convinced he played a part. [62] Ms. Des Rosiers is therefore not entitled to damages from Mr. Barbe, for her lost wages. B. Expenses [63] Ms. Des Rosiers claims that she should be compensated for certain expenses that she incurred as a result of Mr. Barbe's discriminatory practice (s. 53(2)(c) of the Act). [64] The expenses being claimed include the fees for lawyers whom Ms. Des Rosiers consulted in 1998. She acknowledges that these fees are for services relating to the grievance that she sought to file against the CBC, and more specifically, certain difficulties she had convincing her union to file the grievance. As such, these expenses are not related to the present complaint against Mr. Barbe and she is therefore not entitled to their reimbursement.(14) [65] Ms. Des Rosiers is also claiming the fees that she paid for consultations with two psychologists, from September 1998 until June 2000. She testified as to the extent that her physical and mental health had deteriorated as a result of Mr. Barbe's harassment. I am satisfied that these professional services were warranted and that they are directly related to Mr. Barbe's discriminatory practice. The total amount of these fees is $1,515.00. Photocopies of the invoices documenting these expenses were not communicated to Mr. Barbe or his counsel prior to the hearing. However, in one of the documents disclosed to Mr. Barbe's counsel by the Commission, in March 2003, it is indicated that the invoices would be forthcoming. In the ensuing weeks, neither Mr. Barbe nor his counsel raised any issue regarding this limited disclosure, with the Tribunal. Obviously, with the respondent side being absent from the hearing, no objection was made to the entry into evidence of these receipts. I note that the sums claimed for these psychologists' consultations are reasonable, apparently averaging $60.00 per visit. Taking all of these factors into account, I am satisfied that Ms. Des Rosiers is entitled to claim these expenses. [66] Mr. Barbe is therefore ordered to pay to Ms. Des Rosiers the sum of $1,515.00 in reimbursement of her expenses. C. Non-pecuniary Damages [67] Ms. Des Rosiers is claiming compensation, under the current version of the Act, for the pain and suffering that she experienced as a result of the discriminatory practice (s. 53(2)(e)), as well as special compensation because Mr. Barbe wilfully or recklessly engaged in the discriminatory practice (s. 53(3)). The maximum award available under each provision is $20,000. [68] Prior to the amendments to the Act that took effect on June 30, 1998, (15) awards to victims for non-pecuniary damages were limited to only $5,000 (s. 53(3) of the older version of the Act). In Nkwazi,(16) the Tribunal held that where the discriminatory conduct occurs prior to that date, the previous limits apply. [69] By June 1998, the season's production of La vie d'artiste had ended and Ms. Des Rosiers had no further contact with Mr. Barbe. In the written complaint, the last documented act of harassment is listed as being Mr. Barbe's pseudo-apology during which he claimed that big African ass is not an insult. This event occurred in April 1998. During the month of May, Mr. Barbe was away in Europe and had no contact with Ms. Des Rosiers. In her testimony, Ms. Des Rosiers alleged that some of her work was sabotaged after she formalized her complaints against Mr. Barbe, but these incidents took place in mid-June 1998, at the latest. [70] The only event involving Ms. Des Rosiers's experience with Mr. Barbe and the La vie d'artiste team that she alleges to have occurred after June 30, 1998, is the notification of her dismissal, which took place on August 17, 1998. As I already explained earlier in this decision, the non-renewal of Ms. Des Rosiers's contract cannot be linked to Mr. Barbe's discriminatory conduct. Furthermore, he did not harass Ms. Des Rosiers during either of his minor interactions with her on that day (in her office and in Mr. Barnabé's office). In her testimony, Ms. Des Rosiers did not refer to any other meeting or contact with Mr. Barbe after this date. [71] I therefore find that all of Mr. Barbe's discriminatory conduct occurred prior to the June 30, 1998 amendments to the Act. I am bound to apply the provisions of s. 53, as they stood at the time when the discriminatory practices took place. According to the older version of s. 53(3), compensation not exceeding $5,000 may be ordered where a person engaged in the discriminatory practice wilfully or recklessly, or where the victim suffered in respect of feelings or self-respect as a result of the practice. [72] I am convinced that Mr. Barbe's discriminatory conduct was reckless and even wilful at times. For instance, his decision to parade around in a Rastafarian wig, in plain view of the only Black staff member, during Black History Week, could only have been done with the intention of humiliating Ms. Des Rosiers. His numerous other vulgar and insulting comments and gestures relating to her race, origin and gender were no less mean-spirited and were engaged in without any consideration of the consequences to her feelings or her well-being. [73] I am similarly satisfied that Ms. Des Rosiers suffered deeply in respect of her feelings and her self-respect. She testified that experiencing harassment that simultaneously belittled her sex, her race and her culture heightened her pain and aggravated the effect of the discrimination. These insults were coupled with an underlying suggestion that she was not a real Québécoise. [74] In light of all the circumstances, I order Mr. Barbe to pay to Ms. Des Rosiers the sum of $5,000.00 in non-pecuniary damages, pursuant to the pre-amendment version of s. 53(3). D. Donation to Groupe d'aide [75] The Complainants request that Mr. Barbe be ordered to make a donation to Groupe d'aide. Ms. Smith pointed out that Groupe d'aide is a non-profit charitable organization made up of volunteers who assist victims of harassment. The group's assistance to Ms. Des Rosiers and the entire Tribunal process was useful, particularly in light of the withdrawal by the Commission shortly before the start of the hearing. [76] The Tribunal's authority to order remedial measures, however, is governed entirely by the Act. None of the remedies enumerated in s. 53 of the Act contemplate the possibility of ordering a respondent to make a payment to anyone other than the victim of his discriminatory conduct. The Complainants' request must therefore be denied. E. Interest [77] Interest is payable in respect of the monetary awards made in this decision (s. 53(4) of the Act). However, since I have ordered the maximum award for non-pecuniary damages available under the previous version of the Act, no interest is payable regarding this sum.(17) The interest on the remaining award shall be simple interest calculated on a yearly basis, at a rate equivalent to the Bank Rate (Monthly Series) set by the Bank of Canada, to run from the date of the complaint, March 8, 1999, until final payment. F. Letter of Apology [78] The Complainants request that Mr. Barbe be ordered to remit a sincere letter of apology to Ms. Des Rosiers. In light of the recent Federal Court-Trial Division decision in Stevenson v. Canadian Security Intelligence Service, (18) to the effect that the Tribunal lacks the jurisdiction to make such orders, this request is denied. G. Human Rights Sensitization Training [79] Ms. Smith informed the Tribunal that among the services that Groupe d'aide provides to the public is sensitization training with respect to harassment and human rights. The Complainants request that Mr. Barbe be ordered to attend such a training session. [80] It is evident from Mr. Barbe's behaviour that he could certainly benefit from such training. Mr. Barbe is therefore ordered to attend a course on harassment and human rights to be organized by Groupe d'aide, in consultation with the Commission, as provided for under s. 53(2)(a) of the Act. The course must be comprised of no less than one and no more than three full-day sessions. The reasonable cost for this training shall be paid by Mr. Barbe. H. Retention of Jurisdiction [81] I retain jurisdiction in the event that any dispute arises regarding the quantification or implementation of any of the remedies in this decision. "Original signed by" Athanasios D. Hadjis OTTAWA, Ontario June 27, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T736/4102 STYLE OF CAUSE: Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec Inc. v. Jean Barbe PLACE OF HEARING: Montreal, Quebec (May 5, 6 and 7, 2003) DECISION OF THE TRIBUNAL DATED: June 27, 2003 APPEARANCES: Linda Smith For Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec Inc Mireille Des Rosiers On her own behalf 1.1 R.S.C. 1985, c. H-6. 2.2 (2 October 2002), Ottawa T701/0602 (C.H.R.T.) (transcript). 3.3 Groupe d'aide et d'information sur le harcèlement sexuel du travail de la province du Québec Inc. v. Barbe, 2003 CHRT 15. 4.4 [1989] 1 S.C.R. 1252. 5.5 Rampersadsingh v. Wignall, [2002] C.H.R.D. No. 27 at para. 40 (C.H.R.T.)(QL); Dhanjal v. Air Canada (1996), C.H.R.R. D/27 at para. 206 (C.H.R.T.) aff'd [1997] F.C.J. No. 1599 (F.C.T.D.)(QL); Marinaki v. Canada (Human Resources Development), [2000] C.H.R.D. No. 2 at para. 187 (C.H.R.T.) (QL). 6.6 Canada (HRC) v. Canada (Armed Forces) and Franke (Franke) (1999), 34 C.H.R.R. D/140 at paras. 29-50 (F.C.T.D.); Bushey v. Sharma, 2003 CHRT 21 at paras 104-107. 7.7 Rampersadsingh, supra, note #5 at para. 41. 8.8 (2000), 38 C.H.R.R. D/290 at para. 25 (F.C.A.). 9.9 (2001), 41 C.H.R.R. D/109 (C.H.R.T.). 10.10 Ibid. at para. 234. 11. 11 Ibid. at para. 242. 12. 12 (2000), 38 C.H.R.R. D/1 (F.C.T.D.). 13.13 [1992] 2 F.C. 401 at 416 (F.C.A.). 14.14 See Larente v. Canadian Broadcasting Corp., [2002] C.H.R.D. No. 11 at paras. 293-297 (C.H.R.T.). 15.15 An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, S.C. 1998, c. 9, s. 27. 16. 16 Supra, note #9 at paras. 257-270. 17.17 Canada (Attorney General) v. Hebert (1995), C.H.R.R. D/375 at para. 23 (F.C.T.D.). 18.18 2003 FCT 341 (F.C.T.D.).

2003 CHRT 25

CHRT

Green v. Public Service Commission of Canada, Treasury Boardand Human Resources Development Canada

en

2003-07-03

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6774/index.do

2023-12-01

Green v. Public Service Commission of Canada, Treasury Boardand Human Resources Development Canada Collection Canadian Human Rights Tribunal Date 2003-07-03 Neutral citation 2003 CHRT 25 Other citations Reference: T.D. 6/98 File number(s) T447/0296 Decision-maker(s) Leighton, Elizabeth A.G.; Devine, Sheila M. Decision type Ruling Decision status Interim Decision Content Between: Nancy Green Complainant - and - Canadian Human Rights Commission Commission - and - Public Service Commission Treasury Board Human Resources and Development Canada Respondents Ruling Members: Elizabeth A.G. Leighton and Sheila M. Devine Date: July 3, 2003 Citation: 2003 CHRT 25 [1] The Respondents' Motion asks for the following relief: an Order striking the Complainant's input document dated May 29th, 2003 from the Tribunal Record; an Order requiring the Complainant to provide the Respondents with a proper notice of factual and legal issues (disclosure) containing all of the relevant information and documents in accordance with Section 6 of the Canadian Human Rights Tribunal Interim Rules of Procedure; an Order pursuant to Section 53(3)(a) of the Canadian Human Rights Act compelling the Complainant to provide to the Respondents copies of the Complainant's Income Tax Returns, Notices of Assessment, and any other documents relevant to the Complainant's income tax situation from years 1989 to 2002; an Order pursuant to Section 50(3)(a) of the Canadian Human Rights Act compelling the Complainant to provide the Respondents with a consent document pursuant to Section 241(5) of the Income Tax Act authorizing disclosure by the Canada Customs and Revenue Agency to the Respondents of all of the Complainant's taxpayer information with respect to taxation years 1989 to 2002 inclusive; an Order providing that if the Complainant does not comply with Orders (b), (c) and (d) within 14 days following the Tribunal's Order, the Complainant's complaint shall be dismissed; an Order extending the deadline for the production of the Respondents’ notice of factual and legal issues (disclosure) to the date falling 6 weeks after the Complainant has complied with her obligations pursuant to Orders (b), (c) and (d); and such further and other relief as the Tribunal deems just. [2] The Tribunal heard the Motion by Teleconference, on June 25th, 2003. Jan Brongers represented the Respondents; Nancy Green represented herself; the Commission, although appropriately served, was not represented on the Motion. [3] The Respondents submitted that the disclosure presented to them in Ms. Green’s document characterized as input is vague and confusing; in other words, insufficient to allow the Respondents to make full response. It does not, according to the Respondents, set out with sufficient specificity the material facts, the legal issues and the evidence upon which Ms. Green relies in her request that the Tribunal address the income tax implications of its Decision, dated June 26, 1998. More specifically, she has questioned the calculation of the gross up ordered by the Tribunal in that Decision. [4] The Respondents’ Motion is, in essence, a request that Ms. Green start again, and present to them disclosure under headings contemplated in Section 6(1) of the Canadian Human Rights Tribunal Interim Rules of Procedure. Those headings are as follows: Material Facts, Legal Issues, Specific Relief, and Summary of Evidence to be presented by Witnesses. [5] The Respondents submitted that, as the Interim Rules of Procedure necessitate summaries of evidence to be heard from witnesses, and, as Ms. Green named, as potential witnesses, Julia Mott, identified as an expert who may be called to give financial advisor information and Brian Saxe, an expert who may be called to give tax accountant information, summaries of their evidence is required. [6] The Respondents also submitted that a summary of Ms. Green’s evidence should be included in the disclosure. [7] The Respondents argued that they are unable to answer Ms. Green's current vague disclosure. Indeed, because of its confusing nature, the Respondents argued that they are being placed in a position where they must guess what Ms. Green wants and how that can be accomplished. The evidentiary burden, they argued, is being shifted to the Respondents because of the vague and confusing nature of Ms. Green’s disclosure. [8] What is specifically needed, argued the Respondents, are copies of Ms. Green’s annual Income Tax Returns, including the Notices of Assessment, from 1989 to 2002, both of which could most easily be received by the Respondents from the Canada Customs and Revenue Agency if the Tribunal ordered that Ms. Green sign a consent document, pursuant to Section 241(5) of the Income Tax Act, authorizing such disclosure. [9] Failure to produce more specific disclosure should, according to the Respondents’ argument, result in a dismissal of the Hearing. The Respondents submitted that the current disclosure is so lacking in specificity as to be rendered useless and, as such, should be set aside. Without disclosure, the Hearing cannot proceed fairly, and should be dismissed. [10] If the Tribunal makes the Orders requested by the Respondents, the time-frames contemplated in March, 2003 (Ms. Green’s disclosure to be served by May 29th, 2003 and the Respondents’ disclosure to be served by July 11th) should be changed to allow the Respondents six weeks from their receipt of Ms. Green's new disclosure to produce reply disclosure. [11] Ms. Green's response to these arguments on this Motion was that, as an unrepresented Complainant, she did her best to create an input document, her disclosure. She indicated that she had been the first witness in this Hearing, giving evidence in October, 2002 and having that evidence cross-examined. [12] She has completed her testimony which concerned her reasons for requesting a re-convening of the Tribunal to address the calculation of the gross up presented to her by her employer pursuant to the June, 1998 Decision. She indicated that her tax summaries are part of the Hearing Record, as Exhibits presented when her evidence was given. [13] Additionally, Ms. Green indicated that she had followed the March, 2003 request of the Respondents’ Counsel, Mr. Unrau, and had attended at the Office of the Respondents’ employee, Mr. Roger Dart, with her Income Tax Returns, and Notices of Assessment. She submitted that she had remained with Mr. Dart in order that she be immediately available to him to answer any questions he had concerning that tax information, and had offered that he could make copies of the information. According to Ms. Green, that offer was declined. [14] Ms. Green submitted that her evidence, and the input document represent her best effort to present her layman’s understanding, or lack thereof, of the income tax implications of the June, 1998 Decision. Ms. Green noted that her concern is that there has been a loss of Registered Retirement Savings Plan contribution room, and consequent tax savings which would have generated interest income. [15] Ms. Green argued that it is these income tax implications which should have been addressed when the gross up was calculated. Additionally, Ms. Green submitted that the Respondents’ concern about the income tax implications of the Decision’s interest award might also be addressed during this Hearing. [16] The Tribunal agrees that Ms. Green has presented the relief she is seeking during her direct evidence and its cross-examination, and in her input document. [17] The issue before the Tribunal is the methodology for the calculation of the gross up’ on the award made in June, 1998 concerning Ms. Green’s original Complaint. What is that methodology? How does it address the income tax implications of the award? More specifically, how does it address the loss of the value of the R R S P contributions which Ms. Green would have had available to her, on an annual basis, had she been receiving the higher annual rate of pay she was awarded? Should the gross up include consideration of the interest award? [18] The tax summaries, made exhibits during Ms. Green’s testimony, are part of the Hearing Record. Ms. Green has indicated in her input document what she feels is relevant income tax information, winnowed from the actual documents presented to Roger Dart, the Respondents’ named contact person. This includes her gross income for the years 1989-2000, her taxable income for those years, the R R S P room for those years with the 50% notation, and the calculation concerning lost interest on the R R S P non-contributions. [19] The input document is not organized pursuant to Section 6(1) of the Interim Rules of Procedure. This may have been caused by the fact that some of the requirements of that section had already been addressed by Ms. Green’s evidence, including exhibits. [20] Additionally, the testimony of the proposed experts, in summary form, is not included. There is no specific calculation of the monetary relief suggested by Ms. Green to represent a more appropriate gross up. [21] These latter items, however, will undoubtedly be included in the Experts’ Reports which must be served upon the Respondents, pursuant to Section 6(4) of the Interim Rules of Procedure, ten (10) days before the Hearing dates of August 12-13, 2003. [22] The Respondents are correct in their indication to the Tribunal that the input document lacks the organization contemplated by the Interim Rules of Procedure. The Tribunal, however, is not persuaded that, when read in conjunction with the evidence of Ms. Green, it is so lacking in specificity that it ambushes the Respondents as alleged. [23] The requirement that Experts' Reports be served ten days before the Hearing may assuage the Respondents' concerns, especially about the need for income tax information for both the Tribunal and for themselves. The experts proposed by Ms. Green - a financial advisor and a tax accountant - will undoubtedly be basing their opinions upon Ms. Green’s tax information. The Respondents will receive those Experts’ Reports and opinions, with the foundations for those opinions, at the appropriate time. [24] Of course, as the Respondents argued, the Tribunal can make its final decision based only on what it has before it. How much information she wishes the Tribunal to have in order to make that decision is up to Ms. Green. [25] The organization of the materials may not be as the Respondents would wish it to be; the materials may not be as fulsome as the Respondents would like. The materials are not, however, completely lacking in information to address the disclosure requirements of Section 6(1) of the Interim Rules of Procedure. The Reports of Ms. Green’s experts will, hopefully, address the concerns of the Respondents. [26] For these reasons, the Tribunal dismisses the Respondents’ Motion. Signed by Elizabeth A.G. Leighton Chairperson Sheila M. Devine Tribunal Member Ottawa, Ontario July 3, 2003 Canadian Human Rights Tribunal Parties of Record Tribunal File: T447/0296 Style of Cause: Nancy Green v. Public Service Commission of Canada, Treasury Board and Human Resources Development Canada Ruling of the Tribunal Dated: July 3, 2003 Date and Place of Hearing: June 25, 2003 Ottawa, Ontario (by Teleconference) Appearances: Nancy Green, for herself No one appearing, for the Canadian Human Rights Commission Jan Brongers, for the Respondents Reference: T.D. 6/98 June 26, 1998

2003 CHRT 26

CHRT

Martin Desrosiers v. Canada Post Corporation

en

2003-07-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6800/index.do

2023-12-01

Martin Desrosiers v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2003-07-10 Neutral citation 2003 CHRT 26 File number(s) T731/3602 Decision-maker(s) Doucet, Michel Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARTIN DESROSIERS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent REASONS FOR DECISION MEMBER: Michel Doucet 2003 CHRT 26 2003/07/10 [TRANSLATION] I. INTRODUCTION II. JOINT ADMISSIONS OF FACTS III. SUPPLEMENTARY FACTS PRESENTED AT THE HEARING IV. ISSUES OF LAW V. LEGAL FRAMEWORK VI. ANALYSIS A. Has the complainant established a prima facie case of discrimination in contravention of section 7? (i) Discrimination based on family status (ii) Discrimination based on a disability B. Is the discrimination based on a bona fide occupational requirement (BFOR)? (i) Was the standard adopted for a purpose rationally connected to the performance of the particular job? (ii) Did the employer adopt the standard with an honest and good faith belief that it was necessary to the accomplishment of that legitimate work-related purpose, with no intention of discriminating against the complainant? (iii) Is the impugned standard reasonably necessary to accomplish the intended purpose? VII. CONCLUSION VIII. RETENTION OF JURISDICTION I. INTRODUCTION [1] The complainant, Martin Desrosiers (Desrosiers), alleges that he was discriminated against on the basis of his disability and his family status in that the respondent, the Canada Post Corporation (the Corporation), rejected his candidacy in September 1997 for a CS-03 position of management analyst. The reasons cited by the respondent, according to the complainant, were that he did not meet the physical requirements of the position and that the position called for evening work, which did not fit well with his family obligations. [2] The complainant therefore alleges that the respondent discriminated against him, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act). [3] The parties have also asked the Tribunal, firstly, to deal with the issue of whether there was a discriminatory practice in this case and, if so, whether this discriminatory practice was based on a bona fide occupational requirement within the meaning of the case law and the Act. Secondly, if the complaint proves to be substantiated, the parties have asked that the Tribunal reserve its jurisdiction in order to convene a second hearing to allow the parties to present evidence and arguments on the issue of remedy. II. JOINT ADMISSIONS OF FACTS [4] At the start of the hearing, the parties agreed on the following facts: Desrosiers has been an employee of the Corporation since May 6, 1987. Since being hired, Desrosiers has held several jobs within the Corporation. On May 22, 1988, he was promoted to full-time supervisor, at level 2. On July 15, 1991, he was appointed to the position of business analyst, an MGT 1.5 management level position. On October 11, 1993, following a lateral transfer, Desrosiers became a communication analyst, a management position (MGT 1.5). In November 1993, the Union of Postal Communications Employees, a component of the Public Service Alliance of Canada, was certified as the bargaining agent for approximately 2,800 employees of the Corporation. Desrosiers was one of those 2,800 employees. On December 15, 1994, Desrosiers' MGT 1.5 position became surplus. On January 12, 1995, Desrosiers suffered a work accident and was absent from work until May 19, 1996. As a result of this work accident, Desrosiers suffered a back injury that affected his functional job skills. On January 25, 1995, the Corporation informed Desrosiers that his position, classified as MGT, was reclassified at the AS-03 level. To facilitate Desrosiers' return to work, the Corporation obtained a musculoskeletal report from the Movement and Analysis Treatment Centre focussing on Desrosiers' functional limitations as assessed on May 17, 1996. On May 19, 1996, Desrosiers returned to his job as it had existed at the time of his work accident in January 1995. On June 10, 1996, Desrosiers took a temporary assignment as a technical development analyst, a position classified at the AS-03 level. On January 27, 1997, Desrosiers accepted a permanent assignment at the Corporation's Institute in an officer position that was classified at the AS-02 level. Even though Desrosiers accepted the AS-02 position on January 27, 1997, he retained his higher employee status as an AS-03. On May 19, 1998, Desrosiers obtained a permanent position as a communications analyst. The position was classified at the AS-03 level. In August 1997, the Corporation posted a competition bearing reference number 97-RID-13 for a management analyst position, classified at the CS-03 level. The deadline for submitting candidacies for competition 97-RID-13 was August 29, 1997. On August 7, 1997, Desrosiers submitted his candidacy for competition 97-RID-13 to Ginette Dinis (Dinis), a human resources officer employed by the Corporation. Dinis was responsible for administering the competition process. Desrosiers' candidacy included a covering letter, his résumé, university diplomas, the results of his second language knowledge examinations and his most recent performance appraisal. On August 8, 1997, Dinis acknowledged receipt of Desrosiers' candidacy by e-mail. She informed Desrosiers that the Corporation [is] currently reviewing your qualifications and your experience relating to this employment opportunity. We will contact you once the review of applications for this position is completed [translation]. On August 8, 1997, Desrosiers and Dinis were in touch by telephone and briefly discussed competition 97-RID-13. During this telephone conversation, Desrosiers and Dinis discussed, among other things, that the position to be awarded under competition 97-RID-13 was one that involved on call duties as well as some travel. During this same telephone conversation, Dinis told Desrosiers that she would send him a copy of the statement of qualifications for competition 97-RID-13. Desrosiers received the statement of qualifications from Dinis in August 1997. As of August 29, 1997, just four candidates had applied for the competition. Of the four, two were screened out and rejected by the Corporation because they did not belong to the bargaining unit within which the coveted position was offered. After these two candidates were screened out, just two candidates remained on the competition roster: Rod Magliocco and Desrosiers. Dinis assigned Michelle Jammes (Jammes) to screen the candidates for the competition while Dinis was on annual leave. As part of her screening process, Jammes inquired at the Corporation's health services about Desrosiers' particular medical and/or physical restrictions. On September 2, 1997, Jammes asked the Corporation's health services to provide her with information about Desrosiers' particular medical and/or physical restrictions. According to Jammes: I urgently require a list of the above-mentioned employees work restrictions [Martin Desrosiers]. I have been told that he is unable to lift heavy weights however I am not aware of what the medical field deems as heavy or light. I am told that he is unable to sit or stand for long periods of time however I need to know what a long period of time is considered to be, in minutes. The file for this employee is onsite in Huron/Rideau. I require something in writing from either Dr. Belzile or an occupation health nurse advising me of his restrictions. Mr. Ramsay is currently staffing a position for which Mr. Desrosiers has applied. I cannot complete the screening process until I know if Mr. Desrosiers is physically fit to be considered for this job. Mr. Ramsay would like the interviews to take place this Friday, Sept. 5. Could either Dr. Belzile or Ms Younger please qualify/quantify the restrictions for our files ? [sic] Still in the context of her screening of the candidates, Jammes asked the manager responsible for the position represented by competition 97-RID-13 to provide her with a list of the physical activities associated with the vacant position. On September 3, 1997, the consultant working for the Corporation's health services sent Jammes a list of Desrosiers' physical limitations, dated May 21, 1996. This list mentioned the following medical and/or physical restrictions: - Change position every 20-30 minutes; - Stand for short periods of time (5-6- minutes) - Lifting under 18 pounds - Occasional stair climbing - Push/pull carts with 20 pounds resistance or less. [sic] On September 4, 1997, Jammes informed Dinis that she had rejected Desrosiers' candidacy for competition 97-RID-13 due to the fact that he is medically unfit to perform the requirements of this vacant position. On September 5, Rod Magliocco, being the only eligible candidate following the screening process, began the review of qualifications phase as mandated by the hiring process. On September 18, 1997, Dinis informed Desrosiers by e-mail that his candidacy for the competition had been rejected because he did not meet the physical requirements of the position owing to his medical restrictions. Desrosiers filed grievance number 70810-AS-97-079 with his Union, which grievance was subsequently withdrawn from the grievance process by the Union on December 8, 1997. Rod Magliocco passed the written examination with a grade of 92% and was offered the position under competition 97-RID-13. III. SUPPLEMENTARY FACTS PRESENTED AT THE HEARING [5] As stated in the Joint Admissions of Facts, the Corporation hired Desrosiers on May 6, 1987. On January 12, 1995, he suffered a work accident, a back injury, which forced him to be absent from his job until May 19, 1996. This injury required surgery in August 1995, which was performed by Dr. Max Aebi at the Royal Victoria Hospital in Montreal. Prior to this accident and Dr. Aebi's surgery, Desrosiers had had two other surgeries to the lumbar spine, in 1987 and in 1992 (decompression). Also in 1989, he had had surgery to the cervical spine (Clowards). Desrosiers described the last procedure (L4-S1 fusion), in 1995, as follows: [Translation] The lumbar fusion consisted first in placing titanium intervertebral spaces between the vertebrae to prevent any further collapse between the vertebrae; so replacing the discs. And then making a kind of cage around the column - I don't know exactly how it's done - and placing titanium rods on both sides with six screws. They then took bone from the hip to place around to calcify everything, so it would be very solid in the future. And the operation was a success, and I have been doing quite well since then. [6] In February 1996, the Workplace Safety and Insurance Board of Ontario described Desrosiers' disability as permanent and said, among other things, that he was not to lift heavy objects. [7] Desrosiers was absent from work until May 19, 1996. As stated in the Joint Admissions of Facts, in order to facilitate his return to work, the Corporation asked him to undergo a musculoskeletal test to determine his functional limitations. Lucie Labenski Blench, a physiotherapist at the Movement Analysis and Treatment Centre, administered this test on May 17, 1996. Mrs. Labenski Blench's mandate, as described in her report, was to assess the functional capacity of Desrosiers in order to determine his office work tolerance and consider his capacity to bend over, sit, stand, and lift heavy objects. She was also to recommend a work tolerance program. [8] In the summary of her report dated May 21, 1996, sent to the Corporation, Mrs. Labenski Blench concluded as follows: SUMMARY Mr. Desrosiers is able to do sedentary and light duties. He is able to perform regular task involved with this category of job. His needs do require proper ergonomic set-up for his work station (i.e. chair, desk, monitor, keyboard, etc.). He should be allowed to : Change position every 20-30 minutes. Stand for short periods of time, 5-6 minutes Do light lifting, carrying under 18 lb. Occasional stairs Push / pull carts with 20 lb. resistance or less. Unlimited dexterity activities. OPINION Mr. Desrosiers seems motivated to return to a sedentary-light duty job. His potential functionality for such a job seems adequate at this time. SUGGESTIONS : Six weeks of work hardening to increase his flexibility and endurance. Ten weeks of exercises in a gym set-up or in house programme. Ensure ergonomic set-up of the work place is adequate. [sic] [9] This report from the Movement Analysis and Treatment Centre was the last medical examination the Corporation requested in Desrosiers' case. [10] The parties have acknowledged in their Joint Admissions of Facts that in August 1997, the Corporation posted a competition for a management analyst position, classified at the CS-03 level. As human resources officer for the Huron/Rideau region, Dinis was responsible for staffing vacant positions as well as for employees who were declared surplus. In the performance of her duties, she was responsible for writing the competition poster for the management analyst position. [11] The poster describes the duties of the position as follows: [Translation] Plans, coordinates and manages activities related to telecommunications support, micro-computing support, mail processing systems support, improvements and configuration control related to information systems, telecommunication networks and to National mail sorting systems. Ensures project management, does the follow-up on service integrator's activities and coordinates changes. Prepares requirement definitions and various analyses for equipment improvements. Acts as a technician and installs equipment. Acts as a technical advisor for the manager and for customers (internal or external). Supervises a support group, assigns tasks, coordinates the group activities, participates to job ratings, writes procedures, manages service requests and ensures training. The qualifications were as follows: [Translation] Bilingualism is imperative. University or college diploma in the computer, electronic or telecommunications field or successful completion of secondary school paired with a minimum of 5 years' experience in these fields. Very good experience in telecommunication networks (voice and data) and micro-computers related to the design, installation, testing, support and on maintenance of equipment and software is needed. Experience in planning, management and projects of personnel management. [12] The poster also stated that candidates had to demonstrate that they meet the requirements mentioned. [13] According to the evidence presented by the Corporation, the management analyst must carry out all the activities of a technician, including moving filing cabinets or desks to gain access to cables or electrical outlets; moving communication cabinets; moving network control units; removing and replacing floor tiles in the computer room; moving and carrying boxes containing telephones, modems and cables. He must also lift and install equipment that can weigh between 60 and 70 pounds. [14] In their rebuttal, Desrosiers and the Commission argued that nothing in the job poster expressly stated that there were physical requirements attached to this position. They also said that the poster described some fifteen duties and that the only one that might implicitly call for physical requirements would be the one stating that the incumbent acts as a technician, installs equipment. The other duties, in their view, entail more intellectual requirements, a conclusion with which Dinis said she agreed. They also said that the poster did not call for the candidate to be able to move filing cabinets, communication cabinets or floor tiles. [15] Rod Magliocco, who has held the management analyst position since winning the competition in September 1997, testified about the duties of the position. He testified that a management analyst is responsible for managing, supporting and advising the users of telecommunication networks (voice and data). He is also responsible for coordinating and managing support activities in telecommunications, mail processing systems, upgrades and configuration control related to information systems, telecommunication networks and national mail sorting systems for the Rideau region. This region extends north to Petawawa, east to Cornwall, including the Ottawa Valley and the Hull and Gatineau region, and south to Brockville, Kingston, Belleville and Peterborough. In some cases, more than three (3) hours of travel may be involved. The management analyst is often called on to help out people experiencing problems with their computers, printers, fax machines or telephone lines. In his various tasks, he may be required to move equipment or furniture weighing over 18 pounds. Magliocco admitted, however, that movers can be used in some cases and that there are what he termed Service Level Agreements under which the supplier installs the new equipment. [16] Desrosiers submitted his candidacy to Dinis on August 7, 1997, a few weeks before the deadline for the submission of candidacies, which was set at August 29, 1997. [17] On August 8, 1997, Desrosiers and Dinis had a telephone conversation during which they briefly discussed the competition, the requirements of the position in terms of hours of work and travel requirements. Desrosiers apparently also asked that he be sent the job description for the position as well as the statement of qualifications. This conversation did not touch on Desrosiers' family status. [18] While Dinis was on annual leave, Jammes, a human resources officer at the Corporation, was assigned to screen the candidates. After the deadline set in the poster for submitting candidacies, Jammes began the screening process. This process consists in determining which candidates, if any, will be accepted into the competition process. To this end, she was to refer to, among other things, the requirements of the Collective Agreement and to the staffing directives of Treasury Board. The Treasury Board directives state, inter alia, that medical suitability is one of the conditions of employment which must be administered according to Treasury Board policy and be met before appointment [translation]. [19] Thus, as part of this screening process, she said she asked the Corporation's health services about Desrosiers' particular limitations. On September 3, 1997, Dr. Robert Belzile, of the Corporation's health services, informed Jammes of Desrosiers' physical restrictions. In his memorandum, Dr. Belzile basically repeated the findings of the report of May 21, 1996, of the Movement Analysis and Treatment Centre, which stated that Desrosiers could not lift objects heavier than 18 pounds, that he was to change position every 20-30 minutes and that he could stand only for short periods of 5-6 minutes. [20] After receiving this information, Jammes, in light of the Treasury Board requirements and the physical requirements of the position, concluded that Desrosiers would not be able to perform the duties of the management analyst position, and therefore screened out his candidacy. [21] As for a possible accommodation for Desrosiers, she admitted that she had considered this only very, very briefly. In her view, the accommodation, in this case, would have necessitated another employee accompanying Desrosiers, particularly when he was travelling, and this, according to her, was impossible. When cross-examined in this regard, Jammes had this to say: Q. You said earlier today that you briefly considered accommodating Mr. Desrosiers ? A. Yes. Q. Did you make any written notes as to what you had considered, as far as possible accommodations for Mr. Desrosiers ? A. No, when I say I briefly, you know, I mean a fleeting thing because basically when I say briefly I am thinking what can I do. I mean what could, what assistant devices I do not know of any. Certainly, as I said in my testimony in-chief, you know I went through a process of looking at what was required against this and made my decision from there. As for alternate accommodations, I did not consider any alternate. Q. Did you, perhaps make any request for financial analysis of what consequences would be entailed by hiring another employee? A. No, that would not be up to me to do that. Q. Aside from your brief consideration, your fleeting thought as you yourself said, you did not really consider anything else? A. No, to my understanding, there was nothing else. [sic] [22] Finally, Desrosiers alleges that he had another telephone conversation with Dinis, on September 18, 1997, during which she told him that he had not qualified for the competition because, among other things, the management analyst position did not fit well with his family obligations since the incumbent would be required to do evening work. Dinis denies having had this telephone conversation with Desrosiers or having ever discussed his family status with him. IV. ISSUES OF LAW [23] The parties submitted the following issues of law to the Tribunal: Did the Corporation discriminate against Desrosiers in rejecting his candidacy for the position of management analyst based on his disability or perceived disability (back injury) or his family status, in contravention of section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6? If the Tribunal answers the above question in the affirmative, has the Corporation demonstrated that the rejection of Desrosiers' candidacy was justified by a bona fide occupational requirement within the meaning of the case law and/or the Canadian Human Rights Act, R.S.C. 1985, c. H-6? V. LEGAL FRAMEWORK [24] Desrosiers filed a complaint against the Corporation under section 7 of the Canadian Human Rights Act. Section 7 states that it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual, or to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. During the relevant period, certain practices were not regarded as discriminatory under the terms of section 15 of the Act. Paragraph (a) of section 15 stated that it was not a discriminatory practice if any refusal, exclusion, expulsion, suspension, limitation, specification or preference was established by an employer to be based on a bona fide occupational requirement. [25] Since the Supreme Court decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [also called Meiorin] and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [also called Grismer], the conventional distinction between direct discrimination and indirect discrimination has given way to a unified approach to processing human rights complaints. According to this approach, it is incumbent first on the complainant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in favour of the complainant, in the absence of an answer from the respondent. [26] Once a prima facie case of discrimination has been established, the onus shifts to the respondent to prove, on the balance of probabilities, that there is a bona fide justification for the discriminatory policy or standard. Thus, the respondent must prove that: it adopted the standard for a purpose or goal rationally connected to the performance of the job. The focus at this step is not on the validity of the particular standard, but rather on the validity of its more general purpose, such as the safe and efficient performance of the job. Where the general purpose is to ensure the safe and efficient performance of the job, it will not be necessary to spend much time at this stage; it adopted the particular standard in good faith, in the belief that it was necessary to the fulfillment of the legitimate work-related goal, with no intention of discriminating against the claimant. At this stage, the focus shifts from the general purpose of the standard to the standard itself; the impugned standard is reasonably necessary to accomplish its goal, that is, the safe and efficient performance of the job. The employer must demonstrate that it cannot accommodate the claimant and others affected by the standard without suffering undue hardship. It must ensure that any procedure that has been adopted to assess the issue of accommodation considers the possibility that it may unduly discriminate on a prohibited ground of discrimination. Moreover, the substantive content of a more accommodating standard offered by the employer must be adapted to each case. Subsidiarily, the employer must justify why it has not offered such a standard. [27] The Meiorin and Grismer decisions include parameters for determining whether a defence based on undue hardship has been established. In Meiorin, the Supreme Court pointed out that the use of the term undue infers that some hardship is acceptable. In order to meet the standard, the hardship imposed must be undue. It may be ideal from the employer's perspective to choose a standard that is uncompromisingly stringent. Yet the standard, if it is to be justified under the human rights legislation, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. [28] The Supreme Court also pointed out that the respondent, in order to prove that its standard is reasonably necessary, always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship. [See Grismer, supra, para. 32.] It is incumbent on the respondent to show that it considered and reasonably rejected all viable forms of accommodation. The respondent must prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship. [See Grismer, supra, para. 42.] In some cases, excessive cost may justify a refusal to accommodate those with disabilities. However, one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment. [See Grismer, supra, para. 41.] The adoption of the respondent's standard must be supported by convincing evidentiary elements. According to Meiorin and Grismer, impressionistic evidence of increased expense will not generally suffice. [See Grismer, supra, para. 41 and 42.] One must devise practical, non-pecuniary and innovative means of accommodation. Finally, factors such as the cost of possible means of accommodation should be applied with common sense and flexibility in the context of the factual circumstance presented in each case. [See Meiorin, supra, para. 63.] [29] Concerning the application of the Meiorin and Grismer decisions, rendered after the events of the case at bar, for determining whether the standard applied by the respondent constitutes a bona fide occupational requirement, I would mention that it is a fundamental tenet of our legal system that the common law always speaks from the moment that it is pronounced to all prior events. [See Irvine v. Canada (Canadian Armed Forces), [2001] C.H.R.T. No. 39, para. 120.] VI. ANALYSIS A. Has the complainant established a prima faciecase of discrimination in contravention of section 7? (i) Discrimination based on family status [30] In my view, Desrosiers has not discharged his initial burden of proof and has not succeeded in demonstrating that the respondent discriminated against him based on his family status. According to Desrosiers, there was a telephone conversation with Dinis on September 18, 1997, during which she informed him that he had not been accepted for the competition. He also alleges that she then told him that the position of management analyst did not fit well with his family obligations because the incumbent would be required to do evening work. Dinis denies having had this telephone conversation with Desrosiers or having ever discussed his family status with him. The Joint Admissions of Facts states that on September 18, 1997, Dinis did indeed inform Desrosiers, but by e-mail, that his candidacy for the competition had been rejected because he did not meet the physical requirements of the position due to his medical restrictions. No mention at all is made of his family status. [31] It may very well be that at some time or other Desrosiers' family status was raised in connection with the position requirements, which required the incumbent to be on call and to travel. However, I am not convinced that this issue influenced the respondent's decision as to whether or not to assign the job to Desrosiers. (ii) Discrimination based on a disability [32] Subsection 3(1) of the Act stipulates: For all purposes of this Act, the prohibited grounds of discrimination are [...] disability [...]. [33] We have already seen that section 7 states that it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual, or to differentiate adversely in relation to an employee, on a prohibited ground of discrimination, and that paragraph (a) of section 15, at the time in question, stipulated that it was not a discriminatory practice if any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment was established by an employer to be based on a bona fide occupational requirement. Section 25 of the Act defines disability as any previous or existing mental or physical disability. [34] Thus, a disability may be the result of a physical limitation, a perceived limitation, or a combination of the two. [See Quebec (C.D.P.D.J. v. Montréal (City), [2000] 1 S.C.R. 665, para. 79.] The Tribunal must therefore consider in its determination not only the complainant's medical condition, but also the circumstances in which a distinction is made. In other words, in the context of the impugned practice of an employer, the Tribunal must determine, inter alia, whether an actual or perceived ailment causes the complainant to experience the loss or limitation of opportunities to take part in the life of the community to the same extent as others. [See Quebec (C.D.P.D.J. v. Montréal (City), supra, para. 80.] [35] In most cases, the complainant will have the burden of proving (1) the existence of a distinction, exclusion or preference; (2) that the distinction, exclusion or preference is based on a ground enumerated in the Act; and (3) that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal exercise of human rights. [See Quebec (C.D.P.D.J. v. Montréal (City), supra, para. 84.] [36] It is important to recall that, at this stage, the complainant has the burden of establishing a prima facie case of discrimination, that is, one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in favour of the complainant, in the absence of an answer from the respondent. [37] In the case at bar, I am convinced that there is a prima facie case of a distinction based on an actual or perceived physical disability in the treatment of Desrosiers at the time of his candidacy for the position. I also believe that his health condition, in this case his back pain, may constitute a disability and thus be a prohibited ground of discrimination under the Act. [See Quebec (C.D.P.D.J. v. Montréal (City), supra, para. 82.] It is also clear that this distinction in the treatment of Desrosiers had the effect of depriving him of the opportunity to participate fully in the job competition. [38] Moreover, this conclusion is strongly supported by the facts. I refer, notably, to the Joint Admissions of Facts in which the parties have acknowledged that Desrosiers' candidacy was not accepted due to the fact that he is medically unfit to perform the requirements of this vacant position. I refer also to an e-mail from Jammes dated September 4, 1997, in which she states I have screened Mr. Desrosiers out of the competition process due to the fact that he is medically unable to perform the requirements of this vacant position. [39] A prima facie case of discrimination having been established, it is now incumbent on the respondent to demonstrate, on the balance of probabilities, that it is based on a bona fide occupational requirement. In order to determine whether the respondent has successfully met its burden of proof, I propose to follow the three-step approach proposed by the Supreme Court in Meiorin and Grismer. [40] In its oral argument, counsel for the respondent, to support her argument that the complainant has not established a prima facie case, relies on three decisions rendered before Meiorin and Grismer, to wit, Rivard v. Canada (Canadian Armed Forces), [1990] C.H.R.T. No 5; Canada (Canadian Armed Forces) v. Bouchard, [1991] C.H.R.T. No 14; and Boivin v. Canada (Canadian Armed Forces), [1994] C.H.R.T. No 2. With all due respect to the Tribunal members who heard them, I do not think that these cases are relevant, in view of the new approach proposed by the Supreme Court. [41] I must now continue my analysis and determine whether this discrimination established on a prima facie case is based on a bona fide occupational requirement. B. Is the discrimination based on a bona fide occupational requirement (BFOR)? (i) Was the standard adopted for a purpose rationally connected to the performance of the particular job? [42] The first step in assessing whether the employer has successfully established a BFOR defence is to identify the general purpose of the impugned standard and determine whether it is rationally connected to the performance of the job. It is therefore necessary to determine what the impugned standard is generally designed to achieve. The ability to work safely and efficiently is the purpose most often mentioned in the cases. [See Meiorin, supra, para. 57.] The employer must demonstrate that there is a rational connection between the general purpose for which the impugned standard was introduced and the objective requirements of the job. Where the general purpose of the standard is to ensure the safe and efficient performance of the job it will not be necessary to spend much time at this stage. [See Meiorin, supra, para. 58.] The focus at this first step is not on the validity of the particular standard that is at issue, but rather on the validity of its more general purpose. [43] The standard in the present case is found in a Treasury Board document entitled Staffing Information, which states: [Translation] Medical suitability, security and reliability are conditions of employment which must be administered according to Treasury Board policy. They must be met before appointment. [44] According to the Commission, the particular standard is not rationally connected to the process of screening candidates for jobs. I cannot agree with this conclusion. In my view, the only relevant issue at this stage is whether the general purpose of the standard is valid. This purpose is to allow the employer to identify employees or applicants who are unable to perform the job safely and efficiently. In the case at bar, the medical suitability and security conditions assure the purpose of safe performance of the job, while reliability addresses the purpose of efficiency. I conclude from this that there is an obvious rational connection between the standard and the performance of the job in question. (ii) Did the employer adopt the standard with an honest and good faith belief that it was necessary to the accomplishment of that legitimate work-related purpose, with no intention of discriminating against the complainant? [45] In Meiorin, Madam Justice McLachlin explains the second step of this approach as follows: Once the legitimacy of the employer's more general purpose is established, the employer must take the second step of demonstrating that it adopted the particular standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant. This addresses the subjective element of the test which, although not essential to a finding that the standard is not a BFOR, is one basis on which the standard may be struck down. If the imposition of the standard was not thought to be reasonably necessary or was motivated by discriminatory animus, then it cannot be a BFOR. [See Meiorin, supra, para. 60.] [46] Contrary to the Commission's argument, there is no indication in the case at bar that the employer did not act with an honest and good faith belief that the adoption of the particular standard was necessary in order to identify persons who would be unable to perform the job safely and efficiently. In adopting this standard, the respondent did not at all intend to discriminate against Desrosiers. (iii) Is the impugned standard reasonably necessary to accomplish the intended purpose? [47] In order to demonstrate that the standard was reasonably necessary to achieve the intended purpose, namely, to identify employees or candidates who would be unable to perform the work safely and efficiently, the Corporation must show that it was impossible to accommodate Desrosiers or other employees having similar characteristics without experiencing undue hardship. [48] The Supreme Court has this to say on the subject of undue hardship: When referring to the concept of undue hardship, it is important to recall the words of Sopinka J. who observed in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at p. 984, that [t]he use of the term 'undue' infers some hardship is acceptable; it is only 'undue' hardship that satisfies this test. It may be ideal from the employer's perspective to choose a standard that is uncompromisingly stringent. Yet the standard, if it is to be justified under the human rights legislation, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. [See Meiorin, supra, para. 62] [49] When the Act was amended in 1998, subsection 15(2) was added. According to this subsection, the factors the employer can consider to determine whether an accommodation would impose on it undue hardship are health, safety and cost. However, the events that gave rise to the present complaint occurred prior to the adoption of this amendment; as pointed out in Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2003 CHRT.2, my consideration of the accommodation issue must therefore be governed, not by the new subsection 15(2), but rather by the principles articulated by the Supreme Court of Canada in Alberta (Human Rights Commission) v. Central Dairy Pool, [1990] 2 S.C.R. 489, at pages 520 and 521: I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar -- financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case. [50] As we have already indicated, there are parameters for determining whether a defence based on undue hardship has been established. The use of the term undue obviously infers that some hardship is acceptable. In order to meet the standard, the hardship imposed must be undue. For it to be justified under the human rights legislation, the standard chosen by the employer must accommodate factors relating to the unique abilities and inherent worth and dignity of every individual, up to the point of undue hardship. [51] The respondent, in order to prove that the standard is reasonably necessary, has the burden of demonstrating that it incorporates every possible accommodation. It will have to establish that it considered and reasonably rejected all viable forms of accommodation and that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship. In some circumstances excessive cost may justify a refusal to accommodate those with disabilities. However, one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment. The respondent's case must be supported by convincing evidentiary elements. Impressionistic evidence will not generally suffice. [52] According to the Commission and the complainant, in order to determine whether in this case there was undue hardship the Tribunal must look to the approach proposed by Madam Justice McLachlin in Meiorin. In this decision she points out that apart from individual testing to determine whether the person has the aptitudes or qualifications necessary to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer's legitimate work-related purpose should be considered. [See Meiorin, supra, para. 64.] [53] Let us broach the issue of the individual appraisal of Desrosiers to determine whether he had the aptitudes or qualifications necessary to perform the work. At the hearing, Jammes testified that she had considered the physical requirements for the position and assessed them against Desrosiers' physical limitations as reported by Dr. Belzile of the Corporation's health services. Dr. Robert Belzile, relying on the conclusions of a report prepared some 15 months earlier by the Movement Analysis and Treatment Centre, concluded that Desrosiers could not lift objects heavier than 18 pounds, that he must change position every 20-30 minutes and that he could stand only for short periods of 5-6 minutes. Dr. Belzile was not called to testify. [54] After receiving this information, Jammes concluded that Desrosiers could not carry out the duties of the position of management analyst. She therefore screened out Desrosiers' candidacy. [55] The Corporation also presented in evidence the testimony of Rod Magliocco, who has held the position of management analyst since winning the competition in September 1997. Mr. Magliocco testified about the duties of the position. His testimony concerned the duties of the position as they existed in 1997 and as they have evolved since. The Corporation also produced in evidence the expert evidence of Jeff Pajot, an ergonomist and president of Pajot Ergonomics, who presented two reports. The first, entitled Analyse des exigences physiques. Gestion des données, analyste-programmeur-Gestion des systèmes d'ordinateurs (CS-3) [Analysis of physical requirements. Data management, programmer analyst, Computer systems management (CS-3)] was prepared December 17, 2002. In this report, Mr. Pajot stated that on December 12, 2002, he did an ergonomic analysis of the position of programmer analyst. He also stated that the data used in his analysis were taken from workplace observations and an interview with Mr. Rod Magliocco. The second report, entitled Évaluation du poste CS-3 à Postes Canada par rapport aux qualités personnelles de Martin Desrosiers [Evaluation of the CS-3 position at Canada Post in relation to the personal suitability of Martin Desrosiers] was prepared January 13, 2003. In this report, Mr. Pajot said he had analysed the position to see whether it was suitable for Desrosiers. The ergonomic analysis done in December 2002 was based on the conclusions found in the previous report. Mr. Pajot never met with Desrosiers. [56] I give little weight to Mr. Magliocco's testimony and Mr. Pajot's reports. When determining whether the Corporation discharged its obligation to accommodate Desrosiers, the relevant question is as follows: At the time it was decided not to assign the position to Desrosiers because of his disability, did the Corporation make proper inquiries to determine the nature of his disability, what was the prognosis, what accommodation was required? [Conte v. Rogers Cablesystem Ltd., [1999] C.H.R.T. No. 4, para. 81.] Mr. Magliocco basically testified about the current duties of the position, while Mr. Pajot's reports are an attempt, five years later, to justify a decision. The relevance of such evidence in the human rights context is questionable. I must consider the evidence as it existed in 1997, not five years later. Furthermore, it is rather my impression that this ergonomic study is intended to justify, after the fact, the respondent's decision to deny Desrosiers the position because of his disability. [57] Despite the weakness of the evidence presented at the hearing by the Corporation, I nevertheless find that in 1997, Desrosiers' physical ability to perform the duties of the position was limited. The back injury suffered by Desrosiers in August 1995 required major surgery. In February 1996, the Workplace Safety and Insurance Board of Ontario described Desrosiers' disability as permanent and said, among other things, that he was not to lift heavy objects. The only issue we must consider in this case is whether the respondent considered and reasonably rejected all viable forms of accommodation for Desrosiers, without causing itself undue hardship. [58] In the case at bar, the only evidence having to do with seeking an accommodation was that of Jammes. She acknowledged having briefly considered (a fleeting thought) the matter of an accommodation for Desrosiers in view of his disability. According to her, the only possible accommodation, given Desrosiers' restrictions, would have been to have another employee accompany him while he performed his duties, particularly when he was travelling. She testified that in 1997 there was only one other position classified as CS-02, and requiring the incumbent to accompany Desrosiers while he performed his duties would have opened the door to the filing of a grievance by that employee on the grounds that he was required to perform the duties of a CS-03, and so ought to be paid the hourly wage of a CS-03. Under the collective agreement, this would have entitled the CS-02 to a wage increase of about $9,000. Creating another CS-02 position to replace the employee who would now have to accompany Desrosiers would have forced the Corporation to incur additional wage costs of $44,530. She also believed that Desrosiers was currently accommodated in his AS-03 position and that she had therefore committed no breach. [59] In cross-examination, Jammes acknowledged that she had not taken any notes concerning possible accommodations for Desrosiers. She also admitted never having requested a financial analysis about the possibility of hiring another employee to assist Desrosiers. [60] In order to prove that the standard is reasonably necessary, the respondent, as I said earlier, has the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship. It is therefore incumbent upon the respondent to establish that it considered and reasonably rejected all viable forms of accommodation, which it obviously did not do in this case. Excessive cost may justify a refusal to accommodate people with disabilities, but according to Jammes, no financial analysis was done with respect to Desrosiers. [61] In her closing argument, counsel for the respondent referred to the ruling of the Divisional Court of Ontario in Ontario (Human Rights Commission) v. Roosma, [2002] O.J. No. 3688, notably paragraph 89 of this decision, in which the Court states: [...], I believe the Company's method of deliberation on the request for accommodation was sufficient. The circumstances constraining the Company were sufficiently apparent that detailed enquiry into the possibilities of accommodation was unnecessary. [62] I would point out, however, that in Roosma the employer made a real effort to offer an accommodation. In fact, the evidence shows that there were 8 to 10 meetings between the employer and the employees concerned to discuss accommodation. Different accommodation scenarios were considered, and in the end it was the employees who withdrew from these meetings. In the case at bar, there was never any real or serious consideration of a possible accommodation. [63] I therefore believe that the respondent has been unable to demonstrate in this case that there was undue hardship or that there was a bona fide occupational requirement. In support of this finding, we refer to the e-mail dated April 9, 2002, from Barry Butcher to Kevin Wilson, two employees of the Corporation, which we find in the admitted documentary evidence presented jointly by the complainant, the Commission and the respondent and which states, inter alia: The employee [Desrosiers] has raised a formal Human Rights complaint and in the event that the case goes to a Tribunal, I want to make sure that we have a good handle and documented paper trail regarding his ability to complete the physical demands of the job. It looks at this point that there may be some of the tasks associated with the job that he could perform with assistive devices, but still others that are questionable. [64] This is the kind of question the employer should have put to itself in 1997, not in 2002. [65] I am aware in the case at bar that Desrosiers' candidacy was rejected at the screening stage and that there is nothing to indicate he would have obtained the position had he made it past this stage, but since the parties have chosen to bifurcate the issues of merits and of remedy, at this time I need not pursue the analysis of this issue any further. VII. CONCLUSION [66] The parties have submitted the following issues to the Tribunal: a) Did the Corporation discriminate against Desrosiers in rejecting his candidacy for the position of management analyst based on his disability or perceived disability (back injury) or his family status, thereby contravening section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6? · · · The Corporation did discriminate against Desrosiers in rejecting his candidacy for the position of management analyst based on his disability or perceived disability (back injury), thereby contravening section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. The Corporation did not discriminate against Desrosiers based on his family status. · · · b) If the Tribunal answers the above question in the affirmative, has the Corporation demonstrated that the rejection of Desrosiers' candidacy was based on a bona fide occupational requirement within the meaning of the case law and/or the Canadian Human Rights Act, R.S.C. 1985, c. H-6? · · · The Corporation has not demonstrated that the rejection of Desrosiers' candidacy was based on a bona fide occupational requirement within the meaning of the case law and/or the Canadian Human Rights Act, R.S.C. 1985, c. H-6. VIII. RETENTION OF JURISDICTION [67] At the request of the parties, the Tribunal retains its jurisdiction to convene a second hearing to allow the parties to present evidence and arguments on the issue of remedy. [68] The Tribunal will contact the parties to set a date for the hearing of this matter. Michel Doucet OTTAWA, Ontario July 10, 2003 PARTIES OF RECORD TRIBUNAL FILE: T731/3602 STYLE OF CAUSE: Martin Desrosiers v. Canada Post Corporation PLACE OF HEARING: Ottawa, Ontario (March 4, 5 and 7, 2003) DECISION OF THE TRIBUNAL DATED: July 10, 2003 APPEARANCES: Martin Desrosiers For the Complainant Benoit M. Duchesne For the Canadian Human Rights Commission Michelle O'Bonsawin and Shirley Boucher For the Respondent (Canada Post Corporation)

2003 CHRT 27

CHRT

Montreuil v. National Bank of Canada

en

2003-07-11

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6798/index.do

2023-12-01

Montreuil v. National Bank of Canada Collection Canadian Human Rights Tribunal Date 2003-07-11 Neutral citation 2003 CHRT 27 File number(s) T795/4503 Decision-maker(s) Mactavish, Anne L. Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - NATIONAL BANK OF CANADA Respondent RULING REGARDING MOTION TO DISMISS COMPLAINT 2003 CHRT 27 2003/07/11 MEMBER: Anne Mactavish [1] Micheline Montreuil filed a human rights complaint against the National Bank of Canada, alleging that the Bank refused to hire her because of her sex, contrary to section 7 of the Canadian Human Rights Act. Ms. Montreuil states that she is a transsexual. [2] The Bank brought two preliminary motions in relation to Ms. Montreuil's complaint. The first motion sought to have Ms. Montreuil's complaint dismissed, on the basis that the Canadian Human Rights Tribunal lacked the requisite degree of institutional independence and impartiality, as a result of certain provisions in its enabling legislation. This motion has now been withdrawn, as a consequence of the recent decision of the Supreme Court of Canada in Bell Canada v. Canadian Telephone Employees Association(1) [3] The Bank's second motion seeks the summary dismissal of Ms. Montreuil's complaint. The body of Ms. Montreuil's complaint elaborates on her assertion that she is a transsexual: Ms. Montreuil states that she dresses as a woman, and is currently in a period of transition in order to become female.(2) The Bank contends that in the course of a proceeding before the Quebec Court of Appeal(3), Ms. Montreuil acknowledged that she had no intention of proceeding with sex reassignment surgery. As a consequence, the Bank says that Ms. Montreuil, by her own admission, is not a transsexual person in a period of transition in order to become female. As a result, her complaint should be summarily dismissed. [4] Ms. Montreuil submits that she has always maintained that she is transgendered (une transgenre), that is a person in transition between the male sex and the female sex. According to Ms. Montreuil, some people describe transgendered people as being like pre-operative transsexuals. Others would describe the transgendered as being full-time transvestites. Still others view the transgendered as part-male, part-female or she-males. Whatever terminology is used, Ms. Montreuil says, it is evident that a transgendered person is a person in an evolutionary stage, who could one day become a transsexual. Ms. Montreuil submits that where she is in this evolutionary process should be of no concern to the Bank. This is a personal issue, Ms. Montreuil says, and the position taken by the Bank constitutes an intolerable intrusion into Ms. Montreuil's private life. [5] Ms. Montreuil asks that the Tribunal dismiss the Bank's motion, with costs. [6] The fundamental question for the Tribunal on this motion is whether Ms. Montreuil's complaint involves a proscribed ground of discrimination under the Canadian Human Rights Act. If the complaint does not engage one of these proscribed grounds, then no breach of the Act can be established, and the complaint should be dismissed. [7] Ms. Montreuil describes herself in her complaint as a transsexual. There is a significant body of human rights jurisprudence that has found that discrimination on the basis of transsexualism constitutes sex discrimination.(4) [8] As a result, I am satisfied that on its face, Ms. Montreuil's complaint appears to come within the four corners of the Canadian Human Rights Act, and should proceed to a hearing, in order to determine whether Ms. Montreuil's allegations can be proven. [9] What the Bank appears to take issue with is the assertion in Ms. Montreuil's complaint that she is a transsexual person in a period of transition in order to become female. If the Bank is of the view that Ms. Montreuil has been inconsistent in her description of her condition, this is something that it may wish to explore in cross-examination. [10] It seems to me that ultimately, the question of whether an individual who describes herself as a transsexual, but has no intention of undergoing sex reassignment surgery, is indeed a transsexual, is a question that requires an evidentiary foundation to answer. As such, the issue should be dealt with in the context of the hearing itself, rather than on a preliminary basis. [11] Accordingly, the Bank's motion is dismissed, without prejudice to the Bank's right to pursue this argument at the hearing into the merits of Ms. Montreuil's complaint. [12] Insofar as Ms. Montreuil's request for costs is concerned, I agree with the Bank's submission that there is no authority in the Canadian Human Rights Act which would permit the Tribunal to grant a party her costs in relation to a preliminary motion. Section 53 (2) (c) of the Act empowers the Tribunal to compensate a successful complainant for any expenses incurred by the victim as a result of the discriminatory practice. This section has been interpreted to include the awarding of costs.(5) However, the remedial jurisdiction of the Tribunal under section 53 of the Act is only engaged after there has been a finding that a respondent has committed a discriminatory practice. There has been no such finding in this case. I. ORDER [13] For these reasons, the Bank's motion is dismissed, without costs. Original signed by Anne L. Mactavish OTTAWA, Ontario July 11, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T795/4503 STYLE OF CAUSE: Micheline Montreuil v. National Bank of Canada RULING OF THE TRIBUNAL DATED: July 11, 2003 APPEARANCES: Micheline Montreuil On her own behalf André Giroux For the Respondent (National Bank of Canada) 1. 1 2003 SCC 36 2. 2 In the original French, Ms. Montreuil's complaint reads: [Je] suis actuellement en période de transition pour devenir une femme. 3. 3 Montreuil v. Directeur de l'état civil, [2002] R.J.Q. 2911 4. 4 See, for example, Kavanagh v. Correctional Service of Canada, (2001) 41 C.H.R.R. D/119 (C.H.R.T.), Sheridan v. Sanctuary Investments Ltd. (c.o.b. B.J.'s Lounge), (1999) C.H.R.R. D/467 (B.C.H.R.T), M.L. and Commission des droits de la personne et des droits de la jeunesse du Québec c. Maison des jeunes, [1998] J.T.D.P.Q. No. 31 (Qué. H.R.T.), Ferris v. Office and Technical Employees Union, Local 15, [1999] B.C.H.R.T. No. 55, and Mamela v. Vancouver Lesbian Connection, (1999) 36 C.H.R.R. D/318 (B.C.H.R.T.). 5. 5 See, for example, Canada (Attorney General) v. Stevenson, 2003 FCT 341

2003 CHRT 28

CHRT

Plante v. Canada (Royal Canadian Mounted Police)

en

2003-07-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6802/index.do

2023-12-01

Plante v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2003-07-25 Neutral citation 2003 CHRT 28 File number(s) T797/4703 Decision-maker(s) Mactavish, Anne L. Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: DANIELLE PLANTE Complainant - and - ROYAL CANADIAN MOUNTED POLICE Respondent RULING ON REQUESTS TO AMEND THE STYLE OF CAUSE 2003 CHRT 28 2003/07/25 MEMBER: Anne L. Mactavish [1] The pre-hearing questionnaires completed by the parties identified three preliminary issues in this case. [2] Firstly, the complainant asked that the style of cause in this proceeding be amended to change her name from her married name of Danielle Plante to her maiden name, that is, Danielle Côté. The respondent does not object to this amendment. Accordingly, the style of cause shall be amended to reflect the name currently used by the complainant. [3] In its questionnaire, the respondent raised, as a preliminary issue, the jurisdiction of the Tribunal to deal with this case, in light of a settlement agreement evidently entered into by the parties in February of 1999. In its written submissions, the respondent asked that this issue be dealt with at the hearing. I agree that this issue is better dealt with in the context of a hearing, and defer the issue to be dealt with at that time. [4] The final issue relates to the identity of the respondent. The complaint form signed by the complainant identifies her former employer, the Royal Canadian Mounted Police, as the respondent. The respondent submits that the RCMP is not a legal person, and thus cannot be subject to a human rights complaint. Rather, the respondent says, proceedings against the RCMP should be brought against the Attorney General of Canada (representing the Royal Canadian Mounted Police). [5] The complainant points out that she was employed by the RCMP, and that the conduct complained of in her complaint was allegedly carried out by members of the Force. The complainant points to various RCMP policies dealing with workplace harassment, submitting that if the RCMP recognizes its obligations to provide a harassment-free workplace, and fails to live up to its obligations, it leaves itself open to claims such as hers. The complainant further alleges that the RCMP has claimed that the Force itself has been injured by her actions. The complainant also points to a number of previous decisions of this Tribunal in cases where the RCMP, and other government departments, were named as respondents. [6] The complainant disputes the respondent's submission that she will not suffer any prejudice if the style of cause is changed to reflect the Attorney General of Canada as the respondent. As I understand the complainant's submissions, she is of the view that the RCMP, concerned about how the facts of her case will reflect on the image of the force, is endeavoring to hide behind the Attorney General of Canada. [7] The issue raised by the respondent relates to the legal technicalities of litigation involving the federal government. While I understand how the respondent's request may appear to the complainant, I do not believe that the RCMP is endeavoring to hide behind the Attorney General of Canada. Rather, the force is asking that the strict requirements of the law be observed. This has not always happened in previous cases before this Tribunal involving the RCMP. Thus, as the complainant has pointed out, there are a number of Tribunal decisions involving the RCMP as a named respondent. Nevertheless, a review of the jurisprudence cited by the respondent, as well as the relevant provisions of the Crown Liability Act, discloses that the respondent is correct, and that the complainant's case should properly be asserted against the Attorney General of Canada (representing the Royal Canadian Mounted Police). [8] I do not accept the complainant's submission that she will be prejudiced if such an amendment is made. The change to the style of cause should not result in any delay in the prosecution of the complainant's case, nor will it affect her ability to execute on any award of damages, should her complaint ultimately prove successful. [9] For these reasons, both amendment requests are granted. The name of the complainant shall be changed from Danielle Plante to Danielle Côté. The name of the respondent will be changed to the Attorney General of Canada (representing the Royal Canadian Mounted Police). Original signed by Anne L. Mactavish OTTAWA, Ontario July 25, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE NO.: T797/4703 STYLE OF CAUSE: Danielle Plante v. Royal Canadian Mounted Police RULING OF THE TRIBUNAL DATED: July 25, 2003 APPEARANCES: Danielle Côté On her own behalf Alain Préfontaine and Catherine Lawrence For the Respondent

2003 CHRT 29

CHRT

Dumont v. Transport Jeannot Gagnon

en

2003-07-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6631/index.do

2023-12-01

Dumont v. Transport Jeannot Gagnon Collection Canadian Human Rights Tribunal Date 2003-07-30 Neutral citation 2003 CHRT 29 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: GINO DUMONT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TRANSPORT JEANNOT GAGNON Respondent DECISION ON REMEDY 2003 CHRT 29 2003/07/30 MEMBER: Athanasios D. Hadjis [1] This decision relates to a matter that the Trial Division of the Federal Court referred back to the Canadian Human Rights Tribunal for rehearing. I. History of the Case [2] On March 20, 1998, the Complainant filed a complaint with the Canadian Human Rights Commission (Commission) alleging that the Respondent had discriminated against him by refusing to continue to employ him because of a disability, namely, a pneumothorax of the left lung. [3] The Commission referred the complaint to the Canadian Human Rights Tribunal for inquiry and a hearing was conducted in October 2001. [4] On February 1, 2002, the Tribunal released its decision (the Tribunal Decision) allowing the complaint (Dumont v. Transport Jeannot Gagnon Inc., [2002] C.H.R.D. No. 2 (C.H.R.T.) (QL)). The Tribunal ordered the Respondent to compensate the Complainant for his lost wages. The Tribunal did not, however, make an order for special compensation, pursuant to s. 53(3) of the Canadian Human Rights Act (Act), as it read prior to the Bill S-5 amendments of 1998. The Tribunal concluded that the Complainant's testimony did not show that he suffered moral damages giving entitlement to compensation in this regard. Interestingly, a review of the case transcript reveals that the Commission did not make any significant argument before the Tribunal in favour of the proposition that special compensation should be awarded, other than a basic assertion that the evidence and the conduct of the Respondent enable (permettent) the Tribunal to make such an order. [5] The Commission applied to the Federal Court for judicial review of the Tribunal Decision. The application dealt strictly with the refusal by the Tribunal to award any compensation under s. 53(3) of the Act. [6] On December 9, 2002, Madame Justice Tremblay-Lamer's judgment on the application for judicial review was released (Canadian Human Rights Commission v. Dumont, 2002 FCT 1280). The Court recognized that the Act gives the Tribunal discretion in granting remedies. However, the Court also held that the Tribunal's refusal to consider compensation without providing a justification, despite uncontradicted evidence that the Complainant had suffered in respect of his feelings or self-respect, was an unreasonable exercise of that discretion. The Court, therefore, referred the matter back to the Tribunal for rehearing before a panel composed of different members. Accordingly, I was assigned by the Tribunal Chairperson to conduct the rehearing. [7] The Commission did not lead new evidence. It did, however, make submissions in writing, based on the existing record of the case, and in particular, excerpts from the transcripts of the Complainant's testimony. The Respondent informed the Tribunal Registry by letter that it had no submissions or comments to make regarding the matter other than to simply state that the Complainant did not suffer in respect of his feelings or self-respect (dommages moraux). II. Legal Framework and Analysis [8] The facts giving rise to the complaint all occurred prior to the amendments to the Act that took effect on June 30, 1998. Under the older version of the Act, s. 53(3) provided the following: Special compensation (3) In addition to any order that the Tribunal may make pursuant to subsection (2), if the Tribunal finds that (a) a person is engaging or has engaged in a discriminatory practice wilfully or recklessly, or (b) the victim of the discriminatory practice has suffered in respect of feelings or self-respect as a result of the practice, the Tribunal may order the person to pay such compensation to the victim, not exceeding five thousand dollars, as the Tribunal may determine. (3) Outre les pouvoirs que lui confère le paragraphe (2), le tribunal peut ordonner à l'auteur d'un acte discriminatoire de payer à la victime une indemnité maximale de cinq mille dollars, s'il en vient à la conclusion, selon le cas: a) que l'acte a été délibéré ou inconsidéré; b) que la victime en a souffert un préjudice moral. Indemnité spéciale It has been held that the $5,000 maximum award must be reserved for the very worst cases that fall within the range of cases in which such awards are warranted. (Premakumar v. Air Canada (2002), 42 C.H.R.R. D/63 at para. 107 (C.H.R.T.); Desormeaux v. Ottawa Carleton Regional Transit Commission, 2003 CHRT 2 at para.128). [9] The Commission argues that as a general rule, human rights tribunals will order such special compensation whenever a complaint has been substantiated. It is only in exceptional circumstances that such compensation is denied. While it certainly may be that orders for special compensation have been granted in most of the cases where there has been a finding of discrimination, I am not persuaded that as a rule, such orders should necessarily be made. One must always examine the circumstances of each case and determine whether the criteria set out in the Act have been satisfied. [10] In the present case, the Complainant was hired by the Respondent to work for an indeterminate period as a semi-trailer truck operator assigned mainly to long-distance haulage. After suffering a perforation of his left lung (pneumothorax) while delivering a shipment in Ohio, he underwent treatment that prevented him from returning to work for about a month. The Respondent, however, informed the Complainant that he would not be permitted to return to his job at the end of this period. According to the Tribunal Decision, the Respondent refused to continue to employ the Complainant because it feared a recurrence of his illness. The Respondent was therefore found to have discriminated against the Complainant on the basis of his disability. [11] As a result of the dismissal, the Complainant was forced to seek out and gain other employment. By May 1998, when he decided to give up his career as a long-distance truck operator, the Complainant had worked for at least three different employers, and he was occasionally unemployed between jobs. He testified that as a result of being dismissed, he began questioning his self-worth and wondering what other misfortune the future would hold for him. [12] The Complainant suffered some loss of income as well, in the amount of $1,700. Although the Respondent was later ordered by the Tribunal to compensate the Complainant for this loss, the shortfall, at the time it occurred, had affected his financial well-being, especially when taking into account his fairly modest income. The loss may have even contributed to his eventual bankruptcy, although I note that the evidence is insufficient to satisfactorily support a conclusion in this regard. [13] Overall, the Complainant is upset that he had to endure this inconvenience and grief needlessly, or in his words, for nothing. [14] Taking into consideration all of the relevant circumstances of this case, I order the Respondent to pay to the Complainant the sum of $2,500 in special compensation, pursuant to s. 53(3) of the older version of the Act. Interest shall be payable in accordance with the terms of the Tribunal Decision, however, in no case shall the interest be allowed to exceed the maximum allowable sum of $5000 (Canada (Attorney General) v. Hebert (1995), C.H.R.R. D/375 at para. 23 (F.C.T.D.).). « Original signed by » Athanasios D. Hadjis OTTAWA, Ontario July 30, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE NO.: T639/2701 STYLE OF CAUSE: Gino Dumont v. Transport Jeannot Gagnon RULING OF THE TRIBUNAL DATED: July 30, 2003 APPEARANCES: Gino Dumont On his own behalf Giacomo Vigna For the Canadian Human Rights Commission Jeannot Gagnon For Transport Jeannot Gagnon

2003 CHRT 3

CHRT

Day v. Canada (National Defence)

en

2003-01-28

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6864/index.do

2023-12-01

Day v. Canada (National Defence) Collection Canadian Human Rights Tribunal Date 2003-01-28 Neutral citation 2003 CHRT 3 File number(s) T627/1501, T628/1601 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: AMANDA DAY Complainant - and - DEPARTMENT OF NATIONAL DEFENCE AND MICHAEL HORTIE Respondents RULING ON THE DISCLOSURE OF THE POLICE FILE 2003 CHRT 3 2003/01/28 MEMBER: Dr. Paul Groarke [1] I have reviewed the material provided to the Tribunal and excised some of the information on the medical files. I am more concerned, however, about the material in the file from the Saanich police department, which concerns allegations of sexual assault. Some of this material is of a private nature. [2] I have nevertheless found it impossible to separate the allegations of sexual assault from the broader allegation of harassment. As a matter of natural justice, I accordingly believe that the Respondent is entitled to review the police file in preparing its defence. [3] This still leaves a question of disclosure. Aside from any ancillary powers that the Tribunal may enjoy, section 52(1) of the Canadian Human Rights Act gives the Tribunal the authority to take any measures and make any order that it considers necessary to ensure the confidentiality of the inquiry. The section refers to the inquiry rather than the hearing, and in my view includes the disclosure of documents under the Tribunal's rules. [4] I am satisfied that the public disclosure of the more sensitive material could cause undue hardship to the Complainant under section 52(1)(c). I am accordingly ordering the release of the file, on the condition that its confidentiality is maintained. The material on the file is not to be shared with anyone outside the employment of counsel, other than medical or psychological witnesses. The same direction applies to the medical information. I wish to make it clear that I consider any contravention of this direction a breach of my order. [5] I should add that the release of documents for the purposes of disclosure does not mean that they are admissible or even relevant to the hearing. If counsel feels that it is necessary to raise these matters during the course of taking evidence, the matter can be revisited at that time. Original signed by Dr. Paul Groarke OTTAWA, Ontario January 28, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NOS.: T627/1501 and T628/1601 STYLE OF CAUSE: Amanda Day v. Department of National Defence and Michael Hortie RULING OF THE TRIBUNAL DATED: January 28, 2003 APPEARANCES: Amanda Day On her own behalf Joyce Thayer For Department of National Defence J. David Houston For Michael Hortie

2003 CHRT 30

CHRT

Milano v. Triple K Transport Ltd.

en

2003-09-12

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6553/index.do

2023-12-01

Milano v. Triple K Transport Ltd. Collection Canadian Human Rights Tribunal Date 2003-09-12 Neutral citation 2003 CHRT 30 File number(s) T732/3702 Decision-maker(s) Mactavish, Anne L. Decision type Decision Decision status Final Grounds Disability Decision Content Between: Victor Milano Complainant - and - Canadian Human Rights Commission Commission - and - Triple K Transport Ltd. Respondent Decision Member: Anne Mactavish Date: September 12, 2003 Citation: 2003 CHRT 30 Table of Contents I. Mr. Milano’s Employment with Triple K II. Triple K’s Explanation III. The Law IV. Analysis A. Is there a prima facie case of discrimination? B. Is Triple K’s Explanation Reasonable or Pretextual? V. Remedy A. Systemic Remedy B. Lost Wages C. Gross Up D. Out of Pocket Expenses E. Pain and Suffering F. Special Compensation G. Interest H. Retention of Jurisdiction VI. Order [1] Victor Milano is an epileptic. Three months after he had a seizure while at work, Mr. Milano lost his job as a Service Technician with Triple K Transport Ltd. The issue in this case is whether there was a relationship between these two events. I. Mr. Milano’s Employment with Triple K [2] Mr. Milano is a licenced mechanic, with provincial certification entitling him to repair automobiles, heavy duty equipment, motor coaches and trucks. In addition to holding these licences, Mr. Milano has taken training courses in mechanics offered by companies such as John Deere and General Motors. Mr. Milano’s experience with the mechanics trade goes back to the 1960's. His more recent experience includes 12 years running his own forklift company in Florida, where he supervised and performed repairs, including electrical repairs, on industrial lift trucks. He then went to work at John Deere as a Service Foreman. At John Deere, Mr. Milano supervised between 10-20 mechanics performing repairs on trucks and other heavy equipment. Mr. Milano next worked for Adams Industrial Equipment, where he repaired trucks, trailers, off- road vehicles and forklifts. [3] In April of 1995, Mr. Milano set up his own automotive repair shop. From April of 1995 to July of 1999, Mr. Milano worked with his son-in-law, repairing cars and trucks, and doing Ontario vehicle safety checks. After his son-in-law left the business, Mr. Milano went to work for Abbotsford Trucking as a mechanic. Mr. Milano was diagnosed with epilepsy in 1999, although it appears from his medical records that he first started having problems with seizures as early as 1996. Mr. Milano testified that although his epilepsy is now controlled by medication, in 1999, he was having regular seizures. These seizures interfered with Mr. Milano’s ability to do his job, and caused him to lose his driver’s licence. Because of his medical problems, Mr. Milano left his employment at Abbotsford Trucking. [4] Following his departure from Abbotsford Trucking, Mr. Milano worked with his doctor to get his epilepsy under control, and to get his driver’s licence back. Once he regained his licence, Mr. Milano began looking for new employment. One of Mr. Milano’s acquaintances was an individual by the name of Don Greenough. Mr. Greenough worked at Triple K Transport Ltd., in Stittsville, Ontario. Triple K is a heavy commodities hauler, primarily involved in hauling steel and steel products for steel producers. Mr. Greenough told Mr. Milano that Triple K was looking for mechanics. Mr. Milano met with Dave Croft, Triple K’s Director of Maintenance. During the course of his interview with Mr. Croft, Mr. Milano says that Mr. Croft asked him if he had any health problems, a question that Mr. Milano found strange. Because he thought that his epilepsy was under control, Mr. Milano answered Mr. Croft in the negative. [5] Mr. Milano was offered a job at Triple K as a Service Technician, or mechanic, and started work on October 23, 2000. Mr. Milano worked on the afternoon shift, from 2:30 p.m. to 11 p.m., under the supervision of Del Higginson. Mr. Milano was hired pursuant to a written employment contract. This contract described Mr. Milano’s duties as ... general shop duties - responsible for the maintenance of the fleet of vehicles operated by Triple K Transport Ltd.. Amongst other terms, the contract provided for a ...starting hourly rate of $18.50 / hour with a review after 3 months. [6] Mr. Milano testified that he loved working at Triple K - his co-workers were great, and he liked the work. He stated that he was not eased into his position, but immediately went right to work, performing a full range of duties repairing Triple K’s trucks and trailers. [7] On November 10, 2000, Mr. Milano had a seizure at work. Mr. Milano does not remember what happened. However, Don Greenough, who was working beside Mr. Milano at the time, testified that Mr. Milano suddenly fell to the floor. Mr. Greenough called to his colleagues for assistance, and an ambulance was called. Mr. Milano recalls regaining consciousness in an ambulance en route to the Queensway-Carleton Hospital. He stayed at the hospital for a few hours, prior to being discharged with a referral to see a neurologist. Mr. Milano then went to see Dr. Hyman Rabinovitch, who had treated him previously. On November 11, 2000, Dr. Rabinovitch certified that Mr. Milano was ready to return to work, with the restriction that he could not operate a motor vehicle, as Mr. Milano’s driver’s licence had been suspended once again, because of his having had a seizure. [8] Mr. Milano returned to work at Triple K. He testified that he was feeling great, and that his medication appeared to be controlling the seizures. According to Mr. Milano, the fact that he was unable to drive the trucks in the repair area did not present a significant problem, as other employees would simply do it for him. While Mr. Milano did not encounter any difficulties with his co-workers after his return to work, he testified that he felt that Dave Croft was treating him differently. Mr. Croft seemed very concerned about Mr. Milano’s situation, and asked a lot of questions about his medications. More troubling to Mr. Milano was the fact that Mr. Croft seemed to talk down to him, as if he were mentally defective. Mr. Milano felt very demeaned by Mr. Croft’s behavior, and complained to Mr. Higginson about it. He also mentioned his concerns to some of his co-workers. Mr. Milano says that they assured him that this was just the way that Dave is. [9] From mid-November, 2000 until February of 2001, Mr. Milano continued work at Triple K, without incident. According to Mr. Milano, it was very busy in the repair shop, and there was always a lot to do. There was no indication that the company was in any financial difficulty, or that lay-offs or terminations were in the offing. As a result, he was stunned when, on February 5, 2001, he was told by Mr. Croft that he was being let go. According to Mr. Milano, Mr. Croft gave him a long speech about the state of the steel business, concluding by saying that Triple K was terminating Mr.Milano’s employment. Mr. Croft explained that as Mr. Milano was the last mechanic to have been hired, he would be the first one to go. [10] Mr. Croft and Mr. Milano agreed that Mr. Milano’s last day of work would be February 23, 2001. Although he found it humiliating to have to keep coming to work after he had been fired, Mr. Milano says that he swallowed [his] pride, and conducted himself in a professional manner. [11] Shortly after the termination meeting, Mr. Croft provided Mr. Milano with a letter of reference, attesting to the good quality of his workmanship, his willingness to perform any task asked of him, and his positive attitude. [12] Mr. Milano testified that he was shattered by being fired. He couldn’t figure out why his employment was being terminated. Although Mr. Croft claimed that there was a downturn in the steel business, there seemed to be a lot of work to do in the shop at Triple K, and the company was advertising to hire more drivers. As a result, Mr. Milano concluded that negative business conditions were being put forward as an excuse. [13] Mr. Milano asked himself whether he had said or done something to cause the loss of his job. Eventually, Mr. Milano came to the conclusion that the only reasonable explanation for the termination of his employment by Triple K was the fact that he had a disability. Mr. Milano explained that after three months of employment with Triple K, he would have been entitled to coverage under the company’s health care insurance plan. In Mr. Milano’s view, Triple K did not want to have to provide him with benefits because of his health condition. [14] Mr. Milano’s suspicions as to the real reason for his termination were heightened when, immediately after he left the company on February 23, Luke Cavanagh started working as a mechanic at Triple K. [15] The Record of Employment issued to Mr. Milano on February 23, 2001, indicated that the reason for the termination of his employment was dismissal rather than shortage of work. II. Triple K’s Explanation [16] Evidence with respect to Triple K’s explanation was provided by Keith Sabiston, Dave Croft and Luke Cavanagh. Keith Sabiston is the founder, a shareholder in and the Chief Executive Officer of Triple K. Mr. Croft reports to Mr. Sabiston. [17] According to Mr. Sabiston, Triple K was satisfied with Mr. Milano’s performance on the job. The fact that Mr. Milano suffered from epilepsy, and had a seizure at work, played no part in the decision to terminate his employment with Triple K. Rather, the company was required to let Mr. Milano go because of a downturn in the business. [18] Mr. Sabiston testified that the vast majority of Triple K’s business involves the transport of commodities related to the steel industry, with the company servicing steel manufacturers in Québec, Ontario and Michigan. As a consequence, Triple K’s operations are highly sensitive to the performance of the North American steel industry. [19] In the winter of 2000-2001, the steel industry was not performing at all well. By the end of 2000, nine American steel manufacturers had sought bankruptcy protection. In Canada, Algoma Steel, one of Triple K’s major clients, had its rating downgraded. By April of 2001, Algoma was insolvent, and was forced to seek court protection from its creditors. Triple K was owed in excess of $230,000 by Algoma at the time it filed for court protection, and was an unsecured creditor in the Companies’ Creditors Arrangement Act proceedings. [20] Escalating fuel costs led to an increase in Triple K’s cost of doing business. Because these increased costs could often not be passed on to the company’s customers, the increased fuel costs served to reduce Triple K’s profit margins. [21] An additional pressure on Triple K’s financial position was the exposure that the company faced as a consequence of an accident involving one of its tractors. Evidently, the tractor had knocked over a power line in a customer’s yard. Because of the cost of insurance, the company elected to self-insure with respect to the accident, and had set up a reserve of $150,000 to cover the contingent liability. [22] In November of 2000, Triple K’s sales were 25% lower than they had been for the same period in the previous year. At the same time, the company’s labour costs were increasing. [23] The combined effect of these events was that in late 2000 and early 2001, Triple K was in the worst period of decline that Mr. Sabiston had seen in 23 years of business, and was in serious trouble. Mr. Sabiston testified that he was required to mortgage his home in order to raise working capital for the company. Mr. Sabiston also renegotiated and increased the company’s bank debt. [24] Triple K began looking at ways to contain costs. Inventories were reduced, and overtime was eliminated. Four office staff had been let go in 1999, and approximately a dozen drivers left the company in 2000. Attention then turned to the maintenance area. Some maintenance work was contracted out to other companies. In consultation with Dave Croft, Mr. Sabiston also made the decision to terminate Mr. Milano’s employment, and to enter into a contractual relationship with Luke Cavanagh. Mr. Sabiston says that Mr. Milano was chosen for termination because he was the last mechanic to have been hired. [25] Mr. Sabiston explained that Luke Cavanagh had worked for Triple K between November of 1999 and August of 2000. Mr. Cavanagh had expressed an interest in coming back to work at the company. Mr. Cavanagh was not retained to perform routine maintenance work, but was brought in to service and refurbish approximately 20 of Triple K’s trailers, including some of the company’s oldest trailers, that were not currently in active use.[1] According to Triple K’s witnesses, Mr.Cavanagh was required to assess each trailer, to prepare a list of the work that had to be done, and to complete the necessary repairs, so that the trailers could be sold, or could be ready to go, if business picked up. [26] Because of the weight of the loads that Triple K trucks must haul, the flatbed trailers that the company uses are somewhat specialized in nature, having up to ten axles, in order to support the weight of the load. Dave Croft testified that even experienced, certified mechanics require up to a year of training and experience at the company, in order to be able to service Triple K’s specialized equipment. According to Mr. Sabiston and Mr. Croft, Luke Cavanagh had the necessary experience to refurbish this type of trailer with minimal supervision. [27] Mr. Sabiston explained that Mr. Cavanagh was not hired pursuant to a contract of employment, but rather was engaged as an independent contractor, pursuant to an oral contract, to perform piecework. He reported to Dave Croft, and was paid at a rate of $22.00 per hour, which amount was not subject to source deductions. Mr. Cavanagh was not entitled to any employment benefits or overtime pay, and the contract could be terminated by either party, on two weeks’ notice. Mr. Cavanagh worked between 50 and 60 hours per week at Triple K until he left the company in November of 2001. He has since been rehired by Triple K as an employee, and now works in a managerial capacity, supervising the night shift [28] Contracting out the work proved to be an efficient method of handling vehicle maintenance, according to Mr. Sabiston. More than half of Triple K’s maintenance work is now contracted out. [29] Although there continued to be a lot of work for the maintenance staff to do at Triple K, continuing poor business conditions ultimately forced the company to lay off five out of eleven maintenance personnel. In early December, 2001, Don Greenough and Ted Letts, and three other individuals were laid off. Mr. Sabiston says that one employee was recalled, but was unavailable for work, whereas Mr. Croft seems to say that no one was recalled. It is common ground that by March of 2002, the employment of all five employees was terminated. [30] Mr. Sabiston testified that Triple K has willingly accommodated disabled employees. He described cases where drivers with substance abuse problems were provided with rehabilitation services, as well as situations where maintenance workers with hand or wrist injuries were provided with modified duties. Mr. Croft testified that Mr. Milano’s driving restrictions did not present the company with any difficulty, as other mechanics were able to drive the trucks when required. Mr. Croft also denied treating Mr. Milano any differently after he returned to work after having had his seizure. III. The Law [31] Mr. Milano’s complaint is brought pursuant to section 7 of the Canadian Human Rights Act. Section 7 makes it a discriminatory practice to refuse to continue to employ an individual because of a prohibited ground of discrimination. Section 3 of the Act designates disability as a prohibited around of discrimination. [32] In a case of this nature, the burden of proof is on Mr. Milano to establish a prima facie case of discrimination. Once that is done, the burden shifts to Triple K to provide a reasonable explanation for the conduct in issue.[2] [33] A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in Mr. Milano's favour in the absence of an answer from Triple K.[3] [34] In the employment context, a prima facie case has been described as requiring proof of the following elements: that the complainant was qualified for the particular employment; that the complainant was not hired [or, as in this case, was terminated], and that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint (ie: race, colour etc.) subsequently obtained the position.[4] [35] While the Shakes test serves as a useful guide, the test should not be automatically applied in a rigid or arbitrary fashion in every employment case: rather the circumstances of each case should be considered to determine if the application of the test, in whole or in part, is appropriate. Ultimately, the question will be whether Mr. Milano has satisfied the O’Malley test, that is: if believed, is the evidence before me complete and sufficient to justify a verdict in Mr. Milano’s favour, in the absence of an answer from the respondent?[5] [36] If Triple K does provide a reasonable explanation for otherwise discriminatory behaviour, Mr. Milano then has the burden of demonstrating that the explanation was pretextual, and that the true motivation behind Triple K's actions was, in fact, discriminatory.[6] [37] The jurisprudence recognizes the difficulty in proving allegations of discrimination by way of direct evidence. As was noted in Basi: Discrimination is not a practice which one would expect to see displayed overtly, in fact, there are rarely cases where one can show by direct evidence that discrimination is purposely practiced. (at p. D/5038). [38] Rather, it is the task of the Tribunal to consider all of the circumstances to determine if there exists what was described in the Basi case as the subtle scent of discrimination. [39] The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. In cases of circumstantial evidence, the test may be formulated as follows: An inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences of hypotheses.[7] [40] It is not necessary that discriminatory considerations be the sole reason for the actions in issue for a complaint to succeed. It is sufficient if Mr. Milano’s disability was a factor in Triple K’s decision to terminate Mr. Milano’s employment.[8] IV. Analysis A. Is there a prima facie case of discrimination? [41] In this case, Mr. Milano was hired by Triple K, and it is common ground that Mr Milano was an experienced and competent mechanic, and that no concerns arose with respect to his performance during the period that he worked at the company. Mr. Milano suffered a seizure while at work. Triple K concedes that Mr. Milano’s epilepsy constitutes a disability. A few weeks later, Mr. Milano’s employment with Triple K was terminated. Immediately thereafter, Luke Cavanagh began working at Triple K, performing mechanic’s duties. [42] Triple K contends that Mr. Milano and the Commission have failed to establish a prima facie case, as the position that Luke Cavanagh was hired to fill was not the position occupied by Mr. Milano. Mr. Milano was hired to perform ongoing or preventative maintenance. That position was not filled after Mr. Milano’s employment was terminated. Luke Cavanagh was retained to perform a different job - that is, the refurbishment of the Triple K trailers. As a consequence, Triple K says, the the third element of the Shakes test has not been made out, and the complaint should be dismissed. [43] As will be explained in greater detail further on in this decision, I am not persuaded that Luke Cavanagh worked primarily on the refurbishment of trailers. It is clear from the time records entered into evidence at the hearing that Mr. Cavanagh did work on Triple K trailers. Like other Triple K Service Technicians, however, Mr. Cavanagh also did a lot of work on tractors. I am also not satisfied that the task of refurbishing trailers is one that is sufficiently different from the tasks performed by Triple K Service Technicians that it should be considered to be a different position, within the meaning of the Shakes test. [44] In 2000, Mr. Milano had over thirty years of experience in automobile and truck mechanics, and as well, had provincial certification entitling him to repair automobiles, heavy duty equipment, motor coaches and trucks. In contrast, Luke Cavanagh finished technical high school in 1991, and had, at most, twelve years of experience as a mechanic, including several years of part-time work while he was attending high school. Mr. Cavanagh had his provincial licence to repair automobiles, motor coaches and trucks, but did not have his heavy duty equipment licence. Both individuals had experience working on trucks and trailers at Triple K, and both were viewed as competent employees. For reasons that will be discussed more fully in the next section of this decision, I am not persuaded that Luke Cavanagh’s more extensive Triple K experience made him better qualified than Mr. Milano to refurbish Triple K’s trailers. [45] Mr. Cavanagh described himself as 100% healthy. Unlike Mr. Milano, Mr. Cavanagh is not disabled, did not have a seizure in the workplace, and had no restrictions on his ability to drive. [46] In my view, the above facts are sufficient to establish a prima facie case of discrimination on the basis of disability, thus shifting the burden to Triple K, to provide an explanation. B. Is Triple K’s Explanation Reasonable or Pretextual? [47] Triple K submits that it was required to let Mr. Milano go because of a downturn in the business, submitting that this was part of a downsizing exercise that had started in 1999, which continued through to the end of 2001. The fact that Mr. Milano suffered from epilepsy, and had had a seizure at work, played no part in the decision to terminate his employment. Triple K further contends that Luke Cavanagh was engaged as an independent contractor, as part of an effort to out-source or contract-out maintenance work. Triple K further contends that Mr. Cavanagh was retained to perform a particular task, that is, to refurbish the group of twenty trailers, and that he was particularly well-qualified for this task. [48] I accept that Triple K let four office staff go in 1999. However, I do not accept that these terminations represented the start of an ongoing effort to downsize the company. On July 28, 2000, Mr. Sabiston circulated a memo to Triple K staff, entitled: Company Campaign to Recruit. According to Mr. Sabiston’s memo, the company was recruiting to fill positions in all three areas of the organization - drivers, mechanics and administrative staff. Mr. Sabiston noted that employees could be of tremendous assistance to the company in its efforts to recruit additional staff, and asked that employees spread the word that Triple K was hiring. He concluded by noting that: ... the company presently sits with 70 people in three areas: Drivers 48 Mechanics 12 Front office 10 70 people Where the company should be: Drivers 56 Mechanics 16 Front office 10 82 people Mr. Sabiston concludes by noting that the company was looking to hire 8 drivers and 4 mechanics. [49] There is at least some evidence to suggest that it was the circulation of this memo that led Don Greenough to suggest that Mr. Milano apply to work at Triple K. Indeed, the fact that Mr. Milano was hired by Triple K in October of 2000 is evidence of the fact that, at least at that point, the company was not trying to eliminate positions in the maintenance shop. [50] Triple K further submits that financial pressure forced the company to eliminate overtime, in an effort to contain costs. A review of Triple K’s time sheets confirms that the amount of paid overtime did go down, starting in late February of 2001. However, it will be recalled that Mr. Cavanagh was to work up to 60 hours a week, without collecting overtime pay. When the hours that he worked over and above a regular 40 hour week are taken into account, it appears that there was no significant reduction in the total number of hours worked in the repair shop. [51] Mr. Cavanagh was not entitled to employment benefits. Further, he did not get paid overtime, whereas regular Triple K employees got time and a half for hours worked over the 40 hour limit. As a consequence, Triple K may have realized a small cost saving through the hiring of Mr. Cavanagh. From this saving, however, one would have to set off the additional cost to the company incurred as a result of the higher hourly rate paid to Mr. Cavanagh for the first forty hours he worked each week. [52] At the end of the day, Triple K gained very little from a financial perspective through the engagement of Mr. Cavanagh. [53] It is common ground that some of Mr. Cavanagh’s time was taken up with the refurbishment of Triple K trailers. A review of the available time sheets for Mr. Cavanagh discloses, however, that he did not just work on trailers, but also worked on trucks. I was only provided with Mr. Cavanagh’s time records for the last three months that he worked for Triple K as an independent contractor. These records indicate that, for example, during the week ending September 1, 2001, Mr. Cavanagh worked on a trailer for 10 hours, but spent 46.50 hours working on Triple K trucks. Similarly, during the week ending October 20, Mr. Cavanagh worked a total of 45.50 hours, with more than 21 hours being spent on truck repairs. Three weeks later, Mr. Cavanagh worked a total of 51.25 hours, at least 39.75 hours of which were spent on truck repairs. As a result, Triple K has not persuaded me that Mr. Cavanagh worked primarily on the refurbishment of trailers. [54] Further, I do not accept that Mr. Milano could not have done this work. Mr. Cavanagh had previously worked at Triple K for ten months, whereas Mr. Milano had worked at the company for just over three months.[9] However, Mr. Milano had far more extensive professional experience than did Mr. Cavanagh, and, as well, had superior professional qualifications. [55] Much was made at the hearing by Triple K of Mr. Milano’s confusion in his testimony as to the number of axles on Triple K trailers, the suggestion being that this demonstrated his unfamiliarity with the trailers. Given that more than two years have passed since Mr. Milano worked at Triple K, I am not prepared to conclude from this that Mr. Milano did not have a sufficient degree of familiarity with Triple K trailers to do the refurbishment work. [56] Dave Croft testified that because of the specialized nature of Triple K’s tractors and trailers, it took even an experienced mechanic a year to become familiar with Triple K’s equipment. Nevertheless, Mr. Cavanagh was hired to do this ostensibly very demanding job, without any supervision, with only ten months of Triple K experience. On this point, I prefer the testimony of Del Higginson, who stated that within a month of commencing work at Triple K, a mechanic would be up to speed on the nuances of Triple K’s procedures and equipment. In concluding that Mr. Higginson’s testimony should be preferred over that of Mr. Croft, I have taken into account the fact that Mr. Higginson resigned from Triple K because of a fundamental disagreement with the way that things were being done at the company, and that there is clearly no love lost between Mr. Higginson and Triple K management. Nevertheless, I found Mr. Higginson to have been a balanced and fair witness, and prefer his evidence on this point to that of Mr. Croft. [57] Ted Letts and Don Greenough both testified that the work that Luke Cavanagh did refurbishing the trailers was work that any of the Triple K mechanics could do. I have some concerns about the reliability of these individuals’ testimony, particularly that of Mr. Letts, as both Mr. Letts and Mr. Greenough were clearly bitter at having been laid off by Triple K in December of 2001. As a consequence, I would be reluctant to rely exclusively on their testimony on this point. However, Del Higginson, who I have previously found to be a reliable witness, was emphatic that Mr. Milano possessed the necessary skill and experience to do the refurbishment job. Mr. Higginson supervised Mr. Milano for the four months that he worked at Triple K. Mr. Higginson was thus in the best position to assess whether Mr. Milano could have done the work that Luke Cavanagh performed. [58] Even if Triple K really believed that Mr. Milano did not have the requisite expertise to refurbish the trailers, there were other mechanics working at Triple K with years of company experience, who could have worked on the trailers. Mr. Sabiston testified that the company had tried having the work done by Triple K employees, but they ended up getting distracted by other, more pressing work, and the trailer work did not get done. Triple K claims that Mr. Cavanagh was retained to work exclusively on the refurbishment of the trailers, however, as was previously noted, Mr. Cavanagh’s time records demonstrate clearly that his efforts were not confined to the refurbishment of Triple K trailers. [59] Mr. Sabiston and Mr. Croft both testified that Mr. Milano’s employment was terminated in February of 2001 because of the downturn in Triple K’s business. For the same reason, in December of 2001, the company let five more employees go. However, these individuals were laid off, with the possibility of recall, and with their Records of Employment indicating the reason for their lay-off as being shortage of work. In contrast, in Mr. Milano’s case, his employment was terminated, with no possibility that he would be called back to work. Although Mr. Croft was asked why Mr. Milano was treated differently from the other employees in this regard, I was not provided with a satisfactory explanation for this differential treatment. The obvious conclusion to be drawn from this is that Triple K no longer wanted to have Mr. Milano working at the company. [60] It is also noteworthy that Triple K attempted to justify the selection of Mr. Milano for termination in February of 2001, on the basis that he was the last man to have been hired, suggesting that the company used a seniority-based system.[10] However, Mr. Sabiston and Mr. Croft agreed that seniority played no role in their choice of individuals to be laid-off ten months later. [61] I accept that Triple K did come under financial pressure as a result of the depressed condition of the steel industry, and that this may have been a major factor in the lay-off of the five mechanics in December of 2001. However, when the evidence is viewed as a whole, Triple K has not persuaded me that the termination of Mr. Milano’s employment some ten months earlier was caused entirely by the poor financial condition of the company. In February of 2001, Triple K clearly did not want Mr. Milano working there any more. Why was that? Given the company’s admission that Mr. Milano’s performance on the job was satisfactory, the only logical conclusion is that Triple K did not want to have an epileptic working in the maintenance shop. [62] As a result, I find that the explanation offered by Triple K for the termination of Mr. Milano’s employment in February of 2001 is pretextual. Luke Cavanagh was clearly highly regarded by Mr. Sabiston and Mr. Croft. It may well be that their desire to free up a position in the maintenance shop, to allow Mr. Cavanagh to return to Triple K, played a role in the decision to terminate Mr. Milano’s employment. Nevertheless, on all of the evidence, I am satisfied that the fact that Mr. Milano suffered from epilepsy, and suffered a seizure in the workplace, was a significant factor in the decision to terminate his employment. For these reasons, Mr. Milano’s complaint is sustained V. Remedy [63] Having found liability on the part of Triple K, it remains to be determined what, if any, remedy should properly be provided. In fashioning a remedy, the Tribunal’s jurisdiction is governed by section 53 of the Act, which contemplates the imposition of remedies designed to prevent future acts of discrimination, as well as compensation for individual complainants. The goal of compensation in cases of discrimination is to make whole the victim of the discriminatory practice, taking into account principles of mitigation, reasonable foreseeability and remoteness.[11] A. Systemic Remedy [64] The Commission asks that I order Triple K to cease discriminating against disabled employees, and to consult with the Commission with respect to its policy relating to the treatment of its disabled employees. The Commission further asks that Triple K management be required to undergo training to sensitize them to the need to accommodate disabled employees. [65] Given that one of the remedial aims of the Canadian Human Rights Act is to prevent future recurrences of discriminatory practices, such an order is, in my view, appropriate in the circumstances of this case. Accordingly, I order that Triple K cease discriminating against disabled employees. Triple K is further ordered to consult with the Canadian Human Rights Commission in order to develop a policy with respect to the accommodation of employees who suffer from disabilities. Within 3 months of the publication of the accommodation policy, Triple K shall also provide its senior management with training on the workings of the policy, and the obligations of employers with respect to disabled employees, including the duty to accommodate. B. Lost Wages [66] Mr. Milano seeks payment of the wages that he lost from the last day that he worked at Triple K, that is, February 23, 2001, until he became re-employed on a full-time basis in February of 2003, less any income that he received from casual employment in the interim period. In my view, Mr. Milano should be compensated for the wages and employment benefits that he lost in the period from February 23, 2001, to December 3, 2001. [67] In November of 2001, Mr. Cavanagh’s contract was terminated by Triple K. On December 3, 2001, the company laid off five mechanics out of a total mechanical staff of eleven. The Commission and Mr. Milano contend that this lay-off was an attempt by Triple K to houseclean, that is, to rid the company of employees that were perceived to be malcontents. There is some evidence to support this view, given that several of the individuals who were laid- off had just had a confrontation with management about practices at the company. Further, in the Spring of 2002, just a few weeks after the end of the recall period, Triple K was advertising to hire more mechanics. [68] Whatever the company’s reasons were for selecting these particular individuals for lay- off, as I have previously indicated, I accept that the company was in some financial difficulty in this period, and that this led to the lay-offs, as well as the termination of Mr. Cavanagh’s contract. Had Mr. Milano been working at Triple K in December of 2001, I am satisfied that he would, in all probability, have been laid-off at that time. To the extent that seniority could have been taken into account in the selection of candidates for lay-off, Mr. Milano was the most junior employee. If Triple K was indeed laying-off employees who were perceived as too outspoken, as Mr. Milano and the Commission contend, Mr. Milano may well have fit into this category. Mr. Milano is clearly a very intelligent man, one who is not afraid to stand up for himself. Indeed, it was clear from Mr. Milano’s very effective cross-examinations during the hearing that he is not afraid to challenge those with whom he disagrees. Given the prevailing corporate culture at Triple K, by December of 2001, I find that Mr. Milano would, in all probability, have been identified for lay- off. [69] Accordingly, I award Mr. Milano the wages and employment benefits that he lost in the period from February 23, 2001, to December 3, 2001, less any income earned by him from other sources during this period. In the event that the parties are unable to come to an agreement with respect to the monies owing to Mr. Milano under the terms of this decision, I may be spoken to. [70] Had it not been for the discriminatory conduct of Triple K, Mr. Milano would not have been required to attend at this hearing. Having regard to the remedial goal of making a successful complainant whole, Mr. Milano should also be compensated for the wages that he lost as a result of his attendance at the hearing, which he testified amount to $720. C. Gross Up [71] Mr. Milano is currently working. In addition to the wages that he is earning through his new employment, he will now be entitled to a lump sum payment on account of wages. This may well result in negative income tax consequences for him. In my view, it would unfairly penalize Mr. Milano if he were to suffer a more onerous income tax burden, by receiving a lump sum payment now, than he would have incurred had the monies been paid to him as salary in 2001. This would be inconsistent with the remedial goal of making Mr. Milano whole. Accordingly, Triple K shall pay Mr. Milano an additional amount sufficient to cover any additional income tax liability that he incurs as a consequence of receiving payment in this fashion. D. Out of Pocket Expenses [72] In preparation for this hearing, Mr. Milano paid $45 to obtain copies of his medical records. He should be reimbursed for this expenditure. [73] Further, with the assistance of his son, Mr. Milano retained the Ottawa law firm of Nelligan, O’Brien, Payne to assist him in the pursuit of his human rights complaint. Nelligan’s has charged a total of $11,248.26 for its services in relation to this matter, inclusive of disbursements and GST. [74] There is a conflict in the jurisprudence emanating from the Federal Court on the question of the jurisdiction of the Canadian Human Rights Tribunal to award a successful complainant his reasonable legal expenses.[12] For the reasons that I gave in Nkwazi v. Correctional Service of Canada[13] and Premakumar v. Air Canada,[14] I am of the view that there are compelling policy considerations that favour adopting the interpretation of Section 53 (2) (c) of the Canadian Human Rights Act espoused by Gibson J. in Thwaites and Rouleau J. in Stevenson, that is, to conclude that the ordinary usage of the word expenses includes legal expenses. [75] In my view, in order to satisfy the remedial goal of making Mr. Milano whole, an order requiring that he be reimbursed for his reasonable legal expenses is appropriate in this case. In the event that the parties cannot agree on an appropriate figure for Mr. Milano’s legal expenses, I may be spoken to. E. Pain and Suffering [76] Mr. Milano asks for an award of $20,000 - the maximum permissible under the Act - for the pain and suffering that he says that he sustained as a consequence of his employment having been terminated by Triple K. [77] Mr. Milano testified that he was shattered by the actions of Triple K, and described in some detail the devastating consequences that the company’s actions had for his self-esteem and emotional well-being. He testified that he had considerable difficulty finding another job, given the fact that he did not have a valid driver’s licence, and explained the severe financial difficulties that he sustained as a result. [78] While Mr. Milano testified that he was very depressed as a result of losing his job at Triple K, there is no indication that Mr. Milano was required to seek medical assistance to deal with this problem, and he appears to have made a complete recovery. [79] In all of the circumstances, an award of $10,000 for Mr. Milano’s pain and suffering is appropriate. F. Special Compensation [80] Mr. Milano also seeks an award of $20,000 as special compensation for what he says is Triple K’s wilful and reckless conduct. [81] I have already concluded that Triple K wilfully terminated Mr. Milano’s employment at least in part because he suffered from epilepsy. Nevertheless, what occurred in this case appears to be an isolated incident. Mr. Milano was provided with a letter of reference by Triple K, and was allowed to stay for an extra week on top of the two weeks of working notice originally provided by Mr. Croft. Further, unlike the majority of federally-regulated employers, Triple K is not a large organization. In my opinion, in all of the circumstances, an award of $5,000 is appropriate here. G. Interest [82] Interest is payable on awards of special compensation as well as on lost wages.[15] I order interest be paid on the monies awarded pursuant to this decision, in accordance with Rule 9 (12) of the Canadian Human Rights Tribunal Interim Rules of Procedure. Interest should run from February 23, 2001, and, in the case of the lost wages, should be calculated as the wages would have become payable to Mr. Milano. H. Retention of Jurisdiction [83] I will retain jurisdiction in the event that the parties are unable to agree with respect to the quantification or implementation of any of the remedies awarded under this decision. VI. Order [84] For the foregoing reasons, I declare that Mr. Milano’s rights under the Canadian Human Rights Act have been contravened by Triple K, and order that: Triple K cease discriminating against disabled employees. Triple K is further ordered to consult with the Canadian Human Rights Commission in accordance with the provisions of Section 53 (2) (a) of the Act, in order to develop a policy with respect to the accommodation of disabled employees. Within 3 months of the publication of the accommodation policy, Triple K shall also provide its senior management with training on the workings of the policy, and the obligations of employers with respect to disabled employees, including the duty to accommodate. Mr. Milano be awarded compensation for lost wages, calculated in accordance with this decision; Triple K pay to Mr. Milano an amount sufficient to cover any additional income tax liability that he may incur as a consequence of receiving the monies referred to above in this fashion; Triple K pay $10,000 to Mr. Milano for his pain and suffering; Triple K pay Mr. Milano the sum of $5,000 as special compensation; Interest shall be paid on the lost wages and non-pecuniary compensation awarded pursuant to this decision, in accordance with Rule 9 (12) of the Canadian Human Rights Tribunal Interim Rules of Procedure. Interest on the lost wages shall run from February 23, 2001, and shall be calculated in accordance with this decision. Signed by Anne Mactavish Chairperson Ottawa, Ontario September 12, 2003 Canadian Human Rights Tribunal Parties of Record Tribunal File: T732/3702 Style of Cause: Victor Milano v. Triple K Transport Ltd. Decision of the Tribunal Dated: September 12, 2003 Date and Place of Hearing: June 16 - 20, 2003 Ottawa, Ontario Appearances: Victor Milano, for himself Giacomo Vigna, for the Canadian Human Rights Commission Katherine A. Cotton, for the Respondent [1] In 2000, Triple K operated 56 trucks or tractors, as well as 95 trailers. Five additional tractors were added to the fleet late in the year. Mr. Sabiston explained that in early 2000, Triple K had contracted to purchase an additional 12 tractors. When business conditions began to turn sour, Triple K tried to cancel the order, but was compelled to accept 5 of the tractors, that had already been assembled. [2] Crouse v. Canada Steamship Lines Inc., T.D. 7/01 (C.H.R.T.), Israeli v. Canadian Human Rights Commission, (1983) 4 C.H.R.R. D/1616 (C.H.R.T.) at p. 1617, aff’d(1984), 5 C.H.R.R. D/2147 (C.M.R.R.T.), Basi v. Canadian National Railway Company (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) [3] Ontario Human Rights Commission and O’Malley v. Simpson Sears Limited, [1985], 2 S.C.R. 536 at 558. [4] Shakes v. Rex Pak Limited (1981), 3 C.H.R.R. D/1001 (Ont.Bd. Inq.) at p. D/100 [5] Chander and Joshi v. Department of National Health and Welfare, T.D. 16/95 (C.H.R.T.), at p. 25, aff’d [1997] F.C.J. No. 692, (1997) 131 F.T.R. 301. See also Singh v. Canada (Statistic Canada) (1998), 34 C.H.R.R. D/203 (C.H.R.T.), aff’d Canada A.G. v. Singh, (April 14, 2000) T-2116-98 (F.C.T.D.), Morris v. Canadian Armed Forces, (2001) 42 C.H.R.R. D/443 and Crouse, supra. (2000) 37 C.M.R.R. D/501. [6] Crouse, supra., Israeli, supra, and Basi, supra [7] B. Vizkelety, Proving Discrimination in Canada, (Toronto: Carswell, 1987) at p. 142 [8] Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 (F.C.A.) at p. D/15. [9] Although Mr. Cavanagh worked for Triple K for more than three times longer than did Mr. Milano, Mr. Cavanagh’ hours of work at the company were just over twice those worked by Mr. Milano, with Mr. Cavanagh having worked 1504 hours, in contrast to the 714 hours worked by Mr. Milano. Further, regard should be had to the testimony of Mr. Cavanagh that he may not have been as productive as other mechanics during those ten months, because of his inexperience, whereas Mr. Milano was able to jump right in and complete whatever tasks he was called upon to perform. [10] The Commission tried to argue that Mr. Milano was not, in fact, the last person hired in the maintenance area. While it is true that others came to work in the maintenance shop at Triple K after Mr. Milano started at the company, none of these individuals were hired to do the same type of work as either Mr. Milano or Mr. Cavanagh. As a result, I am satisfied that Mr. Milano was indeed the last mechanic to have been hired by Triple K prior to February of 2001. [11] See Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401 (C.A.), and Canada (Attorney General) v. McAlpine, [1998} 3 F.C. 530 (C.A.) [12] See Canada (Attorney General) v. Thwaites, (1994), 21 C.H.R.R. D/224 (F.C.T.D.), Canada (Attorney General) v. Lambie, (1996), 124 F.T.R. 303 (T.D.), Canada (Attorney General) v. Green, [2000] 4 F.C. 629 (T.D.), and most recently, Canada (Attorney General) v. Stevenson (2003) F.C.T. 341. [13] (2001) 41 C.H.R.R. D/109 (C.H.R.T.) [14] (2002) 43 C.H.R.R. D/210 (C.H.R.T.) [15] Morgan, supra.

2003 CHRT 31

CHRT

Syndicat des employés d'exécution de Québec-téléphone section locale 5044 du SCFP v. Telus communications (Québec) inc.

en

2003-09-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6814/index.do

2023-12-01

Syndicat des employés d'exécution de Québec-téléphone section locale 5044 du SCFP v. Telus communications (Québec) inc. Collection Canadian Human Rights Tribunal Date 2003-09-15 Neutral citation 2003 CHRT 31 File number(s) T757/0703 Decision-maker(s) Deschamps, Pierre Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: SYNDICAT DES EMPLOYÉS D'EXÉCUTION DE QUÉBEC-TÉLÉPHONE, SECTION LOCALE 5044 DU SCFP Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TELUS COMMUNICATIONS (QUÉBEC) INC. Respondent REASONS FOR DECISION ON THE PRELIMINARY ISSUES MEMBER: Pierre Deschamps 2003 CHRT 31 2003/09/15 (TRANSLATION) TABLE OF CONTENTS I. INTRODUCTION II. THE FIRST ISSUE III. DECISION ON THE FIRST ISSUE IV. THE SECOND ISSUE V. DECISION ON THE SECOND ISSUE A. Late filing of the complaint B. Insufficient evidence 1. The role and powers of the Commission 2. The role and powers of the Tribunal VI. CONCLUSION I. INTRODUCTION [1] The Panel is seized of two preliminary issues raised by the respondent, TELUS Communications (Québec) Inc., (the respondent) in respect of a complaint filed July 8, 1999, with the Canadian Human Rights Commission (the Commission) by the Syndicat des employés d'exécution de Québec-Téléphone, Section locale 5044 du Syndicat canadien de la fonction publique (the complainant). [2] In its complaint, the complainant alleges that the respondent discriminates against the incumbents of a female-dominated job in its employ. According to the complainant, in so doing, the respondent is in contravention of section 10 of the Canadian Human Rights Act (the Act). [3] The issues raised by the respondent are as follows: The respondent maintains that certain parties, including the Syndicat des Agents de Maîtrise de Québec-Téléphone, Section locale 5144 du Syndicat canadien de la fonction publique (the SAQT), ought to be summoned in the context of this case as their interests could potentially be directly affected by the findings of the Tribunal; The respondent maintains that there was not sufficient evidence to warrant the Commission's decision to request the appointment of this Tribunal. [4] On March 26, 2003, Mr. Athanasios D. Hadjis, a member of the Canadian Human Rights Tribunal, determined that these two issues would be dealt with through written arguments. The undersigned was designated to dispose of both these issues. II. THE FIRST ISSUE [5] It should be pointed out straightaway that the first issue raised by the respondent consists of several elements.. [6] Firstly, the respondent requests that the SAQT be duly summoned for the purposes of this case (Respondent's written submissions of April 15, 2003, para. 26). The respondent asserts that the SAQT is an interested party whose rights could be affected by a decision of the Tribunal in this case (Submissions, para. 46). The respondent therefore requests that the SAQT be notified that any decisions the Tribunal might hand down in this case are likely to affect its rights, so as to permit it to present its defence or its viewpoint (Written Submissions, para. 47). [7] Secondly, the respondent argues that, should the Tribunal make a finding of any discrimination whatsoever in this case, both the complainant and the SAQT should be held liable for damages as active and essential agents of the alleged discrimination (Written Submissions, para. 38). [8] According to the respondent, the job in question was evaluated by a joint standing job evaluation committee composed of representatives of the complainant, the respondent and the SAQT (Written Submissions, para. 34); according to the respondent, if discrimination is found to exist, it is the result of the decision of the committee, a decision that was final and not subject to review and was binding on the respondent (Written Submissions, para. 43). [9] Consequently, the respondent asserts that the representatives of the complainant and those of the SAQT who sat on the joint committee charged with evaluating the jobs in question should be held jointly and severally liable for any compensation the Tribunal might order in this case (Written Submissions, para. 44). [10] The respondent therefore requests that the SAQT be summoned for the purposes of this case by an impleading, in view of its active and essential role in the alleged discrimination, and asserts that its presence is necessary to permit a complete resolution of the dispute (Written Submissions, para. 51).. [11] In response to the respondent's arguments, the Commission states that it takes no stand on the merits of this issue. It requests, however, that the third party be notified of the preliminary objection so that it can make representations on the merits of the objection. [12] The complainant, for its part, argues that the Tribunal is seized of no complaint filed by the SAQT, that the evaluation of the job related to the SAQT, namely, that of small business representative, is not at all in dispute. [13] Out of concern for procedural fairness, the Tribunal called for the SAQT to be notified of the respondent's application to summon and implead an additional party and be invited to submit its representations to the Tribunal. The SAQT had until August 4, 2003, to make its representations. [14] As of the date of this decision, the Tribunal still had not received any representations from the SAQT, even though a letter of reminder was sent. The Tribunal is therefore required to render its decision on the first issue based on the representations of the Commission, the complainant and the respondent. III. DECISION ON THE FIRST ISSUE [15] Regarding the first issue, the Panel believes it should be pointed out that the respondent's position is somewhat ambiguous. Firstly, the respondent asked that the SAQT be duly summoned, which was done in this case, to present its viewpoint on the respondent's applications in its regard. Secondly, the respondent asked that the SAQT be impleaded. [16] The Panel is of the opinion that this application to implead a third party goes well beyond the sending of a notice to appear and respect for the rules of natural justice or procedural fairness. It is intended to make the SAQT a respondent party to the Tribunal's inquiry into the complaint and not just an interested party. [17] In support of its claims in respect of the first issue, the respondent refers to the decision handed down by the Supreme Court of Canada in Renaud v. Board of School Trustees, School District No. 23 (Central Okanagan) and the Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970. [18] It should be pointed out that the facts in the Renaud case differ appreciably from those in the present case. In Renaud, the plaintiff had filed a complaint against both the employer and his union, which is not the case here. At the hearing of the complaint, the assigned member amended the complaint of which he was seized to include a claim against the union under another section of the Act as well as that brought under the initial section, in order to bring the initial complaint into conformity with the nature of the proceedings. The assigned member justified his decision by the fact that no prejudice would be suffered by the union as a result of the amendment as the union had been represented throughout the proceedings and had fully taken part in the initial complaint, which is not the case here. The Supreme Court confirmed the validity of the decision of the designated member to hear the complaint. [19] The Act does not provide any procedure as such for the forced addition of parties and interested persons in a proceeding before the Tribunal. At most, paragraph (b) of subsection 48.9(2) of the Act states as follows: The Chairperson may make rules of procedure governing the practice and procedure before the Tribunal, including, but not limited to, rules governing ( ) (b) the addition of parties and interested persons to the proceedings; (...) [20] Moreover, the Tribunal's Interim Rules of Procedure require the following, under the heading Addition of Interested Parties: Apply by way of motion for status 8(1) Anyone who is not a party, and who wishes to be recognized by the Panel as an interested party in respect of an inquiry may bring a motion in writing for an order granting interested party status. Motion to specify grounds 8(2) A motion under 8(1) shall specify the grounds invoked in support of the request for status and the extent of the desired participation in the inquiry. [21] On reading this rule, one notes that it is not aimed specifically at the impleading of a third party by one of the parties to an inquiry into a complaint by the Tribunal, namely, the complainant, the Commission or the respondent. Nothing is said, moreover, of the Tribunal's power to allow a third party to be brought in, with the legal effects entailed by such a procedure. [22] This being said, if the Act states that the Chairperson may make rules of procedure governing, notably, the addition of parties and interested persons to a proceeding, it is logical to think that the Tribunal has the power to add parties to a given proceeding. For the time being, the Tribunal's Interim Rules of Procedure contain no stipulation to this effect. [23] In an oral decision rendered on October 2, 2002, in Desormeaux v. OC Transpo (T701/0602), the Chair of the Tribunal, who was seized of an application to add a union as a respondent, ruled that under section 50 of the Act, the Tribunal has the power to add individuals or groups as interested persons in the context of a hearing (our underlining). She pointed out, however, that in the case in point, this was not the issue put to her, the issue to be decided being, rather, whether a third party (a party not involved in the complaint) could be added as a respondent, with the effects this could have with regard to its liability. [24] On this point, the Chair of the Tribunal concluded, relying on paragraph (b) of subsection 48.9(2) of the Act, that the legislator's intent was to vest in the Tribunal the power to add parties as well as interested persons to a proceeding before the Tribunal. [25] Moreover, in a subsequent oral decision rendered on October 3, 2002, in the same Desormeaux case, the Chair of the Tribunal ruled that in the case in point, the circumstances did not warrant the addition of the union as a respondent. She ruled that, while it had previously been found that the Act vests in the Tribunal the power to add parties to a proceeding when the Tribunal deems it appropriate, the legislative context surrounding this discretionary power argues for a measure of restraint or caution (the term used by the Chair). [26] In this regard, the Chair of the Tribunal points out, most aptly in our view, that the Act provides, in dealing with complaints of discrimination, a carefully developed process of investigation and inquiry in which both the Commission and the Tribunal have clearly defined roles. [27] In her decision, the Chair of the Tribunal mentions the fact that the addition of parties during a proceeding before the Tribunal deprives the new respondent of the benefit of certain means of defence it can normally present at the stage of the screening of a complaint by the Commission, notably the possibility of having the complaint dismissed without the need for the Tribunal to institute an inquiry, for example because the complaint was filed after the period of one year stipulated in the Act. [28] Moreover, in a decision rendered by the Tribunal on November 27, 2002, in Bozek and Canadian Human Rights Commission v. MCL Ryder Transport Inc. and McGill (T716/2102 and T717/2202), the Panel ordered, following an application in this regard by the Commission and the complainant, that the initial complaint be amended to substitute the name of the company born of the merger of the initial respondent with a number of other corporations in place of the name ofthe initial respondent. [29] As there exist no formal rules establishing the conditions in which the Tribunal may add a new respondent, and, moreover, as the Tribunal has the power to add a new respondent, the Chairperson having the power, under the Act, to make rules governing the addition of parties and interested persons to the proceedings, it is important for the Panel to review the criteria that should guide it in deciding whether to add a new respondent at the inquiry stage of the complaint before the Tribunal. [30] The Panel is of the opinion that the forced addition of a new respondent once the Tribunal has been charged with inquiring into a complaint is appropriate, in the absence of formal rules to this effect, if it is established that the presence of this new party is necessary to dispose of the complaint of which the Tribunal is seized and that it was not reasonably foreseeable, once the complaint was filed with the Commission, that the addition of a new respondent would be necessary to dispose of the complaint. [31] In the case in point, the reasons invoked by the respondent for impleading the SAQT and having it become a party in the inquiry into the complaint and not just an interested person, have to do essentially with the fact that two of its members were on the joint standing job evaluation committee (Written Submissions, para. 34 and 35) that evaluated the jobs in question. [32] This fact in itself does not at all mean that the two members of the SAQT bound the liability of their union by participating on the committee. Moreover, nothing in the documentation submitted to the Panel indicates that these members or the committee acted, or may have acted, in a discriminatory manner in evaluating the jobs. [33] It should be pointed out, moreover, that the report of the Commission's investigator submitted in evidence by the respondent in support of its claims, makes no reference at all to the SAQT and its involvement in evaluating the jobs in question. [34] Furthermore, the Panel cannot ignore the fact that for all intents and purposes, the addition of a new respondent at the stage of the Tribunal's inquiry into the complaint with no formal complaint having been brought against it deprives this new respondent of the opportunity to present certain grounds of defence before the Commission pursuant to sections 41 and 44 of the Act. [35] It should be pointed out in this regard that the courts recently underscored the importance of respect for procedural fairness in dealing with complaints of discrimination filed with the Commission, notably with regard to the respondent's right to dispute, at this initial stage, the merits of the complaint (Canada Post Corporation v. Barrette, [2000] 4 F.C. 145 (C.A.) and Judge v. Canada Post Corporation, [2002] F.C.A. no. 426 (F.C.T.D.). [36] In the case in point, the respondent has not satisfied the Panel that the forced impleading of the SAQT is necessary in order to dispose of the complaint as worded. Moreover, the Panel believes that the impleading of the SAQT at this stage would be prejudicial to it from a standpoint of procedural fairness. [37] This being said, it will be permissible for the respondent to assert during the hearing before the Tribunal that the evidence submitted to the Tribunal does not warrant the allowing of the complaint, and that it cannot be held liable or solely liable for the discrimination alleged in the complaint. IV. THE SECOND ISSUE [38] Regarding the second issue, the respondent, relying here on sections 41 and 44 of the Act, maintains that the Commission could not ask the Chair of the Tribunal, in application of section 49 of the Act, to assign a member to inquire into the complaint for the two reasons set out as follows in its written arguments of April 15, 2003: [Translation] regarding the first reason, the respondent, relying on the facts recorded in both the Investigation Report and in the complaint, argues that the complaint was filed more than one year after the last of the events on which it is based occurred, namely, the allocation of a different evaluation rating for business customer service representatives (BAR) than for small business representatives (PME); regarding the second reason, the respondent relies on the fact that the author of the investigation report recommends that, pursuant to section 44(3)(b) of the Act, that [sic] the Commission dismiss the complaint for various reasons. [39] The respondent therefore concludes that the Commission should have dismissed the complaint pursuant to paragraphs 41(1)(c) to (e) of the Act. [40] In response to the respondent's arguments, the Commission maintains that only the Federal Court has jurisdiction to review decisions of the Commission. The complainant says it shares the Commission's viewpoint. [41] In its rebuttal of the Commission's position, the respondent maintains that the scheme of the Act argues in favour of the review by the Tribunal of the sufficiency of the evidence on which the referral of the complaint to the Tribunal is based. [42] According to the respondent, the Commission's viewpoint has the effect of restricting the Tribunal's power to determine whether or not a complaint is substantiated under the Act (Respondent's written rebuttal, para. 25). Firstly, it undermines the Tribunal's power to examine whether or not there was sufficient evidence to warrant the Commission's decision to refer the complaint to the Tribunal (Rebuttal, para. 26), and secondly, it restricts the Tribunal's power to determine whether or not a complaint ought to be dismissed for the reasons set out in section 41 of the Act (Rebuttal, para. 27). [43] In the respondent's view, the Tribunal is fully competent to decide the issue raised regarding insufficient evidence to warrant the inquiry into the complaint. What is more, the respondent maintains that this issue does not come, at this stage, under the jurisdiction of the Federal Court. V. DECISION ON THE SECOND ISSUE [44] The Panel intends to examine, in turn, each argument raised by the respondent regarding the expiry of the time period for consideration of the complaint by the Commission and insufficient evidence to warrant an inquiry into the complaint before the Tribunal. A. Late filing of the complaint [45] Under subsection 41(1) of the Act, the Commission is not required to rule on a complaint filed after the specified period of time. Paragraph 41(1)(e) of the Act stipulates that: 41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that ( ) (e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. [46] This being said, the Commission can, nevertheless, rule on a complaint filed after the one-year period stipulated in paragraph 41(1)(e) of the Act (International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster and Canadian Human Rights Commission and Canadian Human Rights Tribunal, [2002] 2 F.C. 430 (F.C.T.D.)). Under the Act, the Commission is not required to justify its decision. In fact, only if the Commission decides not to rule on a complaint on the ground that it is not receivable under subsection 41(1) of the Act is it required to send the reason for its decision in writing to the complainant, as subsection 42(1) of the Act stipulates. [47] Evidently, in the case in point, the Commission did not deem the complaint to be not receivable, having first assigned someone to investigate the complaint and having then referred it to the Tribunal. This being said, no reason is given for the Commission's decision to refer the complaint to the Tribunal, if we rely on the Commission's letter to the respondent of December 24, 2002. It was not necessary to give one. [48] The Panel believes that it is not up to it to rule on the reasons that may have prompted the Commission to refer the present complaint to the Tribunal (Parisien and Canadian Human Rights Commission v. Ottawa-Carleton Regional Transit Commission, Decision No. 1, Canadian Human Rights Tribunal, July 15, 2002, para. 12). The fact is that the Commission did refer the complaint to the Tribunal without, however, formally giving its reasons for doing so. Accordingly, the reasons that prompted the Commission to seize the Tribunal of the complaint despite the recommendation to the contrary formulated by the Commission's investigator, are not known to the Panel. [49] Be that as it may, it seems well established in case law that when the person against whom a complaint is made believes that the complaint was filed after the time limit, the person may raise this point before the Commission. As pointed out by Mr. Justice Décary of the Federal Court of Appeal, in Canada Post Corporation v. Barrette, [2000] 4 F.C. 145, para. 24: [w]ith respect to the grounds set out in paragraphs 41(1)(a) to (e), a person against whom a complaint is made is expressly given two opportunities to raise them: one at the section 41 preliminary screening stage, the other at the section 44 screening stage (see paragraphs 44(2)(a) and (b) and subparagraphs 44(3)(a)(ii) and (b)(ii)). [50] In the case in point, there is nothing to indicate that the respondent argued its claims before the Commission as to the lateness of the complaint made against it. The respondent did, however, have two opportunities to do so. [51] Furthermore, if the respondent did not agree with the Commission's decision to refer this complaint to the Tribunal, it could have applied for judicial review before the Federal Court (International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster and Canadian Human Rights Commission and Canadian Human Rights Tribunal, supra), which it seems it did not do. The comments of Mr. Justice Gibson in paragraph 30 of the above-cited decision certainly apply to the present case: The Union, having decided not to seek judicial review before this Court of the Commission's discretionary decision to extend the time limit under paragraph 41(1)(e) of the Act, was simply precluded from adopting the alternative recourse that it chose, that being to raise precisely the same issues that it could have raised on judicial review, before the Tribunal. [52] The Panel therefore finds that the respondent's arguments regarding the late filing of the complaint are unsubstantiated. B. Insufficient evidence [53] It is relevant, to dispose of this issue, to examine the respective role and powers of the Commission and the Tribunal under the Act. 1. The role and powers of the Commission [54] Under section 41 of the Act, the Commission has a duty to rule on any complaint of which it is seized, subject to the exceptions set out in paragraphs (a) to (e) of subsection 41(1), as Mr.Justice Décary of the Federal Court of Appeal points out in Canada Post Corporation v. Barrette, [2000] 4 F.C. 145, para. 23: Section 41 imposes a duty on the Commission to ensure, even proprio motu, that a complaint is worth being dealt with. There is obviously no duty to investigate at that stage and the Commission is asked no more than to examine on a prima facie basis whether the grounds set out in subsection 41(1) are present and, if so, to decide whether to nevertheless deal with the complaint. [55] Under section 43 of the Act, the Commission may designate a person to investigate a complaint. This being said, section 49 of the Act stipulates that the Commission may, at any stage after the filing of a complaint, request the Chairperson to institute an inquiry into the complaint if it is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted. [56] Under the Act the Commission is not required to give reasons for its decision to request that the Tribunal inquire into a complaint. At most, section 42 of the Act requires the Commission to send written reasons to a complainant of its decision not to rule on a complaint that it considers, under the Act, not receivable. [57] Finally, under the Act the Commission is not required to act on the recommendation of the person charged with investigating a complaint pursuant to section 43 of the Act. The Commission has considerable discretion in this regard. Pursuant to section 44 of the Act, in deciding to ask the Tribunal to assign a member to inquire into a complaint that is the subject of an investigation report, the Commission must consider not only the investigation report, but also all the circumstances of the complaint. 2. The role and powers of the Tribunal [58] The role vested in the Tribunal under the Act has been described, notably, as follows by Mr. Justice La Forest in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, para. 64: Taken together, ss. 50(1) and 53(2) of the Act state that a tribunal shall inquire into the complaint referred to it by the Commission to determine if it is substantiated. This is primarily and essentially a fact-finding inquiry with the aim of establishing whether or not a discriminatory practice occurred. In the course of such an inquiry a tribunal may consider questions of law. [59] Thus, under the Act, the role of the Tribunal consists essentially in inquiring into any complaint referred to it by the Commission. Under section 50 of the Act, the Tribunal is empowered to decide all questions of law or fact relating to the complaint of which it is seized. In the context of the inquiry conducted by the Tribunal, the parties have the opportunity to present all arguments of fact and of law in support of their claims. [60] Upon completion of the inquiry into the complaint, the Tribunal may, under section 53 of the Act, either allow the complaint or dismiss it based on the evidence that has been presented and the applicable law. [61] Thus, according to the scheme of the Act, it is not up to the Tribunal in the context of the inquiry into a complaint to inquire about the reasons that warranted the referral of the complaint to the Tribunal. If a respondent does not agree with the Commission's decision to refer a complaint to the Tribunal despite a recommendation to the contrary from one of its investigators, then it must apply to the Federal Court. [62] Nor is it up to the Tribunal to decide whether there was sufficient evidence to warrant the Tribunal's inquiry into the complaint. The issue of the sufficiency of the evidence will be resolved upon completion of the Tribunal's inquiry into the complaint. The Tribunal will then have to determine whether the complaint, in view of the evidence presented and the applicable law, ought to be allowed or dismissed. In so doing, the Tribunal is not refusing to exercise its jurisdiction. It is merely respecting the scheme of the Act and adhering solely to the role vested in it by the Act. [63] In the final analysis, the ends of justice are better served if one adheres to the roles vested under the Act in the Commission and the Tribunal, and to the means provided by the legislator to appeal a decision with which one is not satisfied. [64] The Tribunal therefore finds that the respondent's arguments regarding insufficient evidence are unsubstantiated. VI. CONCLUSION [65] For the reasons set out above, the Tribunal therefore finds that the respondent's arguments in respect of the two preliminary issues submitted to the Tribunal are unsubstantiated. The inquiry into the complaint will therefore proceed as planned. Pierre Deschamps OTTAWA, Ontario September 15, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE NO.: T757/0703 STYLE OF CAUSE: Syndicat des employés d'exécution de Québec-Téléphone, Section locale 5044 du SCFP v. TELUS Communications (Québec) Inc. RULING OF THE TRIBUNAL DATED : September 15, 2003 APPEARANCES : Ronald Cloutier For the Syndicat des employés d'exécution de Québec-Téléphone, Section locale 5044 du SCFP Patrick O'Rourke For the Canadian Human Rights Commission Jean Martel For TELUS Communications (Québec) Inc.

2003 CHRT 32

CHRT

Côté v. Canada (Royal Canadian Mounted Police)

en

2003-10-02

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6818/index.do

2023-12-01

Côté v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2003-10-02 Neutral citation 2003 CHRT 32 File number(s) T797/4703 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content DANIELLE CôTÉ Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATTORNEY GENERAL OF CANADA (REPRESENTING THE ROYAL CANADIAN MOUNTED POLICE) Respondent 2003 CHRT 32 2003/10/02 Athanasios D. Hadjis I. FACTS II. ANALYSIS III. ADJOURNMENT [1] The Respondent has filed a motion seeking an order confirming that the scope of the complaint that was referred to the Tribunal does not extend to all of the events mentioned in the complaint form. I. FACTS [2] The Complainant became a member of the Royal Canadian Mounted Police (RCMP) in 1985. In the mid-1990's, the RCMP assigned the Complainant to serve on the United Nations Mission in Haiti as a United Nations Civil Police Force Officer (UNCIVPOL). She alleges in her complaint form, dated June 27, 1996, that while serving in Haiti in 1995, a disciplinary measure was taken against her that resulted in her early repatriation to Canada, before the scheduled completion of her assignment. She claims that this measure was taken as a result of her having entered into a personal relationship with another UNCIVPOL, serving on assignment to the mission from France. Upon her return to Canada, the RCMP initiated an internal investigation into her conduct. She alleges that she received treatment that differed from that which was allotted to other male UNCIVPOL who became involved in similar relationships while in Haiti. She contends that she was discriminated against on the basis of her sex as well as her family status (she was a married mother of one child at the time). [3] It is the Respondent's position that all RCMP staff transferred to UNCIVPOL duty are employed by the United Nations (UN) for the entire duration of their assignment and their employment is subject to the rules and regulations of the UN. In effect, the member states of the UN lend these police officers to the UN at the request of the UN's Secretary-General. These individuals are expected to conduct themselves solely in accordance with the interests of the UN and are not to accept any orders in the execution of their functions from their government or any other authority, apart from the UN. While on assignment on such missions, UNCIVPOL report to a Police Commissioner who is in turn accountable to the Special Representative of the Secretary-General designated for the mission. The Police Commissioner designated to serve on the Haitian mission was a member of the RCMP. The Respondent contends that any incidents occurring while the Complainant was working for the UN fall outside the scope of the Canadian Human Rights Act (Act) and that neither the Commission nor the Tribunal has jurisdiction to deal with the aspects of the complaint relating to those events. The RCMP made this position known to the Commission shortly after the RCMP was first informed that a human rights complaint had been filed against it, in a letter dated August 14, 1996, addressed to Marie Wankham, the Commission investigator assigned to examine the complaint. [4] On June 3, 1997, Ms. Wankham wrote to the RCMP that [TRANSLATION] we are of the opinion that the Commission has no jurisdiction to inquire into the aspect of the complaint relating to the discriminatory acts on the part of UN personnel. She pointed out, however, that the Commission has the authority to study those aspects of the complaint relating to the discriminatory conduct of the RCMP that is alleged to have taken place in Canada, specifically, the RCMP's decision to initiate an internal inquiry regarding the Complainant's conduct, upon her repatriation to Canada. [5] Over the next few years, the Commission's investigation was suspended while the Complainant exhausted her recourses internally within the RCMP. The Commission resumed its investigation thereafter, and a report by another investigator, Sylvie McNicoll, was released on October 8, 2002. The report reiterates that the Commission had already [TRANSLATION] determined that it did not have jurisdiction over the aspects of the complaint dealing with the alleged discriminatory conduct of UN personnel in Haiti. The document also states, in bold lettering, that the investigation report relates only to those allegations pertaining to the internal inquiry conducted by the RCMP within Canada. [6] On March 20, 2003, the Commission's Chief Commissioner sent a letter to the Chairperson of the Tribunal, informing her that the Commission was satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted. The institution of an inquiry into the complaint was therefore being requested. The letter of referral does not specify whether any aspect of the complaint did not warrant an inquiry or fell outside the jurisdiction of the Commission or the Tribunal. [7] The Respondent contends that upon receiving the Complainant's Notice of Factual and Legal Issues, in execution of her disclosure duties (Rule 6 of the Tribunal's Interim Rules of Procedure), it realized, to its surprise, that the Complainant intended to lead evidence with regard to the aspects of her complaint dealing with events that took place in Haiti. As a result, the Respondent filed the present motion, seeking an order to the effect that the only question remaining in issue before the Tribunal is the following: Was the decision by the RCMP to establish an internal investigation with respect to the Complainant based on prohibited grounds of discrimination, in contravention of the Act? [8] In essence, therefore, I am being asked to determine whether those aspects of the complaint that relate to the discriminatory conduct that is alleged to have occurred in Haiti were referred to the Tribunal for inquiry. II. ANALYSIS [9] It is evident that at various stages over the course of the Commission's investigation into the complaint, spanning a period of several years, certain representatives of the Commission were of the opinion that it had no jurisdiction to inquire into those aspects of the complaint relating to the conduct of UN personnel. It appears that before Ms. Wankham sent her June 3, 1997 letter to the RCMP, the views of several senior Commission employees were sought. A written legal opinion from the General Counsel of the Commission's Legal Services Branch was also obtained, although the Commission has withheld disclosure of this document claiming the ground of solicitor/client privilege. [10] The Respondent contends that the Commission's conduct leading up to the referral of the complaint to the Tribunal forms an integral part of the actual decision to refer the matter. It is argued that in effect, the Commission already decided in 1997 that only the Canadian aspects of the complaint warranted further inquiry, a decision that is now binding on the Commission. The only aspects of the complaint that could subsequently be referred to the Tribunal are those relating to the RCMP's conduct after the Complainant's repatriation. All that the Respondent is currently requesting from the Tribunal is a clarification or confirmation that solely this more narrow aspect of the complaint was the object of the referral. [11] The Commission disagrees. Counsel for the Commission argued that the Respondent is effectively asking the Tribunal to review the Commission's decision to refer the entire complaint for inquiry. The Chief Commissioner's letter to the Tribunal Chairperson was explicit: an inquiry into the complaint was requested without any limitations or conditions added. Moreover, it is specified that the Commission's decision has been made having regard to all of the circumstances of the complaint. These circumstances, it is pointed out, are not just comprised of Ms. Wankham's letter and the subsequent investigation report, but also include correspondence from the Complainant objecting to the Respondent's contentions on the matter of the Commission's jurisdiction. In addition, the Commission submits that some of the documents relating to the UN mission in Haiti suggest that member states retained authority regarding the discipline of their police officers who were assigned to this mission. These documents were also before the Commission when it decided to refer the complaint to the Tribunal. If the Respondent does not agree with the Commission's decision to refer the entire complaint, it is free to seek review before the appropriate forum, the Federal Court. [12] In my opinion, it is evident from the Chief Commissioner's letter to the Tribunal Chairperson that all the aspects of the complaint, as set out in the complaint form that was signed by the Complainant in 1996, were referred to the Tribunal by the Commission. I do not find anything in the Chief Commissioner's letter from which to infer that less than the entire complaint was being sent on for inquiry by the Tribunal. Furthermore, one must not lose sight of the fact that although the Commission has the authority to decide whether a complaint is to be referred to the Tribunal (ss. 44(3) and 49 of the Act), the complaint continues to remain the complainant's, not the Commission's.1 The Complainant in the present case has never amended her complaint. [13] Implicit in the Respondent's motion is the proposition that due to the Commission's prior declared findings regarding the scope of the complaint, the Commission was no longer able to refer the entire complaint to the Tribunal. What the Respondent is therefore requesting amounts to having the Tribunal look behind the Commission's decision and review it in order to determine whether the Commission possessed the jurisdiction to make such a referral. The Tribunal does not exercise such supervisory jurisdiction over the actions and decisions of the Commission. This authority falls within the exclusive purview of the Federal Court,2 even in cases where the Commission's decision to refer runs contrary to the findings of its investigator.3 [14] For these reasons, the order being sought by the Respondent is denied. I find that all the aspects of the complaint filed by the Complainant in 1996, have been referred to the Tribunal for inquiry, including the discriminatory conduct that is alleged to have occurred in Haiti. III. ADJOURNMENT [15] The Respondent requests in its motion that in the event that the order being sought is not granted by the Tribunal, the hearing into the complaint be adjourned in order to allow the Respondent to amend its disclosure documents. The Respondent's motion was filed in the week preceding the scheduled start of the hearing into the merits of the complaint. The motion was argued before the Tribunal on the first of those scheduled hearing dates, September 17, 2003. During the course of the day, the parties agreed amongst themselves to a postponement of the hearing on the merits, for reasons that are to some extent unrelated to this motion. The new set of hearing dates has now been scheduled for a three-week period commencing on January 26, 2004. [16] Had the Complainant and the Commission been insistent on proceeding with the hearing on the merits immediately after the release of this ruling, I would have certainly granted the Respondent's request for an adjournment. Unquestionably, some confusion developed with regard to the scope of the complaint being referred to the Tribunal and I do not find the assumptions made by the Respondent to have been unreasonable. Indeed, in its written pleadings regarding the motion, the Commission consented to the Respondent's request for an adjournment, expressing its regret that the Respondent may have been led into error by the investigator's decision. [17] I find, however, that the four-month period leading up to the new hearing dates is sufficient to allow the Respondent to modify its disclosure documents and prepare its case, and I am therefore not ordering any further adjournment. The parties are encouraged to communicate with each other and determine the dates by which any additional disclosure of documents and information necessitated by the findings in the present ruling should occur. In the event that the parties are unable to reach an agreement, any one of them should contact the Tribunal registry as soon as possible in order to have a conference call or other form of meeting with the Tribunal arranged. Athanasios D. Hadjis OTTAWA, Ontario October 2, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE NO.: T797/4703 STYLE OF CAUSE: Danielle Côté v. Attorney General of Canada (Representing the Royal Canadian Mounted Police) DATE & PLACE OF HEARING: Montreal, Quebec September 17, 2003 RULING OF THE TRIBUNAL DATED: October 2, 2003 APPEARANCES: Danielle Côté On her own behalf Patrick O'Rourke Alain Préfontaine For the Canadian Human Rights Commission For the Respondent 1. Murphy v. Halifax Employers' Association and International Longsoremen's Association (Local 269) (27 February 2001), Ottawa T602/6000 & T603/6100 at paras. 11-21 (C.H.R.T.). 2. Leonardis v. Canada Post Corp. [2002] C.H.R.D. No. 24 at para. 5 (C.H.R.T.) (QL); Parisien v. Ottawa-Carleton Regional Transit Commission [2002] C.H.R.D. No. 23 at para. 9 (C.H.R.T.) (QL); Desormeaux v. Ottawa-Carleton Regional Transit Commission [2002] C.H.R.D. No. 22 at para. 10 (C.H.R.T.) (QL); Eyerley v. Seaspan International Ltd. [2000] C.H.R.D. No. 14 at para. 4 (C.H.R.T.) (QL); Quigley v. Ocean Construction Supplies [2001] C.H.R.D. No. 46 at para. 7 (C.H.R.T.) (QL). 3. Syndicat des employés d'exécution de Québec-Téléphone, section locale 5044 du SCFP v. Telus Communications (Québec) Inc., 2003 CHRT 31 at para. 61-63.

2003 CHRT 33

CHRT

Roch v. Maltais transport ltée

en

2003-10-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6811/index.do

2023-12-01

Roch v. Maltais transport ltée Collection Canadian Human Rights Tribunal Date 2003-10-22 Neutral citation 2003 CHRT 33 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content LORRAINE ROCH Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MALTAIS TRANSPORT LTÉE AND GAÉTAN MALTAIS Respondents MOTION FOR DISMISSAL FILED BY THE RESPONDENT MALTAIS TRANSPORT LTÉE MEMBER: Michel Doucet 2003 CHRT 33 03/10/22 TRANSLATION [1] On July 7, 2003, the Canadian Human Rights Tribunal received from Mr. Robert Brunet, Counsel for the Respondent, Maltais Transport Ltée, a motion for dismissal based on an alleged lack of factual or legal nexus between the Complainant, Lorraine Roch, and the Respondent, Maltais Transport Ltée. [2] On September 25, 2003, the Canadian Human Rights Commission filed its submissions against this motion. The Complainant, Lorraine Roch, and the Respondent, Gaétan Maltais, did not make any submissions regarding this motion. [3] In its motion, the Respondent, Maltais Transport Ltée claims that, in this case, there is no nexus either in fact or law, between it and the Complainant. It also claims that it never approved, permitted, encouraged or tolerated the alleged actions of the Respondent Gaétan Maltais. It claims that no legal nexus exists between it and Gaétan Maltais. Maltais Transport Ltée argues that there is no allegation in the complaint accusing it of anything and that it cannot be held responsible for the actions or conduct of Gaétan Maltais even though the latter was at one point a shareholder, administrator and officer of Maltais Transport Ltée. [4] The Tribunal, at this point in the procedure, is not required to rule on the validity or invalidity of the Respondent's allegations. The purpose of this motion is to decide whether to summarily dismiss the complaint against Maltais Transport Ltée. [5] To properly understand the Tribunal's jurisdiction for hearing such a motion for dismissal, it is necessary to refer to the legislative framework of the Canadian Human Rights Act1 including sections 41, 44, 49, 50 and 53. These sections provide for: 41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that the alleged victim of the discriminatory practice to which the complain relates ought to exhaust grievance or review procedures otherwise reasonably available; the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act; the complaint is beyond the jurisdiction of the Commission; the complaint is trivial, frivolous, vexatious or made in bad faith; or the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. [...] 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation submit to the Commission a report of the findings of the investigation... (3) On receipt of a report referred to in subsection (1), the Commission (a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report related if the Commission is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted ... 4) After receipt of a report referred to in subsection (1), the Commission: (a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); [...] 41.(1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants: la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui sont normalement ouverts ; la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale ; la plainte n'est pas de sa compétence ; la plainte est frivole, vexatoire ou entachée de mauvaise foi ; la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances. [...] 44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. (3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission ; a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue ; (i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié,... 4) Après réception du rapport, la Commission : (a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3) ; [...] 49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted. (2) On receipt of a request, the Chairperson shall institute an inquiry by assigning a member of the Tribunal to inquire into the complaint.... [...] 50. (1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member...conducting the inquiry, any other interested party, the member...shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make presentations. [...] 53. (1) At the conclusion of an inquiry, the member...conducting the inquiry shall dismiss the complaint if the member...finds that the complaint is not substantiated. (2) If at the conclusion of the inquiry the member...finds that the complaint is substantiated, the member...may...make an order against the person found to be engaging or to have engaged in the discriminatory practice... [...] 49. (1) La Commission peut, à toute étape postérieure au dépôt de la plainte, demander au président du Tribunal de désigner un membre pour instruire la plainte, si elle est convaincue, compte tenu des circonstances relatives à celle-ci, que l'instruction est justifiée. (2) Sur réception de la demande, le président désigne un membre pour instruire la plainte.... [...] 50. (1) Le membre instructeur, après avis conforme à la Commission, aux parties et, à son appréciation, à tout intéressé, instruit la plainte pour laquelle il a été désigné; il donne à ceux-ci la possibilité pleine et entière de comparaître et de présenter, en personne ou par l'intermédiaire d'un avocat, des éléments de preuve ainsi que leurs observations. [...] 53. (1) À l'issue de l'instruction, le membre instructeur rejette la plainte qu'il juge non fondée. 2) À l'issue de l'instruction, le membre instructeur qui juge la plainte fondée, peut, ... ordonner, selon les circonstances, à la personne trouvée coupable d'un acte discriminatoire... [...] [6] The procedure, as set out in the Act, provides that the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that, among other things, the complaint is trivial, frivolous, vexatious or made in bad faith. If the Commission decides to accept the complaint, it appoints an investigator to investigate into it. [7] The investigator files his or her report with the Commission as soon as possible after completing the investigation. Upon receipt of the report, the Commission, if it is satisfied that an inquiry into the complaint is warranted, may request the Chairperson of the Canadian Human Rights Tribunal to institute an inquiry into the complaint. The Commission informs the parties in writing of its decision to refer the complaint to the Tribunal. [8] Upon receipt of the Commission's request, the Chairperson of the Tribunal shall institute an inquiry by assigning a member to inquire into the complaint. After due notice to the Commission and the parties, the member inquires into the complaint, giving the parties the opportunity to appear at the inquiry, present evidence and make representations. At the conclusion of the inquiry, the member may either dismiss the complaint if he or she finds it is not substantiated or make an order pursuant to 53(2) of the Act. [9] The motion for dismissal, in this case, asks the Tribunal to make an order that would set aside the Commission's decision to refer the complaint against the Respondent to the Tribunal for an inquiry. As we have just seen, according to the Act, it is the Commission that first decides if the complaint is to be dealt with and which, after reviewing the investigator's report, decides if it is justified and, if such is the case, refers the complaint to the Tribunal. Can the Tribunal, at this point in the procedure, interfere with the Commission exercising its discretion? [10] In Eyerley v. Seaspan International Limited, decided on August 2, 2000, the Chairperson of the Tribunal, Anne Mactavish, stated in paragraph 4: It is not for this Tribunal to consider the jurisdiction or conduct of the Canadian Human Rights Commission. These matters are within the exclusive purview of the Trial Division of the Federal Court. Therefore, I have no intention of discussing the issue of Seaspan's challenge to the jurisdiction of the Commission. [11] Likewise, in International Longshore & Warehouse Union (Maritime Section), Local 400 v. Oster2, Mr. Justice Gibson stated the following: In the result, I conclude that the Tribunal erred against a standard of correctness, in assuming jurisdiction with respect to the Union's preliminary objections. The Union, having decided not to seek judicial review before this Court of the Commission's discretionary decision to extend the time limit under paragraph 41(1)(e) of the Act, was simply precluded from adopting the alternative recourse that it chose, that being to raise precisely the same issues that it could have raised on judicial review, before the Tribunal. [12] As a result of the legislative framework described above and the cases cited, I am of the view that the Tribunal does not have the jurisdiction to hear the motion of the Respondent, Maltais Transport Ltée. The appropriate recourse would have been for the Respondent to seek judicial review of the Commission's decision to deal with the complaint and to refer it to the Tribunal before the Federal Court. After the decision is made to refer the complaint to the Tribunal, the member assigned by the Chairperson will inquire into the complaint and will give the parties full and ample opportunity to appear, present evidence and make representations. He will then decide the questions of law or fact necessary to determining the matter, including the issue of whether the Respondent, Gaétan Maltais, has engaged in a discriminatory practice and if this practice, if so determined, was committed in the course of employment, as set out in section 65(1) of the Act. Again, in the event that it is determined that a discriminatory practice occurred and that this act was committed in the course of the employment of the Respondent (Gaétan Maltais), the Respondent Maltais Transport Ltée may present evidence at the hearing to escape the application of this section and may present evidence to establish the exceptions set out in section 65(2). [13] The motion for dismissal filed by the Respondent, Maltais Transport Ltée, is therefore dismissed. Michel Doucet OTTAWA, Ontario October 22, 2003 1. R.S.C. 1985, c. H-6. 2. [2002] F.C. No. 430, at paragraph 30 (T.D.).

2003 CHRT 34

CHRT

Green v. Public Service Commission of Canada, Treasury Board and Human Resources Development Canada

en

2003-10-28

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6627/index.do

2023-12-01

Green v. Public Service Commission of Canada, Treasury Board and Human Resources Development Canada Collection Canadian Human Rights Tribunal Date 2003-10-28 Neutral citation 2003 CHRT 34 Other citations Reference: T.D. 6/98 File number(s) T447/0296 Decision-maker(s) Leighton, Elizabeth A.G.; Devine, Sheila M. Decision type Decision Decision status Final Grounds Disability Decision Content Between: Nancy Green Complainant - and - Canadian Human Rights Commission Commission - and - Public Service Commission Treasury Board Human Resources and Development Canada Respondents Decision Members: Elizabeth Leighton and Sheila Devine Date: October 28, 2003 Citation: 2003 CHRT 34 Table of Contents I. Factual Background II. The Issue III. The Evidence IV. Conclusion I. Factual Background [1] Nancy Green lodged a complaint with the Canadian Human Rights Commission in 1989 based on her view that she had not advanced in her career at the Respondent Department, Human Resources Development Canada (HRDC), because of the discriminatory practices of the Respondents. [2] After the allegations were investigated, a referral was made by the Commission to the Canadian Human Rights Tribunal. There was a hearing into the complaint. The June 26, 1998 decision of the Tribunal found that Ms. Green had been the victim of discriminatory practices by the Respondents. This decision was upheld, with minor changes, after a judicial review by the Federal Court (Trial Division). [3] In its decision, the Tribunal made a number of awards. [4] In 2000, Ms. Green received a lump sum award to compensate her for wages lost from 1989 to 2000. Additionally, in the same year, she received an award of interest on the lump sum award, to address her loss of opportunity to invest the monies which she ought to have received during the 1989-2000 time period. [5] The Commission had argued, in its submissions at the conclusion of the hearing on the substantive issues, that Nancy Green is entitled to a gross up to take into account any adverse income tax consequences arising from her receipt of lump sum compensation ... Nancy Green should not be required to pay any more income tax than she would have to pay had she been receiving the PM-6 income annually since 1988. [6] The Tribunal accepted the submission of both Ms. Green and Commission Counsel that remedial awards for Ms. Green should make her whole. In other words, the discriminatory practices of the Respondents should not cause Ms. Green to be in a position different from the position she would have found herself in, had she not been discriminated against. [7] In its decision, dated June 26, 1998, the Tribunal made an Order that the Parties find a figure, mutually approved by Ms Green and her department which would address the income tax implications of the decision. This figure was to represent the gross up. In this case, this is an additional amount of money, untaxed, which must be paid to Ms. Green, a victim of discrimination. It is meant to address adverse income tax implications which arise when remedial awards are made. [8] If such a mutually acceptable figure could not be found, the Tribunal noted in its decision that it would retain jurisdiction concerning the issue of the gross up. Any party could return to the Tribunal to ask that further information and evidence be received by the Tribunal to address the issue of the gross up and how it was calculated to take into consideration the income tax implications of the remedial Orders. [9] Ms. Green subsequently made that request, and the Tribunal has heard a number of days of viva voce evidence, including evidence of an expert witness, and has received a number of exhibits into evidence. II. The Issue [10] From Ms. Green’s evidence, there is a necessity for someone [to tell her] that the actual income tax implications [of the remedial awards] have been considered. Having been presented with a lump sum amount to address her loss of income from 1989 to 2000, as well as an interest award, and a cheque (not taxable) in an amount which was simply marked gross up, with no explanation of its creation, Ms. Green wanted to know how the calculation of the gross up was made, what impacts on her income tax were considered when calculating the gross up, and what processes were used when the Respondents attempted to make her whole by the calculation of the gross up. [11] More specifically, the question to be answered is: Does the gross up, as calculated by the Respondents, represent a correct calculation of the amount to be awarded to Ms. Green to address the income tax implications of the remedial awards which were ordered as a result of the discriminatory practices of the Respondents? III. The Evidence [12] Ms. Green presented a number of different scenarios which showed how the addition of the lump-sum award to her employment income for the year 2000 Income Tax Return, plus the interest award, created an unprecedented income tax return for her. Her evidence of basic income tax information from past years substantiated her contention that she was used to receiving a small income tax refund annually. She believed that this situation would continue, due to the remedial Order for a gross up to address the income tax implications of her receipt of monies pursuant to the Orders of the Tribunal. She even anticipated that, with an ability to make a substantial payment into her Registered Retirement Savings Plan, the 2000 income tax return would be more substantial than it had been in past years. [13] Ms. Green made a contribution into her Registered Retirement Savings Plan in an amount close to $30,000.00 after her receipt of the lump sum ordered by the Tribunal. This RRSP payment amount represented the room she had in her plan, as she had not made the maximum allowable contributions each year from 1989 to 2000. Based on her prior income tax assessments, she believed that such a payment would result in a considerable tax saving. She expected the refund for the year 2000 to amount to a value of about one-half of the RRSP contribution, or $15,000. Had she received no interest award, in the same year, 2000, she would have been correct. Her exhibit showing her calculations for the 2000 income tax return including her employment income, and her lump sum award, with the maximum RRSP contribution made, substantiates this view. [14] The addition of the interest income, pursuant to the Order of the Tribunal in 1998, into Ms. Green’s 2000 income tax return changed the picture. The interest award was made without tax having been withheld. The Income Tax Act does not require such a withholding of tax for interest income, received for any reason. Therefore, in addition to any small amount of interest Ms. Green might have received from investments in 2000, she received an additional amount of interest very close to the amount she contributed to her RRSP. This interest income was taxable income for the year 2000, and, at a tax rate of close to 50%, virtually removed any anticipated fifty percent refund based on the RRSP contribution. [15] Ms. Green noted in her evidence before the Tribunal that her RRSP contributions, had they been made on an annual basis from 1989 to 2000 for the maximum allowable amount, would have grown exponentially. Historically, these years were financial growth years for equity investors, investing inside a Registered Retirement Savings Plan, where the money could grow without tax consequences until the time for its removal. Ms. Green missed this opportunity because she did not have available to her the monies which she should have had, had she not been a victim of discrimination. [16] None of these tax implications were addressed by the Respondents when the calculation of the gross up was made in 2000. Indeed, the calculation was made before the Respondents were aware of the details of Ms. Green’s 2000 Income Tax Return. Roger Dart, the Acting Director of Financial Services, HRDC, Ontario Region, and the person to whom Ms. Green turned when she was attempting to understand the calculation of the gross up presented to her, indicated in his evidence before the Tribunal that the gross up represented merely the difference in tax payable as a result of Ms. Green’s receipt of the lump sum employment income in one year, compared with the receipt of that income spread over an eleven-year period. Although he noted that the methodology of calculation of such a gross up had never before been questioned, and that no thought to the income tax implications of the award had been given, his evidence was that this was the appropriate methodology based on the best estimates his department could make. [17] Ms. Green’s financial expert, Mr. Brian Saxe, a Chartered Accountant, agreed. His expert opinion was that the calculation of the gross up by the Respondents was correct in its addressing of the lump sum remedial award made to Ms. Green. His concern, as an accountant who was asked to address the income tax implications of both the lump sum award and the interest award, was that Ms. Green was not in the same position that she would have been had she received the interest award spread over the eleven years, as opposed to in one year. He opined that there should have been some methodology to address the adverse income tax implications to Ms. Green of this additional lump sum interest payment. However, he did not offer an alternate methodology for the calculation of the gross up. IV. Conclusion [18] The Tribunal is most concerned that the evidence of Mr. Roger Dart, when combined with that of Ms. Green, indicates that there was no thought given to the income tax implications of the awards made in the June, 1998 decision of the Tribunal. [19] Mr. Dart consistently answered Ms. Green’s pointed questions in cross-examination that the gross up calculation was based on the reading of the decision with some interpretive help from the Department of Justice. As he noted, he could not recall discussing income tax implications. It was a matter of how to determine the gross up itself. [Mr.Dart’sevidenceatp.33567] Ms. Green’s evidence was that there was no communication between herself and HRDC concerning the gross up. [20] The original Order read as follows: ... that Nancy Green receive from her employer a gross up to compensate her for adverse income tax implications due to her non-receipt of annual income .... This gross up can be calculated by the compensation department of the Public Service Commission. The Tribunal will retain jurisdiction concerning this issue. If a figure mutually approved by Ms. Green and her department cannot be reached, the Tribunal will hear submissions upon this issue. [21] This Order contemplated communication between Ms. Green and her department. This was lacking, as evidenced by Ms. Green’s view that it was necessary to re-convene the Tribunal in order to receive the information which Mr. Dart gave in his evidence concerning the calculation of the gross up. [22] As was evident at the original Tribunal hearing, so it appears to remain. After the hearing, there is a distinct lack of communication between the Respondents and their employee, leading to mistrust and misunderstanding. Certainly, there has remained a chasm between Ms. Green and the Respondents in the communication area. This has been, and appears to remain, the main cause of Ms. Green’s anxiety and difficulties with understanding the rationale of her employer. The Tribunal, however, has no jurisdiction at this time to deal with this ongoing problem of communication. Some of the Orders made by the Tribunal in its 1998 decision attempted to address this issue. [23] From the evidence before the Tribunal concerning the gross up calculation, on a balance of probabilities, the calculation made by the Respondents was the correct one. Both the evidence of Mr. Roger Dart and Ms. Green’s expert, Mr. Brian Saxe, underline the methodology as one which addresses the income tax implications of the lump sum award adequately and correctly. [24] The interest award was made to address the loss of opportunity to invest which was caused by the discriminatory practices which did not allow Ms. Green to continue her position as a PM-6, and to advance as she should have in the public service. Pursuant to the Income Tax Act, this is interest income and is taxed in the year received. Ms. Green had to address this income in her 2000 Income Tax Return. Her submission concerning the interest award is that it is an integral part of the remedial award for the discriminatory practices of the Respondents, and, as such, should have been considered when calculating the gross up. [25] How this was to be done was not addressed before the Tribunal. Although Ms. Green presented a number of scenarios, there are many others which come to mind in attempting to deal with such awards. Should Ms. Green have requested that the interest income award be spread over a number of years? Should she have requested that her Income Tax Returns for a number of years past be re-assessed, with a portion of the interest income added to each of those re-assessments? [26] This raises an interesting question: can the victim of discrimination ever be made completely whole? In his evidence, Mr. Dart said he had never been advised what the phrase making the person whole meant and indicated that he did not understand it. Surely, this concept arises from the purpose of the Canadian Human Rights Act as elucidated in section 2. The Act has been promulgated to address discriminatory practices and to effect remedies which will redress those practices so that persons will have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have .... [27] In Ms. Green’s case, as with most cases, this probably can never be completely and fully achieved. Financially, Ms. Green is likely never going to live through a stock market period similar to the 1990’s. Her opportunity to invest at that unusual time is lost forever. There is no methodology to make her whole in that scenario. [28] Should the Respondents be responsible for the tax on the interest award, made to address Ms. Green’s lost investment opportunity? Had Ms. Green made investments outside her RRSP during the 1989-2000 period, and received a rate of return equal to the Tribunal award (the Canada Savings Bond rate), she would have been responsible for the tax payable on that interest. Had she made investments inside her RRSP during the period, and received the Canada Savings Bond rate of return, she would have been responsible for the tax consequences of her growing fund when the monies were withdrawn sometime in the future. How can the calculation of the gross up take these speculative tax implications into consideration? On a balance of probabilities, it cannot. There was no evidence before this Tribunal which indicated that another gross up calculation would be more likely a better method to take all the income tax implications of such awards into consideration. [29] Therefore, although the Tribunal finds that the lack of communication and involvement by the Parties in the gross up calculation is unacceptable, the final calculation of the gross up made by the Respondents is probably as close as they could reasonably ascertain without moving into the realm of speculation and hypothetical reasoning. [30] Accordingly, the Tribunal finds that the gross up as calculated by the Respondents addresses adequately that part of the June 26,1998 decision which ordered that Ms. Green receive a gross up to compensate her for the income tax implications of her receipt of the remedial awards made in that decision. Signed by Elizabeth Leighton Chairperson Sheila Devine Tribunal Member Ottawa, Ontario October 28, 2003 Canadian Human Rights Tribunal Parties of Record Tribunal File: T447/0296 Style of Cause: Nancy Green v. Public Service Commission of Canada, Treasury Board and Human Resources Development Canada Decision of the Tribunal Dated: October 28, 2003 Date and Place of Hearing: August 12-13, 2003 Toronto, Ontario Appearances: Nancy Green, for herself Philippe Dufresne, for the Canadian Human Rights Commission (Motion on Remedy only) Jan Brongers, for the Respondents Reference: T.D. 6/98 June 26, 1998

2003 CHRT 35

CHRT

Genest v. Bell Mobility Inc.

en

2003-10-28

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6803/index.do

2023-12-01

Genest v. Bell Mobility Inc. Collection Canadian Human Rights Tribunal Date 2003-10-28 Neutral citation 2003 CHRT 35 File number(s) T753/0303 Decision-maker(s) Doyon, Roger Decision type Consent Order Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARC GENEST Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL MOBILITY INC. Respondent ORDER TO PRODUCE MEDICAL REPORT MEMBER: Roger Doyon 2003 CHRT 35 2003/10/28 [1] On the direction of the Tribunal issued September 9, 2003, the complainant, Marc Genest, undertook to disclose to the respondent, Bell Mobility Inc., on or before October 10, 2003, all medical records of his common-law spouse, Antoine Tamaz, born April 8, 1963, and deceased February 16, 1998. [2] Counsel for the complainant has informed the Tribunal that Marc Genest has attempted to obtain the medical record of his deceased spouse from C.L.S.C. Métro, 1801 Boulevard de Maisonneuve Ouest, Bureau 500, Montreal, Quebec H3H 1J9, and from Montreal General Hospital, 1650 Avenue Cedar, Montreal, Quebec H3G 1A4. [3] These medical institutions refuse to comply with the complainant's request unless required to do so by an Order of the Tribunal. [4] Accordingly, the Tribunal orders: C.L.S.C. Métro, 1801 Boulevard de Maisonneuve Ouest, Bureau 500, Montreal, Quebec H3H 1J9 and Montreal General Hospital, 1650 Avenue Cedar, Montreal, Quebec H3G 1A4 [5] to deliver to Marc Genest the complete medical record of Mr. Antoine Tamaz. Roger Doyon OTTAWA (Ontario) October 28, 2003 PARTIES OF RECORD TRIBUNAL FILE: T753/0303 STYLE OF CAUSE: Marc Genest v. Bell Mobility Inc. ORDER OF THE TRIBUNAL DATE: October 28, 2003 APPEARANCES: Noël Saint-Pierre For the Complainant Patrick O'Rourke For the Canadian Human Rights Commission Dominique Benoît For the Respondent

2003 CHRT 36

CHRT

Genest v. Bell Mobility Inc.

en

2003-10-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6806/index.do

2023-12-01

Genest v. Bell Mobility Inc. Collection Canadian Human Rights Tribunal Date 2003-10-30 Neutral citation 2003 CHRT 36 File number(s) T753/0303 Decision-maker(s) Doyon, Roger Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARC GENEST Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL MOBILITY INC. Respondent RULING ON MOTION FOR DISMISSAL OF A COMPLAINT MEMBER: Roger Doyon 2003 CHRT 36 30/10/2003 [TRANSLATION] I. INTRODUCTION II. CONCLUSION I. INTRODUCTION [1] On November 4, 2000, Marc Genest filed a complaint with the Canadian Human Rights Commission (the Commission) against his employer, Bell Mobility Inc. (Bell Mobility). [2] In the reasons for his complaint, Marc Genest maintains that his employer discriminated against him in denying him the right to buy life insurance for his same-sex spouse in like manner as for a different-sex spouse. He thus claims that his employer differentiated adversely in relation to him in the course of his employment because of his sexual orientation and his marital status, in contravention of section 7 of the Canadian Human Rights Act (the Act). [3] The complainant's common-law spouse died on February 16, 1998. The complainant received no life-insurance benefit following this death. [4] The respondent has submitted to the Tribunal a motion for dismissal of Marc Genest's complaint on the ground that it was filed late. In support of this claim, the respondent invokes the application of subsection 41(1) of the Act and its paragraph (e) which read as follows: 41 (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that (e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. [5] The last of the events giving rise to the complaint occurred upon the death of the complainant's spouse, to wit, on February 16, 1998, and the complaint was filed on November 4, 2000. [6] The respondent considers that the complaint was filed more than one year after the last of the events on which it is based occurred. [7] It finds fault with the Commission for having decided to deal with the complaint even though the complainant has given no explanations or reasons to warrant his being given more than one year to file his complaint. [8] The respondent is therefore asking the Tribunal to dismiss Marc Genest's complaint because it was filed late. The respondent's motion raises the issue of whether the Canadian Human Rights Tribunal has the power to examine and rule on decisions of the Commission. The Vermette case1 provides an answer to this question. It is clear that a Human Rights Tribunal does not have the power to quash a decision of the Commission that has been made under section 41(1)(e) of the Act.... [9] Moreover, in Oster2 and Parisien,3 it has been firmly established that only the Federal Court has the power to oversee measures and decisions of the Commission. II. CONCLUSION [10] Therefore, the respondent's motion is denied Roger Doyon October 30, 2003 OTTAWA, Ontario 1 Canadian Human Rights Commission v. C.B.C. et al (1996), 120 F.T.R. 81. 2 International Longshore and Warehouse Union (Marine Section) Local 400 v. Helen Oster and Canadian Human Rights Commission (2001) 42 C.H.R.R. D/1. 3Alain Parisien and Canadian Human Rights Commission v. Ottawa-Carleton Regional Transit Commission, Decision No.1, 15 July 2002. COUNSEL OF RECORD TRIBUNAL FILE: T753/0303 STYLE OF CAUSE: Marc Genest v. Bell Mobility Inc. RULING OF THE TRIBUNAL DATED: October 30, 2003 APPEARANCES: Noël Saint-Pierre For the Complainant Patrick O'Rourke For the Canadian Human Rights Commission Dominique Benoît For the Respondent

2003 CHRT 37

CHRT

Milazzo v. Autocar Connaisseur Inc. et al.

en

2003-11-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6560/index.do

2023-12-01

Milazzo v. Autocar Connaisseur Inc. et al. Collection Canadian Human Rights Tribunal Date 2003-11-06 Neutral citation 2003 CHRT 37 File number(s) T713/1802 Decision-maker(s) Mactavish, Anne L.; Deschamps, Pierre; Doucet, Michel Decision type Decision Decision status Final Grounds Disability Decision Content Between: Salvatore Milazzo Complainant - and - Canadian Human Rights Commission Commission - and - Autocar Connaisseur Inc. Respondent - and – Motor Coach Canada Interested party Decision Members: Anne L. Mactavish, Pierre Deschamps and Michel Doucet Date: November 6, 2003 Citation: 2003 CHRT 37 Table of Contents I. The Events Giving Rise to Mr. Milazzo’s Complaint A. Mr. Milazzo’s Employment with Autocar Connaisseur B. Milazzo’s Drug Test C. The Termination of Mr. Milazzo’s Employment with Autocar Connaisseur II. The Motor Coach Industry A. The Economic Condition of the Motor Coach Industry B. The Regulatory Environment6 C. Cross-Border Travel and American Regulatory Requirements D. Drug Testing in the Canadian Motor Coach Industry III. Autocar Connaisseur A. The Situation at Autocar Connaisseur in 1997-1999 B. Drug Testing at Autocar Connaisseur C. The Accommodation of Alcohol or Drug Dependent Employees by Autocar Connaisseur D. Autocar Connaisseur’s New Drug Testing Policy IV. The Legal Framework15 V. What Is The Standard? VI. The Section 7 Complaint A. Is There a Prima Facie Case of Discrimination? B. Did Mr. Milazzo suffer from a disability? C. Does the Concept of Perceived Disability Apply to Cases of Alcohol or Drug Dependence? D. Did Autocar Connaisseur perceive Mr. Milazzo to be drug dependent? E. Conclusion Regarding Mr. Milazzo’s Section 7 Complaint VII. The Section 10 Complaintdisplay:none;text-decoration: none"> display:none;text-decoration:none"> A. Is There a Prima Facie Case of Discrimination? B. Has Autocar Connaisseur Discharged its Burden? (i) Rational Connection (ii) Good Faith (iii) Reasonable Necessity (a) The Employment Environment for Bus Drivers at Autocar Connaisseur (b) Route Assignments and Autocar Connaisseur Drivers (c) The Effects of Cannabis on the Brain (d) The Extent of the Problem in the Transportation Industry (e) What Drug Tests Look For (f) The Efficacy of Drug Testing as a Means of Promoting Road Safety (g) Positive Drug Tests as an Indicator of Increased Risk (h) Do Drug Tests Serve to Deter Employee Impairment? (i) Conclusions Regarding the use of Drug Testing By Autocar Connaisseur (j) Can Autocar Connaisseur Accommodate Bus Drivers Who Have Tested Positive? (k) Findings Regarding Liability and the Section 10 complaint (l) Comments Regarding Autocar Connaisseur’s New Alcohol and Drug Testing Policy VIII. Remedy IX. Order [1] For several years, Salvatore Milazzo drove a bus for Autocar Connaisseur Inc. In August of 1999, Mr. Milazzo was ordered by his employer to undergo a drug test. The results came back positive for the presence of cannabis metabolites. As a result, Mr. Milazzo’s employment with the company was terminated, in accordance with Autocar Connaisseur’s zero tolerance drug policy. [2] Mr. Milazzo alleges that in failing to accommodate his perceived drug dependence, and in terminating his employment, Autocar Connaisseur has contravened section 7 of the Canadian Human Rights Act. It is further alleged that Autocar Connaisseur’s policy requiring that bus drivers undergo drug tests violates section 10 of the Act. I. The Events Giving Rise to Mr. Milazzo’s Complaint A. Mr. Milazzo’s Employment with Autocar Connaisseur [3] Mr. Milazzo was hired by Autocar Connaisseur in July of 1994. Autocar Connaisseur’s business is largely dependent on tourism and is seasonal in nature, with the summer months being the company’s busy period. In order to respond to the fluctuating demand for its services, Autocar Connaisseur employs a small group of permanent bus drivers who work year-round, and hires a larger group of drivers to work on a seasonal basis.[1] Mr. Milazzo fell into this latter category - driving a bus for several months each year, and collecting Employment Insurance benefits in the off season. [4] It appears that Mr. Milazzo’s employment history with Autocar Connaisseur was largely unremarkable, and there is no evidence before us of any significant problems with his performance on the job. It should be noted, however, that Mr. Milazzo did not work for Autocar Connaisseur in the summer of 1997, as his driver’s licence had been suspended, as a result of his having been convicted of impaired driving. This conviction relates to an incident occurring outside working hours, and there is no evidence before the Tribunal that Mr. Milazzo ever drove a bus while impaired by either drugs or alcohol. [5] During the years that he worked for Autocar Connaisseur, Mr. Milazzo operated a 40 foot passenger bus or motor coach. Mr. Milazzo was initially assigned to shuttle passengers between the Casino de Montréal and the casino parking lots, and to ferry passengers between city hotels and the airports. Autocar Connaisseur had ongoing contracts to provide these services, and the routes operated on a fixed schedule. [6] Autocar Connaisseur also provided charter services to groups traveling throughout North America. In the course of his employment with Autocar Connaisseur, Mr. Milazzo drove groups of passengers all over Quebec and Ontario. [7] By the summer of 1999, Autocar Connaisseur had lost the Casino contract. At this point, Mr. Milazzo was primarily driving airport runs. However, on June 4, 1999, Mr. Milazzo drove to upstate New York, meeting a bus returning from Virgina Beach, and driving it back to Montreal. According to Mr. Milazzo, he was not scheduled to drive to New York State, but was asked to go on short notice, because no other driver was available. B. Milazzo’s Drug Test [8] Although Mr. Milazzo claimed at one point in his testimony that he did not know that Autocar Connaisseur had a drug testing policy, it is clear from his other comments that he was well aware of the policy. However, Mr. Milazzo understood that only drivers going into the United States would be tested. As he did not drive to the U.S. on a regular basis, Mr. Milazzo did not think that the policy applied to him. [9] According to Mr. Milazzo, in the summer of 1999, rumours began circulating within the company that all drivers were going to be tested, and not just the drivers going to the States. Sometime in mid-August, Mr. Milazzo came to work and was told by the dispatcher that he had missed his appointment for his drug test. When he advised the dispatcher that he did not know anything about a test, Mr. Milazzo says that he was told that a new date would be set for him to be tested. Mr. Milazzo says that the test was carried out less than a week later. It appears from the evidence of other witnesses that Mr. Milazzo’s test took place on August 20, 1999. [10] Mr. Milazzo was required to attend at a small clinic in downtown Montreal. He was asked for proof of his identity, and then told to go into a washroom, and provide a urine sample. The entire process took 10 to15 minutes. [11] On August 24, Mr. Milazzo received a telephone call from a doctor associated with the clinic, who advised him that his urine had tested positive for the presence of cannabis metabolites. The doctor further advised Mr. Milazzo that the positive test results would be reported to Autocar Connaisseur. C. The Termination of Mr. Milazzo’s Employment with Autocar Connaisseur [12] On August 25, 1999, Mr. Milazzo reported to work as usual. After completing one airport run, Mr. Milazzo was told to go to the office, where he met with one of the dispatchers - an individual identified only as Denis. According to Mr. Milazzo, Denis told him that the company had been notified of Mr. Milazzo’s positive test results. Denis then advised Mr. Milazzo that he was suspended from work for two days, until Pierre Bougie could review the matter, and decide what to do with Mr. Milazzo. [13] It appears that Autocar Connaisseur had recently become unionized. Although Mr. Milazzo asserts that he was not a member of the union, he says that in the course of his discussion with Denis, Denis told Mr. Milazzo that he would try to get a union delegate to assist Mr. Milazzo, and that hopefully, Mr. Milazzo would be able to stay with the company. [14] Two days later, Mr. Milazzo met with Pierre Bougie. M. Bougie did not testify, and his role with the company was never explained. It appears that M. Bougie was a member of the senior management at Autocar Connaisseur. Mr. Milazzo says that he told M. Bougie that he really loved his job, and that he was ready to go to rehab for what happened. Mr. Milazzo testified that he also asked for a second test, to be sure that he had really tested positive.[2] M. Bougie evidently responded by saying that he was sorry, but there was nothing that he could do - he had to fire Mr. Milazzo. [15] During this meeting, M. Bougie had Mr. Milazzo sign a document which was written entirely in French. Mr. Milazzo testified that he has difficulty reading French, but that M. Bougie explained that a union representative should have been present at the meeting, and that, by signing the document, a union representative would be made available to assist him. In fact, the document is a waiver of Mr. Milazzo’s right to have a union representative present at the meeting. Mr. Milazzo was quite confused in his testimony on a number of points, including the status of the union at Autocar Connaisseur. We are not persuaded that M. Bougie intentionally misled Mr. Milazzo in order to have him sign the document. In all of the circumstances, we are of the view that it is more probable that Mr. Milazzo simply did not understand the explanation offered by M. Bougie regarding the issue of union representation. [16] There are a number of inconsistencies in Mr. Milazzo’s evidence regarding his dealings with M. Bougie. Although Mr. Milazzo initially testified that M. Bougie was clear during the meeting that he had no choice but to fire Mr. Milazzo, Mr. Milazzo also says that M. Bougie said due to the circumstances I cannot put you back to work right now. Give me a couple of days and I will see what I can do. Mr. Milazzo then says that after his meeting with M. Bougie, he waited to hear from a union representative. He states that he made no effort to contact a union representative, as he was not allowed to be anywhere near the offices of Autocar Connaisseur. [17] A couple of days later, Mr. Milazzo received his Record of Employment from Autocar Connaisseur, indicating that he had been dismissed. Despite his testimony that he was not allowed near Autocar Connaisseur’s premises, Mr. Milazzo says that he then went back to see M. Bougie, asking that he be laid off. Mr. Milazzo says that he did this so that he would be able to collect Employment Insurance benefits. This testimony must be considered in light of Mr. Milazzo’s subsequent assertion that it was several months before he became aware that the termination of his employment by Autocar Connaisseur for cause would disentitle him to EI benefits. [18] According to Mr. Milazzo, M. Bougie refused to lay him off. [19] It is common ground that Mr. Milazzo’s employment was terminated as a result of his positive drug test, and ultimately, nothing turns on these inconsistencies in Mr. Milazzo’s testimony. Nevertheless, these and other inconsistencies in Mr. Milazzo’s testimony cause us to approach his evidence regarding more central issues with some caution. II. The Motor Coach Industry [20] Evidence with respect to the state of the motor coach industry was provided by James Devlin, and Brian Crowe. Mr. Devlin is the current President of Autocar Connaisseur. Mr. Crowe is the President of Motor Coach Canada, the trade association representing motor coach companies and motor coach tour operators in Canada. Motor Coach Canada represents approximately 95 bus operators and 115 tour operators - somewhere between 75% and 90% of the Canadian industry. [21] Motor coach companies generally have approximately 75% of their employees working as drivers. Fifteen or 20% of the employees are mechanics, and the remainder provide administrative services. Most Canadian companies are fairly small, family-run businesses. [22] The motor coach industry operates on an on demand basis. According to Mr. Crowe, a typical operator in the bus industry operates 24 hours a day, 7 days a week. As Mr. Crowe noted, the industry has to have services available when people want to move. This means that route patterns may be quite unpredictable: Mr. Crowe cites the example of travel to the United States, stating that a company may not go to the United States at all one month, and then make 20 U.S. trips the next month, because of customer demand. [23] According to Mr. Crowe, it is this ability to respond quickly to customer demand that is one of the strengths of the motor coach industry. A. The Economic Condition of the Motor Coach Industry [24] Mr. Crowe described the Canadian motor coach business as a mature industry, meaning that there is little growth in this sector. Indeed, the industry is in decline. Mr. Crowe explained that charter bus companies in Canada have to compete against heavily subsidized transport providers such as the airlines and Via Rail. World events, such as the Gulf War, the September 11,2001 attacks, the war in Iraq, the SARs epidemic and the outbreak of Mad Cow disease in western Canada have combined to greatly reduce the tourism business available to the motor coach industry. [25] The state of the market creates serious economic challenges for motor coach operators. Mr. Crowe explained that a motor coach costs $600,000.00. Charter rates in Canada now vary between $500 and $700 per day, meaning that bus companies operate on very thin margins. This has resulted in a number of company bankruptcies in the industry in recent years. B. The Regulatory Environment [26] The motor coach industry in Canada is heavily regulated. Because Autocar Connaisseur operates out of the Province of Quebec, it is the regulatory environment in that Province that is germane to our inquiry. [27] An Act respecting owners and operators of heavy vehicles[3] (Bill 430) came into force in Quebec in 1998, as a result of the tragedy at Les Éboulements - a bus accident that took some 40 lives. The Bill was designed to increase road safety, and introduced an administrative registration system for owners and operators of heavy equipment, including buses. Amongst other things, this regulatory scheme calls for on-going conduct reviews. The Quebec Transport Commission is authorized to impose administrative measures on operators who have been assigned conditional or unsatisfactory safety ratings. In particular, the Commission has the power to cancel the operating licences of companies who are found to have operated in an unsafe manner, effectively putting them out of business. As will be described further on in this decision, in 1999, Autocar Connaisseur was itself the subject of safety-related proceedings before the Transport Commission, and was at risk of losing its operating licence. [28] Amongst other safety measures implemented as a result of Bill 430, motor coach company registration forms require bus companies to advise whether the company has a plan in place to control the consumption of alcohol and drugs by bus drivers. [29] There are numerous other statutory obligations imposed on bus operators, including obligations under the Canada Labour Code[4], the federal Motor Vehicle Transport Act[5], 1987, and the Quebéc Civil Code. [30] Cross-border travel presents a particular challenge for bus operators, as operators providing services to the United States are also subject to American laws, including laws relating to drug testing. C. Cross-Border Travel and American Regulatory Requirements [31] Evidence with respect to the American environment was introduced through Ms. Barbara Butler, as well as through Mr. Crowe and Mr. Devlin. Ms. Butler was qualified as an expert in policy development and implementation for issues relating to alcohol and drugs in the workplace. [32] American law requires that bus drivers operating vehicles in the United States be subjected to pre-employment, random, post-accident and for-cause[6] drug testing. The testing process is subject to strict regulation, and there are stringent protocols in place regarding the collection and analysis of samples. [33] Several witnesses testified that the use of drug testing in the transportation industry was introduced as a part of the American War on Drugs. Whatever the reasons for the enactment of the legislation, as of July 1, 1996, commercial motor vehicle operators driving in the United States are subject to Federal Department of Transportation Alcohol and Drug Testing Regulations. This legislation also applies to Canadian companies driving in the United States, as well as to any Canadian driver who has the reasonable potential for crossing the border. According to Ms. Butler, this means any driver ... who can, will or does cross the border. [34] Ms. Butler testified that infractions of the law are treated very seriously by the American authorities: companies are liable to fines of up to $10,000 (US), per driver, per trip, if drivers enter American territory without having been tested for alcohol or drugs. American government auditors regularly visit bus companies in Canada, in order to ensure that any cross-border travel is carried out in accordance with the American regulatory regime. Flagrant violations of U.S. law can result in the cancellation of the certification that bus companies require to drive in the States. D. Drug Testing in the Canadian Motor Coach Industry [35] According to Mr. Crowe, about 90% of Canadian motor coach operators are licenced to drive in the U.S. As a result, the issue of drug testing is of considerable importance to the motor coach industry. [36] Ms. Butler, Mr. Crowe and Mr. Devlin all expressed frustration with the Canadian government’s actions regarding the application of U.S. law to Canadian bus companies. The American government initially looked at implementing alcohol and drug testing in the transportation industry in the 1980's. At that time, the Canadian federal Department of Transport expressed some interest in working with the motor coach industry, in order to develop a legislative framework to integrate US legal requirements into the Canadian milieu. Ultimately, however, the Department opted not to involve itself in the issue, leaving Canadian bus companies to their own devices in trying to figure out how best to deal with American legal requirements, while still complying with Canadian human rights law. [37] Ms. Butler testified that most Canadian bus companies use alcohol and drug testing. Some companies segregate their drivers into two pools - one composed of drivers who travel on U.S. routes, or have the potential to drive to the U.S., and a second pool composed of drivers who only drive on Canadian routes. In such cases, only the former group will be tested. However, many companies have concluded that they want the same safety standards for all of their drivers, and subject all of their drivers to alcohol and drug testing as a result. In some companies, all drivers either go to the U.S. on a regular basis, or have the potential to drive there. In these companies, all drivers will therefore be subject to alcohol and drug testing. III. Autocar Connaisseur A. The Situation at Autocar Connaisseur in 1997-1999 [38] At the time that Mr. Milazzo started working for Autocar Connaisseur, the company was owned by the Calci family. Lorenzo Calci ran the company on a day-to-day basis. In June of 1997, the company was acquired by Coach U.S.A. Inc. of Houston, Texas. Mr. Calci initially stayed on as President of Autocar Connaisseur until November 1997, when he was replaced by Mr. Devlin. Mr. Devlin was the President and former owner of several other bus companies that had been acquired by Coach U.S.A. [39] Mr. Devlin testified that when Coach U.S.A. took control of Autocar Connaisseur, it quickly discovered that the company was in serious trouble. According to Mr. Devlin, record - keeping at the company was nonexistent, inventories were greatly overstated, and buses that were recorded as being part of the fleet could not be found. At the same time, the company was facing an application for certification from a trade union. [40] As was previously noted, the bus industry in Quebec is under the supervision of the Quebec Transport Commission. In late 1997, Mr. Devlin became aware that the Société de l’assurance-automobile du Quebéc (or SAAQ) had commenced proceedings before the Transport Commission against Autocar Connaisseur. SAAQ was evidently seeking to have Autocar Connaisseur’s operating license cancelled because of the way that the company was conducting its business. Autocar Connaisseur’s new owners discovered that the company had previously lost its right to certify the roadworthiness of its buses, because of earlier problems with the Transport Commission. According to Mr. Devlin, at this point, serious consideration was given to simply shutting the company down, although ultimately the decision was taken to work with the SAAQ, to try to turn the situation around. [41] Mr. Devlin testified that he attended a show-cause hearing before the Transport Commission in January of 1999. At the hearing, Mr. Devlin explained the different programs that he was going to implement at the company, dealing with bus safety and driver education. Mr. Devlin advised the Commission that it would take six to nine months before the company would be in total compliance with the applicable regulations. The hearing resulted in a warning to Autocar Connaisseur that any further infractions would result in the automatic cancellation of the company’s operating licence. Such a step would mean the end of Autocar Connaisseur. [42] One of the measures taken by Autocar Connaisseur to satisfy the commitments made to the Transport Commission was a review of the implementation of the company’s drug testing policy. It was this review that ultimately led to Mr. Milazzo being tested. B. Drug Testing at Autocar Connaisseur [43] According to Denis Filiatrault, a long time bus driver and tour guide at Autocar Connaisseur, the company had long had an unwritten zero tolerance policy regarding alcohol and drug s in the workplace. In late 1991 or 1992, Autocar Connaisseur introduced a written policy, which was the policy in effect at the time that Mr. Milazzo was tested. This policy was intended to apply to all of the company’s drivers. [44] Mr. Filiatrault explained that the policy was well known to Autocar Connaisseur employees. Copies of the policy were included with employees’ pay information on at least two occasions, although it appears that this may have only occurred at the time that the written policy was first introduced in the early 1990's, well before Mr. Milazzo joined Autocar Connaisseur. The orientation program for new employees included a segment dealing with alcohol and drug testing, and the company’s zero tolerance approach to alcohol and drugs in the workplace was often discussed at employee training sessions. Mr. Filiatrault and Mr. Milazzo agree that a copy of the policy was posted on the bulletin board in the driver’s lounge at Autocar Connaisseur. [45] Autocar Connaisseur’s drug testing policy provides for both pre-employment and random testing. All Autocar Connaisseur drivers were subjected to pre-employment alcohol and drug testing. According to Mr. Devlin, if a prospective employee tested positive for either alcohol or drugs, Autocar Connaisseur’s offer of employment would then be withdrawn. [46] Once a driver was employed by Autocar Connaisseur, he or she would be required to undergo random alcohol and drug testing. In order to carry out these random tests, all employees’ names were entered into a computer, whereupon the computer would periodically generate random lists of employees identified for testing. Employees could also be tested after an accident, or where the company had concerns regarding possible alcohol or drug use by the employee. Autocar Connaisseur’s testing policy stated that all positive test results would result in the immediate termination of the driver’s employment. [47] Ms. Butler has worked with all of the major bus companies in Canada. She testified that Autocar Connaisseur’s approach to alcohol and drug testing was similar to that taken by many small Canadian bus companies. [48] According to Mr. Devlin, the review of the administration of the company’s alcohol and drug testing program after the Transport Commission hearings disclosed numerous problems with the way in which the policy was being implemented. In particular, Autocar Connaisseur management became aware that drivers were not being told of their appointments for random tests. An audit of the program was then conducted by Peter Booth. Mr. Booth reported to Mr. Devlin, and was identified as the Director of Safety.[7] From a review of Autocar Connaisseur’s payroll records, Mr. Booth discovered that certain drivers, including Mr. Milazzo, had not been included in the testing pool. [49] Mr. Devlin testified that American Transportation regulations require that employees must first have a pre-employment test, before they can be included in the testing pool for random drug tests. For this reason, Autocar Connaisseur considers the drug test taken by Mr. Milazzo to be a pre-employment test, notwithstanding the fact that Mr. Milazzo had been working for Autocar Connaisseur off and on for several years prior to the test. C. The Accommodation of Alcohol or Drug Dependent Employees by Autocar Connaisseur [50] Mr. Milazzo was summarily fired once his drug test came back positive for the presence of cannabis metabolites. It is common ground that no attempt was made to ascertain whether Mr. Milazzo suffered from a substance abuse disorder, or was merely a casual user of cannabis. Further, there is no suggestion that any attempt was made to accommodate Mr. Milazzo, once the results of his drug test were known. [51] According to Mr. Devlin, although it was not explicitly spelled out in Autocar Connaisseur’s original written drug testing policy, the company is quite prepared to accommodate employees with problems, including substance abuse disorders, provided that the employee comes forward voluntarily, and admits to having a problem. Examples were cited of employees who had acknowledged suffering from gambling addictions or alcoholism. In each case, Mr. Devlin says the employees were offered the opportunity to rehabilitate themselves, and resume active service with the company. [52] The company is not, however, prepared to allow an employee who tests positive in an alcohol or drug test the chance to undergo rehabilitation. According to Mr. Devlin, an employee who knowingly comes to work with alcohol or drugs in his system so fundamentally breaches the trust between employer and employee that there is no alternative but to terminate the employment relationship. Mr. Crowe testified that most Canadian bus operators respond to a positive drug test by terminating the employee. [53] If an employee tests positive in a random, post-hiring drug test, Autocar Connaisseur will provide the employee with the name of a substance abuse professional, but the employee is still fired. An individual who tests positive in a pre-employment test is not referred to a substance abuse professional. Rather, the individual is simply not hired by Autocar Connaisseur. Because Autocar Connaisseur viewed Mr. Milazzo’s drug test as a pre-employment test, no effort was made to provide Mr. Milazzo with the name of a substance abuse professional once it was known that he had tested positive. [54] It is clear from Mr. Devlin’s testimony that he was of the view that Mr. Milazzo had tried to beat the system, and had knowingly put the ongoing existence of the company at risk by driving to the United States without having first undergone a pre-employment drug test. Mr. Devlin explained that if Mr. Milazzo had been caught driving a bus in the United States without having first been tested, Autocar Connaisseur would have been exposed to significant fines and the potential loss of its American operating licence. In addition, the Autocar Connaisseur bus could have been impounded by the American authorities. Passengers would thus have been stranded in the States, until Autocar Connaisseur could send a second bus to bring them home. In addition to the negative customer relations impact that this would have had, Autocar Connaisseur would also have incurred the expense of the second bus, and would have been exposed to potential claims from unhappy passengers for the disruption to their vacations. D. Autocar Connaisseur’s New Drug Testing Policy [55] Subsequent to the termination of Mr. Milazzo’s employment with Autocar Connaisseur in 1999, Coach Canada has developed a new alcohol and drug testing policy, applicable to employees of Autocar Connaisseur. Ms. Butler, who worked with Coach Canada in the development of the new policy, explained that the policy remains one of zero tolerance, but now sets out clear rules, investigative tools and consequences for employees. The policy also focuses on prevention, through the use of supervisor training, and by encouraging employees to come forward voluntarily and to seek help where an employee thinks that he or she may suffer from a substance abuse problem. [56] One of the most significant changes in the new drug testing policy is that the policy now covers bus mechanics and not just bus drivers. According to Mr. Devlin, bus mechanics are required to certify the road-worthiness of company buses, and, like drivers, are in safety sensitive positions. IV. The Legal Framework [57] Mr. Milazzo’s complaint is brought pursuant to sections 7 and 10 of the Canadian Human Rights Act. Section 7 makes it a discriminatory practice to refuse to employ, or to continue to employ, an individual, on a prohibited ground of discrimination. Section 10 makes it a discriminatory practice for an employer to establish or pursue a policy that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. [58] Section 3 of the Act designates disability as a prohibited ground of discrimination. Section 25 of the Act makes it clear that the term disability includes previous or existing dependence on alcohol or a drug. [59] Pursuant to section 15(1)(a) of the Act, it is not a discriminatory practice to treat an employee in a differential fashion, where the differential treatment is based upon a bona fide occupational requirement. [60] As a result of the Supreme Court of Canada decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU[8] ('Meiorin') and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights)[9] ('Grismer'), the historic distinction between direct and indirect discrimination has been replaced by a unified approach to the adjudication of human rights complaints. Under this approach, the initial onus is still on a complainant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent.[10] [61] Once a prima facie case of discrimination has been established, the onus shifts to the respondent to prove, on a balance of probabilities, that the discriminatory standard or policy is a bona fide occupational requirement. In order to establish this, the respondent must now prove that: it adopted the standard for a purpose that is rationally connected to the performance of the job; it adopted the standard in good faith, in the belief that it is necessary for the fulfilment of that legitimate work-related purpose; and 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 an individual employee sharing the characteristics of the claimant without imposing undue hardship on the employer.[11] [62] Subsection 15 (2) of the Act stipulates that the factors that may be considered in assessing whether or not an undue hardship defense is made out are health, safety and cost, although the term 'undue hardship' itself is not defined in the Act. However, Meiorin and Grismer provide considerable guidance in determining whether or not an undue hardship defense has been made out. In Meiorin, the Supreme Court observed that the use of the word 'undue' implies that some hardship is acceptable - it is only 'undue' hardship that will satisfy the test.[12] The Supreme Court has further observed that in order to prove that a standard is reasonably necessary, a respondent always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship.[13] It is incumbent on the respondent to show that it has considered and reasonably rejected all viable forms of accommodation. The onus is on the respondent to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship.[14] The adoption of the respondent's standard has to be supported by convincing evidence. Impressionistic evidence will not generally suffice.[15] Finally, factors such as the financial cost of methods of accommodation should be applied with common sense and flexibility in the context of the factual situation under consideration.[16] V. What Is The Standard? [63] It is common ground that what is in issue in this case is Autocar Connaisseur’s zero tolerance drug policy. The question then arises: Zero tolerance of what? Zero tolerance of employee impairment? Or zero tolerance of employees having drug metabolites in their systems?[17] [64] This question is best answered by considering the wording of the policy itself. Autocar Connaisseur’s alcohol and drug policy discloses that the mischief that the policy is aimed at addressing is employee impairment. The policy states: [Translation] Our policy is simple, it is a tolerance zero policy. That is, we cannot at anytime, afford to have employees who are intoxicated while on duty. (Notre politique est simple, il s’agit d’un niveau de tolérance zéro. En effet, nous ne pouvons nous permettre d’avoir des employés en état d’intoxication à quelque mo- ment que ce soit durant leur période de travail.) [65] However, the standard that will attract adverse employment consequences is the presence of drug metabolites in an employee’s urine: [Translation] All bus drivers will be tested upon receiving an offer of employment. Thereafter, they will be tested randomly in accordance with American legislation. Any positive result will lead to an automatic termination of employment. (Tous nos employés chauffeurs seront testés dès qu’une offre d’emploi leur sera faite. Par la suite, conformément à la législation américaine, ils seront testés au hasard. Tout résultat positif entraînera le congédiement automatique.) [66] Having concluded that the standard in issue in this case is Autocar Connaisseur’s prohibition on employees having drug metabolites in their system while at work, we will now consider the application of the standard, first in the context of Mr. Milazzo’s section 7 complaint, and then in the context of the section 10 complaint. VI. The Section 7 Complaint A. Is There a Prima Facie Case of Discrimination? [67] In considering this complaint, we must first decide if Mr. Milazzo and the Commission have established a prima facie case of discrimination on the basis of disability. Autocar Connaisseur contends that no prima facie case has been established here, as it has not been proven that Mr. Milazzo actually suffered from a disability. The respondent further submits that in light of the wording of Section 25 of the Canadian Human Rights Act, the concept of perceived disability has no application in the case of drug dependence. In any event, the respondent says, Autocar Connaisseur did not perceive Mr. Milazzo to be disabled. B. Did Mr. Milazzo suffer from a disability? [68] The first question, then, is whether Mr. Milazzo suffered from a disability.[18] Although not necessarily dispositive of the issue, it should be noted that at the hearing Mr. Milazzo did not assert that he suffered from a drug-related disability at the time of his positive drug test. [69] In understanding issues related to substance abuse and dependency, the Tribunal was aided by the testimony of Dr. Ray Baker and Dr. Jean-Pierre Chiasson. Dr. Baker was called by the Commission, and was qualified as an expert in addiction medicine, and the pharmacology, physiology, detection and treatment of substance abuse disorders. Dr. Chiasson was called by Autocar Connaisseur, and was qualified as an expert in addiction medicine, in particular, the detection and treatment of substance abuse and dependence. Both doctors have considerable experience with workplace issues relating to drug use. [70] Dr. Baker and Dr. Chiasson were in substantial agreement that drug users fall into one of three categories: casual users, drug abusers and those who are drug dependent. Both doctors agree that casual users make a conscious choice to ingest drugs, and can basically take it or leave it at will. They also agree that individuals who have become addicted or dependent on drugs lose their ability to control their drug use, and suffer from a disease. Dr. Baker refers to the disease as neurobiological in nature, whereas Dr. Chiasson calls it a brain disease. Whatever the appropriate description, the experts agree that drug dependent individuals suffer from a disability. [71] The point at which the doctors diverge is in relation to the proper characterization of individuals in the intermediate stage of drug use - that is drug abuse. In Dr. Baker’s view, drug abusers may suffer negative consequences as a result of their use of drugs, and may engage in hazardous behaviour, but these individuals have not lost control of their drug use. In other words, for the drug abuser, continued ingestion of drugs is still a chosen behaviour. According to Dr. Baker, drug abusers do not require treatment. [72] Dr. Chiasson agrees that for drug abusers, continued drug use is more a matter of personal choice than a reflection of a loss of control. However, Dr. Chiasson testified that drug abuse causes problems for the individual, and can lead to drug dependance. For this reason, drug abuse is listed in the Fourth Edition of the Diagnostic and Statistical Manual published by the American Psychiatric Association. In Dr. Chiasson’s opinion, both drug abuse and drug dependancy are brain diseases. [73] As will be seen from the discussion that follows, we do not find it necessary to resolve the disagreement between the experts on this point. [74] It will be recalled that Mr. Milazzo testified that when he was confronted with the positive result of his drug test, he told M. Bougie that he was ready to go to rehab for what happened. One conclusion that could be drawn from this statement is that, as of August of 1999, Mr. Milazzo may have perceived that he had a problem with his cannabis use, and was seeking help. Of course, another reasonable inference is that Mr. Milazzo was desperate, and was saying whatever he thought it would take to help him keep his job. [75] At the hearing, Mr. Milazzo testified that he used cannabis on a strictly recreational basis. In a letter sent to the Commission during the course of the investigation, Mr. Milazzo stated that he had consumed cannabis during his vacation, several weeks before his drug test, and that this had led to the positive result. However, other evidence before the Tribunal casts serious doubt on the reliability of Mr. Milazzo’s explanation. [76] Dr. Baker testified that Mr. Milazzo’s urine contained 64 nanograms of cannabis metabolite[19] per milliliter of urine. Both Dr. Baker and Dr. Chiasson discussed the half-life of cannabis, and the rate at which cannabis metabolites are excreted by the human body. Factors influencing the level of the metabolite in the system include the amount of cannabis ingested, the potency of the cannabis, and when the ingestion took place. The frequency of ingestion is also significant: Dr. Chiasson explained that a one-time user will excrete all of the metabolite within a couple of days of ingestion. However, because cannabis metabolites are fat soluble, and build up in body fat with regular use, long term users will continue to excrete cannabis metabolites in their urine for up to sixty days after the last ingestion of cannabis. [77] How then does Mr. Milazzo’s testimony accord with the scientific data? [78] Dr. Baker did not have any information regarding Mr. Milazzo’s claims as to the frequency of his drug use, and thus was not in a position to offer an opinion as to whether Mr. Milazzo’s testimony accorded with scientific knowledge regarding the excretion of cannabis metabolite. Based upon Mr. Milazzo’s test results alone, Dr. Baker could not offer an opinion as to whether Mr. Milazzo was a drug abuser, or suffered from drug dependance. [79] Dr. Chiasson agrees with Dr. Baker that one cannot deduce whether Mr. Milazzo was a casual user, an abuser, or drug dependent from the results of one drug test. However, Dr. Chiasson says that the test results call Mr. Milazzo’s credibility into serious question. Dr. Chiasson was unequivocal that the level of cannabis metabolite found in Mr. Milazzo’s urine on August 20, 1999, was inconsistent with Mr. Milazzo’s being a recreational user who had consumed cannabis several weeks before the test. Citing existing research in the area, Dr. Chiasson stated that it is improbable that an individual who was a casual user would still test positive for the presence of cannabis metabolites even five days after his last use. If Mr. Milazzo truly had not consumed cannabis for some time before the test,[20] the continuing presence of cannabis metabolite in his urine suggests long-term use, rather than occasional consumption. [80] Mr. Milazzo insisted, under oath, that he was strictly a recreational cannabis user. While Dr. Chiasson’s testimony leads us to suspect that Mr. Milazzo may well have had a more serious problem with his drug usage than he would have us believe, Mr. Milazzo has the burden of establishing that he suffered from a disability. In light of the inconsistencies in the evidence, we find that this burden has not been met.[21] [81] The fact that we are not persuaded that Mr. Milazzo suffers from a disability is not necessarily fatal to Mr. Milazzo’s section 7 complaint. Mr. Milazzo asserts that Autocar Connaisseur perceived that he suffered from a drug-related disability, and thus the issue of perceived disability must be considered. C. Does the Concept of Perceived Disability Apply to Cases of Alcohol or Drug Dependence? [82] Autocar Connaisseur acknowledges that in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City[22]), the Supreme Court of Canada held that the prohibition against discriminating on the basis of handicap or disability extends to prohibit discrimination based on perceived disabilities as well. [83] However, counsel for Autocar Connaisseur notes that the decision in Boisbriand was based on the Québec Charter of Human Rights and Freedoms[23]. The Supreme Court also considered section 3 of the Canadian Human Rights Act, which includes disability as one of the prohibited grounds of discrimination. Counsel submits that in this case, regard must be had to the express wording of section 25 of the Act. Parliament has provided a specific definition for disabilities arising out of drug dependency, stating that disability includes ... previous or existing dependence on alcohol or a drug. No mention is made of the concept of perceived disability in section 25. Thus, Autocar Connaisseur says, Mr. Milazzo must establish that he actually suffered from a previous or existing dependence on a drug. The concept of perceived disability has no application in this case. [84] In support of its argument, counsel cites the Tribunal decision in Vermette v. Canadian Broadcasting Corp.[24] At issue in Vermette was whether the mere assertion that a complainant had previously been dependent on alcohol or a drug was sufficient to bring a case within the purview of section 25. The Tribunal concluded that it was not enough for a complainant to assert that she had a past dependency. There must be evidence before the Tribunal of a continuing disability, which disability is related to the past alcohol or drug dependence. With respect, we do not read Vermette, which predates the Supreme Court’s decision in Boisbriand, to address the question of the applicability of the notion of perceived disability to cases of alcohol or drug dependence. [85] It is true that Boisbriand makes reference only to section 3 of the Canadian Human Rights Act, and does not expressly import the notion of perceived disability into section 25 of the Act. However, while section 25 does not expressly prohibit discrimination based on perceived dependance on alcohol or drugs, neither does section 3 of the Act. Nevertheless, using a purposive interpretation, the Supreme Court was able to interpret the prohibition against discrimination on the basis of disability to include the prohibition against discrimination on the basis of a perceived disability. [86] It is well established that human rights statutes are to be given a purposive interpretation - one that will best achieve their objectives.[25] In the case of the Canadian Human Rights Act, Parliament has identified the purpose of the Act in section 2, stating that: The purpose of this Act is to extend the laws in Canada to give effect ... to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on .... disability. [87] Thus, the purpose of the Act is to allow individuals the opportunity to realize their full potential, without being limited by arbitrary assumptions about their abilities, based upon their personal characteristics. A refusal by an employer to employ an individual, based upon the employer’s perception that the individual is dependent on alcohol or drugs would, in our view, be contrary to the aims of the Act. Thus, the objectives of the Canadian Human Rights Act are best achieved by interpreting section 25 of the Act to include the prohibition against discrimination on the basis of a perceived disability. [88] Having concluded that section 25 of the Canadian Human Rights Act includes the prohibition against discrimination on the basis of a perceived disability, the final issue for the Tribunal is to determine whether Autocar Connaisseur perceived that Mr. Milazzo suffered from a drug related disability. D. Did Autocar Connaisseur perceive Mr. Milazzo to be drug dependent? [89] The evidence before us does not establish that Autocar Connaisseur perceived Mr. Milazzo to suffer from a drug related disability. The evidence of Mr. Devlin shows that the reason that Mr. Milazzo was tested in August of 1999 was because Autocar Connaisseur had just discovered that he had not been subjected to a pre-employment test, as was required by Autocar Connaisseur’s drug testing policy. There is nothing before us that would suggest that anyone at Autocar Connaisseur had any suspicions that Mr. Milazzo might be using drugs, or any concerns with respect to his performance. [90] When Autocar Connaisseur became aware that Mr. Milazzo had tested positive for the presence of cannabis metabolites, Mr. Milazzo was summarily fired. There is no suggestion that any questions were asked, or any investigation carried out in order to determine whether Mr. Milazzo was drug dependent. Mr. Milazzo was fired because he failed his drug test. No one at Autocar Connaisseur knew, or cared, whether Mr. Milazzo was dependent on drugs. Indeed, there is nothing before us to suggest that anyone at Autocar Connaisseur ever turned their mind to the issue. E. Conclusion Regarding Mr. Milazzo’s Section 7 Complaint [91] This is not an action for wrongful dismissal, and it is not for this Tribunal to determine whether testing positive for the presence of a cannabis metabolite constitutes just cause for Mr. Milazzo’s dismissal by Autocar Connaisseur. [92] In order to benefit from the protections afforded by the Canadian Human Rights Act, a complainant must demonstrate the involvement of one or more of the proscribed grounds listed in section 3 of the Act. Having failed to establish that he was either disabled, or was perceived by Autocar Connaisseur to be disabled, Mr. Milazzo has not established a prima facie case of discrimination, and accordingly, his section 7 complaint must therefore be dismissed. [93] Having dismissed Mr. Milazzo’s section 7 complaint, the section 10 complaint remains to be considered. VII. The Section 10 Complaint [94] In contrast to complaints under section 7 of the Canadian Human Rights Act, which relate to employer actions affecting specific, named individuals, section 10 of the Act addresses the discriminatory effect that employer policies or practices may have on an individual or a class of individuals. The focus of our inquiry with respect to the section 10 complaint is thus not confined to the circumstances of Mr. Milazzo’s own situation. A. Is There a Prima Facie Case of Discrimination? [95] We have no hesitation in finding that Autocar Connaisseur’s drug testing policy prima facie discriminates against employees who are drug dependent. Mr. Devlin testified that in cases where a prospective employee tested positive for drugs in a pre-employment test, Autocar Connaisseur’s offer of employment would be withdrawn. Similarly, an Autocar Connaisseur employee who tested positive would have his or her employment summarily terminated. [96] Some of these individuals will inevitably suffer from substance related disabilities. Indeed, Dr. Chiasson testified that a 1995 study disclosed that 50% of the employees who tested positive in a study of drug testing in industry suffered from either substance abuse or dependancy. [97] The fact that Autocar Connaisseur’s drug testing policy has an adverse, differential effect on a protected class of individuals means that the policy is prima facie discriminatory.[26] Indeed, Mr. Devlin admitted as much in his testimony, and counsel for the respondent conceded that a prima facie case of discrimination exists in relation to the section 10 complaint. B. Has Autocar Connaisseur Discharged its Burden? [98] Having found that Autocar Connaisseur’s drug testing policy is prima facie discriminatory, the onus shifts to the respondent to establish that not having drug metabolites in one’s system is a bona fide occupational requirement for bus drivers. There are three elements that must be established in order to demonstrate the existence of a bona fide occupational requirement. Each of these elements will be considered in turn. (i) Rational Connection [99] In order to prove the existence of a bona fide occupational requirement, Autocar Connaisseur must first establish that requiring that its bus drivers not have drug metabolites in their systems is rationally connected to the function that drivers perform. The focus at this stage is not on the validity of the standard in issue, but rather on the validity of its more general purpose.[27] [100] We have previously identified the purpose of Autocar Connaisseur’s drug testing policy as being the prevention of employee impairment. The Commission concedes, and we find that Autocar Connaisseur’s goal of promoting road safety by preventing driver impairment is rationally connected to the business of providing bus transport. (ii) Good Faith [101] The second element that must be demonstrated by Autocar Connaisseur is that it adopted its zero tolerance standard in relation to the presence of drug metabolites in good faith, in the belief that it is necessary for the fulfilment of a legitimate work-related purpose. If the standard was not thought to be reasonably necessary or was motivated by discriminatory considerations, then it cannot be justified. [102] Once again, the Commission concedes that Autocar Connaisseur has acted in good faith in the promulgation of its drug testing policy. The Tribunal notes that, like other Canadian transport companies doing business in the United States, Autocar Connaisseur was placed in a very difficult position, as a result of the introduction of the American Department of Transport drug testing regulations. Transport companies were essentially left to fend for themselves, without any guidance or assistance from the Canadian government as to the appropriate method for satisfying American drug testing requirements within the Canadian legislative environment. It appears that Autocar Connaisseur did the best that it could, in difficult circumstances. [103] In all of the circumstances, the Tribunal is more than satisfied that the good faith element of the Meiorin test has been met. (iii) Reasonable Necessity [104] Finally, the onus is on Autocar Connaisseur to establish that its refusal to tolerate employees having drug metabolites in their system while at work is reasonably necessary to accomplish the company’s goal of promoting road safety, by preventing driver impairment . To show that the zero tolerance standard is reasonably necessary, it must be demonstrated that it is impossible for Autocar Connaisseur to accommodate disabled employees who test positive for drugs, without imposing undue hardship on the company. [105] In examining whether Autocar Connaisseur’s drug testing policy is reasonably necessary to promote road safety, consideration must first be given to the employment context in which Autocar Connaisseur’s bus drivers operate. (a) The Employment Environment for Bus Drivers at Autocar Connaisseur [106] Mr. Devlin described the duties associated with driving a motor coach, explaining that alertness, as well as an ability to multi-task are essential. In addition to having to navigate a large vehicle through traffic, drivers have to be aware of the passengers at all times. By way of example, Mr. Devlin says a driver has to be aware if a passenger gets up to use the washroom, as a quick manoeuver by the driver could result in serious injury to the passenger. [107] Further, the environment in which motor coach drivers work makes it very difficult for bus companies to ensure that drivers are always up to the task. [108] Unlike the situation in previous drug testing cases, where employees worked under fairly close supervision inside bank offices (TD Bank), petroleum processing plants (Entrop) or the administrative offices of an Indian Band (Elizabeth Métis Settlement), bus drivers at Autocar Connaisseur spend a considerable portion of their time on the road, away from the watchful eye of their superiors. Drivers doing casino and airport runs would be on the road much of each day, whereas drivers taking charter groups on tour could be away from the Autocar Connaisseur offices for as much as thirty days at a time. While drivers check in with Autocar Connaisseur dispatchers each day by telephone, the company is unable to verify that the driver had actually carried out the necessary pre-trip inspections, or to properly assess if the driver is indeed fit to drive. [109] Mr. Filiatrault testified that during the years that he has been with Autocar Connaisseur, problems have been encountered from time to time with bus drivers over-indulging in alcohol or other substances. These cases usually manifested themselves by drivers acting up in hotel bars during overnight stays during bus tours. Such incidents often came to the company’s attention when passengers present in the bar complained to the tour guide, if one was accompanying the driver, who would, in turn, report the driver’s behaviour to Autocar Connaisseur. [110] This inability on the part of Autocar Connaisseur management to closely supervise its workforce presents particular challenges for the company in monitoring employee performance. These difficulties are compounded by the somewhat transient nature of much of Autocar Connaisseur’s workforce, with many drivers working for the company on a seasonal basis. [111] Mr. Crowe described the precarious economic position of the Canadian motor coach industry, indicating that the situation at Autocar Connaisseur was no different than that at other Canadian motor coach companies. As Mr. Devlin explained, Autocar Connaisseur’s ability to monitor its workforce was also limited by the financial constraints under which the company operated. Mr. Devlin testified that in 1999, Autocar Connaisseur had a fleet of 125 buses. Although the company generated gross revenues of $10 million in 1998, in fact, Autocar Connaisseur was losing substantial sums of money. Mr. Devlin quickly realized that the charter market in Quebec was simply not there to support a fleet of that size. The decision was thus made to reduce the size of Autocar Connaisseur’s fleet, and the company currently operates 29 vehicles. [112] Subsequent events such as the terrorist attacks in the United States on September 11, 2001 further depressed the tourist industry. In 2002, the company realized a profit of $400,000 on sales of $5 million, but continues to carry an accumulated deficit of $10 million. (b) Route Assignments and Autocar Connaisseur Drivers [113] Mr. Filiatrault described the way in which routes are assigned to bus drivers. Autocar Connaisseur uses a seniority system for route assignment. Periodically, drivers are given the opportunity to bid on routes, with the most senior drivers choosing first. Mr. Filiatrault explained that the type of work that would be viewed as the most attractive would vary, depending on the types of clients and the distances involved. [114] According to Mr. Filiatrault, Mr. Calci would assist drivers with criminal records, who may have had problems entering the United States, by allowing them to drive on Canadian routes. It was not made clear how this would work, having regard to the seniority system.[28] [115] According to both Mr. Filiatrault and Mr. Devlin, there was no guarantee that drivers assigned to Canadian routes would not have to enter the United States on short notice. For example, the company could be called upon to provide a bus and driver in response to last minute charter requests. A bus could break down in the United States, making it necessary to send another driver and bus down to the States, to collect the passengers, and bring them back to Montreal. Even drivers assigned to airport runs could be called upon to drive to the United States on short notice, where, for example, a plane that was scheduled to land at Dorval airport was re- routed to Burlington, Vermont, because of weather conditions. [116] Indeed, Mr. Milazzo himself acknowledged that Autocar Connaisseur drivers could be called upon to drive anywhere. [117] During the time that Mr. Milazzo worked for Autocar Connaisseur, the company’s seasonal drivers would be laid off at the end of the tourist season, when the charter business dried up. Autocar Connaisseur’s permanent driving staff would then take over the contract work, such as casino and airport shuttle service. By the end of 1999, however, Autocar Connaisseur had lost both of these contracts. We were not told how many drivers Autocar Connaisseur now has on staff in the winter months. [118] With this understanding of the operating environment at Autocar Connaisseur, we will next examine the expert evidence regarding the use of drug testing in the workplace. (c) The Effects of Cannabis on the Brain [119] Dr. Baker and Dr. Chiasson each gave testimony with respect to the effects of cannabis consumption on the human brain, and once again were in substantial agreement on many points. The active ingredient in cannabis is Nine Delta tetrahydrocannabinol or 9 THC. The level of 9 THC in the cannabis available in Canada today is significantly higher than in the past, and the drug accordingly that much more potent. [120] Nine Delta tetrahydrocannabinol is released when cannabis is first ingested. The 9 THC takes effect immediately, with the acute phase of intoxication peaking ten to thirty minutes later. Cannabis users generally remain acutely intoxicated for a couple of hours, followed by a period of sub-acute intoxication. This sub-acute intoxication lasts for an additional 12-24 hours. [121] During the period of acute intoxication, the cannabis user experiences a sense of euphoria or high. During this phase, cannabis affects the user’s memory, cognition, perception and motor activity. This is followed by a period of coming down, that can last an hour or so. During this period, the user’s concentration, memory and reflexes may be affected. The intoxicating effect of cannabis may be enhanced or multiplied, if cannabis is ingested along with another intoxicant such as alcohol. [122] According to Dr. Chiasson, for chronic cannabis users, the sub-acute or hangover phase of cannabis intoxication is characterized by ongoing neuropsychological dysfunction that can impair the user’s ability to drive a motor vehicle. Chronic users of cannabis can require up to 28 days of abstention or washout before their neuropsychological tests results return to normal. Dr. Baker testified that studies have shown impairment of fine motor skills for up to 24 hours, post-consumption, although he indicated that there is some question as to the validity of these studies. [123] In some cases, the consumption of cannabis can have longer-term effects on the user’s ability to function. Chronic cannabis users can go through a period of withdrawal if they stop using the drug. Symptoms of withdrawal include irritability, restlessness, vivid disturbing dreams and poor concentration. These symptoms can persist for one to three weeks. During the withdrawal period, the user’s perception, cognitive functioning and motor skills could be sufficiently impaired that the individual should not operate a motor vehicle. [124] Flashbacks are a second potential long-term effect of chronic cannabis use. Dr. Chiasson testified that in some cases, chronic cannabis users can experience the symptoms of acute cannabis intoxication quite suddenly, without having actually ingested the drug. These recurrences or flashbacks typically occur when the user is tired or under stress. [125] Dr. Baker and Dr. Chiasson agree that individuals employed in safety sensitive positions - that is, positions where an employee could put his own safety or the safety of others at risk - should not be performing tasks such as driving motor vehicles while their ability to drive is impaired by the use of cannabis. (d) The Extent of the Problem in the Transportation Industry [126] Alcohol and drugs are widely used in the general population in Canada. Ms. Butler referred to 2001 data compiled by the Centre for Addiction and Mental Health, which indicates that 83.6% of men and 75.7% of women are current drinkers. Eighteen percent of adult males reported having driven within an hour of drinking two or more drinks. Current marijuana users constitute 15.4% of the adult male population, and 7.3% of the female population. Some 4.9% of current cannabis users met the criteria of dependency. The CAMH study also reports a steady increase in the use of cannabis. [127] Dr. Baker’s evidence in relation to cannabis was that 34% of Canadians have tried the drug. According to Dr. Chiasson, in the Province of Québec, nearly 40% of the population reports having tried cannabis. Ten to fifteen percent of cannabis users have problems of abuse or dependency, according to Dr. Chiasson. [128] Insofar as the transportation industry is concerned, Ms. Butler testified that the Canadian government’s lack of involvement in regulating alcohol and drug testing means that there is a limited amount of Canadian research available in this area. She did refer to a study conducted by the British Columbia Trucking Association in 1989. According to Ms. Butler, three-quarters of the drivers surveyed reported that alcohol had compromised safety, with one in nine drivers admitting that his or her own alcohol use had compromised safety at work. Seven out of ten drivers reported having worked while affected by alcohol, and half of the drivers reported knowing other drivers who drank at work. With respect to drugs, three-quarters of the drivers surveyed reported that drug use had compromised safety, with one in twelve drivers admitting that his or her own drug use had compromised safety at work. [129] This evidence certainly suggests that the use of drugs by drivers in the transportation industry is a real problem, with significant implications for public safety. [130] Evidence with respect to the level of alcohol and drug use in the transport industry in Quebec was provided by Maxime Brault, an epidemiological statistician with the Société de l’assurance-automobile du Quebec. M. Brault is currently involved in a study investigating road safety in the Province. In this context, M. Brault is investigating the use of alcohol and drugs by truck drivers in Quebec. In the course of M. Brault’s research, he familiarized himself with other research carried out by the SAAQ.[29] [131] A study conducted by the SAAQ in 2001 used the roadside interception of trucks on Quebec highways in order to measure the incidence of alcohol and drug use amongst truck drivers. The study disclosed that 9% of drivers tested positive for one or more drugs in their system, with 4.8% testing positive for the presence of cannabis metabolites. It should be noted that 17% of the intercepted drivers declined to participate in the study. [132] Insofar as the experience at Autocar Connaisseur is concerned, we were told that there have only been a couple of drivers in recent years who have had problems with alcohol. It appears that Mr. Milazzo is the only Autocar Connaisseur driver who has had a positive drug test. However, this evidence cannot necessarily be interpreted to mean that there is little problem with alcohol or drug use amongst Autocar Connaisseur drivers, and that therefore a drug testing policy is unnecessary. As will be explored more fully further on in this decision, there is at least some evidence that would suggest that the presence of an alcohol and drug testing policy may have a deterrent effect. (e) What Drug Tests Look For [133] Dr. Baker and Dr. Chiasson gave extensive testimony with respect to drug testing, and once again, were in substantial agreement on many points. Workplace drug testing programs typically test for what is known as the NIDA 5[30] group of drugs. These drugs are marijuana or cannabis, cocaine, amphetamines, phencyclodine and opiates. [134] In the case of cannabis, what is measured in the urine is 11-nor- -9-THC-9-COOH[31], a non-psychoactive by-product or metabolite produced when 9?THC is broken down in the body. In order to avoid false-positive tests in situations where, for example, an individual may have been passively exposed to cannabis in a smoky room, a cut-off level of 50 nanograms per millilitre is used. Urine samples containing less than 50 nanograms per millilitre of THC-acid will be recorded as negative. [135] A positive urine test will not indicate when the cannabis was used, or how much was ingested. All that a urine test shows is that an individual has used cannabis at some time in the past. [136] Unlike alcohol testing, where there is a direct correlation between the blood alcohol reading and the probable degree of impairment, the fact that an individual may test positive for the presence of cannabis metabolites in his urine does not mean that the individual was necessarily impaired at the time of the test. It takes thirty minutes after ingestion before cannabis metabolite will be detectable in urine, while the effect of the cannabis may peak as quickly as 10 minutes after consumption. As a result, an individual could be acutely intoxicated, and still test negative for cannabis metabolites. By the same token, cannabis metabolites could still be present in the system long after the individual ceases to be impaired. (f) The Efficacy of Drug Testing as a Means of Promoting Road Safety [137] The principle point of divergence between Dr. Baker and Dr. Chiasson relates to the efficacy of drug testing as a means of promoting road safety. The doctors agree that there is no single perfect means of detecting substance use in employees in safety sensitive positions, and that some cases will be missed, whatever approach is followed. While Dr. Chiasson believes that drug testing is a useful tool in managing employee impairment, Dr. Baker is of the view that there are other, more effective methods of achieving this goal. 1. Dr. Baker’s Position [138] According to Dr. Baker, there are many conditions that can compromise the ability of an employee in a safety sensitive position to perform his job in an appropriate manner. Alcohol or drug intoxication is one, but conditions such as fatigue, diabetes, depression and stress can all have a negative impact on employee performance. After alcohol, over-the-counter medications are the commonest source of employee impairment.[32] Dr. Baker questions the utility of testing for impairment caused by alcohol or any of the NIDA 5 drugs, when no tests are carried out with respect to these other common causes of impairment. [139] In Dr. Baker’s view, drug testing is a very blunt instrument. He feels that there are boundary issues involved, and that it is not an employer’s place to attempt to make medical diagnoses. Dr. Baker also questions the accuracy of drug test results, stating that employees exposed to regular testing quickly become adept at finding ways to beat the system through the use of adulterants and clean urine from other sources, or by drinking large quantities of water to dilute their own urine, thus reducing the concentration of drug metabolites below the permissible levels. [140] The preferable course is for employers to have clearly articulated policies, which are consistently applied. The workforce should be educated about substance abuse and the problems that it can cause. One goal of this training is to encourage employees to come forward if they observe a co-worker in trouble, rather than covering for the colleague, as is often the case. Supervisors should also be educated as to the warning signs of substance abuse disorders. Indicators that can often signal the presence of a substance abuse problem include things such as erratic employee attendance at work, behavioral issues and performance problems. [141] Once an employee is identified with a suspected substance abuse problem, the employee should be confronted about the employer’s concern. Assistance should be offered to the employee in dealing with the problem. The employer may demand that the employee remain off the job until the employee has been evaluated by a physician, and has been determined to be fit to return to work. [142] Cases where an employee breaches a zero tolerance policy through the voluntary ingestion of either alcohol or drugs, because of a personal choice as opposed to a dependency problem, should be dealt with through the regular employer disciplinary process, with sanctions up to and including termination. [143] In situations where employees are going to be put into safety sensitive positions, Dr. Baker says that employers have a responsibility to have the individuals medically assessed in order to ensure that they are able to safely carry out their job. This evaluation should include a thorough biological, psychological, social and addiction evaluation, looking for any conditions that could interfere with the person's ability to perform his job safely, including invisible disabilities such as diabetes, coronary artery disease and substance dependence. Drug testing may play a useful part in such an assessment. [144] According to Dr. Baker, the cost of such a pre-employment evaluation is in the vicinity of $500 to $800 per employee. [145] Dr. Baker testified that this approach can be a more effective method of detecting substance abuse problems in the workplace than drug testing. In support of this contention, he cited the example of a West Coast marine organization, where several prospective employees with substance abuse problems tested negative in drug tests, but were subsequently identified through the use of a pre-employment medical assessment. [146] In Dr. Baker’s view, drug testing also serves a useful role, as part of a monitoring program used to follow the recovery of individuals with substance abuse problems, after their return to work in safety sensitive positions. The Commission’s own policy relating to workplace drug testing recognizes the usefulness of drug testing where an employer has reasonable cause to believe that an employee may be impaired by alcohol or drugs, or where an incident such as an accident raises questions as to the employee’s fitness.[33] 2. Dr. Chiasson’s Position [147] Dr. Chiasson acknowledges that there are many other things that can impair employee performance, apart from the 5 drugs tested for in the NIDA 5 group. Drug testing is, however, one quick, reliable, cheap and easily administered tool that can effectively assist employers in identifying potential problems in employees in safety sensitive positions. [148] Dr. Chiasson agrees with Dr. Baker that drug testing is not perfect, but then, Dr. Chiasson says, neither is the type of assessment process advocated by Dr. Baker. Dr. Chiasson explained the difficulty in identifying some substance dependent individuals, noting that he has employed four secretaries with drug problems. Despite his training in the field, in each case, he was unaware of the individual’s situation. [149] Dr. Chiasson testified that he has assessed patients whose substance abuse problems were not obvious to him. In these cases, the diagnosis was ultimately made with the assistance of drug testing. For Dr. Chiasson, drug testing provides useful, objective information. [150] While acknowledging that there are methods that can be used to defeat drug tests, Dr. Chiasson says that testing laboratories are adept at detecting attempts to thwart the process. For example, the specific gravity of urine is analyzed, in order to see if the urine has been diluted. The temperature of the urine is measured, in an effort to identify situations where clean urine is being substituted for that of the test subject. Tests are also carried out for the presence of adulterants. [151] Drug tests do not operate in a vacuum, according to Dr. Chiasson. When an individual tests positive in a screening test, it is then necessary to subject the individual to an evaluation, in order to determine whether the person suffers from a dependency problem. He testified that the cost of a follow-up evaluation, once an individual tests positive, is between $2000 and $4000. [152] What a drug test does do is provide a snapshot, at a specific time, which will document whether a person has been in contact with an illegal, and potentially addictive psychoactive substance that has the potential to endanger safety. According to Dr. Chiasson, this signals to the employer that the test subject is at an increased risk of posing a danger to safety in the workplace. (g) Positive Drug Tests as an Indicator of Increased Risk [153] This takes us to the heart of the disagreement between Dr. Baker and Dr. Chiasson. Both doctors agree that the fact that an individual tests positive for the presence of cannabis metabolites in their urine does not mean that the individual was necessarily impaired at the time of the test. Where the experts appear to disagree is on the question of whether an employer should be able to use drug testing in order to evaluate workplace risk. [154] Dr. Baker testified that information from urine tests as to whether a test subject had been exposed to cannabis at some point would be useful information for a health professional in assessing the risk posed by that employee. Indeed, he seems to agree that there is a correlation between a positive drug test and an increase in risk, although he was not aware of any studies that have demonstrated a correlation between the two. In Dr. Baker’s view, it seems intuitive that this would be the case. [155] Dr. Baker’s real problem with employer drug testing relates to a philosophical concern with boundaries and the appropriate role of health care providers and employers, respectively. In Dr. Baker’s view, while an employer is absolutely entitled to evaluate workplace risk, he says that there are other ways that an employer can identify employees at risk of substance abuse problems, through the methods previously discussed, such as attendance monitoring. If an employer is going to test for health-related risk, then there are other health conditions that the employer should test for, in order to ensure that the workforce is not impaired. In Dr. Baker’s opinion, employers do not test for conditions such as diabetes or coronary artery disease, because they recognize that it is not their role to do so. By the same token, Dr. Baker says, it is not for employers to subject their employees to urine testing. [156] Although Dr. Baker was not aware of any studies in the area, it appears that some research has indeed been done on the relationship between positive urine test results and motor vehicle accidents. In Canada, the most relevant study is that currently being carried out by the SAAQ. M. Brault testified that the purpose of the study was to examine the role that alcohol and drugs played in fatal motor vehicle accidents on Quebec’s highways. [157] There are several aspects to this study. First, voluntary random roadside screening was carried out with respect to Quebec drivers, in order to determine the prevalence of alcohol and drug use by recreational drivers. A similar study was carried out for commercial drivers of vehicles weighing over 3000 kilograms, such as trucks and buses, to see if this group consumes the same substances, in the same proportions. In each case, the drivers were subjected to an interview, as well as to Breathalyzer, saliva and urine testing. Adjustments were made to the results to take into account the significant number of drivers who refused to participate in the study. [158] These results were then compared to the incidence of positive alcohol and drugs tests in another group of drivers. This group is comprised of drivers who had been killed in Quebec road accidents, in circumstances where the drivers had been deemed to be at fault in causing the accident. The results of this comparative analysis would then help determine whether the presence of certain substances in a driver’s system indicates that the driver presents a higher risk of being involved in an accident. [159] The analysis of the data relating to the random roadside screening of Quebec drivers has now been completed. For recreational drivers, cannabis was the drug most frequently found, with 6.7% of this group testing positive for the presence of cannabis metabolites.[34] [160] The aspect of the study dealing with the prevalence of alcohol or drug use amongst drivers causing fatal motor vehicle accidents is not yet final, because the researchers have not yet obtained a sufficiently large sample of data from deceased drivers in order to be completely satisfied beyond all doubt as to the reliability of the information. Preliminary results have, however, already been obtained and published. These results indicate that 69 out of 364 or 19.5% of deceased drivers responsible for fatal motor vehicle accidents tested positive for the presence of cannabis metabolites. By comparing this figure to the 6.7% incidence in the general driving population, the authors of the study have concluded that the presence of cannabis metabolites in a driver’s urine is associated with a 2.2 times greater risk of being involved in a fatal motor vehicle accident. [161] The actual risk of accident associated with cannabis impairment may in fact be more than 2.2 times greater, as people may continue to test positive for the presence of cannabis metabolites after they ceased to be impaired. [162] Given Dr. Baker’s acknowledgement that a positive drug test is useful in assessing the risk posed by a particular driver, coupled with the testimony of Dr. Chiasson and the findings, albeit preliminary in nature, of the SAAQ study, we are satisfied that urine testing for the presence of cannabis metabolites does assist in identifying drivers who are at an elevated risk of accident. (h) Do Drug Tests Serve to Deter Employee Impairment? [163] A further argument advanced in defense of the practice of drug testing bus drivers is the deterrent effect that the presence of a drug testing policy allegedly has. In support of this contention, Autocar Connaisseur points to the fact that between January 1, 2000 to March 20th, 2003, the company has carried out 166 random drug tests. During that thirty-nine month period, not one Autocar Connaisseur bus driver tested positive for alcohol or drugs. While impressive, the utility of this evidence is diminished by the fact that we do not have similar data for the period before the drug testing policy was introduced. In other words, there is no way of knowing how many Autocar Connaisseur drivers would have tested positive for either alcohol or drugs if Autocar Connaisseur had not had a clearly articulated alcohol and drug testing policy. [164] Ms. Butler testified that deterrence is an important part of any drug testing policy. While few studies have been undertaken on the deterrent effect of workplace drug testing policies, Ms. Butler notes that in Australia, where random roadside alcohol screening is used, the incidence of alcohol related accidents has been significantly reduced. Studies have found that the possibility that motorists could, at any time, be subject to screening, will inevitably cause the potential drinking driver to think twice before getting behind the wheel. [165] Dr. Baker acknowledges that the presence of a drug testing policy could discourage drug dependent candidates from applying to a workplace that had this type of policy in place. The presence of such a policy would also tell employees not to consume drugs prior to regularly scheduled tests. Dr. Baker did not indicate whether non-dependent employees would also choose to permanently abstain, if the employee was exposed to the ongoing possibility of random testing. [166] Dr. Baker does point to the American experience, where there has been a significant reduction in the number of positive employee drug tests, but no corresponding diminution in the prevalence of substance abuse disorders in the workplace. Dr. Baker suggests that this means that employees are simply devising ways to beat the system. It seems to us, however, that another possible explanation for this phenomenon is that those with control over their alcohol or drug use are choosing to abstain, as a result of the knowledge that they could be tested, leading to a reduction in the number of positive drug tests, whereas those who are alcohol or drug dependent continue to consume on a regular basis. [167] Common sense dictates that individuals with control over their alcohol or drug use would, at a minimum, be more careful about their consumption if they knew that they were at risk of an unannounced alcohol or drug test in the workplace. There is, however, insufficient evidence before us to conclude that the presence of an alcohol or drug testing policy would deter employees with substance abuse problems from continuing to use alcohol or drugs. Further, the fact that the presence of a drug testing policy may serve to discourage the alcohol or drug dependent from applying to work at a specific company is evidence of the potentially systemic discriminatory effect that such policies can have. (i) Conclusions Regarding the use of Drug Testing By Autocar Connaisseur [168] It is clear from the testimony of Dr. Baker and Dr. Chiasson that there is no single, ideal means of detecting employee impairment, or of identifying those who are at increased risk of being intoxicated in the workplace. While the approach advocated by Dr. Baker is a good one, in principle, it is clear from the evidence of Dr. Chiasson that it will not necessarily catch all of those employees who are at risk of putting the lives of passengers in jeopardy. We are also not persuaded that, in the specific context in which Autocar Connaisseur found itself during the summer of 1999, that Dr. Baker’s method would have been all that workable. [169] First of all, Dr. Baker’s approach relies to a large extent upon the observations of supervisors. While such an approach may work well in a factory or office environment, where employees are closely supervised, it is less useful in a work environment such as that at Autocar Connaisseur, where bus drivers are unsupervised for much of the time. [170] Dr. Baker’s approach is also costly. He testified that a pre-employment employee assessment would cost between $500 to $800 per employee. We know that Autocar Connaisseur has a transient workforce, and hires many of its employees on a seasonal basis. We also know that the company was losing money at the time that Mr. Milazzo was tested, and was in danger of being shut down altogether. While we do not have evidence as to the precise cost of administering a urine test to an employee, Dr. Chiasson did tell us that the process is cheap, and was obviously within the means of Autocar Connaisseur. [171] Although a positive drug test does not indicate that a bus driver was actually impaired while on the job, for the reasons discussed earlier in this decision, we are satisfied that a positive test result is a red flag, to use Dr. Chiasson’s term. The presence of cannabis metabolite in an employee’s urine does assist in identifying drivers who are at an elevated risk of accident. [172] We have also found that the presence of a drug testing policy will serve to deter at least some employees from using alcohol or drugs in the workplace, in a manner that would put themselves or others in danger. [173] For these reasons, we find that Autocar Connaisseur’s drug testing policy is reasonably necessary to accomplish the company’s legitimate work-related goal of promoting road safety. [174] There is one further reason why we have concluded that Autocar Connaisseur’s drug testing policy is reasonably necessary, and that is the company’s obligation to comply with American drug testing legislation. Counsel for the Commission suggested that Autocar Connaisseur should maintain two pools of drivers, one for drivers going to the United States, and a second for those driving exclusively in Canada. Only drivers going on American routes should then be subject to alcohol and drug testing. Based upon the testimony of Mr. Crowe, Mr. Filiatrault and Mr. Devlin, however, we do not think that this is a workable solution. It is clear that to remain competitive, Autocar Connaisseur has to have drivers available to allow the company to respond to customer demand in a timely manner. In addition, the company also has to be able to respond quickly to inclement weather conditions and emergency situations. We are satisfied that in a small company such as Autocar Connaisseur, all drivers have the reasonable potential for crossing the border,[35] and that it would cause Autocar Connaisseur undue hardship if it could not test all of its drivers in accordance with American legislative requirements. [175] For these reasons, we find that Autocar Connaisseur has met the burden on it of establishing that subjecting its employees to pre-employment and random drug testing is a legitimate way to promote road safety. [176] That is not the end of the matter, however. According to the Supreme Court decisions in Meiorin and Grismer, in order to satisfy the third element of the bona fide occupational requirement defense, Autocar Connaisseur must also show that it is impossible for it to accommodate employees who test positive for drugs, and who suffer from a drug-related disability, without imposing undue hardship on the company. This issue will be considered next. (j) Can Autocar Connaisseur Accommodate Bus Drivers Who Have Tested Positive? [177] In accordance with Autocar Connaisseur’s drug testing policy, any employee testing positive for either alcohol or drugs will be summarily terminated. Where a prospective employee tests positive, Autocar Connaisseur’s offer of employment will be withdrawn. [178] It will be recalled that Mr. Devlin testified that Autocar Connaisseur was of the view that these actions are necessary because an employee who knowingly comes to work with alcohol or drugs in his system so fundamentally breaches the trust between employer and employee that there is no alternative but to terminate the employment relationship. It may well be that such a course is open to Autocar Connaisseur (at least from a human rights perspective) where employees use alcohol or drugs as a matter of personal choice, and voluntarily breach the company’s alcohol and drug policy. [179] The situation is different, however, in cases where the individual suffers from a condition that qualifies as a disability. In such cases, an employer has an obligation to accommodate the employee to the point of undue hardship, unless it is impossible to do so. [180] The fact that an employee tests positive in an employer-sponsored drug test does not automatically mean that the employee is disabled. In order to distinguish between employees who suffer from a substance-related disability and those who do not, it may well be necessary to require that the employee submit to a professional assessment by an appropriate health care practitioner. While employers must be sensitive to the role that denial can play in substance abuse disorders, ultimately, the onus is on the employee or prospective employee to demonstrate that they are entitled to the protection of the Canadian Human Rights Act. [181] We do not accept Mr. Devlin’s evidence that Autocar Connaisseur could not accommodate alcohol or drug dependent employees or prospective employees who test positive in random or pre-employment alcohol or drug tests. Mr. Devlin himself acknowledged that the company can and does accommodate employees who voluntarily come forward and admit to having an alcohol or drug problem. In such cases, Mr. Devlin says, employees will be given the opportunity to rehabilitate themselves, and will be allowed to return to work when they are fit to do so. Mr. Devlin confirmed that the company was prepared to offer this form of accommodation even though he assumes that an employee with an alcohol or drug problem would, in all likelihood, have driven a bus while his ability to do so was impaired. Surely driving a passenger bus while impaired is at least as serious a breach of trust as testing positive in an alcohol or drug test? [182] Further, Mr. Devlin’s position with respect to the need for there to be voluntary self- disclosure before any effort will be made by the company to accommodate a substance-dependent employee ignores the very real role that denial plays in alcohol or drug related disorders. [183] Dr. Baker and Dr. Chiasson each discussed the role that denial plays in substance abuse disorders. Both doctors agree that addicts will continue to deny that they have a problem until the personal cost of using alcohol or drugs outweighs the benefits of continued use. In most cases, Dr. Chiasson says, it will take a crisis such as the loss of a job or spouse before a person who is dependent on either alcohol or drugs will confront the fact that they have a problem, and seek help. Dr. Chiasson testified that he has never seen a situation where an addict spontaneously had a crisis of conscience, and came forward voluntarily seeking help. [184] While we have found that a positive alcohol or drug test is a red flag, that is, an indication that the employee presents an elevated risk of accident, the safety concerns raised by the test results can be addressed by removing the driver from behind the wheel of a bus.[36] In light of the safety concerns created by the positive test result, however, we do not think it appropriate to require Autocar Connaisseur to assign the driver to a Canadian route as a form of accommodation. In any event, we have already concluded that the operational demands at Autocar Connaisseur are such that there can be no assurance that a driver assigned to a Canadian route would not have to drive into the United States on short notice. [185] Given the testimony as to the small size of the company, the limited number of non- driving positions available, and the specialized training that these positions require, it may well be that there are no alternate, non-driving positions available for bus drivers at Autocar Connaisseur. [186] At the very minimum, however, a company such as Autocar Connaisseur should be able to extend the same opportunity to a substance-dependent driver who has tested positive as it does to drivers who come forward voluntarily with substance abuse problems. That is, these individuals should be afforded the opportunity to rehabilitate themselves, and to return to work when they are fit to do so. In our view, the company would also be justified in implementing appropriate follow-up monitoring measures to ensure that the individual continues to abstain from the use of alcohol or drugs. Finally, Autocar Connaisseur may also be able to terminate the employment of those individuals who fail to rehabilitate themselves after being afforded the reasonable opportunity to do so, although each of these situations would have to be carefully considered, on a case-by-case basis. [187] In the case of prospective employees suffering from drug-related disabilities who test positive in pre-employment tests, employers are not entitled to automatically withdraw offers of employment, without first addressing the issue of accommodation. It may be that in some cases no accommodation will be possible where, for example, the candidate is being hired to meet an immediate, short-term need, and the period of time off of work required to complete a program of rehabilitation would be longer than the term of the employment. In other situations, some form of accommodation may be possible. Each situation would have to be carefully assessed on a case- by-case basis. (k) Findings Regarding Liability and the Section 10 complaint [188] Under the Meiorin and Grismer decisions, the burden is on Autocar Connaisseur to establish that its non-accommodating standard is reasonably necessary to achieve its goal of promoting road safety.[37] While Autocar Connaisseur has justified its policy of subjecting its bus drivers to pre-employment and random drug tests, it has not satisfied the burden on it of demonstrating that it could not accommodate bus drivers who have tested positive for alcohol or drugs and are alcohol or drug dependent. Accordingly, Mr. Milazzo’s section 10 complaint is sustained. (l) Comments Regarding Autocar Connaisseur’s New Alcohol and Drug Testing Policy [189] Before turning to the question of remedy, we wish to make a brief comment with respect to Autocar Connaisseur’s new alcohol and drug testing policy. It will be recalled that this policy, which only came into force in March of this year, applies not just to bus drivers, but to bus mechanics as well. This policy is not the subject of Mr. Milazzo’s complaint, and, in our view, we would be overstepping our jurisdiction if we were to extend the scope of our inquiry to include a consideration of the legality of testing mechanics.[38] Accordingly, we make no finding regarding Autocar Connaisseur’s new policy, and specifically with respect to the question of whether the testing of Autocar Connaisseur’s bus mechanics is reasonably necessary. VIII. Remedy [190] Having found that Autocar Connaisseur has not met the burden on it with respect to the section 10 complaint, it remains to be determined what the appropriate remedy should be. Where a respondent is found to have engaged in a discriminatory policy or practice, the Tribunal will ordinarily order the respondent to immediately cease committing the discriminatory practice. In this case, if it is to continue doing business in the United States, Autocar Connaisseur must continue to test its bus drivers. What it cannot continue to do is to automatically withdraw an offer of employment or terminate the employment of drivers who test positive in employer- sponsored drug tests, where those employees or prospective employees can establish that they suffer from substance-related disabilities. [191] We therefore direct Autocar Connaisseur to immediately cease the discriminatory practice of failing to accommodate employees or prospective employees who test positive in company- sponsored drug tests, in cases where the individual can establish that he suffers from a substance- related disability. [192] We further direct Autocar Connaisseur to take steps, in consultation with the Canadian Human Rights Commission, to formulate a drug testing policy that ensures that drug dependent employees or prospective employees who suffer from drug-related disabilities, who test positive in employer-sponsored drug tests, are accommodated, to the point of undue hardship, in accordance with this decision. [193] We further direct that, within six months of the date of this decision, the parties shall file with the Tribunal a copy of Autocar Connaisseur's revised drug testing policy. In the event that the parties are unable to agree with respect to any of the terms of this revised policy, the Tribunal retains jurisdiction to deal with any outstanding issues. IX. Order [194] For the foregoing reasons, we declare that Autocar Connaisseur’s alcohol and drug testing policy discriminates on the basis of disability, contrary to the provisions of section 10 of the Canadian Human Rights Act, and order that: Autocar Connaisseur immediately cease the discriminatory practice of automatically withdrawing an offer of employment or terminating the employment of drivers suffering from substance-related disabilities who test positive in an employer-sponsored drug test. Autocar Connaisseur take steps, in consultation with the Canadian Human Rights Commission, to formulate a policy that ensures that individuals who suffer from substance-related disabilities who test positive in employer-sponsored drug tests are accommodated to the point of undue hardship, in accordance with this decision Within six months of this decision, the parties shall file with the Tribunal copies of Autocar Connaisseur's revised drug testing policy. If the parties are unable to agree with respect to any of the terms of the revised policy, the Tribunal retains jurisdiction to deal with any outstanding issues. [195] Mr. Milazzo’s section 7 complaint is dismissed. Signed by Anne L. Mactavish Chairperson Pierre Deschamps Member Michel Doucet Member Ottawa, Ontario November 6, 2003 Canadian Human Rights Tribunal Parties of Record Tribunal File: T713/1802 Style of Cause: Salvatore Milazzo v. Autocar Connaisseur Inc. et al. Decision of the Tribunal Dated: November 6, 2003 Date and Place of Hearing: November 25-26, 2002 March 24-25, 2003 April 23-24, 2003 May 20-21, 2003 June 2-4, 2003 Montreal, Quebec Appearances: Salvatore Milazzo, on his own behalf Patrick O’Rourke and Céline Harrington, for the Canadian Human Rights Commission Louise Baillargeon and Philippe-André Tessier, for the Respondent George Vuicic, for the Interested Party [1] Mr. Milazzo testified that while he worked at Autocar Connaisseur, the company had between 150 and 200 employees driving buses in the summer months, and only 40 or 50 drivers working during the winter. Autocar Connaisseur witnesses testified that at the time Mr. Milazzo’s employment with the company was terminated, it employed 115 drivers in peak season. As a result of a downturn in the travel industry, Autocar Connaisseur now only employs approximately 40 bus drivers during its busy period. [2] It should be noted that although Mr. Milazzo asked for a second drug test in the course of his meeting with M. Bougie, neither the Commission nor Mr. Milazzo challenged the validity of the results of Mr. Milazzo's drug test at the hearing. [3] R.S.Q. 1998, ch. 40 [4] R.S.C. 1985, c. L-2 [5] R.S.C. 1985, c. 29 (3rd Supp.) [6] Ms. Butler explained that transportation companies can require a driver to undergo alcohol and drug testing where the company has a reasonable suspicion that the driver is unfit for duty due to drug or alcohol use. [7] Although it is not entirely clear from the evidence, it appears that Mr. Booth worked for Coach U.S.A.'s Canadian interests (Coach Canada), rather than for Autocar Connaisseur itself. [8] [1999] 3 S.C.R. 3 [9] [1999] 3 S.C.R. 868 [10] Ontario Human Rights Commission and O'Malley v. Simpson Sears Limited, [1985], 2 S.C.R. 536 at 558. [11] Meiorin, supra. at para. 54. [12] In this regard, the decision in Meiorin adopts the reasoning in Central Okanagan School District v. Renaud, [1992] 2 S.C.R. 984. [13] Grismer, supra., at para. 32 [14] Grismer, supra., at para. 42 [15] Grismer, supra., at paras 41 and 42 [16] Meiorin, supra., at para. 63 [17] See Entrop v. Imperial Oil Ltd., 50 O.R. (3d) 18 (Ont. C.A.), at para. 104, for a discussion of this issue. [18] It should be noted that the Commission abandoned its support of Mr. Milazzo's section 7 complaint mid-way through the hearing, and made no submissions as to whether Mr. Milazzo suffered from a disability or not. Mr. Milazzo, who did not attend the last several days of the hearing, made no submissions in this regard. [19] This metabolite is properly described as 11-nor-?-9-THC-9-COOH. [20] It is reasonable to assume that this was indeed the case: we know that Mr. Milazzo had several days warning that he was going to undergo a drug test. If Mr. Milazzo was indeed a casual user of cannabis (and therefore in control of his drug use), common sense would dictate that he would refrain from using cannabis in the period immediately before the test. [21] In coming to this conclusion, we have considered the possibility that Mr. Milazzo's denial of the seriousness of his drug problem could itself be symptomatic of a drug-related disability. However, we note that having lost his job because of his drug use, Mr. Milazzo has faced the kind of crisis that can force a drug dependent individual face up to his disability, and nevertheless continues to maintain that he is not drug dependent. Further, he maintains this position even though it would clearly have been in his interest to claim that he suffered from a disability at the hearing. [22] [2000] 1 S.C.R. 665 [23] R.S.Q. c. C-12, as amended. [24] (1994) 28 C.H.R.R. D/89 (C.H.R.T.), aff'd (1996) 28 C.H.R.R. D/139 (F.C.T.D.) [25] Meiorin, supra., at para. 43-44 [26] We note that our finding that an employer drug testing policy is prima facie discriminatory is consistent with the existing Canadian human rights jurisprudence in this area. See, for example, Entrop, supra, Canadian Civil Liberties Association v. Toronto Dominion Bank, (1997) 163 D.L.R. (4th) 193 (F.C.A.), and Alberta (Human Rights and Citizenship Commission) v. Elizabeth Métis Settlement, 2003 ABQB 342. [27] Meiorin, supra., at para. 59 [28] It will be recalled that Mr. Milazzo himself had a criminal record, as a result of his 1997 impaired driving conviction, but was nonetheless able to enter the United States in the summer of 1999. Mr. Milazzo suggested that a conviction for impaired driving might not interfere with his ability to cross the border. In fact, there is no evidence to suggest that the border authorities were ever aware of his record. [29] M. Brault was not offered as an expert witness, and was not qualified as such. The Tribunal allowed M. Brault to refer to previous SAAQ research, but given his status as a lay witness, did not allow him to offer opinions as to the conclusions that could be drawn from the research. M. Brault was not cross-examined with respect to the statistical information, however, and the evidence is uncontradicted. Similar statistical information with respect to the Quebec study was also provided by Barbara Butler. Accordingly, the Tribunal is prepared to accept this evidence. [30] NIDA is an acronym for the National Institute of Drug Abuse. It is common ground that Mr. Milazzo's urine was tested for the NIDA 5 group of drugs. [31] 11-nor- -9-THC-9-COOH is also called THC-acid or THC-carboxylate. [32] While Dr. Baker testified that over-the-counter medications are the commonest source of employee impairment, Barbara Butler says that cannabis is the most frequently identified drug in any studies of unsafe driving practices. [33] The Canadian Human Rights Commission Policy on Alcohol and Drug Testing. Online: CHRC Homepage http://www.chrc-ccdp.ca/Legis&Poli/DrgTPol_PolSLDrg/DrgPol_PolDrg2.asp?l=e. It should be noted that the Tribunal has previously ruled that the Commission's policy is not binding on the Tribunal, and is nothing more than a statement of the Commission's opinion on the issue of drug and alcohol testing, an opinion that the Tribunal may agree with or not, as it sees fit. (See Milazzo v. Autocar Connaisseur Inc., T-713/1802, Ruling No. 1, (Nov. 12, 2002)) [34] As was previously noted, in an earlier SAAQ study, 4.8% of drivers of commercial vehicles tested positive for cannabis metabolites. [35] Mr. Milazzo and Mr. Filiatrault both testified that Mr. Calci would restrict drivers with criminal records to Canadian routes. This certainly indicates that it is possible to accommodate a specific individual with a known restriction that would prevent him from crossing the border by trying to have him drive only in Canada. However, it is clear from Mr. Milazzo's own experience that this was not always possible. Indeed, he was called upon to drive to the United States on short notice, even though his employer was aware that he had a criminal record, because no other driver was available. [36] American Department of Transport Regulations require that an employee who tests positive for either alcohol or drugs be removed from a safety-sensitive position. Nothing in the American legislation, however, requires that the employer terminate the individual's employment. Indeed, the American Omnibus Transportation Employees Testing Act of 1991 (49 USCS 31306 (b)(1)(A)), under whose authority the Regulations are promulgated, recognizes the critical role that rehabilitation plays in any testing program. [37] See, for example, Grismer, supra., at p. 886. [38] See Entrop, supra. at paras. 44 to 59. It should also be noted that the Commission took the position at the hearing that the Tribunal had no jurisdiction to consider Autocar Connaisseur's new drug testing policy, and that very little time was spent by either party on the question of the propriety of testing mechanics.

2003 CHRT 38

CHRT

Laronde v. Warren Gibson Ltd.

en

2003-11-07

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6556/index.do

2023-12-01

Laronde v. Warren Gibson Ltd. Collection Canadian Human Rights Tribunal Date 2003-11-07 Neutral citation 2003 CHRT 38 Decision-maker(s) Sinclair, Grant, Q.C. Decision Content MICHELE LARONDE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - WARREN GIBSON LIMITED Respondent REASONS FOR DECISION MEMBER: J. Grant Sinclair 2003 CHRT 38 2003/11/07 I. INTRODUCTION II. FACTS A. GIBSON DISCIPLINARY RULES AND PROCEDURES B. APPEALS TO THE MANAGEMENT COMMITTEE C. THE THREE ELEMENTS OF THE COMPLAINT (i) Adverse Differential Treatment, s.7(b) of the Act a) Alleged Incidents of Adverse Differential Treatment 1. June 12, 1995 - taking truck home - penalty-loss of half of Good Guy bonus" 2. August 15, 1995 - Driving off-route - no discipline 3. May 9, 1996 - Hisan - customer complaint - note to file and apology 4. June 6, 1996 - overslept - late delivery - major offense 5. June 18, 1996 - late delivery Honda - major offense 6. June 28, 1996 - Final warning 7. July 25, 1996 - late delivery - no disciplinary offense 8. August 2, 1996 - discourteous to dispatch - minor offense and apology 9. September 18, 1996 - bad attitude - no disciplinary offense 10. September 27, 1996 - failure to verify load - major offense b) Conclusion on Adverse Differential Treatment (ii) Sexual Harassment - s.14 of the Act a) Alleged Incidents of Sexual Harassment 1. The trip envelope - Did you make coffee for Steve 2. The encounter on the fuel tank 3. Working the parking lot - satellite message 4. The Chris Reid message 5. Bob Watt - sharing her bunk with Chris Reid 6. John Hepburn - stay at home on back with legs open 7. Gary Kitchener - have that bitch fired 8. Satellite tracking b) The Law - Sexual Harassment c) Analysis and Conclusion (iii) Failure to be Promoted to Owner/Operator a) Analysis and Conclusion III. REMEDY A. WAGE LOSS B. SPECIAL COMPENSATION C. INTEREST D. OUT OF POCKET EXPENSES I. INTRODUCTION [1] Michele Laronde is the complainant in this matter. Warren Gibson Limited, the respondent, is a large trucking company located in Alliston, Ontario. Ms. Laronde was hired as a driver of tractor trucks on the U.S. board running from Canada to the United States and back. She started as a full time probationary employee on May 4, 1994 and became permanent on April 12, 1995. Tractor trucks are large trucks with sleeping accommodation in the rear of the cab. Ms. Laronde worked at Gibson until October 2, 1996, when Gibson terminated her employment. [2] Before her termination, Ms. Laronde had filed a complaint dated August 23, 1996 with the Canadian Human Rights Commission. In her complaint, Ms. Laronde alleged that Gibson had, during her employment, disciplined her more harshly than the male drivers for similar incidents, and had denied her promotions, in breach of s.7 of the Canadian Human Rights Act. She also alleged that Gibson discriminated against her by failing to provide a harassment free workplace contrary to s.14 of the Act. II. FACTS [3] Gibson is headquartered in Alliston, Ontario. In its trucking operations, it has four drivers boards, the U.S. board, the Windsor board, the local board and the floater board. Drivers on the U.S. board run cross border from Alliston to the U.S. and return; on the Windsor board from Alliston to Windsor, return; the local board, which involves runs within Canada, usually within a 100-mile radius; and, the floater board which has drivers not assigned to any of the other boards. [4] Gibson started out a small trucking company with about five trucks hauling tobacco, feed corn, basically, farm products. When Honda Canada built its assembly plant near Alliston, Gibson became its primary carrier for automotive parts. Honda now accounts for about 75 per cent of Gibson's business. Gibson has grown to about 700 employees today. When Ms. Laronde worked there, Gibson had approximately 250 drivers. [5] Honda's operations are geared to just-in-time delivery. Honda does not have a warehouse facility for automotive parts at its assembly plant. Parts are delivered by trailer to Honda and the trailers are assembled in a designated area. When parts are needed for the assembly line, the trailer is moved to the loading dock, and the parts, which are on racking, are wheeled off the trailer directly onto the assembly line. [6] Just-in-time delivery involves a window time. A window time is the time scheduled by which the driver must deliver the trailer to the customer. Given the importance of just-in-time delivery for its customers, Gibson has adopted the motto on time, every time, which is drilled into all of its drivers. Conformance to this motto is the basis for Gibson's success. A. GIBSON DISCIPLINARY RULES AND PROCEDURES [7] When Ms. Laronde started at Gibson in 1994, Gibson had in place a handbook of Rules and Regulations, which set out the standards and expectations Gibson had for its employees. This was given to each driver when hired and a copy was posted in the drivers room. In June 1995, Gibson hired Marilyn Lawrence as Manager, Human Resources. Shortly after she started, Ms. Lawrence modified and updated the Rules and Regulations to provide for a system of progressive discipline which came into effect around August 1995. [8] Under the progressive disciplinary procedures, disciplinary offenses are classified as unexcused, major and minor. Under each of these classifications, there is a list of this type of conduct that is considered to be an offense under the particular classification. [9] The Rules also provide for step up penalties. For an unexcused offense, the penalty is immediate suspension without pay, with intent to terminate. For a first major offense, the penalty is a written warning; a final written warning for a second offense, and termination for a third offense. Minor offenses call for a courtesy warning, then a written warning, a final written warning and termination of employment. [10] In all cases, before issuing a final written warning, the employee's work record must be reviewed by their dispatcher and the Manager, Human Resources. Before terminating an employee, this same review must include another member of management. Extenuating circumstances will be considered. [11] In addition to these discipline categories, there is also a classification for logbook violations. Logbook violations are treated as a major offense. Without getting into all of the complexities relating to logbooks, it is enough to point out that government regulations, both in Canada and in the United States, require every driver to maintain a logbook for each trip. Departure time, on and off duty time, distance travelled in a particular day, the date and time they started the run, must all be recorded in the logbook. On duty time includes driving time and loading and unloading time. Off duty time is lunch, dinner, and sleeping time or other times when the driver is out of the truck, but not loading or unloading. [12] Canadian regulations allow 13 hours of continuous driving time and a maximum of 15 hours driving and on duty time. There is some flexibility for heavy traffic or severe weather conditions. When a driver has reached 15 hours, they must go off duty for eight hours and then can resume the 15-hour cycle. The U.S. regulations provide for a maximum of 10 hours continuous driving and a maximum of 15 hours on duty driving. [13] At the end of each run, drivers hand in their logbooks to Gibson's safety department which run a computer-generated monthly report for each driver. If the printout from the safety department shows that the driver had exceeded their hours, the driver would be notified and asked to discuss it with the safety director. If the driver does not give a reasonable explanation, the driver would be disciplined for an over hours or hours of service violation. [14] Both preventable and non-preventable accidents are also recorded on a driver's disciplinary record. Preventable accidents are not specifically listed as an offense in the Rules and it is not clear how they are treated in terms of discipline. [15] Disciplinary offenses on an employee's record fall off after one year and are not considered for disciplinary action. Logbook violations are not taken into account after six months. B. APPEALS TO THE MANAGEMENT COMMITTEE [16] If a driver has not followed the Rules and Regulations, normally, their dispatcher will write up a Drivers Incident Report (DIR). However, anyone in a supervisory or management position at Gibson can write a DIR. The DIR documents the date and details of the incident, the driver's name, the name of the person writing the report, the problem, the company standard and what the resolution should be. The driver can give a written response on the DIR or can respond orally as to their version. The matter is reviewed by Ms. Lawrence, and if the driver does not dispute the DIR, Ms. Lawrence will rate the incident according to the appropriate disciplinary classification, and records it on the driver's disciplinary file. [17] If the driver does dispute it, Ms. Lawrence will discuss it with whoever wrote the DIR so that she has a complete understanding of the incident. If there is no merit to the DIR, no disciplinary offense is recorded and there are no negative consequences. [18] If Ms. Lawrence decides otherwise, the driver is informed and may appeal to the management committee. The management committee is composed of management representatives and driver representatives, the latter nominated by their peers. However, anyone in the company can attend at management committee meetings and participate in the discussion of the incident and how it should be treated. The management committee meets once a month to discuss anything of concern to the company including appeals. At the meeting, after discussion, the committee can confirm the incident and/or the penalty, reverse it or substitute another result. Management can override any decision of the committee, although, according to Ms. Lawrence, this tends to be the exception, not the rule. Minutes are taken for all of the management committee meetings. C. THE THREE ELEMENTS OF THE COMPLAINT (i) Adverse Differential Treatment, s.7(b) of the Act [19] The Commission alleges that Ms. Laronde was adversely differentiated in her employment because she was disciplined more harshly for similar incidents than male drivers at Gibson. The Commission called evidence relating to ten incidents, which it argues, supports this contention. a) Alleged Incidents of Adverse Differential Treatment 1. June 12, 1995 - taking truck home - penalty-loss of half of Good Guy bonus [20] On June 12, 1995, Ms. Laronde was written up in a DIR for taking her truck home, which involved 25 off-route miles. Ms. Laronde testified that she was on her way back from Ohio when she got a speeding ticket. A conviction would not show well on her driving record and she believed that she had a good defense. [21] She had to return to Ohio for her court date the next day at 11 a.m., but did not have time to drop the truck in Alliston, go home, pick up suitable clothes for court and return to Ohio. So she drove the truck to her home, stopped for no more than five minutes, and returned the truck to the Gibson yard, picked up her car and drove eight hours to Ohio for her court date. The speeding charge was dismissed. [22] According to the Rules, taking the truck home is considered an unauthorized use of a company vehicle and is classified as an unexcused offense. Ms. Laronde appealed to the management committee, and explained the situation. The management committee at its meeting on July 28, 1995, recommended that she not be given any penalty. Management, however, overruled the committee and decided that she lose her December good guy bonus of $400. This was reduced to $200 by the management committee at its August 11, 1995 meeting. The good guy bonus is a bonus of $400 given twice yearly in July and December to recognize drivers doing a good job. Comparators [23] The Commission compared this penalty to that received by male drivers at Gibson for the same offense. The minutes of the March 8, 1994 management committee meeting show that Jim Barnes had been taking his truck home at night after being asked previous times not to do so. He was charged $50, the cost to boost the truck battery, which was deducted from his good guy bonus. The meeting minutes also emphasized the company policy that trucks are not to be taken home and there are no exceptions to this policy. [24] Bob Watt, once a driver and safety director at Gibson, testified that Mr. Barnes regularly took his truck home, and continued to do so, but was only disciplined that one time. Mr. Watt said that he himself took his truck home a couple of times and was never disciplined. [25] Charlie Ward was written up in a DIR dated March 21, 1996, for travelling off-route and stopping at his home. He lost his good guy bonus for June 1996, and received a final warning that a repeat would result in immediate termination. [26] Don Smalley took his truck home regularly and was never disciplined. The company's explanation was that Mr. Smalley lived on Highway 89, which was on the route that the Gibson drivers take when they begin their runs. Apparently, this was acceptable because Mr. Smalley did not run off-route, although there is no on-route exception in the Rules. 2. August 15, 1995 - Driving off-route - no discipline [27] On August 15, 1995, Ms. Laronde was driving north on Highway 50 pulling a 53-foot trailer. She was told that there was an accident in the village of Loretto and the highway was blocked. To avoid this, she took the fifth concession side road. Along the way she met Bing Gibson who was driving southbound on the same side road. They both stopped, Ms. Laronde explained the situation and then went on her way. Bing Gibson wrote up a DIR for this incident. Ms. Laronde provided an explanation. No disciplinary action was taken. 3. May 9, 1996 - Hisan - customer complaint - note to file and apology [28] Ms. Laronde's account of this incident is that she arrived at Hisan, a parts manufacturer in Mt. Vernon, Ohio, around nine a.m. She parked her truck at the loading dock, went to see Scott, the shipper/receiver, to deal with the status of the load and paperwork. She knew him because she had been to Mt. Vernon a number of times. Scott was talking to another employee (who turned out to be his wife) at the time. After waiting a few minutes, and to get his attention, Ms. Laronde grabbed a comb that was sticking out of his back pocket. She also noticed he had two scratches on his arm and touched his arm commenting nice job. Shortly after, Ms. Laronde went to the lunchroom to complete her paperwork. Scott's wife came to the lunchroom and according to Ms. Laronde, yelled at her for doing what she did. Ms. Laronde did not consider her actions of any consequence or why this Hisan employee had become so agitated. She completed her paperwork, left Hisan and telephoned Ms. Lawrence to report the matter. [29] Ms. Lawrence also received a telephone call from the Manager of Human Resources at Hisan, who told her that one of her team leaders had reported that Ms. Laronde had manipulated a comb in the back pocket of a male worker and had caressed his arm. The incident had been reported to the plant manager who requested that Ms. Laronde not return to the Hisan plant. Ms. Lawrence assured them that Gibson would meet this request and would also recommend that Ms. Laronde apologize to all parties involved. After talking to Ms. Laronde, Ms. Lawrence called the Human Resources Manager back and told her that she had spoken to Ms. Laronde. [30] Ms. Lawrence wrote up the incident as a major offense. Ms. Laronde disagreed very strongly and appealed to the management committee. At the June 28, 1996 management committee meeting, Ms. Laronde told her story. The committee decided that this should not be rated as a major, but rather as a note to file. Ms. Laronde was required to send a letter of apology to Hisan, which she did. Comparators [31] The Commission asked that the Hisan incident and discipline be compared to what it considered to be similar incidents involving male drivers at Gibson. On April 25, 1996, Brenda Mckee at Honda called Ms. Lawrence to tell her that a female employee had complained that whenever David Cleary, a Gibson driver, was at Honda, he deliberately went out of his way to locate her and stare at her. He did not talk to her or have any physical contact with her. But she felt very uncomfortable and reported this to her team leader, who had also observed Mr. Cleary's conduct. Honda did not ask that Mr. Cleary be disciplined or that he not return to Honda, but that he be told that such conduct was unacceptable. [32] Ms. Lawrence spoke to Mr. Cleary about the complaint. His response was he did not think he was causing a problem and was only looking at the assembly process. He was told by Ms. Lawrence that any further complaint would result in disciplinary action. He agreed to stop what he had been doing. He was not required to apologize. [33] The second incident referred to by the Commission is the case of HW, a Gibson driver. HW was written up in a DIR dated January 20, 1997 because of a written complaint from a Hillsdale Tool Division employee. The employee said that she was offended by remarks made by HW. HW did not deny making the remarks, but said that they were made during a conversation between HW, the complainant, and her co-worker. The remarks were in jest and not intended to offend. The DIR shows that HW had five previous incidents, the details of which are not in evidence. HW was required to send a letter of apology to the complainant and was given a final warning that a repeat would result in immediate termination. [34] The third incident involved another Gibson driver R.M. According to the June 14, 1995 DIR, Gibson received a complaint from Harry at Meiko Transport, that management at MEI had reported that RM had spoken to a security guard in a loud and abusive voice and was snippy. MEI suggested that Meiko stop using Gibson as a carrier. Gibson considered this to be proven discourtesy to a customer. RM was spoken to by Ms. Lawrence and lost his good guy bonus. [35] Finally, there is the DIR for Scott McWilliams dated October 2, 1996. The DIR does not give the details of this incident. The evidence is that Mr. McWilliams had behaviour issues. He also had three previous incidents. Mr. McWilliams was suspended for two weeks without pay, was put on six months probation and was not to receive a good guy bonus in that period. He also received a final warning. 4. June 6, 1996 - overslept - late delivery - major offense [36] The June 6, 1996 DIR shows that Ms. Laronde overslept and was late for a Windsor switch scheduled for seven a.m. Because of the delay, the Windsor switch driver had to be paid for waiting time. Ms. Laronde explained that she was driving back from Ohio with a load for Honda. On the initial run down to Ohio, Ms. Laronde was delayed by bad weather. She made her window time to Ohio, but when she started the run back, she had reached her maximum hours. She decided to stop and sleep for two hours and when she woke up she realized that she would be late for the Windsor switch. She contacted her dispatcher and told him that she would be about an hour late. She made the switch around eight a.m. In fact, the switch trailer from Ohio was delivered at the scheduled window time to Honda. [37] This incident was rated as a major, the disciplinary offense under the Rules being, arriving late for a window time without a reasonable explanation. Ms. Laronde appealed to the management committee. Her position was that she did not miss a window time because her trailer was delivered on time to Honda. If the violation was that the switch driver had to be paid waiting time, her response what that U.S. waiting time was only paid after the first hour. [38] The management committee at its June 28, 1996 meeting did not accept her explanation and confirmed the offense as a major. The company's position was that there is no distinction made between a switch time within the Rules. According to Ms. Lawrence, Ms. Laronde was not disciplined because the switch driver was paid waiting time. She was disciplined because of the late switch. A late is a late. Comparator [39] Compare this, the Commission argues with the June 27, 1996 DIR for Mike Rumble. Mr. Rumble left too late in the evening to make his seven a.m. window time. He was not disciplined for this incident. Instead, the dispatcher noted on the DIR that this was the first time Mr. Rumble had an incident like this. Because there was no customer complaint, it should be treated only as a note to file. Ms. Lawrence's evidence was that she did not deal with this matter because it was dealt with and resolved by the dispatcher. There is no evidence or any explanation given as to why Mr. Rumble left too late to make the window time. 5. June 18, 1996 - late delivery Honda - major offense [40] The DIR for June 18, 1996 refers to a late U.S. delivery to MEI by Ms. Laronde on June 17, 1996. The window time was scheduled for nine a.m. Monday, but Ms. Laronde did not make the delivery until noon. Ms. Laronde's explanation was that she had informed dispatch, that on the previous Friday, that she strained her back and wanted to spend the weekend to recover. Normally she would leave around midday on Sunday for her next run. Her dispatcher told her that he would try and find a load so that she could leave later on Sunday evening or early Monday morning. But when she had reported for work, she was dispatched with a trap load. A trap load is a load for three or more customers. The driver must deal with a custom broker for each customer's load. More time is required to prepare the paperwork and get customs clearance. Ms. Laronde was delayed for about two hours at the border and thus missed the window time. [41] Ms. Laronde did not appeal this incident. The reason, she said, was because the previous time she appealed a late delivery, she was unsuccessful. 6. June 28, 1996 - Final warning [42] On July 3, 1996, Ms. Laronde received a written final warning from Ms. Lawrence, dated June 28, 1996. Ms. Lawrence's evidence was that the reason for the final warning was the accumulation of incidents from January 1996 to June 1996, which indicated that Ms. Laronde's overall performance was not up to standard. Earlier, on June 20, 1996 Ms. Laronde met with Ms. Lawrence and Willie Teigesser, her dispatcher. The purpose of the meeting was to point out to Ms. Laronde that, in a short period of time, she had accumulated a number of major offenses and her job was in jeopardy. Ms. Lawrence saw this meeting as an attempt to help Ms. Laronde. [43] Ms. Lawrence documented the meeting in a memorandum dated June 20, 1996. There she noted that Ms. Laronde had four majors and one preventable accident on her disciplinary record. She also noted that company policy provided that an employee may be terminated after three majors, but before taking such action, Ms. Lawrence felt obliged to make Ms. Laronde aware of the status of her file. [44] At the June 20th meeting, Ms. Laronde told Ms. Lawrence that she disagreed with two of the offenses, the May 9, 1996 Hisan and the June 6, 1996 overslept late delivery and that she had appealed both to the management committee meeting scheduled for June 28, 1996. [45] As noted earlier, the management committee, at their meeting, reduced the Hisan incident from a major to a note on file, but left the June 6, 1996 - overslept, late delivery as a major. In the result when the final warning was issued on June 28, 1996, Ms. Lawrence had three major offenses and a preventable accident. One of the majors, the January 31, 1996 hours of service of violation (for which no explanation or evidence has been offered) was to drop off of Ms. Laronde's disciplinary record in two days, on June 30, 1996. Thus, by my reckoning, as of July 3, 1996 when she actually received the final warning, Ms. Laronde had two majors and a preventable accident. Comparator [46] The Commission argued that Ms. Laronde's final warning, when compared to the discipline received by Steve Semple, one of Gibson's drivers, is another example of adverse differential treatment by Gibson. [47] On April 13, 1996 Mr. Semple and Bill Grange, another Gibson driver, were running together, each driving a Gibson truck. They stopped for dinner and had consumed alcohol during their dinner. The Rules provide that it is an unexcused offense for a driver to be under the influence of alcohol or to consume alcohol within eight hours of operating a motor vehicle. Mr. Grange had an accident, which caused about $100,000 damage to his truck. [48] Initially, both drivers lied about the drinking, but it was later reported to the company by another Gibson employee that one of the trucks had been seen parked outside a bar and not at a Kentucky Fried Chicken restaurant as reported by the two drivers. [49] When the management committee met on April 26, 1996 to review this matter, Mr. Semple admitted that he had been drinking and that he had lied about the incident. Mr. Semple had earlier been suspended for two weeks without pay and the management committee suspended him for another week without pay. He was also given a final warning that any further major incident would result in immediate termination. [50] Ms. Lawrence testified that Mr. Semple was not terminated because he was not involved in the accident. Although he had lied at first, he did come forward and admit that he had broken the eight-hour drinking rule. According to Ms. Lawrence, that was the only company Rule that he had breached. [51] In addition to the drinking incident, which is an unexcused offense, Mr. Semple's disciplinary record shows speeding, 96/80, on June 6, 1995, a major offense. It also shows an hour of service violation on January 31, 1996, a major offense, and an in-bond load offense on March 11, 1996. It is not clear from the company's Rules how this offense is classified. [52] On July 23, 1996, Ms. Laronde received two hours of service violations. However, these notices referred to a May 13, 1996 and a June 6, 1996 incident. Because the safety department was behind in its work, these notices of violation were only issued in late July. [53] Thus, by July 23, 1996, Ms. Laronde had accumulated four majors. In such case, the Rules call for termination. But Ms. Laronde was not terminated at this time. According to Ms. Lawrence, because the notices were issued late, they would not count against the final warning. [54] There is no evidence explaining the details relating to the May 13, 1996 and the June 6, 1996 over-hours violations. Although the notices could have been appealed, Ms. Laronde did not do so. She also refused to sign receipt of the notices. 7. July 25, 1996 - late delivery - no disciplinary offense [55] Ms. Laronde was dispatched to pick up a rail container in Welland, drop it off and be at work at JCI, a Gibson customer, for 8 a.m. JCI called dispatch at 8:45 a.m. and advised that Ms. Laronde had not yet arrived. A DIR was written up for being late and Ms. Laronde explained that because of her logbook hours, she could not leave early enough to make the pickup in Welland and be back at JCI by eight a.m. Her explanation was accepted and she did not receive any disciplinary offense. 8. August 2, 1996 - discourteous to dispatch - minor offense and apology [56] The next incident is the August 2, 1996 DIR, initiated by Willie Teigesser, Ms. Laronde's dispatcher. The DIR details that when Ms. Laronde returned to the Gibson yard after a run on that day, she was in a bad temper, yelled and swore at Mr. Teigesser and failed to complete a delivery to Honda. [57] Ms. Laronde's version is that she was dispatched to go to JCI in Mississauga. She arrived at the Gibson yard around 5:30 a.m., left the yard shortly after and arrived at JCI around 7 a.m. She had expected to spend the day shunting trailers between the JCI warehouse, although there had been some discussion that she may have to drive to Welland and pick up a container for Honda. It is a five-hour trip from Mississauga to Welland to Alliston and probably longer because it was a long weekend. [58] She was dispatched to Welland later that day and protested to everyone at Gibson who could do anything about it. In the end, Ms. Laronde made the run, believing that if she didn't, she could be terminated for refusing a load. [59] By the time she picked up the container and brought it back up to the Gibson yard it was about seventeen hours after she started at JCI that morning. The container was to be delivered to Honda about three kilometres away and her post-trip responsibilities included delivering the container, fueling and cleaning the truck and parking it in its designated spot. Ms. Laronde parked the truck with the container still attached at the back of the yard and went into the office where Mr. Teigesser was, threw the paperwork on the desk in front of him and said, Your precious fucking container is down at the end of the yard and left. [60] Ms. Laronde wrote a letter to the company the same day explaining her actions and she also appealed to the management committee. The management committee decided at its August 30, 1995, that the incident should be noted as a minor offense and that she apologize to her dispatcher, which she did. The charge of failing to complete an assignment, which would have been a major offense, was dropped. 9. September 18, 1996 - bad attitude - no disciplinary offense [61] Ms. Laronde was dispatched for a London switch which involved dropping a trailer for the U.S. and picking up a trailer coming from the U.S. When she arrived, the U.S. driver had dropped the trailer and was sleeping. According to Ms. Laronde, the understanding between drivers is that you do not wake a sleeping driver, and so she had no opportunity to speak to the driver. She drove to the Alliston yard, dropped the trailer and left a note at the office asking that dispatch send a message to the other driver telling him where she had left the paperwork for the trailer, and to check the trailer weight. The dispatcher felt that it was the responsibility of the driver, not dispatch, to take care of these matters and wrote up a DIR. Ms. Laronde provided an explanation. Nothing came of this incident. 10. September 27, 1996 - failure to verify load - major offense [62] This has been described as the culminating event that led to Ms. Laronde's termination. On September 27, 1996, Ms. Laronde was written up for failure to verify load which was noted as a major offense. The DIR indicated that she did not verify whether the trailer was empty or loaded with empty racks. [63] Ms. Laronde's version of this incident is that she was dispatched to SPS to pick up a trailer and deliver it to Manchester Plastics. When she arrived at SPS, it was raining, very windy and very muddy. She was not inclined to open the back door of the trailer because of the dangerous weather conditions. Dispatch had directed her to pick up trailer #554, empty or loaded with empty racking. If there was a problem with the trailer number, or if there was no racking, she was to see the shipper at SPS and call dispatch for further instructions. [64] Ms. Laronde did not open the trailer to see what was inside. Instead she went inside the SPS office and spoke to the supervisor who told her that the trailer #554 was empty, there was no paperwork indicating there was no load, and that it was to go to Manchester Plastics. So Ms. Laronde drove the trailer to Manchester Plastics. [65] When she arrived there and opened the trailer door, the trailer was not empty, but was loaded with empty containers. She reported this to the supervisor at Manchester Plastics who was expecting an empty trailer. After discussing the matter with Gibson, it was decided that Ms. Laronde would bring the trailer back to SPS and another driver would bring an empty trailer to Manchester Plastics. [66] Ms. Laronde agreed that, given the dispatch message, she should have checked to see if the trailer was empty or loaded with racks. But she relied on the information from the supervisor at SPS who told her that the trailer was empty and there was no bill of lading. Ms. Laronde did concede that if the supervisor had given her bills of lading that showed there was empty racking in the trailer, she would have checked the load and, given the weather conditions and her safety concerns, she would have asked someone in the SPS office to help her. This incident was rated as a major offense. Comparator [67] The Commission's comparator is the evidence of Steve Holt, who recalled that sometime in 1992-1993, there was an incident involving Billy Cain, who did not check the load before leaving for a Windsor switch. The trailer was to have empty racking only, but when the U.S. switch driver opened the trailer to check the load, the racking was loaded with parts. Mr. Cain was not paid for the trip and he had to pay for the fuel costs of the trip. There is no documented evidence of this incident. b) Conclusion on Adverse Differential Treatment [68] Both the Commission and the respondent Gibson took the position that this is not a case of wrongful dismissal. Rather, the issue is whether Gibson discriminated against Ms. Laronde when applying its disciplinary procedures to her. And, if so did the discrimination play a role in the termination of her employment. [69] Of the ten incidents put forward by the Commission, three, August 15, 1995, July 25, 1996 and September 18, 1996 did not lead to any disciplinary offense. It remains somewhat of a mystery to me why these were proffered, other than to show that Ms. Laronde had to defend herself to avoid disciplinary consequences. But there was no comparative evidence demonstrating that male drivers at Gibson did not have to do the same. [70] The June 12, 1995 incident had fallen off from Ms. Laronde's discipline record and was not a factor in the termination decision. The August 2, 1996 incident was rated a minor and does not appear to have had any role in the decision to terminate Ms. Laronde. [71] As to the culminating incident of September 27, 1996, it is not for me to decide whether or not Gibson was justified in disciplining Ms. Laronde, but whether there was discrimination. The comparator was the Billy Cain incident, which occurred sometime in 1992-93. This was based on a rather vague recollection of Mr. Holt with no supporting documentation and which incident occurred well before Gibson's new disciplinary procedures took effect. I attach little weight to it. [72] There remains the following incidents, all of which have comparators. These are the May 9, 1996 - Hisan incident; the June 6, 1996 and June 18, 1996 - late delivery; and the June 28, 1996 - final warning. [73] Dealing first with the Hisan incident, the comparators are David Cleary, HW, RM and Scott McWilliams. In my opinion, all are valid comparisons in terms of the time frame in which they occurred and the similarity of the incidents. Dealing first with Hisan and Cleary, both were customer complaints, Cleary had no physical contact or verbal confrontation and there was no request that Cleary not return to the customer's plant. There was a request from the customer that he not be disciplined, but be spoken to. [74] Cleary received a verbal warning. Ms. Laronde`s final discipline was a note to file and an apology. In my opinion, Ms. Laronde's misconduct was much more serious than that of David Cleary. If her discipline was harsher, a conclusion that I do not necessarily accept, it was justified. [75] As to Hisan and RM, both were customer complaints. In the case of RM there was no physical contact, but a concern that Gibson may no longer be used as a carrier. RM was loud and abusive to the customer's security guard. He was given a verbal warning and because this was not the first occurrence, he lost his good guy bonus. [76] In my opinion, Ms. Laronde's actions were more serious than that of RM. But she only received a note to file. RM received a verbal warning and suffered a financial loss. [77] As to HW, this was a customer complaint regarding unacceptable remarks HW made to a female employee of a Gibson customer. There was no physical contact, no request that he not return to the customer. At the time, HW had five previous incidents (no details given). He received a final warning and was required to give a written apology. On these facts, I do not consider that Ms. Laronde received harsher discipline. [78] The case of Ms. Laronde and Scott McWilliams is hard to assess because there is no evidence about his conduct other than he had behavioural issues. He was given a final warning, was suspended for three weeks without pay, was put on probation for six months with no good guy bonus in that period. It would be very difficult to conclude on these facts that Ms. Laronde was more harshly treated than Scott McWilliams. [79] In the result, I have concluded that the Hisan incident and the comparators, do not support a conclusion of adverse differential treatment for Ms. Laronde. [80] The Commission argued that both Ms. Laronde and Steve Semple received final warnings, but Mr. Semple's actions were much more egregious. There is no common ground between these two fact situations. The events leading to the final warning are totally dissimilar. If they are to be considered similar situations, then to be treated more harshly, Ms. Laronde should have received more than a final warning and more three weeks suspension without pay. [81] There remains to be considered the June 6, 1996 and the June 18, 1996 late delivery incidents. The comparator is Mike Rumble. In my view, this comparator is troublesome for Gibson. The facts of the incidents are very similar. They both involve late deliveries; all occurred within June 1996. In the June 6, 1996 incident, Ms. Laronde was late for a switch. There was no late delivery of the load to Honda. Her explanation appeared reasonable, yet she was given a major on the basis that a late is a late. One June 18, 1996, Ms. Laronde was late for her window time. She did not appeal on the understanding that a late is a late. [82] On the other hand, Mr. Rumble was late for his window time, because he left late. No explanation was given as to why. Yet this incident was treated only as a note to file. The onus is on Gibson to offer an explanation as to why this was so. The only explanation offered was that of Ms. Lawrence who said that the matter was dealt with and resolved by the dispatcher. [83] In my opinion, this explanation does not satisfy the onus. Ms. Laronde was treated more harshly than Mr. Rumble on these two occasions for a late delivery. She was adversely differentiated in the course of her employment. Accordingly, I find that Gibson discriminated against her contrary to s. 7 (b) of the Act. [84] Equally as significant is the fact that these two disciplinary offenses were a major factor in her termination. If Ms. Laronde had received the equivalent discipline to that given to Mr. Rumble then, as of June 28, 1996, her discipline record would show only one major offense, the hours of service violation, which would drop off on June 30, 1996, leaving Ms. Laronde with no major offenses. Thus, there would have been no occasion for Gibson to issue a final warning and the culminating major offense of September 27, 1996 would not have been a culminating event leading to her termination. (ii)Sexual Harassment - s.14 of the Act [85] When Ms. Laronde received her final warning on July 3, 1996, she wrote a letter to Gibson the same day to say that she was very concerned that she had three major incidents and faced termination. She requested that she be transferred from the U.S. board to one of the other driver boards, Gibson agreed to her request and she was put on the floater board. [86] In her evidence, Ms. Laronde said that the reason she wanted off the U.S. board was because she felt that she was regularly being tracked on the satellite system and this had led to her accumulating the recent number of disciplinary offenses that put her on the edge of keeping her job. Because only trucks running on the U.S. board had the satellite system, once off the U.S. board, Ms. Laronde thought that her problems would end. [87] The satellite system is a two-way communication between the U.S. dispatch office and the driver. The message that is sent out from the office appears on an LDS screen in the truck and can only be read on that screen. The driver can respond to the message by using the keyboard in the truck. The satellite system is operated by the dispatcher for the U.S. board and is located in a separate dispatch room in the Gibson office. [88] The satellite system can be used to track the location of each Gibson truck on the U.S. runs, how far it has gone, how long it has been on that run, whether the truck is parked, whether the ignition is on or off, etc. A paper copy of all the messages sent and received by the satellite can be printed but this is not normally done unless there is a reason to do so. [89] Both Ms. Laronde and the Commission agreed that the allegations of sexual harassment relate to the conduct of Steve Holt only and no one else at Gibson. When Ms. Laronde joined Gibson, Mr. Holt was a driver on the U.S. board. In September 1994, Mr. Holt moved from driver to become the night supervisor. As the night supervisor, Mr. Holt was not a dispatcher and had no supervisory or disciplinary control over the drivers. His main responsibility was to prepare the billing and payroll for the accounting staff to work on in the morning. His other function was to deal with problems that drivers may encounter during the night shift or deal with customer inquiries during that period. Mr. Holt could direct a driver if there was a clear need to do so, but that was the extent of his authority. [90] The evidence is undisputed that Mr. Holt resigned as night supervisor near the end of September 1995, and went back as a full time driver on the U.S. board. He left Gibson on April 19, 1996, to become a coach driver. There was no contact between Ms. Laronde and Mr. Holt after that date. a) Alleged Incidents of Sexual Harassment 1. The trip envelope - Did you make coffee for Steve [91] There is a drivers room at the Gibson offices with a large table and chairs. Drivers would use the room to sit and drink coffee, tell stories and generally socialize in a work context. The drivers room also has individual mail slots for each driver located on one of the walls. [92] Each driver has a large manila envelope, their trip envelope with their name and employee number which is kept in their mailbox. When they finished a run, they would put their paperwork inside their trip envelope, and put the envelope into a large bin in the room used by all the drivers. The paperwork would go to the accounting office to be processed and the envelope returned to the driver's mailbox. [93] Steve Holt had written on Ms. Laronde's envelope Did you sign your bills and Did I make fresh coffee for Steve? She testified that Mr. Holt bragged that he was a man's man and a woman is subservient to him. Every time she handed in her paperwork, there was Mr. Holt's reminder to her of her subservient position. Ms. Laronde did not give any time frame for this. [94] Mr. Holt agreed that he had written this, but his explanation was that drivers would come into the drivers room and fill their thermos with coffee. If there was no coffee available, they would complain to him. He said that he made probably 50 to 60 pots a week. His recollection is that probably Ms. Laronde came in, complaining that there was no coffee and that was his response. [95] Mr. Holt also testified that everybody had access to the trip envelopes and drivers would often write comments on other driver's envelopes. Some were rude or vulgar, other comments related to a driver not refueling or cleaning their truck. Often drivers' nicknames were written on their envelopes identifying their distinguishing attributes such as Eddy the human tripod, Billy long dong, Old fart, Newfie, etc. The driver's mailboxes were open to everybody and often such things as woman's underwear, jockstraps, cheese, tools would be found there. He also pointed out that a driver could go through an envelope a week, depending on how much paperwork they stuffed in it. If it got torn, they would get a new one, by asking anyone in the office. [96] Mr. Holt said that Ms. Laronde never complained to him about what he had written on her envelope and she could easily have replaced it with a new envelope. Ms. Lawrence also said that Ms. Laronde could have asked for a new envelope at any time. Ms. Laronde agreed that she could have done so, but she choose not to, even after Mr. Holt had left Gibson. 2. The encounter on the fuel tank [97] Ms. Laronde testified that Mr. Holt would often boast in the drivers room about his exploits on the road. He was a storyteller. Ms. Laronde recalled that not long after she started at Gibson, she walked into the drivers room and Mr. Holt was there recounting one of his exploits to some of the other drivers. He was driving for Zavitz Transport. He went to a bar, met a lady in the bar and the two of them went outside and they had sex on the fuel tank of his truck. He told how her husband came out of the bar and he and the husband got into a fight in the parking lot. [98] Mr. Holt's version was that he was in a bar, came outside and got tangled up with some woman out there. As he described it, she was on the fuel tank of his truck and they were fooling around. A car pulled up, the passenger door flew open, this little old man sitting in the car told her to get in the car and away they went. [99] Mr. Holt could not recall whether he told this story in the drivers room or on the CB radio. Nor could he recall if he told in the drivers room and whether or not Ms. Laronde was there at the time. She never complained to him that this tale was inappropriate or unwelcome. [100]Mr. Holt described the drivers room as having the character of a men's locker room. There were a lot of jokes told, hooting and hollering, vulgar language and things like that. Drivers would talk about things they had seen going down the road. According to Mr. Holt it is quite amazing what a driver sees going down the road sitting ten feet up off the highway inside the truck, from things that are comical or funny to outright sexual goings on in the front seats of cars. Drivers would often retell these experiences. In his view, his story was like many stories told in the drivers room. [101] Mr. Holt said that truck drivers are storytellers. Ninety percent of what a truck driver tells you is bullshit and the other ten percent is questionable. You never knew what was true or not, so you never put much stake in it." 3. Working the parking lot - satellite message [102] Ms. Laronde testified that she was on a U.S. run and stopped at her usual truck stop to sleep. She received a satellite message from Mr. Holt asking, What are you doing? Working the parking lot?. In her view, Mr. Holt was suggesting that she was trying to make extra money by working the parking lot as a prostitute. Her evidence is that that this occurred in November/December 1995. Ms. Laronde said that she was very upset by this message. She did not send a return message or speak to Mr. Holt about it. Mr. Holt did not recall sending the message. 4. The Chris Reid message [103] Chris Reid was an owner/operator for Gibson and a friend of Ms. Laronde. Ms. Laronde testified that Mr. Reid was returning from a U.S. run and had contacted Mr. Holt to see if there were any drivers in the area that were running home. Drivers like to run together, because it makes the time go faster and keeps them more alert. Mr. Holt sent her a satellite message, Chris Reid is waiting for you in Tilbury with a chub on. Hurry. When she arrived at Tilbury, Mr. Reid was in his truck. She knocked on his truck door, told him that she had received a message to meet him there. She then bought them both coffee at Tim's and they headed back to Alliston in their trucks. [104] While they were driving back, Mr. Reid told Ms. Laronde on the CB radio that he had checked the message in her truck while she was buying the coffee. The reason he did that, he told her, was because when he first asked Mr. Holt about a driver in the area, Mr. Holt insinuated that Mr. Reid wanted Ms. Laronde for sex. Mr. Reid told her that he vehemently objected to this suggestion and told Mr. Holt so. Mr. Reid wanted to check the satellite message from Mr. Holt to see exactly what the message said. Ms. Laronde's evidence was that this incident occurred in September 1995. [105] Mr. Holt recalled sending this message, but his recollection of the facts was somewhat different. According to Mr. Holt, Mr. Reid was in the U.S. dispatch room and told him that they were running a switch. He asked where Ms. Laronde was and asked Mr. Holt to tell her that he will meet her there with a chub on. [106] Mr. Holt's understanding of the situation was that Ms. Laronde and Mr. Reid were good friends and this comment was just a joke. Mr. Reid just wanted to meet up so they could run together. 5. Bob Watt - sharing her bunk with Chris Reid [107] Bob Watt testified that Ms. Laronde had complained to him that one night she received satellite messages from Mr. Holt that she did not consider appropriate. Mr. Watt went to the U.S. dispatch office and read the satellite message printout. The one that stuck out in his mind is a message about Ms. Laronde sharing a bunk with Chris Reid. Mr. Watt said that the message must have been sent by Steve Holt, because he was the night supervisor. Mr. Watt could not remember whether any names appeared on the message, but he says he knew who the message was sent to because it had the truck number. [108] Mr. Watt's recollection was that he saw these messages sometime in January, February or March 1995. In cross-examination, Mr. Watt said that he could not pin down the exact date, but he thought it was sometime in the mid-nineties. More specifically, it was within a year of him being terminated by Gibson. He was actually terminated on May 22, 1996, and agreed that these messages could have been sent somewhere between May 1995 and May 1996. 6. John Hepburn - stay at home on back with legs open [109] John Hepburn was a friend of Ms. Laronde at Gibson and worked as a driver at Gibson from 1993 to 1999. He testified that Ms. Laronde had spoken to him and was upset sometimes about the satellite meesage Mr. Holt sent to her, and derogatory remarks that he made to her. He also testified that Mr. Holt always spoke to him that Ms. Laronde should stay home lying on her back with her legs open and not be out driving and that Ms. Laronde had a nice ass. When Mr. Holt said this to him, there were other drivers in the drivers room. Mr. Hepburn could not recall whether Ms. Laronde was there when Mr. Holt supposedly made these comments. Nor did he say that he passed on these comments to Ms. Laronde. Ms. Laronde did not give any evidence that she heard these remarks or was told about them. Mr. Hepburn did not give any time frame for these comments. He did not see any of the satellite messages. [110] Mr. Holt denied making those comments. His evidence was that this is a comment that Mr. Hepburn was more likely to have made and he might have agreed with it. It is not something that he would have said. 7. Gary Kitchener - have that bitch fired [111] Gary Kitchener was also a friend of Ms. Laronde at Gibson and worked as a driver from 1994 to November 1995 when he was terminated. Mr. Kitchener testified that, in the summer, 1995, Ms. Laronde told him that Steve Holt had sent her harassing and sexual messages over the satellite. He also recalled an occasion when he was in the drivers room with some other drivers. Mr. Holt came in and was upset with Ms. Laronde and said that I am going to have that bitch fired. I'm tired of her being here. Ms. Laronde was not in the drivers room at the time. [112] Mr. Kitchener felt that Mr. Holt should not have said that, especially in front of the other drivers. He wrote down the time and date and when he saw Ms. Laronde about a month later, he told her about this. He did this because he was concerned about Ms. Laronde's safety and her job. At the hearing, Mr. Kitchener could not remember the exact date, but believed it to be in July/August 1995. [113] Mr. Holt denied making this comment. As night supervisor, he did not have any authority to discipline a driver and certainly lacked the ability to fire any employee of Gibson. 8. Satellite tracking [114] Ms. Laronde testified that she felt that Mr. Holt spent a lot of his time tracking her every night on the satellite. She gave three examples of this, one in early 1996 when she was driving back from the U.S. in a very bad storm, and she received a satellite message from Mr. Holt: Do you realize it has taken you nine hours to go 235 miles? She testified that this was very upsetting for her because she had made great efforts to deliver the load safely and felt that Holt had belittled her professionalism in getting to where she was and still being on the road in the face of severe and icy road conditions. When asked about this, Mr. Holt said it was probable that he sent this message, but not in 1996, maybe a year earlier. [115] Ms. Laronde also referred to satellite printouts which showed that Mr. Holt had been tracking her on June 15, 1995, the night she took the truck home and which led to her losing half of her good guy bonus. [116] On another occasion, Ms. Laronde was on the final leg of U.S. run from Vincennes and had planned to stop for four hours sleep in Orangeville. She received a satellite message from Mr. Holt telling her to bring the truck back to the Alliston yard. Ms. Laronde was scheduled to be back in the yard much later, between 6:30 a.m. and 7 a.m. and with the four hours sleep, she would have made it well in time. She replied that she was beyond her logbook hours, but Mr. Holt sent another message that he wanted the truck back right away. Ms. Laronde parked the truck at Orangeville between two other trucks and slept for four hours. [117] Mr. Holt well remembered this incident. Gibson needed Ms. Laronde's truck and he had given her various options. In the end, he arranged for a switch driver to pick up her truck and allowed Ms. Laronde sleep time so she did not go over hours. He also arranged for her to drive a day cab to the Gibson yard in the morning and for someone else to pick up her gear, which did not fit in the day cab. [118] As to Ms. Laronde's allegations, Mr. Holt's evidence was that he would only track a driver on the satellite if there was a need to do so. He tracked the truck not the driver when he was the night supervisor, and he did not follow Ms. Laronde on the satellite system any more than any other U.S. driver. It was his experience that any driver who drives a satellite truck feels that they are being tracked. [119] Ms. Laronde testified that she felt intimidated by Mr. Holt. She said that she avoided Mr. Holt at all costs. If she returned from a run at night, she would not go into the drivers room to complete her paperwork. Instead, she would complete it in the truck and would just go into the drivers room to hand in the truck key and paperwork. She would then leave as quickly as possible. [120] In her evidence, Ms. Laronde said that she complained to a number of people at Gibson about what she considered to be Mr. Holt's harassing conduct. In addition to her friends at Gibson, such as Gary Kitchener, John Hepburn and Chris Reid, she also spoke to persons who she thought had supervisory authority and who could stop Mr. Holt's behaviour. At the time, there were no company policies or procedures that she knew of that she could refer to or rely on. [121] The first person she said she spoke to around January 1996 was Mike Morton. He was Mr. Holt's supervisor. Mr. Morton told her that he didn't think there was much chance of anything being done about it, because of the close relationship between Mr. Holt and the Gibsons. [122] Ms. Laronde then talked to Willie Teigesser, her dispatcher. She asked him if he had seen the satellite messages that were being sent to her and he said that he had. There is no evidence as to what messages he had seen. This was about a week after she had spoken to Mike Morton. She asked that Mr. Holt be told to stop sending her satellite messages that were not work related. Mr. Teigesser's response was the same as that of Mr. Morton. [123] Ms. Laronde went to Bob Watt, the safety director at Gibson, she said, in early 1996. She told him that she was getting satellite messages from Mr. Holt that were uncalled for and were scaring her. She did not know what to do and was looking for some direction. Mr. Watt did not feel that he could do anything because he did not supervise Mr. Holt. He told her that Stacey Beckstead, who worked in the office, had had some problems with Mr. Holt as well, and suggested that Ms. Laronde speak to her. Ms. Laronde did discuss this with Stacey Beckstead who was not very forthcoming, but told her to raise it with her father, Rick Beckstead, Gibson's vice president of operations. [124] Ms. Laronde testified that she met with Mr. Beckstead in his office in March 1996. She explained to him that she felt that Mr. Holt was harassing her over the satellite, and give him the example of the 235 miles/nine hours message. She told Mr. Beckstead that she wanted to do the best job she could, but Mr. Holt's interference was getting to be too much. Mr. Beckstead did not say anything or acknowledge anything at this meeting. Ms. Laronde testified that, after this meeting, Mr. Holt's behaviour changed. He would not speak to her directly and there was a lot of animosity. [125] Ms. Laronde also spoke to Ms. Lawrence about Mr. Holt after Ms. Lawrence started at Gibson. Her evidence was that this took place in April or May 1996. Ms. Lawrence confirmed that Ms. Laronde had raised this question with her, not in 1996, but in August, 1995, shortly after she became Human Resources Manager. Ms. Laronde told her that Mr. Holt was sending her offensive messages on the satellite and making crude comments about her in the drivers room. Ms. Lawrence said that she would speak to Mr. Holt which she did. She told him about Ms. Laronde's concerns and he denied that anything like that had happened. They discussed the question of harassment, how it was not condoned by the company and that if it was happening, it must stop, Ms. Lawrence also told Mr. Holt that in the event there were incidents of any kind with Ms. Laronde, he was not to deal with her directly, but refer them to Ms. Lawrence. [126] Ms. Lawrence reported back a short time later and told Ms. Laronde that she has spoken to Mr. Holt, that he had denied doing these things and that he agreed to have contact with Ms. Laronde only if necessary for operational requirements. According to Ms. Lawrence, Ms. Laronde seemed to accept this and that was the end of it. She never heard another thing from either party regarding harassment. To the best of her knowledge, there was no further contact between Ms. Laronde and Mr. Holt. b) The Law - Sexual Harassment [127] Section 14 of the Canadian Human Rights Act makes it a discriminatory practice to harass as individual on a prohibited ground of discrimination. Under s.14(2) sexual harassment is deemed to be harassment on a prohibited guard. The Act does not define what constitutes sexual harassment, but there are a number of judicial decisions that deal with this. The leading decision is that of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252. In this case, the Supreme Court defined of sexual harassment as being unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. (p.1284) The Court went on to describe sexual harassment as demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. (p.1284) [128] Later court decisions have particularized the types of conduct that are considered to be sexual harassment. In this regard, the Federal Court in Canadian Human Rights Commission v. Canadian Armed Forces and Kimberley Franke, [1999] 3 F.C. 653 (FCTD), referred to Professor Aggarwal's book, Sexual Harassment in the Workplace, 2d.ed. (1992), in which Professor Aggarwal suggests that sexual harassment may be grouped into three categories, verbal, physical and psychological. Verbal would include unwelcome remarks, jokes that might cause embarrassment; gender based insults, telephone calls or other types of conversations or messages with sexual overtones. Physical implies just that, grabbing, mugging, patting, brushing against etc. Psychological can involve persistent intimate proposals, propositioning, promising favors for sex. [129] The Court in Franke also spoke of other factors that may be considered. Once it is found that the conduct is sexual in nature and unwelcome, unless it is a single, serious incident there must be an element of persistence or repetition for the conduct to be sexual harassment. The more serious the conduct and its consequences, the less repetition is necessary. The less serious the conduct and its consequences, the more persistence must be shown. c) Analysis and Conclusion [130] It is against this legal backdrop that I now consider the incidents that the Commission and the complainant have alleged to constitute sexual harassment. [131] There are issues of credibility both for some of the incidents of alleged harassment and with respect to the dates of Ms. Laronde's efforts to have management deal with her complaints about Mr. Holt. [132] Dealing first with the incidents, they are three in number. The first is the working the parking lot satellite message, that Ms. Laronde claims Mr. Holt sent her in November/December 1995. Mr. Holt was not the night supervisor at that time. When this fact was put to Ms. Laronde, she speculated that Mr. Holt, a driver at that time, could have gone at night to the U.S. dispatch office, on his time off and sent her that message. Ms. Laronde was not willing to revise her estimate of the date that she received the message (unlike what she did for other incidents for which she initially gave that had the wrong time frame). [133] Given these facts, there are three possible conclusions. Ms. Laronde did not receive the message. She did receive it, but it was not sent by Mr. Holt. She did receive it, but had the wrong date, which she was not willing to concede. In my opinion, her speculation as to how it came to be that Mr. Holt sent the satellite message is just not credible. The burden is on the Commission and the complainant to establish that this message was sent by Mr. Holt. In my opinion, the evidence does not show this and I can not take this incident into account in determining the question of sexual harassment. [134] As to the John Hepburn, stay at home on her bed with her legs open, there is a conflict in the evidence. Mr. Holt denied making these comments. Mr. Hepburn did not give any time frame for the alleged comments. He could not recall whether or not Ms. Laronde was present when these comments were made. Nor could he recall whether he passed these comments on to Ms. Laronde while she was employed at Gibson. He was a friend of Ms. Laronde at Gibson and as such has an interest in supporting her position. [135] On the other hand, Mr. Holt, in his evidence was willing to admit that he had sent certain satellite messages to Ms. Laronde; that he had told the encounter on the fuel tank story. He also agreed that he had sent the 235 miles/nine hours satellite message and even provided a date which made it believable, as opposed to the date that Ms. Laronde had given on the question of credibility, I prefer Mr. Holt's evidence over Mr. Hepburn. [136] Finally, there is Mr. Watt's evidence that he read a printout of a satellite message sent at night by Mr. Holt about Ms. Laronde sharing the bunk with Chris Reid. Initially, Mr. Watt's recollection was that he saw this message sometime between January-March 1995. When cross-examined, he changed his evidence to say that he saw it sometime in the mid 90's, possibly between May 1995 and May 1996. Obviously this time frame is problematic because Mr. Holt was not the night supervisor after September 1995. Further, Ms. Laronde who would have received this satellite message and who had a very good recollection of satellite messages that she had received from Mr. Holt, made no mention of this in her evidence. Finally, there is no context for this message or what would have prompted Mr. Holt to send this message, either in January-March 1995 or in May 1995 and May 1996. [137] In my opinion, the appropriate conclusion is that there were not two Chris Reid satellite messages. Rather, Mr. Watt, in his recollection, has confused this satellite message with the Chris Reid satellite message referred to in Ms. Laronde's evidence. This evidence is not credible and should not be taken into account on the question of sexual harassment. [138] As to the Vincennes satellite message, Ms. Laronde said she received it in February 1996. She later changed this date to February 1995. However, she maintained that she received the 235 miles/nine hours satellite message in early 1996. [139] Ms. Laronde was also very confused about the time frame when she spoke to management. Initially, her evidence was that she had spoken to all the persons mentioned, from Mike Morton, in early January 1996, through to Ms. Lawrence in April/May 1996. But when she was cross-examined, she tied these conversations to the date that she filed her complaint with the Commission, namely, in August 1996. Her revised evidence was that she had met with Mr. Beckstead in July/August 1996; Mr. Teisegger in March 1996 and Mr. Morton, a couple of weeks later. [140] It is difficult to resolve the conflicts in this evidence. If these conversations had taken place in 1996, Mr. Holt was long gone from the position of night supervisor. He left Gibson in April 1996. If I accept Ms. Lawrence's evidence that the harassments stopped in August 1995, how can one explain the Chris Reid satellite message which was sent in September 1995. [141] In spite of the conflicts, I think that the evidence does support the conclusion that Ms. Laronde did speak to the management persons referred to above. Gibson did not seriously challenge this. I have concluded that these discussions did take place sometime either in 1995 or 1996 or both. [142] There remains four incidents to consider on the issue of sexual harassment. The first is Mr. Holt writing on Ms. Laronde's trip envelope, Did I make fresh coffee for Steve? Ms. Laronde considered it to be a constant reminder of her subservient position. No doubt, this can be interpreted as belittling, as suggestive of a woman's place. It could be characterized as having gender implications, rather than being sexual in nature. But, for the purposes of this analysis, I will assume it to be conduct having sexual connotations. [143] The meet Chris Neil, he is waiting with a chub on satellite message clearly has sexual implications. Mr. Holt agreed that he sent it, but on the urging of Mr. Reid, a good friend of Ms. Laronde. Ms. Laronde's account is otherwise. I need not choose between the two versions. Mr. Holt was in control of the satellite messaging system and it was his decision to send the message. If Gibson wanted to show that this message was not unwelcome, that it was just a joke between friends, Gibson could have called Mr. Reid as a witness. [144] Thirdly, there is the encounter on the fuel tank. Ms. Laronde testified that she was in the drivers room when Mr. Holt told it. She was offended by the story. Mr. Holt's description of the drivers room, could lead one to conclude that it had somewhat of a ribald atmosphere. This is not to say that Ms. Laronde was a willing participant , but the evidence is that, from time to time, she was not immune from such goings on. [145] I refer to two events in evidence, the 1995 Gibson Christmas after-party and Bob Gauley's birthday celebrations at Crossroads. After the Christmas party, a number of drivers, including Ms. Laronde, had taken rooms at the Red Pines Inn in Alliston. They assembled in Ms. Laronde's room and at one point in the festivities convinced a very inebriated Bob Gauley to put on Ms. Laronde's party dress (which she had changed out of) which he did, complete with corsage and tinsel. Pictures were taken and shown around the Alliston yard by Ms. Laronde and others, much to the consternation of Mr. Gauley, but to the amusement (Mr. Gauley was quite a large man) of the other drivers. [146] On another occasion, a number of drivers, of which Ms. Laronde was one, celebrated Bob Gauley's birthday by taking him out for dinner and after to Crossroads, a strip club in Barrie. Ms. Laronde said that much of the entertainment was getting lap dances for Mr. Gauley. She agreed that this involved a near naked woman sitting on Mr. Gauley's lap. Ms. Laronde contributed to the pool of money to pay for the lap dancers. [147] In referring to these instances, I am not suggesting that Ms. Laronde accepted or condoned conduct of a sexual nature in her workplace. Rather, from this evidence, it seems that Ms. Laronde was comfortable with a certain level of conduct which had sexual connotations. [148] As Mr. Holt said, truck drivers are story tellers. He was telling a story, boasting about one of his sexual exploits. This does have a sexual connotation. But the story was not directed to Ms. Laronde, nor was she the object of the story. [149] Gary Kitchener's account of Mr. Holt's saying about Ms. Laronde, that he was going to have the bitch fired, is offensive and demeaning to women. This was not said to her directly, but was reported to her by Mr. Kitchener about a month later. [150] Ms. Laronde also complained about Mr. Holt tracking her on the satellite. Ms. Laronde identified three occasions, the June 1995 taking the truck home; the run back from Vincennes; and, the 235/nine hours satellite message. I do not see any sexual connotations or sexual nexus in any of these three events. Mr. Holt's evidence was that he tracked the truck, not the driver. He would only track the driver on the satellite if there was a need to do so. A good example of this is the Vincennes satellite messages. Mr. Holt sent these messages because Gibson required Ms. Laronde's truck back well before the scheduled time. [151] There is no evidence as to why Mr. Holt sent her the message about the amount of time it took her to go 235 miles, or why Ms. Laronde was tracked when she took her truck home. On the other hand, there is no evidence that Ms. Laronde was tracked on the satellite any more than any other Gibson driver. In my opinion, none of these three incidents can be characterized as sexual in nature. [152] After this analysis, there remains four incidents that may be considered as being sexual in nature. These are, the trip envelope; the encounter on the fuel tank; the Chris Reid incident; and, having the bitch fired. As noted earlier, unless the conduct is very serious, a single incident or isolated incidents of offensive sexual remarks generally do not create a hostile or detrimental work environment. In my opinion, none of these remarks considered individually are so severe as to have this effect. Nor, taken collectively, do these remarks present a persistent pattern of offensive conduct. The evidence is that they were spread over at least 18 months from March 1994 to September 1995. [153] For these reasons, I have concluded that the Commission and the complainant have failed to establish a contravention of s.14 of the Act. iii) Failure to be Promoted to Owner/Operator [154] The final element of Ms. Laronde's complaint is that she was not selected to be an owner/operator. Owner/Operators are another category of drivers at Gibson. They are licensed AZ drivers who own their own tractor truck, pay for their fuel costs, licence plate, insurance, a portion of the WSIB premiums and part of their benefits package. [155] Gibson's practice is to contract with owner/operators for one year, which is automatically reviewed unless notice is given two weeks prior to expiry. But either party can terminate at any time on two weeks notice. Under the contract, the owner/operator agrees to provide services exclusively to Gibson. The owner/operator is the primary driver of the unit, with exceptions made for vacations or illness, or some other unforeseen situation. In such cases, relief drivers could driver the unit. Owner/operators drive only on the U.S. board. [156] Around January 1996, Ms. Laronde had told Ms. Lawrence that she was interested in becoming an owner/operator. She was told to put her name on the list to make sure that management knew of her interest and then wait. [157] According to Ms. Laronde, Rick Beckstead called her on March 28, 1996, and asked her if she was still interested in becoming an owner/operator. He told her that Gibson would be hiring out of the driver pool and she was being considered. Ms. Laronde understood that if she could meet the criteria, she would be selected. She had spoken to a truck dealer, earlier in January 1996, in anticipation of becoming an owner/operator. [158] However, on March 29th, the very next day, Mr. Beckstead told her that he didn't need her to go and buy a truck now. She learned that Gibson has selected four drivers, Scott Armstrong, Chad Horan, Ken Johnson and Warren Snell to become owner/operator. [159] She also testified that in August 1996, Gibson selected three more drivers to be owner/operators. Norrie Sarcen was one of them but she could not recall the others. Ms. Laronde was not even considered. She was not, said Ms. Lawrence, because her overall performance was not up to company standards. Also, she was not on the U.S. board. Owner/Operators only run to the U.S. [160] There was always a certain number of drivers at Gibson who wanted to own their vehicle. Prior to 1996, there was nothing to which drivers could refer to tell them how go about becoming an owner/operator with the company. In 1996, after discussions with the owners, Ms. Lawrence prepared a document called Broker Requirements. This set out certain criteria that must be met before a driver would be considered, including, presently running to the U.S.; good attitude; ability to finance a new truck of certain dimensions and color; and full time with Gibson for a minimum of two years. [161] The Broker Requirements were viewed by the owners as a starting point and they reserved the right to make the final decision. as to who and when they would select an owner/operator. [162] Ms. Lawrence's practice was to compile a list of drivers who were interested in becoming an owner/operator when an opportunity came up, she would give the list to the drivers who would make the selection. In the case of the drivers selected in March and August 1996, Bing Gibson made the decision. [163] Ms. Lawrence agreed that the Brokers Requirements did not specify that a driver's incident record is to be considered. But she did say that an owner/operator has to be operationally sound. They have to be reliable, know the company's policies and procedures and follow them. A driver who does not have a good record would not be accepted as an owner/operator because they had not proved themselves as a company driver. [164] Bing Gibson gave evidence as to how he made the decisions. For him a driver gets to be an owner if they have a good personality. They have to be on time every time. They must be able to finance the truck and handle the payments. They should be mechanically inclined and be able to repair their trucks. This is an important factor for operating costs which impacts on whether or not an owner/operator will be successful. [165] As to the four owner/operators, Chad Horan has been with Gibson since November 10, 1994. Bing Gibson knew his grandfather and his father and he knew Chad personally. He is the nephew of Leonard Gibson, one of the Gibson owners. According to Bing Gibson, he grew up around Gibson and was an automatic choice. [166] Warren Snell was originally hired by Gibson in September 1988. Bing Gibson said that he was brought on as an owner/operator because he liked the area that Mr. Snell came from, Mona. Mr. Snell is also a heavy equipment operator and understands heavy equipment. He has not caused the company any problems. He had the backing of his father and his house was paid for. He was on time every time which is very important to Gibson. [167] Scott Armstrong started as a driver with Gibson on April 29, 1994. Bing Gibson knew and had done business with his father. He had known Scott Armstrong's family for 15 years before he came to work for Gibson. They were farmers, good people and there was no reason why, said Bing Gibson, he would not choose him as an owner/operator. [168] Ken Johnson started at Gibson in 1992. Bing Gibson's comments about Mr. Johnson were that he often saw him cleaning and polishing his truck when he was at home. He spent a lot of time making sure it was immaculate. Bing Gibson was impressed with that. Mr. Johnson was always on time. He had financial backing. a) Analysis and Conclusion [169] The Commission argued that, having regard to the Broker Requirements, Ms. Laronde was as qualified as any of the four chosen to be owner/operator, the only distinguishing factor being that she is female and the others are male. [170] The Commission argued that the logical inference is that Ms. Laronde did not get to be an owner/operator was because of her gender. In support of this argument, the Commission referred to two cases, Basi v. CNR (1988), 9 C.H.R.R. D/5029, and Stakes v. Rex Pak Limited, (1982) 3 C.H.R.R. D/1001. [171] The principle derived from these cases is that, if the complainant had the qualifications for the position and somebody else, no better qualified, but lacking the distinguishing characteristics of the complainant, was hired, there is an obligation on the employer to provide a credible explanation as to why the complainant was not hired. [172] The facts are that none of Ms. Laronde, Mr. Horan, Mr. Armstrong or Mr. Johnson met all of the Broker Requirements. As of March 1996, Ms. Laronde, Mr. Horan and Mr. Armstrong had not been full time employees for two years. According to Ms. Laronde, Mr. Horan and Mr. Johnson were not running to the U.S. at that time. The qualifications of Mr. Snell were not challenged. [173] Assuming that the Broker Requirements were more than just guidelines, the question is whether or not Gibson exercised its discretion in a discriminatory manner in choosing these three individuals and not Ms. Laronde when none of them met all of the criteria in the Broker Requirements. [174] Bing Gibson's evidence was that Chad Horan was a nephew of the owner. He was family. He grew up around Gibson. He was an automatic choice. Bing Gibson knew Scott Armstrong's family. He had business with his father and grandfather. They were good people. Ken Johnson took exceptional care of his truck and that impressed Bing Gibson. He was always on time. He had financial backing. [175] These explanations may not be the basis upon which others would decide. But for Bing Gibson, from a business point of view, these considerations were important. In my opinion, there is nothing in this evidence that can be construed as a pretext for not selecting Ms. Laronde because of her sex. Thus, I have concluded that Gibson did not discriminate against Ms. Laronde and did not contravene s.14 of the Act. III. REMEDY A. WAGE LOSS [176] When there is a finding of discrimination, it is incumbent on the Tribunal in providing a remedy to make whole the victim of the discriminatory practice, taking into account principles of foreseeability, remoteness and mitigation. Canada v. Morgan, [1989] 2 F.C. 401 (C.A.) and Canada v. McAlpine, [1989] 3 F.C. 530 (C.A.) [177] The Commission's position on wage loss is if Gibson had not discriminated against Ms. Laronde, there would have been no final warning and no basis for terminating her employment on October 2, 1996. The Commission urged that she be compensated for lost wages and the compensation period should be 29 months, the period that Ms. Laronde worked at Gibson. [178] The respondent Gibson, relying on the principles of reasonable notice derived from wrongful dismissal jurisprudence, suggested that two and one half months would be appropriate. [179] In Morgan, the Court of Appeal pointed out that principles of wrongful dismissal should not be imported into human rights cases when determining compensation. This is because the liability of the employer for wrongful dismissal arises out of the failure to give proper notice, not because of discriminatory treatment. The source of the liability is different and so should the consequences. [180] As to the submission of the Commission, it fails to take into account relevant intervening facts. The evidence is that Ms. Laronde successfully completed her probationary year and presumably was incident free. As Gibson's counsel pointed out, this was also true for the period from June 1995 to May 1996. But from May 1996 to September 1996, that there was a noticeable spike in the number of disciplinary offenses. Ms. Laronde was building a disciplinary record that was putting her job in jeopardy. [181] As of October 2, 1996, Ms. Laronde had three majors, two hours of service violations and a failure to inspect the load. According to the company's Rules she was open to termination. But the evidence is that Gibson did not apply the Rules strictly, especially for termination. Another factor to consider is that the two hours of service violations would have fallen off Ms. Laronde's disciplinary record in a few weeks. The evidence also suggests that over hours violations were not considered as serious as other operational violations. [182] Taking all these factors into account, it is my opinion that the appropriate period for calculating the wage loss is nine months. Ms. Laronde should be fully compensated for nine months from the date of her dismissal. From this should be deducted the income she earned from alternate sources. [183] Ms. Laronde will be entitled to a lump sum payment on account of lost wages. This may well result in negative income tax consequences for her. It would unfairly penalize her if she were to suffer a more onerous income tax burden by receiving a lump sum payment now, than she would have incurred had the monies been paid to her as salary on an on-going basis between October 1996 and the date of payment. Accordingly, Gibson shall pay Ms. Laronde an additional amount sufficient to cover any additional income tax liability that she may incur as a consequence of receiving payment in this fashion. B. SPECIAL COMPENSATION [184] Section 53 (3) of the Act, as it stood in October 1996, provided for awards of special compensation for reckless or willful conduct, or for injuries to feelings or self-respect, to a maximum of $5,000. There are no assertions that Gibson's conduct was reckless or willful. [185] The evidence is that being terminated by Gibson put Ms. Laronde in a very difficult position. She had no job, was a single parent with three children to support. Her mother, who was unable to live on her own, also lived with and was supported by Ms. Laronde. The stress, that she suffered because of job loss, was compounded by the financial pressures she now faced. [186] Ms. Laronde testified that she immediately began looking for work as a driver. She was not able to find full time work that paid her similar wage rates to Gibson. The full time work that she did obtain was not for the long term. [187] In all of the circumstances, I award Ms. Laronde $5,000 for special compensation. C. INTEREST [188] Interest shall be payable on the monies awarded for lost wages in accordance with Rule 9 (12) of the Tribunal's Interim Rules of Procedure. Interest should run from October 2, 1996 to the date of payment, and be calculated as the wages would have become payable to Ms. Laronde. D. OUT OF POCKET EXPENSES [189] Ms. Laronde should be reimbursed for the out of pocket expenses incurred as a result of the discriminatory practice including expenses incurred for the hearing of her complaint. [190] If the parties are unable to agree within 30 days of the date of this decision as to the quantification or implementation of any of the remedies awarded hereunder, I retain jurisdiction to deal with these matters. J. Grant Sinclair OTTAWA, Ontario November 7, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE: T712/1702 STYLE OF CAUSE: Michele Laronde v. Warren Gibson Limited DATE & PLACE OF HEARING: Barrie, Ontario January 21, 23, 24, 2003 February 6 and 7, 2003 February 11, 2003 Toronto, Ontario June 17-19, 2003 June 23, 2003 DECISION OF THE TRIBUNAL DATED: November 7, 2003 APPEARANCES: Michele Laronde On her own behalf Patrick O'Rourke For the Canadian Human Rights Commission John Saunders For the Respondent

2003 CHRT 39

CHRT

Mowat v. Canadian Armed Forces

en

2003-11-21

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6848/index.do

2023-12-01

Mowat v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2003-11-21 Neutral citation 2003 CHRT 39 File number(s) T822/7203 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE DONNA MOWAT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent RULING ON OPENING STATEMENTS MEMBER: J. Grant Sinclair Paul Groarke 2003 CHRT 39 2003/11/21 I. INTRODUCTION II. FACTUAL HISTORY III. Threshold ISSUE A. The CAF's Position As To The Commission's Proposed Participation B. The Commission's Position C. The Complainant's Position IV. ANALYSIS V. CONCLUSION AND ORDER I. INTRODUCTION [1] The issue raised by this motion is whether the Canadian Human Rights Commission, in appearing before the Canadian Human Rights Tribunal, can deliver an opening statement consisting primarily of a general overview of the applicable law, and then withdraw from the hearing, but reserve its right to participate at some later time. [2] The Commission's proposed method of proceeding in this case is a fundamental change in the way the Commission has traditionally represented the public interest before the Tribunal. The Canadian Armed Forces has objected to the Commission's manner of proceeding, arguing that this would be fundamentally unfair to its right to defend itself as the respondent in these proceedings. II. FACTUAL HISTORY [3] Donna Mowat filed a complaint of discrimination against the CAF, wherein she alleges that she has been the victim of sexual harassment during her employment with the CAF. Following an investigation into Ms. Mowat's complaint, the Commission referred the complaint to the Tribunal for hearing. [4] In the course of a pre-hearing teleconference convened by the Tribunal, counsel for the Commission advised the other parties that it did not intend to participate in the hearing, beyond appearing at the commencement of the hearing to deliver an opening statement. A subsequent exchange of correspondence clarified that it was the intention of the Commission to provide an opening statement: ... detailing the public interest in the complaint. The submission will set out the Commission's view of the legal issues in the case and will provide a detailed statement of the law relevant to [the] complaint. Commission counsel will not be present for the full duration of the hearing.... [5] Following receipt of this clarification, the CAF brought a motion before the Tribunal, asking the Tribunal to find that the proposed manner of participation by the Commission is improper and prejudicial to the CAF. In particular, the CAF objects to the Commission delivering an opening statement without having to support its submissions with facts proven before the Tribunal. The CAF also objects to the fact that the Commission did not provide the parties with the details of its position in advance of the hearing, as required by the Tribunal's Rules of Procedure. The CAF asks for an order that the Commission not be permitted to participate in the hearing in the manner that it proposes and for an order requiring the Commission to disclose the substance of its position in advance of the hearing. [6] In the course of a second teleconference, Tribunal Vice-Chairperson Grant Sinclair directed that the Commission provide the parties with a copy of its proposed opening statement, so that the propriety of the Commission's proposed submission could be addressed in the course of the motion. A copy of the Commission's proposed opening statement is appended to this ruling. III. Threshold ISSUE [7] Before addressing the substance of the CAF's motion, a threshold issue arises, namely, whether the Tribunal has the power to deal with the way in which the Commission intends to participate in this hearing. [8] The Commission submits that the Tribunal has no authority to review decisions of the Commission made pursuant to the Canadian Human Rights Act, as supervisory jurisdiction over the Commission is confined to the Federal Court. According to the Commission, its status as an independent party appearing before the Tribunal means that it has the unfettered right to appear at a hearing. Section 50 of the Act grants the Commission party status, making it clear, the Commission says, that the Commission does not have to apply to the Tribunal ... to have the scope of its participation considered by the Tribunal. The Commission submits that if the Tribunal were to attempt to review the way in which the Commission chose to represent the public interest in this case, it would be inconsistent with the Commission's status as an independent party. [9] Although the Commission's written submissions were framed in absolute terms at the hearing of the motions, Commission counsel did concede that the Tribunal, as master of its own procedure, has the power to control the hearing process and to take action where the conduct of one party would result in unfairness to another party. By way of example, Commission counsel conceded that it would be open to the Tribunal to direct that the Commission deliver its summary of the law at the end of the hearing, rather than at its commencement. [10] The CAF agrees that a decision by the Commission to participate in a given case is properly reviewable in the Federal Court, and not before the Tribunal. However, the CAF argues that when the Commission appears before the Tribunal, the Commission must comply with the principles of fairness and with the Tribunal's Rules of Procedure. [11] As the Tribunal has previously noted, it is up to the Commission to decide how best to carry out the public interest mandate required of it under section 51 of the Canadian Human Rights Act.1 It is not up to this Tribunal to second-guess the Commission in this regard. Rather, decisions made by the Commission in individual cases are properly reviewable in the Federal Court.2 [12] That said, it does not mean that the Commission can conduct itself without constraint in its appearances before the Tribunal, without regard for the Tribunal's Rules of Procedure, the requirements of procedural fairness and the rights of the other parties to a proceeding. Like any other party, the Commission is subject to the Tribunal's Rules of Procedure, and is, as well, subject to any evidentiary or procedural rulings that the Tribunal may make. [13] As an adjudicative body dealing with the quasi-constitutional rights enshrined in the Canadian Human Rights Act, the Tribunal has not only the power, but the duty, to ensure the fairness of the process. The Tribunal has the power to preclude the Commission, for example, from asking leading questions while examining its own witnesses, calling inadmissible or irrelevant evidence, or making closing submissions that refer to facts not in evidence. So too does the Tribunal have the power to ensure that any representations that the Commission makes in a given case, whether by way of opening statement or otherwise, respect principles of fairness. [14] In our view, the Commission's position mischaracterizes what the CAF is seeking. The CAF's objection does not involve a review of a decision of the Commission. Rather, it involves the determination of whether the procedure that the Commission intends to adopt in participating in this hearing conforms with the principles of fairness as well as the Tribunal's Rules of Procedure. As such, we are satisfied that the Tribunal has the power to deal with the CAF's objection to the Commission's proposal to deliver its proposed opening statement. A. The CAF's Position As To The Commission's Proposed Participation [15] The CAF argues that what the Commission is proposing to do is contrary to the purpose of an opening statement. An opening statement is designed to provide the trier of fact with a general understanding of what the facts and issues will be in the case. In referring to specific facts in an opening statement, counsel is subject to an implied undertaking, that is, a professional obligation to ensure that any facts that counsel refers to in his or her opening statement will be supported by the evidence. [16] Although the Commission contends that it will restrict its comments in its opening statement to ... the Commission's view of the legal issues in the case and will provide a detailed statement of the law relevant to [the] complaint..., the CAF says that a review of the proposed opening statement provided by the Commission illustrates how difficult it is to make legal submissions without grounding those submissions in the facts of the case. In particular, the CAF points to the Commission's proposed submission that: There is no doubt that sexual harassment is not only a particular concern to women but a matter of public concern. It pervades the workplace, government, schools, law firms, medical profession, military, sports, and cultural institutions. This demonstrates that the Commission intends to suggest to the Tribunal that there is a systemic problem of sexual harassment in the Canadian military. Given that the Commission does not intend to call any evidence in this case, it is clear that it will not be in a position to establish what it alleges. In the CAF's submission, the making of such an unsupported allegation would amount to professional misconduct on the part of Commission counsel. Further, such a statement would be highly prejudicial to the CAF. Such an allegation could well influence the Tribunal member hearing the case when it considers the merits of Ms. Mowat's individual allegations of sexual harassment. This is more so coming from the Commission, a party with known expertise in the field. [17] By allowing the Commission to refer to jurisprudence on a particular topic, the hearing could be prolonged, as it may become necessary for the CAF to call evidence to show why the law does not apply, even though the facts of the case do not otherwise raise the issue. For example, the Commission intends to refer to the law governing what should be included in a sexual harassment policy. The natural inference for the Tribunal to draw from this, the CAF says, is that the CAF's harassment policy may be inadequate. Prudence might then require the CAF to call the necessary evidence to establish affirmatively that its policy was sufficient, even though the actual facts of Ms. Mowat's case might not otherwise call into question the adequacy of the CAF's policy. [18] Further, in order to decide what law is relevant to a specific case, the Commission has to presuppose a certain understanding of the facts of the case. By way of example, in its proposed opening statement, the Commission refers to the law relevant to the issue of retaliation. There is nothing in Ms. Mowat's complaint that even suggests that retaliation is in issue in this case. The only reference to allegations of retaliation are contained in Ms. Mowat's Statement of Issues. Thus, the CAF says, in making any reference to the question of retaliation, the Commission has to assume the facts as alleged by Ms. Mowat. [19] The Commission contends that its opening statement is a neutral overview of the law, intended to assist both the parties and the Tribunal. The CAF disputes this, pointing out, for example, that the Commission did not refer to the existing Tribunal jurisprudence which decided that the retaliation provisions of the legislation do not have a retroactive effect. Thus they would not apply to the events in this case which occurred prior to June of 1998.3 In this way, the Commission's opening statement unfairly favours the complainant, to the detriment of the CAF. [20] In addition, the CAF says that the Commission has not complied with the disclosure obligations imposed on the parties by the Tribunal's Rules of Procedure. The Commission did not provide the parties with advance notice of its position as to how the public interest is engaged in this case. Had it not been for the Tribunal's direction that the Commission file a copy of its proposed opening statement prior to the return of this motion, the CAF says that it would have had no idea of what the Commission's position was until the first day of the hearing. This, the CAF says, is fundamentally unfair. [21] The CAF also argues that it will be prejudiced if the Commission is permitted to reappear at some point in the hearing. It has no way of knowing when, or if, this will occur, or the nature of the Commission's participation. As a result, the CAF can not anticipate what questions it may need to ask of the complainant's witnesses, and what evidence it may need to call in order to address the position that the Commission may adopt later in the hearing. [22] Finally, the CAF argues that a generic statement of the law, which is not tied in to the facts of the case will be of limited assistance to the Tribunal. And the limited utility of this type of opening statement is outweighed by the prejudice to the CAF that will accrue if the opening statement is permitted. B. The Commission's Position [23] The Commission denies that the CAF will be prejudiced in any fashion, if the Commission is permitted to deliver its proposed opening statement. According to the Commission, both the complainant and the respondent were advised early in the process that the Commission intended to limit its participation in this case. Further, the Commission says, its representations will be confined to a statement of the law governing the complaint. Given that the Tribunal is an expert Tribunal, the Commission says it will not be unduly influenced by Commission submissions regarding the law, should those submissions be made at the commencement of a hearing. [24] The Commission disputes the CAF's assertion that the Commission has failed to identify a public interest in this case. According to the Commission, the public interest in a complaint crystallizes when it is referred to the Tribunal on the basis that the Commission is satisfied that the complaint merits further inquiry. The Commission takes the position that the public interest lies in ensuring that the appropriate legal issues are adjudicated, and that legal principles are fully developed. This does not require that the Commission lead evidence in a given case. [25] Counsel for the Commission submits that the Commission's role when appearing before the Tribunal, is more akin to that of a Crown Attorney. The Commission is not adverse in interest to any of the other parties. Rather, the interest of the Commission is to see that justice is done. Commission counsel did concede however, that its review of the law is meant to be neutral, the Commission is not infallible. [26] Further, the Commission says that, its review of the law is designed to assist not just the Tribunal, but the parties, in understanding the law relevant to the case in issue. While recognizing that a generic overview of human rights principles will be of limited assistance to an expert Tribunal well acquainted with human rights law, the Commission is interested in ensuring that parties appearing before the Tribunal are familiar with the relevant jurisprudence. [27] The Commission agrees that it is improper for a party to refer to facts in an opening statement where those facts will not be proven by the party. According to the Commission, its proposed opening statement deals only with uncontested facts, and thus does not engage the implied undertaking principle. While conceding that the reference to a systemic problem of sexual harassment in the Canadian military is a contested fact, the statement is innocuous in the Commission's view and not prejudicial to the CAF. In any event, the Commission says, the implied undertaking is nothing more than a rule of practice and not of law. [28] The Commission pointed out that, as an administrative tribunal, the Tribunal is not bound to follow the same rules and procedures applied by the courts. Rather, the Tribunal should be flexible and innovative in the way that it conducts hearings.4 This flexibility and innovativeness should extend to receiving what the Commission refers to as a non-traditional opening statement. [29] In the Commission's submission, the CAF has failed to demonstrate how it will be prejudiced if the Commission delivers its proposed opening statement, and then withdraws from the hearing. Its assertions of prejudice are entirely speculative, the Commission says, and as such, cannot be addressed by the Tribunal. According to the Commission: The CAF has asked the Tribunal to engage in a speculative exercise that is not only improper, but which has forced the parties to expend considerable resources in response thereto. In any event, the Commission says, the CAF will have the full and ample opportunity during the hearing itself to respond to any submissions made by the Commission in its opening statement. [30] Finally, with respect to reserving its right to come back into the hearing, the Commission accepted that it would be subject to the direction of its Tribunal and any objections from the other parties. The Tribunal could address any prejudice that might accrue to the CAF at that point in the hearing. C. The Complainant's Position [31] Counsel for the complainant says that it would be helpful for the complainant to know what the Commission's view is of the public interest issues in her case. Counsel views the Commission as being on the side of his client, he can always use allies, and the Commission's participation, albeit limited in scope, would help to even the odds. [32] The Commission's overview of the law is helpful, counsel says, and assisted him in fully appreciating the issues raised by his client's case. While he would like to see the information contained in the opening statement presented to the Tribunal, counsel is sensitive to the prejudice that the CAF could suffer if the Commission is permitted to deliver its opening statement. [33] It does not matter to Ms. Mowat's counsel whether the Commission provides the information through an opening statement or in closing submissions. He does say, however, that it would have been helpful if he had received this information from the Commission much earlier in the process. IV. ANALYSIS [34] The law governing the proper content of opening statement before the courts is clear. In Brochu v. Pond5, the Ontario Court of Appeal recently adopted to following statement from Halsbury's Laws of England, as quoted in Sopinka's, The Trial of an Action6 : The object of an opening statement is to give the court a general notion of what will be given in evidence ... In his opening, counsel states what he submits are the issues and the questions between the parties which have to be determined, what are the facts of the case, the substance of the evidence he has to adduce and its effect on proving his case, and he will refer to the relevant correspondence between the parties and other documents. He will remark upon any point of law involved in the case, but the opening is not the occasion for detailed argument on legal questions, or an extensive examination of the authorities. In opening, counsel may refer to those facts of which the court takes judicial notice. Neither in opening or at any stage of the trial may counsel assert his personal opinion on the facts or the law, or mention facts which require proof but which it is not intended to prove, or which are irrelevant to the issue to be tried. Similarly, in Modern Trial Advocacy, Canadian Ed.7, it is noted that: The courts and commentators are virtually unanimous that opening statements may only be used to inform the court of what the evidence will show. Counsel may not argue during opening, but is restricted to offering a preview on the anticipated testimony, exhibits, other evidence, and an outline of the issues. [35] It is true that much of the case law dealing with the proper bounds of opening statements has arisen in the context of jury trials. The relevant principles are nevertheless of general application. While counsel may have greater latitude when it comes to the identification of the legal issues in non-jury trials 8, the same prohibition against making reference to facts not intended to be proven holds true.9 So too does the prohibition against the making of legal argument in an opening statement.10 [36] The rules regarding the proper content of opening statements have evolved over the generations and are designed to ensure the fairness of the trial process. The opening statement that the Commission proposes to deliver at the commencement of the hearing in this case demonstrates the unfairness that can result when counsel are permitted to stray from the accepted bounds of an opening statement. [37] Contrary to the submissions of the Commission, the proposed opening statement does deal with contested facts. The allegation that there is a widespread problem with sexual harassment in the Canadian military can hardly be said to be innocuous. The claim that sexual harassment permeates the CAF invites the inference that Ms. Mowat's individual claim of sexual harassment is well founded. Such an unsupported assertion on the part of the Commission clearly operates to the detriment of the CAF. [38] We agree with the CAF that the Commission's overview of the law is not entirely neutral. Despite the Commission's assertion that its review of the case law is non-partisan, and does not favor one side over the other, the example cited by the CAF with respect to the issue of retaliation demonstrates the difficulty in providing a truly non-partisan summary of the law. [39] The delivery of a summary of the law also has the potential to complicate the hearing. When legal submissions are made at the close of a hearing, both the parties and the Tribunal have a clear understanding of the facts, and the ability to distinguish relevant from irrelevant legal issues. If a party makes submissions on an irrelevant legal issue, an opposing party may object and the Tribunal is in a position to deal with the objection. If the authorities are reviewed in detail before the evidence comes in, the Tribunal has no way of knowing what is relevant, and what is not. The Commission cannot assist in explaining the relevance of its submissions, should there be an objection, because it cannot refer to the facts of the case. [40] We accept the submissions of the CAF that it will be prejudiced if the Commission is permitted to provide its overview of what it says is the relevant case law at the commencement of the hearing. Not only does the determination of what law is relevant to the case presuppose the existence of certain facts, it also has the potential to prolong the hearing. While a hearing should take as long as necessary to allow each side the full opportunity to be heard, a party should not, in our view, be permitted to put issues `on the table' that require a response from another party, and then leave the hearing, without having established that the issue is, in fact, germane to the case. [41] It is noteworthy that the Commission has not provided the Tribunal with a satisfactory explanation as to why it should be permitted to deviate from the general practice, and deliver a summary of the law at the beginning of the hearing, rather than at the end as would ordinarily be the case. The Commission suggested that this would assist the parties to a particular complaint by providing them with an overview of what the Commission thinks is the applicable law. There is nothing however to prevent the Commission from delivering such a summary to the parties at any time in the process. [42] The Commission has also neglected its obligations under the Tribunal's Rules of Procedure. These Rules are designed to ensure that arguments and evidence are disclosed in a timely and efficient manner, so that each of the parties is made aware, in advance of the hearing, of the case that they have to meet. To this end, Rule 6 imposes certain disclosure obligations on parties appearing before the Tribunal. Under the Tribunal Rules, the Commission and the CAF are obliged to provide written notice of the material facts that it seeks to prove in support of its case, as well as the legal issues raised by the case. Similar obligations are imposed on complainants, where the complainant's position varies from that of the Commission. Provision is also made for reciprocal documentary disclosure, as well as the provision of witness lists and `will-say' statements. [43] Nothing in these Rules obliges the Commission to participate in a given case. Similarly, nothing compels the Commission to call evidence, to cross-examine opposing witnesses, or to make legal arguments. These are questions for the Commission to decide, in accordance with the public interest mandate conferred on it by section 51 of the Act. However, if the Commission is going to participate in a hearing, the other parties are entitled to know, well in advance of the hearing, the position that the Commission will be taking at the hearing. In particular, the parties are entitled to know what the Commission views as the public interest in a particular case, so as to enable the party to lead the necessary evidence and make the necessary arguments to address that interest, as the party may see fit. [44] It is not sufficient for the Commission to say that there is a public interest in every case referred to the Tribunal by the Commission, and nothing more. In this case, but for the intervention of the Tribunal, Ms. Mowat and the CAF would have had no indication from the Commission until the first day of hearing, as to what the Commission's view of the public interest in the case would be. This is contrary to the Tribunal's Rules, and does not benefit the process. V. CONCLUSION AND ORDER [45] For the foregoing reasons, we have concluded that the Commission's proposed manner of participation in this hearing does not comply with the principles of fairness or the Tribunal's Rules of Procedure. Accordingly, the Commission will not be permitted to deliver an opening statement in the form and manner that it has proposed. The Tribunal member assigned to hear this case on the merits will deal with any issues arise out of the decision. signed by J. Grant Sinclair signed by Dr. Paul Groarke OTTAWA, Ontario November 21, 2003 1 Quigley v. Ocean Construction Supplies, [2001] C.H.R.D. No. 46 (C.H.R.T.) 2 Parisien v. Ottawa-Carleton Regional Transit Commission, [2002] C.H.R.D. No. 23 (C.H.R.T.) 3Marinaki v. Canada (Human Resources Development), [2000] C.H.R.D. No. 2 (C.H.R.T.) 4Grover v. Canada (National Research Council - NRC), [1994] F.C.J. No. 1000, para. 40, Tab J, Canada (Attorney General) v. Moore, [1998] 4 F.C. 585, para. 48 (T.D.), Canadian Human Rights Tribunal Interim Rules of Procedure, Rule 1. 5 (2002), 62 O.R. (3d) 722, at pp. 726-7. 6 2d Ed. (Toronto and Vancouver: Butterworths, 1998) at p. 74. 7 (Notre Dame: National Institute for Trial Advocacy, 1995), at 312. 8 Sopinka, supra. at p. 76. 9 Di Domenicantonio v. Canadian National Railway Co., [1988] N.B.J. No. 133 (N.B.C.A.) (at QL p. 18) 10 Lubet, supra., at p. 318 PARTIES OF RECORD TRIBUNAL FILE: T822/7203 STYLE OF CAUSE: Donna Mowat v. Canadian Armed Forces DATE & PLACE OF HERAING: November 10, 2003 Toronto, Ontario RULING OF THE TRIBUNAL DATED: November 21, 2003 APPEARANCES: Jerry W. Switzer For the Complainant Salim Fakirani Dan Pagowski For the Canadian Human Rights Commission Sandra Nishikawa Derek Allen For the Respondent Tribunal File No.: T822-7203 CANADIAN HUMAN RIGHTS TRIBUNAL BETWEEN: DONNA MOWAT Complainant -and- CANADIAN HUMAN RIGHTS COMMISSION Commission -and- CANADIAN ARMED FORCES Respondent OPENING SUBMISSION OF THE CANADIAN HUMAN RIGHTS COMMISSION Salim Fakirani Legal Counsel Canadian Human Rights Commission 344 Slater Street Ottawa, ON K1A 1E1 Tel: 613-943-9127 Fax: 613-993-3089 Tribunal File No.: T822-7203 CANADIAN HUMAN RIGHTS TRIBUNAL BETWEEN: DONNA MOWAT Complainant -and- CANADIAN HUMAN RIGHTS COMMISSION Commission -and- CANADIAN ARMED FORCES Respondent OPENING SUBMISSION OF THE CANADIAN HUMAN RIGHTS COMMISSION The Canadian Human Rights Commission represents the public interest in this complaint and it is in pursuant to section 51 of the Canadian Human Rights Act [Act that the Commission makes these submissions. The ultimate public interest role of the Canadian Human Rights Commission is to advance the purpose of the Canadian Human Rights Act [Act, that is, to give effect to the principles that ll individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have [...] without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted [...] [Section 2 of the Act] In short, the core public interest may be described as the advancement of equality through redress for past discrimination and prevention of future discrimination. The Commission views this complaint as raising important human rights principles and we take this opportunity to review these principles. In this particular case, the Tribunal will be asked to consider human rights law in the following areas: (a) An employer's obligation to provide a harassment free work environment and the liability associated with an employer who fails to do so; (b) Adverse differential treatment by an employer and the refusal to continue to employ an individual because of the employee sex. RELEVANT STATUTORY PROVISIONS Section 7 of the Act makes it a discriminatory practice either refuse to employ or continue to employ any individual and/or to directly or indirectly differentiate adversely in the course of employment on a prohibited ground of discrimination. Sub-section 14(1)(c) of the Act makes it a discriminatory practice to harass an individual on a prohibited ground of discrimination in matters related to employment. Sub-section 14(2) provides that sexual harassment shall be deemed to be harassment on a prohibited ground of discrimination. Thus, the statutory framework recognizes sexual harassment as a form of sex discrimination. Section 14.1 of the Act makes it a discriminatory practice for an employer against whom a complaint has been filed to retaliate or threaten to retaliate against the individual who filed the complaint. Subsection 65 (1) of the Act provides liability to an employer for the discriminatory acts of its employees that occur in the course of employment. Section 65(2) exculpates an employer provided that it did not consent to the commission of the act or omission and that it exercised all due diligence to prevent the act or omission from being committed, and subsequently mitigated or avoided the effects of the act or omission. SEXUAL HARASSMENT GENERALLY There is no doubt that sexual harassment is not only a particular concern to women but a matter of public concern. It pervades the workplace, government, schools, law firms, medical profession, military, sports, and cultural institutions. Harassment, including sexual harassment can create a negative or hostile work environment which can interfere with an employee job performance and result in an employee being refused a job, a promotion, training opportunity, or may even result in the employee leaving employment. When sexual harassment occurs in the workplace, it is an attack on the dignity and self-respect of the victim both as an employee and as a human being. In Janzen v. Platy Enterprises [1989] 1 S.C.R. 1252 Supreme Court of Canada acknowledged that women have a right to a workplace that is free from discriminatory attitudes and behavior, and furthermore, women have the ability to seek broad remedies available under human rights statutes when this right is violated. Janzen, supra, concerned complaints made by two female waitresses who had been sexually harassed by a cook at the defendant's restaurant. The nature of the incidents included inappropriate touching and sexual remarks. The allegations included a threat of terminating employment when the sexual advances were resisted. Ms. Janzen quit her job after a co-owner refused to do anything when confronted with the allegations. The Supreme Court of Canada up-held the decision of the original adjudicator who found that the two women had been subjected to persistent and abusive sexual harassment and had been victims of sex discrimination contrary to the human rights legislation in Manitoba. The adjudicator awarded exemplary damages and damages for loss of wages and found the cook and the employer joint and severally liable for the discrimination. The Supreme Court recognized that sexual harassment may take a variety of forms, including physical and/or psychological dimensions. Sexual harassment manifests itself in milder forms such as verbal innuendo and inappropriate affectionate gestures to extreme behaviour amounting to attempted rape and rape. Actions such as pinching, grabbing, hugging, patting, leering, brushing against and touching can each be forms of physical seexual harassment. Proposals of physical intimacy, including subtle hints which may lead to the requests for dates and sexual favours, would demonstrate psychological sexual harassment. [see: Janzen v. Platy Enterprises [1989] 1 S.C.R. 1252 at para 49.] Chief Justice Dickson, writing for the Court, provided a non-exhaustive definition of sexual harassment: Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment. Janzen v. Platy Enterprises [1989] 1 S.C.R. 1252 at para 56. In Canada (Human Rights Commission) v. Canada (Armed Forces) and Franke, [1999] F.C.J. No. 757 (T.D.)(QL), [hereafter Franke Madame Justice Tremblay-Lamer applied and elaborated theJanzen, supra, test in assessing sexual harassment. In Franke, the complainant alleged that the employer, Canadian Armed Forces, had discriminated against her contrary to section 7 and 14 of the Act. The complainant alleged that the pattern of conduct of her superior officers created a hostile work environment and that her a non-commissioned senior in rank to her inquired about her dating habits and made suggestive gestures towards her and showed her a postcard depicting a bare-breasted women. The complainant also alleged that the commanding officer referred to her in derogatory terms. In a 2-1 Tribunal decision, the majority held that the complainant has not been subjected to sexual harassment and had not suffered differential treatment based on her sex. The Federal Court upheld the majority decision of the Tribunal and found that the Tribunal applied the correct test for sexual harassment and its findings were not patently unreasonable. There was evidence that the complainant did not view the conduct in question as harassment at the time it occurred. In her decision, Justice Tremblay-Lamer elaborated on the Janzen test to be applied for sexual harassment. Two recent decisions of the Canadian Human Rights Tribunal (Bushey v. Sharma dated June 5, 2003 and Woiden et al. v. Lynn dated June 17, 2002) succinctly summarize Justice Tremblay-Lamer elaboration of the test. InWoiden et al., the Tribunal summary is as follows: The acts that are the subject of the complaint must have been unwelcome. The Tribunal must therefore look at a complainant's reaction at the time of the incident and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome. The Court recognized that a verbal o is not required in all cases and that a repetitive failure to respond to suggestive comments constitutes a signal to a harasser that his conduct was unwelcome. Fear of losing her job, for instance, may force an employee to endure objectionable conduct. The appropriate standard against which to assess a complainant's conduct will be that of a reasonable person. The conduct must be sexual in nature. This encompasses a broad range of conduct. Requests for sexual favours and propositioning fall within the ambit of acts that are sexual in nature and that constitute a psychological form of sexual harassment. Verbal sexual harassment includes gender-based insults, sexist remarks, comments about a person looks, dress, appearance or sexual habits. Physical forms of sexual harassment include pinching, grabbing, hugging, kissing and leering. Persistent questioning about an employee personal sex life has been held to constitute sexual harassment. The Tribunal determination of what is sexual in nature should again be assessed to the standard of a reasonable person in the circumstances of the case, keeping in mind the prevailing social norms. Ordinarily, harassment requires an element of persistence or repetition, but in certain circumstances even a single incident may be severe enough to create a hostile environment. The objective reasonable person standard is used to assess this factor as well. The final factor arises where a complaint is filed against an employer regarding the conduct of one of its employees. Fairness requires that in such cases, the victim of the harassment, whenever possible, notify the employer of the alleged offensive conduct. This factor is no longer relevant to the present case, in light of the settlement that the Complainants reached with the employer before the matter was referred to the Tribunal. [at para 103] With respect to the reasonable person standard, the Federal Court of Appeal held that in cases of sexual harassment where the alleged victim is a woman, the reasonable standard should be adapted to that of a reasonable woman. (Stadynyk v. Canada (Employment and Immigration Comm.) (2000), 38 C.H.R.R. 01290 at para 25 (F.C.A.)) Justice Tremblay-Lamer decision inFranke, supra, suggests that, in determining how a reasonable person would react in similar circumstances, a Tribunal should e sensitive to stereotyped norms of what constitutes acceptable conduct and consider the context in which the impugned conduct took place.[Franke, F.C.T.O., supra, at para 41.] In Swan v. Canada (Armed Forces), (1994) 25 C.H.R.R. 0/312 (Can. Trib.) at para. 73, a Canadian Human Rights Tribunal confirmed that t is not necessary for harassment to be the sole reason for the actions complained of for a complainant to succeed. The harassment need not even be intentional by the perpetrator of the harassment. This case concerned a native Canadian who alleged that he was subjected to racial slurs, jokes and harassment while with the Canadian Armed Forces. The Tribunal clearly states that the Canadian Human Rights Act does not take into consideration the conduct of the Complainant and even though the Complainants may participate in or instigate objectionable conduct they may still file a complaint and succeed in their claim. (Swan v. Canadian Armed Forces, decision of the Canadian Human Rights Tribunal dated October 18, 1994 at p. 8) This is in keeping with the remedial purpose of the Act. The Tribunal in Swan accepted that individual may feel powerless to do anything but accept the behavior because of their desire to fit into the peer group. In substantiating the complaint, the Tribunal ordered that a written apology be provided to the complaint but it held that it did not have the power to award lost wages. However, the Tribunal stated that if they had the power to award lost wages, they would have awarded the complainant for any remaining time left on his employment contract to a maximum of four years provided that at least four years remained on his employment contract at the time of his release. The complainant had requested four years. The Tribunal also noted that if the complainant had no remaining time on his employment contract, it would make no award as to lost wages. In determining this issue, the Tribunal appropriately considered whether or not the harassment that the complainant experienced was a factor in his decision to leave his employment. Furthermore, the Tribunal observed that the harassment need not be the sole factor in a decision to leave. [Swan, Tribunal decision at p. 15.] The Commission and the complainant filed an application for judicial review only on the issue of the refusal to award lost wages. The Federal Court Trial Division allowed the application. Therefore, a victim of the harassment described in section 14 of the Act can be compensated for any or all lost wages incurred as a result of the discriminatory practices. The Act and the jurisprudence make it clear that an employer is liable for all discriminatory acts committed by its employees in the course of employment. Section 65(2) of the Canadian Human Rights Act exculpates employers if they did not consent to the commission of the harassment and exercised all due diligence to prevent the harassment from being committed and, subsequently, to mitigate or avoided its effects. In Robichaud v. R, the Supreme Court of Canada noted that the xistence of a policy against sexual harassment and a mechanism to handle employee complaints could provide an employer with a good defence which could partially reduce liability. The Court stated: [A]n employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, it at all, as an employer who fails to adopt such steps. These matters, however, go to remedial consequences, not liability [at p. 12] In referring to the Robichaud decision, Aggarwal and Gupta note that the Supreme Court is informing employers that it is their actions, and not their words, that are they key factors in assigning liability to sexual harassment cases. [Aggarwal, 2000 at p. 264.] According to Black's Law Dictionary, ue diligence is defined as: Such a measure of prudence, activity, or assiduity, as is properly to be exercised from, and ordinarily exercised by, a reasonable and prudent man [person] under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case. In exercising all due diligence in preventing the harassment from being committed and mitigating or avoiding its effect, an employer's responsibility include: a) Make it clear that harassment of any nature, including sexual harassment, will not be tolerated; b) Establish a harassment policy which sends a clear and unequivocal message to all employees that sexual harassment is unacceptable and contrary to the Canadian Human Rights Act; c) Make sure every employee understands the policy and procedures for preventing harassment as well as procedures for handling sexual harassment complaints; d) Inform supervisors and managers of their responsibility to provide a harassment- free work environment; and e) investigate and correct harassment complaints promptly and effectively, even if a, formal complaint has not been received. A failure to take appropriate remedial steps immediately would make an employer liable for sexual harassment to the fullest extent. In terms of the mechanisms for reporting and investigating complaints, a sound harassment policy is one that affords multiple points at various levels of the organization for an individual to file a complaint. Multiple filing points allow an employee the ability to choose the one that is most comfortable to the particular individual based on the individual's circumstances. A sound harassment policy will ensure that all complaints are taken seriously and dealt with fairly and promptly. Furthermore, a sound harassment policy reinforces the principle that individuals found responsible of sexual harassment will be disciplined. Aggarwal suggest the following analysis in determining the seriousness of the penalty imposed by an employer against a person who is found responsible for sexual harassment: Disciplinary measures may range from verbal reprimands and warnings for less serious offences, to suspensions without payor discharges for more serious offences. If the employer decides that a transfer will be necessary, it should be the harasser who is transferred and not the victim. However, before deciding upon the appropriate disciplinary action, factors such as the nature of the behaviour, the persistence of the behaviour, and whether or not the harasser displays co-operation and willingness to change, should be taken into consideration. [ Aggarwal, Arjun and Madhu Gupta, Sexual Harassment in the Workplace, 3rd Ed. (Markhan, Ontario: Butterworths Canada Ltd.: 2000 at p. 457) In Gervais v. Canada (Agriculture Canada), [1988] C.H.R.D. No.8 (Can. Hum. Rights Rev. Trib.) (QL), the Canadian Human Rights Review Tribunal applied Robichaud, supra, and found the employer, Agriculture Canada, liable for sexual harassment as a result of the actions committed by one of its employees. In this case, the complainant alleged that her work environment undermined the dignity of women. There was evidence in the hearing that magazines were being kept in desk drawers and posters displayed in the work environment which was found to be crude and in bad taste. Despite the Review Tribunal's concern with the complainant's allegation concerning a poisoned work environment, it was satisfied that sexual harassment took place contrary to section 7 of the Act and, based on Robichaud, held that the employer, Agriculture Canada liable for the conduct of its employee. In considering the conduct of the employer in examining the potential for mitigation of employer damages, the Tribunal made the following important observations: a) Despite a thorough and exhaustive investigation of this incident, by union representatives, police authorities and investigators under the direction of J.J. Carties, the ultimate decision was to take no action at all. [...] b) The grievance of the Appellant [complainant] required a long and laborious review process during a period of time when she was undergoing severe physical and emotional stress and receiving medical treatment for the same. The request for transfer was the ultimate in ineffective bureaucracy. We agree with the Tribunal below that it is difficult to believe that the Department was taking every reasonable step to facilitate the transfer. [Gervais, supra] The Review Tribunal concluded that Agriculture Canada's actions following the actions constituting the sexual harassment were neffective and indecisive and held that the employer was liable to the complainant for loss of wages and hurt feelings. The jurisprudence makes it clear that for an employer to avoid liability the employer is obligated to respond promptly and effectively and it must conduct a meaningful and thorough investigation of matters complained of, as well as treating the complainant with sensitivity. (see Swan, supra at 14; Hinds v. Canada (C.E.I.C.) (1988),24 C.E.I.C. 65; and Pitawanakwat v. Department of Secretary of State (1992),19 C.H.R.R. C/10 (appealed on other grounds)). In conclusion, it is important to note that the Canadian Human Rights Act does not contain any provisions to provide costs to a respondent, if it is successful in its defence. As per section 53(1), if the Tribunal finds that a complaint is not substantiated, the complaint is dismissed. If, however, the Tribunal substantiates the complaint, Section 53(2) provides the ability of the Tribunal to award various remedies including reinstatement, an award for lost wages, expenses incurred, hurt feelings and special compensation. The recent jurisprudence of the Tribunal has awarded legal expenses incurred by a complainant in pursuing a successful complaint.

2003 CHRT 4

CHRT

Hill v. Air Canada

en

2003-02-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6871/index.do

2023-12-01

Hill v. Air Canada Collection Canadian Human Rights Tribunal Date 2003-02-05 Neutral citation 2003 CHRT 4 File number(s) T677/6501 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: YUL F. HILL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AIR CANADA Respondent RULING ON TAKING A VIEW 2003 CHRT 4 2003/02/05 MEMBER: Paul Groarke [1] In the course of the hearing into the complaints before me, I expressed an interest in seeing the shop where Mr. Hill worked and was given a tour of the workplace where most of the relevant events took place. I was accompanied by the Complainant and counsel for all the parties. Since there was some discussion as to the effect of the view during the course of the hearing, it seems best to clarify the matter. [2] The law on taking a view is unclear. In Sopinka's Law of Evidence in Canada, the authors state that there is an issue as to whether a view is evidence which can form the basis of inferences by the trier of fact or is simply clarification of the witness' testimony.(1) The Tribunal has not dealt explicitly with the issue. In Bye v. International Longshoremen's and Warehousemen's Union, Local 502, C.H.R.T. T391/0794, a Tribunal nevertheless took a view of a union hall in order to see job boards before hearing testimony in the case. It appeared to treat this as an original source of evidence, which could be consulted in following the rest of the evidence in the case. [3] The decisions of the Tribunal run counter to the idea that a view is something less than evidence. This is evident in Forseille v. United Grain Growers Ltd. [1985] C.H.R.T. 7, where the Tribunal relied on what it observed during the view as evidence but did not discuss the legal issue. There were also views in Gauthier v. Canada (Canadian Armed Forces) (1989), 10 C.H.R.R. 6014 and Martin v. Canada (National Defence) (1992) 17 C.H.R.R. 435 (C.H.R.T.), which present similar situations. There is a way, at least, in which a view is direct evidence in the fullest sense of the word, since it is not filtered through the senses of a witness. As a result, it is often more compelling than testimony, which is always second-hand. [4] The leading case in the Federal Court appears to be Jaworski v. The Attorney General of Canada [1998], 4 F.C. 154 (T.D.), where a disciplinary Board took a viewing of the area where the Applicant had allegedly exposed himself.(2) The Applicant denied the allegation and had another explanation for his presence in the area. On his account, he had been sitting on his back porch and he saw a man looking at his car. After yelling at the man, he followed him into the alleyway, where he was approached by the investigating officers. Although the Board gave the Applicant the opportunity to add to the record with respect to the view, it did not express any misgivings with respect to the observations that it had made during the view. [5] The Adjudication Board later held that the Applicant would not have been able to see the stranger well enough to provide the description that he gave in testimony. This was one of the factors that it considered in rejecting the Applicant's testimony. The decision of the Board eventually made its way through an External Review Committee to the Commissioner of the R.C.M.P., who dismissed the Applicant's appeal. The matter was then taken to the Federal Court, where two questions were raised with respect to the view. The first was whether a trier of fact can rely on a view, in rejecting the evidence of the witnesses in the case. This would essentially treat a view as evidence, which is probative in its own right. The second question was whether the Board had an obligation to divulge its misgivings to the parties. [6] On the first question, Justice Rothstein surveyed two competing positions. The first derives from the decision of the English Court of Appeal in London General Omnibus Company v. Lavell, [1901] 1 Ch. 135, where Lord Alverstone states, at page 139: A view, as I have always understood, is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence, and to apply the evidence. The Ontario courts have apparently followed this line of authority and held that a view may be taken for the purpose of understanding the evidence but does not itself constitute evidence. [7] I do not think I am exaggerating when I say that the second position treats the distinction in London Omnibus as a cavil: evidence is evidence, and in most cases at least, it is artificial and even disingenuous to pretend that it does not have probative effect. As a result, a judge is entitled to rely on the observations made during a view in rejecting the factual assertions of the witnesses. This position derives from Meyers v. Government of Manitoba & Dobrowski (1960), 26 D.L.R. (2d) 550 (Man. C.A.) and Calgary & Edmonton Railway Co. v. MacKinnon (1910) 43 S.C.R. 379. It can also be found in the English law. [8] The concerns in the case law come from the need to separate the roles in a hearing. It is difficult for a trier of fact to consider its own observations in marshlling the evidence without entering the domain reserved for the parties. The decision of the Quebec Court of Appeal in Technologie Labtronix c. Technologie micro contrôle, REJB 1998-07742, among others, holds that a judge should not use a view for an investigative purpose. It is not the role of a trier of fact to gather evidence. There is also a concern that a trier of fact may have adopted the role of a witness in such a situation, whose silent testimony cannot be countered by the parties. This raises an issue of natural justice. [9] There is a third position. In Jaworski, Justice Rothstein appears to accept the fundamental principle that the purpose of taking a view is to better understand the evidence in the case. He nevertheless rejects the idea that the view has no independent evidentiary weight: … it would be going too far to state that where a tribunal conducts a view, not for the purpose of gathering its own evidence but to better understand the evidence being submitted, that the tribunal can never rely upon its own observations made at that viewing. It would be highly artificial to require that the tribunal ignore its observations and decide the issue based on evidence that it considers to be untrue. It follows that a view is evidence, albeit evidence of an explanatory nature, which can be considered along with the other evidence in the case. It would seem to follow that the significant issue is whether the parties have had an opportunity to respond to any issues that it may have been raised such an idea. [10] The second question in Jaworski was whether the Board had an obligation to share its concerns with the parties, Justice Rothstein rejected this idea and held that the Applicant had a full opportunity to respond to the view. I think this opinion can be restricted, however, to the facts of the case. There may be other cases where the situation is different. As a matter of fairness, there may well come a point where a Tribunal has some obligation to share its concerns with the parties. It all depends on the circumstances of the case. I do not see how a tribunal can respect the rules of natural justice and essentially hide decisive issues from the parties. [11] The decision in Jawoski at least establishes that a tribunal has no obligation to raise factual issues that are in the open and properly before the parties. The critical factor at the end of the hearing is whether the parties have had a full and ample opportunity, in the words of the Act, to address the material issues in the case. If the parties choose not to canvass issues that are openly before the Tribunal, that is their prerogative and they cannot complain that they were taken by surprise. I believe this was the real finding in Jaworski, which seems to give a tribunal some authority to take notice of what it observes during a view. [12] The view in the present case was taken relatively early in the hearing, for the purpose of helping me understand the rest of the evidence in the case. All of the parties agreed to the process and there was ample opportunity to offer evidence controverting what was seen. If there is any difficulty, it is that we saw the premises years after the material events occurred. As a result, I have exercised a certain degree of caution in relying on what I observed during the tour of the shop. I do not believe, however, that it raised any issues that were not already before the parties. [13] I have accordingly concluded that my observations during the view can be consulted, along with the rest of the evidence, in deciding the main issue in the case. I do not believe that the matter requires further comment. Original signed by Paul Groarke OTTAWA, Ontario February 5, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T677/6501 STYLE OF CAUSE: Yul F. Hill v. Air Canada RULING OF THE TRIBUNAL DATED: February 5, 2003 APPEARANCES: Cecil F. Ash For the Complainant Salim Fakirani For the Canadian Human Rights Commission Paul Fairweather and Lisa Steiman For the Respondent 1. 1 The Law of Evidence in Canada (2d; 1999), p. 20 2. Affd. (2000), 255 N.R. 167 (C.A.), leave to appeal to S.C.C. refused (2001), 267 N.R. 195n (S.C.C.)

2003 CHRT 40

CHRT

McKay v. Canada (Royal Canadian Mounted Police)

en

2003-11-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7158/index.do

2023-12-01

McKay v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2003-11-25 Neutral citation 2003 CHRT 40 File number(s) T813/6303, T817/6703 Decision-maker(s) Groake, Paul Dr.; Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BETWEEN: MELANIE-LYNN MARIE MCKAY Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL CANADIAN MOUNTED POLICE Respondent AND BETWEEN: RONALD J. HOWELL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent RULING ON OPENING STATEMENTS PANEL: J. Grant Sinclair Dr. Paul Groarke 2003 CHRT 40 2003/11/25 TABLE OF CONTENTS 1. INTRODUCTION 2. FACTUAL HISTORY2 3. THRESHOLD ISSUE 4. ANALYSIS 5. ORDER I. INTRODUCTION [1] In December 2001, Melanie-Lynn McKay filed a human rights complaint against the Royal Canadian Mounted Police alleging that the RCMP refused to employ her because of her previous drug dependency, contrary to section 7 of the Canadian Human Rights Act. Ronald Howell filed a complaint against the Canadian Armed Forces in July 1998, in which he alleged that the CAF discriminated against him under section 7 of the Canadian Human Rights Act by requiring that he participate in drill without a knee brace. [2] The Canadian Human Rights Commission has referred both cases to the Canadian Human Rights Tribunal for hearing. Hearings have been scheduled for February 2004, in the case of the Howell complaint, and for April 2004, in the McKay matter. Both respondents are represented by the Department of Justice in Winnipeg. In each case, the Commission initially advised the other parties that it would limit its participation in the hearing to the delivery of an opening statement. The respondents then filed motions, objecting to the Commission’s proposed method of participation in these cases. [3] The Commission later advised the parties that it would participate fully in each case. However, the respondents still seek an order from the Tribunal on the motions. Their position is simple. Having abandoned its intention to participate on a limited basis in these cases, the Commission has tacitly admitted that its original approach was improper. The respondents accordingly feel that they are entitled to an order to this effect. [4] The Commission objects to the respondents’ request, stating that the issues raised in the respondents’ motions are moot since the Commission will be fully participating in the hearing. Further, the Commission says the Tribunal does not have the authority to deal with the motions. Because the issues in the two cases are identical, the motions were heard together. II. FACTUAL HISTORY [5] The McKay and Howell complaints were referred to the Tribunal for hearing on May 15, 2003. Approximately two weeks later, Ian Fine, the Acting General Counsel of the Commission advised the parties in each case that: Commission counsel will be present at the hearing to provide an opening submission detailing the public interest in the complaint. The submission will set out the Commission’s view of the legal and factual issues in the case and will provide a detailed statement of the law relevant to your complaint. Commission counsel will not be present for the full duration of the hearing. [6] These letters were followed by an exchange of correspondence between the parties, as counsel for the respondents sought clarification of the contents of the opening submissions. [7] Counsel for the respondents objected to the Commission’s proposed manner of procedure. The respondents took the position that the Commission should participate fully in the hearing in each case, as the respondents say it is statutorily obligated to do, or absent itself from the entire proceeding. They contend that it would be prejudicial to allow the Commission to make an opening statement in those cases in which it does not intend to call evidence. [8] On September 26, 2003, Ceilidh Snider of the Commission wrote to the parties in each case. In the McKay case, she wrote: Please be advised that the Commission will be fully participating in the hearing of the above matter. Would the Tribunal please contact the Commission and the parties to set disclosure and hearing dates. [9] Ms. Snider’s letter in the Howell matter was even more terse. The letter reads, in its entirety: Please be advised that the Commission will be fully participating in the hearing of the above matter. [10] The Commission gave no reason for the reversal in its initial stance regarding its participation in either the McKay or Howell cases. [11] The situation remains the same. The Commission has not identified any change in its view of the issues raised by the two cases that would explain the change in its position. However, counsel for the Commission candidly acknowledged during argument that the reason that the Commission changed its position was to avoid litigating the challenges brought by the respondents. III. THRESHOLD ISSUE [12] The Commission argues that it has an unfettered right to appear at a hearing. It says that the Respondent is now asking the Tribunal to review the manner in which it has chosen to represent the public interest. This, it says, is beyond the authority of the Tribunal and is only reviewable by the Federal Court. [13] We accept that the decision of the Commission whether or not to participate in a given case is properly reviewable in the Federal Court and not by this Tribunal. It is up to the Commission to decide how best to carry out the public interest mandate conferred upon it by section 51 of the Canadian Human Rights Act. That said, it does not mean that the Commission can operate without constraint in appearing before the Tribunal, without regard for the requirements of procedural fairness, the Tribunal’s Rules of Procedure and the rights of the other parties to a proceeding. [14] The Tribunal has the power to control the hearing process, and to take action where the conduct of a party would result in unfairness to another party. As an adjudicative body dealing with quasi-constitutional rights, the Tribunal has the authority and the duty to ensure the fairness of the process. For example, the Tribunal has the jurisdiction to preclude the Commission from calling evidence that is irrelevant, or from making closing submissions that refer to facts not in evidence. So too does the Tribunal have the power to ensure that any opening submissions by the Commission are in keeping with the basic principles of fairness. IV. ANALYSIS [13] The Commission submits that the issues raised by the respondents in Howell and McKay are now moot, since the Commission has now agreed to participate fully in the hearing. As a result, the Commission says, the Tribunal should decline to deal with the respondents’ requests. [14] The respondents submit that the doctrine of mootness has no application to matters of practice, which are entirely within the discretion of the Tribunal. Even if the Tribunal were to conclude that the motions are moot, the respondents say that the Tribunal should decide the motions. For the respondents, the motions raise important issues with respect to the practice before the Tribunal. All of the parties that come before the Tribunal would benefit from the guidance of the Tribunal in the area. [15] The Respondent’s counsel goes further, however, and suggests that the Commission’s actions in these cases are evasive. The Commission should not be allowed to side-step the issue that the respondents have raised without some formal recognition that it is obligated to participate fully in the cases. The Tribunal should not condone the Commission’s tactics in these cases and should decide the motions. [16] The Commission acknowledged that the public interest issues raised by the Howell and McKay cases did not change between its initial decision and the point at which it reversed this decision. As previously noted, Commission counsel candidly admitted that the Commission changed its position in order to avoid having to litigate the respondents’ challenges to the Commission’s new approach to participation in Tribunal hearings. In our view, this raises serious concerns as to the way in which the Commission exercises it public interest mandate. It creates the impression that the Commission’s actions were dictated by expediency, rather than the substantive issues raised by the Howell and McKay complaints. [17] The respondents have expressed concern as to the resources that they were forced to expend as a result of having had to bring motions that ultimately proved unnecessary. This is a legitimate concern. In the civil litigation context, the courts would compensate a moving party for its costs thrown away, when an opposing party ‘backs down’ in the face of a pending motion. In our view, such an award of costs in favor of the respondents would have been appropriate here. There is nothing, however, that the Tribunal can do to provide the respondent with such a remedy. [18] We have considered the jurisprudence cited by the parties with respect to the question of mootness and the policy considerations that militate in favor of an adjudicative body deciding on an issue that may have otherwise become moot. Having considered the principles set out in these cases, we have concluded that there is no need for the Tribunal to exercise its discretion and decide the respondents’ motions. [19] There is no doubt that the motions raise an issue of fundamental importance to the practice before the Tribunal, namely the fairness or appropriateness of the new approach taken by the Commission in many of the cases coming before the Tribunal. However, in the same week that this panel heard the motions in Howell and McKay, the same issues were vigorously argued in two other cases before the Tribunal. In our view, the decision issued in Mowat v. Canadian Armed Forces, 2003 CHRT 39 should be sufficient to address the issues and concerns raised in the respondent’s motion and provide the guidance sought by the respondents. VI. ORDER [21] For the foregoing reasons, the respondents’ motions are hereby dismissed. J. Grant Sinclair Dr. Paul Groarke OTTAWA, Ontario November 25, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILES: T813/6303 T817/6703 STYLE OF CAUSE: Melanie-Lynn Marie McKay v. Royal Canadian Mounted Police Ronald J. Howell v. Canadian Armed Forces DATE & PLACE OF HEARING: November 12, 2003 Winnipeg, Manitoba RULING OF THE TRIBUNAL DATED: November 25, 2003 APPEARANCES: Gloria Mendelson David Swayze For the Complainant, Melanie-Lynn Marie McKay For the Complainant, Ronald J. Howell Dan Pagowski Sid Restall Kevin Staska For the Canadian Human Rights Commission For the Respondents

2003 CHRT 41

CHRT

Bressette v. Kettle and Stony Point First Nation Band Council

en

2003-12-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7154/index.do

2023-12-01

Bressette v. Kettle and Stony Point First Nation Band Council Collection Canadian Human Rights Tribunal Date 2003-12-08 Neutral citation 2003 CHRT 41 File number(s) T827/7703 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BETWEEN: MAURICE BRESSETTE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - KETTLE AND STONY POINT FIRST NATION BAND COUNCIL Respondent RULING ON JURISDICTION - SECTION 67 - CANADIAN HUMAN RIGHTS ACT MEMBER: J. Grant Sinclair 2003 CHRT 41 2003/12/08 INTRODUCTION [1] Maurice Bressette is the complainant is this matter. He filed a complaint with the Canadian Human Rights Commission dated March 30, 2002 in which he alleged that the respondent, Kettle and Stony Point First Nation Band Council, discriminated against him by not hiring him as a Family Caseworker at the respondent's Children Services Department, contrary to section 7 of the Canadian Human Rights Act. The ground of discrimination alleged is family status. FACTS [2] The Kettle and Stony Point First Nation Council is a Band Council as defined in s. 2(1) and established under s. 74 of the Indian Act. The complainant Maurice Bressette is a Status Indian and member of the Kettle and Stony Point First Nation. [3] In August 2001, the Band Council established a hiring committee to conduct interviews to staff the position of Family Caseworker in its Children Services Department. This is a budgeted position and is fully funded on an annual formula basis by the Ontario Ministry of Community and Social Services. The Children Services Department deals with children and family situations within the Band where children or families are experiencing difficulties. [4] A number of persons were interviewed for this position, including the complainant, Deb Herman, Dorothy French, Heather Bressette and Georgina Bressette. The hiring committee recommended Deb Herman for the position and also recommended Dorothy French as the alternate. Because Dorothy French questioned the qualifications of Deb Herman for the position, the Band Council did not make any decision to staff the position, but deferred the matter to the Finance/Personnel Committee. [5] Lorraine George, who was the chair of this Committee in 2001, gave evidence on this motion. She said that, at this time, the Band had a deficit of $800,000 and $1,000,000. The Committee had been mandated by the Band Council to identify ways of addressing this deficit. The Committee produced two documents, Deficit Recovery Strategy and the Finance/Personnel Business Plan which were directed to this problem. [6] Some time before the February 6, 2002, Band Council meeting, Stan Sabourin, the Band Administrator, who was cognizant of both the staffing and financial needs, had discussions with Ms. George about reorganizing certain job functions which could result in some savings. He recommended that Eva Bressette, who held the full-time position as Band Representative, be given the position of Family Caseworker and this be done by way of internal transfer. [7] Mr. Sabourin also recommended that duties of the Band Representative be assigned to the in-house legal counsel, thus eliminating the separate Band Representative position. The responsibility of the Band Representative is to represent the Band children at hearings which involve child protection issues. [8] The Band is funded under various funding agreements with the federal government. The Band general account is funded through CFNFA Contribution Agreements, under which the Band receives core funding and non-core funding. The core funding is for general expenditures. Non-core funding is tied to specific programs and is to be used for that program only. [9] The Band Representative is a non-core funding position. The amount of the funding is reviewed annually and is based on the caseload of the previous year. Because the caseload has not been at a level to support the full-time salary of Eva Bressette, the balance is paid from the Band general account. Because her Band Representative duties did not occupy her full time, EvaBresssette did some of the duties of a family caseworker in the Children Services Department. BAND COUNCIL AND FINANCE/PERSONNEL COMMITTEE MINUTES [10] The minutes of the Finance/Personnel Committee dated Wednesday, February 6, 2002, show that the Committee agreed with the staffing recommendation of Mr. Sabourin relating to the internal transfer of Eva Bressette and that the move be made for financial and professional reasons. There was also a request from Eva Bressette requesting the transfer. [11] The minutes of the Band Council meeting of Thursday, March 21, 2002 show that the recommendation to transfer Eva Bressette to the position Family Caseworker was adopted. The minutes also set out that the Band's in-house legal counsel would take on the duties of Band Representative. There is no reference in these minutes to any financial benefits that may accrue from this decision. The implementation of this decision resulted in two staff positions instead of three, one which is fully funded by the province. ARGUMENT OF THE RESPONDENT IN SUPPORT OF THE MOTION [12] The respondent's position is that the Tribunal is without jurisdiction to hear Mr.Bressette's complaint by reason of s. 67 of the Canadian Human Rights Act. Section 67 provides that nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to the Indian Act. The respondent argues that the decision to staff the Family Caseworker position and transfer the Band Representative responsibilities to the in-house legal counsel was a decision taken pursuant to the Indian Act and therefore is beyond the scrutiny of this Tribunal. The basis for this assertion, is that the decision of the Band Council was a financial decision with a collateral staffing aspect. The Band had a large deficit and this staff restructuring contributed in a small way to a cost saving. a) Legal Argument [13] The respondent referred to four cases in which s. 67 of the Indian Act has been considered. The four cases can be divided into two categories, those where the Tribunal had no jurisdiction to hear the complaint, and the second category where jurisdiction was confirmed. [14] The first case in the first category is Canada (Human Rights Commission) v. Canada (Department of Indian Affairs and Northern Development), [1995] 3 C.N.L.R. 28 (F.G.T.D.). This case involved s. 115 of the Indian Act, which gave specific power to the Minister of Indian Affairs to decide matters of policy with respect to providing funding for the maintenance of native children attending a residential school. In this case, the Minister adopted a policy requiring native children to attend the school closest to where they resided and the government would no longer fund expenses for those who wished to attend religious schools away from home. The Indian Act also provided in s. 118 that Catholic children could not be assigned to Protestant schools without parental consent. [15] The complainant in this case had a daughter who had been attending a Catholic school away from home and was denied further governmental assistance. The Canadian Human Rights Tribunal declined jurisdiction on the basis that the Minister's funding decision was a decision under the Indian Act and therefore was exempt under the Act. The Federal Court on review, agreed with the Tribunal that the policy adopted by the Department was specifically authorized under the Indian Act, and as such, was a decision exempt under s. 67 of the Act. [16] The next case is Canada (Human Rights Commission) v. Gordon Band Council, [2001] 1 F.C.124 (F.C.A.). In this case the complainant was a Status Indian who lived on the Gordon First Nations Band Reserve with her non-Indian spouse. She applied for rental housing on the Reserve, which was denied by the Band Council. She filed a complaint with the Canadian Human Rights Commission that she had been discriminated against on the basis of sex and family status. The Tribunal concluded that it lacked jurisdiction under s. 67 of the Act. The case was ultimately heard by the Federal Court of Appeal which decided that the decision to refuse housing was a decision made by the Band Council under s. 20 of the Indian Act, which confers on the Band Council authority to deal with possession of land on the Reserve. [17] The first case in the second category of cases is Desjarlais v. Piapot Band, No 75 [1989] 3 F.C. 605 (F.C.A.). In this case, the Band fired its Band Administrator pursuant to a formal resolution of the Band Council. The resolution was a vote of non-confidence for Ms.RoseDesjarlais based on complaints because of her age. The Band Council terminated her employment and she filed a complaint with the Canadian Human Rights Commission alleging discrimination because of age. [18] The Federal Court of Appeal held that a vote of non-confidence is nowhere expressly or impliedly provided for by the Indian Act. Accordingly it was not a decision taken pursuant to the Indian Act and the complaint could be heard by the Tribunal. [19] The last case is McNutt v. Shubenacadie Indian Band, [1998] 2 F.C. 198 (F.T.D.); 256 N.R. 109 (F.C.A.). In this case, a non-Indian spouse who lived on the reserve with the permission of the Band Council, was denied social assistance from the Band. The federal government had contracted with the Band to provide funding for social assistance on the Reserve. The Band Council administered the social assistance program in accordance with the contractual provisions which included guidelines. Under s. 3.01 of the Guidelines, a non-Indian spouse who resided legally on the reserve was clearly eligible for benefits. [20] The Federal Court held that the Band Council's decision to deny benefits did not come within s. 67 of the Act. Although this was a decision by the Band Council, the Court pointed out that not all decisions of a Band Council are immunized by s. 67 of the Act. The social assistance program and the authority of the Band to administer it was pursuant to the contract between the Federal Government and the Band, not under the Indian Act. As such, s. 67 of the Act did not apply. [21] The respondent agreed that if the decision of the Band Council was a staffing decision, s.67 would not operate to oust the Tribunal's jurisdiction. But, the respondent argued, the Band Council's decision must be viewed as a package. What appears initially to be a staffing matter really is part of an overall financial strategy directed to reducing the Band's financial deficit. [22] The respondent first referred to ss. 69, 81 and 83 of the Indian Act as supporting the Band Council's decision as a financial decision under the Indian Act. In the final analysis, however, the respondent looked to two Regulations under the Indian Act. The first is the Indian Band Revenue Moneys Order, SOR/90-297 as am., which provides that the Bands listed in the Regulation are permitted to control, manage, expend their revenue moneys. The second is the Indian Band Revenue Moneys Regulations, C.R.C. 1978 c. 953 as am., which provides that any expenditure by a Band of revenue monies is subject to the Indian Act. [23] The respondent argues that these two Regulations permit the Band Council to manage, control and expend its revenues, which actions are subject to the Indian Act. Because the Band Council's motivation for the restructuring and staffing of the two positions was primarily for financial reasons, and is authorized by these Regulations, it must be concluded that the impugned decision taken was pursuant to the Indian Act. THE COMMISSION'S POSITION [24] The Commission characterizes the decision of the Band Council in the opposite way. For the Commission, the staffing of the Family Caseworker position was the primary purpose for the Band Council's decision. The so-called financial decision was not a strategy referred to in either of the two position papers put out by the Finance/Personnel Committee. It was only after the hiring committee's decision was challenged and deferred to the Finance Committee, was this restructuring recommendation brought forward. a) Legal Argument [25] The Commission referred to a recent decision of this Tribunal in Bernard v. Waycobah Board of Education, (1999), 36 C.H.R.R. D/51 (CHRT). In this case the complainant was a member of the Waycobah First Nation. Her employment as school secretary was terminated by the Board of Education because of her conduct on two or three occasions which led the Board to believe that she had a mental disability. She filed a complaint with the Commission alleging discrimination on the ground of disability. [26] The respondent argued that s. 114 (2) of the Indian Act, which authorizes the Minister to establish, operate and maintain schools for Indian children, authorized the Board of Education to make the decision it did. The Tribunal rejected the respondent's argument that the Tribunal had no juristiction to hear the complaint. In its view, there was not a sufficient link between s. 114(2) and the decision of the Board. ANALYSIS AND CONCLUSION [27] In my view, the decision of the respondent involves both a staffing aspect and a financial aspect. But, in my opinion, the predominant purpose behind the decision of the Band Council was to staff the Family Caseworker position. The fact that a small financial benefit resulted does not detract from this conclusion. [28] This is demonstrated by the chronology of events in which a hiring committee was struck to select a candidate for the position of Family Caseworker. The choice of the hiring committee was challenged and for this reason, the Band Council deferred the matter to the Finance Committee. It was not deferred because of financial considerations or because a new strategy was adopted. The position had to be staffed and money was allocated for the position. From the beginning, it was a staffing need not a financial need, that drove the whole process. [29] Further, in my view, none of the cases cited by the respondent are similar to this case. On the other hand, the Waycobah decision is much more akin in that both facts situations involve a staffing decision. In Waycobah, there was not a sufficient nexus between the decision of the Band Council and the Indian Act. In my opinion, none of the provisions of the Indian Act cited by the respondent, including the two Regulations, supply this nexus. [30] Every staffing decision involves the control, management or the expenditure of money. The consequence of the respondent's position is that any staffing decision of a Band Council would be beyond the jurisdiction of the Tribunal. Even the respondent conceded that this could not and should not be the case under the Indian Act. ORDER [31] For the foregoing reasons, the motion of the Kettle and the Stony Point First Nation Band Council is hereby dismissed. Signed by J. Grant Sinclair OTTAWA, Ontario December 8, 2003. CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE: T827/7703 STYLE OF CAUSE: Maurice Bressette v. Kettle and Stony Point First Nation Band Council DATE & PLACE OF HEARING: October 30, 2003 Sarnia, Ontario RULING OF THE TRIBUNAL DATED: December 8, 2003 APPEARANCES: Maurice Bressette On his own behalf Patrick O'Rourke For the Canadian Human Rights Commission Jonathon George For the Respondent

2003 CHRT 42

CHRT

Anderson v. Canada (Royal Canadian Mounted Police)

en

2003-12-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7151/index.do

2023-12-01

Anderson v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2003-12-08 Neutral citation 2003 CHRT 42 File number(s) T844/9403 Decision-maker(s) Groake, Paul; Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BETWEEN: MARK ANDERSON Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL CANADIAN MOUNTED POLICE Respondent RULING ON OPENING STATEMENTS PANEL: J. Grant Sinclair Dr. Paul Groarke 2003 CHRT 42 2003/12/08 [1] The following application deals with an objection from the respondent with respect to the Commission's participation in the hearing. The objection arises out of correspondence between the Commission and the respondent, in which the Commission advised the respondent that it would restrict its participation in the hearing to an enhanced opening statement and a watching brief. [2] In a letter to the parties dated October 10, 2003, the Commission wrote as follows: As to the extent of the Commission's participation, at this time it is anticipated that the Commission's role in the hearing will be limited to providing an enhanced opening statement following by a watching brief as the case is heard. The Commission will of course be involved in the implementation and enforcement of any resulting Tribunal order. That said, the Commission reserves the right to take a full role in the hearing as it sees fit or is required to take as the case progresses. The respondent was not satisfied with this means of proceeding. [3] At a later point, the respondent requested further elaboration of the contents of the enhanced opening statement. In a letter dated October 30, 2003, the Commission advised: Our opening statement will refer to case law and the principles set out therein. We will not refer to evidence nor will we be taking a position as to how the Tribunal should address the issues that may arise in the case in light of the allegations and unproven facts contained in the Complaint Form. This admittedly non-traditional opening statement is a highlighting of principles that apply to a case of this nature. It is not a presentation or forecast as to what the evidence will ultimately show. The respondent does not accept that it is possible to restrict the proposed opening statement in this way and objects to anything less than the full participation of the Comission in the hearing. [4] The respondent has applied for a ruling from the Tribunal that the Commission cannot restrict its participation in the hearing in this manner. It has also argued that the Commission must participate fully in the hearing or absent itself from the entire proceeding. The Commission has opposed the respondent's application, primarily on the basis that the Tribunal has no jurisdiction to determine the extent of the Commission's participation in the hearing. In making this submission, counsel relied chiefly on the principle that the Tribunal has no authority to review the decisions of the Commission. [5] We have already dealt with the issue of an opening address in Mowat v. Canadian Armed Forces, 2003 CHRT 39. We were advised by counsel for the Commission during argument that the enhanced opening statement that the Commission had contemplated in the present case was similar in form and content to the opening statement to be given in the cases of Howell v. Canadian Armed Forces and McKay v. Royal Canadian Mounted Police. [6] In our view, the Commission is obliged to respect the jurisprudence on opening statements, the Canadian Human Rights Act, and the Rules of the Tribunal in the preparation and provision of such statements. The purpose of an opening statement is to provide an outline of what is to follow. In a case where the Commission has no intention of presenting evidence or participating further in the case, an opening statement is of little assistance. The case law would suggest that any submissions on the law are more appropriately made at the end of the case. [7] It is for the parties who are participating fully in the case to frame the issues in the hearing. If the Commission wants a role in such a process, it accordingly has an obligation to participate in the production of evidence and the presentation of argument at the logical time. It would be unfair for the Commission to raise issues that must be answered, in its absence, by the other parties to the process. [8] It will be apparent from our decision in Mowat that we do not accept the Commission's characterization of the matter as a jurisdictional issue. The Tribunal recognizes that it has no jurisdiction to review the decisions of the Commission, which is a matter for the Federal Court. The Tribunal is nevertheless the master of its own process and has a responsibility to ensure that the proceedings before it are conducted in a way that respects the principles of fairness and natural justice. [9] There is also the question of a watching brief. This is a term which is open to interpretation. It is unclear to us, at this point in time, what the Commission means by a watching brief. There is no doubt that the Commission has a right to participate as it chooses in every hearing before the Tribunal, subject to the Tribunal's responsibility to ensure that the principles of fairness and natural justice are respected. [10] In our view, this is sufficient to deal with the motion before us. The Commission will not be permitted to submit the proposed statement at the beginning of the hearing. The extent of the Commission's obligation to participate fully or not at all is a question for the Federal Court. Any other issues that the respondent raises with respect to the Comission's participation can be dealt with by the Tribunal hearing the case. Signed by J. Grant Sinclair Signed by Dr. Paul Groarke OTTAWA, Ontario December 8, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE: T844/9403 STYLE OF CAUSE: Mark Anderson v. Royal Canadian Mounted Police DATE & PLACE OF HEARING: November 13, 2003 Winnipeg, Manitoba RULING OF THE TRIBUNAL DATED: December 8, 2003 APPEARANCES: Sharon Cartmill On behalf of the Complainant Daniel Pagowski For the Canadian Human Rights Commission Sid Restall and Kevin Staska For the Respondent

2003 CHRT 43

CHRT

Brown v. Canada (National Capital Commission)

en

2003-12-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7149/index.do

2023-12-01

Brown v. Canada (National Capital Commission) Collection Canadian Human Rights Tribunal Date 2003-12-09 Neutral citation 2003 CHRT 43 File number(s) T760/1003 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BETWEEN: BOB BROWN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - NATIONAL CAPITAL COMMISSION Respondent RULING ON THE APPLICATION OF THE CANADIAN HUMAN RIGHTS COMMISSION TO ADD PARTIES MEMBER: Dr. Paul Groarke 2003 CHRT 43 2003/12/09 TABLE OF CONTENTS I. INTRODUCTION II. THE POSITIONS OF THE PARTIES III. THE TRIBUNAL'S POWER TO ADD PARTIES IV. SECTION 53 OF THE ACT A. The person of Public Works B. The jurisdiction of the Tribunal to add a party for the purposes of remedy V. PREJUDICE VI. CONCLUSION AND DIRECTION I. INTRODUCTION [1] This is a motion by the Canadian Human Rights Commission (the Commission) to add the Department of Public Works and Government Services and the Canada Customs and Revenue Agency as Respondents to the proceedings. The motion arises out of a complaint under the Canadian Human Rights Act regarding the York Street Steps, which are found in the market area of downtown Ottawa, to the east of Parliament Hill and the Château Laurier. These Steps come within the responsibility of the National Capital Commission (NCC), the Respondent in the proceedings, and were recently reconstructed to accommodate the new American embassy. The NCC is responsible for the development, conservation and improvement of the nature and character of the National Capital. [2] It is accepted on all sides that York Street is one of the major promenades in the market area. It runs west to Sussex Drive, where there is a T intersection. Along the bar of the T, there is a steep upward slope between Sussex Drive and Mackenzie Street. Immediately across the street, at the same intersection, there are the York Street Steps, which climb this acclivity to Mackenzie Street. On the other side of Mackenzie Street, there is an entrance to Major Hill Park. The Park boasts a view of the back of Parliament Hill and the Ottawa River and is frequently used for outdoor festivals. [3] The Complainant uses a wheelchair. He alleges that the National Capital Commission has discriminated against him on the basis of disability by failing to provide him with access to Mackenzie Street at the York Street Steps. The Complainant and the Commission want this situation rectified. They complain that the Steps are not accessible to those in wheelchairs or indeed, to anyone who is physically unable to traverse the stairs. The Complainant and the Commission have argued that the case raises important issues with respect to universal access. [4] The hearing in the case has already commenced. The Complainant has finished his evidence. The Commission has begun its examination-in-chief of David Lloyd Rapson, an expert in universal access. The problem giving rise to the present motion arose when Mr. Rapson testified that there was an obvious solution to the lack of access at the York Street Steps. This solution was to be found next door. [5] The Steps are owned by the National Capital Commission, also in the name of the Crown. There is a large historic building immediately south of the steps, known as the Connaught Building. This building is owned by Public Works, also in the name of the Crown. Mr. Rapson felt that those who cannot use the York Street Steps could be provided with an alternative means of access to Mackenzie Street through the Connaught Building. [6] The Connaught Building is a large stone building, oblong in shape, that runs north and south between Sussex Drive and Mackenzie Street. It has a rather stern medieval look, with crenellated turrets and external stone buttresses. Since the building is built into the hill, and Mackenzie Street is three floors higher than Sussex Drive, its front and back entrances open on different floors. [7] When Mr. Rapson studied the York Street site, he discovered a disused entrance at the north end of the building, off Sussex Drive, adjacent to the York Street Steps. He also discovered that there was an elevator shaft at the same end of the building. There is a major exit onto Mackenzie Street, three floors up. Mr. Rapson suggested that this shaft could be used to provide elevator access between the two streets. This would presumably be less expensive than the construction of an elevator or lift at the Steps themselves. [8] The Commission has filed an affidavit with its Notice of Motion, containing copies of correspondence with both the NCC and Public Works concerning the Connaught Building. It is apparent from this correspondence, and the testimony that has already been heard, that some preliminary inquiries were made. The investigator's supplementary report, which is before me, states that the Respondent 'should consult with the appropriate persons to secure the use of the building. At some point, however, it appears that the negotiations between the various parties fell through.. [9] During Mr. Rapson's evidence in chief, I asked the Commission if it was asking the Tribunal to consider the use of the Connaught Building as an alternate means of access to Mackenzie Street. It is evident that this would require an order that the owners of the Connaught Building make its premises available to the public. It might also require an order that modifications be made to the building. When the Commission confirmed that it was seeking this kind of relief, I expressed concern over the fact that the owner of the Connaught Building was not before the Tribunal. [10] The hearing was then adjourned, so that counsel for the Commission could receive instructions. The Commission then brought the present motion, which seeks to add Public Works and the Canada Customs and Revenue Agency as respondents to the proceedings. Public Works is the landlord of the building, which is leased to the Revenue Agency. At the hearing of the motion, the Department of Justice acted on behalf of both of these parties. It was agreed on all sides that there was no need to seek an order adding the Revenue Agency as a party. [11] The Complainant has made it clear that he is seeking some form of access to Mackenzie Street at the same location as the steps. He nevertheless supports the motion and feels that the Tribunal should consider the possibility of an alternate access through the Connaught Building. Public Works is objecting to the Motion. NCC has taken no position and indicates that it is content to leave the matter with the Tribunal. II. THE POSITIONS OF THE PARTIES [12] The Commission's position is that Public Works should be named as a Respondent to the Complaint for the purposes of remedy. Although the Commission submits that Public Works may have directly discriminated against the Complainant, it is not relying on such a submission for the purposes of the motion. I think the suggestion is that a refusal to assist in rectifying a discriminatory situation may constitute a direct form of discrimination in itself. [13] The Commission's immediate concern is that the Tribunal may not be able to order the appropriate remedy without the participation of Public Works. This would implicitly defeat the purposes of the Act. The Complainant has joined in the submissions of the Commission. [14] There is no explanation for the Commission's failure to add Public Works as a Respondent before referring the matter to the Tribunal. This must simply be put down to an error on the part of the Commission. Although the Commission recognizes that Public Works should have been added earlier, it argues that any prejudice can be addressed by an adjournment and the production of documents. [15] Public Works objects to the motion, primarily on jurisdictional grounds. It argues that the Tribunal has no jurisdiction to add a party as a Respondent without an allegation that the party has discriminated against the Complainant. I think this must be read, for reasons that will become apparent, as a submission that Public Works cannot be added as a Respondent without an allegation that it has directly discriminated against the Complainant as the principal in the discrimination. [16] Public Works has also argued that the Commission is out of time, but that argument is answered by the fact that the complaint is a continuing complaint. There is a third line of argument that the addition of Public Works as a Respondent at this stage of the process is prejudicial. III. THE TRIBUNAL'S POWER TO ADD PARTIES [17] The jurisprudence of the Canadian Human Rights Tribunal dealing with the addition of parties is of recent origin. In an oral ruling, in Desormeaux v. Ottawa-Carleton Regional Transit Commission, T701/0602; October 2, 2002; vol. 1, at p. 46, Chairperson Mactavish observed that section 48.9(2) of the [Canadian Human Rights] Act specifically contemplates the addition of both parties and interested parties to inquiries before the Tribunal. The provision in question gives the Tribunal the power to make rules governing the addition of parties to the proceedings. [18] Although the Tribunal is in the process of revising its rules, the current rules of the Tribunal are silent on the matter. The matter has been considered in a number of cases however and there is no arguing with the Act. In my view, the Canadian Human Rights Act contemplates that the Tribunal may add a party to a complaint after it has been referred to the Tribunal. The fact that a hearing before a Tribunal is an inquiry would support such a conclusion, since it suggests that there is an exploratory aspect to such a process that may not be present in other litigation. [19] I have reviewed the Rules of Court from a variety of superior courts, which generally state that the Courts may add a party where the addition of the party is necessary to decide all of the matters in dispute or provide a complete and effective solution of the matter. Other members have held that the Tribunal's power to add parties should only be invoked in a situation where it is necessary for the proper airing of a complaint. There are many reasons for this. It goes without saying, for example, that a party that is added to a proceeding in the circumstances before me will not have had the benefits of the investigative process at the Commission. [20] The most recent decision from the Tribunal is Syndicat des employés d'exécution de Québec-téléphone v. Telus Comunications, 2003 CHRT 31, where Member Deschamps held at para. 30 as follows : [Translation] The Tribunal is of the opinion that the forced addition of a new respondent once the Tribunal has been requested to inquire into a complaint is appropriate, in the absence of formal rules to this effect, if it is established that the presence of this new party is necessary to dispose of the complaint before the Tribunal and that it was not reasonably foreseable, once the complaint was filed with the Commission, that the addition of a new respondent would be necessary to dispose of the complaint. I accept this as a general statement of the current law. [21] The facts were substantially different in the Telus case, however, which was more in the nature of a motion to add a third party. This is an important distinction: the motion to add a party in that case was based on a submission that the union was directly and fundamentally liable. The remedy that was sought by the Complainant was also an employment remedy, which was never imperiled by the failure to add the union as a Respondent. It follows that the addition of the union was not required, in any strict sense, to resolve the issues in the case. [22] In my view, there is an additional factor in the immediate case, which is more significant than the question of foreseability. The purpose of the Canadian Human Rights Act is to remedy discrimination and the Tribunal's power to add parties must be subordinated to that purpose. This goes to the nature of the process. Although the Tribunal deals with the private rights and obligations of the parties that come before it, insofar as they engage the rights protected by the Act, human rights hearings have a constitutional component that is often missing in the civil law. [23] This brings in public policy concerns that do not arise in private litigation. In my view, litigation before the tribunal is public interest litigation, even when it concerns the private interests of the parties. The civil rules regarding the addition of parties must be tailored to the mandate of the Tribunal, which is to provide an effective remedy for discrimination. If it is necessary to add Public Works as a Respondent in order to provide the kind of remedy contemplated by the Act, it seems to me that this must take precedence over the lack of foresight of the Commission. IV. SECTION 53 OF THE ACT [24] The jurisdictional argument raised by Public Works is based on the wording of Section53(2) of the Canadian Human Rights Act. That subsection contemplates an order against the person found to be engaging . . . in the discriminatory practice. Public Works accordingly submits that it cannot be added as a party without some reliable evidence on which the Tribunal could make a finding that it was the person engaging in the discriminatory conduct. [25] As I understand it, the Commission has no immediate intention of asking for a finding that Public Works is directly liable, as the principal in the discrimination, and is rather seeking an ancillary order of some kind, which would allow it to execute any decision against NCC in the most appropriate manner. I should say, in passing, that I do not believe it is fair for the Commission to reserve its position on the question whether Public Works is liable as a principal until a later date. [26] Public Works has argued that it should not be added as a party merely because it is part of the apparatus of the Crown. The Commission's response to this submission appears to be twofold. Its first argument is that NCC and Public Works can be considered as one person for the purposes of remedy under Section 53 of the Canadian Human Rights Act. Its second argument is that the Tribunal has the power to make whatever ancillary orders are necessary to facilitate the orders contemplated under section 53. A. The person of Public Works [27] I initially expressed some misgivings about the Commission's first line of reasoning. NCC and Public Works are discrete persons in law. The separation of the budgets and responsibilities of these agencies is an important attribute of their legal identity. It would be a mistake to think that the Tribunal can somehow merge their identities for the purposes of the hearing. [28] There is nevertheless something to the argument advanced by the Commission. The Canadian Human Rights Act is remedial and the word person must be given a large and liberal interpretation. Although Public Works and NCC are separate in law, they are both creatures of the Federal Crown. It is accepted on all sides that the underlying title in both properties vests in the Federal Crown. It is simply not enough in law to say that the two properties are owned by different legal persons. [29] The situation might be different if the NCC and Public Works were private parties. Even in such a case, however, one can imagine a situation in which the adjoining properties were owned by different companies, A and B, each of which was owned by a third company, C. Although A and B would be separate in law, they would both be subservient to the interests of C and one can think of situations where a court or tribunal might feel it necessary to pierce the corporate veil that separates them. [30] Here it is the indivisibility of the Crown that requires consideration. This is an idea with many limits. In Liability of the Crown (Toronto: Carswell, 1989), for example, at page 10, Professor Hogg writes: There is only one individual at any time who is the Queen (or King). The Crown accordingly has a monolithic connotation, which has sometimes been articulated in dicta such as that the Crown is one and indivisible. For nearly all purposes the idea of the Crown as one and indivisible is thoroughly misleading. ... The immediate case may nevertheless present one of those unusual situations where the unity of the Crown is significant. [31] The Crown has a specific interest in remedying discrimination. One would accordingly think that any devolution of the Crown's authority would carry some element of the public interest with it. If the Crown has an interest in rectifying discrimination, there is accordingly room for an argument that its servants share that interest. The point is that this interest does not stop arbitrarily at the doorstep of its agents. This might be sufficient to bridge the identities of NCC and the Department of Public Works for the purposes of Section 53. [32] The legal question maybe whether some aspect of the Crown's interest in remedying discrimination infuses the responsibilities and purposes of its agents. The Commission apparently feels that there is enough of a nexus to join the persons of the NCC and Public Works for the purpose of remedy under Section 53 of the Act. There is a sense in which the NCC, as an agent of the Crown and owner of the York Street Steps, shares the identity of the agent of the Crown that owns the adjacent property. [33] The Commission has provided me with authorities, principally Canadian Pacific v. Canada (Human Rights Commission) [1991] 1 F.C. 571 (C.A.) and Canada (AG) v. Rosin [1991] 1 F.C. 391 (C.A.), which demonstrate that human rights legislation should be interpreted in a manner that takes a Tribunal beyond the more specific prescriptions of the Act. The question at this stage of the process, however, is merely whether the Commission has raised a triable issue. I am dealing with a preliminary motion, and it would be premature to enter into an analysis of the law. [34] This observation is reinforced by the fact that I have yet to decide the facts in the case. There may be many reasons why the Connaught Building cannot be used as an alternative means of access. This is a subject for the hearing however, and the only question before me is whether the Tribunal should inquire into the matter. This is not possible without the participation of Public Works in the hearing. B. The jurisdiction of the Tribunal to add a party for the purposes of remedy [35] The second response of the Commission to the arguments of Public Works under Section53 of the Act is that the Tribunal has the authority to make supplementary orders, in aid of any finding of liability. This would give the Tribunal the power to make an order against a party solely for the purposes of remedy. The Commission's position is that an order against the NCC may be of no assistance in the immediate case without a supplementary order against the Department of Public Works. [36] It is important to be careful with the wording of the proposition put forward by the Commission. This is because there is a logical sense, at least, in which there is no remedy without some form of liability. The argument before me is rather that the liabilities under the Act extend beyond those who are directly responsible for the acts that have given rise to the complaint. The Commission is arguing that Public Works is liable under section 53 in some less direct and secondary sense, almost as if it was an accessory rather than a principal in the discrimination. [37] Under the Canadian Human Rights Act, Mr. Brown has a right to the enjoyment of the usual liberties and rights, without discrimination. The argument is that this gives rise to positive duties under the Act, which require that Public Works co-operate with the other parties in attempting to redress the alleged discrimination at the York Street Steps. This may give rise to a duty to assist the NCC in its accommodation of people with disabilities. The public policy reasons for this are obvious: without such assistance, the NCC may not be able to provide the natural remedy for the alleged discrimination. [38] The failure of an agent of the Crown to provide the disabled with the same physical access to public places as other people is a matter of general concern. This raises a different set of considerations than employment matters, which generally arise out of a dispute between opposing parties. If it is a matter of giving Mr. Brown the opportunity to exercise rights, which stand, in some conceptual sense, in rem, against the world, the issues in the case cannot be restricted to the parties in the immediate dispute. [39] On the Commission's view, the owner of the Connaught Building has obligations that go beyond the obvious prohibitions in the Act, in remedying the alleged discrimination at the York Street Steps. It is evident that issues like fault are less important in this context than the overriding need to find a viable solution to the problem that has arisen with respect to the Steps. This is in keeping with much of the earlier jurisprudence, such as Robichaud v. Canada (Treasury Board) [1987] 2 S.C.R. 84, for example, at para.11 in particular. Like other people who are disabled, Mr. Brown is not that interested in the ownership of the two adjoining properties. His position is very simple. He wants the same access to Mackenzie Street as other people. [40] This requires a physical remedy and cannot be solved by compensation. There are situations in the law, such as expropriation, where public rights take precedence over the interests of a private or a public owner of land. If a bus stop needs to be enlarged, to accommodate those who use wheelchairs, this may inevitably infringe on the rights of an adjacent property owner. I suppose the Commission has no answer for those who say otherwise: the argument is simply that there are situations where the Canadian Human Rights Act requires that our private interests be subordinated to the common good. [41] The problem with the position adopted by Public Works is that it may leave persons who are discriminated against without an effective remedy. If I have to choose between the right of Public Works to stay out of the dispute and the rights of the disabled, I would think that any reading of the purpose and preamble of the Act leaves little doubt as to where my responsibilities lie. The Commission is entitled to follow discrimination to its logical remedy, in accordance with the larger public interest, wherever that remedy might lead. [42] If the Commission or another party is of the view that it is necessary to add a party, in order to provide a remedy for discrimination, I think it is entitled to make the kind of motion that has been made before me. The question of fairness will always be an issue on such a motion. But that goes to the question of prejudice and not to the jurisdiction of the Tribunal. I think the Act gives the Tribunal discretion, and a relatively informal discretion, to add a party if that meets the needs of justice and the purposes of the Act. It is interesting that Mr. Hadjis added a complainant in Groupe d'aide et d'information sur le harcèlement sexuel au travail v. Barbe, T736/4102, May 6, 2003, Vol. 2, pp. 205-288, for the purposes of remedy. [43] There is no escaping the fact that the Commission should have foreseen the present eventuality and added Public Works to the complaint before referring the matter to the Tribunal. Regrettable as this may be, the reality is that Public Works may have an indispensable part to play in resolving any question of discrimination that arises at the York Street Steps. All other matters aside, I find it difficult to understand why Public Works would force the NCC to solve the problem in a way that would impose a more expensive solution on the public. [44] If the case before me raised private issues in the civil law, the matter might be different. This is not private litigation however and the public interest is paramount. The question of discrimination is simply too important to be defeated by such procedural irregularities. The public and constitutional concerns that raise themselves in the present context outweigh any fault that may accrue to the Commission. [45] I realize that the Commission's position has many implications for the parties, both inside and outside the hearing. At the present time, however, the only issue before me is whether the Commission is entitled to raise these issues in the course of the hearing. I think the answer to such a question must be in the affirmative. I am making no findings on the merits of the case and the matter is still open to argument at the end of the hearing. V. PREJUDICE [46] The final argument raised by Public Works is prejudice. This rests primarily on the fact that the department has lost the benefits that generally accrue to a Respondent during the investigative process. This is an important consideration, which is offset by the fact that this will usually be the case, if a Respondent is added after a complaint has been referred to the Tribunal under the Act. [47] The reality is that Mr. Brown could file a new complaint tomorrow, with Public Works as a Respondent. The Commission could then refer the matter to the Tribunal under section 49(1) of the Act, with or without an investigation. In my view it would be inappropriate to rely on this kind of formal maneuvering to bring Public Works before the Tribunal. [48] The idea that the Complainant would have to file a second complaint to deal with the issues that might arise with Public Works runs against the spirit of the Act. This would merely delay the satisfaction of any rights to which the Complainant may be entitled and use up the scarce resources of the system of justice. If Public Works is a proper party in the matter, it should be brought in as expeditiously as possible, in a manner that deals naturally with all of the issues that arise out of the complaint before me. I see no reason why any deficiencies in the process cannot be made up by giving Counsel for the Department of Public Works the necessary time to prepare her case. VI. CONCLUSION AND DIRECTION [49] The purpose of the Canadian Human Rights Act is to rectify discrimination. This consideration is paramount. In my view, it would be wrong to reject the Commission's motion and possibly deprive the Complainant and the public of their proper remedy, merely because a mistake was made by the Commission in pursuing the case. This is a public rather than a private matter and the public interest comes first. [50] I am accordingly directing that the Department of Public Works and Government Services be added as a Co-respondent to the case before me. This will allow the hearing to resume. This is subject to the requirements of natural justice. In fairness to the other parties, the Commission is obliged to comply with the requirements of Rule 6 of the Tribunal's Rules of Procedure and provide the other parties with an amended statement of issues, in the style of the civil courts, with all of the changes conspicuously marked. The Respondent is entitled to know the case against it. [51] Counsel for Public Works has already indicated that she would need three or four months to review the disclosure and prepare her case. I would ask the other parties to accommodate her in this regard. It will also be necessary to recall the Complainant, for the purposes of cross-examination. The testimony of Mr. Rapson can continue. I would ask the parties to confer among themselves as to the order in which witnesses should be called when we resume. [52] There is one other aspect of the matter that deserves mention. It appears that there have been extensive negotiations to try and resolve the continuing issue at the Steps. Since this is the first time that Public Works has been brought into the case, it may be possible to revisit these negotiations and resolve some aspects of the matter without formal intervention. If the Tribunal may be of service in this regard, the parties should advise the Tribunal Registry Officer accordingly. signed by Dr. Paul Groarke OTTAWA, Ontario December 9, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE NO.: T760/1003 STYLE OF CAUSE: Bob Brown v. National Capital Commission PLACE OF HEARING: Ottawa, Ontario October 30, 2003 DECISION OF THE TRIBUNAL DATED: December 9, 2003 APPEARANCES: Bob Brown On his own behalf Ikram Warsame For the Canadian Human Rights Commission Lynn Harnden For the Respondent, National Capital Commission Elizabeth Kikuchi For the Respondents, On the Motion: Public Works and Government Services Canada and Canada Customs and Revenue Agency

2003 CHRT 44

CHRT

Laurendeau v. Canadian Broadcasting Corporation

en

2003-12-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7169/index.do

2023-12-01

Laurendeau v. Canadian Broadcasting Corporation Collection Canadian Human Rights Tribunal Date 2003-12-09 Neutral citation 2003 CHRT 44 File number(s) T785/3503 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE FRANCINE LAURENDEAU Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN BROADCASTING CORPORATION Respondent RULING ON THE PRELIMINARY OBJECTION REGARDING THE JURISDICTION OF THE CANADIAN HUMAN RIGHTS TRIBUNAL MEMBER: Michel Doucet 2003 CHRT 44 2003/12/09 (TRANSLATION) I INTRODUCTION II. FACTS III. ISSUE DURING THE PRELIMINARY OBJECTION IV. LEGAL ANALYSIS V. CONCLUSION I. INTRODUCTION [1] On August, 27, 2003, counsel for the respondent, Robert Bonhomme, Esq., raised a preliminary objection regarding the jurisdiction of the Canadian Human Rights Tribunal (the Tribunal) for dealing with the constitutionality of a provision in its enabling legislation. Specifically, he contended that the Tribunal does not have the jurisdiction to answer the complainant's question regarding the constitutionality of paragraph 15(1)(c) of the Canadian Human Rights Act (the Act)1. [2] Following a teleconference held on September 11, 2003, it was agreed that the issue of the Tribunal's jurisdiction would be argued first and that questions relating to the substance would be handled after the Tribunal's decision on the preliminary objection. [3] The hearing for the preliminary objection took place in Montreal on November 17, 2003. II. FACTS [4] Francine Laurendeau (the complainant) was employed at the Canadian Broadcasting Corporation (the respondent) from 1973 first as a producer, and then from 1989 as a producer and host of the respondent's Chaîne culturelle. [5] On July 12, 2001, the respondent retired the complainant. This decision was made under a policy in effect with the respondent since 1978 and entitled Human Resource Policy No. 10.0, which states: Retirement is based on age and is set as the last working day of the month in which the employee turns 65 years old. [6] In anticipation of being retired, the complainant filed a complaint on June 6, 2001 with the Canadian Human Rights Commission (the Commission) to contest the respondent's decision. In her complaint, she alleged that the respondent acted in a discriminatory manner towards [her], by maintaining a mandatory retirement policy, because of [her] age (65), contrary to sections 7 and 10 of the Canadian Human Rights Act. [7] On November 26, 2002, the Commission's investigator filed her investigation report on the complaint. Given paragraph 15(1)(c)2, the Commission's investigator recommended pursuant to [paragraph] 44(3)(b) of the Canadian Human Rights Act, that the Commission dismiss the complaint. Upon receipt of this report, the Commission invited the complainant to make additional representations, which she did on December 20, 2002. [8] On February 27, 2003, the Commission informed the complainant and the respondent of its decision, following the investigation report. Among other things, it indicated: After reviewing this information, the Commission has decided, pursuant to section 49 of the Canadian Human Rights Act, to ask the Chairperson of the Canadian Human Rights Tribunal to appoint a member to inquire into the complaint because the Commission is satisfied that, under the circumstances, an inquiry is warranted. [9] On April 1st, 2003, the Registrar of the Tribunal informed the parties of their rights under section 50(1) of the Act to present evidence and legal representations to support their position in this case. In accordance with the Tribunal's Internal Rules of Procedure, the Registrar also asked the parties to submit short written statements listing the issues and the evidence that would be submitted to the Tribunal. [10] In her disclosure of evidence filed on August 20, 2003, the complainant stated the issues as follows: Did the CBC commit an age-related discriminatory practice in violation of section 7 of the Canadian Human Rights Act by terminating Ms. Laurendeau's employment solely on the basis that she had reached 65 years of age? Alternatively, and if the Tribunal finds that the CBC's discriminatory practice falls within the exception of paragraph 15(1)(c), is this paragraph of the Canadian Human Rights Act unconstitutional by being contrary to section 15 of the Canadian Charter of Rights and Freedoms. [11] On August 27, 2003, the respondent informed the Canadian Human Rights Tribunal (the Tribunal) that it intended to raise a preliminary objection and argue that the Tribunal does not have the jurisdiction to answer the complainant's question on the constitutionality of paragraph 15(1)(c) of the Act. III. ISSUE DURING THE PRELIMINARY OBJECTION [12] Does the Canadian Human Rights Tribunal have the jurisdiction to decide a question on the constitutionality of a provision in its enabling legislation, specifically paragraph 15(1)(c) of the Act? IV. LEGAL ANALYSIS [13] The issue of whether an administrative tribunal has the jurisdiction to decide a question on the constitutionality of a provision in its enabling legislation has been the subject of several Supreme Court of Canada decisions. We simply have to consider the decisions rendered by that Court in Douglas/Kwanten, Faculty Assn. v. Douglas College3, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)4, Tétreault-Gadoury v. Canada (Employment and Immigration Commission)5, Cooper v. Canada (Human Rights Commission)6 and more recently in Nova Scotia (Workers' Compensation Board) v. Martin7. [14] For the purpose of this decision, we will consider the latter two cases in particular, namely Cooper and Martin. [15] In his argument, counsel for the respondent greatly stressed the fact that, according to paragraph 44(3)(a) and section 49(1) of the Act, the Tribunal may not have a complaint before it unless it is following a request from the Commission. He concluded that, in this context, the Tribunal's jurisdiction is dependent on the Commission's jurisdiction. In other words, if the Commission does not have the jurisdiction for deciding an issue, the Tribunal does not have the jurisdiction either. [16] In support of this argument, the respondent relied on two Quebec Court of Appeal decisions, namely Québec (Procureure Générale) v. Commission des droits de la personne et des droits de la jeunesse8 and Québec (Procureure Générale) v. Human Rights Tribunal9. [17] In the first case, the respondent chiefly referred to comments by Rousseau-Houle J. who, for the majority, stated that The Tribunal's jurisdiction is dependent on referrals from the Commission. [...]10 and those of Robert J. who, dissenting, mentioned As we have seen earlier, the Tribunal is dependent on referrals from the Commission. 11 [18] Then, in reference to Québec (Procureure Générale) v. Human Rights Tribunal, the respondent mentioned the following passage from the Quebec Court of Appeal decision: All parties before the Court properly recognize that the Tribunal's jurisdiction is dependent on referrals from the Commission. The Commission's jurisdiction to make the application in this appeal determines the Tribunal's jurisdiction to have this before it. [...]12 [19] To understand the three short excerpts from these decisions, we must take our analysis of them a little further. First, recall that the issue in Québec (Procureure générale) v. Commission des droits de la personne et des droits de la jeunesse was as follows: should the principle of exclusive arbitral authority that is firmly established in Quebec yield to a theory that favours exclusiveness or even competing jurisdictions between the grievances arbitrator and the Quebec Human Rights Tribunal because the dispute raises a question about human rights?13 A question that deals essentially with the jurisdiction of the Quebec tribunal, in consideration of the grievance arbitrator's exclusive jurisdiction; a question that is very different from the one before us here. In this case, none of the parties is questioning the fact that the Commission had full jurisdiction to hear the complaint filed by the complainant, and nobody is contesting the jurisdiction of the Canadian Human Rights Tribunal to have the complaint before it. The issue involves the Tribunal's jurisdiction for deciding a question on the constitutionality of a provision in the Act. [20] It is interesting that Rousseau-Houle J. is aware of the distinction between the federal and provincial legislation regarding the exclusive jurisdiction of the grievance arbitrator. She states: Some Canadian human rights legislation contains provisions that eliminate the possibility for complaints from affected individuals to be simultaneously or successively referred to agencies responsible for this legislation and to grievance arbitrators. Thus, section 41 of the Canadian Human Rights Act and section 34(1) of the Human Rights Code of Ontario empowers the Human Rights Commission to not proceed with a complaint if it believes that the complainant has appropriate alternative recourse including the grievance process. In this regard, we see that, in Cooper v. Canadian Human Rights Commission regarding the jurisdiction of the Canadian Human Rights Commission to review the constitutionality of its enabling legislation, airline pilots who had to retire at age 60 in accordance with the collective agreement applied to the Canadian Human Rights Commission, not to the grievance arbitrator, because the Canadian Human Rights Act allowed it.14 [21] Therefore, if the same question had been raised at the federal level, everything seems to indicate that the decision could have been different. [22] A little further on, speaking on the Charter of Human Rights and Freedoms of Quebec15, she adds: In Quebec law, the Charter's provisions assigning jurisdiction to the Tribunal do not, in my view, eliminate the exclusive jurisdiction of the grievance arbitrator when the dispute, in its factual background, results explicitly or implicitly from the collective agreement.16 [23] Faced with the exclusive jurisdiction of the grievance arbitrator, the Quebec Commission could not lodge its application with the Human Rights Tribunal and should have stated that it lacked jurisdiction ratione materiae.17 [24] Given the particular situation in this case, I do not see how this is relevant for deciding the issue before us here. In Quebec, the legislator has explicitly allowed that remedies for ensuring respect for Quebec Charter rights shall be exercised before forums other than the Tribunal. As a result, the Quebec Court of Appeal found that the principle of exclusive arbitral authority shall prevail since the dispute arose essentially from the application of the collective agreement and that the Labour Code is able to govern all aspects of the relations between the parties within the context of labour relations.18 [25] In Québec (Procureure générale) v. Human Rights Tribunal, the issues that the Court was asked to consider dealt with the authority of the Commission québécoise des droits de la personne to make an application regarding the validity or opposability of a legislative provision in the Quebec Charter of Human Rights and with respect to the jurisdiction of the Quebec Human Rights Tribunal for deciding it. [26] After closely reviewing this decision, I observe that, from several perspectives, it does not necessarily support the respondent's position. As an example, I considered the following passage in the decision: The Supreme Court of Canada cases shows that the legislator's intent must be determined in order to decide whether the administrative tribunal has jurisdiction to rule on general questions of law, which includes the authority to decide on the constitutional validity of a legislative provision. The analysis must go beyond simply finding a text that explicitly grants a given power. In the absence of an explicit provision depriving a tribunal of a power, its enabling legislation must be interpreted to give that body, which the legislator intended to be efficient, the necessary powers to carry out its mission. In Dunedin, dealing with the power of the justice of the peace in a dispute involving the Provincial Offences Act, the Chief Justice of the Supreme Court even seemed to give the tribunals a presumption of jurisdiction in the absence of a text excluding it The functional and structural approach achieves this balance between real access to remedies provided for by the Charter and deference to the role of the legislative authorities. It rests on the theory that says, when a legislator gives a judicial or administrative tribunal a function leading it to decide issues likely to involve Charter rights and provides it with procedures for fairly and equitably ruling on these ancillary questions connected with the Charter, it must be deduced, in the absence of any contrary intent, that the legislator intended to empower the tribunal to enforce the Charter.19 [27] The passage from Dunedin, cited by the Quebec Court of Appeal, is even more applicable to the Canadian Human Rights Tribunal since in the Act, as we will see further on, there is a provision explicitly granting it the authority to decide questions of law and that it is provided with procedures for fairly and equitably ruling on these questions. [28] As with the Attorney General of Quebec in Québec (Procureure générale) v. Commission des droits de la personne et des droits de la jeunesse, the respondent in the matter at hand greatly stressed what it believes is the decisive impact of the Cooper case. The respondent concluded from it that the Commission lacks the authority to determine whether a provision in the Act, which it must otherwise respect and implement, is invalid and that, as a result, the Tribunal as well lacks the authority to invalidate a provision in the Act. The respondent reiterated the comments of La Forest J. in Cooper to support its conclusion: Given my finding that the Commission does not have the jurisdiction to question the constitutional validity of its enabling statute, it logically follows that a tribunal appointed under the Act, and indeed a review tribunal appointed pursuant to s. 56, must also lack the jurisdiction to declare unconstitutional a limiting provision of the Act. Take for example the case presently before us: if the Commission must apply the Act as it is written, then the appellants cannot get their complaint before a tribunal, depending as it does on s. 15(c) being found to be inoperative. The same is true of any complaint that requires the Commission to arrive at a decision on a constitutional matter before being able to find that the complaint warrants further inquiry by a tribunal. It would be something of a paradox for Parliament to grant tribunals under the Act a jurisdiction that could never be exercised.20 [29] However, I am of the view that this case, within the current legislative context and based on the state of the Supreme Court's recent cases, does not support the respondent's claims. Moreover, to properly understand the Cooper passage, we must also refer to the following paragraphs in which La Forest J. adds: 64 As with the Commission there is [at that time] no explicit power given to a tribunal to consider questions of law. Taken together, ss. 50(1) and 53(2) of the Act state that a tribunal shall inquire into the complaint referred to it by the Commission to determine if it is substantiated. This is primarily and essentially a fact-finding inquiry with the aim of establishing whether or not a discriminatory practice occurred. In the course of such an inquiry a tribunal may indeed consider questions of law. As with the Commission, these questions will often centre around the interpretation of the enabling legislation. However, unlike the Commission, it is implicit in the scheme of the Act that a tribunal possesses a more general power to deal with questions of law. Thus tribunals have been recognized as having jurisdiction to interpret statutes other than the Act (see Canada (Attorney General) v. Druken, [1989] 2 F.C. 24 (C.A.)) and as having jurisdiction to consider constitutional questions other than those noted above. In particular, it is well accepted that a tribunal has the power to address questions on the constitutional division of powers (Public Service Alliance of Canada v. Qu'Appelle Indian Residential Council (1986), 7 C.H.R.R. D/3600 (C.H.R.T.)), and on the validity of a ground of discrimination under the Act (Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 (C.H.R.T.)), and it is foreseeable that a tribunal could entertain Charter arguments on the constitutionality of available remedies in a particular case (see Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892). Even in such instances, however, the legal findings of a tribunal receive no deference from the courts. This position was firmly established by this Court in Mossop, supra, at p. 585: The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. 65 I would add a practical note of caution with respect to a tribunal's jurisdiction to consider Charter arguments. First, as already noted, a tribunal does not have any special expertise except in the area of factual determinations in the human rights context. Second, any efficiencies that are prima facie gained by avoiding the court system will be lost when the inevitable judicial review proceeding is brought in the Federal Court. Third, the unfettered ability of a tribunal to accept any evidence it sees fit is well suited to a human rights complaint determination but is inappropriate when addressing the constitutionality of a legislative provision. Finally, and perhaps most decisively, the added complexity, cost, and time that would be involved when a tribunal is to hear a constitutional question would erode to a large degree the primary goal sought in creating the tribunals, i.e., the efficient and timely adjudication of human rights complaints. 66 Taking all these factors into consideration, I am of that view that while a tribunal may have jurisdiction to consider general legal and constitutional questions, logic demands that it has no ability to question the constitutional validity of a limiting provision of the Act. (My underlining.) [30] In Cooper, the Court, in concluding that the Tribunal could not decide a question on the constitutionality of a provision in its enabling legislation, based itself on the fact that the Act in force at the time did not explicitly give the Tribunal the authority to consider and decide questions of law. It recognizes, however, that the scheme of the Act implicitly allowed the Tribunal to rule on general questions of law and constitutionality. In Nova Scotia (Workers' Compensation Board) v. Martin, the Supreme Court unanimously dismissed the distinction between general and limited questions of law.21 [31] Be that as it may, and with all deference to the position of the majority in Cooper, I have to focus now on the new legislative context and the Supreme Court's decision in Martin which proposes a new approach to answering the question raised in the current case. [32] Before analysing the Martin decision, I must clear up some confusion regarding the respective roles of the Commission and the Tribunal. The respondent mentioned in its argument that the Commission is essentially an administrative body and that it is specifically responsible for administering and ensuring compliance with the Act. The respondent based itself on the comments of La Forest J., who indicated in Cooper22 that: The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfils a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it. Justice Sopinka emphasized this point in Syndicat des employés de production du Québec et de L'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 899. [33] This is the role and function of the Commission; those of the Tribunal are different. [34] Without going into the details of the roles of these two bodies, I want to state that in Bell Canada v. Canadian Telephone Employees Association23 the Supreme Court did indeed take on the role and character of the Tribunal: 23 The main function of the Canadian Human Rights Tribunal is adjudicative. It conducts formal hearings into complaints that have been referred to it by the Commission. It has many of the powers of a court. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. Moreover, its hearings have much the same structure as a formal trial before a court. The parties before the Tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts. The Tribunal is not involved in crafting policy, nor does it undertake its own independent investigations of complaints: the investigative and policy-making functions have deliberately been assigned by the legislature to a different body, the Commission. [...] 26 [...] The Tribunal is part of a legislative scheme for identifying and remedying discrimination. As such, the larger purpose behind its adjudication is to ensure that governmental policy on discrimination is implemented. It is crucial, for this larger purpose, that any ambiguities in the Act be interpreted by the Tribunal in a manner that furthers, rather than frustrates, the Act's objectives. (My underlining) [35] The Tribunal is therefore an adjudicative body whose main function is deciding complaints referred by the Commission and interpreting the Act so as to achieve its objectives. [36] The Commission refers complaints to the Tribunal. In this case, all parties including the respondent agree that the Tribunal has indeed been referred a complaint from the Commission. [37] It is clear upon reading the letter from the Commission Chairperson to the Tribunal Chairperson that all aspects of the complaint, as they appear in the complaint form signed by the complainant in 2001, were referred to the Tribunal. Also, as my colleague, member Hadjis, so clearly pointed out in Côté v. Attorney General of Canada one must not lose sight of the fact that although the Commission has the authority to decide whether a complaint is to be referred to the Tribunal (ss. 44(3) and 49 of the Act), the complaint continues to remain the complainant's, not the Commission's. 24 [38] Once it receives a complaint, the Tribunal, in accordance with section 50(2) of the Act, which did not exist at the time of the Cooper decision, decide[s] all questions of law or fact necessary to determining the matter. (My underlining.) The federal legislator, knowing the Supreme Court's conclusions in Cooper, clearly elected to broaden the Tribunal's jurisdiction by adopting this provision in 1998. This decision is consistent with principal of supremacy of the Constitution as set out in section 52 of the Constitution Act, 1982 and with the basic principle that an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid25 or, in the words of the Supreme Court in Cooper if a tribunal does have the power to consider questions of law, then it follows by the operation of s. 52(1) [Constitution Act,1982], that it must be able to address constitutional issues, including the constitutional validity of its enabling statute 26. This conclusion is confirmed in Bell: [...]The Tribunal's power to decide all questions of law or fact necessary to determining the matter, under s. 50(2) of the Act, is clearly a general power to consider questions of law, including questions pertaining to the Charter and the Canadian Bill of Rights. 27 [39] In Douglas College, Cuddy Chicks and Tétreault-Gadoury, the Supreme Court also considered this issue, and in each case it pointed out valid reasons, from a principle and general policy perspective, for conferring such a power on administrative tribunals. These reasons are clearly set out in paragraphs 28 to 32 of the Martin decision. [40] Since the Tribunal has the power under section 50(2) to decide questions of law, then in the Supreme Court's words, it is presumed to have the concomitant power to consider and decide questions under the Charter, unless the legislator has withdrawn this power. Thus an administrative tribunal that has the power to decide questions of law arising under a particular legislative provision will be presumed to have the power to determine the constitutional validity of that provision. In other words, the power to decide a question of law is the power to decide by applying only valid laws.28 (My underlining.) Or, in the words of the Supreme Court in Bell, No invalid law binds the Tribunal.29 [41] In Paul v. British Columbia (Forest Appeals Commission)30, the Supreme Court had to decide whether a province can confer on an administrative tribunal the power to hear and decide questions on aboriginal rights under section 35 of the Constitution Act, 1982. In response to this, the Supreme Court said the following: As a preliminary issue, I note that there is no basis for requiring an express empowerment that an administrative tribunal be able to apply s. 35 of the Constitution Act, 1982. There is no persuasive basis for distinguishing the power to determine s. 35 questions from the power to determine other constitutional questions, such as the division of powers under the Constitution Act, 1867 or a right under the Charter. Section 35 is not, any more than the Charter, some holy grail which only judicial initiates may touch (Cooper, supra, at para. 70, per McLachlin J. (as she was then), dissenting). [...] The arguments that s. 35 rights are qualitatively different - that they are more complex, and require greater expertise in relation to the evidence adduced - have little merit. As Moen J. noted in Ermineskin Cree Nation v. Canada (2001), 297 A.R. 226, 2001 ABQB 760, at para. 51, in determining that a Human Rights Tribunal had jurisdiction to consider a s. 35 argument: [T]here is no principled basis for distinguishing Charter questions from s. 35 questions in the context of the Tribunal's jurisdiction to consider constitutional questions. In either case, the decision-maker is simply applying the tests set out in the case law to determine if the particular right claimed is protected by the Constitution. In either case, if the applicant is successful, the result is a declaration of invalidity or a refusal to apply only the particular statute or provision before the decision-maker.31(My underlining) [42] These comments also apply to the case before us. Interestingly enough, the Alberta trial court was rightly called upon, in Ermineskin Cree Nation v. Canada, cited in Paul, to rule on section 50(2) of the Act in the light of Cooper and it found that the power to decide questions of law gave the Tribunal the power to decide constitutional questions. [43] In its recent decision in Martin, the Supreme Court presented the new approach for determining if a tribunal, such as the Canadian Human Rights Tribunal, may subject legislative provisions to Charter scrutiny. This approach can be summarized as follows: The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision. a) Explicit jurisdiction must be found in the terms of the statutory grant of authority. b)Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter. The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by a) pointing to an explicit withdrawal of authority to consider the Charter, or b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter from the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations.32 [44] In the case before us, the Tribunal's jurisdiction is explicitly provided for in section 50(2) of the Act. In the words of Gonthier J. in Martin if it is endowed with the power to consider questions of law relating to a provision, that power will normally extend to assessing the constitutional validity of that provision...the consistency of a provision with the Constitution is a question of law arising under that provision 33 Since the Tribunal has the power to decide questions of law relating to a legislative provision, this power is presumed to include the power to decide on the constitutional validity of that provision under the Charter. [45] It is true that in Martin, Gonthier J. indicated: In my view, the result reached in Cooper could have been reached under the current restated rules, given La Forest J.'s finding that the Commission had no authority, either explicit or implicit, to decide questions of law arising under s. 15(c) of the Canadian Human Rights Act. It is thus unnecessary at this time to revisit the holding in that case [...] 34 [46] Thus, the question of whether the Commission has such authority within the new legislative framework remains undecided. However, this question does not need to be answered in these proceedings because it is clear that the legislator explicitly gave this authority to the Tribunal. [47] The Honourable Justice Gonthier added: To the extent that it is incompatible with the present reasons, however, I am of the view that the ratio of the majority judgment in Cooper is no longer good law. This is particularly true insofar as it implies that the distinction between general and limited questions of law is generally relevant to the analysis of an administrative tribunal's jurisdiction to apply the Charter, or that the adjudicative nature of the administrative body is a necessary (or even preponderant) factor in the search for implicit jurisdiction. Likewise, the opinions expressed by Lamer CJ in his concurrence are at odds with the current approach and should not be relied on.35 [48] I am therefore of the view that, since the passage of the legislative amendments in 1998, the majority's conclusion in Cooper is no longer consistent, at least with respect to the Tribunal, with the Supreme Court's reasons in Martin. [49] Since the Tribunal is explicitly granted the authority to decide questions of law, it is now up to the respondent, according to the approach in Martin, to rebut this presumption either by pointing to an explicit withdrawal of this authority to consider the Charter, which is not the case here, or by convincing the Tribunal that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter from questions of law to be addressed by the Tribunal. Such an implication should generally arise from the Act itself, rather than from external considerations. [50] Given the quasi-constitutional nature of the Act and its purpose to identify and remedy discrimination, it is crucial that the Act be interpreted by the Tribunal in a manner that furthers, rather than frustrates, the Act's objectives.36 The Act evinces the legislator's intent to establish a Tribunal that follows a quasi-judicial process and has functions that allow it to be interpreted in a non-discriminatory manner. [51] As a result of the foregoing, I am not satisfied that the responded has successfully met the burden of demonstrating that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter from the questions of law to be addressed by the Tribunal or that it intended to exclude constitutionality questions regarding provisions in its enabling legislation. [52] I am also not satisfied with the argument that this intent to exclude the deciding of questions on the constitutional validity of a provision in the enabling legislation arises from section 49(5)37 of the Act. Upon reading section 49(6)38, it is clear that section 49(5) has only a procedural effect and that observing it in no way voids the proceedings. V. CONCLUSION [53] For the above reasons, I am dismissing the respondent's preliminary objection. My conclusions imply that the Tribunal has jurisdiction to proceed with the inquiry into all aspects of the case, including the constitutional validity of paragraph 15(1)(c) of the Canadian Human Rights Act with respect to section 15 of the Canadian Charter of Rights and Freedoms. Michel Doucet OTTAWA,Ontario December 9, 2003 1 R.S. (1985), ch. H-6. 2 Paragraph 15(1)(c) of the Canadian Human Rights Act (the Act) provides that: 15.(1) It is not a discriminatory practice if [...] (c) an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual. 3 [1990] 3 S.C.R. 570 4 [1991] 2 S.C.R.5. 5 [1991] 2 S.C.R. 22 6 [1996] 3 S.C.R. 854 7 [2003] SCC 54 8 [2002] R.J.D.T. 55 9 [2002] R.J.Q. 628 10 Québec (Procureure Générale) v. Commission des droits de la personne et des droits de la jeunesse, at para. 119. 11 Ibid., para. 66. 12 Québec (Procureure Générale) v. Human Rights Tribunal, para. 69. 13 Québec (Procureure générale) v. Commission des droits de la personne et des droits de la jeunesse, para. 90. 14 Québec (Procureure générale) v. Commission des droits de la personne et des droits de la jeunesse para. 114. 15 R.S.Q. c. C-12 16 Québec (Procureure générale) v. Commission des droits de la personne et des droits de la jeunesse, para. 117. 17 Ibid., at para. 134. 18Québec (Procureure générale) v. Commission des droits de la personne et des droits de la jeunesse, para. 127. 19 Québec (Procureure générale) v. Commission des droits de la personne et des droits de la jeunesse, at para. 32. 20 Cooper, supra, para. 63. 21Martin, supra, at para 47. 22 Cooper, supra, para. 53. 232003 SCC 36. 2420003 CHRT 32, para. 12. 25 Cuddy Chicks, at page 13. 26 Cooper, para. 46. 27 Bell, para. 47. 28 Martin, para. 36. 29 Bell, para. 47. 30 2003 SCC 55 31 Ibid., at para. 36. 32 Martin, para. 48. 33 Martin, para. 28. See also Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, at para. 39. 34 Martin, para. 47. 35 Ibid. 36 Bell, para. 26. 37 49(5) If the complaint involves a question about whether another Act or a regulation made under another Act is inconsistent with this Act or a regulation made under it, the member assigned to inquire into the complaint or, if three members have been assigned, the member chairing the inquiry, must be a member of the bar of a province or the Chambre des notaires du Québec. 38 49(6) If a question as described in subsection (5) arises after a member or panel has been assigned and the requirements of that subsection are not met, the inquiry shall nevertheless proceed with the member or panel as designated. PARTIES OF RECORD TRIBUNAL FILE: T785/3503 STYLE OF CAUSE: Francine Laurendeau v. Canadian Broadcasting Corporation DECISION OF THE TRIBUNAL DATED: December 9, 2003 APPEARANCES: Mireille Bergeron For the Complainant Philippe Dufresne For the Canadian Human Rights Commission Robert Bonhomme For the Respondent

2003 CHRT 45

CHRT

Genest v. Bell Mobility

en

2003-12-31

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7167/index.do

2023-12-01

Genest v. Bell Mobility Collection Canadian Human Rights Tribunal Date 2003-12-31 Neutral citation 2003 CHRT 45 File number(s) T753/0303 Decision-maker(s) Doyon, Roger Decision type Consent Order Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARC GENEST Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL MOBILITY Respondent ORDER FOR THE PRODUCTION OF THE MEDICAL SUMMARY FOR ANTOINE TAMAZ MEMBER: Roger Doyon 2003 CHRT 45 2003/12/31 (TRANSLATION) [1] Following the directions issued by the Tribunal on September 9, 2003, the Complainant, Marc Genest, made the commitment to disclose to the Respondent, Bell Mobility, the medical summary of his common-law spouse, Antoine Tamaz, born on April 8, 1963 and died on February 16, 1998. [2] Counsel for the Respondent, Bell Mobility, informed the Tribunal that she was having difficulty obtaining Antoine Tamaz's medical summary from the Régie de l'assurance-maladie du Québec. [3] It appears that the Régie de l'assurance-maladie du Québec refuses to comply with the request from counsel for the Respondent, Bell Mobility, unless required to do so by order from the Tribunal. [4] Therefore, the Tribunal orders: The Régie de l'assurance-maladie du Québec to provide no later than January 15, 2004 to Johanne Cavé, Esq., 1000 de La Gauchetière St. West, Suite 4100, Montreal, Quebec H3B 5H8, counsel for the Respondent, Bell Mobility, the medical summary for Antoine Tamaz (born April 8, 1963 and died February 16, 1998, health insurance number TAMA63040815) for the period of January 1st, 1990 to January 29, 1996 inclusively, including the following information for each consultation: date; name of the consulting physician; diagnosis or reason for the consultation. Roger Doyon December 31, 2003 OTTAWA, Ontario PARTIES OF RECORD TRIBUNAL FILE: T753/0303 STYLE OF CAUSE: Marc Genest v. Bell Mobility ORDER OF THE TRIBUNAL DATED: December 31, 2003 APPEARANCES: Noël Saint-Pierre For the Complainant Patrick O'Rourke For the Canadian Human Rights Commission Johanne Cavé For the Respondent

2003 CHRT 46

CHRT

Morin v. Canada (Attorney General)

en

2003-10-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7162/index.do

2023-12-01

Morin v. Canada (Attorney General) Collection Canadian Human Rights Tribunal Date 2003-10-29 Neutral citation 2003 CHRT 46 File number(s) T739/4402 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JEAN-LUC MORIN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATTORNEY GENERAL OF CANADA Respondent RULING MEMBER: Athanasios D. Hadjis 2003 CHRT 46 2003/10/29 [1] The Complainant wishes to call upon Dr. Harish C. Jain, Professor Emeritus, Human Resources and Labour Relations at the MGD School of Business of McMaster University, to testify in the present case as an expert. The Complainant proposes to qualify Prof. Jain as an expert in the field of systemic discrimination, discrimination in the large sense and racial prejudice in the workplace, from the perspective of a social scientist. [2] The Respondent has taken issue with Prof. Jain's proposed qualification for the purpose of this expert testimony. In addition, the Respondent questions the relevance and necessity of this proposed evidence. [3] The Respondent presented its objection after Prof. Jain had completed his testimony with regard solely to the matter of his qualification as an expert. On the consent of the parties, a copy of Prof. Jain's report detailing his intended evidence was provided to me to assist in my deliberations. [4] An analysis regarding the admissibility of expert evidence should be conducted in accordance with the leading decision of the Supreme Court of Canada on this subject, in the case of R. v. Mohan, [1994] 2 S.C.R. 9. The Court pointed out that the admission of expert evidence depends upon the application of the following criteria: Relevance; Necessity in assisting the trier of fact; The absence of any exclusionary rule; A properly qualified expert. [5] Accordingly, the first two questions for me to consider are the following: Is the proposed evidence of Prof. Jain relevant, and if so, is it necessary in assisting the Tribunal? [6] On the question of relevance, the Court in Mohan noted the following, at paragraph 18: Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is whether its value is worth what it costs. See McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. [7] On the issue of necessity, the Court in Mohan cites, at paragraph 21, from its prior decision in the case of R. v. Abbey, [1982] 2 S.C.R. 24: With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.) [8] The Supreme Court goes on to say, in Mohan, at paragraph 22: This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word helpful is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information which is likely to be outside the experience and knowledge of a judge or jury: as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. [emphasis added] [9] There are essentially two parts to the proposed evidence of Prof. Jain, as advanced in his report. The first is in the form of an introductory explanation of some of the causes of racial discrimination in the workplace. There is no explicit reference, within this aspect of the evidence, to the RCMP or to the specific facts alleged in the complaint. [10] The second portion of the proposed expert evidence is described as a quantitative analysis of the scope, nature and trends of racial discrimination in employment in Canada over the last two decades, based on a sample of 119 cases published by the Canadian Human Rights Reporter between 1980 and 1999. This is followed up with a qualitative analysis, based upon selected cases, with respect to patterns of behaviour and employment conditions that lead to discriminatory treatment of racial minorities in the workplace, that the witness points out is meant to be illustrative. These analyses are occasionally interspersed with comments by Prof. Jain to the effect that in his opinion, many of the incidents alleged in the complaint reflect some of the patterns of discrimination documented in Canadian human rights case law. [11] I find that the first part of the proposed evidence is of minimal probative value to this case. While knowledge of the root causes of racism in the workplace is vital to our society's ongoing quest to eradicate all forms of discrimination, I fail to see how general evidence relating thereto can be of assistance in determining whether the specific discriminatory conduct alleged in the complaint occurred in fact. The time to be expended to receive this evidence will not be commensurate with its probative value. [12] With respect to the second aspect of the proposed evidence, I have no doubt that a review of the relevant jurisprudence in the area of racial discrimination will be of assistance to me when it comes down to making my findings and issuing my decision, once all of the evidence of the Complainant and the Respondent will have been led. I fully expect each party's learned and able counsel to apprise me of all the relevant case law and other authorities, and to bring up any analogous facts on the basis of which I will be urged to reach similar findings and conclusions. Conducting this form of analysis falls squarely within the scope of the Tribunal's functions. The Supreme Court of Canada has observed on several occasions that the Canadian Human Rights Tribunal has a superior expertise as it relates to fact finding and adjudication in the human rights context. (See, for instance, R v. Mossop, [1993] 1 S.C.R. 554).The Tribunal is thus able to draw the very inferences and conclusions that Prof. Jain has made in his report. I am not persuaded, therefore, that the second facet of his proposed evidence will fall outside the experience and knowledge of the Tribunal. The condition of necessity articulated in Mohan has not been satisfied. [13] For these reasons alone, the Respondent's objection is maintained and the proposed evidence of Prof. Jain is not admitted. The question of his qualifications for the purposes of his testimony in this case thus becomes moot and need not be explored. I hereby certify that the foregoing is a true and accurate representation of my ruling given to the parties in the above-noted matter on October 29, 2003. Signed by Athanasios D. Hadjis OTTAWA, Ontario October 29, 2003 PARTIES OF RECORD TRIBUNAL FILE: T739/4402 STYLE OF CAUSE: Jean-Luc Morin v. Attorney General of Canada RULING OF THE TRIBUNAL DATED: October 29, 2003 APPEARANCES: Ian Abugov For the Complainant Alain Préfontaine For the Respondent

2003 CHRT 5

CHRT

Bushey v. Sharma

en

2003-02-11

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6870/index.do

2023-12-01

Bushey v. Sharma Collection Canadian Human Rights Tribunal Date 2003-02-11 Neutral citation 2003 CHRT 5 File number(s) T722/2702 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: CONNIE BUSHEY Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ARVIND SHARMA Respondent RULING ON DISCLOSURE 2003 CHRT 5 2003/02/11 MEMBER:Athanasios D. Hadjis [1] This ruling concerns the issue of whether the Canadian Human Rights Commission (Commission) and the Complainant are obliged to disclose the minutes of settlement regarding two other human rights complaints. [2] The Complainant and the Respondent are both employed by Canada Post Corporation. In 1998, they were also members of the local executive of their union, the Union of Postal Communications Employees (UPCE), which is a component of the Public Service Alliance of Canada (PSAC). The Complainant claims that Respondent sexually harassed her on an ongoing basis, during the course of his membership on the executive. As a result of this alleged harassment, the Complainant filed human rights complaints against the Respondent, the UPCE and the PSAC. [3] The complaints against the unions (Commission File Nos. H48451 & H48449) were settled in December 2002. The terms of the settlement have since been approved by the Commission, pursuant to s. 48 of the Act. A settlement was not, however, reached with the Respondent, and the hearing as to the merits of the complaint against him began on January 13, 2003. A second set of hearing dates is scheduled to commence on February 17, 2003. [4] The Respondent has taken issue with the fact that a copy of the minutes of settlement with the unions has not been disclosed to him. Although the Respondent is not represented by legal counsel and is acting on his own behalf, I understand him to be contending that he is entitled to have this document communicated to him, in accordance with Rule 6(3) of the Tribunal's Interim Rules of Procedure. This rule, when read together with Rule 6(1)(d), obliges a party to provide to other parties, copies of all documents in its possession which are relevant to any matter in issue in the case and for which no privilege is claimed. The test for relevance for these purposes has been expressed as being whether the document in question is arguably relevant to the hearing.(1) [5] The Commission and the Complainant are unwilling to disclose the minutes of settlement. Instead, the Commission has informed the Respondent in writing of what the Commission identifies as a general recounting of the terms of the settlement. This summary consists of four paragraphs that are set out in point form. It purportedly reflects all the essential terms of the agreement (minus the technical language), with one significant exception: the specific monetary amounts that the unions undertook to pay the Complainant have been excluded. Together with the summary, the Respondent was provided with a copy of the letter of apology from the unions to the Complainant, which was drafted in accordance with the terms of the agreement. According to Commission counsel, a single document was drafted to reflect the settlement of both complaints. The minutes of settlement contain a clause by which the parties agree to keep the terms of the agreement confidential. [6] The Respondent is not satisfied with this level of disclosure and has specifically requested communication of the amounts paid by the unions to the Complainant. I should point out that I have not viewed the minutes of settlement in question. [7] Considering the fact that the unions, who are not parties before the Tribunal in this case, were signatories to the agreement, I felt it appropriate to request their opinions with respect to this disclosure issue. Their joint position was expressed in a letter from Mr. Craig Spencer, Legal Counsel, PSAC Membership Programs Branch. The unions concur with the Complainant and the Commission that the Minutes of Settlement should not be disclosed in their entirety. The objections of the Commission and the Complainant are seemingly limited to the disclosure of the actual financial settlement amounts. They are amenable to the communication of the remainder of the minutes of settlement. I. IS THE DOCUMENT RELEVANT TO A MATTER IN ISSUE IN THE CASE? [8] The unions submit, with the apparent concurrence of the Commission and the Complainant, that the matters in issue in the settled complaints are completely unrelated and irrelevant to the matters in issue in the complaint against the Respondent. The latter complaint alleges specific actions in violation of the Canadian Human Rights Act (Act) by the Respondent. The complaints against the unions, on the other hand, although triggered by the alleged actions of the Respondent, are distinct in that they deal specifically with the administrative framework developed by the PSAC and the UPCE to review complaints of harassment in the context of union activity. As is evident from the text of the complaints against the unions, the Complainant believes that the system for dealing with harassment issues that was in place within the unions failed to deliver to her a timely review of her concerns. [9] Indeed, a significant portion of both complaints against these labour organizations is focussed on the manner in which senior union representatives had mismanaged her complaints to them regarding the Respondent's conduct. In the human rights complaint filed with the Commission against the Respondent, a contravention of s. 14 of the Act is alleged only. This provision makes it a discriminatory act to harass a person based on a prohibited ground, including sex. With respect to the complaints filed against the union, however, violations of s. 7, s. 9 as well as s. 14 are alleged. Under s. 7, it is a discriminatory practice to differentiate adversely in the course of a person's employment and, of greater significance, pursuant to s. 9, it is a discriminatory practice for an employee organization to exclude, expel or suspend a member of the organization on a prohibited ground, such as sex. Thus, the liability that the Commission sought to attach to the unions was based, at least in part, on the manner in which they treated their member, as a consequence of her allegations that another union executive member had sexually harassed her. [10] The unions argue that they could have been found liable, irrespective of the outcome of the complaint against the Respondent. The unions' counsel suggested that if the Tribunal were to find that the Respondent had not harassed the Complainant, the unions would not seek to reopen or seek to invalidate the settlement. [11] It is pointed out that the only significant portions of the settlement terms that are being withheld are the settlement amounts. In light of the discrete liabilities of the unions on the one hand and the Respondent on the other, the sums paid to the Complainant by the unions are of no relevance to the amounts that she is claiming from the Respondent. The Commission notes that according to the summary of the minutes of settlement referred to above, compensation was to be paid by the unions to the Complainant to address the Complainant's pain and suffering pursuant to s. 53(2)(e) of the Act only. No payment was made in respect of lost wages (that is, honoraria to which union executives were entitled) or expenses. Turning to the present case, the Commission's and Complainant's Joint Letter of Particulars indicates that financial compensation for the Complainant's expenses is being claimed against the Respondent, as well as an award for pain and suffering, pursuant to s. 53(2)(e). [12] Thus, compensation for pain and suffering was claimed against the Respondent as well as the unions. The Commission argues that these remedies are nonetheless unrelated. The Complainant was entitled to claim up to the maximum amount allowable for pain and suffering under the Act ($20,000.00) against each of the original respondents. Commission counsel directed me to the findings in Ghosh v. Domglas Inc. (No. 2),(2) with respect to the remedial provision in the Ontario Human Rights Code that authorizes a Board of Inquiry to order an award of up to $10,000 as monetary compensation for mental anguish. The Board stated that: While the Code limits the amount of an award of monetary compensation in respect of mental anguish, it does not restrict the number of such awards a board may order after a hearing where it finds distinct rights to have been infringed in separate incidents, or series of incidents, and whether by the same or by different respondents.(3) A similar finding was reached in the more recent Ontario Board of Inquiry decision in Moffat v. Kinark Child and Family Services.(4) [13] The Commission contends that the same reasoning can be extended to the remedial provisions under the Act, including s. 50(2)(e). If the remedies for pain and suffering are distinct, from one complaint to another, the sums received by the Complainant from the unions cannot be set off against those that she is claiming from the Respondent. Therefore, the amounts that the Complainant may have received from the other respondents are of no relevance to the claim for pain and suffering that she has addressed against the Respondent in the present case. [14] This argument assumes that the Tribunal will be in a position to distinguish the pain and suffering that the Complainant experienced at the hands of the Respondent from the pain and suffering arising from the unions' conduct. It is possible that the Tribunal will be unable to make such a determination. The three human rights complaints and the Joint Letter of Particulars all suggest that a significant portion of the unions' actions and omissions occurred at the same time as the Respondent was purportedly harassing the Complainant. In the event that I sustain the complaint against the Respondent and find that the Complainant experienced pain and suffering over the period in question, it is certainly possible that I will be unable to separate out the injury caused by the Respondent's conduct from that of the unions. In this event, the Respondent could argue that he should not be ordered to compensate the Complainant for all her pain and suffering. At least for the purpose of avoiding a double indemnification of the Complainant, knowledge of whatever amounts she may have received from the unions is relevant to a matter in issue in the Respondent's case. On this basis alone, I find that the settlement document is arguably relevant. [15] But is the liability of the unions really as distinct as it has been made out to be? It is true that the complaints against the labour organizations refer to s. 7 and s. 9 of the Act and mention the specific conduct of the unions and their representatives. However, according to the Commission's and Complainant's Joint Letter of Particulars, which was prepared before the complaints against the unions were settled, the issues of the case include the following: Did the Respondents UPCE and PSAC fail to exercise due diligence in preventing the acts of harassment from occurring or mitigate the effect of the harassment on the Complainant, per section 65 of the Act? S. 65(1) is the provision of the Act in virtue of which acts or omissions committed by officers, directors, employees or agents of an organization are deemed to be acts or omissions committed by the organization - in other words, deemed or vicarious liability. Under s. 65(2), the organization may exculpate itself by demonstrating that it did not consent to those acts or omissions, it exercised all due diligence to prevent them and it tried subsequently to mitigate their effects. [16] As is implied by the Complainant's and the Commission's reference to s. 65, the liability of the unions could flow from the principal liability of the alleged harasser, the Respondent. In these circumstances, organizations may be condemned jointly and severally with their officers, directors, employees or agents, to compensate complainants. As was explained in Moffat: In those decisions, where the corporate respondent is found to be liable for the discriminatory conduct of a personal respondent, the order holds the corporate respondent jointly and severally liable with the individual for the award in respect of that conduct.(5) The Board of Inquiry in Moffat went on to note that a finding of deemed or vicarious liability does not support a further separate award in respect of that liability.(6) [17] Accordingly, it could certainly be argued that the liability alleged against the unions flows vicariously from the liability of the Respondent, and that the Complainant's damage claim against him should be reduced by the sums received in settlement of her complaints against the unions. The settlement amounts thus become relevant the Respondent's case. [18] For all these reasons, I am satisfied that the minutes of settlement are relevant to a matter in issue in the case, namely, the determination of the amount of the award that the Respondent may be ordered to pay if he is found liable. II. IS THE DOCUMENT PRIVILEGED? [19] In his written submissions, counsel for the unions noted that in practice, parties to settlement negotiations undertake to maintain strict confidentiality as a motivation to parties to reconcile their differences and avoid litigation. Any societal interest in the terms of the agreement is protected through the process of review and approval by the Commission that must be completed before the settlement becomes enforceable, pursuant to s. 48 of the Act. [20] Indeed, in furtherance of this objective, courts have protected from disclosure communications made with a view to reconciliation or settlement.(7) However, as explained by Sopinka, Lederman and Bryant, if negotiations are successful and result in a consensual agreement, the communications may be tendered in proof of the settlement, where the existence or interpretation of the agreement is itself in issue.(8) I note that the authors' discussion regarding this privilege appears to revolve around the communications leading up to the settlement, not the settlement document itself. By implication, I take it that minutes of settlement would not be subject to the privilege. At any rate, I am satisfied that the questions regarding the assessment of damages for pain and suffering are issues that relate to the interpretation of the settlement agreement itself. I am therefore not persuaded that a privilege extends to the minutes of settlement. III. CONCLUSION AND ORDER [21] I order the Commission and the Complaint to disclose to the Respondent, by 4:00 PM, on Thursday, February 13, 2003, the minutes of the settlement with the PSAC and the UPCE. This disclosure shall be in the form of copies of the document, in accordance with Rule 6(3) of the Tribunal's Interim Rules of Procedure. [22] In order to address some of the concerns as to the confidentiality of the documents, I order the disclosure of the document on the following conditions: The Respondent shall only consult the document for the purposes of the hearing; The Respondent shall not disclose the document nor its content to anyone, other than his legal counsel, if any; The Respondent shall not make any additional copies of the disclosed document and shall return it to the Commission within one week after the close of the hearing in this case. [23] Any similar concerns regarding the admission of the document into evidence during the hearing can be addressed at that time, perhaps through a motion for in camera proceedings. Original signed by Athanasios D. Hadjis OTTAWA, Ontario February 11, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T722/2702 STYLE OF CAUSE: Connie Bushey v. Arvind Sharma RULING OF THE TRIBUNAL DATED: February 11, 2003 APPEARANCES: Connie Bushey On her own behalf Ceilidh Snider For the Canadian Human Rights Commission Arvind Sharma On his own behalf 1. 1 Public Service Alliance of Canada v. Northwest Territories (Minister of Personnel), [2001] C.H.R.D. No. 44 (C.H.R.T.)(QL) at para. 8; Hutchison v. British Columbia (Ministry of Health), 2001 BCHRT 30, [2001] B.C.H.R.T.D. No. 29 (QL) at para. 36. 2. 2 (1992), 17 C.H.R.R. D/216 (Ont.Bd.Inq.) 3. 3 Ibid. at para. 118. 4. 4 [1999] O.H.R.B.I.D. No. 15 (Ont.Bd.Inq.)(QL). 5. 5 Ibid. at para. 37. 6. 6 Ibid. at para 41. 7. 7 J. Sopinka, S. N. Lederman, A. W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at 807. 8. 8 Ibid. at 816-17.

2003 CHRT 6

CHRT

Warman v. Kyburz

en

2003-02-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6873/index.do

2023-12-01

Warman v. Kyburz Collection Canadian Human Rights Tribunal Date 2003-02-13 Neutral citation 2003 CHRT 6 File number(s) T726/3102 Decision-maker(s) Mactavish, Anne L. Decision type Decision Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - FRED KYBURZ Respondent RULING ON AMENDMENT OF COMPLAINT 2003 CHRT 6 2003/02/13 MEMBER: Anne L. Mactavish [1] Richard Warman has filed a human rights complaint against Fred Kyburz, alleging that Mr. Kyburz was discriminating against people on the basis of religion, race and national or ethnic origin by communicating messages over his Internet web-site. Mr. Warman alleges that these messages expose non-Christians, non-Caucasians and individuals of other races, religions and national or ethnic origins to hatred and/or contempt, contrary to the provisions of section 13 of the Canadian Human Rights Act. [2] The Canadian Human Rights Commission and Mr. Warman have now brought a motion to amend the complaint to include an allegation of retaliation, pursuant to section 14.1 of the Canadian Human Rights Act. The moving parties allege that subsequent to the filing of Mr. Warman's complaint, Mr. Warman was harassed and threatened on numerous occasions by way of material published on the Internet by Mr. Kyburz. [3] The Commission's Statement of Particulars disclosed the Commission's intention to seek an amendment to the complaint to deal with the issue of retaliation. The Statement of Particulars was evidently served on Mr. Kyburz on January 29, 2003. Further, a separate complaint dealing with the issue of retaliation was evidently filed with the Commission in October of 2002. The Commission says that Mr. Kyburz would have been made aware of the facts in issue in the retaliation complaint, although it is unclear from the material before me when this would have occurred. [4] Mr. Kyburz has not responded to the Commission's motion within the time set by the Tribunal. [5] A human rights complaint is not like a criminal indictment. There is discretion in the Tribunal to amend a complaint to deal with additional allegations, provided that sufficient notice is given to the respondent so as to enable him to properly defend himself.(1) The hearing in this case is scheduled to commence on March 17, 2003. Mr. Kyburz will have been aware for at least a month and a half before the start of the hearing that an allegation of retaliation was in issue in this case. There is nothing before me to indicate that Mr. Kyburz would be prejudiced in any way in the preparation of his defense if leave to amend Mr. Warman's complaint is granted. [6] Leave is hereby granted to the Canadian Human Rights Commission and to Mr. Warman to amend Mr. Warman's complaint to include the allegation of retaliation pursuant to Section 14.1 of the Canadian Human Rights Act. The Commission and Mr. Warman shall have 10 days in which to serve and file an amended complaint form, together with an amended statement of issues and any necessary supplementary disclosure. Original signed by Anne L. Mactavish OTTAWA, Ontario February 13, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T726/3102 STYLE OF CAUSE: Richard Warman v. Fred Kyburz RULING OF THE TRIBUNAL DATED: February 13, 2003 APPEARANCES: Monette Maillet For the Canadian Human Rights Commission and Richard Warman No one appearing for Fred Kyburz 1. 1 Canada (Attorney General) v. Robinson, [1994] 3 F.C. 228 at para 39 (F.C.A.).

2003 CHRT 7

CHRT

Day v. Canada (National Defence)

en

2003-02-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6872/index.do

2023-12-01

Day v. Canada (National Defence) Collection Canadian Human Rights Tribunal Date 2003-02-13 Neutral citation 2003 CHRT 7 File number(s) T627/1501, T628/1601 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personn BETWEEN: AMANDA DAY Complainant - and - DEPARTMENT OF NATIONAL DEFENCE AND MICHAEL HORTIE Respondents RULING ON THE PAYMENT OF WITNESS FEES 2003 CHRT 7 2003/02/13 MEMBER: Dr. Paul Groarke [1] The following ruling deals with the payment of witness fees. Counsel for the Respondent has agreed to accept the delivery of a number of subpoenas that have been issued to the Complainant, but has requested conduct money. The Complainant has accordingly asked me to stipulate the necessary fees. [2] The matter is dealt with in section 50(6) of the Canadian Human Rights Act, which states that any person summoned to attend a hearing is entitled in the discretion of the member or panel to receive the same fees and allowances as those paid to persons summoned to attend before the Federal Court. I note that a witness is entitled to these fees and allowances: although the subsection gives me a discretion in the matter, I think that the fees and allowances should be paid unless there are compelling reasons to depart from normal practice. Testifying at a hearing is an inconvenient and often troublesome duty, which requires witnesses to rearrange their private lives in order to accommodate the interests of society. I am firmly of the view that they should be compensated for their trouble. The process of applying for subpoenas and paying these fees may also discourage the parties from calling unnecessary witnesses. [3] The practice in the Federal Court is governed by rules 42 and 43 of the Federal Court Rules, which state that a witness is entitled to the fees and travel expenses set out in Tariff A. Section 3 of the Tariff states that witness fees should be paid in the amount of $20 per day plus reasonable travel expenses, or the amount permitted in similar circumstances in the superior court of the province where the witness appears, whichever is greater. I am not aware of any rulings by the Tribunal, but I think the discretionary element in section 50(6) of the Canadian Human Rights Act allows me to vary these amounts in accordance with the circumstances of the case. The fees should not be so high that they interfere with the Complainant's right to present her case. [4] I accordingly believe that I have the authority to set a one time fee of $25 for ordinary witnesses within the City of Victoria, inclusive of travel expenses. This is conduct money and is to be provided to the witnesses when they receive their subpoenas. The witnesses have no obligation to appear if they do not receive the money. [5] I realize that these fees may be seen more as a notional form of payment than anything else. I nevertheless think they serve a symbolic purpose in recognizing the central place of witnesses in the system of justice. If individual witnesses are required to attend the hearing over an extended period of time, the matter can be revisited. Original signed by Dr. Paul Groarke OTTAWA, Ontario February 13, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NOS.: T627/1501 and T628/1601 STYLE OF CAUSE: Amanda Day v. Department of National Defence and Michael Hortie RULING OF THE TRIBUNAL DATED: February 13, 2003 APPEARANCES: Amanda Day On her own behalf Joyce Thayer For Department of National Defence J. David Houston For Michael Hortie

2003 CHRT 8

CHRT

Bednarski v. Bank of Montreal

en

2003-02-14

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6867/index.do

2023-12-01

Bednarski v. Bank of Montreal Collection Canadian Human Rights Tribunal Date 2003-02-14 Neutral citation 2003 CHRT 8 File number(s) T728/3302 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: NORA BEDNARSKI Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BANK OF MONTREAL Respondent RULING ON JURISDICTION 2003 CHRT 8 2003/02/14 MEMBER: Athanasios D. Hadjis [1] The Complainant has a disability that obliges her to use a wheelchair. She alleges that the Respondent's bank branches near her home are inaccessible by wheelchair and that she has therefore been discriminated against, contrary to s. 5 of the Canadian Human Rights Act (Act). [2] The Respondent has filed a preliminary motion seeking the dismissal of the complaint. The Respondent contends that the Canadian Human Rights Tribunal lacks the jurisdiction to inquire into the complaint for lack of institutional impartiality and independence. [3] The Respondent takes the position that it has the right, as declared in s. 2(e) of the Canadian Bill of Rights(1) not to be deprived of a fair hearing in accordance with the principles of fundamental justice. This right, it is argued, is effectively a constitutional standard that extends to all Canadian tribunals and not merely to superior courts of inherent jurisdiction.(2) The Respondent contends that the function and structure of the Canadian Human Rights Tribunal, as articulated in the Act, vary little from that which is associated with courts. [4] The Respondent further suggests that the Act is an instrument through which the equality rights provided for in s. 15 of the Canadian Charter of Rights and Freedoms (Charter) have been preserved. As such, the Tribunal's jurisdiction to deal with human rights under the Act serves as an extension to the protection of constitutional rights that is guaranteed under the Charter. The Tribunal's proceedings must therefore be conducted in accordance with the highest standards of institutional independence and impartiality. [5] The Respondent acknowledges that in Ocean Port Hotel v. British Columbia, the Supreme Court of Canada recognized that while some administrative tribunals may be required to make quasi-judicial decisions, the degree of independence that is called for of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected. (3) The Respondent adds, however, that the Tribunal's function and role within the realm of rights that are themselves derived from the Charter, impose precisely the type of constitutional constraints referred to in Ocean Port. Thus, in assessing the degree of independence required of the Tribunal, one should not merely defer to the intention of the legislator. Instead, the Tribunal should be adjudged against the same constitutional standard that is applied to superior courts. This constitutional imperative has already been extended to provincial courts.(4) [6] The Respondent argues that when assessed against this standard, at least two elements within the legislative framework of the Act bring into question the independence and impartiality of the Tribunal. The first concern relates to the power of the Canadian Human Rights Commission (Commission), by virtue of s. 27 of the Act, to issue binding guidelines setting out the extent to which and the manner in which, in its opinion, any provision of the Act applies in a class of cases. The Respondent points out that the Commission's mandate under the Act is to represent the public interest on matters relating to equality, a duty that is ultimately incumbent upon the State. As such, the authority to pass the guidelines effectively empowers the State, that is to say, an arm of the executive branch, to appear before and, at the same time, instruct the Tribunal with respect to the interpretation of an act of the legislative branch. The binding nature of these guidelines would have the effect of compelling the Tribunal to abdicate its role as interpreter of the Act's provisions. [7] The second issue raised by the Respondent relates to the provisions of s. 48.2(2) of the Act that render a Tribunal member's ability to conclude an inquiry after his or her appointment expires conditional upon the approval of the Chairperson. In effect, contends the Respondent, a Tribunal member's security of tenure is subject to the Chairperson's discretion. The Respondent argues that in the face of such a discretionary power, it is illusory to expect the Tribunal to be reasonably perceived as possessing the necessary institutional independence. [8] For these reasons, the Respondent submits that a reasonable apprehension of institutional bias exists and that the Tribunal should therefore decline to conduct an inquiry into the complaint. [9] The Commission is of the view that it need not directly reply to the arguments raised by the Respondent regarding the Tribunal's institutional independence and impartiality. The Commission submits that the Federal Court of Appeal adjudicated these very questions, in Bell Canada v. Canada (Human Rights Commission),(5) a case that relates to a wage discrimination complaint that was filed against Bell Canada, and which the Commission eventually referred to the Tribunal for inquiry. [10] Bell Canada argued before the Court that due to the institutional bias and lack of independence of the Tribunal, its right to natural justice was being denied. Bell Canada specifically called into question the same sections of the Act that the Respondent has referred to in its submissions (s. 27(2) and s. 48.2(2)). The Federal Court of Appeal ruled, however, that a reasonable apprehension of bias does not arise with regard to either of these provisions. Bell Canada appealed from this judgment to the Supreme Court of Canada. Oral arguments on the appeal were presented just a few weeks ago, on January 23, 2003. A decision from the Court is not expected for several months to come. [11] The Commission contends that the Tribunal remains bound by the Federal Court of Appeal decision with respect to these issues, irrespective of the pending appeal. Obviously, this is not a matter of res judicata or chose jugée, if only because the parties to the Bell Canada case and the present one are not the same. Yet, by virtue of the principle of stare decisis, a precedent or decision of a court is binding on courts and tribunals that are lower in the judicial hierarchy.(6) I am satisfied that the Federal Court of Appeal decision in Bell Canada concerns the identical statutory provisions as are under consideration before me and that essentially the same legal issues are discussed regarding these provisions. [12] Counsel for the Respondent suggested, nonetheless, that I am not necessarily bound by the determination of the Federal Court of Appeal. This judgment was rendered prior to the release of the decision by the Supreme Court of Canada in Mackin v. New Brunswick (Ministry of Finance).(7) It is therefore suggested that the Federal Court of Appeal reached its findings without the benefit of this more recent pronouncement by the Supreme Court regarding the issue of institutional independence and impartiality. [13] The Mackin case dealt with legislation that abolished the system of supernumerary judges that had been in place at the Provincial Court of New Brunswick, and replaced it with a panel of retired judges who were paid on a per diem basis. The Court held that the manner in which this law imposed change on the conditions of remuneration of judges affected their financial security and constituted a violation of the institutional guarantees of judicial independence contained in s. 11(d) of the Charter. The statute was declared unconstitutional. [14] In setting out the law regarding judicial independence and impartiality, the Supreme Court, in Mackin, relied on principles articulated in decisions that pre-dated the Federal Court of Appeal judgment in Bell Canada, namely Valente v. R.(8) and Re: Provincial Court Judges(9). Respondent counsel did not explain how Mackin's discussion on the law would have further enlightened the Federal Court of Appeal. It is also worth mentioning that the Supreme Court focussed its attention on the judicial independence and impartiality of courts, not administrative tribunals. Moreover, the Court's conclusions regarding the issue of security of tenure are of questionable assistance to the Respondent's submissions in the present case. The Supreme Court determined in Mackin that the abolition of the supernumerary system did not affect the Provincial Court judges' security of tenure. For all these reasons, I am not persuaded that the subsequent release of the Supreme Court decision in Mackin affects the impact of the findings in Bell Canada on the issues before me. [15] Counsel for the Respondent suggests that there is no reference in the Bell Canada decision to the relationship between s.15 of the Charter and the Act. Evidence was not introduced before me to indicate which arguments may or may not have been led before the Court. In any event, I do not believe that this facet of the Respondent's submissions adds significantly to its arguments overall. One cannot lose sight of the fact that at the core of the Respondent's submissions is its assertion that the Commission's guideline power, under s. 27(2) of the Act, and the Chairperson's discretionary authority pursuant to s. 48.2(2), create a reasonable apprehension of institutional bias. The Federal Court of Appeal turned its mind to these specific points and decided that the Tribunal's institutional independence and impartiality are not undermined thereby. [16] It is entirely possible that the Federal Court of Appeal considered the constitutional implications, if any, related to the Tribunal's jurisdiction, in reaching its findings. It would be highly presumptuous of me to attempt to distance myself from the conclusions of a Federal Court of Appeal judgment that deals directly with the specific questions before me, merely because no mention is made therein of a certain legal argument, especially where I have no evidence to suggest that this issue was not in fact raised by counsel in their submissions to the Court. [17] Furthermore, I do not accept the suggestion that I am free to ignore the findings of the Federal Court of Appeal simply because the matter is now in front of the Supreme Court of Canada. In Hujdic v. Air Canada,(10) a motion was presented by Air Canada asserting that a reasonable apprehension of institutional bias existed with respect to the Tribunal. The motion was filed after the Federal Court of Appeal decision in Bell Canada. The Chairperson stated, in her ruling on the motion: In my view, the fact that Bell Canada is seeking leave to appeal the recent decision of the Federal Court of Appeal is irrelevant. At this point, the decision of the Federal Court of Appeal is a valid judicial pronouncement, and represents the state of the law.(11) [18] The Tribunal's ruling in Hujdic was issued prior to the Supreme Court's decision to grant Bell Canada leave to appeal the judgment. I am not convinced that it makes any difference that the appeal has now been heard by the Supreme Court and taken under advisement. The judgment of the Federal Court of Appeal continues to represent the state of the law until that Court or the Supreme Court declares otherwise. [19] The Respondent's motion is therefore dismissed. COSTS [20] Commission counsel argued that, considering the binding nature of the Federal Court of Appeal decision in Bell Canada, the Respondent's motion was entirely without merit and consequently, the Commission should be awarded costs. The Commission alleges that considerable public resources and costs were expended to prepare for, travel to and attend at the motion. Commission counsel acknowledged that there is no mention of a specific power to award costs in favour of the Commission in any provision of the Act. She contends, however, that in the absence of an express prohibition of the awarding of such costs, the Tribunal may make such an order as master of its own proceedings. [21] I am not convinced that the Respondent's conduct with respect to the filing of this motion was as egregious as the Commission suggests. The Tribunal generally affords all parties the opportunity to raise any preliminary matters, and where appropriate, these issues are dealt with well before the start of the hearing as to the merits of the complaint. I am satisfied that the Respondent was within its rights in presenting this motion. At the very least, raising its concern regarding the reasonable apprehension of bias in this manner provided the Respondent with some assurance that if the Supreme Court of Canada reverses the Federal Court of Appeal decision in Bell Canada, the Respondent will not be deemed to have waived its right to bring this question forward again.(12) [22] I leave for another day the issue of whether, in any case, the Tribunal has the authority to award costs to the Commission. ORDER [23] The Respondent's motion is dismissed. The Commission's request for costs is denied. Original signed by Athanasios D. Hadjis OTTAWA, Ontario February 14, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T728/3302 STYLE OF CAUSE: Nora Bednarski v. Bank of Montreal RULING OF THE TRIBUNAL DATED: February 14, 2003 APPEARANCES: Andrea Wright For the Canadian Human Rights Commission Lukasz Granosik For the Respondent 1. 1 S.C. 1960, c. 44. 2. 2 Re Provincial Court Judges, [1997] 3 S.C.R. 3. 3. 3 [2001] 2 S.C.R. 781, at para. 24. 4. 4 Ibid. at para. 23. 5. 5 Bell Canada v. Canada (Human Rights Commission), [2001] 3 F.C. 481 (C.A.), rev'g [2001] 2 F.C. 392 (T.D.). 6. 6 A. Mayrand, Dictionnaire de maxims et locutions latines utilisées en droit, 3rd ed. (Cowansville, Que. : Yvon Blais, 1994) at 493-94. 7. 7 2002 SCC 13; [2002] S.C.J. No. 13 (QL). 8. 8 [1985] 2 S.C.R. 673. 9. 9 Supra, note 2. 10. 10 Hujdic v. Air Canada (1 November, 2001), T658/4601 (C.H.R.T.). 11. 11 Ibid. at para. 7. See also Larente v. Canadian Broadcasting Corp., [2001] C.H.R.D. No. 24 (C.H.R.T.) (QL). 12. 12 Zundel v. Canada (Human Rights Commission) [1999] 3 F.C. 58 (T.D.) at para. 12-16.

2003 CHRT 9

CHRT

Hill v. Air Canada

en

2003-02-18

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6563/index.do

2023-12-01

Hill v. Air Canada Collection Canadian Human Rights Tribunal Date 2003-02-18 Neutral citation 2003 CHRT 9 Decision-maker(s) Groake, Paul Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne BETWEEN: YUL F. HILL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AIR CANADA Respondent REASONS FOR DECISION 2003 CHRT 9 2003/02/18 MEMBER: Paul Groarke TABLE OF CONTENTS I. INTRODUCTION A. The Complaints B. Preliminary Issues II. FACTS A. Credibility (i) The Complainant (ii) Mr. Ryan B. The Setting (i) The Complainant (ii) The Dash-80 Line (iii) Area H (iv) The Test Cell C. The Allegation of Discrimination (i) Work Assignments (ii) The Application for the Planner III Position (iii) The Events of October 18, 1994 D. The Allegation of Harassment E. The Complainant's Grievances and the Internal Investigations (i) The First Grievance (ii) The Second Grievance (iii) The Third Grievance III. ANALYSIS A. Prima Facie Case B. Discrimination (i) The General Evidence (ii) The Use of the Term Nig Nog (iii) Temporary Assignments C. The Planner III Position D. Harassment E. The Fundamental Nature of Human Rights IV. ORDER I. INTRODUCTION A. The Complaints [1] I have two complaints before me. The first alleges that Canadian Airlines International Ltd. discriminated against Yul F. Hill on the basis of race under section 7 of the Canadian Human Rights Act by failing to provide him with technical on the job training, by undermining his work, by denying him a promotion, and by monitoring him more closely than other employees. The discrimination is alleged to have occurred from June 1992 to the time of the hearing, though it began prior to that date. The second complaint alleges that Canadian failed to provide Mr. Hill with a harassment free workplace under section 14 of the Canadian Human Rights Act. The harassment is alleged to have occurred between January 1991 and October 1994, and consisted of racial graffiti, jokes and slurs. [2] These complaints are personal rather than systemic. There was apparently a third complaint that dealt with larger issues in the workplace which was not referred to the Tribunal. The Complainant and the Commission nevertheless presented their case on the basis that there was a larger pattern of discrimination in the workplace. This is problematic, since there is no clear nexus between Mr. Hill's experiences and the general situation in the engine shop. [3] As the successor to Canadian Airlines International Ltd., Air Canada accepted any liability that Canadian might have incurred under the Canadian Human Rights Act. The hearing into the complaints took place in Vancouver and lasted 25 days. There were 18 witnesses. I received oral and written submissions at the end of the hearing, which have been of considerable assistance. Although Mr. Ash and Mr. Fakirani, who acted for the Complainant and Commission, made a valiant attempt to sustain the complaint, the facts are simply against them. [4] The Complainant and the Canadian Human Rights Commission took the position that he had been treated unfavourably because he was black. He was discriminated against by his foreman and was harassed by his foreman and other mechanics. The situation came to a tempestuous climax in the supervisors' office, when it erupted in an ugly and emotional exchange between Mr. Hill and his foreman on October 18, 1994. This incident led Mr. Hill to leave the workplace, for his own well-being. [5] Air Canada took the position that Mr. Hill was a problem employee, who avoided work and displayed a conscious lack of respect for authority. [6] The Respondent portrayed the Complainant as a person who was quick to blame his difficulties on race. In its written argument, it submitted: While the Complainant may have been treated differently than some of the other mechanics on the dash-80 with respect to job assignments, this had nothing to do with his race and everything to do with his abilities and attitude as a Mechanic. And again: While the Complainant may have been monitored more closely than other employees, this was not because of his race, color, national or ethnic origin, but rather because he had a tendency to absent himself from his workstation more frequently than other employees . . . The Respondent submits that the Complainant blamed other people for his problems. Rather than amend his work habits, or apply for advancement in the normal manner, he fell into the trap of assuming that those around him were treating him unfairly. B. Preliminary Issues [7] I took a view of the engine shop during the hearing, which has been dealt with in a separate ruling. In the present context, it is enough to say that the view was of considerable assistance in understanding the rest of the evidence. Although there were changes in the layout of the shop, the general scheme of the buildings remained as it was when Mr. Hill worked at Canadian. The offices for the supervisors and foremen had not changed and the work was organized in a similar fashion. The view gave me a better sense of the protocols that were followed in assembling the engines, clarified the nature of the work that was done in different areas, and gave me a sense of the overall dimensions of the work environment. It reinforced the idea that the engine shop was run in a capable way and may have implicitly supported the evidence of various witnesses, but is not a major consideration in my findings of fact. [8] There is another legal issue, however, that should be addressed before dealing directly with the facts. One of the major difficulties in hearing the present case is that most of the testimony at the hearing dealt with events that occurred in the early 1990s. There were various estimates as to the number of people who worked in the engine shop, but the reality is that I heard from a relatively small number of witnesses, whose evidence was often vague and impressionistic. It would be difficult to gauge the emotional environment in a busy shop, so long after the fact, in any circumstances. It is much more difficult in the present case, where the company was on the verge of bankruptcy, the work environment was rife with uncertainty, and the situation was anything but normal. [9] There were nevertheless a number of internal reports on the events before me. I was impressed with the tone of these reports, which show considerable impartiality and tact in dealing with a difficult situation. Although the statements made to the authors of these reports were generally given in a more informal venue, without oath, and were not subject to searching examination, they have a freshness that adds to their significance in determining what occurred on the shop floor. Although I received additional evidence, which clarified some of the issues, I think that these reports should generally be accepted. [10] The evidence as a whole supports the early accounts of what happened. I think it makes sense to pay particular attention to the statements that were made before the participants had the opportunity to tailor their recitals to the needs of the case. This comes with certain qualifications. On the one hand, one should be careful not to read the reports too literally, since the notes made by the investigators were not verbatim. On the other hand, it is clear that the individuals interviewed by Laurie Ferguson and Hunter Rogers expressed themselves more freely than in the hearing. II. FACTS A. Credibility (i) The Complainant [11] I accept that the Complainant was presenting the facts as he saw them. This does not mean that I accept his account of what occurred. Mr. Hill was a partial witness, whose feelings often obscured his view of the facts. He had a tendency to reduce everything to a common denominator: that denominator was that he had not been treated fairly. The testimony of other witnesses, like Mr. Fletcher, supports this conclusion. [12] I think the differences between the parties lies more in the interpretation of facts than anything else. I nevertheless found that Mr. Hill's behaviour in the hearing room was inherently aggressive. I understand his feelings of injustice, but he was clearly inaccurate or mistaken on a number of counts and was unwilling to recognize that there was a case on the other side. It will become evident that I have rejected some of his testimony. [13] I accept the evidence of Doctor Pinkhasik, which established that Mr. Hill suffered from depression and anxiety. This does not in itself substantiate the complaints. There were a number of oblique references to other issues in the Complainant's life, which may have explained his psychological troubles. [14] A number of witnesses also gave evidence that would support the employer's allegation that Mr. Hill was looking for a cash settlement in filing the complaints. I think Mr. Hill's comments to other mechanics in this regard were more a form of psychological bravado than anything else, however, and I think the situation is more complicated than this suggests. It would be wrong to question the sincerity of Mr. Hill's feelings that he had been unfairly treated. (ii) Mr. Ryan [15] I also feel obliged to comment on the testimony of Mr. Ryan, Mr. Hill's foreman, whose credibility was put in issue by some of the witnesses. There was reference, for example, to the two faces of Ryan. Much of the present case is a story of the relations between Mr. Hill and Mr. Ryan. There is no doubt, in my mind, that Mr. Ryan had real enmity towards Mr. Hill. Mr. Kirby believed that Mr. Ryan intentionally provoked Mr. Hill, in a calculating and underhanded manner. I am not so sure of this, but the racial language that he appears to have used in speaking to Laurie Ferguson and Hunter Rogers strikes me as a more accurate reflection of the language used in the shop than the testimony at the hearing. [16] I am nevertheless of the view that Mr. Ryan disliked Mr. Hill because he was a difficult and temperamental employee. Mr. Hill had ambitions, but he was unwilling to do more than an average mechanic and felt that most of his duties were beneath him. I do not believe that the issue between the two men was race. The real issue was that Mr. Hill did not accept his foreman's authority over him. Mr. Ryan was also resentful, in my view, of the fact that Mr. Hill had complained about him. Mr. Ryan was careful not to offend those in authority and must have seen this as an attempt to subvert his authority. [17] There seems to have been a war of wills between Mr. Ryan and Mr. Hill. Whatever his personal faults, Mr. Ryan had a certain professional pride and was committed to the work in the shop. Mr. Hill, on the other hand, was determined to assert his independence. I have no desire to take part in the contest between the two men, but they clearly made it a point of honour to take exception to each other. There is no doubt that Mr. Hill, at least, was trying to get at Mr. Ryan. [18] Mr. Hill had a talent for irking those with immediate authority over him, which he seems to have perfected while working in the engine shop. He was far more careful with those who were higher in the hierarchy. There was at least one incident on the line, where Mr. Hill and Mr. Ryan must have exchanged rather dangerous looks, with Mr. Hill getting the better of Mr. Ryan's emotions. This incident occurred when Mr. Hill was given a new service bulletin and asked to redo work that he had already completed. [19] I have placed considerable reliance on the testimony of Margery Knorr, the equity officer, and Mr. Shelford, the director of the power plant. Both of these witnesses responded to questions from both sides in a thoughtful measured way. They were well informed and provided valuable evidence on company policy. I found their testimony to be eminently fair. I was also impressed with the evidence of Scott Hunter, who was impartial, precise and factual. Mr. Hunter was a member of the selection committee for the Planner III position and I accept his evidence in all respects. [20] I found the testimony of most of the other witnesses credible. I think Mr. Kirby would agree that he had an ideological position, which was reflected in his testimony. He was nevertheless candid and well spoken. The other mechanics who testified were sincere and cooperative. The evidence of Mr. Ghuman, a member of a minority, was candid and factual. The evidence of Mr. Cavasin was helpful, but revealed a good deal about the attitudes on the shop floor. Much of the evidence of racial tensions at Canadian had little bearing, however, on the situation in which Mr. Hill found himself. The testimony of Mr. Hibbert, who felt he was discriminated against, is a case in point. B. The Setting [21] The background to the present complaints is straightforward. Canadian was one of Canada's major commercial airlines. As a major airline, it had a maintenance and engineering department, which operated a machine shop in Vancouver. This is where most of the relevant events occurred. The evidence established that the airline was in desperate financial straits during the period covered by the complaints. No one knew whether the airline would survive and employees were in a state of constant emotional and financial pressure. (i) The Complainant [22] Mr. Hill began his career as a jet engine technician in the U.S. Navy, where he spent six years on active and reserve duty. He was employed by Canadian in 1986 as an apprentice mechanic and worked for Canadian for about eight years. He later became a full mechanic. As an Aircraft Mechanic, he was a member of the International Association of Machinists and Aerospace Workers, known as the I.A.M. As is often the case, the allegations before me have been the subject of the grievance process under the relevant collective agreements, as well as an internal human rights investigation. [23] During his apprenticeship, the Complainant worked in maintenance and engineering. As a journeyman, he worked on the 737 line in the hangar. He was assigned to the engine shop from October of 1989 to December of 1990, and then returned to the 737 line. While Mr. Hill was in the engine shop, he worked on one of the crews on the Dash-80 line. He transferred back to the engine shop in June of 1992 and stayed there until May of 1994, when he was temporarily assigned to the wheel and brake shop. He returned to the Dash-80 line in August and stayed there until his last day of work, which was October 18, 1994. He was nevertheless paid until January of 1995. [24] Canadian had a company-wide mechanics' license issued by the Ministry of Transportation. As a result, the mechanics working for Canadian did not need individual licenses. Instead, mechanics were required to obtain an Aircraft Certification Authority, known as an ACA, to work on a particular engine. Mr. Hill had a company endorsement for the CF6-50 and CF6-80 engines. Mechanics could also obtain individual Ministry of Transportation licenses, known as M licenses for different aircraft and engines. There was considerable disagreement between the parties as to whether there was any significance in the fact that Mr. Hill had such a licence, since it was not required. Although I do not believe that anything turns on this, it certainly demonstrates that Mr. Hill was a man with ambitions who wanted more credentials than many of the mechanics at Canadian. (ii) The Dash-80 Line [25] The maintenance and engineering department at Canadian operated a facility described as the power plant. The director of the plant, Graeme Shelford, testified that the power plant contained a number of shops, which included the engine shop. There was a manager under Mr. Shelford, Bob Krause, who was responsible for the daily management of the plant and the engine shop. There were also supervisors in each of the individual shops, who reported directly to Mr. Krause and at least occasionally to Mr. Shelford. The supervisors in the engine shop during the relevant time were Don Strohmaier, Jerry Jureidin, and Al Hunger. [26] There were a number of work areas within the engine shop. This included the lines where different types of engines were serviced. It took from six to ten days to disassemble an engine, and up to two weeks to reassemble it. The repairs to the engines, modules, and parts were done off the lines. The engines were then reassembled, signed off and tested in the test cell, which was located in a large building on the same lot. There was also a balancing area and Area H, which was known as blade rework. [27] There were crews in each of the work areas, with six or more mechanics in each crew. Up until the fall of 1994, each of these crews had a foreman and an inspector. Mr. Hill's foreman was Kerry Ryan. Although the foremen were more like lead hands, and remained members of the union, they were responsible for assigning the work to individual members of the crew. The role of the inspector was to approve and sign off the crews' work. The foremen and inspectors reported to the supervisors in the engine shop. They did not have the authority to discipline the mechanics. [28] There were three lines in the engine shop, which were dedicated to the CF6-50, CF6-80 and JD-8 engines. Mr. Hill was on one of the three crews assigned to the CF6-80 or Dash-80 line, which worked a rotating shift. Mr. Ryan was the foreman. The crew would work two weeks of days, followed by one week of afternoons. It may be helpful to say that the Dash-80 was the newest and most sophisticated engine in the engine shop. It was therefore considered, by some employees at least, as the most prestigious area in which a mechanic might work. Mr. Kirby stated that any reassignment from the Dash-80 line to the JD-8 line was considered a first stage of punishment. [29] When an engine came into the shop, the planners in the engine shop would prepare a package of bulletins and service orders. The service package would be given to the foremen, who would distribute it to the crews. When the engines were disassembled, the mechanics would examine individual components and parts for abnormalities. This might require changes to the work orders. The supervisors would meet with the foremen in the mornings and give them worksheets listing the engines and the work that needed to be done. The foremen would then assign individual members of the crew to a particular engine. [30] The foremen would also assign specific tasks to individuals, particularly when there was a difficult job that needed immediate attention. Some of the jobs on the line were more technical than others and presented more challenging work. This included the removal and reinstallation of the HPT, the high-pressure turbine; the LPT, the low pressure turbine; and the core of the engine. Some of the less challenging jobs consisted of caulking, reinstalling the fuel lines, and preparing the engine for the test cell. [31] Once a mechanic was assigned to an engine, it was normal for the mechanic to continue work on the engine until the servicing was complete. Mechanics would also be given temporary assignments, however, to deal with shortages in other areas within the shop. If the supervisor needed another person in Area H, for example, he might ask a foreman to assign one of his mechanics to the relevant area. He might also assign a specific mechanic to the area. One of the witnesses, Ray Fletcher, testified that many mechanics would simply pick up the work where the last shift had left it. Mechanics who waited to be assigned to specific tasks would often end up with the jobs that no one else wanted. (iii) Area H [32] A jet engine contains fans, consisting of fan blades mounted on a central spoke, which push the air through the engine. The mechanics in Area H examined the fan blades for damage and irregularities, filed away nicks and scratches, and balanced the blades, so that they were properly balanced. Although the area was clean and well lit when we visited it, there was evidence that this left a fine dust on everything, which must have contained metal shavings and chemical residues. There was also evidence that hazardous chemicals like iodine and acetone were used in the process. [33] There was debate between counsel as to whether the work in Area H was menial work. Mr. Rodominski, who was known for his mechanical skills, described it as very repetitive work and quite boring at times. No one, he testified, really wanted to work there. This was borne out by the fact that the mechanics assigned to Area H did not have to serve a rotating shift. Mr. Shelford acknowledged that this was an incentive, which was necessary to keep the area fully staffed. There were nevertheless advantages to working in Area H, since it was a sit down job with substantial overtime and straight day shifts. As a result, there were senior mechanics who were permanently assigned to the area. Since these mechanics had their choice of holidays, Area H was understaffed during the summer. [34] Counsel for the Respondent stressed the value of the fan blades, which were worth as much as seventeen thousand dollars apiece, in American funds. Another witness, Jay Ghuman, testified that the work on the blades was important work, which required skill and effort. If a blade was not re-contoured properly, a rough surface or hairline crack could cause the blade to fracture and break, with calamitous consequences for those on board the plane. While I accept all of these observations, they do not address Mr. Hill's fundamental complaint, which is merely that the work was extremely tedious. This made it menial. [35] I have no doubt whatsoever that Area H was one of the least attractive assignments in the shop. Mr. Kirby suggested that an assignment to the area could be seen as a form of punishment and it is evident that many mechanics resented working there. I accept that the work in the area was menial and unrewarding. I think that I can take notice of the fact that the filing of metal blades, however expensive, did not excite the passions of the mechanics. [36] Some of the witnesses believed that most if not all of the mechanics in the engine shop had been assigned to work in Area H. Others stated that some of the mechanics had never worked in the area. There was also evidence that the proportion of visible minorities in areas like blade rework was much higher than in other areas in the shop. Mr. Kirby suggested that this was a reflection of the unfairness in the workplace, which led minorities to resign themselves to the less interesting work in the shop. The evidence of Mr. Fletcher, however, was that the members of minorities preferred to work together. The situation is open to a variety of interpretations. (iv) The Test Cell [37] Before an engine left the engine shop, it was necessary to determine whether it met the standards set by the manufacturers and the federal Ministry of Transportation. This was done in the test cell. Individual engines were moved from the engine shop to the cell, where they were harnessed and connected to a housing that permitted the testers to start and run the engine. Once the engine was coupled to the housing, it was run by means of a computer that simulated flight conditions. This was a relatively dramatic task, which was psychologically rewarding, since it determined whether the work on the engine had been successfully completed. One tester would run and observe the engine, while another tester would monitor the information from the computer to determine whether the engine met the required standards. [38] There were three mechanics who were designated as testers on the Dash-80 line. They received special training and were paid fifteen cents more per hour than the other mechanics. When there were no engines to be tested, they worked with the rest of the crew. The mechanics who had been working on an engine would also go with the engine when it went to the test cell. These mechanics would assist the tester in hoisting and connecting the engine to the temporary housing. When the testing was completed, they would help the tester make any necessary repairs, uncouple the harness, and complete the final check of the engine. The yoking and unyoking of the engine constituted the more laborious and less responsible part of the process. C. The Allegation of Discrimination (i) Work Assignments [39] Mr. Hill was well qualified as a mechanic. There is nevertheless no question that his attitude to his work at Canadian left a great deal to be desired. Mr. Hill was firmly convinced that he had talents that were never recognized by his employer. As a result, he seems to have developed the belief that some of the work to which he was assigned was beneath his dignity. This led his superiors to question his abilities and aptitude. This only added to his aversion to the work they were willing to assign him. There is evidence that he had tended to loiter and shirk his responsibilities. [40] Mr. Hill testified that he found the work environment on the 737 line at Canadian overtly racial. He was almost always assigned to the more menial tasks, such as cleaning cables, greasing, and gear fittings. The hostility came to a head when other mechanics said they had gotten rid of all the gooks and the pakis and there was just one more nigger to get rid of. Mr. Hill was the last person to be offered overtime, and was asked to work under the direction of less senior mechanics. Mr. Hill responded by requesting a transfer to the engine shop. [41] The parties at the hearing focussed on Mr. Hill's time in the engine shop. The fundamental allegation is that Mr. Hill's foreman gave him the most menial tasks on the line. Mr. Kirby testified that Mr. Ryan, would assign him to blade rework, viewing, balancing, test cell prep, and the installation of fan blades, all of which was menial work. These jobs included changing filters and harnessing or unharnessing engines in the test cell. Some of this work was dirty work. Mr. Ryan would not assign Mr. Hill to more complex tasks unless there was nobody else around. Mr. Hill also testified that he was assigned to Area H on August 23rd and 24th, 1993. He suggested that these kinds of jobs should have been rotated among the different mechanics in the shop. [42] In a letter of complaints, which was addressed to the Chairman of the union, Mr. Hill described the situation as follows: Recently, I have been discriminated against by the floor management in shop 750. The same management has systematically selected and groomed certain individuals described as glory boys, and they seemed to share a certain kinship amongst themselves. While these individuals are being groomed to further their careers, visible minorities are discouraged and pushed aside. The visible minorities are allocated menial tasks which stifle their drive and determination. They are not given the same opportunities to develop and further their careers. The select personnel are encouraged to stay on the problem solving and technical jobs. Their reward is advancement in the company. They are not assigned any menial tasks and on occasion, they are sent to relieve a visible minority worker who has began [sic] a technical job. It was Mr. Ryan's treatment of Mr. Hill that apparently precipitated the complaint to the union. [43] In his letter to the union chair, Mr. Hill stated that he had been assigned to Area H three times in two months, an allocation of duties that would raise some suspicions. When the Complainant and the Commission submit that Mr. Ryan assigned Mr. Hill to Area H the majority of the time, however, they overstate the evidence. The oral evidence merely establishes that Mr. Hill was assigned to blade rework on three or four occasions while he was on the Dash-80 line. Mr. Ryan did not accept that Mr. Hill was sent to blade rework on a regular basis. On the two occasions where the matter came to a head, Mr. Hill went home sick and did not work his assigned shift. [44] One of these situations occurred on August 23, 1993, when Mr. Hill allegedly arrived late. Mr. Ryan states that Mr. Hill was the last mechanic to report and was therefore assigned to blade rework. This seems to go against the account he gave to Laurie Ferguson and Hunter Rogers, which was that Mr. Hill was the second last person to arrive for work. It is always possible that the Ferguson-Rogers report is mistaken, but I think the more important factor is that the Complainant did not take issue with the fact that he was late. It is true that this may have simply given Mr. Ryan the reason that he needed to assign a particularly troublesome employee to someone else. [45] Rather than go to Area H, as he was directed, Mr. Hill returned home sick, on the basis that he felt too stressed to work that day. When the supervisor was advised of the situation, he told Mr. Ryan to assign Mr. Hill to blade rework on the following day. The following day, when this occurred, Mr. Hill went home sick again and did not return for a week. Mr. Hill was indignant because he arrived early on the second day and suggested that Mr. Ryan was not following his own system in assigning him to blade rework. The last person in, he suggested, should have been sent to blade rework. [46] Mr. Hill's attitude was disingenuous and ignores the larger picture. It is notable that the Complainant and Commission stubbornly ignored the obvious insubordination in his actions. I am of the view that management did not deal with the situation. The matter was not handled properly, since the supervisor and the foreman clearly thought that Mr. Hill was feigning sickness. They should have called him on the issue. In any event, the real issue between the Complainant and his superiors had progressed well beyond the assignment to Area H. [47] The relations between Mr. Hill and Mr. Ryan were strained, to say the least, and Mr. Ryan may have been quick to assign Mr. Hill to Area H. If this was the case, however, it had more to do with the enmity between the two men than with the fact that Mr. Hill was black. The evidence on the substantive issue is minimal at best, and the problems with the Complainant's evidence are sufficient to prevent me from accepting it without more support from other witnesses. [48] The Complainant and Commission have argued that Mr. Ryan monitored Mr. Hill more closely than other employees. I have no doubt that this was the case, at least later in the process, when the two men had become adversaries. There was an allegation, for example, that he would be questioned when he returned from the washroom. If he was shirking his duties, of course, this was entirely justified. I do not accept that Mr. Ryan was malicious or fabricated events. There were limits to his enmity. There is no doubt that in Mr. Ryan's mind, Mr. Hill was an unreliable employee, who was not pulling his weight in the shop. There was evidence from almost all the witnesses that supported this view. Mr. Hill required monitoring. [49] Mr. Hill alleges that he received more than his fair share of unattractive work assignments, both on the line and in the other areas of the shop. He also testified that he repeatedly asked for more technical jobs on the Dash-80 line. He gives examples of this in one of the complaint before me: on December 6, 1993, he states he was assigned to an engine when only the menial jobs remained. On September 6, 1994, while doing technical work, he was reassigned to more menial work. He provided a number of other examples, some of which were clearly refuted by the assignment sheets that were used to keep a record of who worked on specific engines, which were filed as exhibits. [50] The passage of time has made the reconstruction of what occurred all that more difficult, however, the concrete facts that one would expect in substantiating such a charge was missing. Mr. Hill's recollection of what occurred was partial and impressionistic, and many of the circumstances of which he complained were open to interpretation. There is no question that he felt discriminated against, but the evidence presented by the Complainant and Commission consisted more of allegations than facts. The quality of the evidence was poor at best. [51] Mr. Hill also states that Mr. Ryan gave him new service bulletins after he had completed a job and had him re-do the work. Mr. Hill felt that this was done on purpose, to make life difficult to him. There was bad blood between the men at this point in time because Mr. Hill had complained about Mr. Ryan. Mr. Hill also testified that after Mr. Ryan threw the pages on the work podium so violently that he instinctively backed away from him. There was real hostility between the two men by this point in time, and if Mr. Hill was suggesting that Mr. Ryan's conduct was unprovoked, I do not accept his testimony. It is obvious from the evidence that Mr. Hill had his own ways of challenging his immediate superiors. [52] There were other incidents, such as Mr. Hill's exchange with Jeff Reimer, who had been given the responsibility for renewing licenses. Mr. Hill accosted Mr. Reimer on the shop floor, as if he was an underling, who could be imposed upon at will. Mr. Hill's application was already late and rather than apologize or acknowledge his tardiness, he goaded Mr. Reimer into an angry exchange. Although Mr. Reimer may not have conducted himself appropriately for a member of management, the reality is that Mr. Hill's attitude was provocative and high-handed. It is characteristic that Mr. Hill's response to the incident was to formally complain about Mr. Reimer's attitude. [53] There were other incidents. There was an exchange with Jerry Jureidin, one of the supervisors, when Mr. Hill was caught photocopying pages from a manual. Mechanics were expected to work from originals and there are serious policy reasons why this was not permitted. Mr. Hill was also using the photocopier without permission. Rather than apologize, he adopted an indifferent attitude, which must have confirmed the prevailing view that he did not accept the authority of his superiors. This kind of behaviour only exacerbated the situation. I recognize that Mr. Hill found himself in an unpleasant environment, but I am satisfied that his conduct was probably the most significant factor in creating the situation in which he found himself. [54] Mr. Kirby provided the strongest evidence in support of Mr. Hill's allegations. In his testimony, he adopted the statement that he had made to Ms. Ferguson and Mr. Hunter, claiming that anyone entering the shop will be aware of the preferential treatment within five minutes. Mr. Kirby testified that Mr. Ryan would only assign Mr. Hill to the more challenging jobs in the shop when there was no one else available. He also testified that the visible minorities in the shops were concentrated in the areas away from the actual lines, where the less challenging mechanical work was done. Mr. Kirby also stated that the visible minorities tended to be prominent in areas like blade rework, viewing and balancing. The testimony of Mr. Abbing and Mr. Fletcher supported such an observation. Mr. Fletcher suggested that the members of visible minorities wanted to be together, and therefore gravitated towards the same areas in the shop. [55] Although I understand why Mr. Kirby reached the conclusions that he did, there is a speculative element in his views that I cannot adopt. Accusations of discrimination, however sincere, are not enough. It can certainly be inferred, from the comments of many of the witnesses, that there were racial communities within the engine shop. I am not prepared to go further, however, on the basis of accusations. It would be presumptuous to conclude that the distribution of employees in different areas of the shop was a result of overt discrimination. [56] There was discord in the workplace without a doubt, and some of it had a racial signifier. The evidence of witnesses like Mr. Kirby, Mr. Hui and Mr. Panis established that minorities did not feel they had the same opportunities in Canadian as other mechanics. Mr. Kirby and Mr. Hibbert both testified that minorities were simply not in the running for the better positions in the shop. Mr. Hibbert was concerned enough to write a letter of complaint in 1988, raising issues similar to those of Mr. Hill. The complaints before me are personal complaints and the evidence of systemic discrimination is only relevant insofar as it provides a context in which to consider what happened to Mr. Hill. The Complainant and Commission described the more general testimony as similar fact evidence, but Mr. Hill's situation seems to have developed independently of any pattern of discrimination in the shop. (ii) The Application for the Planner III Position [57] While he was assigned to the tire and brake shop, in 1993, Mr. Hill applied for the position of Aircraft Planner III. There was extensive evidence before me regarding the posting of this position, the process of choosing the final applicants, the interview process, the decision-making process and Mr. Hill's response to the decision. The evidence establishes two rather different propositions. The first is that the selection committee assumed that the successful applicant had the proper qualifications for the position. This included an ACA, an Aircraft Certification Authority. It is clear, in retrospect, that he did not have such an authority, or obtain it after receiving the position. This was in clear contravention of the posting. [58] The second proposition is that the committee had good reasons to reject Mr. Hill's application for the position. Although he was more senior than the successful applicant, he was not familiar with the responsibilities of the Planner III position and did not fare well in the interview. I am of the view that the successful applicant should not have been awarded the position, and I suspect that politics was at work, somewhere. I do not accept, however, that this had any effect on Mr. Hill's candidacy. There is no convincing evidence that the committee had racial motives. [59] I heard evidence from two members of the committee. The evidence of Mr. Clement, who was very frail, was problematic. Although Mr. Clement was a sincere witness, with a great deal of managerial experience, he clearly changed his scores in a misguided attempt to accommodate the other members of the committee. This was inappropriate, to say the least. It does not establish, however, that the committee had a discriminatory animus. These problems raise issues under the collective agreement, rather than a question under the law of human rights. [60] I have already stated that I was impressed with the evidence of Scott Hunter, the other committee member who was a forthright witness, with an excellent recollection of the facts. Mr. Hunter was quite willing to acknowledge that the position should not have been awarded to the successful candidate and suggested that the union could have grieved the decision. None of this redeems Mr. Hill's conduct during the interview, which failed to hit the mark. When he was asked why he wanted the position, for example, Mr. Hill went into a relatively long monologue about his aspirations as a novelist. This was unprofessional and clearly out of keeping with the interview process. It probably explains the comments of the third committee member, Ms. Lange, who wrote on her assessment sheet that Mr. Hill was laid back. I think it is stretching the truth to suggest that this comment was racially motivated. [61] The problem with the case for the Complainant is simply that the evidence does not establish that race was a factor in the selection process. The evidence is merely that Mr. Hill, who was a member of a racial minority, did not receive the position. I think it is fair to say that Mr. Hill would have been entitled to a new competition, like the other applicants, but I find very little in the evidence that would suggest he was the best candidate. This is evident in the scoring, even when the problems with Mr. Clement's score sheets are taken into account. I am simply unable to see any injustice in the committee's failure to award him the position. [62] It is characteristic that Mr. Hill complained about the selection process for the Planner III position and spoke to Mr. Clement about the interview process. This merely presented an opportunity for new allegations, which are not worthy of comment. In Mr. Hill's mind, this nevertheless added to his mounting sense of injustice. I think it is fair to say that Mr. Hill felt persecuted by the progress of events. (iii) The Events of October 18, 1994 [63] There is no question that Mr. Hill felt oppressed by his experience in the engine shop. I believe that his failure to obtain the Planner III position was a serious disappointment, which added to the emotional pressure on him. He was also going through some personal difficulties. I have no desire to minimize what he experienced and it was clearly a difficult time for him. In any event, the tensions in the workplace reached their inevitable climax on October 18, 1994, in the supervisors' office. [64] Some of the facts relating to the events of October 18, 1994, are not in dispute. On September 13, 1994, Mr. Cavasin submitted a speedy memo requesting that he exchange shifts with Mr. Hill until November 15, 1994. This was unusual, since Mr. Cavasin usually preferred to work afternoons, and would trade his day shifts with mechanics who wanted to stay on the day shift. His testimony was that his wife was on maternity leave and it was more convenient, in these circumstances, to work days. It appears that mechanics frequently switched shifts and there was nothing out of the ordinary in this request. [65] As a result of the change in shifts, Mr. Hill was assigned to afternoons on October 18, 1994. On the 17th or 18th, however, Mr. Hill stated that the two men agreed to return to their original shifts. I am inclined to believe that this was done at Mr. Hill's request, in spite of his evidence that he was accommodating Mr. Cavasin. Mr. Hill's testimony was nevertheless that he submitted a speedy memo on October 17, 1994, requesting that he return to day shift the following day. The memo requested that the previous memo be withdrawn. [66] I think it is significant, in understanding the psychology of the situation, that the memo required approval. There was some dispute about this, but in the final analysis, management had the right to refuse the request. It is apparent that the process for changing shifts had been abused by the mechanics, who generally wanted to work days, and there were times when three or four mechanics all claimed to have switched their shifts with Mr. Cavasin. There was therefore some sensitivity on this issue. [67] On October 18, 1994, for some reason which no one has adequately explained, both gentlemen arrived at work for the day shift. Although the evidence did not establish who was at fault, I suspect that Mr. Hill had not advised Mr. Cavasin of the memo he had filed on the previous day, or that it had yet to be approved. This is borne out by the fact that Mr. Ryan asked Mr. Hill why he was reporting for the day shift. He explained that he had submitted a speedy memo requesting the change in shifts. [68] Mr. Ryan asked Mr. Hill to speak to Mr. Strohmaier and Mr. Jureidin, both of whom were supervisors. They merely asked him to have Mr. Cavasin sign the memo from the previous day. There appears to have been some confusion as to whether Mr. Cavasin had traded shifts with Mr. Hill or someone else. At the very least, something was out of order. When Mr. Hill took the memo to Mr. Cavasin, the latter signed it and wrote sarcastically why tell me. This seems to support the suggestion that Mr. Cavasin was not completely aware that the shift was being changed. [69] I believe that Mr. Cavasin's explanation of events makes the most sense. He testified that he put a smart ass remark on the first memo to sabotage the memo a bit. He was kind of like giving him the gears a bit, eh and make - you know - there was a lot of tomfoolery. In any event, Mr. Cavasin wanted to force Mr. Hill to fill in another memo and come back for a second signature. Mr. Hill turned the tables on him by taking the memo into the supervisor's office, much to the chagrin of his superiors. [70] When he was told to fill out another memo, and have it properly signed, Mr. Hill went back to Mr. Cavasin, who testified that he didn't believe Mr. Hill had taken the first memo to the supervisors. I cannot help but wonder if Mr. Cavasin was resentful of the fact that Mr. Hill had changed shifts on him. On the second memo, Mr. Hill wrote Ross C. and I would like to mutually transfer our shifts back to normal starting now. When he went back to Mr. Cavasin, Mr. Cavasin signed the memo, but could not refrain from writing another sarcastic comment. This comment was what is normal? [71] It is evident that it took an inordinate amount of time to complete this process. Having seen the shop, it is apparent to me that it should not have taken more than ten minutes to deal with the two memos. The supervisors apparently thought that Mr. Hill was writing the comments, but allowed him to continue on the day shift. During the morning, Mr. Ryan complained to the supervisors that he was not getting much work out of Mr. Hill. There is evidence suggesting that Mr. Cavasin's foreman had also complained. The evidence suggests that there was a certain amount of loitering and bantering between Mr. Hill and Mr. Cavasin, which may have irritated the foremen. At about 12:30 p.m., Mr. Cavasin and Mr. Hill were called to a meeting with Mr. Jureidin, Mr. Strohmaier, and Mr. Abbing, a shop steward. [72] I do not accept Mr. Hill's portrayal of himself as a passive participant in these events. The original memo had obviously not been processed, and since he was requesting the change, he was responsible for setting Mr. Cavasin's signature. It is also obvious that he was a shrewd and insightful employee, who would have known that he was stoking the fires by returning the memos with the sarcastic comments from his confrère. Both men had a reputation for failing to respect authority and any responsible manager would have felt obliged to reacquaint them with the proper protocols. [73] After the issue of changing shifts was resolved, Mr. Jureidin turned to the issue of socializing. When Mr. Cavasin's foreman walked by the office, he was called into the meeting. Under considerable pressure from Mr. Cavasin, he denied that he had complained to the supervisors. The conversation then switched to Mr. Ryan, who was paged and came to the office. This led to a shouting match between Mr. Hill and Mr. Ryan, which escalated out of all proportion. Mr. Cavasin testified that Mr. Ryan: came into the office, and the rest is just a blur, I mean it was ugly. [74] The office in question was extremely confined and one can only imagine what it was like when the shouting match occurred. At some point, Mr. Hill told Mr. Ryan to get his facts straight and walked out of the office, slamming the door behind him. Mr. Cavasin testified that the men were on the verge of blows and suggested that there would have been a fight if Mr. Hill had not left the room. Mr. Hill went immediately to Mr. Shelford's office and discussed the matter with him. Mr. Shelford could see that Mr. Hill was extremely upset and gave him permission to go home. He did not return to work at Canadian. D. The Allegation of Harassment [75] There was a discussion about the nature of racism during the hearing. I would endorse the position put forward by the Complainant and the Commission, who argued that the members of dominant groups in society are often blind to the existence of discrimination and harassment. Counsel referred me to a passage in Naraine v. Ford Motor Co. of Canada (No. 4), (1985) 27 C.H.R.R. 230 (Ont. Bd. of Inq.), at para. 25, where the Board recognized that the members of racial minorities often possess a certain amount of expertise on the subject. This is a product of their long experience with prejudiced and even oppressive members of the majority. I think this is a cautionary principle, which must be kept in mind in considering the testimony of the witnesses in a case based on an allegation of racism, particularly in the instance of harassment. [76] In his complaint of harassment, Mr. Hill gives five examples of racist graffiti that he saw on the bathroom walls. This included the swastika and statements like All niggers must die and I see nothing wrong with niggers, everyone should own one. All of the witnesses agreed that there was graffiti in the washrooms at Canadian. This graffiti included demeaning sexual comments, racist comments and character assassination. The evidence establishes that the sexual graffiti was predominant, though the racial comments formed part of the larger problem. The matter was troubling enough that Mr. Shelford, the Director of the power plant, made a number of efforts to correct it. This included painting the washrooms black, a strategy that was apparently unsuccessful in the long run. White boards were also placed in the washrooms, to try and contain the problem. Although the only real solution seemed to lie in continually repainting the washrooms, the financial constraints on the company prevented the company from doing so very often. [77] Mr. Hill also provided five examples of racist jokes that he heard in the engine shop. The tenor of these jokes is evident in the following examples: "Niggers and Chinks were used to build the railroad because the owners did not want to waste mules bringing nitro-glycerine in." - told by a co-worker, in 1992. "How do you baby-sit little nigger kids? Wet their lips and stick them to the ceiling." - told by Kerry Ryan, my foreman, in spring 1993. George Lenihan told a story about going out with friends and hitting black people with broom handles from the back of a pick-up truck, which he referred to as broom the coon. I am not satisfied that Kerry Ryan told the second joke, though it may have been told by someone, and it is clear, I accept that mechanics tried to outdo each other in telling tasteless and derogatory jokes. [78] The complaint also alleges that Mr. Ryan called Mr. Hill a nig nog on several occasions. Mr. Kirby felt that this was a surreptitious way of calling him a nigger. It was not until Mr. Ryan took the stand that the two meanings of the term emerged. Mr. Ryan stated that he had used the same term with his children, and produced a definition from the Internet, explaining that the term was used in Lancashire to express mild disapproval of someone's action. On this reading, it merely meant a silly person and was not a racial term. [79] I cannot be sure what Mr. Ryan's intentions were, in using the term nig nog, though I have suspicions that Mr. Kirby's view is the right tone. I do not find the suggestion that Mr. Ryan would use the same language in speaking to his children and Mr. Hill completely convincing, particularly in a place where strong language was the order of the day. It is unclear to me why he had to use any epithets at all. I nevertheless accept Mr. Ryan's evidence that he did not use the term after Mr. Hill questioned its use. I do not find Mr. Hill's testimony that Mr. Ryan continued to use the term on just about every occasion [when] he addressed me a credible statement. [80] The most troubling evidence of harassment relates to the time that Mr. Hill spent on the 737 line in the area known as the hangar. Mr. Hill testified that there were jokes about niggers, gooks, pakis and stuff like this, day in and day out. He also testified that there was a constant attempt to denegrate the black race. Gordy White, another mechanic, would always refer to him as nigger. There was little independent evidence of this, and Mr. Hill may or may not have overstated the situation, but I accept that racial language was used. Mr. Cavasin testified that mechanics still refer to each other as wops, polacks and flips. He distinguished between these names and racial slurs, however, and I do not believe that the social environment on the Dash-80 line can be compared to the situation on the 737 line. [81] I regret to say that there was a general lack of respect on the shop floor. One of the problems for Mr. Hill is that there is evidence that he participated in the constant baiting that occurred within the engine shop. This was in keeping with his general resentment of authority. Mr. Ghuman testified, for example, that Mr. Hill used the nickname old set of pissflaps for another mechanic. He apparently used this appellation regularly in the face of the employee, who replied in kind. Mr. Ghuman testified that they looked forward to putting each other down. He also testified that Mr. Hill referred openly to another employee as dumb cunner, another reference to the female anatomy. [82] There is also the Canadian Performance Rating Form, which was entered into evidence. Mr. Hill was evasive and equivocal when he was asked whether he had filled out this form, saying only that the hand writing looked like his. He went on to grudgingly admit that he had completed the form, but in a way that minimized his actions. The form appears to be a mock-up of a personnel record made out in the name of Gordie White. It describes Mr. White's job as dogfucker. Mr. Hill has placed check marks beside entries on the sheet like the following: Does shitty work and constantly fucks up. He works only if kicked in the ass frequently. The stupid bast'd doesn't know shit from shinola. Piss - poor attitude, thinks always being shit on. This is an example of the rough and ready nature of the exchanges that took place on the shop floor on a regular basis. [83] It is significant, in the context of harassment, that Canadian also had a workplace harassment policy. One of the purposes of the harassment policy was to ensure that employees were aware of the seriousness of such conduct. Although there was evidence that the employees were not aware of the policy, my view of the situation is that the culture within the workplace was changing during the time that Mr. Hill was in the engine shop. There is no doubt that Mr. Hill's complaint may have been a factor in this, since the Ferguson-Rogers report, the report from Ms. Knorr, and the directions from Mr. Shelford all contributed to an increasing awareness that racial comments were no longer acceptable. [84] There were other developments which helped to establish this, such as the initial and rather hapless attempts of the employer to determine the distribution of visible minorities throughout the shop. There was also harassment training, at least by the union, and the evidence established that the company subsequently made an attempt to see that members of minorities were given an opportunity to advance. E. The Complainant's Grievances and the Internal Investigations (i) The First Grievance [85] The Complainant filed three grievances under the collective agreement with respect to the matters raised by the two complaints before me. The first was filed on September 1, 1993 under Article 39 of the collective agreement, which dealt with sexual and personal harassment, and raised the issue of grooming. I have already mentioned the letter in which Mr. Hill alleged that some mechanics were groomed for promotion, and others left out, on the basis of race. Mr. Hill stated specifically that the members of minorities were not assigned to work and problem solving in areas which would allow them to develop their skills to meet the criteria for advancement. He accordingly requested that the matter be investigated and that a program be set up to assist minorities and encourage them to apply for more responsible positions. [86] As a result of the Complainant's grievance, a committee consisting of Hunter Rogers and Laurie Ferguson, a management and union representative, investigated the situation in the engine shop. In the course of their investigation, they interviewed Mr. Hill, Mr. Ryan, and a number of mechanics. They subsequently produced a report of their findings, which was completed in October, 1993 and entered as exhibit C-1.13 in the hearing. [87] The report contains three important conclusions. The first was as follows: We believe that harassment has taken place in this area but find that [it] is very hard to associate with a particular individual. The second concerns assignment of work: The allocation and distribution of jobs in the shop is another matter. While there is a perception of unequal distribution of work that could go as far as seeming to select certain individuals for advancement there is inconclusive evidence of this. There does, however, seem to be some lack of sensitivity to the concerns of the employees and there has been no effective clarification of the work allocation system. This remains an issue between the parties. [88] The third conclusion in the Ferguson-Rogers report reflects the lack of morale at Canadian during this period of time: An overall malaise seems to exist within the shop that manifests itself in the unacceptable ways. The workers are late reporting to work, take extended coffee breaks, and are unhappy when assigned to the more mundane tasks. They make jokes and comments that some employees find offensive yet the situation is allowed to continue. People choose to ignore the problem rather than address it. Ignoring a problem does not make it go away, it just poisons the environment in which it festers. The suggestion is that the continuing problems with the company were enough, in themselves, to poison the work environment. [89] At the end of the report, Ms. Ferguson and Mr. Rogers made three recommendations. They were as follows: A fair and equitable system for the allocation of work should be established. Employees should be made aware that the use of derogatory comments or racial slurs in the workplace will not be tolerated. Any such conduct violates company policy and the law. Remind employees in the area of the availability of [the Employee Assistance Program] and the services they can provide during this stressful period in which we find ourselves. The report was forwarded to John Madden, the Director of Employee Support. [90] Mr. Fakirani took issue with the Ferguson-Rogers report. He argued that it was not a thorough investigation, that its conclusions were misleading, and that it failed to deal with the allegations raised by the Complainant. Counsel for the Complainant and Commission have also argued that the report was out of time under the collective agreement. The Respondent was dragging its feet. It is easy to find fault with the details of the report, however, and neglect its substance. On the whole, I believe that the report was a sincere attempt to deal with the substance of Mr. Hill's grievance. [91] Counsel has suggested that the authors of the report did not appreciate the onus that the law places on the employer and that the authors made the mistake of looking for examples of deliberate rather than institutional racism. These are legal issues, however, and neglects the factual nature of the report. Ms. Ferguson and Mr. Rogers appear to have tried to give all of the relevant individuals a reasonable opportunity to present their version of events. As I have already stated, they had the benefit of speaking to these individuals before they had a chance to consider the impact of what they were seeing. I believe that the Ferguson-Rogers report provides a good sense of the situation that prevailed in the engine shop. [92] Whatever the problems with the report, Ms. Ferguson and Mr. Rogers made a somewhat equivocal finding of discrimination. Mr. Fakirani argued that this should have rung the alarm and alerted Canadian to the seriousness of the situation. The argument on the other side is that it did exactly that. Mr. Madden sent Mr. Hill a letter on November 3, 1993, setting out his own recommendations with regard to the implementation of the report. These were as follows: That a fair and equitable system of work and allocation be developed and communicated by Mr. Shelford. That Mr. Shelford make the leaders in the engine shop aware of their responsibilities to ensure a harassment free workplace. That Mr. Shelford make employees aware that the use of derogatory comments or racial slurs will not be tolerated. As the Director, Mr. Shelford had final authority over the entire operations of the engine shop. [93] Mr. Madden's letter was copied to Mr. Shelford, who testified that he complied with the first two recommendations in a number of ways. For one thing, he raised the issue of harassment with the supervisors. He also mentioned the subject at staff meetings and directed that the harassment policy be posted on the bulletin board. The evidence as to whether the employees were aware of the issue was mixed, but there is no reason why some of the witnesses would remember these actions years after the fact. I was impressed with Mr. Shelford's evidence and accept that he addressed the issue with both his supervisors and the employees at large. Mr. Hill disputed the latter contention, but his attendance was such that he could have missed the meetings, and I see no reason to disbelieve Mr. Shelford. [94] The Complainant and Commission argued that any meeting should have been compulsory, but the company was in a desperate financial position and the evidence establishes that there was no problem with attendance, since the employees were anxious for information regarding the company. While he could not have been completely aware of the situation between Mr. Hill and Mr. Ryan, I believe that Mr. Shelford made a conscientious attempt to implement Mr. Madden's recommendations. [95] This left the question whether the system of assigning work in the shop was discriminatory. This is where the complaint of discrimination really lies. The Commission and the Complainant have argued that Mr. Shelford failed to take this question seriously. I do not think this is entirely fair to Mr. Shelford, though I naturally agree that Mr. Shelford, Mr. Strohmaier and other managers did not feel that the system of assigning work was unfair or inequitable. In their view, work would have to be assigned in accordance with the priorities of the day. This would mean that the skills and experience of the various mechanics would have to be taken into account by the relevant supervisor or foreman, who would have to make a subjective call as to who should be assigned to a particular task. Since this practice was in place, they accordingly felt that a fair and equitable method of allocating work was already in place. [96] Mr. Shelford dealt with the recommendation by requesting that the company's employment equity co-ordinator, Marjorie Knorr, investigate the way in which work was distributed within the engine shop. On February 23, 1994, Ms. Knorr accordingly visited the engine shop and reviewed the system of assigning work. As I have already indicated, there is a dispute between the parties as to whether there was a meaningful system in place. I do not feel that much is to be gained by weighing in on the discussion between counsel as to whether the practice followed by the foreman and supervisors in assigning temporary work meets the definition of a system. It may be more helpful to say that it was an informal rather than a formal system, which gave the managerial staff a great deal of latitude in making such assignments. I am nevertheless of the view that there was a system, a loose way of doing things, though it was characterized by improvisation and relied upon the exercise of personal judgment by foremen and supervisors. [97] Ms. Knorr spent an afternoon at the engine shop, at which time she reviewed the system of temporary assignments with the supervisors and foremen. She was apparently taken through the relevant paperwork, and apprised of the general considerations that they employed in assigning work. Her focus was entirely on the system and she did not speak to individual mechanics. I do not accept Mr. Hill's suggestion that Ms. Knorr was a captive of management and it was clear to me that she performed her investigation in a sincere and conscientious manner. Subsequently Ms. Knorr prepared a relatively impromptu report for Mr. Shelford, which was entered as exhibit C-1.20. The report concludes that the system was not discriminatory, though Ms. Knorr acknowledged on the witness stand that it could be abused by individual foremen. [98] Ms. Knorr's report is dated March 10, 1994 and states that the foremen in the shop use a variety of criteria to distribute work in the shop. These criteria include the following factors: · people who were most experienced and productive were assigned to rush jobs; · new or inexperienced people are put with more experienced staff; · less motivated employees are placed with more motivated employees; · when less favourable jobs are to be assigned a variety of ways are used; the crew will determine who's turn it is, a coin will be tossed, or the job is given to the person who arrives last [99] Ms. Knorr concluded that work was assigned primarily on work performance. This was naturally subject of the perceptions of the foremen, whose view of their crew members was essential in determining who was given more technical or demanding work. [100] Ms. Knorr also investigated the process for determining who would receive training. She found no evidence of discrimination and did not feel that there was a reason to investigate the distribution of work and training any further. Her report was sent to Mr. Shelford, who distributed it to the supervisors in the engine shop. The foremen in the shop were alerted to the concerns that led to the writing of the report. Although there were attempts to clarify and improve the system for distributing work, it is understandable that management felt that the report had exonerated them. [101] Counsel have complained that the Knorr report, like the Ferguson-Rogers report, was inadequate. If it did not reveal evidence of discrimination, the argument goes, it was because Ms. Knorr did not investigate the matter thoroughly. This seems to be the response of the Complainant to many of the deficiencies in the evidence and leads nowhere. The truth is that I am left with a choice between the evidence of the Complainant and a growing list of more reliable witnesses. I accept Ms. Knorr's evidence that: the impact of shift changes, crew changes, bumping, types of jobs, the occasions and sick leave, and the variety of priorities lead me to believe that applying discriminatory practices to work assignments would be very difficult. The Commission and Complainant have argued that this only proves that the work was distributed in an arbitrary and therefore discriminatory way, but this seriously overstates her testimony and does not support the Complainant's case. [102] The Complainant and Commission have suggested that there was too much room for flexibility in the existing system, which left it open to foremen and supervisors to abuse their authority. This raises another issue, however, which was not the subject of the systems review carried out by Ms. Knorr. This narrows the scope of the present inquiry. If the system for allocating work was fair, it cannot be the source of the discrimination Mr. Hill is alleged to have suffered, and the issue is whether Mr. Ryan abused his authority. Although there was considerable enmity between the two men, I think the evidence establishes that Mr. Ryan took his managerial responsibilities seriously. There is no convincing evidence that he abused his position. [103] Mr. Hill appealed his grievance to the district lodge of the IAM, which referred the matter to binding arbitration. Vincent Ready was appointed as an Arbitrator and the arbitration was heard on September 15, 1994. Mr. Ready was asked to determine whether the recommendations in the Ferguson-Rogers report had been adequately implemented. There seems to be some suggestion on the part of the Complainant and Commission that the union was not as zealous in prosecuting Mr. Hill's grievance as it might have been. There may be some truth to such an allegation, but this could easily be interpreted as a reflection of the fact that it was not completely convinced of the merits of the case. [104] Mr. Ready issued his award on October 19, 1994, which reviewed the Ferguson-Rogers' report and held that: I have carefully reviewed the evidence and the submissions of the parties. I am satisfied that the recommendations [in the Ferguson-Rogers' report] are an appropriate response to Mr. Hill's complaints. The union could point to no specific company action or omission which would support the claim that it has not effectively implemented the recommendations. To the contrary, I find that both parties have carried out the recommendations to the extent practical and possible. [105] Mr. Ready accepted Ms. Knorr's report on the distribution of work and training, and then went on to deal with the question of harassment. While Mr. Ready did not accept that harassment had been established, he left it open to Mr. Hill or any other employee to raise the problem in the future. Mr. Ready ordered that his award be posted in the engine shop, along with the conclusions and recommendations in the Ferguson-Rogers report, and the company's harassment policy. [106] Although the Ferguson-Rogers report was rather vague, I think there was a genuine attempt to address the issues that Mr. Hill had raised. Some of the vagueness in the company's response was a product of the hesitation in the report, which was tentative at best. It does not contain the kind of explicit finding that would vindicate Mr. Hill's complaint of discrimination and seems more designed to placate the Complainant than anything else. The report suggests, in point of fact, that there is no evidence of explicit discrimination and merely speaks to the insensitivity of the employees in the engine shop. (ii) The Second Grievance [107] Mr. Hill filed the second grievance on July 29, 1994, with respect to his unsuccessful application for the Aircraft Maintenance Planner III position. In this grievance, he requested a meeting with the interviewers. Although the grievance was denied, Mr. Clement and Mr. Hunter eventually met with Mr. Hill. After discussing the interview, and the selection process as a whole, Mr. Hill withdrew his grievance. (iii) The Third Grievance [108] Mr. Hill also filed a third grievance under Article 39 of the collective agreement alleging personal harassment. This grievance arose out of the climactic events of October 18, 1994. Dave Park and Ted Pierre, a union and a management representative, conducted separate investigations into the matter at the end of January 1995. Their findings were combined in a set of joint recommendations. Although Mr. Park and Mr. Pierre expressed sympathy for Mr. Hill, and did not approve of the way in which the meeting was handled, they rejected the allegation of harassment. [109] The company held a meeting with the individuals involved in the events of October 18th on March 10, 1995 to discuss the Park and Pierre report. This was described as a meeting of the whole. Mr. Hill attended the meeting, along with Mr. Shelford, Mr. Strohmaier, Mr. Jureidin, Mr. Ryan, Mr. Lawrence, Mr. Abbing, Mr. Cavasin, Mr. Park, and Mr. Pierre. Mr. Hill was advised that he was welcome to return to the engine shop. Mr. Ryan had been transferred to a plant at Tilbury, where the Dash-80 line was now situated. Mr. Hill advised at the meeting that he would not return to work until the issues between himself and the company had been resolved. He expressed continuing concern with the situation of minorities in the engine shop, took issue with Ms. Knorr's report, and raised questions with respect to the programs available to minorities. [110] Mr. Hill subsequently received two letters from Canadian advising him that his employment would be terminated if the company did not hear from him. His evidence was that Mr. Beaudin at the B.C. Human Rights Coalition responded to these letters on May 17, 1996, informing the company that Mr. Hill wished to return to work but only when the matter was resolved. Mr. Hill's employment with Canadian was eventually terminated by a registered letter dated October 9, 1996, in which the Respondent stated that it had closed his file and was now requesting the repayment of some four thousand dollars in pay and benefits. The Respondent did not acknowledge receipt of Mr. Beaudin's letter. III. ANALYSIS A.Prima Facie Case [111] The present case does not raise complicated legal issues. At the end of the hearing, I nevertheless raised the question whether there was any need to decide whether the Complainant and Commission had established a prima facie case. This calls for further elaboration. [112] The decisions in the area hold that the initial burden in the human rights process lies with the Complainant, who must establish a prima facie case of discrimination. Once a prima facie case is established, it is usually said that the Respondent has the burden of explaining. The traditional source of this formulation is O'Malley v. Simpson Sears, [1985] 2 S.C.R. 536, which dealt with a bona fide occupational requirement. Some of the more recent case law now suggests that the burden then returns to the Complainant, to demonstrate that the explanation provided by the Respondent is a pretext for discriminatory conduct. [113] There are a variety of problems here. The case law seems to have neglected the origins of the prima facie test, which is used to decide whether there is a case to meet. The question is accordingly whether the responding party must lead evidence. This question arises more naturally at the close of the case for the Complainant and Commission than at the end of the case. If the Complainant and Commission have not established a prima facie case at this stage of the process, the Respondent has no reason to explain its conduct and is entitled to a non-suit. There is a related question as to whether the Respondent must decide whether to call evidence before applying for a non-suit. [114] The difficulty arises when the prima facie test is used at the end of the inquiry into a human rights complaint. This may seem feasible, as in O'Malley, when the Respondent has not led evidence. But it seems rather late in the process, if the purpose of the test is to determine whether there is a case to meet. This becomes apparent if the Respondent has called evidence, since it is redundant to ask whether the Respondent has an obligation to call evidence, if it has already done so. [115] There is a discussion of the meaning of a prima facie case in The Law of Evidence in Canada. The authors of this text begin by asserting that the idea is notoriously vague and can mean a number of things. They also make a distinction between an evidentiary and a legal burden of proof, which goes to the difference between raising a legal issue and proving a fact. The whole notion of a burden is somewhat misleading here, however, and I have to say that the discussion in the text only complicates the matter. [116] The dicta in O'Malley does not require that the Complainant and Commission prove the prima facie case in the normal sense of the word. This is in keeping with the practice in the courts, where the issue is merely whether the case should go to the jury and be considered by the court. This is apparent in the original passage from O'Malley, supra, at para. 28, which is quite tentative: A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent. (emphasis added) As I understand it, the Tribunal is not called upon to decide whether it believes the case at this point in time. The issue in deciding whether there is a prima facie case, at least as it is set out in O'Malley, is merely whether the essentials of a case have been made out. [117] On this view, one would have thought that it is still open to the Tribunal to reject the evidence presented by the complaining parties and dismiss the case. I say this because the ordinary test for a prima facie case does not require that the evidence be weighed, at least in the normal run of cases. If the Tribunal simply moves to the Respondent's case, one of the normal steps in the normal process of weighing evidence is lost and the case for the Commission and Complainant is not subjected to an analysis on a balance of probabilities. This is a product of the decision to move the prima facie test from the close of the case for the Complainant and Commission to the end of the hearing. [118] There seem to be two possibilities. One is that this simply moves the burden of proving the case on a balance of probabilities from the complaining to the responding parties. As Justice McIntyre writes, rather starkly, in O'Malley: the Board of Inquiry was in error in fixing the Commission with the burden of proof. (¶28) The other possibility is that the burden shifts: that would mean that prima facie test employed at the end of a human rights inquiry is substantive and requires proof of the Complainant's case on a balance of probabilities. I am not sure that the matter is decided, though the idea of a shifting burden has been a source of concern in the courts. This is because it tends to obscure the ultimate burden of proof in a case, which normally rests with the party bringing the action. [119] I realize that the court in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 states that the burden shifts, but the case does not address the issue explicitly. I am inclined to think that the decision in O'Malley, at least, places the burden of proof in most cases of discrimination on the Respondent. There are reasons for this: it is the employer who is in the best position to prove undue hardship. I nevertheless find myself hesitating before I accept that the Supreme Court intended to alter the burden of proof in a case where this kind of issue does not come before the Tribunal. This takes me to the case before me, where the contest between the parties was remarkably simple. [120] The Complainant and Commission alleged that there was discrimination and harassment. The Respondent demurred. Although the prima facie test has been used in cases where there is an allegation that the Complainant was not awarded a position, this is on the basis that the employer had supervision of the competition and was privy to the decision-making process. This is not a significant consideration in the present case, where the only real issue is whether the Complainant and the Commission have established a credible case. This requires some weighing of the evidence. [121] The question is ultimately whether the burden of proof should be placed on the complaining or the responding parties, and whether the prima facie test should be used in a case where there seems no reason to apply it. In the final analysis, I do not feel that it is possible to go against the usual conventions of proof without more explicit direction from the courts. There is some support for this in O'Malley, again at paragraph 28, where Justice McIntyre says: I agree then with the Board of Inquiry that each case will come down to a question of proof, and therefore there must be a clearly-recognized and clearly-assigned burden of proof in these cases as in all civil proceedings. To whom should it be assigned? Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove. I cannot say whether the original motivation behind the conventional rule was to discourage litigation. This is not the place to deal with justifications, however, and the fundamental rule is too entrenched in the foundations of our legal system to be easily displaced. [122] I realize that this seems to create different burdens in different cases. If there is a simple allegation of discrimination and a simple denial, the burden remains on the Complainant and Commission. If the employer argues undue hardship, on the other hand, the burden seems to fall on the Respondent. I see no alternative, however, but to restrict myself to the case before me. The issue in the immediate case is not whether a prima facie case has been made out, which calls for a response. It is whether the Complainant and the Commission have proven their case. If the burden of proof actually shifts in a human rights case, this would seem to be a case where the evidence led by the Respondent goes to the first rather than the second burden. [123] I think my primary obligation is to clarify what approach I have followed, in assessing the evidence before me. In my view, then, the fundamental probative issue in the case before me is whether the Complainant and Commission have established on all of the evidence that there was discrimination or harassment. As I understand it, the evidence led by the Respondent was led for the purpose of negating such an inference and not for the purpose of proving a separate set of positive assertions. The only question for the Respondent is whether it has led sufficient evidence to offset any preponderance of evidence on the other side. Most of the issues in the case relate to the credibility of ordinary witnesses. [124] In these circumstances, I cannot see what purpose it serves to determine whether the Complainant and Commission have established a prima facie case in the circumstances before me. There is simply no need to go into such an inquiry: the issues between the parties lie in the merits of the case and the prefatory question simply does not pose itself. This does not prevent the Respondent from submitting, at least rhetorically, that the Complainant and Commission did not establish a prima facie case. This neither adds nor detracts from the task before me, however, which is to decide whether the Complainant and Commission have proven discrimination or harassment on a balance of probabilities. B. Discrimination [125] There are two complaints before me. The first alleges a pattern of discrimination against Mr. Hill. This pattern can be found in the assignment of tasks on the Dash-80 line, the allocation of temporary assignments, the decision to award the Planner III position to someone else, and the more general treatment of minorities in the shop. (i) The General Evidence [126] There was a general allegation of discrimination. Mr. Ash submitted that there were golden boys who were given the better job assignments and groomed for promotion. The mechanics who were members of visible minorities were excluded from this process, presumably by reason of race. The Complainant and Commission relied on the evidence of other witnesses, which provided circumstantial evidence of discrimination and harassment in the work place. Counsel referred to this as similar fact evidence. There was testimony from Carl Hibbert, for example, who felt that he had been discriminated against in applying for more senior positions. [127] I am not completely comfortable with the term similar fact evidence in this context, since I am not convinced that Mr. Hill's experiences were all that similar to those of other employees. There is no real evidence that Mr. Ryan, for example, displayed the same hostility to other mechanics that he displayed to Mr. Hill. The power plant was a large workplace and it is dangerous to generalize in this kind of way, at least in the present circumstances. The environment on the 737 line was clearly different than the environment on the Dash-80 line or in areas where minorities prevailed. [128] The case law nevertheless establishes that circumstantial evidence may be helpful in deciding whether there was discrimination. This is a product of the fact that direct evidence of discrimination is often difficult to obtain. In Canada (Canadian Human Rights Commission) v. Chopra, [1998] F.C. No. 432, for example, Justice Richard held that statistical evidence regarding the distribution of minorities in the workplace could provide the basis for an inference that an individual Complainant was discriminated against. (1) Although I heard some evidence regarding the distribution of minorities at Canadian, Ms. Knorr testified that there were no reliable figures available, as the union discouraged employees from completing the relevant forms. [129] The decision in Chopra is still helpful, at para. 22, in establishing the importance of contextual evidence. At para. 22, Justice Richard holds that general evidence of a systemic problem is admissible as circumstantial evidence of discrimination. This goes well beyond on the admission of statistical evidence and encompasses the personal testimony of other employees who may have suffered from the same pattern of discrimination. It follows that general evidence of discrimination in the workplace may be helpful in determining whether there was evidence in a specific case. [130] The problem is that most of this evidence, in the present case, was vague and impressionistic. It consisted for the most part of personal opinions. It was also selective. This was apparent in the evidence of the training that was given to mechanics at Canadian. The training in question appears to have taken place prior to 1992, over ten years ago, and the evidence was sketchy. Although there may have been favouritism in deciding who received this training, it is very hard to judge from this distance whether there is any substance to such allegations. I can understand the suspicions of the Complainant and the Commission, but suspicion is not proof. [131] The Complainant and Commission may understandably feel that Canadian has benefited from its own failure to determine the number of minorities in its workforce. I am nevertheless willing to accept the impressionistic evidence that the representation of minorities in senior positions was notably sparse in the late eighties and early nineties. I am not, however, prepared to infer from this that Mr. Hill was discriminated against in his own attempts to advance in his career. I say this because the evidence as a whole establishes that the problems Mr. Hill encountered were a product of his own making. [132] The Commission has also cited Basi v. Canadian National Railway Co. (1988), 9 C.H.R.R. 5029 (C.H.R.T.) and Holden v. Canadian National Railway (1991), 14 C.H.R.R. 12 (F.C.A.) as authorities for the principle that it is sufficient if race was one of the factors in what occurred to Mr. Hill. I accept this principle but do not find it helpful in the immediate case. In my view, the personality conflict that developed between Mr. Hill and Mr. Ryan was not a product of race, whatever racial views Mr. Ryan might have held. It was a product of Mr. Hill's attitude towards his work, his resentment of authority and his tendency to project his problems on to other people. [133] In the circumstances before me, I am not prepared to extend the experiences of other mechanics to the case of Mr. Hill. As the Tribunal held, in Swan v. Canada (Armed Forces) (1994) 25 C.H.R.R. 312, at para. 30, there must be a nexus between contextual evidence and the case before the Tribunal. I find myself in much the same position as the Tribunal in that case, which held that evidence of allegations by other individuals did not add to the Complainant's case. One must also exercise a certain caution in relying upon circumstantial evidence, particularly in cases where there are other explanations for what occurred. [134] This seems to bring in the rule from Hodge's case in the criminal courts, which holds that an individual cannot be convicted on circumstantial evidence unless the evidence is inconsistent with any other rational explanation. The Complainant and the Commission have provided me with an excerpt from Proving Discrimination in Canada, at p. 141f, where the author takes issue with an Ontario decision and argues that the rule is out of place in a case where the civil standard of proof applies.(2) I would hazard to suggest, however, that the origins of the test have more to do with the inherent fragility of circumstantial evidence than with the burden of proof. [135] I think it is enough in the present case to say that a tribunal should be reluctant to find against a respondent on the basis of circumstantial evidence when there is a reasonable alternative to the theory that the Complainant was discriminated or harassed. The general prejudicial effect of similar fact evidence is well recognized: although the rules of evidence have been relaxed in the context of human rights, the case law holds that such evidence is only admissible when its probative effect outweighs its prejudicial force. See: Mehta v. MacKay (1990), 15 C.H.R.R. 232 (N.S. App.Div.) and Hewstan v. Auchinlek (1997), 29 C.H.R.R. 309 (C.H.R.T.), at p. 313. [136] There is another issue that raises itself in the context of the general evidence of discrimination. Counsel submitted that the systemic issues in the workplace were brought to the company's attention when Mr. Hill filed his initial grievance. This gave rise to a general duty to rectify the situation. Although there were a number of investigations, the Complainant and the Commission took the position that the Respondent failed to treat the matter with the importance it deserved, or pursue it diligently. In the words of Mr. Fakirani, they kept dropping the ball. [137] I agree that the questions of discrimination and harassment were brought to the attention of the employer and raised a duty to investigate and correct any problems in the workplace. I do not agree, however, that the employer failed in its duty of due diligence. I accept that the attempts of the company to deal with these issues may have received less attention than some of the other issues in the workplace. They were nonetheless real and substantive. I accept the conclusions in the Ferguson-Rogers report, the decision of Arbitrator Ready, and Ms. Knorr's brief report on temporary assignments. I also think that the Complainant and Commission have overlooked the sincere attempts of the management to accommodate Mr. Hill after the incident of October 18th, 1994. [138] I should add that the employer has an obligation to provide a workplace free of discrimination and harassment, and this duty of due diligence extended to the larger issues in the workplace. The only complaints before me are the personal complaints of Mr. Hill, however, which originally took the form of grievances. The response to these grievances was by no means perfect: but it was more than sufficient, in my estimation, to satisfy the employer's obligation to deal with them diligently. I do not believe that there is any reason to discuss the principle of vicarious liability, which is not a significant issue in the present case. (ii) The Use of the Term Nig Nog" [139] There is also an allegation that Mr. Ryan used the term nig nog in reference to Mr. Hill. As it turns out, however, the Oxford English Dictionary and the Oxford Dictionary of Modern Slang give two meanings of the term. These meanings support both of the positions put forward by the parties. Mr. Ryan testified that the word is used in Lancashire to describe a foolish person. This appears to be the original use of the term and may be related to the word noggin. The racial use of the term appears to be a corruption of its original use, and refers to newcomers or immigrants who are not of the white race, undoubtedly acquiring some of its impact from its similarity to the word nigger. If Mr. Ryan was looking for an underhanded way of provoking Mr. Hill, he certainly succeeded. [140] I accept Mr. Hill's assertion that he told Mr. Ryan that the term was objectionable. There is no real evidence, however, other than the Complainant's, that Mr. Ryan used the word after it had been brought to his attention. I am prepared to accept Mr. Ryan's evidence that he stopped using the word. Although there is ample room for suspicion, I think it would be overstating the evidence to conclude that Mr. Ryan was using the term as a racial epithet. By all accounts, Mr. Ryan was a cautious man in his dealings with both his superiors and the mechanics on his crew. It would have been out of character for him to use explicit racial slurs, in addressing employees. (iii) Temporary Assignments [141] Then there is the allegation that Mr. Hill was discriminated against in the distribution of temporary assignments. In considering this aspect of the case, I feel obliged to say that it is not my place to decide how the workplace should be managed. That is the prerogative of management. There is no question that the distribution of work assignments within the machine shops was left in the discretion of individual foremen and was not based on a highly developed system. The Respondent argued that this was an inevitable aspect of the exigencies involved in the work done within the shops. There were clearly many situations in which the supervisory staff had to exercise their judgment in deciding the priority and distribution of work. [142] The Complainant and Commission have focused on the process used by Mr. Ryan in assigning mechanics to Area H. Mr. Ryan testified that he was routinely asked to send specific individuals to the blade rework area. I think this was an attempt to deflect responsibility, since there is no doubt that he had considerable input into those decisions. In those cases where he was expected to exercise his own discretion, he would assign those mechanics who were working on less pressing tasks. It was also apparent that he did not have a high regard for Mr. Hill's abilities as a mechanic and felt that the more important jobs were beyond him. [143] The Commission and Complainant have argued that a written record should have been kept of the temporary assignments. In their written argument, they submit as follows: The Commission and the Complainant submit that the system cannot be adequately managed without written procedures and policies as to how to run that system, and written records in order to maintain updated information about the system. An unwritten system of work is of little comfort to employees who have nothing more to rely on them but the goodwill and memories of their supervisors. This type of system is arbitrary, and difficult to track. The Commission and the Complainant submit that such a system would actively hinder any sort of effort at ensuring work is allocated in a fair and equitable manner. I agree that a record should have been kept of the temporary assignments, at least in a case like the present, where the assignments were a source of controversy. [144] I would reject the idea, however, that all of the mechanics should have been assigned to the least desirable areas of the shop on an equal basis. This would undermine the foremen and supervisors, who have a right and indeed a duty to manage the shop in the best way they see fit. A foreman is entitled to keep his best mechanics on the most important or challenging tasks, and deploy less experienced and less capable mechanics in areas like balancing, viewing and blades. The safety of the airline industry enters into this. An employer is entitled to rely on the subjective assessment of a foreman, in determining the best distribution of mechanics in the workplace. It is not the job of the Tribunal to fine-tune these kinds of decisions, which are beyond its expertise. [145] This does not mean that an employer can discriminate against less experienced mechanics, who are entitled to the opportunities that they need to advance in their careers. The different interests must be balanced and the issue is whether there is concrete evidence that a foreman is taking advantage of the situation to favour some mechanics and punish others. A written record may be helpful in deciding this, but it is not determinative. There is no real dispute as to the number of times Mr. Hill was assigned to Area H, and since his situation was unique, I do not believe a list would have made any difference in my determination of the facts. [146] The ephemera of daily life takes on one meaning or the other, depending on the side that one adopts. Many of the mundane events of everyday life take on a sinister aspect, if one is inclined to view them in that manner. Mr. Hill testified, for example, that he was always given the dirty jobs, which required the use of lubricants and other unhealthy products. Mr. Radominski, on the other hand, testified that Mr. Hill did not like to get his hands dirty. As a result, he used the lubricants so sparingly that it was almost impossible to pry apart some of the components he had put together. This presented problems if the job had to be done over. The question that arises is whether Mr. Hill's contention was perception or reality. [147] I am not satisfied on all of the evidence that Mr. Hill was discriminated against in the distribution of temporary assignments. The evidence on this aspect of the case was even more speculative than the rest of the evidence. Many factors entered into these decisions, some of which can be attributed to Mr. Hill. I accept the evidence of a number of witnesses, for example, who suggested that Mr. Hill did not show as much initiative as some of the other mechanics. Rather than take up work, he would wait for assignments. This left him more vulnerable to the mercies of the foreman and more likely to be transferred off the line. [148] Although one of the purposes of the human rights process is to educate employers and employees, our constitution protects the freedom of conscience and it is not my place to regulate the private views of individual persons. I was not convinced by Mr. Ryan's avowal that he had no racial views. The evidence before me nevertheless suggests that he managed to keep them sufficiently to himself to protect the integrity of his decisions regarding the assignment of work. I cannot go beyond that. It is clear to me that Mr. Ryan was conscious of authority and would have known that his superiors were sensitive on the issue of discrimination. [149] The Respondent thought the method of allocating temporary work was well-tailored to meet the demands in the shop. Mr. Shelford felt that he had sincerely looked into the matter, in asking for Ms. Knorr's report, and came to the conclusion that the existing system of assigning jobs was fair and equitable. Mr. Strohmaier took a similar position. I cannot say that these conclusions were unreasonable. The engine shop could not have operated satisfactorily without temporary assignments. It was clear that there were times when the normal methods of assigning work had to be supplemented with a more ad hoc procedure. C. The Planner III Position [150] There is also Mr. Hill's application for the Planner III position. The basic requirements in proving that an employer discriminated against a complainant in awarding a position are set out in Shakes v. Rex Park (1982), 3 C.H.R.R. D/1001 (Ont. Bd. of Inq.), at D/1002: In an employment complaint, the Commission usually establishes a prima facie case by proving (a) that the Complainant was qualified for the particular employment; (b) that the Complainant was not hired; and (c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint (i.e., race, color, etc.) subsequently obtained of the position. If these elements are prove, there is an evidentiary and onus on the Respondent to provide an explanation . . . There is a no point in belabouring these kinds of issues in the present case. I am not satisfied, on the Planner III position, that the Complainant had the necessary qualifications for the position. I accept that he had the qualifications to apply for it: but the evidence of Mr. Clement and Mr. Hunter, in particular, establishes that he was a poor and inexperienced candidate. [151] The matter is complicated by the fact that the person who received the position did so on the basis that he did not appear to have the necessary qualifications. Mr. Hunter acknowledged the problem but it does not follow, in the circumstances of the case, that Mr. Hill was the victim of racial discrimination. The evidence demonstrates otherwise: aside from his lack of knowledge of the Planner III position, I have to say that Mr. Hill's attitude to his work, which surfaced in his interview, would probably have excluded him from more senior positions. I realize that he may see this as the cost of challenging an unresponsive management, but that is a partial view and I can only say that the problems with his general attitude to work were real. D. Harassment [152] There is no need to discuss the law of harassment at length. The Respondent has cited Dhanjal v. Air Canada (1996) 28 C.H.R.R. 367 (CHRT), (1996), aff'd at [1997] F.C.J. No. 1599 (F.C.A.), which holds that harassment must be persistent and frequent. The gravamen of harassment lies in the creation of a hostile work environment, which violates the personal dignity of the complainant. It poisons the workplace, deprives it of neutrality, and humiliates the person who is harassed. A person who harasses a complainant has failed to respect the fundamental dignity of the person. [153] The law establishes that there is a subjective and an objective component in harassment. As a result, as Dhanjal puts it, at para. 210, the seriousness of the impugned conduct must be perceived from the perspective of the victim. At the same time, the Tribunal must adopt the perspective of a reasonable victim. At paragraph 213, the Tribunal holds that: A number of factors may be weighed in assessing the reasonableness of the impugned conduct. In this regard, we share Mr. Pentney's opinion when he states the following, in the work he co-authored with Tarnopolsky, Discrimination and the Law (Toronto, De Boo, 1985 and cumulative supplements), at pp. 8-31 and 8-32: the touchstone in applying this test must be the usual limits of social interaction in the circumstances.... Several factors are relevant in evaluating the limits of reasonable social interaction, including the nature of the conduct at issue, the workplace environment, the pattern or type of prior personal interaction between the parties, and whether an objection or complaint has been made. The present case takes me beyond these issues, since there is no question in my mind that the complainant breached the limits of reasonable interaction. This seems to be the decisive consideration in the immediate case. [154] There was a workplace harassment policy at Canadian. It was reasonably broad and stated that racial slurs and comments that intrude upon a person's or group's dignity would constitute harassment. This does not mean that the employer was obliged to maintain a pristine work environment. It was inevitable, given the antecedents, education and nature of the workforce, that the daily exchange between employees would include comments of a salacious or unduly vigorous nature. The testimony of Mr. Cavasin, even in the rather dignified confines of the courtroom, is a case in point. It was not a tea party. [155] Much has been made of the fact that the harassment policy co-ordinator was never formally appointed. Nor were harassment policy representatives. The employees in the engine shop were unaware that such a position existed and I agree that the harassment policy was never properly implemented. It does not follow, however, that Canadian defaulted on its obligations to prevent harassment in the workplace. I think it is more accurate to say that Canadian was struggling to meet all of its obligations, most of which related to the survival of the company. Ms. Knorr testified that she had played the role of the Policy Co-ordinator and dealt with specific issues when they arose. While the company's conduct was far from perfect, I am satisfied that there was a serious if limited attempt to deal with the racial issues in the workplace. The attempt to deal with Mr. Hill's complaints is a case in point. Whatever the problems within the process, I believe there was a sincere effort to deal with the substance of his complaints. [156] I do not want to go into estimates as to how much of the graffiti in the washrooms was racial in nature. It is enough to say that it was one of the themes that found expression on the walls. There is no evidence that graffiti was a serious problem elsewhere and there is evidence that the management took steps to control it. Not do I see any reason to discuss how often the bathrooms were painted. It is true that Mr. Shelford found himself unable to do this as often as he would like, as a result of budgetary restraints. But the point is that the management tried to deal with the matter. Mr. Shelford also testified that he addressed the issue at a meeting of the employees and discussed it with supervisors and foremen. The actions of the employer were serious and sincere. [157] In any event, the evidence in this regard goes to more systemic issues, where the better complaint seems to lie. Although this provides an important context, which is helpful in examining the origins of Mr. Hill's complaint, I have to say that it does not explain the series of events that finally culminated in the termination of his employment. This goes back to the question of a nexus. The evidence is overwhelming that the problems Mr. Hill experienced were of his own creation. The Respondent has stressed that the Complainant did not complain about the graffiti or the racial slurs until after he left Canadian and was compiling a case against it. I suspect that hindsight played a part in this, but I am not convinced that the Complainant was a particular target of racial improprieties. [158] Almost all of the evidence of personal harassment was provided by the Complainant. Mr. Hill testified that Gordy White, Bill Davidson, Herb Pierce and Mr. Ryan all used racial language or directed racial epithets at him. I do not accept that Mr. Ryan did so: the evidence regarding the other individuals, with the exception of Herb Pierce, was fragmented and unsupported. The only individual that was alleged to use derogatory racial comments towards Mr. Hill on the Dash-80 line was Mr. Pierce and there is no evidence that this was a general pattern among other mechanics. I have stated that it is clear to me that employees became considerably more sensitive to the issue over time. [159] Although I suspect that minorities were not treated with the respect and dignity that they deserve, I believe the problem was more general. The evidence establishes that many of the mechanics were not respectful of other employees. I include Mr. Hill in this. I am also satisfied that the problem was more acute as one goes back in time. There is no question that offensive comments were commonplace on the shop floor. Some of these were of a sexual nature; some of them were racial; and many scatological. It may be naïveté on my part, but I was surprised at the general lack of respect that the mechanics displayed towards each other. It is evident from the testimony of a number of the mechanics that there was a good deal of baiting in the shop. This goes a long way toward explaining some of the more offensive forms of humour in the shop, which openly demeaned others. [160] Some of this may have been inevitable, given the antecedents, education and nature of the workforce. While there was evidence that the machine shops remained productive, there is little doubt that this aspect of the workplace was exacerbated by the prevailing uncertainty with regard to the future of the Airline. Ms. Knorr testified that this placed enormous pressure on everyone in the workplace. This does not excuse inappropriate conduct, but it provides the context in which such conduct must be measured. The decision in Dhami v. Canada (Employment and Immigration Comm.) (1989), 11 C.H.R.R. 253 (CHRT), at paragraph 80, suggests that factors such as the malaise brought about by the pressures of reorganization and integration may be relevant in assessing whether a complainant was a target of racially motivated behaviour. [161] It is manifest that the mechanics peppered their exchanges with whatever seemed offensive, in a rather adolescent attempt to subvert the normal standards of courtesy. There is evidence, for example, that a Chinese mechanic referred to himself as a chink. The idea was apparently to push the limits of civility as far as they would go, in a rather questionable form of sport. Mr. Hill participated in this aspect of the workplace, apparently with some gusto. I realize that the mechanic who was described as a dog-fucker on the rating performance record was one of the persons that allegedly made racial comments. It is also true that there is nothing racial in the comments on the form. These considerations seem beside the point, however, and Mr. Hill cannot conduct himself in this way and expect to come before the Tribunal when others do the same. [162] It is a blunt way of putting it, but the Complainant cannot object to conduct that he seemed to relish. This issue needs to be squarely faced. If Mr. Hill is offended by racial comments, but happy with cutting sexual remarks like piss flaps and dumb cunner, he was merely choosing his forms of disparagement. It is significant that there were women in the workplace. I accept Mr. Ghuman's testimony that Mr. Hill enjoyed using these terms, in the face of the individuals to which he was referring. This is a form of harassment, in itself, and undermines the dignity of the person. The situation before me is different than the situation in Swan v. Canada (Armed Forces), cited supra, where the Complainant acknowledged that he was not offended by some of the racial comments directed at him, which were used in a joking manner. [163] The Tribunal in Swan held that a Complainant's participation in racially offensive behaviour does not necessarily justify the behaviour. I agree that this kind of behaviour is unacceptable and in that sense, no amount of consent, can justify it. A distinction must be made between situations where someone feels compelled to participate in this kind of activity, however, against his inclinations, and a situation where he willingly does so. The obligation to respect the value and dignity of the person is reciprocal, and I think something like a doctrine of clean hands doctrine must apply in the field of human rights, at least in the context of personal complaints. The reputation of the human rights system would be undermined by a policy that rewarded complainants who violate the fundamental rights of other employees. There is a different set of considerations in systemic complaints. [164] The Respondent has submitted that there are some similarities between the present case and Dhanjal v. Air Canada, cited supra, where a personality conflict developed between the Complainant and his supervisor. There was testimony, as here, that the supervisor had real issues with the Complainant's work. The supervisor was described as an authoritarian manager who dealt with the employees underneath him in a high-handed way. I do not know if that is an accurate description of Mr. Ryan, but there is no question in my mind that authority was the real issue in the contest of wills that took place between Mr. Hill and Mr. Ryan. I am not prepared to say that there is no prima facie case before me, as the Tribunal did in Dhanjal. But the evidence from the Complainant is more in the nature of speculation than anything else and is thin by legal standards. [165] The Respondent has also directed me to Baptiste v. Canada (Correctional Service), [2001] (C.H.R.T.), where the Tribunal found itself unable to conclude that the Complainant's supervisor was motivated by race in giving her poor evaluations. There was a personality conflict between the Complainant and the supervisor, who became increasingly frustrated with her over time. There is a point, in these kinds of cases, where the perceptions of an employee become tainted with disaffection and even outright enmity. At that point, an employee feels victimized, and becomes thoroughly convinced that the problem is with the supervisor. In such a situation, it is only natural to project one's difficulties onto other people. [166] I am not questioning the sincerity of Mr. Hill's feelings. Since race was one of the defining features in the engine shop, with negative overtones, it comes as no surprise that it would provide him with a ready explanation for what occurred. This is not a case where I find it helpful to ask whether a reasonable person in Mr. Hill's position would have felt harassed. Mr. Hill's position was unique to himself and I am compelled to say that I do not believe that a person with a more reasonable attitude would have found himself in Mr. Hill's position. There was a certain amount of misfortune in the way that things developed in Mr. Hill's life and the events at work may have become the focus of more general issues. There is nothing I can say to that: but misfortune is not harassment. [167] The Complainant and Commission has suggested the circumstances in the present case bear some similarity to the facts set out in McKinnon v. Ontario (Ministry of Correctional Services)(No.3) (1988), 32 C.H.R.R. 1 (Ont. Bd. of Inq.) and Hinds v. Canada (Employment and Immigration Commission) (1989), 10 C.H.R.R. 5683. I simply do not agree: the problems in the present case can ultimately be traced to the Complainant rather than the employer. Any reasonable manager would have eventually come to the conclusion that Mr. Hill and Mr. Ryan needed to be separated, wherever the blame lay in their conflicting relations. In point of fact, Canadian recognized this at the meeting of the whole that was held to deal with the aftermath of the incident on October 18, 1994 and offered Mr. Hill another assignment. I do not find it reasonable for Mr. Hill to demand that Mr. Ryan be removed from the Dash-80 line. E. The Fundamental Nature of Human Rights [168] It is now recognized, in Canada and elsewhere, that the law of human rights has a fundamental character. I think it is significant, however, that it applies in the civil sphere. The Canadian Human Rights Act does not merely extend to government: it extends to the relationships between private individuals, which were traditionally outside such scrutiny. This naturally takes in the workplace: employees are entitled to a workplace that recognizes their inherent dignity and value, and an employer has a duty to prevent discrimination and harassment. This has been described in the case law as a term or condition of employment. [169] It follows that many of the complaints that come before Human Rights Tribunal arise in the workforce. This is as it should be. The Canadian Human Rights Act nevertheless deals with more fundamental interests and should not be merely seen as another level of appeal or review in the field of labour relations. I recognize that the complaints before me appear to invoke those interests. On closer examination, however, I have to say that the matter before me is primarily a personality conflict between an employee and supervisory staff. It raises serious workplace issues, which belong more in the field of labour relations than human rights. [170] There is some recognition of these concerns in the law of harassment. In Rampersandsingh v. Wignall, T.D. 13/02; 2002/11/26, at para. 45, this Tribunal held that a certain seriousness was necessary to establish the gravamen of harassment. The Member in the case refers to Habachi v. Commission des droits de la personne du Québec, [1999] R.J.Q. 2522, R.E.J.B. 1999-14361, [1999] J.Q. No. 4269 (Q.L.) (C.A.Q.), where the Quebec Court of Appeal held that the legal notion of harassment should not be rendered mundane, or banalisé, in the French, by opening up ordinary workplace disputes to the scrutiny of human rights tribunals. Something more is needed to invoke such fundamental rights. [171] There are similar concerns in the immediate case. A human rights complaint engages public interests that go beyond the private interests of the parties. The irony may be that Mr. Hill laid a more general complaint, which was not before me. I cannot say how that complaint might have been dealt with or whether it would have been substantiated, but it would at least go beyond the private dispute. Nor do I mean to discount the significance of what occurred to the participants. But I do not believe that the personal relations between Mr. Hill and Mr. Ryan raise the kind of fundamental issue that calls for examination in the present forum. The expertise of the Tribunal lies in human rights, rather than in management and labour issues. [172] In the immediate case, the allegation of discrimination really raised itself in the daily distribution of tasks on individual crews. These kind of complaints arise in any workplace and are easily overstated. It is impossible to scrutinize every aspect of the work assigned to individual employees, particularly when the events in question occurred over ten years ago. There is a certain critical mass, if I can put it that way, which is needed to justify a complaint. It was not present in the immediate case. I do not see the kind of public policy issue that one would expect to see in a case before a Human Rights Tribunal. IV. ORDER [173] In the circumstances, the Complainant and the Commission have not established on a balance of probabilities that Mr. Hill was discriminated against or harassed during the relevant period at Canadian. The complaints are therefore dismissed. [174] There is one incidental matter that I would like to mention. At the end of the hearing, I advised the parties that I would endeavour to issue my decision as soon as possible. I would like to express my regret that other matters intervened. "Original signed by" Paul Groarke OTTAWA, Ontario February 18, 2003 CANADIAN HUMAN RIGHTS TRIBUNAL COUNSEL OF RECORD TRIBUNAL FILE NO.: T677/6501 STYLE OF CAUSE: Yul F. Hill v. Air Canada PLACE OF HEARING: Vancouver, British Columbia (May 14-17, 2002; June 3-7, 2002; June 10-14, 2002; August 6-9, 2002; October 7, 8 and 10, 2002; Oct. 15-18, 2002) DECISION OF THE TRIBUNAL DATED: February 18, 2003 APPEARANCES: Cecil F. Ash For the Complainant Salim Fakirani For the Canadian Human Rights Commission Paul Fairweather and Lisa Steiman For the Respondent 1.1 Affd. at [1999] F.C.J. No. 40 (F.C.A.) 2.2 Béatrice Vizkelety, Proving Discrimination in Canada (Carswell: Calgary, 1987)

2004 CHRT 1

CHRT

Coulter v. Purolator Courier Ltd.

en

2004-01-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6508/index.do

2023-12-01

Coulter v. Purolator Courier Ltd. Collection Canadian Human Rights Tribunal Date 2004-01-06 Neutral citation 2004 CHRT 1 File number(s) T768/1803 Decision-maker(s) Doucet, Michel Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ROBERT COULTER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - PUROLATOR COURIER LIMITED Respondent REASONS FOR DECISION ON THE PRELIMINARY OBJECTIONS MEMBER: Michel Doucet 2004 CHRT 1 2004/01/06 [TRANSLATION] I. INQUIRY II. JURISDICTION OF THE TRIBUNAL TO HEAR THE RESPONDENT'S APPLICATION III. EXCLUSIVE JURISDICTION OF THE ARBITRATOR IV. CONCLUSION I. INQUIRY [1] There are two preliminary objections under inquiry by the Tribunal, one raised by the Canadian Human Rights Commission (the Commission) and the other by Purolator Courier Limited (the Respondent), in respect of a complaint filed September 13, 2000, by Robert Coulter (the Complainant). [2] In his complaint, the Complainant alleges that the Respondent discriminated against him by failing to [translation] treat him differently, by refusing to accommodate [him] and by dismissing [him], because of [his] disability, Steinert myopathy, contrary to section 7 of the Canadian Human Rights Act (the Act ). [3] In its preliminary objection, the Respondent argues that the Tribunal does not have jurisdiction to hear the complaint since the issue raised in it is the subject matter of grievances and that the grievance arbitrator is therefore the competent forum to hear and dispose of any alleged contravention. [4] The Commission, for its part, argues that the Tribunal is not the appropriate body to consider the Respondent's preliminary objection and that it falls to the Trial Division of the Federal Court of Canada to conduct the judicial review of the Commission's decision to refer the matter to the Tribunal. [5] I will deal first with the objection raised by the Commission. II. JURISDICTION OF THE TRIBUNAL TO HEAR THE RESPONDENT'S APPLICATION [6] To dispute the Tribunal's jurisdiction to hear the Respondent's application, the Commission relies notably on the ruling of Mr. Justice Gibson in International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster.1 [7] While it has been clearly established in Oster that the Tribunal does not have the power to oversee measures and decisions of the Commission, as only the Trial Division of the Federal Court has this power, I do not believe that Oster supports the Commission's position in the case at bar. [8] According to the Commission, the application submitted by the Respondent is an ex post facto challenge of the Commission's decision to investigate and refer the complaint to the Tribunal. By means of this application, the Respondent is in point of fact challenging the Commission's exercise of its discretionary power conferred by section 41 of the Act, specifically, in this case, by paragraph (1)(a)2 of that section. If this were the case, such a challenge should in fact have been submitted to the Trial Division of the Federal Court as provided for in the Oster ruling. [9] However, the Respondent's application does not constitute an application for judicial review by the Tribunal of the Commission's decision to refer the Complainant's case to the Tribunal. On the contrary, the Respondent is disputing the Tribunal's jurisdiction to hear the complaint, arguing that the issue raised in it is the subject matter of grievances and that the grievance arbitrator is therefore the only forum competent to hear and dispose of it. [10] As Chairperson Mactavish (as she was at the time) pointed out: While the Tribunal may not purport to review Commission decisions, it does not follow from Oster that once a discretionary decision is made by the Commission pursuant to sections 41 or 44 of the Act, the Tribunal is absolutely without jurisdiction to deal with the underlying facts giving rise to that decision. It is instructive to keep in mind the powers of the Commission at the investigatory stage. The Commission is a screening body rather than an adjudicative one, and, unlike the Tribunal, is not empowered to decide general questions of law.3 [11] Pursuant to subsection 50(2) of the Act, in the course of hearing and determining any matter under inquiry, the Tribunal may decide all questions of law or fact necessary to determining the matter. The matter raised by the Respondent in the case in point is a question of law, which the Tribunal may hear and determine. It clearly falls to the Tribunal to determine the limits of its own jurisdiction. Accordingly, I am satisfied that I have jurisdiction to hear the Respondent's application. III. EXCLUSIVE JURISDICTION OF THE ARBITRATOR [12] According to the facts submitted by the Respondent in its application, at the time of the events giving rise to this dispute, the Complainant was a unionized employee, subject to a collective agreement between the Canada Council of Teamsters and the Respondent. It appears that the Complainant has filed at least three grievances disputing the action taken by the Respondent against him. These grievances concern, notably, the alleged refusals of the Respondent to accommodate the Complainant. At the present time, these grievances are still pending. [13] The Respondent maintains that it is aware of the existence of a line of authorities that tend to confer on the Tribunal the jurisdiction necessary to decide on the merits of this dispute. It adds, however, that this line of authorities ought to be revisited in light of the decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 (Parry Sound).4 [14] In Parry Sound, the Supreme Court of Canada had to rule on the application of human rights and other employment-related statutes within the ambit of a collective agreement. Specifically, it had to determine whether grievance arbitrators have the power to enforce the rights and obligations of these statutes. [15] In that case, Ms. O'Brien, a probationary employee, was dismissed by her employer soon after her return from maternity leave. Convinced that she had been discharged without justification in an arbitrary, discriminatory and unfair manner, she immediately reacted by filing a grievance against her former employer. Before the Board of Arbitration established pursuant to the Labour Relations Act,5 the employer claimed that the Board did not have jurisdiction over the subject matter of the grievance since Article 8.06(a) of the collective agreement stated that a probationary employee may be discharged at the sole discretion of and for any reason satisfactory to the Employer and such action by the Employer is not subject to the grievance and arbitration procedures and does not constitute a difference between the parties. [16] Despite the wording of the collective agreement, the Board found that the grievance was arbitrable on the ground that the substantive rights recognized by the Human Rights Code6 were imported into the collective agreement over which the grievance arbitrator had jurisdiction. It was this ruling that was taken to the Supreme Court of Canada. [17] The Supreme Court, in a majority decision, recognized that a grievance arbitrator has the power and responsibility to enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. Thus, the grievance filed by Ms. O'Brien was arbitrable, regardless of the contrary intention expressed by the parties in Article 8.06(a) of the collective agreement. [18] In its written argument, the Respondent essentially goes on at length about the Supreme Court's analysis of section 48 of the Labour Relations Act, 1995,7 notably paragraph 48(12)(j), and its similarities with paragraph 60(1)(a.1) of the Canada Labour Code.8 According to the Respondent, these provisions confer on the grievance arbitrator or the arbitration board, as the case may be, the power to interpret, apply and give relief in accordance with a statute relating to employment matters. [19] It therefore concludes that the ruling in Parry Sound confirms the power given to grievance arbitrators and arbitration boards to interpret and apply human rights statutes such as the Canadian Human Rights Act. In light of this, it then wonders whether it is the grievance arbitrator or the Tribunal that has jurisdiction to resolve the dispute between the Complainant and the Respondent in the case in point. [20] In my opinion, Mr. Justice Iacobucci, writing for the majority of the Court, clearly answers this question in Parry Sound: I also note that the Ontario Human Rights Commission has intervened in this appeal for the purpose of ensuring that its jurisdiction is not ousted because the aggrieved employee is a party to a collective agreement over which the Board has jurisdiction. The Commission submits that if the Court finds that the grievance is arbitrable, the Board and the Commission have concurrent jurisdiction. In my view, it is unnecessary to determine this matter at the present time. Consequently, in concluding that a grievance arbitrator has the power and responsibility to enforce the substantive rights and obligations of the Human Rights Code in this case, I make no holding on whether the jurisdiction of the Human Rights Commission is ousted by that of the Board.9 (My emphasis.) [21] It is therefore my opinion that the decision of the Supreme Court in Parry Sound has in no way altered the line of authorities that has governed this issue until today. I will therefore deal with the Respondent's application by relying on this jurisprudence. [22] In Weber v. Ontario Hydro10 (Weber), the Supreme Court of Canada was asked to determine in what instances a labour statute that makes provision for binding arbitration clauses prevents employers and employees from instituting legal proceedings against each other. Mr. Weber, an Ontario Hydro employee suffering from back problems, had initially filed a grievance against his employer, who he blamed for violating the collective agreement by hiring private investigators to investigate the seriousness of his illness. He had then commenced a court action based on tort and breach of his rights under the Canadian Charter of Rights and Freedoms. [23] In Weber, the Supreme Court determined that when a dispute arises essentially out of a collective agreement, the plaintiff must submit it to the arbitration process. The courts have no power to hear a civil remedy in respect of such a dispute. [24] The application of Weber to proceedings instituted pursuant to the Act has been taken up in a number of subsequent rulings. In Canadian Broadcasting Corporation v. Paul,11 the Trial Division of the Federal Court dealt with a situation in which an employee chose to file a human rights complaint with the Commission rather than file a grievance with her union. The Court ruled that it was appropriate to distinguish from the Weber case since that decision did not address the situation of concurrent jurisdiction given by the legislator to another forum. The Court also analysed the relation between the Canada Labour Code and the Act and determined that giving exclusive jurisdiction to the arbitrator would in effect suspend the discretionary power to deal with a complaint that section 41 of the Act expressly confers on the Commission. The Court therefore ruled that the Commission retains its jurisdiction to deal with discriminatory practices in unionized workplaces. [25] In Canadian Broadcasting Corporation v. Syndicat des Communications de Radio-Canada (FCN-CSN), the Trial Division of the Federal Court of Canada ruled that the amendments to the Canada Labour Code, adopted since the Paul decision, including, notably, the amendment to section 60 of the Code, did not have the effect of depriving the Commission of concurrent jurisdiction. Unfortunately, I cannot concur in the view of the plaintiff, as I feel that if Parliament had intended to exclude the Commission's jurisdiction it would have done so expressly and would have indicated this in its amendment to s. 60 of the Code. In the case at bar, I cannot draw this conclusion as the amendment to s. 60 of the Code makes absolutely no reference to withdrawing the jurisdiction from the Commission. 12 [26] The Federal Court therefore subscribes, in this case, to the conclusion formulated in Paul to the effect that there must be a clear and unequivocal legal provision in order to deprive the Commission of its concurrent jurisdiction under the terms of paragraph 41(1)(a) of the Act. [27] The Trial Division of the Federal Court, in Canada Post Corporation v. Barrette, a case concerning an application for judicial review of the decision of the Canadian Human Rights Commission to investigate complaints of discrimination on the ground of the disability of the complainant, a unionized employee, stated: I do not find these cases [the Weber decision, among others] compelling on the issue before me. While they certainly indicate a judicial concern with avoiding the dangers of overlapping jurisdictions and duplicative litigation, they deal with a possible overlap between the jurisdiction of a court and an administrative agency, whereas this case concerns two administrative agencies. The effect of Weber is not, of course, to preclude a court from determining the Charter issue, but merely to route access to the court through the arbitrator, where the arbitrator's ruling would be reviewed on a standard of correctness. But to apply Weber by analogy to the cases at bar would have the effect of excluding the Commission from ever investigating a complaint that had been decided by an arbitrator, and referring it to a Tribunal for adjudication. Such a result would seem contrary to the statutory scheme, not least because the Commission has investigative powers and an experience in the area of human rights that arbitrators do not possess, as well as a quasi-constitutional statutory mandate to advance the public interest in combatting discrimination.13 [28] The Tribunal has also had occasion to tackle this issue. In Eyerley,14 the complainant was employed in a unionized workplace. He had decided to file a human rights complaint, even though his union had already filed a grievance on his behalf. The Tribunal's finding was the same as in Paul, namely, that it was necessary to distinguish from Weber with regard to human rights complaints filed under the Act. The Tribunal therefore retained its concurrent jurisdiction to hear the complaint. Similar conclusions have been drawn in subsequent rulings of the Tribunal in Quigley, Parisien, Desormeaux, Leonardis and Thompson.15 [29] The Respondent also relies on the decision of the Supreme Court of Canada in Regina Police Association Inc. v. Regina (City) Board of Police Commissioners16 (Regina Police) to argue that the criterion expressed in Weber applies when, in cases where a statute makes provision for two competing regimes, it must be determined which one should govern a dispute. [30] The Regina Police decision concerns the refusal of a chief of police to accept an officer's withdrawal of his resignation. The officer had resigned to avoid being charged with discreditable conduct pursuant to the Municipal Police Discipline Regulations, 1991 and possibly being dismissed under the Police Act, 1990.17 When the chief of police refused to allow the officer to withdraw his resignation, the union filed a grievance. The arbitrator noted that the collective agreement stated that the grievance provisions were not intended to be used in any circumstances where the provisions of the Police Act and its regulations apply. The Police Act and its regulations provide a procedural scheme for both disciplinary action and dismissal for breach of discipline. The arbitrator concluded that the legislature intended that discipline (including dismissal) of a police officer for cause would be governed in accordance with the procedures set out in the Police Act and its regulations, and that the grievance provisions of the collective agreement did not apply. [31] In Regina Police, the Supreme Court of Canada pointed out that the rationale for adopting the exclusive jurisdiction model in Weber was to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body, in a dispute, that was not intended by the legislature. Having decided that the essential character of the dispute between the officer and his employer was disciplinary, the court concluded that the legislature intended that discipline (including dismissal) of a police officer for cause would be dealt with in accordance with the procedures set out in the Police Act and its regulations. Consequently, the arbitrator did not have jurisdiction to hear and decide the matter. [32] In my opinion, it is easy to distinguish the situation in Regina Police from the present situation. The competing legislative regimes in issue in that case had to do, it seems, with matters that were arbitrable or liable to be dealt with in accordance with the disciplinary procedures set out in the statute. It seems that the legislator's intention was to ensure that the two regimes were mutually exclusive: in fact, the contentious collective agreement expressly excluded matters of discipline from its ambit. In the present case, a study of the Act clearly shows that Parliament intended to give the Commission and the Tribunal the power to settle complaints of discrimination in the workplace, the existence of a collective agreement notwithstanding. This intention is revealed in two provisions of the Act. Paragraphs 41(1)(a) and 44(2)(a) of the Act reflect the legislator's intention to ensure that procedures for settling human rights complaints coexist with grievance procedures.18 [33] For the foregoing reasons, the Tribunal therefore finds that the Respondent's arguments relating to its preliminary objection are unfounded. IV. CONCLUSION [34] The Respondent's preliminary objection having been dismissed, the hearing of the complaint will therefore proceed as scheduled from January 12 to 15 and from January 19 to 22, 2004, in Laval, Quebec. Michel Doucet OTTAWA, Ontario January 6, 2004 1[2001] F.C.J. No. 1533. See also Francine Desormeaux and Canadian Human Rights Commission v. Ottawa-Carleton Regional Transit Commission, handed down 19 July 2002 and Alain Parisien and Canadian Human Rights Commission v. Ottawa-Carleton Regional Transit Commission, handed down 15 July 2002. 241(1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that 2 (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available; 3Desormeaux, supra, at para. 13 and 14 and Parisien, supra, at para. 12 and 13. 42003 SCJ 42. 5R.S.O. 1990, c. L.2. 6R.S.O. 1990, c. H.19. 7S.O. 1995, c. 1, Sch. A. 8R.S.C. 1985, c. L-2. 9Parry Sound, supra, para. 15. 10[1995] 2 S.C.R. 929. 11[1999] 2 F.C. 3 (T.D.), overturned for other reasons [2001] F.C.J. No. 542 (F.C.A.). 12 2002 FCT 793, at para. 50. 13 Canada Post Corporation v. Barrette, [1999] 2 F.C. 250 (T.D.), at para. 76, overturned for other reasons 2000] 4 F.C. 145. 14 Eyerley v. Seaspan International Limited (Ruling No. 2), Canadian Human Rights Tribunal, 8 August 2000. 15 Parisien v. Ottawa-Carleton Regional Transit Commission (Ruling No. 1) (15 July 2002), T699/0402 (C.H.R.T.); Desormeaux v. Ottawa-Carleton Regional Transit Commission (Ruling No. 1) (19 July 2002), T701/0602 (C.H.R.T.); Quigley v. Ocean Construction Supplies, [2000] C.H.R.D. No. 46 (C.H.R.T.); Leonardis v. Canada Post Corporation and Kordoban, decision on preliminary issues, (30 July 2002) (C.H.R.T.); Thompson v. Rivtow Marine Ltd (Ruling No. 1), (28 November 2001), (C.H.R.T.). 16 [2000] 1 S.C.R. 360. 17 S.S. 1990-91, c. P-15.01. 18 Eyerley, supra. PARTIES OF RECORD TRIBUNAL FILE: T768/1803 STYLE OF CAUSE: Robert Coulter v. Purolator Courrier Limited DECISION OF THE TRIBUNAL DATED: January 6, 2004 APPEARANCES: Robert Coulter On his own behalf Giacomo Vigna For the Canadian Human Rights Commission Louise Béchamp For the Respondent

2004 CHRT 10

CHRT

Virk v. Bell Canada

en

2004-02-27

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7014/index.do

2023-12-01

Virk v. Bell Canada Collection Canadian Human Rights Tribunal Date 2004-02-27 Neutral citation 2004 CHRT 10 File number(s) T858/10803 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ROGER VIRK Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA (ONTARIO) Respondent RULING ON AMENDMENT OF COMPLAINT MEMBER: Pierre Deschamps 2004 CHRT 10 2004/02/27 I. BACKGROUND II. POSITION OF THE PARTIES III. THE LAW IV. ANALYSIS V. RULING I. BACKGROUND [1] On April 11, 2002, Mr. Roger Virk filed a human rights complaint with the Canadian Human Rights Commission against Bell Canada. In his complaint, Mr. Virk alleges that Bell Canada discriminated against him in the course of his employment on the ground of national or ethnic origin by demoting him, contrary to section 7 of the Canadian Human Rights Act. [2] The Commission referred Mr. Virk's complaint to the Tribunal for an inquiry and decision on September 17, 2003. Mr. Virk now seeks to amend his original complaint to add allegations of retaliation against him by the respondent, pursuant to section 14.1 of the Act. In a letter dated January 13, 2004, the Commission made it known to the Tribunal that it would take no position with respect to Mr. Virk's preliminary issue of retaliation and would not be filing submissions. II. POSITION OF THE PARTIES [3] In his original complaint, Mr. Virk states that he is of South Asian descent, that in or around October of 2001, he was assigned as Acting Manager for a new project, that on November 30, 2001, he was told that he would be demoted from this position and placed in a position of Resource Associate on the same project. Mr. Virk also states that he was told at the time that there would be no more acting managers or new manager assignments in the department and that he would be replaced by someone from another section who was already a manager. Mr. Virk's demotion was to be effective January 1, 2002. According to Mr. Virk, on January 2, 2002, two new acting manager assignments took effect in his department. [4] In his amendment request, Mr. Virk alleges that subsequent to the filing of his complaint, Bell Canada aggressively retaliated against him by advising him that his employment with Bell was being terminated because the latter was putting an end to the Globe and Mail project to which Mr. Virk had been assigned. Mr. Virk alleges that Bell exploited that situation, i.e. the end of the Globe and Mail project, to camouflage its retaliation against him for filing his human rights complaint. Mr. Virk contends that the project was merely suspended and would most likely resume in 2004. [5] For its part, Bell submits that at no time did it retaliate against Mr. Virk for filing a human rights complaint. According to Bell, Mr. Virk's termination of employment, which took effect on January 11, 2004, happened in the context of a reorganization of the department where the group Mr. Virk was working in was eliminated. Bell further alleges that Mr. Virk was well informed of his displacement right but chose not to exercise it. Had he done so, he would have at least extended his employment period, thus allowing him more time to seek alternate employment with the company. [6] In reply to Bell's arguments, Mr. Virk asserts that Bell failed to inform him of the change in status of the job of Resource Associate, thus preventing him from exercising his displacement rights in November 2003. Mr. Virk views the failure by Bell to inform him about this crucial change as another retaliatory measure. III. THE LAW [7] It is now undisputed that this Tribunal has the authority to amend a complaint to add an allegation of retaliation1. As a rule, an amendment should be granted unless it is plain and obvious that the allegations in the amendment sought could not possibly succeed2. In any case, the Tribunal should not embark on a substantive review of the merits of an amendment. That should be done only in the fullness of the evidence after a full hearing3. Thus the test to be applied is whether the allegations of retaliation are by their nature linked, at least by the complainant, to the allegations giving rise to the original complaint and disclose a tenable claim for retaliation4. [8] That said, there is discretion in the Tribunal to amend a complaint to deal with additional allegations. The Tribunal must at all times ensure that sufficient notice is given to the respondent so that it is not prejudiced and can properly defend itself. IV. ANALYSIS [9] After having carefully reviewed the content of the documents filed by Mr. Virk with the Tribunal in support of his amendment request, the Tribunal finds that the allegations made with respect to the issue of retaliation are, on the whole, linked to the original complaint and disclose a tenable claim for retaliation. By this finding, the Tribunal is in no way adjudicating on the merits of the amendment. The veracity of the allegations as to the existence or non existence of retaliation will only be determined at the hearing of the complaint. The respondent will then have full opportunity to make its case against these allegations. [10] Furthermore, the Tribunal is of the view that the respondent is in no way prejudiced by the granting of the amendment request. In the documents filed with the Tribunal, the complainant has clearly identified the facts upon which he relies to assert that the respondent retaliated against him. The Tribunal is thus of the view that the respondent has proper knowledge and adequate notice of the case to be met with respect to the allegations of retaliation and that it can properly defend itself against these allegations. V. RULING [11] For the foregoing reasons, the complainant's request to amend his original complaint to add allegations of retaliation pursuant to section 14.1 of the Act is granted. The Tribunal directs the Commission to help the complainant draft and file his amended complaint. Signed by Pierre Deschamps OTTAWA, Ontario February 27, 2004 PARTIES OF RECORD TRIBUNAL FILE: T858/10803 STYLE OF CAUSE: Roger Virk v. Bell Canada (Ontario) RULING OF THE TRIBUNAL DATED: February 27, 2004 APPEARANCES: Roger Virk On his own behalf Ikram Warsame For the Canadian Human Rights Commission Johanne Cav For the Respondent 1Schnell v. Machiavelli and Associates and John Micka, T594/5220, April 25, 2001, Ruling No. 1; Warman v. Kyburz, 2003 CHRT 6, 2003/02/13; Bressette v. Kettle and Stony Point First Nation Band Council, 2004 CHRT 02, 2004/01/15. 2 Bressette v. Kettle and Stony Point First Nation Band Council, supra, note 1. 3 Ibidem. 4 Schnell v. Machiavelli and Associates and John Micka, supra note 1; Bressette v. Kettle and Stony Point First Nation Band Council, supra note 1.

2004 CHRT 11

CHRT

Laurendeau v. Canadian Broadcasting Corporation

en

2004-03-03

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7015/index.do

2023-12-01

Laurendeau v. Canadian Broadcasting Corporation Collection Canadian Human Rights Tribunal Date 2004-03-03 Neutral citation 2004 CHRT 11 File number(s) T758/3503 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE Francine Laurendeau Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - Canadian Broadcasting Corporation Respondent RULING ON THE RESPONDENT'S REQUEST FOR ADJOURNMENT MEMBER: Michel Doucet 2004 CHRT 11 2004/03/03 (TRANSLATION) I. Facts [1] On January 21, 2004, the Canadian Broadcasting Corporation, the respondent, requested an adjournment of these proceedings until the Federal Court of Canada could render a decision addressing the application for judicial review that the respondent had made opposing a decision on a preliminary objection rendered by the Tribunal on December 9, 2003. [2] The facts in this inquiry are as follows. Francine Laurendeau (the complainant) was employed at the Canadian Broadcasting Corporation (the respondent) starting in 1973, first as a producer and from 1989 as a producer and host of the respondent's Chaîne culturelle. [3] On July 12, 2001, the respondent retired the complainant. This decision was made under a policy in effect with the respondent since 1978 and entitled Human Resource Policy No.10.0, which states: Retirement is based on age and is set as the last working day of the month in which the employee turns 65 years old. [4] In anticipation of being retired, the complainant filed a complaint on June 6, 2001, with the Canadian Human Rights Commission (the Commission) to contest the respondent's decision. In her complaint, she alleged that the respondent acted in a discriminatory manner towards [her] by maintaining a mandatory retirement policy, because of [her] age (65), contrary to sections 7 and 10 of the Canadian Human Rights Act. [5] On February 27, 2003, the Commission asked the Chairperson of the Canadian Human Rights Tribunal to appoint a member to inquire into the complaint because it was satisfied that, under the circumstances, an inquiry was warranted. [6] On April 1, 2003, the Tribunal Registrar informed the parties of their right under section 50(1) of the Act to present evidence and legal representations to the Tribunal to support their position in this case. In accordance with the Tribunal's Interim Rules of Procedure, the Registrar also asked the parties to submit short written statements listing the issues and the evidence that would be submitted to the Tribunal. [7] In her disclosure of evidence filed on August 20, 2003, the complainant stated the issues as follows: Did the CBC commit an age-related discriminatory practice in violation of section 7 of the Canadian Human Rights Act by terminating Ms. Laurendeau's employment solely on the basis that she had reached 65 years of age? Alternatively, and if the Tribunal finds that the CBC's discriminatory practice falls within the exception of paragraph 15(1)(c), is this paragraph of the Canadian Human Rights Act unconstitutional by being contrary to section 15 of the Canadian Charter of Rights and Freedoms? [8] On August 27, 2003, the respondent informed the Canadian Human Rights Tribunal (the Tribunal) that it intended to raise a preliminary objection and argue that the Tribunal does not have jurisdiction to answer the complainant's question on the constitutionality of paragraph 15(1)(c) of the Act. [9] On December 9, 2003, after hearing the parties, the Tribunal issued the decision to dismiss the respondent's preliminary objection. In its decision, the Tribunal indicated that it believes it has the jurisdiction to proceed with the inquiry into all aspects of the case, including the constitutional validity of paragraph 15(1)(c) of the Canadian Human Rights Act with respect to section 15 of the Canadian Charter of Rights and Freedoms. [10] On January 7, 2004, the respondent received from the Federal Court of Canada a notice of application for judicial review of the Tribunal's decision. [11] During a teleconference held on January 21, 2004, the Tribunal, among other things, set the following schedule for the remaining proceedings: complainant's disclosure: no later than February 6, 2004. respondent's disclosure: no later than February 23, 2004. [12] At the respondent's request, the Tribunal agreed to extend the respondent's disclosure deadline to March 26, 2004. [13] Taking the parties' and the Tribunal's availability into account, the hearing dates were set for September 14 to17 and 21 and 22, 2004. II. Request for adjournment [14] The respondent's request sought the adjournment of proceedings in this matter until the Federal Court could deal with the application for judicial review. To be granted an adjournment, the respondent had to demonstrate that its application met the three criteria affirmed in Manitoba (Attorney General) v. Metropolitan Stores Ltd.1 and in RJR-MacDonald Inc. v. Canada (A.G.)2, as follows: First, the respondent must establish that there is a serious question to be tried. Second, the respondent must convince the Tribunal that it would suffer irreparable harm if the remedy were refused. The term irreparable refers to the nature of the harm rather than the extent. Third, which is the balance of convenience, involves determining which party would suffer greater harm from the granting or refusal of the adjournment. [15] In this case, the respondent undeniably met the first criteria regarding the existence of a serious question. [16] However, I am not satisfied that the respondent has met the second criteria regarding irreparable harm. The harm is irreparable if it cannot be remedied or monetarily quantified.3 [17] As the Federal Court of Appeal indicated in Nature Co. v. Sci-Tech Educational4, evidence of irreparable harm must be clear and not speculative. At this juncture, we do not know if the Federal Court will uphold the Tribunal's decision or overturn it. In my view, the evidence before me does not satisfy me that the respondent has met the burden on it of establishing that it would suffer irreparable harm if the adjournment were refused. [18] The respondent's evidence regarding the issue of irreparable harm deals essentially with the costs and efforts that the parties would incur if the adjournment were refused. As such, the Canadian Broadcasting Corporation argued that, in the event that the Federal Court accepts its application for judicial review, all the time and money that it would have spent preparing this case would have been for nothing. To continue, the repondent submitting that it would be contrary to the interests of justice to make the parties incur such expenses before a definitive response is received from the Federal Court. [19] The Tribunal wants to state that even if time and money were wasted if the proceedings went ahead and it were subsequently decided that the Tribunal does not have jurisdiction, it is more a question of inconvenience than irreparable harm.5 The respondent did not refer to any jurisprudence to support its claims that time and money spent preparing a hearing before the Tribunal constitutes irreparable harm. In fact, there is settled jurisprudence indicating the opposite.6 [20] Finally, regarding the balance of convenience, the Tribunal can at this point consider the time and money that the parties would waste preparing the hearing if the adjournment were refused and if the application for judicial review were accepted. The Tribunal must also take the public interest into account, which is best served by the speedy resolution of human rights complaints.7 In this case, the Tribunal is of the view that the public interest takes precedence over the monetary considerations raised by the parties. [21] The request for adjournment is therefore dismissed since the respondent was unable to satisfy the Tribunal that it has met the criteria for irreparable harm and the balance of convenience. The parties are therefore instructed to comply with the schedule established during the teleconference on January 21, 2004. [22] The Tribunal is aware that this request may be premature due to the long delay before the start of the hearing. The Federal Court could very well issue its decision on the application for judicial review by September 2004. However, due to the already long delays in this matter and the parties' difficulty of finding available dates for the hearing, the Tribunal considers it preferable to decide on the adjournment issue right away so that the parties know what is expected and can therefore proceed with preparing their cases. Michel Doucet OTTAWA, Ontario March 3, 2004 1 [1987] 1 S.R.C. 110 2 [1994] 1 S.R.C. 312 3Northwest Territories v. Public Service Alliance of Canada, [2001] F.C.J. No. 19, at para. 16. 4 [1992] F.C.J. No. 266, at para. 20 (F.C.A.). 5ICN Pharmaceuticals, Inc. v. Canada (Patented Medicine Prices Review Board), [1995] F.C.J. No. 1644, at para. 3. 5 5 6Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1997] F.C.J. No. 207, at paras. 39 and 40 (T.D.); Brocklebank v. Canada (Minister of National Defense), [1994] F.C.J. No. 1496, at para. 10 (T.D.); Northwest Territories v. Public Service Alliance of Canada, supra, at para, 19, (F.C.A.). 7 Canadian Telephone Employees' Association et al. v. Bell Canada, T503/2098, March 4, 2002, Canadian Human Rights Tribunal, at para. 21. PARTIES OF RECORD TRIBUNAL FILE: T758/3503 STYLE OF CAUSE: Francine Laurendeau v. Canadian Broadcasting Corporation DECISION OF THE TRIBUNAL DATED: March 3, 2004 APPEARANCES: Mireille Bergeron For the Complainant Philippe Dufresne For the Canadian Human Rights Commission Robert Bonhomme For the Respondent

2004 CHRT 12

CHRT

Charlton v. International Longshoremen's Association, Local 269

en

2004-03-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7022/index.do

2023-12-01

Charlton v. International Longshoremen's Association, Local 269 Collection Canadian Human Rights Tribunal Date 2004-03-05 Neutral citation 2004 CHRT 12 File number(s) T845/9503 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JOHN CHARLTON Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 269 Respondent REQUEST FOR AN ADJOURNMENT MEMBER: Michel Doucet 2004 CHRT 12 2004/03/5 [1] A request for an adjournment of the hearing in this matter was forwarded to the Canadian Human Rights Tribunal on February 27, 2004 by Mr. David A. Mombourquette, the new counsel of the complainant. Unfortunately, for some unexplained reason, this letter was not received by the Tribunal. Following a conference call held on March 2, 2004, a copy of this letter was e-mailed to the Tribunal. [2] The dates for the hearing in this matter were scheduled for March 8 to 12, 2004, in Halifax, Nova Scotia. The parties were informed of these dates on September 29, 2003. On February 19, 2004, the Tribunal appointed a new member to hear this case, and informed the parties that the hearing would now start on March 10, 2004 and that further dates would be agreed upon at that time. [3] In his letter of February 27, 2004, Mr. Mombourquette informed the Tribunal that he had been retained by the complainant with respect to this matter. He indicated that he had been contacted earlier in that week by the complainant's previous counsel, Rebecca Saturley, of Steward McKelvey Stirling Scales, to determine whether he would be in a position to represent the complainant. He added that he was able to speak to the complainant on Thursday, February 26, 2004, and that the complainant then agreed to retain his services. The decision to change counsel at this very late stage in the proceeding was not initiated by the complainant but by his former counsel Ms. Saturley. [4] With respect to the reason for this decision, it would seem that after the respondent's disclosure on February 12, 2004, Ms. Saturley concluded that there was a potential conflict between her representation of the complainant and her firm's longstanding relationship with the Halifax Employers Association. No further details were given as to why this only became apparent at this very late date in the process. [5] Need I repeat that a conflicting interest is one that would be likely to affect the lawyer's judgment or advice on behalf of, or loyalty to a client or prospective client. If a dispute develops in a matter and it cannot be resolved, then obviously the lawyer cannot continue to act for any of the clients and has a duty to withdraw from the matter. A lawyer has a duty not to act for more than one client where it is reasonably obvious that an issue contentious between them may arise or that their interests, rights or obligations will diverge as the matter progresses. [6] It would seem that this is the conclusion to which Ms. Saturley arrived after consulting the respondent's disclosure of February 12, 2004, although the Tribunal fails to see what new information was disclosed which had not been available previously to counsel. The Tribunal also takes serious issue with the lateness of Ms. Saturley's action. According to Mr. Mombourquette's letter he was only contacted in the week of February 23, 2004, to determine whether he would be in a position to represent the complainant, ten days after the reception of the respondent's disclosure. It is clear that this would be a proper case to award costs against the former counsel of the complainant, if such power had been granted to the Tribunal by the Canadian Human Rights Act but unfortunately that power is not mine. [7] I would refer the parties to the Legal Ethics and Professional Conduct Handbook of the Nova Scotia Barristers' Society, which indicates that a lawyer has a duty to a client not to withdraw services except for good cause and upon notice appropriate in the circumstances. Although the client has a right to terminate the lawyer-client relationship at will, the lawyer does not enjoy the same freedom of action. Having accepted a professional employment, the lawyer has a duty to complete the task as ably as possible unless there is justifiable cause for terminating the relationship. The lawyer who withdraws from employment has a duty to minimize expenses and avoid prejudice to the client, doing everything reasonably possible to facilitate the expeditious and orderly transfer of the matter to the successor lawyer. [8] Returning to the matter at hand, Mr. Mombourquette has requested this adjournment in order to better familiarize himself with the matter prior to the hearing. He also says that he is unavailable on the dates set because of a previous engagement before the Nova Scotia Labour Relations Board. During the conference call held on March 2, 2004, to discuss this request, he indicated that there were no other lawyers available in his law firm who could handle this file on the dates set for the hearing. [9] Counsel for the respondent has vigorously opposed this request. In a letter dated March 1, 2004, addressed to the Tribunal, Mr. Ronald A. Pink, raises the issue of the potential conflict of interest of Ms. Saturley and indicates that this conflict of interest is no different now than it was when she started acting for the complainant or when she represented the complainant in mediation before the Tribunal in October of 2003. Although the Tribunal might be inclined to agree with counsel's conclusions on this matter, it remains that the complainant has now retained new counsel and that is the issue that I have to address when considering this request for adjournment. [10] In his letter, Mr. Pink argues that an adjournment this late in the process would be costly to his client; that it would require a complete re-preparation of the file at some later date. He adds that the reason for this is due to the fact that Ms. Saturley has referred her former client to a counsel who does not have the scheduled hearing dates available. [11] While I sympathise with the frustration of the respondent's counsel who are ready to move forward with this matter, I must also take into consideration that the reasons for this unfortunate situation has nothing to do with the complainant. From my understanding of Mr. Mombourquette's letter, the complainant was only made aware of this new development on February 26, 2004. Up until that time, he was under the impression that he was represented by Ms. Saturley and that everything was moving ahead. [12] In these circumstances, I feel that to refuse the adjournment would punish unfairly the complainant who cannot be held responsible for this situation. [13] Though I do so reluctantly, I will grant the request for an adjournment with the following conditions: A. Should the complainant be successful in his claim against the respondent at the hearing, his right to damages, if he is entitled to such damages, will be limited to those incurred up to March 10, 2004, at the most; B. Counsel for the complainant will forthwith provide the Tribunal with dates on which he is available for a 5-day hearing in the month of March, April, May or June 2004. C. On reception of these dates, the Tribunal will consult respondent counsel and set dates for the commencement of the hearing; D. If the complainant's counsel is unable to provide dates when he is available for those months, then the Tribunal, in consultation with respondent's counsel, will set dates and the complainant's counsel will be informed and he or somebody from his firm will make themselves available for those dates; E. Counsel for the complainant will provide before March 12, 2004, a final list of witnesses and a summary of the evidence that these witnesses will be giving at the hearing; F. A copy of this order shall be forwarded to the complainant's previous counsel. Signed by Michel Doucet OTTAWA, Ontario March 5, 2004 PARTIES OF RECORD TRIBUNAL FILE: T845/9503 STYLE OF CAUSE: John Charlton v. International Longshoremen's Association, Local 269 DATE OF CONFERENCE CALL: March 2, 2004 RULING OF THE TRIBUNAL DATED: March 5, 2004 APPEARANCES: David A. Mombourquette For the Complainant Ronald Pink Bettina Quistgaard For the Respondent

2004 CHRT 13

CHRT

Baumbach v. Deer Lake Education Authority

en

2004-04-27

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7025/index.do

2023-12-01

Baumbach v. Deer Lake Education Authority Collection Canadian Human Rights Tribunal Date 2004-04-27 Neutral citation 2004 CHRT 13 File number(s) T860/11003 Decision-maker(s) Sinclair, Pierrette Decision type Ruling Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne TIINA BAUMBACH Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - DEER LAKE EDUCATION AUTHORITY Respondent RULING ON VENUE MEMBER: J. Grant Sinclair 2004 CHRT 13 2004/04/27 [1] The complainant, Tiina Baumbach, filed a complaint against the respondent Deer Lake Education Authority on September 15, 2000. Ms. Baumbach worked as a grade school teacher with the respondent. In her complaint, she alleged that the respondent has discriminated against her by treating her differently and refused to continue to employ her, contrary to s.7 of the Canadian Human Rights Act. [2] The Tribunal has scheduled hearing dates but the parties are not able to agree upon a venue for the hearing. The complainant has requested that the hearing be held in Ottawa. The respondent has asked that the hearing be held in Deer Lake, where the respondent is located and where the alleged discrimination occurred. [3] The complainant suffers from a severe and prolonged disability which causes serious medical problems, the occurrence of which are unpredictable and which can last for very long periods of time. She has great difficulty traveling and the medical specialist who has treated her has recommended that she not travel at all. [4] The complainant has pointed out that Deer Lake does not have the hearing, food, or accommodation facilities necessary to support a tribunal hearing. The respondent does not disagree with this and has suggested that the hearing could be accommodated by flying the parties in and out of Deer Lake every day to Red Lake, a short flight away. As a compromise, the respondent has suggested that the hearing be held either in Winnipeg or in Thunder Bay, two locations with which the members of the respondent are familiar and comfortable. [5] In its submissions, the respondent points out that there will be five members of the respondent board and the education director involved in the hearing. The respondent will incur significant costs to attend a two week hearing in Ottawa. Further, English is not the first language of the respondents and although some members of the respondent are fluent in English and Oji-Cree, others are not. It is likely that an interpreter from the area, who can speak the same dialect as the board members, will be required. The respondent also notes that to require the board members to travel to Ottawa from their remote northern Ontario Community, will impose a hardship on the board members, and particularly those who do not speak English. [6] It is the usual practice of the Tribunal to hold hearings in the place where the discrimination has occurred. However, this is not a hard and fast rule and the Tribunal strives to accommodate the parties where it is appropriate to do so. In this case both parties require accommodation. The accommodation sought by the complainant, holding the hearing in Ottawa does not serve the needs of the respondent. Similarly, the accommodation sought by the respondent to have the hearing either in Thunder Bay or Winnipeg does not accommodate the needs of the complainant. [7] The Tribunal has considered the submissions of both parties. Because in these circumstances it is not possible to accommodate the parties as they have requested, some other solution must be reached. [8] Accordingly, the Tribunal has decided as follows: The evidence of the complainant and any witnesses called on her behalf is to be given at a hearing held at the Tribunal offices in Ottawa. The witnesses will be subject to cross-examination by respondent counsel who will attend in person at the hearing. The proceedings will be transmitted to members of the respondent by way of video conference facilities to be made available in Thunder Bay. Telephones will be available in the videoconferencing rooms in Ottawa and in Thunder Bay so that respondent counsel and members of the respondent can communicate as necessary. The evidence of the respondent and any respondent witnesses will be given at a hearing to be held in Thunder Bay. These witnesses will be subject to cross-examination by complainant counsel who will attend in person at the hearing in Thunder Bay. The complainant will have access to these hearings by way of videoconferencing facilities at the Tribunal offices in Ottawa. Telephones will be provided in both the Tribunal offices in Ottawa and at the videoconferencing facilities in Thunder Bay to provide for communications between the complainant and complainant counsel. Final argument including legal submissions will be done either in writing or by videoconferencing. If by videoconferencing, complainant counsel will attend at the Tribunal offices in Ottawa and respondent counsel at videoconferencing facilities in Thunder Bay. The method for final submissions will be determined by the member hearing the complaint, on submissions from counsel. The costs of the videoconferencing will be borne by the Tribunal. Signed by J. Grant Sinclair OTTAWA, Ontario April 27, 2004 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE: T860/11003 STYLE OF CAUSE: Tiina Baumbach v. Deer Lake Education Authority RULING OF THE TRIBUNAL DATED: April 27, 2004 APPEARANCES: Judith Allen For the Complainant Fiona Keith For the Canadian Human Rights Commission Mike McCarl/Danalyn MacKinnon For the Respondent

2004 CHRT 14

CHRT

Baltruweit v. Canadian Security Intelligence Service

en

2004-04-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7018/index.do

2023-12-01

Baltruweit v. Canadian Security Intelligence Service Collection Canadian Human Rights Tribunal Date 2004-04-29 Neutral citation 2004 CHRT 14 File number(s) T883/0304 Decision-maker(s) Sinclair, Grant, Q.C. Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE WILLIAM J. BALTRUWEIT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN SECURITY INTELLIGENCE SERVICE Respondent REASONS FOR RULING MEMBER: J. Grant Sinclair 2004 CHRT 14 2004/04/29 [1] The complainant in this matter, William Baltruweit, filed a number of complaints in the 1990's with the Canadian Human Rights Commission against the respondent, the Canadian Security Intelligence Service. The relevant complaint for the purposes of this motion is dated November 4, 1998 in which the complainant alleges that CSIS discriminated against him, contrary to s.7 of the Canadian Human Rights Act. [2] The Commission dismissed the complaint. On application for judicial review by the complainant, the Federal Court, Trial Division, allowed the application and referred the matter back to the Commission for redetermination. Both the Commission and the Attorney General have appealed this decision to the Federal Court of Appeal. [3] After reconsideration, the Commission advised CSIS on October 1, 2003, that it had decided to appoint a conciliator to attempt a settlement and failing a settlement within 60 days, the Commission would refer the complaint to the Canadian Human Rights Tribunal. [4] In response, the Attorney General filed a judicial review application, on behalf of CSIS, with the Federal Court on October 30, 2003, challenging the decision of the Commission. The Attorney General did not, in its application, request that the Federal Court stay the Tribunal proceedings pending resolution of the judicial review. The complaint was not settled and on January 6, 2004, the Commission referred the complaint for hearing to the Tribunal. [5] The Attorney General now brings a motion dated February 9, 2004, asking this Tribunal to stay its proceedings until the final determination of its October 30, 2003 judicial review application. [6] The Attorney General argues that the Tribunal should decide the motion using the three-stage test set out in RJR-Macdonald Inc. v. Canada, [1994] 1 S.C.R. 311, 334. It submits that this test has been satisfied in favour of the Attorney General. [7] I do not agree that the RJR- Macdonald test should be applied by the Tribunal in a matter such as this. Rather, in my opinion, this Tribunal should follow the approach in its ruling in Leger v. Canadian National Railways Company, [1999] Ruling No. 1, CHRT File T527/2299, (Nov. 26, 1999) and as elaborated more fully in the present ruling. [8] This conclusion is based on the following analysis. RJR-Macdonald involved an application to the Supreme Court of Canada to stay the implementation of regulations under the Tobacco Products Control Act, pending an appeal from the Quebec Court of Appeal on the constitutionality of that legislation. On the preliminary question of its jurisdiction to deal with the application, the Supreme Court found that it had such jurisdiction under the Supreme Court Act and the Supreme Court Rules. Having so decided, the Supreme Court then posited that, in order to obtain the relief sought, the applicants must satisfy the three-stage test enunciated in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110. In the result, the Court dismissed the applications. [9] In Metropolitan Stores, the Manitoba Food and Commercial Workers Union applied to the Manitoba Labour Board for an order under the Manitoba Labour Relations Act, imposing a first collective agreement on the employer, Metropolitan Stores and the union. Metropolitan Stores brought an originating notice of motion, to the Manitoba Court of Queen's Bench to have the relevant provisions of the Labour Relations Act declared unconstitutional and for an order to stay the Labour Board proceedings until the constitutional question was determined. The motion was denied by the trial court. The decision was appealed to the Manitoba Court of Appeal which granted the stay. The Supreme Court of Canada on appeal, reversed this decision. In doing so, the Supreme Court set out the principles, i.e. the three-stage test, that governs the exercise of discretion by a Superior Court Judge to grant a stay of proceedings. [10] I have referred in some detail to the RJR-Macdonald and Metropolitan Stores cases because, in my view, it is important to appreciate that the three-stage test was used in a situation different than exists here, namely, where a supervisory court is asked to stay the proceedings of a lower court pending an appeal or judicial review application. [11] In both of these cases, the reviewing courts had the statutory authority to stay proceedings. As does the Federal Court, Trial Division. Under s.18.2 of the Federal Court Act, the Federal Court may stay the proceedings of a federal tribunal pending judicial review. [12] There is nothing in the Canadian Human Rights Act that confers the statutory power on the Canadian Human Rights Tribunal to stay its proceedings pending an application for judicial review. Nor, in my opinion, does the statutory regime of the Act suggest that such a power can be inferred. [13] A review of the relevant provisions of the Act suggests the contrary. Equality of opportunity and freedom from discrimination is the declared public policy goal of the Act. (s.2). This is to be achieved through the operations of the Commission which first receives and investigates complaints and may decide to refer the complaint to the Tribunal if it concludes that a hearing is warranted. If the Tribunal makes a finding of discrimination after a full hearing, it has the power to grant a remedy that is remedial not punitive, a remedy fashioned to eliminate the discrimination. [14] The Act requires that proceedings before the Tribunal be conducted informally and expeditiously and also provides that this mandate of the Tribunal is subject to the rules of natural justice (s.48.9 (1)). This last requirement is underscored by s.50(1) of the Act, which requires that all parties to the hearing be given a full and ample opportunity in person or by counsel to present evidence and make representations. [15] It is well established that administrative tribunals are the masters of their own proceedings. As such, they possess significant discretion in deciding requests for adjournments. This principle was discussed in some detail by the Supreme Court of Canada in Prassad v. Minister of Employment and Immigration, [1989] 1. S.C.R. 560. In this case, the appellant sought an adjournment of her immigration inquiry pending a decision on her application to the Minister to permit her to remain in Canada. The adjudicator refused the adjournment. [16] In dealing with her appeal, the Supreme Court stated that administrative tribunals, in the absence of specific statutory rules or regulations, are masters of and control their own proceedings. But when tribunals exercise judicial or quasi-judicial functions, they must comply with the rules of natural justice. [See also Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, (1971), 22 D.L.R. (3d) 40, 50 (Ont. C.A.), Pierre v. Manpower and Immigration, [1978] 2 F.C. 849, 851 (FC.T.D.)] [17] It is clear then that this Tribunal, when exercising its discretion, must do so having regard to principles of natural justice.Some examples of natural justice concerns to which the Tribunal could respond to, would be unavailability of evidence, the need to adjourn to obtain counsel, or late disclosure by an opposite party. [18] In essence, it appears from its submissions on this motion, that the Attorney General is arguing that: the referral by the Commission to the Tribunal is a nullity and thus the Tribunal has no jurisdiction to proceed; if the Tribunal proceeds and the referral is later quashed, any relief granted in the pending court actions will be futile and moot; if the Tribunal proceeds and the referral is later quashed, security risks will have been needlessly taken. This assertion is not based on any proved evidence and in any case, can be dealt by the Tribunal within the hearing under s.52 of the Act; there is an interest in preserving the status quo while court issues are decided; the balance of convenience favours not proceeding so as not to waste judicial resources; the proper administration of the Act by the Commission is a question of public interest which presumably overrides the value of an expeditious Tribunal hearing. [19] I do not see anything in these arguments that speaks to the respondent CSIS's ability to defend itself before the Tribunal. There are no issues raised about its ability to marshall evidence, retain counsel, or otherwise respond to the complainant's allegation. Nor are there any concerns raised about the impartiality of the pending Tribunal process. Ultimately, in these submissions there are no expressed natural justice concerns that would temper the admonition in s.48.9 (1) of the Act for the Tribunal to proceed as expeditiously as possible. [20] In my opinion, the appropriate forum to seek a stay of the Tribunal proceedings is the Federal Court. It is the forum that has carriage of the judicial review application. It has the express statutory authority to grant or deny a stay. In my view, this is not a case for institutional fungibility. [21] Accordingly, and for the reasons expressed in this ruling, the motion of the Attorney General is dismissed. Signed by J. Grant Sinclair OTTAWA, Ontario April 29, 2004 PARTIES OF RECORD TRIBUNAL FILE: T883/0304 STYLE OF CAUSE: William J. Baltruweit v. Canadian Security Intelligence Service RULING OF THE TRIBUNAL DATED: April 29, 2004 APPEARANCES: Paul Champ For the Complainant Fiona Keith For the Canadian Human Rights Commission Monika A. Lozinska For the Respondent

2004 CHRT 15

CHRT

Tremblay v. Canada (Attorney General)

en

2004-05-04

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7020/index.do

2023-12-01

Tremblay v. Canada (Attorney General) Collection Canadian Human Rights Tribunal Date 2004-05-04 Neutral citation 2004 CHRT 15 File number(s) T889/0904, T890/1004, T891/1104 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROIT DE LA PERSONNE MICHEL TREMBLAY Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATTORNEY GENERAL OF CANADA (REPRESENTING THE PUBLIC SERVICE COMMISSION, THE TREASURY BOARD OF CANADA, AND THE TRANSPORTATION SAFETY BOARD OF CANADA) Respondent RULING ON EXPERT EVIDENCE MEMBER: Athanasios D. Hadjis 2004 CHRT 15 2004/05/04 [1] The Complainant alleges in his complaints that the Respondents discriminated against him due to his disability (multiple sclerosis and epilepsy). He wishes to call his physician as an expert witness at the hearing. He submits that it is in the public interest, as well as his own, to have the physician testify. The physician has requested a fee for the preparation of his expert's report ($600) and for his testimony ($200/hour). The Complainant is currently unemployed and is in receipt of social assistance under the Ontario Disability Support Program. He claims, therefore, that he cannot afford to pay the physician the fees requested, and that, as a result, he is unable to have his expert testify. [2] The complaints were referred to the Tribunal by the Canadian Human Rights Commission on January 6, 2004. The Commission noted at that time that pursuant to s. 49 of the Canadian Human Rights Act, it was satisfied that, having regard to all the circumstances of the complaints, an inquiry is warranted. However, in a letter dated February 5, 2004, the Canadian Human Rights Commission informed the parties and the Tribunal that it would not be participating in the hearing involving these complaints, leaving the Complainant to lead his case on his own, without the assistance of any legal counsel. The Commission has made it known that it will not pay the costs relating to the physician's expert testimony. [3] The Complainant has consequently made a motion in which he seeks an order from the Tribunal calling the physician to testify as its expert witness. Presumably, the Tribunal would pay his fees. Commission Counsel suggested during a recent case conference that the Tribunal may possess the authority to call an expert as a witness of its own accord. The Commission provided the Tribunal with copies of several judgments relating to this issue. The Respondents, in turn, argued that the Tribunal cannot call a witness whom the parties themselves do not intend to call, nor can it retain an expert whose evidence will assuredly assist the case of only one of the parties. [4] I have reviewed the authorities submitted and have concluded that the Respondents' position is well-founded. As is noted in Sopinka's The Law of Evidence in Canada, [J. Sopinka, S.N. Lederman, A.W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at 901] in civil cases, a trial judge does not have the power to call a witness who has not been previously examined. In criminal trials, there is a limited discretion to call a witness not called by the parties and without their consent. This is justified because the liberty of the accused is at stake and the object of the proceedings is to see that justice be done. This discretion must, however, be exercised infrequently and with great care so as not to prejudice the accused or usurp the role of counsel. [5] Commission counsel remarked that owing to the quasi-constitutional nature of human rights law, it could be argued that the principles relating to criminal law could be extended by analogy to the Tribunal process. However, even if this were the case, the facts surrounding the present complaints do not warrant the exercise of such discretion by the Tribunal. Without minimizing in any way the importance of the allegations made by the Complainant in his complaints, I cannot agree that one's physical liberty is at stake in the present case, in a manner akin to a criminal proceeding. [6] Furthermore, one finds that in most of the cases in which such a discretion has been exercised by a court, the judge has called witnesses whom none of the parties intended to call themselves. In the present case, the Complainant actually wants his physician to testify, but is faced with the obstacle of having to pay the witness's expenses. Undoubtedly, for a person of the Complainant's modest financial means, the fees requested are very significant. However, the Complainant has the option of seeking reimbursement of these costs from the Respondents, as expenses arising from the discriminatory practice (s. 53(2) d) of the Act). This compensation would, of course, be conditional on the Tribunal's finding that the complaints are substantiated and that the Complainant is entitled to this remedy. The Complainant informed the Tribunal during the case conference that he was not prepared to assume the risk of not being eventually reimbursed. [7] In addition, even if one were to conclude that a human rights tribunal, as master of its own procedure, has the power to appoint its own witnesses, to in fact do so in the manner being proposed would serve to assist the case of only one of the parties, the Complainant. This would result in an unacceptable level of unfairness for the other parties. Although it is evident that the Complainant, as a disabled person of modest financial means, is facing serious difficulties in attempting to lead his own case without legal counsel, the fact remains that the Tribunal process must remain neutral and essentially adversarial. The Tribunal cannot allow itself to be drawn into the legal dispute and assist but one of the parties in making his case, merely because the Commission has decided to no longer participate. Unfortunately, this may result in important evidence failing to be introduced, thereby rendering the inquiry into the human rights complaint incomplete. So be it. The Tribunal will not under any circumstances permit its process to be rendered unfair. [8] During the case conference, there was some discussion surrounding s. 48.8 (2) of the Act, which states that the Chairperson of the Tribunal may engage persons having technical or special knowledge to assist or advise Tribunal members in any matter. It is my understanding that the Chairperson of the Tribunal has not exercised the power set out in this section of the Act to this date. I imagine that this provision could find some application in cases where highly technical and perhaps confusing evidence is introduced by the parties' expert witnesses. In such cases, s. 48.8 (2) provides the Tribunal with the option to engage other experts and seek further elucidation. This is not, however, the situation in which the Tribunal finds itself in this instance. [9] For all the above reasons, I will not be issuing an order calling the Complainant's physician to testify as the Tribunal's expert witness. The Complainant is always free to call his physician as his own witness. If the witness is to testify as an expert, the Complainant must comply with the Tribunal's Rules of Procedure regarding the testimony of experts. A subpoena will be issued by the Tribunal to summon the attendance of this witness at the hearing, if so requested by the Complainant. Signed by Athanasios D. Hadjis OTTAWA (Ontario) May 4, 2004 PARTIES OF RECORD TRIBUNAL FILES: T889/0904, T890/1004, T891/1104 STYLE OF CAUSE: Michel Tremblay v. Attorney General of Canada (Representing the Public Service Commission, the Treasury Board of Canada, and the Transportation Safety Board of Canada) RULING OF THE TRIBUNAL DATED: May 4, 2004 APPEARANCES: Michel Tremblay On his own behalf Giacomo Vigna For the Canadian Human Rights Commission Richard Casanova For the Respondents

2004 CHRT 16

CHRT

Bergeron v. Télébec Limitée and Alain Rivard

en

2004-05-21

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7034/index.do

2023-12-01

Bergeron v. Télébec Limitée and Alain Rivard Collection Canadian Human Rights Tribunal Date 2004-05-21 Neutral citation 2004 CHRT 16 File number(s) T741/4602, T742/4702 Decision-maker(s) Doyon, Roger Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE PIERRE BERGERON Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TÉLÉBEC LIMITÉE and - ALAIN RIVARD Respondents DECISION MEMBER: Roger Doyon 2004 CHRT 16 2004/05/21 [TRANSLATION] I. INTRODUCTION II. EVIDENCE A. Complainant's evidence (i) Pierre Bergeron B. Respondents' evidence (i) Serge Faubert (ii) Claude Mayrand (iii) Alain Rivard (iv) Lyne Doroftei (v) Dr. Jean-Joseph Condé (vi) Josée Ferron (vii) Richard Leblanc III. THE ACT IV. BURDEN OF PROOF V. ANALYSIS A. Was the Complainant adversely differentiated against in the course of employment because of a disability (depression)? (i) Layoff on December 6, 1995 (ii) Layoff on January 24, 1997 (iii) Layoffs in 1997 (iv) Layoff on December 24, 1997 B. Was the Complainant harassed by the Respondents in the course of employment because of his disability (depression)? VI. CONCLUSION I. INTRODUCTION [1] On October 10, 2000, Pierre Bergeron filed a complaint with the Canadian Human Rights Commission (the Commission) against his employer, Télébec Limitée (Télébec). He alleged that his employer discriminated against him by treating him in an adverse manner in the course of employment and by refusing to provide him with a harassment-free work environment because of his disability (depression), contrary to sections 7 and 14 of the Canadian Human Rights Act (the Act). [2] Pierre Bergeron also filed a complaint on October 10, 2000 with the Commission, in which he alleged that Alain Rivard, a Télébec employee, discriminated against him by harassing him in the course of his employment due to his disability (depression), contrary to section 14 of the Act. [3] At the start of the hearing, the Commission announced that the facts giving rise to the complaints warranted an inquiry by the Canadian Human Rights Tribunal. It stated that its role at the hearing was limited to an opening statement in which it recalled the principles that must guide the Tribunal in all human rights matters, particularly regarding discrimination. II. EVIDENCE A. Complainant's evidence (i) Pierre Bergeron [4] Pierre Bergeron was hired by Télébec as an installer/repairman on May 7, 1987. He had a college diploma in social science and a college diploma in electronics. It was a temporary position in the Rouyn-Noranda area. After three (3) months of working with a more experienced employee as his mentor, he was transferred to Ville-Marie where he performed his duties alone. In April 1988, he obtained a permanent installer/repairman position in La Sarre. [5] In 1990, the Complainant applied for a splicer position in La Sarre and obtained the position on April 23, 1990. On November 20, 1995, he was informed that he would be laid off as of December 6, 1995 with recall rights for a period of 24 months. [6] A collective agreement governs the labour relations of Télébec employees. The witness acknowledged that his seniority did not allow him to keep his job in his splicer job category, but did permit him to bump another employee in the installer/repairman job category because he met the requirements of the position that he had previously held for three years. The Respondent did not allow him to exercise his bumping right. He filed a grievance on December 6, 1995, which was referred for arbitration on April 25, 1996 and the Teamsters Union withdrew the grievance on April 30, 1997. [7] Pierre Bergeron claimed that, had he been able to exercise his bumping right, he would have continued to have stable employment, but that the refusal left him feeling insecure, which was the cause of his depression in August 1996. [8] During a meeting with the grievance committee in March 1996, he learned, without knowing the specific source of the information, that employees on the callback list were never hired back. However, he was called back to work as of March 26, 1996 as a lineman in Sainte-Rose on the Lac Abitibi project for a period of approximately two and one half months. His working conditions were not those provided for in the collective agreement in force at the time of his layoff in December 1995. For example, travel time was no longer paid and the meal allowance had been eliminated. [9] On May 15, 1996, the Complainant was informed of his layoff effective May 31, 1996 with recall rights for 24 months. However, on May 27, 1996, Pierre Bergeron was informed that his layoff was postponed to a later date. From June 3 to 21, 1996, the Complainant obtained a temporary promotion as a splicer. On June 12, 1996, the Complainant was again informed of his layoff effective July 12, 1996, which was postponed to August 2, 1996. [10] The witness stated that, around July 19, 1996, Claude Mayrand offered him a permanent installer/repairman position in Val d'Or starting August 6, 1996. Pierre Bergeron had submitted a transfer request on May 15, 1996 as an installer/repairman in Val-d'Or when two installer/repairman positions (Exhibit I-14) in Val-d'Or were posted; he accepted the position. His acceptance ended his temporary promotion. It was a demotion that suited him because of the permanent nature of the position. At the end of the posting period, the Complainant learned that the Respondent had not selected any of the applications it received. As a result, when he was offered this installer/repairman position, it was not, in his view, the position he had applied for. He understood instead that the offer was the employer's acknowledging his bumping right he had asserted through the grievance he filed after he his layoff on December 6, 1995. However, he had not withdrawn this grievance because he suspected his employer of setting a trap for him. In his view, Télébec believed that he would not be able to perform the duties of an installer/repairman and that he would quit his job. He claimed that subsequent events showed that his concerns were valid. [11] On Tuesday, August 6, 1996, he reported in to Claude Mayrand, his immediate supervisor in Val-d'Or. The latter appeared not to have been informed of his arrival and he had no vehicle or tools to provide him with for performing his work. The Complainant went to the depot to collect his tools. [12] The next day, a vehicle was made available to him and he put his tools in it to work with a colleague. At the end of the day, since he did not have enough tools to do the job satisfactorily, he suggested to his immediate supervisor that he take Thursday and Friday off and return to work the following Monday with a vehicle having the right equipment and that was used by a student whose job would be over at the end of the week. His immediate supervisor accepted his suggestion. The Complainant stated that, over the weekend, specifically August 10, 1996, he became depressed and attempted suicide. [13] He consulted his attending physician, Dr. Guy Perrier, on August 12, 1996, who diagnosed him with major depression; the physician recommended hospitalization, but he refused. His physician referred him to a psychologist and scheduled a return to full-time work on September 16, 1996. He saw his physician again on October 1, 1996, and he extended his absence from work until November 4, 1996; he met with his physician again on October 30, 1996 and the latter scheduled a return to part-time work, with no restrictions, on December 2, 1996. [14] During the week of August 12, 1996, Claude Mayrand went to his residence to give him medical form BC1935, which he was to have his attending physician fill out and return to his employer. Pierre Bergeron claimed that the visit was only an excuse to ensure that he was indeed sick. In addition, during his convalescence, which ended on December 2, 1996, he noticed that Claude Mayrand drove slowly by his residence in his vehicle several times. Pierre Bergeron believed that his immediate supervisor was checking up on him to see if he was at home, and he felt harassed. [15] During the same convalescence period, since he had obtained a permanent installer/repairman position in Val-d'Or, the Complainant, who was living in La Sarre, took steps to find a place to live closer to his place of work. He signed a purchase offer for a house in Val Senneville on November 4, 1996. [16] On November 26, 1996, the Complainant met with Dr. Jean-Joseph Condé, a Télébec physician, with whom he arranged a gradual return to work, with no restrictions, at a rate of two consecutive days for the week of December 2, 1996, three days a week as of December 9, 1996 and full time as of January 3, 1997. He went into work on December 2, 1996. He stated that he felt exhausted after those two days of work. He had the chance to meet with Claude Mayrand and Alain Rivard. In the Complainant's view, that meeting was intended to put a great deal of pressure on him to get him to quit his job. Alain Rivard reportedly said to him, You would be better off quitting than staying here. [17] On December 9, 1996, in Dr. Condé's absence, he met with the nurse in the physician's office to explain that he had had difficulty doing two consecutive days of work the previous week. He arranged with the nurse to work two consecutive days that week instead of the three previously arranged. [18] During that work period, Claude Mayrand and Alain Rivard, his immediate supervisors, took him to a room to criticize him for his work performance and unwarranted absences. He stated that he started to cry because of the criticism directed at him. [19] During the week of December 16, 1996, Pierre Bergeron worked on December 16, 18 and 20. On Monday, December 16, 1996, Alain Rivard informed him that, in the next few days, he was planning to install a business telephone system that had three telephone lines with the potential of eight telephones. The Complainant asked Alain Rivard for training prior to installing the telephone system, particularly for programming it. Alain Rivard denied his training request and told him that he was given the installer/repairman position because he supposedly knew what to do. Throughout that day, he did wiring work at Val-d'Or Performance. He stated that he does not recall submitting a request to Claude Mayrand, during the week of December 16, 1996, for taking December 23, and 24, 1996 off. [20] On December 18, 1996 when he arrived at work, the business telephone system was to be installed, and the Complainant went to the customer site, the Brasserie la Pépie in Val-d'Or. He first had to remove the existing telephone system and then install the new one. While he was working, the Complainant noticed a central office assignment error such that the telephone numbers were not routed to the right place. He managed to correct the problem with the help of a colleague who was performing an installation at a nearby business. [21] The witness stated that his installation and programming work went fine except for preventing long-distance calls from the telephone set in the kitchen. He informed the customer that a colleague would come to complete the work. [22] At the customer's request, the witness moved a public telephone. Since the work was not originally planned, he borrowed the required tools from a colleague and moved the public telephone. Pierre Bergeron was very satisfied with his day's work and believed that the customer was very satisfied too. [23] Since he was on sick leave on Thursday, he went to work Friday morning, December 20, 1996. He was again greeted by Claude Mayrand and Alain Rivard. Alain Rivard criticized the quality of his work at Val-d'Or Performance the previous Monday. He told him that he did not need someone who could not keep up with the group. He even advised him to quit before it cost him his life. [24] The Complainant revealed that he felt crushed and humiliated and that he burst into tears, but nevertheless began his day's work at a customer site to do pre-wiring. During the week of December 23, 1996, staff was reduced for the holiday period and he had to work on December 23 and 24, 1996 to respond to emergencies and he was then on leave until January 6, 1997. Around 3:30 p.m., he felt on the verge of tears. He returned to the office and cleaned his truck. The witness informed his dispatcher that he was leaving work and that he would notify the secretary. When he arrived at the secretary's office, he started to cry and was not able to talk to her; he indicated that he was leaving even though it was 4:30 p.m. and was supposed to finish at 5:00 p.m. When he left the secretary's office, he encountered Claude Mayrand. He was too upset to talk to him and he waved his hand at him. In spite of the depression symptoms he was experiencing, it was not until January 13, 1997 that he decided to see his doctor. [25] He returned to his home in La Sarre and, at the end of the week, he thought he had partied too much or ate too much because on the morning of Monday, December 23, 1996, he was still at home sick, with gastro-enteritis. [26] Before the start of his shift, he contacted the secretary to say that he would be away because he was sick and that, if he did not call the next day, he would be away that day too. He requested pay for the days he was away by using vacation days instead of sick leave. [27] On January 6, 1997, the Complainant went to work. He claimed that, despite the arrangement with Dr. Condé for returning to work full time with no restrictions starting January 6, 1997, he decided that his work week would be four days. He said that he had spoken with his attending physician but there is no document confirming this. [28] The Complainant stated that when he arrived at work on Monday, January 6, 1997, Alain Rivard and Claude Mayrand were waiting for him. They criticized him for leaving work on December 20 without informing his immediate supervisor. Alain Rivard also criticized him for his unwarranted absence on December 23, 1996, which showed that he could not be trusted. He again criticized him for the quality of his work, including at the Brasserie la Pépie. Alain Rivard reportedly added that a letter of reprimand would be placed in his file and he claimed that this was done. Pierre Bergeron tried to provide an explanation but they refused to listen to him and he again started to cry. In cross-examination, when asked to provide details about the letter of reprimand that was to be placed in his file, the witness referred to a memo dated December 23, 1996 from Claude Mayrand to Alain Rivard. [29] After that meeting, he was assigned some pre-wiring work at a car dealership. He agreed to work with two colleagues from 4:00 p.m. to midnight for the next three days. He did pre-wiring in a government building. [30] Even though he still believed that his work week was four days and that they were over, he went into work on Friday, January 10, 1997. At the end of his work day, he was summoned for a meeting with Claude Mayrand in the presence of Jean Levert, the union steward. Alain Rivard took part in the meeting via video-conference. He explained that, during the time he had been an installer/repairman, Pierre Bergeron had failed to demonstrate that he was capable of performing the new duties in accordance with the standards required for that position. [31] As a result, he was returned to his original position as a cable splicer in La Sarre. However, since the position had been eliminated in December 1995, he was to be laid off as of January 24, 1997 with recall rights for a period of 24 months. Claude Mayrand issued him a written layoff notice dated January 10, 1997 (Exhibit P-21). [32] After being laid off, Pierre Bergeron filed a grievance on January 26, 1997, which was withdrawn by the union on April 30, 1997. Despite his layoff scheduled for January 24, 1997, Télébec offered him, and he accepted, some splicing work for a project in Parc de la Vérendrye from January 27, 1997 to February 21, 1997, pursuant to an agreement with the Teamsters Union. He worked with Serge Chayer, another splicer. However, the usual working conditions provided for in the collective agreement were not respected. As such, the travel, accommodation and meal allowances had been eliminated. In addition, travel time from his home base to the place of work was not paid. He did not file a grievance, however. [33] The Complainant claimed that, when he was laid off on February 21, 1997, Serge Chayer stayed on the job although he had less seniority than he did. However, the Complainant did not file a grievance. [34] In July 1997, Pierre Bergeron received a telephone call from the Human Resources Department offering him work as a splicer for repairing the cable feeding the Chibougamau airport. This was for a 52-hour period of work during the week of August 4, 1997, which the Complainant accepted. The conditions of employment were confirmed in a letter to him from Claude Mayrand dated August 4, 1997. The working conditions, arranged through a letter of understanding with the Teamsters Union, did not comply with the collective agreement, according to the Complainant's claims, but he agreed to come back to work anyway, particularly since at the end of that employment period, he would have another 24 months of recall rights, and he did not file a grievance. [35] Given that the first Monday of August was a statutory holiday, his immediate supervisor, Claude Mayrand, gave him permission to go from La Sarre to Chibougamau during the day on August 4, 1997 and start work on the Tuesday, specifically August 5, 1997. His immediate supervisor, Claude Mayrand, informed Lyne Doroftei in writing on September 16, 1997 that the Complainant's work was satisfactory. [36] In October 1997, he was offered temporary work as a cable splicer for a period of approximately six weeks starting October 20, 1997, and he accepted. This was a project in Chibougamau of approximately six months. The work for the project was subcontracted out except for the splicing, which was assigned to the Respondent's employees. Once again, the conditions of employment for this project did not comply with the collective agreement by reason of a letter of agreement between the employer and the Teamsters Union. [37] Pierre Bergeron believed that the agreements between Télébec and the Teamsters Union, which deviate from the provisions of the collective agreement, did not apply to him as a splicer because they referred only to technicians and linemen. When giving him the temporary assignments that he accepted, Télébec should have given him all the benefits provided for in the collective agreement. As a result, he believes that he was treated differently by the Respondent compared to other employees who were given the benefits provided for in the collective agreement. [38] Although he disagreed with the specific conditions set out in that letter of understanding, he accepted the work and did not file a grievance. His immediate supervisor was Richard Leblanc. At the end of November 1997, his immediate supervisor informed him that the contract would be extended for an indefinite period. He understood from Richard Leblanc's words that he would have work until the end of the project. However, he did not recall Richard Leblanc's telling him that his temporary assignment would end on December 24, 1997. [39] Pierre Bergeron stated that he had health problems at the beginning of December 1997. He maintained that he was expecting a relapse of his depression. On December 8, 1997, he went to the Radissonie-Chibougamau CLSC, where he saw a physician who prescribed Paxil for him. The witness revealed that he had a bad reaction to the Paxil and had to be hospitalized on December 9, 10 and 11, 1997 in Chibougamau. [40] On December 10, 1997, Pierre Bergeron had a visit from Alain Rivard, who gave him written notice from his immediate supervisor, Richard Leblanc, that he would be laid off as of December 24, 1997 with recall rights for a period of 24 months. [41] On December 11, 1997, a physician from the Radissonnie CLSC issued a medical certificate with a diagnosis of depression and sick leave starting December 9, 1997. [42] The Complainant left the Chibougamau hospital on December 11, 1997. He travelled from Chibougamau to Val-d'Or using his employer's vehicle and then his own vehicle to his residence in La Sarre. [43] He saw his attending physician, Dr. Guy Perrier, on December 15, 1997, who recommended sick leave from December 15 to 29, 1997. He saw the Complainant again on January 6, 1998. In his report, he described his patient's depression and recommended a return to full-time work on January 6, 1998. [44] Following his layoff, the Complainant was never called back to work. Between May 21, 1998 and September 10, 1998, he filed 10 grievances. After reviewing them, the Teamsters Union concluded that all the grievances, except one involving payment of a lump sum, were unwarranted. The Complainant filed a complaint with the Canadian Industrial Relations Board on October 2, 1998 against the Teamsters Union for failing to respect its representation duty, but the complaint was dismissed. [45] The Complainant produced an appraisal report for 1995 prepared by Jean Mercier, Director of Network Maintenance and Works. Jean Mercier said that the Complainant met the quality and productivity standards as an overhead, underground and building cable splicer. He contributed to the team's success on the projects they were assigned to. Moreover, the quality and administrative management of his work had improved and the employee handled his equipment and his occupational health and safety well. His effectiveness was equal to that of his colleagues. [46] The witness also produced an appraisal report for 1996 prepared by Claude Mayrand dated March 3, 1997. The report described the Complainant's problems adjusting to changes in the company, which forced him to switch from a splicer position to an installer/repairman position. Productivity and quality of work were not being met. He could not handle the pressure brought on by a new position. [47] Pierre Bergeron was asked to describe the duties of an installer/repairman during the three years after Télébec hired him, specifically 1987 to 1990. He was assigned to installation and repair of telephone lines in the residential sector. Work would be assigned to him by means of a work order. Installation consisted of running a wire from the junction box on the pole to the residence and then wiring the interior of the residence based on the number of telephone jacks that the customer had requested. The installer/repairman would also deliver telephone sets to the customer. At that time, telephone sets did not need to be programmed. Repair work required the installer/repairman to go to the customer's home to identify the source of the fault. If it was the telephone set, it would be replaced. If it was the wiring or connections, the installer/repairman would do the repairs. Residential work occupied about 80% of the Complainant's time. [48] He was also occasionally called upon to do the same work in the business sector, but for about 20% of the time. He would install Panther telephone systems, equipped with programming that gave customers some features such as ring tones and the hold function. In the Complainant's view, programming a telephone system was much harder in 1987 than it is today. He would install public telephones, but the programming was not his responsibility. [49] In March 1988, the Complainant received eight hours of training on the Trillium telephone system and, in March 1989, eight hours of training on the Tie telephone system. These were business systems. He acknowledged, however, that, despite the training his employer provided, he did not have to install and program these telephone systems. His work was limited to repairing the systems. [50] On May 7, 1996, Télébec posted two installer/repairman positions (96-19NO and 96-20NO), one of which Pierre Bergeron applied for. To obtain the position, the candidate had to meet the minimum requirements. In cross-examination, he was asked to demonstrate whether he met all the requirements, namely: College diploma in electronics or the equivalent and a driver's licence. The Complainant stated that he met these requirements. Bilingual (French and English): an asset. The Complainant stated that he could write in French and English and could speak French fluently, but not much English. Knowledge of various products and maintenance services (Norstar series and others): an asset. The Complainant acknowledged that, compared to 1990 when he was an installer/repairman, many more services were offered in 1995 and many products had been added, especially with the arrival of computers. More powerful and more sophisticated telephone sets he was not familiar with had flooded the market. Ability to transact and communicate with customers. The Complainant admitted that in 1990 his work consisted of completing a work order, not selling telephone systems. Occasionally he would offer the customer an additional telephone set. Knowledge of programming principles. Since he had only installed one programmable telephone system, the witness acknowledged that he had little knowledge of programming principles. Basic data transmission knowledge. The Complainant admitted that he had no basic knowledge for meeting this requirement. [51] The job posting also included a summary of the position, including: Contact customers in advance. The witness acknowledged that he did not have to do this in 1990, and that in 1996, the installer/repairmen had become salespeople because they would recommend products to customers based on their needs. Occasionally provide work estimates for business installations. The witness acknowledged that this was not included in an installer/repairman's duties in 1990. Perform a basic inspection of one's vehicle, be responsible for it, drive it safely in the course of one's work and identify mechanical problems. The witness stated that these duties were the same in 1990. Promote and sell the company's products/services and equipment. The Complainant stated that this was not part of an installer/repairman's duty in 1990 and stated that he was unaware that it existed in 1996. Adequately represent the company to customers. The Complainant stated that he did not know whether this was part of an installer/repairman's duty in 1990. Perform the work safely, accurately, promptly and courteously; be available to travel. These requirements were also part of an installer/repairman's duties in 1990. [52] Pierre Bergeron also described a splicer's work. It involves joining wires. A central cable contains many smaller cables that are routed underground in different sectors. The splicer connects the wires. In 1992, fibre optics appeared on the market. The joining work was then done by laser. In addition to connecting wires, the splicer would also repair cut cables and replace worn cables. [53] On July 2003, the Complainant prepared an information document about the current hearing, in which he wrote that it was the result of Télébec's discrimination and harassment towards him. The document was entitled [translation] Welcome to the Proceedings (Exhibit I-2). The Complainant placed this document on the windshields of vehicles belonging to the Respondent's employees in Val d'Or and Rouyn-Noranda. He had about 40 copies of the document. He also arranged for the document to be placed in the mailslots of Rouyn-Noranda employees and executives. He explained that he did this to obtain encouragement from his former colleagues. B. Respondents' evidence (i) Serge Faubert [54] Until 1997, when he retired after 30 years of service, Serge Faubert was General Manager of Télébec's telephone network for Abitibi-Témiscamingue, which had about 125 employees under 10 immediate supervisors, including Claude Mayrand and Alain Rivard. [55] Serge Faubert stated that in 1987 when he started in his position, the Abitibi-Témiscamingue telephone network was obsolete. Télébec had to invest heavily to provide the region with a cutting-edge network comparable to those in large urban centres. Massive hiring was required for that. Serge Faubert indicated, however, that as the work progressed, he identified that layoffs would be necessary, and they occurred at the end of 1995. [56] The cuts were made among executives and employees, particularly those assigned to installing poles and cables and to splicing. The witness explained that the possibility of layoffs hugely affected the workers' morale, and they became worried and anxious. [57] Before proceeding with the staff reductions, the witness took part in meetings with human resource managers and union representatives to ensure that the layoffs would be done in accordance with the collective agreement. [58] Lists of employees likely to be called back to work for specific projects were prepared, and the employees who were laid off had recall rights for 24 months, as per the collective agreement. To reduce operating costs, Télébec intended to subcontract out work. However, to give preference to recalling employees on the callback list, Télébec and the Teamsters Union agreed, through letters of understanding, to amend some of the working conditions set out in the collective agreement. [59] Pierre Bergeron was then notified on November 20, 1995 that he would be laid off as of December 6, 1995 due to a reduction in work following a company reorganization. [60] Serge Faubert stated that, at the end of 1996 or the beginning of January 1997, he met with Claude Mayrand and Alain Rivard, the Complainant's immediate supervisors, to discuss the fact that the Complainant took days off when he was needed at work. The witness stated that, in his view, Pierre Bergeron's conduct warranted a written disciplinary measure placed in his file. [61] The meeting also dealt with the issue of the Complainant's skills and ability to perform the installer/repairman duties. His immediate supervisors believed he did not have the technical qualifications for the position. [62] Serge Faubert revealed that he understood their assessment. He explained his claim by the fact that the installer/repairman duties had changed a great deal over the years. In fact, when the Complainant was working as an installer/repairman from 1987 to 1990, his duties generally consisted of residential installations and repairs. In 1996, the duties became much more complex since the work was done in the business sector and required the installer/repairman, in addition to doing installations, to program more sophisticated systems. It was therefore much more specialized work and required working with customers; the installer/repairman had to promote and sell equipment. [63] Serge Faubert also stated that he had met with some of the Complainant's colleagues, including Jean Levert, the union steward, who informed him that the Complainant was not capable of fulfilling the installer/repairman duties. He wanted to know what Télébec's intentions were with respect to keeping that employee on staff. (ii) Claude Mayrand [64] Claude Mayrand has been employed at Télébec for 20 years. When he was hired, he had a college diploma in electrotechnology. He started out as an installer/repairman for three years. He then worked for a year and half on a team of workers who installed poles, cables and strands. He was then assigned to maintenance work, such as cable repairs, for about two years. Claude Mayrand was then assigned as an installer/repairman in James Bay for two and half years. When he returned from James Bay, he was promoted to Manager of Line Planning and Estimating. Two years later, he became Manager of I&R (installation and repairs) from 1995 to 1998. In 1998 he was promoted to Manager of Network Management until he went back to school in 2000. [65] The witness was asked to describe the tasks specific to the position of installer/repairman for the residential and business sectors between 1987 and 1990. [66] In the residential sector there were two parts to the installer/repairman work. First there was exterior cabling, which involved running service wires from the pole to a box at the customer's residence. Then there was interior cabling, where the installer/repairman would install wires in the house to provide access to the telephone set connections. Performing these tasks required knowledge of the colour coding of cables in order to do the connecting. [67] The second part was repair work. It involved disconnecting the customer's telephone line to check the line's resistance and the condition of the ground. [68] The witness submitted that, overall, the installer/repairman at that time would spend about 95% of his time in the residential sector. [69] Claude Mayrand stated that the installer/repairman would occasionally perform his duties in the business sector. This involved installing small telephone systems called Trillium and Panther by doing cabling. He would also do programming using predetermined fixed registers. As an example, the witness mentioned assigning lines to telephone sets and the type of ringing. The witness felt that 1% of the installer/repairman's work involved programming. [70] The witness explained that, in 1992, microprocessors came to the business sector, which led to the appearance of numerous telephone systems. Because of microprocessors, the volume of data sent to telephone sets increased. Programming languages could therefore be integrated into the telephone systems. With the disappearance of fixed registers, customers could now have systems that were more tailored to their needs. [71] Claude Mayrand believed that, because of the new technology, the installer/repairman had to add analysis work to his regular duties. The witness illustrated that statement with the arrival of the Norstar telephone system, which had three lines and eight telephone sets. According to him, this system was not very complex. Then came the 032 and SL1 systems, and programming them required knowledge of register management. [72] The witness stated that video-conferencing then appeared on the market. The installer/repairman had to deal with a new technology, which was also true with the arrival of the Internet. [73] As for the residential sector in 1996, the installer/repairman duties changed, partly because the obsolete network had been updated and partly because new installations were less frequent, and so was the need for repairs. [74] He maintained that, in 1996, 90% of the installer/repairman's work was devoted to technical aspects, programming and customer relations, and 10% to the install/repair work as it was in 1990. [75] The witness was asked to describe how the knowledge of someone with a college diploma in electronics was necessary for the duties of an installer/repairman. He explained that this diploma gave the installer/repairman sound basic knowledge of electronic concepts such as capacitors, the phenomena associated with inductors, and aspects of resistance and programming. [76] The witness stated that, confronted with the new technology, Télébec put telephone systems in service centres, such as those in Val d'Or and Rouyn-Noranda, to enable installer/repairmen to become familiar with the new equipment and upgrade their skills. Information sessions were also given by the manufacturers of these systems. [77] Claude Mayrand was Pierre Bergeron's immediate supervisor when he came into work in Val d'Or on August 6, 1996. He acknowledged that there might not have been a vehicle available for him to do his work. However, he added that the Complainant was then teamed up with another installer/repairman for doing cabling at Forage Benoît. Claude Mayrand went to the site to ensure that the work was up to standard. He recalled that the Complainant's colleague told him that the Complainant was rusty and not very productive. [78] Claude Mayrand recalled that Pierre Bergeron was then away sick and returned to work on December 2, 1996. At that point, he was no longer the Complainant's immediate supervisor; Alain Rivard had taken over that responsibility. He himself was Pierre Bergeron's immediate supervisor only in Alain Rivard's absence. [79] Claude Mayrand recalled that, during the week of December 16, 1996, when Alain Rivard was away, the Complainant asked for permission to have December 20 and 23, 1996 off. Claude Mayrand contacted the Network Operations Centre to find out the workloads for those dates. After receiving a response from the Network Operations Centre, the witness denied the Complainant's request, given that the workload required all staff to be on duty. [80] The witness stated that, on December 20, 1996, he went to the work centre in Val d'Or. At around 3:30 p.m., he met Pierre Bergeron in the hallway. He greeted him and exchanged a few words with him, and the Complainant told him that things were going fine. Claude Mayrand stated that, when he got back to his office, the Network Operations Centre called to notify him that the Complainant had left work around 3:30 p.m. because he was sick, whereas his shift was to end at 5:00 p.m. Claude Mayrand realized that the Complainant had neglected to inform him before leaving work, even though he should have done so. [81] In addition, on December 23, 1996, Claude Mayrand was filling in while Alain Rivard was away. He received a call around 8:00 a.m. from Chantal Bédard, the secretary, informing him that the Complainant had contacted her to notify her that he could not come in to work because he was sick and to record his absence as vacation days. [82] Since Claude Mayrand knew that an employee could not take vacation without prior authorization, he contacted industrial relations to determine what procedure he should follow. They informed him that a disciplinary measure could be placed in Pierre Bergeron's file for unwarranted absence. He then designated the absence as sick days. Claude Mayrand decided to put off making a decision until after the holidays, when the Complainant's immediate supervisor, Alain Rivard, would be back at work. However, he did write a letter to Alain Rivard that same day describing the events and suggesting a meeting with the Complainant on January 6, 1997. [83] Claude Mayrand did meet with Alain Rivard on January 6, 1997, and they decided that they would meet with the Complainant on January 7, 1997. Alain Rivard asked Claude Mayrand to accompany him since he was there during the events. The witness recalled that the meeting was held in a meeting room at the Val d'Or Work Centre around mid-afternoon on January 7, 1997. It lasted 20 or 30 minutes. [84] Claude Mayrand recalled starting the meeting by telling Pierre Bergeron that he had not followed the procedure for leaving or being away from work and that his absence had disrupted operations and obliged colleagues to work overtime. The witness recalled that the Complainant accepted these comments stoically. Alain Rivard then spoke and pointed out to the Complainant that there were problems with his productivity and to inform him if there were specific things he needed for performing his work, because he wanted him to be comfortable in his job. Claude Mayrand stated that the Complainant said that everything was going well in his job and that he was just as capable as all the other installer/repairmen. Claude Mayrand also recalled that he was polite during the meeting and that at no point did the Complainant cry. [85] When the meeting ended, Claude Mayrand continued speaking with Alain Rivard. They discussed the Complainant's skills and ability to perform the duties of an installer/repairman. Claude Mayrand expressed his concerns to Alain Rivard regarding the Complainant's technical skills and his ability to develop communication skills for promoting and selling equipment. Alain Rivard had also received comments from the union steward Jean Levert, the Complainant's workmate, on the quality of Pierre Bergeron's work at the La Pépie bar, specifically that he was slow and that he himself had to do the Complainant's work. [86] A meeting was also held with Serge Faubert, Alain Rivard and the witness on January 8, 1997. Serge Faubert was not satisfied with the measures taken following the Complainant's unwarranted absences. The meeting also dealt with Pierre Bergeron's ability to perform his duties. The witness expressed his opinion but was not involved in the decision-making. Claude Mayrand informed Serge Faubert and Alain Rivard that, in his experience, Pierre Bergeron's skills and knowledge did not match the profile expected of an installer/repairman in 1996. [87] Claude Mayrand also recalled that, on the morning of January 8, 1997, Pierre Bergeron went to the office of his immediate supervisor, Alain Rivard. The witness was in the office next to Alain Rivard's and overheard the conversation. Pierre Bergeron reportedly told Alain Rivard that he had doubts about his ability to do the work of an installer/repairman and that he was wondering whether he would be able to keep his job. This meeting was a few minutes long and Pierre Bergeron then returned to work. [88] Claude Mayrand recalled that on January 10, 1997, in Alain Rivard's absence, the Industrial Relations Department asked him to sign a letter and give it to Bergeron informing him of his layoff from his installer/repairman position. He summoned the Complainant to the same meeting room where the previous meeting had been held and, in the presence of the union steward, Jean Levert, he issued him the letter (Exhibit P-21) after it was read to him. Pierre Bergeron made the comment that there would be a follow-up to that layoff. He did not think that Alain Rivard attended the meeting via video-conference. [89] In his complaint, Pierre Bergeron claimed that, during his sick leave from August 11 to December 2, 1996, Claude Mayrand frequently came to his house to make sure that he was indeed sick. In response to this claim, the witness said that he went only once to the Complainant's residence in La Sarre to deliver a medical form (1935) to be filled out by his attending physician. The witness recalled the Complainant greeting him politely. Claude Mayrand stated that it was the only time he went to the Complainant's residence. However, he acknowledged that he may have driven by the Complainant's residence in his vehicle two or three times because he had to do so in order to get to his father's house or the restaurant where his sister was working. [90] Claude Mayrand said that immediate supervisors must prepare employee evaluations every year called Annual Employee Profiles. Even though Pierre Bergeron's immediate supervisor was Alain Rivard, the witness prepared the Complainant's annual profile for 1996 because during the period from August 1996 to the end of December 1996, he was the immediate supervisor of the Complainant as an installer/repairman and because of Alain Rivard's absences. The witness explained that an employee's annual profile evaluated performance and the skills and abilities acquired over the year. [91] The witness stated that, to prepare the Complainant's annual profile, he obtained comments from Alain Rivard, Brigitte Côté from the Network Operations Centre, and Yvan Deault, the Depot Manager. He also considered comments from the Complainant's colleagues, including Jean Levert, the Union Steward. [92] When preparing an employee's annual profile, they meet with the employee to let him/her know their impressions. In Pierre Bergeron's case, the meeting did not take place because he was on a layoff in March 1997 when his evaluation was being prepared. The witness explained that when the employee's annual profile is completed (Exhibit P-43), a copy is placed in the employee's personal file. This was true in Pierre Bergeron's case. [93] Claude Mayrand recalled that on July 16, 1998, Pierre Bergeron filed a formal notice with Télébec (Exhibit P-45) claiming that his evaluation for 1996 was incorrect and contained false statements that were damaging to his reputation and likely to jeopardize his future as an employee with Télébec. [94] Claude Mayrand consulted with the Industrial Relations Department to determine what stance to take. It was agreed that Pierre Bergeron's annual profile for 1996 would be removed from his personal file, partly because no one had met with him during the preparation of his evaluation and partly because it was very likely that he would not be called back to work as an installer/repairman following his layoff on January 10, 1997. Consequently, on July 27, 1998, Claude Mayrand send a letter to the Complainant informing him that his annual profile for 1996 and all copies of it would be destroyed (Exhibit-46). [95] The witness stated that, in August 1997, Télébec had to repair a copper cable feeding the Chibougamau airport. The project would require 52 hours of temporary splicing work. He put in a staffing request with the Human Resources Department (Exhibit I-16), and they identified Pierre Bergeron as being available. [96] Claude Mayrand contacted the Complainant to offer him the work and inform him of the duration and conditions involved. He accepted the work, and everything was confirmed in writing (Exhibit P-26). [97] When the work was finished, Alain Rivard inspected it. Claude Mayrand issued a memo on September 16, 1997 (Exhibit P-27) pointing out that [translation] the repairs to the cable feeding the Chibougamau airport complied with established standards and that Pierre Bergeron's work was satisfactory. [98] Claude Mayrand was asked to give his version about the Complainant's health condition. He stated that he was never aware of Pierre Bergeron's health condition because information about an employee's health condition is confidential. Claude Mayrand was also asked to respond to Pierre Bergeron's claims that he (Mayrand), between August and December 1996, had told him off several times in an unwarranted manner because of his health condition. [99] The witness stated that he never had a row with Pierre Bergeron, either when he came to work on August 6, 1996 nor when he visited him at his home in August 1996. He acknowledged that, during the employment period of December 1996 and January 1997, he had some conversation with the Complainant the morning before he left for work. The conversation was simply to obtain information and ensure that everything was going fine, nothing more. He added that, during the meetings on January 7 and 10, 1997, there were no rows then either. [100] Claude Mayrand stated that, in August 2003, he went to the Rouyn-Noranda Service Centre. Because he had travelled the previous day in Télébec's vehicle, his own car was at the service centre. When he arrived, he saw a document on the windshield of his car. It was entitled, [translation] Welcome to the Proceedings' (Exhibit I-2). When he went into the service centre, he saw several copies of the document in employee mail slots. The document dealt with the hearing in the case of Pierre Bergeron versus Télébec and Alain Rivard in Montreal on September 10 to 19, 2003. It also said [translation] For information, contact Mr. Pierre Bergeron at 819-847-3479. [101] In cross-examination, the Complainant asked Claude Mayrand to acknowledge that, when he arrived for work in Val d'Or on August 6, 1996, he told him [translation] Pierre, this is your last chance, which the witness categorically denied. The witness also denied telling the Complainant that he was not a team player, that he did not need someone like him on his team and that he worked too slowly. (iii) Alain Rivard [102] Alain Rivard was hired by Télébec in 1977 for the position of installer/repairman and, in 1979, for the position of central office and transmission equipment technician. In 1981, he again held the position of installer/repairman until 1984, when he was promoted to Dispatcher. In 1986, he became an Inspector/Analyst, then in 1988, Manager of Repair Service Quality, and in 1992, Manager of Property. [103] In 1995, he became Technical Services Manager for the Val-d'Or sector, which includes the entire Eastern Abitibi region. He was also made Technical Services Manager for the James Bay sector. These two sectors form a territory with an area of 350,000 km2. Supervising them required him to be away from his Val d'Or office frequently. [104] To help him in his work, the witness had assistance from Claude Mayrand, who had the same responsibilities for Val-d'Or and Rouyn-Noranda or when he was taken away from his office. [105] Alain Rivard said that, by 1995, the installer/repairman profile had changed a great deal compared to 1990, especially in the business sector. In fact, rapid technology improvements and the advent of new telephone systems along with the addition of promotion and sales made the work of an installer/repairman much more specialized. [106] He recalled that, on December 2, 1996, Pierre Bergeron appeared for work in Val-d'Or. It was part of a gradual return to work with no medical restrictions. Because he was away when the Complainant came into work, Claude Mayrand assigned him some line transfer work in Senneterre. When he arrived, Alain Rivard called Pierre Bergeron back to Val-d'Or to do some more urgent work in the business sector. [107] Claude Mayrand introduced Pierre Bergeron to him upon his return to Val-d'Or at the start of the afternoon. The witness knew that Pierre Bergeron was returning to work as an installer/repairman after being a splicer for several years. As result, the witness said [translation] "He was a bit rusty." [108] Therefore, he assigned Pierre Bergeron to Télébec Mobilité to help an installer/repairman with the installation of a 032 telephone system. At the start of the week of December 9, 1996, he also informed the Complainant that he would assign him the installation of a Norstar 3/8 system (3 lines - 8 phones) at the Brasserie La Pépie during the week. It was relatively simple work that allowed the Complainant to become familiar with his new position. The witness stated that he told Pierre Bergeron that if he had any problems, he should feel comfortable communicating with him at any time. [109] During that week, the Complainant was indeed tasked with installing the Norstar 3/8 system at the Brasserie La Pépie. The installer had to run two telephone lines to the customer premises from the central office, install the system in the location that the customer specified and join the two lines. He then had to take care of the distribution by doing the interior wiring to the required telephone sets. Programming was also required, specifically opening the input ports for the lines and assigning them to the various telephones. [110] The time usually allotted for installing such a system was about eight to ten hours. However, since the Complainant was back to work as an installer/repairman, Alain Rivard had allowed 16 hours for the work to be done. [111] The witness stated that, while the work was being carried out, he went to the Brasserie La Pépie to check the progress. Pierre Bergeron informed him that he was having problems with putting the lines through. He also met with the owner of the Brasserie, who informed him of her concerns. She claimed that the installer/repairman was having problems with the programming because he had told her that it was not his area since he was a splicer. She was concerned that the deadline scheduled for the work would not be met. [112] Alain Rivard told the Complainant about the customer's comments. Pierre Bergeron answered that it was not installer/repairman work that he wanted to do, but splicing work instead. He said that he did not like having contacts with customers. Alain Rivard told him that he had no choice. [113] The witness stated that, at that meeting, he did not tell Pierre Bergeron that he was dragging his heels and was not a team player. In fact, Alain Rivard noticed that the Complainant took 22 to 24 hours to install the Norstar 3/8 system, which was six to eight hours more than he had allotted. [114] Pierre Bergeron's work was not at all what was expected of him. Specifically, his contact with the customer and his programming left much to be desired. Therefore, to minimize his contact with customers, Alain Rivard decided to assign Pierre Bergeron to work with two installer/repairmen, Jean Levert and Richard Duquette, on a job at Aubé Pontiac Buick in Val-d'Or. Richard Duquette was responsible for dealing with the customer. The work involved completely recabling the telephone system and network cabling. [115] Alain Rivard stated that he told Pierre Bergeron that he would have pre-wiring to do. He had told him that, if he had any problems, to rely on his colleagues. Alain Rivard had the opportunity to go to the work site. Jean Levert and Richard Duquette informed him that Pierre Bergeron was dragging his heels a bit and was not relying on them very much. He went to see the Complainant and he stated: (pages 1850-1851) [translation] ... then I asked Pierre how it was going. It's going alright. I said, Your colleagues tell me that you're dragging your heels a bit. Is something not going right? Well, it's not what I want to do. I don't like doing that, you know; I'm a splicer. Yes, I said. But that's what needs to done. I talked for a bit and then said, It's important for you to talk to them. Anyway, it went something like that. Then he told me a bit about his health condition. Q. What did he say to you? A. Well, according to him, he was depressed, and I am not a doctor, but what I said to Pierre was, As far as I understand, you are gradually returning to work, with no restrictions. So I expect the same work from you as from the others. Then he said, Yes, but you yourself experienced depression. I said, Yes, I did. That's why I'm talking to you about this. I expect the same work from you as from the others, but if you are not well, take the rights steps before it costs you your life. It's important; I went through it myself. But it's up to you to do something about it. If you're not well, go see a doctor. As far as I'm concerned, you have work to do. End of story." [116] Alain Rivard added that he had had major depression with infarction in 1992 and that he was sensitive to someone who may be experiencing depression. [117] Télébec had secured a contract at Val-d'Or Performance, a subsidiary of Aubé Pontiac Buick, for refitting some wiring with wire covers, in other words placing mouldings to hide wires on the outside of walls. Richard Duquette was in charge of the project. Alain Rivard decided to move Pierre Bergeron to this project to help him with the work. [118] Richard Duquette informed Alain Rivard that the quality of the Complainant's work at Val-d'Or Performance was good but that there was a problem with his productivity. [119] Alain Rivard secured a contract with Lands and Forests, a government building, with the specification that it had to be done between the hours of 3:00 p.m. and 10:30 p.m. The project was assigned to the installer Yoland Audet, who needed an installer/repairman with him. He had to install a telephone system and the networking. [120] Alain Rivard thought that Pierre Bergeron might be interested in the wiring work on this project and proposed it to him. He felt that Pierre Bergeron would be much more comfortable in this work setting. He did accept the offer and seemed content with it. [121] Alain Rivard stated that the quality of Pierre Bergeron's work was again good. The problem was his productivity. He had to call in an extra installer/repairman, Alain Brouillette, to ensure that the work would be completed in the time frame stated to the customer. [122] Alain Rivard recalled that he was probably on vacation during the week of December 16, 1996. However, since he lived in Val-d'Or, he was in the habit of briefly stopping by the work sites to see how everything was going. [123] When he came back to work in January 1997 after the holidays, Alain Rivard read the document that Claude Mayrand had sent him regarding the Complainant's leaving work on December 20, 1996 and his absence from work on December 23, 1996 (Exhibit I-15). He stated that he was disappointed to hear about Pierre Bergeron's conduct. Alain Rivard explained that if his absence was due to illness, he could understand. However, if the Complainant was away for no valid reason and in spite of the fact that Claude Mayrand had not allowed him to take vacation during that time, it was a much more serious issue. If that was the case, Alain Rivard was disappointed that Pierre Bergeron had acted that way after he had tried to accommodate him as much as possible in the performance of his work. [124] After Claude Mayrand brought him up to date on the facts surrounding the events, he decided to meet with Pierre Bergeron to hear his version of the facts, in the presence of Claude Mayrand, who was more aware of the events and could answer any questions that may be asked. [125] That meeting was held in the afternoon of January 7, 1997 in the meeting room. Claude Mayrand spoke first and described the events on December 20 and 23, 1996. He informed Pierre Bergeron that he had not followed the proper procedure when he left work on December 20, 1996 and during his absence on December 23, 1996, which was to notify his immediate supervisor. He added that his absence had resulted in productivity problems because the work had to be done with reduced staff during the holidays and that they had to put in overtime. Then Alain Rivard took over and asked Pierre Bergeron if he felt capable of doing the installer/repairman work. The Complainant said that he was capable of doing the work and that his productivity was fine. Alain Rivard reminded him, however, that his productivity had not been satisfactory in the duties he was assigned before the holidays. He maintained that the issue of his health never came up in that meeting and stated that the Complainant did not cry. The Complainant's only comment was that it was more difficult for him to do the work when he felt pressured. The witness answered that if he felt he was having problems with pressure, all he had to do was tell him so that he could help him. [126] Following that meeting, Claude Mayrand and Alain Rivard discussed the situation and shared their points of view on the Complainant's work evaluation, and they decided to meet with the manager, Serge Faubert, the next day. [127] At that meeting, Claude Mayrand informed Serge Faubert about the events on December 20 and 23, 1996. Serge Faubert asked whether the Complainant had been issued a reprimand because of his behaviour. Alain Rivard clearly recalled that Serge Faubert soundly criticized them for not having done so. [128] Alain Rivard then informed Serge Faubert that Pierre Bergeron's situation was worrying him. He told him about all Pierre Bergeron's difficulties since returning to work and that he was planning on ending the Complainant's employment as an installer/repairman. Serge Faubert told him to contact industrial relations. The witness contacted industrial relations to inform them about the issue he was dealing with and his decision to end the Complainant's employment. [129] The Industrial Relations Department prepared a layoff notice (Exhibit P-21). Because the witness was away when the document was received, Claude Mayrand signed it and issued it to Pierre Bergeron during a meeting on January 10, 1997. The witness stated that he did not take part in that meeting, not even via video-conference. [130] Alain Rivard stated that he saw the Complainant again on December 12, 1997 under relatively special circumstances. He was in Val-d'Or getting ready to leave for Chibougamau, when Richard Leblanc asked him, since he would be in Chibougamau, to issue a layoff notice to Pierre Bergeron, who was hospitalized there. He did not feel comfortable with this request, so he contacted the Industrial Relations Department, which gave its approval. [131] He went to the hospital and the Complainant greeted him politely. He said that he was not surprised by his visit because he was expecting a layoff notice. Alain Rivard asked him about the reason for his hospitalization. The Complainant told him about his depression. Alain Rivard said to him, (page 1904) [translation] "You know, it's important to be healthy in life. At one point I said, You need to take the right steps to take care of yourself before it costs you your life. There is no other way to get through this than to take care of yourself, change your pace of life and your way of doing things. I'm telling you this from experience. I went through it myself; it's important. You have the chance here. It's odd to say it, but you have the opportunity while you're here in the hospital to get some help. Take advantage of that." [132] Alain Rivard believed that the Complainant was receptive to his comments. The conversation continued for a few more minutes and then he left. [133] The witness was asked to comment on the Complainant's claim that he had been laid off because of his health condition. He explained that he was never aware of the Complainant's health condition, except for what he had told him regarding the pressure he felt when performing his work. [134] The witness was also asked to comment on the Complainant's allegation that he was not given the same opportunities as other employees, such as training during his probationary period. The witness denied the allegation. He maintained that the opposite was true, that he gave the Complainant every opportunity by assigning him tasks that would enable him to adjust to installer/repairman work. As for training, Alain Rivard stated that Télébec does not provide training to installer/repairmen with a college degree in electronics. It was up to the employee to train himself by studying the documentation that comes with the equipment made available to him. [135] Regarding the Complainant's allegation that Télébec refused to provide him with a harassment-free workplace, Alain Rivard responded that, during meetings he had with the Complainant, he asked if everything was going well. He told him what he expected of him. Pierre Bergeron was receptive but said he could not take the pressure. He stated that he had never had a row with the Complainant. In fact, Alain Rivard was convinced that he had done everything he could to help the Complainant meet the requirements of his work. [136] Alain Rivard recalled that, around July 25, 2003 when he came to work, there was a document on his desk entitled [translation] Welcome to the Proceedings (Exhibit I-2). He found out that copies of the document were circulating among the employees. He stated that he had been very concerned about this because it caused unrest among the employees. He reported to the Industrial Relations Department. (iv) Lyne Doroftei [137] She started working at Télébec in 1984. Starting in 1990, she held the position of Human Resources Manager and, in 1995, became Labour Relations Manager. Her work involved advising managers in the application of the collective agreement and representing the company at union/management meetings for discussing the application of the collective agreement, the grievance process, negotiations and the preparation of letters of understanding between parties. [138] In 1995, she was actively involved in the administrative reorganization that led to the elimination of many lineman and splicer positions in a variety of locations. [139] A seniority list by position was prepared. To identify employees to be laid off, seniority and bumping rights were applied, as provided for in the collective agreement. The individuals affected by the layoffs were placed on a callback list and had recall rights, if the employees were needed, for 24 months, after which time they would lose their seniority and their jobs. [140] Whenever a callback was required for a position, the Human Resources Department would call an employee back based on seniority, availability and the ability to meet the normal requirements of the position. [141] To reduce operating costs and increase productivity on specific projects, the Respondent was planning on subcontracting out work, to the disadvantage of laid-off employees. The Teamsters Union instead wanted laid-off employees to be called back to work. As such, on May 25, 1996, the parties signed a letter of understanding (Exhibit I-4) that would expire at the end of May 1996 providing for the recall of employees on the callback list for the Rémigny and Macamic projects. This agreement provided for fewer benefits than those in the collective agreement, specifically regarding overtime pay, bonuses and accommodation and meal allowances. [142] On May 27, 1996, this letter of understanding was extended for an indefinite period. It also applied to all projects other than those originally planned. [143] On November 12, 1996, the parties signed a letter of understanding in effect until December 20, 1996 for the Parc La Vérendrye project. This letter of understanding again involved calling back employees on the callback list with working conditions that were different than those in the collective agreement, specifically regarding overtime pay, bonuses and accommodation and meal allowances. [144] That letter of understanding was extended on January 17 and February 22, 1997. The latter extension was for an indefinite period and applied to all projects that the company planned to carry out. [145] According to the witness, the hiring conditions were then enhanced after consultation with the Teamsters Union without involving written letters of understanding. As an example, the witness pointed out that, for the Chibougamau project, a per diem allowance of $62 was negotiated to cover meals and accommodation. Also, on July 7, 1998 (Exhibit I-8), the parties signed a letter of understanding that reflected the conditions verbally agreed to since the letter of understanding of February 22, 1997. This letter of understanding maintained the principle previously established verbally that an employee could turn down proposed work. [146] Lyne Doroftei explained the layoff procedure under article 13.17 of the collective agreement (Exhibit I-9) in force in 1995. According to the procedure, employees with less seniority in a job category in the seniority unit can be laid off as long as employees with more seniority are capable of performing the work. [147] An employee affected by the layoffs had the choice of being laid off or assigned to another position or job classification in the seniority unit as long as he/she was capable of performing the required duties in a reasonable time frame not exceeding 10 working days and as long as the assignment did not displace a more senior employee or employee in the same classification in a different seniority unit, provided that the employee in question was capable of performing the required duties and that the transfer did not displace a more senior employee. [148] The employer had to proceed with all employee reassignments in accordance with the order below. The Complainant was not granted bumping rights because the employer believed that he was unable to perform the required duties in the 10-working-day period. [149] This provision in the collective agreement does not appear to create the obligation for the employer to call employees back to work because clause 13.18 of the collective agreement deals only with the rules that apply during a recall. Through letters of understanding, the employer agreed to call back laid-off employees with fewer working conditions than those set out in the collective agreement. [150] For the staff reductions, Pierre Bergeron had the least seniority in the splicer job category and in the La Sarre seniority unit. As a result, he was classified as a redundant employee with bumping rights. If he could not exercise his bumping rights, he would be laid off and placed on a callback list with recall rights for 24 months. [151] A list of employees with bumping rights was prepared on November 17, 1995. Because it was permitted to do so pursuant to article 13.17 (2) of the collective agreement, Télébec decided not to give the Complainant a new assignment. [152] The witness stated that, after the employees to be laid off were identified, on December 15 and 31, 1995, a callback list was prepared. Employees on that list could be called back to work. Under the provisions of clause 13.18 of the collective agreement, the callbacks were to be done in reverse order of the layoffs as long as the employee concerned was capable of performing the work. [153] Article 13.19 of the collective agreement also specifies that [translation] an employee called back to work and assigned to a location other than his/her normal workplace during the layoff may refuse the proposed assignment and wait to be offered a position at his/her former workplace as long as the proposed position can be filled by a laid-off employee with less seniority who is capable of carrying out the work. [154] The witness explained the application of this clause in the Complainant's case. Pierre Bergeron was a splicer and his usual workplace was La Sarre. If he had been called back for an assignment in a location other than La Sarre, he could have refused the assignment and remained on the callback list. As such, when the Complainant was called back to work on March 26, 1996 for the Rémigny and Macamic project, he could have refused it because it was in a different location than his usual workplace, on the condition that a more junior employee was capable of performing the work. This was the case because, on March 26, 1995, another employee, Yves Héroux, who was also a splicer and had less seniority than Pierre Bergeron was available (Exhibit I 3). The witness explained that it would have been different if the Complainant had been called back to work after May 26, 1995, when Yves Héroux was no longer available because of a callback. As a result, the Complainant could not refuse the assignment since there was no other splicer with less seniority on the callback list. [155] The witness also explained that the collective agreement was silent on the consequences of an employee refusing an assignment despite his obligation to accept it. The witness stated that, in such circumstances, the employee would still remain on the callback list until the 24-month recall rights expired. [156] The witness stated that an employee who is on a layoff may also come back to work if a permanent position becomes vacant or if a new permanent position is created. [157] Lyne Doroftei was also asked to comment on the provisions in article 22 of the collective agreement, which deals with temporary transfers. This provision is applied when a very high volume of work requires an employee to be temporarily moved to a workplace different than his/her usual one. At that point, the employee is entitled to certain benefits such as travel expenses, reasonable accommodation expenses and meal allowances. However, the witness pointed out that the provisions in article 22 of the collective agreement did not apply when employees on the callback list were called back to work, because the employment conditions were governed by the letters of understanding. [158] Lyne Doroftei provided explanations about the application of article 21 of the collective agreement, which deals with permanent transfers. This provision covers the situation where the employer requires an employee to be transferred from his/her usual workplace to different one. The witness pointed out that this article is not applicable in the case of job postings. In fact, when a position is posted, an employee who decides to apply accepts the results of that decision, whereas for a permanent transfer, the employer requires the employee to move to a different workplace. [159] Lyne Doroftei described her involvement with Pierre Bergeron's layoff on January 10, 1997. On January 9, 1997, the manager of the Labour Relations Department, Reynald Wilson, asked her to prepare a letter (Exhibit P-21) to the Complainant informing him that his installer/repairman position would end on January 24, 1997 and that he would return to the callback list for 24 months from the date of his layoff. She was informed that Pierre Bergeron had obtained a posted installer/repairman position and that he had not demonstrated the ability to perform his new duties in accordance with the standards required for the position. [160] The witness explained that clause 13.12 of the collective agreement provided that [translation] if an employee does not demonstrate the ability to perform the new duties in accordance with company standards within 120 days following the promotion or transfer, the employee shall return to his/her prior position and location ... [161] The witness also stated that on December 9, 1997, she received a telephone call from Richard Leblanc, Pierre Bergeron's immediate supervisor, notifying her that the Complainant's job was to end on December 24, 1997 but that he was away from work in the hospital. He enquired about the need, given his absence, to inform the Complainant in writing about his layoff effective December 24, 1997. Richard Leblanc told her that Pierre Bergeron had been temporarily called back to work on October 20, 1997 for approximately six weeks and that his assignment had been verbally extended until December 24, 1997. On December 10, 1997, Richard Leblanc confirmed with the witness by email the information that he had given her the previous day (Exhibit I-12). [162] The witness prepared a layoff notice regarding the Complainant effective December 24, 1997 with recall rights for a 24-month period from the date of his layoff (Exhibit P-30). [163] Following his layoff on January 10, 1997 (Exhibit P-21) the Complainant submitted a grievance (Exhibit P-23) in which he challenged his layoff and demanded his installer/repairman position back as well as all the benefits he lost. [164] After the grievance was filed, the grievance committee met to discuss it. Attending that meeting were the Complainant, his union steward Jean Levert, his immediate supervisor Alain Rivard, and the witness Lyne Doroftei from the Labour Relations Department. She was responsible for taking the minutes of the meeting (Exhibit P-65). [165] Lyne Doroftei stated that the company wanted to call back the Complainant on August 27, 1998 for some temporary work as a pole installer, but that they could not reach him (Exhibit I-3). The witness acknowledged that the collective agreement did not stipulate the procedure to follow for calling back an employee. She explained that the usual practice was to do the callback by telephone. [166] The inability to reach the Complainant did not constitute a refusal of the callback, and he remained on the callback list until his recall rights expired on December 24, 1999. [167] The witness explained that, to announce a layoff to an employee, they would meet with the individual in person to inform him/her. If the employee was away, they would arrange for a company representative to meet with the employee and issue a written layoff notice. [168] Lyne Doroftei was asked to comment on the Complainant's claim that Serge Chayer, with less seniority than he had, remained employed whereas he was laid off. Using Serge Chayer's employment history (Exhibit I-19) Lyne Doroftei showed that Serge Chayer had been placed on the callback list on December 7, 1995 when he had previously held the positions of lineman and splicer. [169] Because he had more seniority than Serge Chayer, Pierre Bergeron was temporarily called back as a splicer for the period of January 27 to February 21, 1997. Serge Chayer was temporarily called back as a splicer from February 3 to March 17, 1997. Therefore, the Complainant could not claim the work given to Serge Chayer because he was already working when Serge Chayer was called back to work. [170] The witness stated that, according to the employment history, Serge Chayer then obtained a temporary job as an installer/repairman from March 17 to November 23, 1997. In the meantime, Serge Chayer applied for an installer/repairman position and was selected. Since November 24, 1997, he has held a permanent installer/repairman position. The witness explained that the Complainant's previous attempt to obtain an installer/repairman position had failed, which explained why Serge Chayer remained employed instead of the Complainant. [171] Lyne Doroftei also commented on Pierre Bergeron's claim that Yves Théroux, a splicer on the callback list at that time with less seniority, had been temporarily called back from May 27, 1996 to January 1, 1999. The witness explained that when Yves Théroux was called back to work, Pierre Bergeron had already been working since March 26, 1996 and remained there until he went on sick leave in August 1996. Therefore, he could not claim the work given to Yves Théroux. [172] Lyne Doroftei, when cross-examined by Pierre Bergeron, had to explain how it was that, after he was laid off on December 24, 1997, he was never called back to work before his recall rights expired on December 24, 1999. With reference to the callback list (Exhibit I-3), Lyne Doroftei answered that only one employee had been temporarily called back on December 14, 1998 and that that employee had more seniority than the Complainant did. In 1999, Paul Villeneuve, Roger Morissette, Marc Mercier and André Boisvert were called back but they all had more seniority than the Complainant did. [173] The witness was asked to review the letters of understanding (Exhibits I-4, I-5, I-6 and I-7) that deal with the temporary rehire of technicians and linemen and explain why they were applied to other jobs, including splicers. Lyne Doroftei answered that these letters of understanding, with the agreement of the Teamsters Union, were applied to all employees on the callback list and that everything had been confirmed in the signing of the letter of understanding on July 7, 1998 (Exhibit I-8) covering the rehire of employees on the callback list. [174] Lyne Doroftei stated in cross-examination that the attending physician's report used by the Medical Department was required when an employee's absence due to illness or injury may exceed eight days. She confirmed Dr. Condé's testimony that the employer's representatives are never informed about the nature of an employee's illness. The information sent by the employer's physician is limited to the disability period, the date of return to full-time or part-time work, with or without restrictions. (v) Dr. Jean-Joseph Condé [175] At the beginning of Dr. Condé's testimony, the Complainant relieved him from his patient/physician confidentiality and consented to his disclosing the contents of his medical file and personal notes. From 1992 to 1997, he was the staff physician at Télébec. Since 1997, he has been the Respondent's medical consultant from his private office for medico-administrative issues among its employees. Dr. Condé explained the company's procedure when an employee is on leave due to illness or a work-related injury. [176] The employee must provide a report from his/her attending physician (form 1935) used by the Medical Department, in other words, directly to Dr. Condé's office. Upon receipt of the duly completed form 1935, he reads it and prepares an administrative report (form 1936) reproducing the information in the attending physician's report without disclosing the diagnosis, which is confidential. The administrative report is forwarded to the director and the employee's immediate supervisor. One part of that report is sent to the Benefits Department to notify them of the appropriateness of the leave. A copy is also sent to the employee. [177] The medical consultant meets with the employee when it is necessary to determine whether the employee, who is declared fit to return to work, is ready to resume his/her duties, when the leave is extended, or when the treatment appears to be insufficient or inadequate, in order to reassess the appropriateness of the leave. A report (form 5483) is then prepared by the medical consultant and sent to the same employer stakeholders, including the employee involved. [178] The witness met with the Complainant on August 27, 1996 when he was on leave with a September 2, 1996 return to duty scheduled by his attending physician. The Complainant informed the physician that he had had major depression 11 years earlier. [179] The progress notes in Dr Condé's file (Exhibit P-54) stated that the Complainant had been on leave since August 19, 1996 for major depression with the triggers he identified as change in employment level, loss of a loved one he was attached to, namely his dog, and moving. He concluded that the leave was warranted and that the return to duty scheduled for September 16, 1996 by the attending physician should probably be extended. He recommended that the Complainant continue the psychotherapy he had been receiving once a week since August 16, 1996 and to see his attending physician again in two weeks. [180] On October 1, 1996, the Complainant's attending physician, Dr. Guy Perrier, sent a medical report (1935) to the Medical Department containing a diagnosis of major depression with a return to regular full-time work on November 4, 1996. [181] On October 30, 1996, the patient saw his attending physician again, who filled out another medical certificate (1935) scheduling a return to part-time work for his patient, with no restrictions, as of December 2, 1996. [182] Pierre Bergeron met with Dr. Condé on October 31, 1996. He noted that the Complainant told him he had been feeling better for a month; he was playing sports once a week; his appetite had increased and he was gaining weight; he felt less tired and his physical abilities were increasing; his memory and concentration were fine. Dr. Condé also noted that the patient no longer cried or had suicidal thoughts or sadness. [183] Dr. Condé expressed the opinion that the patient's condition had improved. He recommended that he continue psychotherapy, increase his daily activities to continue getting in shape and take the medication prescribed by Dr. Perrier. [184] Since the return to work that Dr. Perrier scheduled was December 2, 1996, he made an appointment with the Complainant for November 26, 1996 for a back-to-work examination. At that appointment, Dr. Condé noted that the patient was doing much better. He told him that he had increased his physical activity, that his morale was good and that he was in good spirits. [185] He also informed him that he felt less tired and that his energy had increased. He felt better because of the massage therapy and psychotherapy. [186] Dr. Condé concluded that the depression had definitely improved and he approved the attending physician's recommendation for a return to part-time work with no restrictions starting December 2, 1996. However, with the Complainant's agreement, he recommended a gradual return to duty, namely two consecutive days during the week of December 2, 1996, three days a week from December 9, 1996 to January 3, 1997 and five days a week starting January 6, 1997. [187] On December 9, 1996, in Dr. Condé's absence, the Complainant met with the nurse, Linda Doyter, in Dr. Condé's office. She recorded in the file that Pierre Bergeron worked December 2 and 3, 1996. His concentration was good but he felt physically exhausted. She noted that the patient informed her that morale-wise he was fine; he had a new job in which he felt pressure due to his closely monitored performance. He was to see his physician again on December 12, 1996. The nurse decided that, during the week of December 9, the employee would not return to part-time work with no restrictions at a rate of three days a week as planned, but two non-consecutive days a week instead. [188] An appointment was made with Dr. Condé for December 17, 1996 for a follow-up back-to-work examination. Pierre Bergeron did see Dr. Condé on December 17, 1996. The Complainant told the physician that he had worked two days the previous week and felt that his performance at work was good. The Complainant also told him that he felt physically capable of working and that he was ready to increase his performance and time at work. He claimed to have good morale, no symptoms of depression and no crying or sadness. In addition, his appetite was good and he was sleeping well with his medication. [189] In light of these facts, Dr. Condé concluded that the Complainant's condition had improved even more, that he felt fit and that he had no depression symptoms. With Pierre Bergeron's consent, Dr. Condé recommended a return to part-time work with no restrictions at a rate of four days a week for the current week and full time with no restrictions as of December 23, 1996. Since he felt that the patient's progress was satisfactory, Dr. Condé did not plan to see him again. [190] On December 11, 1996, Pierre Bergeron consulted his attending physician for a follow-up examination. The physician noted that his patient had no mood disorders. Dr. Condé felt that on that date, the Complainant's attending physician considered him recovered from depression and fit for duty. [191] On January 14, 1997, Dr. Condé met with the Complainant, who told him that he had not worked on December 23 and 24, 1996. He had taken vacation over the holidays. He started back to work full time on January 6, 1997 and felt that his performance was good. [192] The patient also told him that he had been laid off due to his lack of experience and inability to do the job. Dr. Condé observed that the Complainant accepted the situation calmly; he cried a bit; he exhibited good judgement and good appreciation of the situation. He was hoping to be called back to work. He explained that his diagnostic, based on his impression, was that the patient's calm, controlled reaction to his layoff and the absence of depression symptoms demonstrated that he had recovered from the depression. [193] He also noted that, on January 13, 1997, the Complainant saw his attending physician, who observed that he had no depressive disorder. He had reduced the Paxil intake from 40 to 20 milligrams. (vi) Josée Ferron [194] Josée Ferron was hired at Télébec in April 1992 and has held the position of Human Resources Manager, since January 1996. She was involved in selecting, hiring and moving staff, whereas Lyne Doroftei was assigned to everything relating to labour relations. It has only been since 1999 that she has been responsible for labour relations. [195] At the beginning of May 1996, a request was submitted for filling two installer/repairman positions in Val-d'Or. On May 7, 1996, she posted the two positions on the bulletin boards in the work centres (Exhibit I-14). The document identified the position, location, duration, minimum requirements, job summary and the expected date of employment. The witness explained that the jobs were posted for five business days, in accordance with the collective agreement, and were taken down on May 13, 1996. [196] During that time, employees had to apply using a transfer request, as Pierre Bergeron did (Exhibit P-13) on May 13, 1996. The witness stated that five candidates applied, namely Guy Desgagné, Normand Rouleau, Pierre Bergeron, Daniel Lemieux and Serge Chayer. [197] Josée Ferron stated that, once the posting process was over, she interviewed the candidates who had applied to determine their skills and qualifications for the position. Interviews are sometimes conducted over the telephone, as was the case with the Complainant, who was in La Sarre, whereas the human resources office was in Val-d'Or. The witness conducted the telephone interview with the Complainant on May 22, 1996, and the interview was 30 to 45 minutes long. [198] The witness asked the Complainant some questions to determine whether he had the minimum requirements for the position, to evaluate his ability to work on a team, his sense of cooperation, technical knowledge, independence, sense of responsibility, and his perspective on dealing with customers. [199] The witness stated that she also evaluated the candidate's team spirit, ability to deal with ambiguity, leadership, decision-making skills and knowledge of English, which was considered an asset. [200] The witness stated that, after the interview, she prepared a written evaluation (Exhibit I-23). She wrote in it that the Complainant would have to improve his leadership and that his career motivation was low since he seemed unmotivated after the layoffs and appeared to not understand the current business context; his level of technical knowledge was low. [201] Following the candidate interviews, the witness stated that she met with the Service Manager Serge Faubert, and Alain Rivard or Claude Mayrand to select the candidates. After discussion, one candidate was selected, namely Daniel Lemieux, for one installer/repairman position, while for the second position, they hired someone externally, Alain Brouillette, on June 17, 1997. [202] The witness stated that Daniel Lemieux was notified that he had obtained the position. However, he withdrew, with the result that one installer/repairman position was still not filled. Therefore, a second review of the candidates was conducted along with Serge Faubert and the witness. She stated that she stressed to Serge Faubert that the Complainant had basic knowledge, that he should be given a chance and that it would, at any rate, be a probationary period for the position and that he could always be put back on the callback list as a splicer if he were unable to meet the requirements of the installer/repairman position. [203] The witness stated that it was eventually decided to award the installer/repairman position to the Complainant, which he accepted on July 22, 1996, with a start date of August 6, 1996. (vii) Richard Leblanc [204] Richard Leblanc has been an employee at Télébec in Val-d'Or since 1990 as Manager of Access Network Management. His responsibilities include analyzing the sectors that Télébec serves in order to ensure that network capacity meets customer needs and to ensure network security. His responsibilities also include designing plans for new projects. [205] He stated that, in the fall of 1997, he was the project leader for a six-month project in Chibougamau involving the replacement of an obsolete, congested network. The work was assigned to a subcontractor. There was approximately four to six weeks of cable-splicing work that had to be done by a splicer. A request for this was sent to the Human Resources Department (Exhibit I-18) and the Complainant was temporarily called back to work for the scheduled period (Exhibit P-28). [206] Richard Leblanc recalled that, around the end of November 1997, Pierre Bergeron contacted him to find out whether his temporary position would indeed be over at the end of the six-week period. The witness contacted his immediate supervisor, Yvon Hallé, to suggest keeping the Complainant at work to help the subcontractor. Yvon Hallé decided to keep Pierre Bergeron on the job until December 24, 1997. The witness informed the Complainant of this decision, which he was apparently satisfied with. This employment extension was not confirmed in writing with the Complainant. [207] Richard Leblanc recalled that Pierre Bergeron's employment conditions stipulated that, after 10 consecutive days of work, he had to take four consecutive days off. Pierre Bergeron told him that he would be in Chibougamau from December 1 to 24, 1997. Richard Leblanc told him that if he intended to stay in Chibougamau, he would have to respect the days-off condition. [208] The witness stated, contrary to the Complainant's claims, that he had not told him that his employment extension was for an indefinite period because he did not have the authority to make such a decision and that he was complying with instructions from his immediate supervisor, Yvon Hallé. [209] Richard Leblanc recalled that, on December 9, 1997, he received a telephone call from Pierre Bergeron informing him of his hospitalization in Chibougamau; he asked why he was hospitalized. The Complainant told him that he was not injured, but did not provide further details. [210] The witness contacted Lyne Doroftei in the Industrial Relations Department to find out the procedure to follow in those circumstances, particularly since the Complainant's employment was to end on December 24, 1997. She asked him to send her, by email, the information regarding the agreements with the Complainant and the date his employment would end, which the witness did on December 10, 1997 (Exhibit I-12). She also told him that he would be issued a layoff notice so that he could forward it to the Complainant right away (Exhibit P-30). [211] After receiving and signing the document, the witness learned that Alain Rivard was going to Chibougamau and asked him to go see the Complainant in the hospital to issue him the layoff notice. The witness specified that the quality of the Complainant's work as a splicer, while under his responsibility, was very good and that he did not end his employment because of his health conditions. III. THE ACT [212] Section 7 of the Act stipulates that directly or indirectly to refuse to employ or continue to employ an individual or differentiate adversely in relation to that individual in the course of employment is a discriminatory practice if it is based on a prohibited ground. Section 3 of the Act specifies that disability is a prohibited ground. [213] Section 14 (1) of the Act provides that harassing an individual in the course of employment is a discriminatory practice if it is based on a prohibited ground. IV. BURDEN OF PROOF [214] The Supreme Court's decision in O'Malley1 established that it is first the Complainant's responsibility to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the Complainant's favour in the absence of an answer from the Respondent. V. ANALYSIS A. Was the Complainant adversely differentiated against in the course of employment because of a disability (depression)? (i) Layoff on December 6, 1995 [215] The evidence shows that the Complainant had held a position as a splicer with the Respondent since 1990. On November 20, 1995, he was notified of his layoff effective December 6, 1995. His name was placed on a callback list. The collective agreement gave him recall rights for 24 months following his layoff. [216] The Complainant maintained that the Respondent did not allow him to exercise his bumping rights and stay employed. The evidence shows that the Complainant's claim was unwarranted. In fact, the Complainant's seniority did not allow him to exercise his bumping rights. It should be pointed out that, due to not being able to exercise his bumping rights, the Complainant filed a grievance to assert that right, but the Teamsters Union later withdrew the grievance. [217] The Complainant suggested that his layoff in December 1995 and his inability to exercise his bumping rights made him feel insecure and fearful of losing his job for good, which were the cause of his depression in August 1996. The evidence shows that at the end of 1995 the Respondent undertook a major administrative reorganization of the company, which resulted in many layoffs. Indications are that the Complainant, who had had steady employment with the Respondent for over nine years, was affected by a shortage of work and that he feared for the future of his employment with the Respondent. However, the Complainant did not submit any evidence demonstrating that he had any disability at all during his layoff starting December 6, 1995, except that he had experienced depression 11 years earlier. [218] Without dismissing the Complainant's claim that the events he experienced caused his depression in August 1996, it remains that there is no evidence leading to a conclusion that the Complainant was laid off because of a disability. (ii) Layoff on January 24, 1997 [219] The Complainant started back to work on December 2, 1996 following a sick leave for depression that arose in August 1996. He believed that the Respondent laid him off because of his health condition. [220] The evidence shows that, after he was laid off, the Complainant was temporarily called back to work successively, to his splicer or lineman position, as of March 26, 1996. The evidence also shows that on May 7, 1996, the Respondent posted two installer/repairman positions in Val-d'Or and that the Complainant and four other employees applied. [221] Recall that the Complainant performed the duties of an installer/repairman when he was first hired on May 7, 1987 until April 23, 1990, when he obtained a splicer position. [222] The evidence shows that, at that time, most of the work of an installer/repairman was done in the residential sector. It involved running service wires from poles to residences and installing wires in the residence to give access to the telephone set connections. The installer/repairman would deliver the telephone sets to customers. Repairs involved checking the resistance on the telephone line and the condition of the ground. Installer/repairmen were used only occasionally in the business sector. The work was limited to cabling to allow the installation of small telephone systems and doing programming using predetermined fixed registers. [223] The evidence reveals that, in the business sector starting in 1992, the advent of the microprocessor led to numerous telephone systems with a greatly expanded programming language enabling phones to provide customers with enhanced services. Video-conferencing and the Internet then came on the scene. As a result, programming required installer/repairmen to be analysts. They also had to be in constant contact with customers to determine their needs and sell them equipment geared to those needs. The work of installer/repairmen was becoming less required in the residential sector because the network had been upgraded. Repairs and new system installations were therefore less frequent. [224] The evidence shows that the posting for the installer/repairman positions included a description of the minimum requirements. The Complainant acknowledged that he did not meet some of the requirements, such as basic data transmission knowledge. Regarding the requirement for knowledge of various products and maintenance services (Norstar series and others) that was an asset, he admitted that he was not familiar with the company's products on the market at that time because he had installed only one Norstar system when he was an installer/repairman. As to the requirement for knowledge of programming principles, the Complainant stated that he did not know much about programming principles. Regarding the requirement for being able to transact and communicate with customers, the Complainant acknowledged that in his work as an installer/repairman, he rarely had had to transact and communicate with customers. [225] The evidence revealed that, after receiving the applications from employees interested in the installer/repairman positions, Josée Ferron, Human Resources Manager at that time, interviewed each candidate to evaluate their qualifications and skills for the positions. Josée Ferron conducted a telephone interview with the Complainant and afterwards came to the conclusion that the Complainant lacked leadership and motivation and that his level of technical knowledge was not very high. She prepared an evaluation of each candidate and sent them to Manager Serge Faubert and supervisor, either Alain Rivard or Claude Mayrand. One employee application was selected and, for the second position, a new employee was hired. However, the selected applicant withdrew. After a second review, it was agreed that the Complainant would be awarded the position, which he accepted. [226] The evidence shows that the Complainant started his new job on August 2, 1996 but that he had to be away from work on August 10, 1996 due to major depression. [227] The evidence shows that Dr. Condé, the Respondent's medical consultant, met with the Complainant several times. At the first meeting with the Complainant, Dr. Condé noted that, according to his attending physician's diagnosis, he was suffering from major depression brought on by a change in his level of employment, a move, and the loss of a loved one, namely his dog. He recommended that the patient continue psychotherapy. He saw the patient again on October 31, 1996, who informed him that he was feeling better and less tired. The Complainant felt physically more capable. Dr. Condé learned from the patient that he no longer cried or had sadness or suicidal thoughts. He concluded that the patient's condition had improved. Dr. Condé saw the Complainant again on November 26, 1996 to review the possibility of him returning to work. After learning from the Complainant that he was doing fine, that his morale was good, that he was in good spirits, and that his energy had increased, Dr. Condé believed that the patient's condition had sufficiently improved that he could approve his physician's recommendation for the patient to return to work gradually with no restrictions as of December 2, 1996. [228] The evidence shows that the Complainant started work as an installer/repairman in Val-d'Or on December 2, 1996. His immediate supervisor was Alain Rivard and, in his absence, Claude Mayrand. He returned to work gradually, starting with two consecutive days that week. He was assigned to transferring lines in Senneterre and was then assigned to Télébec Mobilité to help an installer/repairman with the installation of a 032 telephone system. [229] The evidence reveals that, during the week of December 9, 1996, the Complainant was to work three non-consecutive days, but that he worked only two. His immediate supervisor, Alain Rivard, tasked him with installing a Norstar telephone system at the Brasserie La Pépie. While the Complainant was installing this system, Alain Rivard went to the work site and learned from the customer that the Complainant was having problems with programming, that he had told her it was not his area. She was concerned that the deadline for the work would not be met. [230] The evidence unquestionably shows that Alain Rivard met with the Complainant to discuss the situation and that the Complainant told him he did not want to work as an installer/repairman because he preferred being a splicer. In light of these facts, Alain Rivard decided to assign the Complainant some less demanding work. He assigned him to work with two other installer/repairmen, including a union representative, at Aubé Pontiac Buick. [231] The evidence shows that, at that meeting, the Complainant told Alain Rivard about his health condition. Alain Rivard pointed out to the Complainant that there was nothing indicating to him that there were any restrictions on his ability to do the work required and that he had to comply. [232] The evidence reveals that, to make the task easier for the Complainant, Alain Rivard assigned him some work with two other installer/repairmen for refitting some wiring with wire covers at Val-d'Or Performance. Once again, Alain Rivard was informed that the quality of the Complainant's work left something to be desired. [233] The evidence shows that the Complainant worked on December 16, 18 and 20, 1996. During the week of December 16, 1996, the Complainant asked permission to be away from work on December 23 and 24, 1996, which he was not granted because the need for staff did not allow for it prior to the holidays. [234] The evidence shows that on December 20, 1996, at the end of the day, the Complainant felt exhausted and on the verge of tears. He told the secretary that he was leaving work. He partied over the weekend and was unable to come into work on December 23 and 24, 1996 due to gastro-enteritis. [235] The evidence shows that the Complainant went to work on January 6, 1997. Alain Rivard, again trying to help the Complainant, assigned him some pre-wiring work in a government building for a 4:00 p.m.-to-midnight shift. [236] The evidence shows that, on January 7, 1997, the Complainant was called to a meeting with his immediate supervisors Claude Mayrand and Alain Rivard. He was criticized for leaving work on December 20, 1996 without informing his immediate supervisor. He was also criticized for being away from work on December 23, 1996 by taking unauthorized vacation while being away due to illness. He was also told that, even though he had been given relatively easy tasks, his productivity still left something to be desired. [237] The evidence reveals that, during the week of January 6, 1997, the quality of the pre-wiring work was good but that his productivity was still poor. [238] The evidence shows that, on January 8, 1997, Alain Rivard and Claude Mayrand met with the Director Serge Faubert to inform him of their concerns about the Complainant. After thoroughly reviewing the situation, Alain Rivard concluded that the Complainant was unable to perform the installer/repairman duties. [239] The evidence shows that, after obtaining a posted installer/repairman position, the Complainant was on a probationary period pursuant to clause 13.10 of the collective agreement, which provides that [translation] if the employee does not demonstrate the ability to perform the new duties in accordance with company standards within 120 days following the promotion or transfer, the employee shall return to his/her prior position and location .... During that period, the employer can terminate the probationary period if it concludes that the employee cannot meet the normal requirements of the work. [240] The evidence shows that on January 10, 1997, the Respondent informed the Complainant that he would be laid off as of January 24, 1997 on the grounds that, during his time as an installer/repairman, he failed to demonstrate the ability to perform his new duties in accordance with the required standards. The Complainant was returned to the callback list as a splicer with recall rights for 24 months. [241] The evidence shows that the Complainant challenged his layoff by filing a grievance that was subsequently withdrawn by the Teamsters Union. After the grievance was filed, the grievance committee met and the minutes for the discussion were prepared (Exhibit P-65). The Complainant stated that he had applied for the installer/repairman position not because he was interested in the job, but solely to obtain work. [242] The evidence shows that the Complainant met with Dr. Condé on December 17, 1996 for a follow-up examination. He informed the physician that he felt physically ready to increase his time at work and his performance. He stated that his morale was good and that he had no depression symptoms, crying or sadness. Dr. Condé was of the view that the Complainant's condition had further improved and that he had no symptoms of depression. At his request, Dr. Condé saw the Complainant on January 14, 1997, and the Complainant told him that he had been laid off due to lack of experience and inability to do the work. Dr. Condé noted that the Complainant accepted the situation calmly and barely cried. He issued a diagnosis that the Complainant had recovered from his depression. [243] When he returned to work on December 2, 1996, the Complainant already had previous experience as an installer/repairman. To help the Complainant become familiar with his new position, the Respondent assigned him some simple work installing a telephone system in the business sector. The work was not completed within the time frame normally allotted for that type of work. The Complainant was unable to do the programming and his customer interaction was weak. The Respondent assigned the Complainant some basic installer/repairman tasks, specifically cable pre-wiring, and the productivity standards were not met. Even though the work was simple, the Complainant's productivity did not improve. [244] The Complainant's first obligation was to perform his work, even part time, to the satisfaction of the Respondent. I believe that, despite the fact that the Respondent gave him work involving basic tasks for an installer/repairman, the Complainant, who had applied for the position in order to have steady work and who, by his own admission, did not like that type of work, failed to demonstrate the ability to perform the duties of an installer/repairman. The Respondent was justified in terminating the Complainant's probationary period for the installer/repairman position and placing him on the callback list as a splicer. [245] Moreover, I believe that the disability, namely the Complainant's depression, was not a determinant in the Respondent's decision-making. As such, I accept Dr. Condé's unchallenged testimony that the Complainant was fit to return to work gradually with no restrictions. In addition, when the Respondent decided to terminate the Complainant's probationary period for the installer/repairman position, he was not experiencing any depression symptoms and was completely recovered. I therefore conclude, based on the evidence on this aspect of the case, that the Complainant has failed to demonstrate that his layoff on January 24, 1997 was due to disability, namely depression. (iii) Layoffs in 1997 [246] The Complainant maintained that in 1997 he was temporarily called back and laid off several times. According to him, the Respondent wanted him to quit his job and acted knowing full well that he could not refuse a callback without risking his job. In addition, the Complainant claimed that, during the times he was called back, he was under specific working conditions that were not in accordance with those in the collective agreement that apply to permanent employees. As such, he believes that he was treated differently than permanent employees. [247] The evidence shows that, at the end of 1995, the Respondent had to lay off many people. Some employees were placed on a callback list for 24 months from the date of their layoff. To reduce operating costs, the Respondent decided to resort to subcontracting. In light of this situation, the Teamsters Union and the Respondent, through letters of understanding, arranged specific working conditions for laid-off employees to enable it to call these employees back to work temporarily for various projects instead of subcontracting out the work. [248] The evidence shows that the Complainant and all employees on the callback list were affected by the specific working conditions in the letters of understanding. [249] The preponderance of the evidence indicates that employees on the callback list who would state that they were not available for being called back to work would not lose their jobs and would remain on the callback list. [250] The evidence shows, by the Complainant's own admission, that each time he was called back, he accepted the specific employment conditions involved and did not file any grievances. [251] The evidence shows that, when the Complainant was called back for the splicer position, the Respondent was only complying with the provisions of the collective agreement with respect to calling back laid-off employees on the basis of their seniority and ability to carry out the work required. [252] Based on the evidence submitted, I am not satisfied that the Complainant's layoffs and callbacks for temporary jobs by the Respondent was to encourage him to quit his job. On the contrary: the Respondent called the Complainant back to work in accordance with the provisions of the collective agreement with respect to calling back laid-off employees. If it had acted otherwise, it would have interfered with the Complainant's rights. Moreover, since the specific working conditions affected all employees on the callback list, he was not treated differently, because he was one of the employees on that callback list. (iv) Layoff on December 24, 1997 [253] The Complainant argued that the Respondent decided to lay him off on December 24, 1997 because of his health condition, namely depression. [254] The evidence shows that the Complainant accepted a temporary callback as a splicer in Chibougamau starting October 20, 1997 for a period of four to six weeks. [255] The Complainant maintained that, at the end of November 1997, his immediate supervisor informed him that his job would be extended for an indefinite period of time. However, the Complainant's immediate supervisor stated instead that he had informed the Complainant that his job would end on December 24, 1997. [256] The evidence reveals that, at the beginning of December 1997, the Complainant started feeling depression symptoms again. He consulted a physician in Chibougamau, who prescribed Paxil for him. He had to be hospitalized in Chibougamau on December 9, 10 and 11, 1997 due to a bad reaction to the medication, and on December 11, 1997, he again met with the physician in Chibougamau, who issued a medical certificate with a diagnosis of depression. While in the hospital, the Complainant notified his immediate supervisor but did not specify the reason for his hospitalization. [257] The Complainant's immediate supervisor contacted the Industrial Relations Department to determine the procedure to follow, given that the Complainant's job was to end on December 24, 1997. He sent a memo to that department indicating that he had informed the Complainant of his layoff effective December 24, 1997. A layoff notice for the Complainant was prepared on December 10, 1997, and Alain Rivard issued it to him that same day at the Chibougamau hospital. [258] The evidence on this leads me to conclude that the Complainant's health condition was not a determinant in the Respondent's decision to end the Complainant's job on December 24, 1997. I accept the version from the Complainant's immediate supervisor, rather than the Complainant's version, that his layoff was effective December 24, 1997. Moreover, it is clear that, at the time that the Respondent notified the Complainant of his layoff, in other words December 10, 1997, it was unaware of the Complainant's depressed condition. B. Was the Complainant harassed by the Respondents in the course of employment because of his disability (depression)? [259] Under section 14 (1) (c) of the Act, harassing an individual in the course of employment is a discriminatory practice when based on a prohibited ground. According to the provisions in section 3 (1) of the Act, disability is a prohibited ground. [260] The Quebec Human Rights Commission defines harassment in the workplace as follows: [translation] "Conduct manifested through repeated words, actions, gestures, etc. that are vexatious or demeaning and directed at another person or group of people for any of the grounds listed in section 10 of the Charter. The harassment of an individual may involve race, gender, sexual orientation, religion, handicap, etc. 2 [261] The Tribunal must determine the seriousness of the inappropriate behaviour. In Dhanjal, the Tribunal specified that: ...the seriousness of allegedly harassing conduct must be assessed not according to the criterion and perspective of the `'reasonable person'', who would necessarily be a person belonging to the racial majority, but rather according to the criterion and perspective of the `'reasonable victim''. [262] The Tribunal added: Moreover, while the subjective test of the complainant's perception, according to his or her own personality and sensitivity, is relevant and necessary, this is so only at the stage of assessing the actual harm caused to the victim and the damages that result... (3) [263] The Tribunal must also determine the repetitiveness of the inappropriate behaviour. In Commission Scolaire des Deux-Montagnes, the Tribunal said the following in that regard: [translation] "The durability that the vexatious conduct must also have, to constitute harassment, can therefore be established based on the repetitiveness or seriousness of certain actions, to the extent that their effect has a lasting impact."4 [264] The Complainant was absent from work on August 10, 1996 due to illness. During the following week, Claude Mayrand, a representative of the Respondent, visited him at his residence to give him the medical form that he was to have his attending physician fill out. The Complainant's position is that the Respondent's real purpose for that visit was to ensure that he was indeed sick, which he considered harassment. [265] I cannot accept the Complainant's position. In fact, any employee who expects to be absent from work due to illness for eight days or more must use a medical form, duly filled out by his/her attending physician, to inform the employer of the nature of his/her illness and how long he/she will be away from work. I do not believe that a reasonable victim would consider the action by the Respondent's representative as harassment. [266] The Complainant suggested that the Respondent's representative's driving by his residence repeatedly between August 10, 1996 and December 2, 1996, to visit his father and sister constituted harassment. I do not believe that the Respondent's representative's actions, although repetitive, can be considered vexatious and demeaning and sufficient to cause a reasonable victim to conclude that he/she was harassed. [267] Specifically regarding Alain Rivard, the Complainant maintained that the latter discriminated against him by writing phoney letters of reprimand and placing them in his file unbeknownst to him. The only document produced in support of that allegation was a memo from Claude Mayrand to Alain Rivard describing the circumstances of the Complainant's leaving work on December 20, 1996 and his absence on December 23, 1996. However, he admitted that he never officially received any written reprimands from the Respondents. I conclude from this that this allegation of harassment is completely groundless. [268] The Complainant also maintained that, during his part-time employment between December 2, 1996 and January 24, 1997, he was the victim of harassment because of his health condition from Claude Mayrand and Alain Rivard. The alleged harassment occurred during frequent meetings with the Respondent's two representatives in the form of unwarranted rows intended to crush and humiliate him. The preponderance of evidence shows that, during those meetings, the Respondent's two representatives did indeed inform the Complainant, as required, that they were not satisfied with his conduct on December 20 and 23, 1996. Moreover, during that period, according to Dr. Condé's unchallenged testimony, which I believe is completely credible, the Complainant had virtually recovered from his depression and no longer had a disability. [269] The preponderance of evidence is also such that the meetings in question did not end with the Complainant crying, as he stated. If that had been the case, he would surely have brought it up during his appointments with Dr. Condé on December 17, 1996 and January 14, 1997. The opposite was true, however, because the Complainant stated to him on December 17, 1996 that his morale was excellent, he was not crying or sad, and during the January 14, 1997 visit, he told Dr. Condé that he accepted the notification of his layoff calmly and cried only a bit. [270] I conclude from this that the words that Claude Mayrand and Alain Rivard exchanged with the Complainant from December 2, 1996 to January 24, 1997 do not constitute harassment of the Complainant because of a disability. VI. CONCLUSION [271] I believe that the Complainant has failed to discharge his burden of establishing a prima facie case that: Télébec Limitée discriminated against him by treating him in an adversely differential manner in the course of his employment because of his disability, contrary to section 7 of the Canadian Human Rights Act. [272] Télébec Limitée discriminated against him by refusing to provide him with a harassment-free workplace because of his disability, contrary to section 14 of the Canadian Human Rights Act. [273] Alain Rivard discriminated against him by harassing him in the course of his employment because of his disability, contrary to section 14 of the Canadian Human Rights Act. THEREFORE: The complaints are dismissed. Roger Doyon OTTAWA, Ontario May 21, 2004 1Ontario Human Rights Commission and O'Malley v. Simpson Sears Ltd. [1985], 3 S.C.R., pp. 536 to 558 1 2Commission des droits de la personne du Québec, Orientation de la Commission des droits de la personne face au harcèlement en milieu de travail [1987] D.L.Q. 491-492 3Dhanjal v. Air Canada [1996] C.H.R.D. NO4 4H.R.T. v. Commission scolaire des Deux-Montagnes [1993] 19 CHRR, D1 PARTIES OF RECORD TRIBUNAL FILE: T741/4602 and T742/4702 STYLE OF CAUSE: Pierre Bergeron v. Télébec Limitée and Alain Rivard DATE AND PLACE OF HEARING: Montréal, Quebec September 10, 11, 12, and 15, 2003 September 16, 17, 18 and 19, 2003 November 24, 25, 26 and 27, 2003 January 26, 27 and 29, 2004 DECISION OF THE TRIBUNAL DATED: May 21, 2004 APPEARANCES: Pierre Bergeron On his own behalf Patrick O'Rourke For the Canadian Human Rights Commission Reno Vaillancourt For Télébec Limitée and Alain Rivard

2004 CHRT 17

CHRT

Fox v. Musqueam Indian Band

en

2004-05-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7032/index.do

2023-12-01

Fox v. Musqueam Indian Band Collection Canadian Human Rights Tribunal Date 2004-05-10 Neutral citation 2004 CHRT 17 File number(s) T850/10003, T851/10103 Decision-maker(s) Sinclair, Grant, Q.C. Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE DORIS FOX Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MUSQUEAM INDIAN BAND AND DARYL HARGITT Respondent REASONS FOR DECISION PANEL/MEMBER: J. Grant Sinclair 2004 CHRT 17 2004/05/10 [1] This hearing was convened on Monday, May 10, 2004 in Vancouver. At the commencement of the hearing, the Tribunal Registry Officer read the case for hearing and called for appearances. Shera Skinner, Respondent Counsel and Shayda Kassam, Human Resources Advisor for the respondent were present and appeared on behalf of the respondent. [2] The complainant, Doris Fox was not present at the hearing, nor was anyone present or appeared on her behalf. [3] The Tribunal adjourned for 25 minutes and upon resumption of the hearing, the Registry Officer asked whether Doris Fox or a representative of Doris Fox was in attendance at the proceedings. Again there was no response. [4] The affidavit of service of Bruce Biagioni, Process Server, was filed. The affidavit set out that the complainant Doris Fox was personally served on April 20, 2004 with Tribunal letters dated April 14, 2004, March 8, 2004 and February 4, 2004 along with a Notice of Postponement indicating that the hearing would proceed on May 10 to 14, 2004 at the Federal Court of Canada in Vancouver, British Columbia. These documents were filed as exhibits. [5] Also filed was another affidavit of service of Bruce Biagioni setting out that Doris Fox was served personally on April 20, 2004 with the Tribunal letter dated April 19, 2004 to Shera Skinner, along with the respondent's Notice of Motion seeking the dismissal of the complaint against the respondents and the Index from the Tribunal's Book of Jurisprudence. The Commission did not attend the hearing and did not call any evidence or provide any evidence in support of the complaint. No evidence was called by the complainant in support of the complaint. Accordingly, I find that the complaint has not been substantiated and the complaint is hereby dismissed under s. 53(1) of the Canadian Human Rights Act. Signed by J. Grant Sinclair May 10, 2004 VANCOUVER, British Columbia PARTIES OF RECORD TRIBUNAL FILES: T850/10003 and T851/10103 STYLE OF CAUSE: Doris Fox v. Musqueam Indian Band and Daryl Hargitt DATE AND PLACE OF HEARING: May 10, 2004 Vancouver, British Columbia DECISION OF THE TRIBUNAL DATED: May 10, 2004 (Written decision forwarded to the parties on May 27, 2004) APPEARANCES: Shera Skinner Counsel for the Respondent

2004 CHRT 18

CHRT

Communications, Energy and Paperworkers Union of Canada v. Bell Canada

en

2004-06-01

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7028/index.do

2023-12-01

Communications, Energy and Paperworkers Union of Canada v. Bell Canada Collection Canadian Human Rights Tribunal Date 2004-06-01 Neutral citation 2004 CHRT 18 File number(s) T503/2098 Decision-maker(s) Deschamps, Pierre; Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA, FEMMES-ACTION Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent 2nd RULING ON PRIVILEGE PANEL: J. Grant Sinclair, Chair Pierre Deschamps, Member 2004 CHRT 18 2004/06/01 I. INTRODUCTION [1] CEP asserts the existence of a litigation privilege with respect to two documents. [2] Document 1 is a seven page document containing pages 1 to 6 and page 8. This document bears the heading Discussion Elizabeth Millar, May 25 and 28th. Pages 5 and 6 have been produced and entered as Exhibit R-269. Exhibit R-270 is probably page 7 of Document 1. This is not certain. CEP has not produced pages 1, 2, 3, 4 and 8 of Document 1 claiming litigation privilege. [3] Document 2 (Document 382 of CEP disclosure) is an agenda for an August 27th meeting. On the front side of page 1, there are handwritten notes presumed to be written by Fred Pomeroy. The handwritten notes are cont'd over on to the flip side of page 1. Document 2 has been produced to Bell except for the flip side of page 1. CEP claims litigation privilege on the cont'd over notes. II. LAW [4] For CEP to succeed in its claim for litigation privilege, CEP must satisfy the following tests: the communication must have been produced with litigation in mind; the communication must have been produced for the dominant purpose of receiving legal advice or as an aid to the conduct of litigation; prospect of litigation must be reasonable. III. RULING A. Document 1 [5] Pages 5, 6 and 7 have been produced and tendered in evidence. Ms. Blackstaffe has been cross-examined on those exhibits. The transcript shows that she links these pages to Mr. Ranger's assessment of the Manitoba Pay Equity Study. The evidence now shows that pages 5, 6 and 7, are in fact related to a discussion that Ms. Elizabeth Millar and Ms. Blackstaffe had on May 25 and May 28 and have nothing to do with Mr. Ranger's assessment of the Manitoba study. [6] The question is whether CEP by disclosing part of the document has waived any privilege claim to the remainder. In our opinion and supported by law, whether intended or not, waiver may also occur if fairness requires it. CEP has disclosed part of Document 1. Bell has conducted its cross-examination on the understanding that this was the whole of the document. This is not the case and the context is incomplete. Having received part of the document, fairness requires that Bell receive the whole of the document. [7] Further, Document 1 reflects Ms. Millar's views as to pay equity, job evaluation, points, the use of the Manitoba study, the filing of complaints. It does not appear that the document was created for the dominant purpose of receiving legal advice or as an aide to the conduct of litigation. Nor does the evidence or arguments of CEP convince us that the document was produced with litigation in mind. B. Document 2 [8] As for Document 2, the Tribunal also finds that CEP's assertion of privilege is ill-founded. It does not satisfy the tests for litigation privilege. [9] The handwritten notes are personal notes or observations written down by, it is assumed, Fred Pomeroy. We are not satisfied that these notes are a communication by Mr. Pomeroy or are the result of any communication received by Mr. Pomeroy for the purpose of receiving legal advice or as an aid to litigation. [10] Accordingly, CEP must produce to Bell the disputed pages relating to Document 1 and Document 2. Signed by J. Grant Sinclair, Chair Signed by Pierre Deschamps, Member OTTAWA, Ontario June 1, 2004 PARTIES OF RECORD TRIBUNAL FILE: T503/2098 STYLE OF CAUSE: Communications, Energy and Paperworks Union of Canada, Femmes-Action v. Bell Canada DATE AND PLACE OF HEARING: Ottawa, Ontario May 31, 2004 RULING OF THE TRIBUNAL DATED: June 1, 2004 APPEARANCES: Peter Engelmann Fiona Campbell For Communications, Energy and Paperworkers Union of Canada Carmen Lantin Ouimet For Femmes-Action Andrew Raven Fiona Keith For the Canadian Human Rights Commisson Peter Mantes Guy Dufort Steve Katkin For Bell Canada

2004 CHRT 19

CHRT

Genest v. Bell Mobility

en

2004-06-04

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7026/index.do

2023-12-01

Genest v. Bell Mobility Collection Canadian Human Rights Tribunal Date 2004-06-04 Neutral citation 2004 CHRT 19 File number(s) T753/0303 Decision-maker(s) Doyon, Roger Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARC GENEST Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL MOBILITY Respondent REASONS FOR DECISION MEMBER: Roger Doyon 2004 CHRT 19 2004/06/04 [TRANSLATION] I. INTRODUCTION II. EVIDENCE A. Complainant's evidence (i) Marc Genest (ii) Angello Galletto (iii) Martin Pelletier (iv) Gisèle Tétrault (v) Karine Mariasine (vi) Lorenzo Casanova B. Respondent's evidence (i) Sophie Boucher (ii) Sylvie Sauvé (iii) Geneviève Britt (iv) Katherine Daoust (v) Michel Côté (vi) Lucie Laroche (vii) Patti Sommerfeld III. THE LAW IV. ANALYSIS V. CONCLUSION I. INTRODUCTION [1] Marc Genest was an employee of Bell Mobility in June 1995 when a new group insurance plan for employees came into effect. The Complainant, who is homosexual, claimed that the Respondent denied him the right to purchase life insurance for his same-sex spouse. Marc Genest believes that, in doing so, Bell Mobility discriminated against him by treating him in an adverse fashion in the course of employment because of his sexual orientation (homosexual) and marital status (same-sex relationship) contrary to section 7 of the Canadian Human Rights Act (the Act). II. EVIDENCE A. Complainant's evidence (i) Marc Genest [2] Marc Genest was hired by Bell Mobility in March 1994 as a full-time temporary employee. He held a position at 1425 Trans-Canada Highway, Dorval. He achieved permanent part-time status on June 28, 1995. [3] He was part of a group of about 30 employees assigned as customer service representatives under the supervision of Karine Mariasine. The customer service department occupied one part of a floor in the building and was divided into workstations in small cubicles. Another part of the floor was occupied by about 12 employees in the collections department. Executives occupied the offices near the employee work areas. The ground floor was occupied by the human resources department and administration department. Approximately 80 people working for Bell Mobility were in this building. About 30 of them had disclosed their sexual orientation, but it was not a subject that was discussed. He therefore did not reveal his orientation except for one instance under very specific circumstances. In April 1994, he was in training for a month under an instructor. He had been very upset after his partner was involved in a car accident, and he confided in his instructor. [4] Marc Genest related that in 1995 he had been in a relationship with a spouse of the same gender for almost eight years. [5] After becoming a permanent employee in June 1995, his employer gave him a brochure with information on the group insurance plan for Bell Mobility employees and instructed him to indicate his insurance selections by filling out the insurance options form attached to the brochure and send it to the human resources department via internal mail. He stated that he did not recall whether information sessions were given to employees for explaining the group insurance plan to them. [6] After reviewing the brochure, Marc Genest believed that it provided no information on purchasing life insurance for same-sex spouses. [7] He therefore made an appointment with Lucie Laroche in the human resources department to obtain more information and complete the insurance options form (Exhibit P-4) to make sure he was making well-informed selections. That meeting was held in Lucie Laroche's office around 11:00 a.m. on August 28, 1995. [8] The witness stated that he informed Lucie Laroche that he had a spouse of the same sex and that he did not understand why the group insurance plan allowed an employee to insure his/her same-sex spouse for accidental death and dismemberment but not for life insurance. At the witness's request, Lucie Laroche told him that she had been living with her husband for four years. He retorted that it was unthinkable that after only four years of living together she could purchase life insurance for him when he himself, despite living with his partner for over seven years, could not do so. Lucie Laroche listened carefully to his arguments, but told him that he could not obtain life insurance for his spouse because he was living with a same-sex spouse. [9] He recalled that Lucie Laroche told him that he could inform his supervisor, Karine Mariasine, about his complaints. She told him that nothing could be done to rectify the situation and to talk about it to Sylvie Sauvé, who was also a supervisor. The latter told him that she did not have the same problem as he had because in her case her female partner was also a Bell Mobility employee, which allowed her to be a beneficiary of her partner's life insurance and vice versa. Marc Genest realized that he could not enjoy the same prerogatives as his supervisor because his partner was not a Bell Mobility employee. Even though he believed he was being adversely differentiated against, he did not pursue the matter for fear of losing his job, which had only just recently become permanent. [10] Marc Genest explained the selections he made when filling out his insurance options form (Exhibit P-4). Some of the options he selected were paid by the employer and the rest by him. He decided to become a member of the health insurance plan for himself alone because he did not see the need to register his spouse as well, who did not have the privilege of group insurance. [11] The Complainant decided to take dental insurance for both himself and his partner. He selected the life insurance option for himself that represented twice his annual salary. He acknowledged that he designated his mother as the beneficiary of that insurance. The Complainant selected accidental death and dismemberment insurance (AD&D) for himself at the rate of five times his annual salary. Since his partner had been in a serious car accident in 1994 without being injured and that his work as real estate broker required the constant use of his vehicle, the Complainant selected AD&D for his spouse in the amount of $200,000. He felt that, in the event of the accidental death of his spouse, this amount would allow him to deal with the financial consequences with no problem. Finally, the Complainant purchased long-term disability insurance. This option was not available to his partner. [12] Marc Genest also indicated his partner as a dependant on the form. When he finished filling out the options form, he sent it via internal mail to the human resources department, which sent the Complainant a confirmation sheet (Exhibit P-6) showing that his insurance plan matched the options he had selected for the period of June 29, 1995 to May 31, 1996. The witness stated that he did not recall renewing these insurance benefits in 1996 and 1997 because his insurance options stayed the same. [13] The witness stated that, at that time, his spouse had $50,000 in life insurance, for which he was the beneficiary. He wanted to purchase life insurance for his spouse for the maximum amount provided for by the group insurance plan to ensure his financial security in the event of his spouse's death. [14] Marc Genest related that in 1997 his spouse, employed by Royal Lepage as a real estate broker, lost his employee status when he became self-employed. On the due date for paying his $800 life insurance premium, his spouse could not meet this obligation. His spouse's father agreed to pay the premium, provided that he would be made the beneficiary of the policy. His spouse's father became the beneficiary of the policy. [15] The witness mentioned that his spouse's father, an Egyptian, never accepted his son's homosexuality. [16] The witness stated that between August 28, 1995, when he met with Lucie Laroche, and June 15, 1998, the employer did not provide its employees with any information on the group insurance plan or information sessions to explain changes to the group insurance plan. The Complainant, for his part, acknowledged that he had no discussions during that time with Lucie Laroche dealing with the situation. [17] Marc Genest recalled that on June 15, 1998 Lucie Laroche held an information session to explain to employees the changes to the group insurance plan. She stated that same-sex spouses were now eligible for all insurance options in the group insurance plan. The Complainant publicly stated [translation] What happens to me now that my spouse is dead? (Volume 1, page 127). Lucie Laroche replied that he could find consolation in the fact his struggles would benefit other employees in the same situation. [18] After his spouse died on February 16, 1998, he told Lucie Laroche about it. He was very surprised that she told him on the spot that his spouse had no life insurance coverage. She then informed him that he would have three days of bereavement leave. [19] Marc Genest was asked to review the group insurance contract with Aetna Canada (1995) for Bell Mobility employees (Exhibit P-2) and an excerpt from that contract (Exhibit P- 3). He stated that he had never seen them before. [20] The witness was affected by the death of his partner and had great difficulty doing his work; he felt a pressing need for psychological help. He asked the human resources department to provide him with the services of a psychologist through the employee assistance program (EAP) set up by the company and to which employees financially contributed. It was not until a year later that he was able to meet with a psychologist, who was of no help. [21] Marc Genest stated that starting in March or April 1998, after his spouse's death, he increased his requests to Angello Santullo of the human resources department for a copy of the group insurance contract. He told him that he did not have a copy of the contract. Then in September 2000, he contacted Julie Walbrecq, also in human resources, but his efforts were again unsuccessful. The document in question was obtained through the inquiry in connection with this complaint. [22] Marc Genest was renting a house in Île Perrot with his spouse. They were joint owners of a sailboat. The Complainant owned his vehicle while his spouse used a rental vehicle. Through his work as a real estate broker, his spouse had a net annual income of approximately $70,000. However, the witness recalled that, as of July 1997, his spouse slowed his pace of work due to fatigue and a drop in the real estate market. The Complainant stated that his spouse previously had excellent health. Although not a serious athlete, he sailed and went dancing three times a week. He expended a great deal of energy at work. In September 1997, after his spouse returned from a trip to Florida, he noticed that his spouse was again affected by fatigue. He advised him to see the doctor, but he did not go. He was no longer working and his health was deteriorating; his weakened state required him to be hospitalized on October 27, 1997 at the Montreal General Hospital. After numerous examinations, his spouse was diagnosed HIV-positive. He was able to leave the hospital for the Christmas holidays and was then admitted to a home-care centre and passed away on February 16, 1998. [23] Marc Genest disclosed that during his spouse's illness he himself had to cover all the expenses that they had formerly shared, including the housing expenses, and be away from work for six weeks. In addition, even though it was not recommended, he obtained some marijuana to stimulate his spouse's appetite. At the time of his spouse's death, his financial situation was shaky and everything worsened after his death. He had to use the $5,000 line of credit he had obtained. He put $20,000 on credit cards. He had to pay $4,000 to clear his spouse's debt. His mother advanced him $8,000, which he has not repaid. He had an annual income of approximately $23,500. In addition to the trauma of losing his spouse, Marc Genest stated that the weight of his financial obligations caused him a great deal of stress and anxiety. The Complainant stayed in the residence he had shared with his spouse in Plateau Mont-Royal until July 1999 because he could not bring himself to deal with it any sooner. He rented an apartment for $700 a month plus heat. In August 2001, he rented a less expensive apartment and in 2002 his financial situation forced him to rent a room in a friend's home for three months. When he returned to work in October 2002, he rented an apartment for $550 a month. [24] In October 1998, he suffered hyperventilation, which required him to be hospitalized for a day and be away from work for several weeks. In October 1999, he suffered severe depression resulting from incomplete mourning. This required him to be away from work for several weeks. [25] Marc Genest quit his job with Bell Mobility in February 2001 and was unemployed for one year. He had to liquidate all his assets to provide for his needs. He started working again in the fall of 2002 as a representative with a trust company with yearly earnings of $28,000. The Complainant had gone to school for tourism, specifically as a travel agent and tour guide. He also had training as a real estate agent and broker. [26] The witness stated that he was unaware that a life insurance beneficiary must claim the benefit within six months after the death of the insured. [27] In an email to Julie Walbrecq (Exhibit I-1, Tab 7) on September 11, 2000, the witness wrote that the information meeting in 1998 attended by about 20 people was led by Geneviève Britt from the human resources department. The purpose of that meeting was to inform employees of changes made to the group insurance plan. [28] The Complainant acknowledged that on September 26, 2000 he sent a letter to the Canadian Human Rights Commission. He wrote that his not being able to purchase life insurance for his spouse in 1995 was overt discrimination. In his testimony, he maintained that he had complained to Lucie Laroche, Karine Mariasine and Sylvie Sauvé, but conceded that he did not use the term overt discrimination. He stated that he had indicated that the situation he was faced with made no sense at all and was unfair. [29] Marc Genest sent Aetna Canada a formal notice on February 15, 2001 (Exhibit I-1, Tab 9) in which he claimed payment of $20,000 due to the death of his spouse on February 16, 1998. He claimed that the $20,000 he was claiming was the basic life insurance amount. He sent this formal notice because, despite repeated requests, he was unable to obtain a copy of the group insurance contract. [30] On April 29, 2002, the witness communicated his version of the facts in writing to the Canadian Human Rights Commission. He said that, during his meeting with Lucie Laroche in August 1995, she had put an X on the page dealing with life insurance in the brochure explaining the group insurance plan. [31] He added that Lucie Laroche had told him that basic life insurance coverage for a spouse of the opposite sex was $20,000, which could be increased by paying additional premiums. However, this was not available to him under the circumstances. [32] In that same document, the Complainant revealed that in the fall of 1999, during a meeting with Geneviève Britt, Director of Human Resources, she indicated to him that in 1995 it would have possible to insure his spouse's life. It simply involved identifying him with his last name and the feminine version of his spouse's first name. [33] At that same meeting, he informed Geneviève Britt that he needed help because he was depressed and felt discouraged by life. Geneviève Britt referred him to a psychologist who told him he should go directly to emergency at the hospital. He refused to go because he did not believe that the psychologist's recommendation was valid. He did not consider it appropriate to keep going back to someone in the human resources department to use the employee assistance program. [34] In that document, Marc Genest stated that his partner was a member of a health insurance plan through his employer. He conceded in cross-examination that that was not the case. The witness stated that the explanatory brochure about the group insurance plan defined the word spouse without distinction as to same-sex spouses. [35] The witness stated that in 1995 Bell Mobility employees generally did not publicly acknowledge their sexual orientation for fear of offending people or jeopardizing their chances for promotion. He claimed that, at that time, only three out of the 30 customer service representatives were homosexual. He denied that homosexual people joked about homosexuals, even during small theatre performances at social evenings. [36] In cross-examination, the Complainant acknowledged that his partner's annual income, which he had confirmed as being around $70,000 net, had instead been approximately $40,000 gross for each of 1995 and 1996 and lower in 1997. He believed that, during those years, his and his partner's financial situations were good. In cross-examination, he conceded that his partner had filed an assignment in December 1996 and that he was informed about it in May 1997. He said that he had been very surprised because his partner had never told him about his financial difficulties and was frustrated that his partner had acted on his father's advice, without discussing it with him first. [37] Marc Genest stated that, when his partner returned from a trip to Florida in September 1997 to visit his mother, he noticed that his partner had lost a great deal of weight and was having difficulty getting around. He then suspected him of having AIDS. He was unable to specify when he contracted the disease and he had never discussed it with him. [38] Marc Genest revealed that in December 1996 his spouse told him that he had been around. The Complainant stated that he had understood what he meant and did not want to know any more about it. [39] Marc Genest claimed that, as far as he knew, before his hospitalization in November 1997 his spouse saw the doctor about twice a year. He did not know if it was his own doctor. [40] The witness was asked to verify the summary of his partner's medical consultations for the period of January 30, 1996 to January 18, 1998 (Exhibit I-2). This summary came from the Régie de l'assurance-maladie du Québec and showed that between February 28, 1997 and November 5, 1997 the Complainant's partner underwent 21 medical procedures. Marc Genest stated that his partner had not kept him up to date about his visits to the doctor. (ii) Angello Galletto [41] Angello Galletto worked at Bell Mobility for three years starting on August 11, 1997. After completing a three-month probation period, he achieved permanent employee status, which entitled him to the benefits that the Respondent grants its employees, including the group insurance plan. [42] The witness said that he had attended an information session with about 12 other colleagues given by Katherine Daoust, a human resources advisor, to explain to them such things as the types of coverage provided for by the group insurance plan. Once given this information, employees had to indicate the insurance coverage options they wanted to purchase. [43] The witness, who is homosexual, was living with a same-sex spouse in February 1996 after three months of dating. He maintained that, during the information session, insurance coverage for same-sex spouses was not brought up. Angello Galletto recalled contacting Katherine Daoust to find out whether he could designate his partner as a life insurance beneficiary. She replied that it was not possible but that what he could do was state the beneficiary's last name and just the first letter of the beneficiary's first name. He decided not to take that approach, particularly since his partner had life insurance through his employer's group insurance plan. [44] The witness stated that, during the training session, he did not raise the issue of his partner's insurability because in his view it was a private matter. In addition, he believed that at that time sexual orientation was not recognized at Bell Mobility. According to him, it was a topic that was not brought up with management. Discussions may have been held among employees who were friends. It was nevertheless recognized that a number of people employed at Bell Mobility were homosexual. (iii) Martin Pelletier [45] Martin Pelletier was Marc Genest's partner from September 1999 to April 2000. When they first met, the Complainant told him that his partner had died on February 16, 1998 and that his employer had previously not let him purchase life insurance for his partner. The witness later learned that the Complainant had had many financial difficulties following the death of his partner and that he had had no money. He had not been able to pay for his partner's funeral expenses and had to give up the luxury apartment they had shared together. Marc Genest attributed his financial difficulties to the fact that his employer denied him the chance to purchase life insurance for his spouse, for which he would have been the beneficiary. [46] Marc Genest also informed him that, in the months following his partner's death, Bell Mobility modified the group insurance plan to allow employees to purchase life insurance for same-sex spouses. He also told him that he had tried to obtain a copy of the group insurance contract from both the insurer and his employer but that they never addressed his request. [47] The witness stated that he took the first steps that led to the filing of the complaint because he realized that Marc Genest was not emotionally capable of doing so. (iv) Gisèle Tétrault [48] Gisèle Tétrault is Marc Genest's mother. She said that during the six months preceding the death of her son's partner, he started having financial problems due to his partner's lack of income since his partner was sick and unable to work. She had to assist her son financially by lending him $2,500. After her son's partner died, his financial problems increased and she lent him $5,500. These loans have not been repaid. (v) Karine Mariasine [49] Karine Mariasine was an employee at Bell Mobility in 1995 and 1996 as a supervisor in the customer service department. She recalled that in the spring of 1995 Marc Genest came to see her to inform her of the problems he was having in getting insurance coverage for his spouse. She told him that she could not help him. The witness stated that at that time there were at least 12 employees in the customer service department who had publicly acknowledged their homosexuality. (vi) Lorenzo Casanova [50] The witness started with Bell Mobility at the same time as Marc Genest. He specifically worked with the Complainant in 1997 and 1998. The witness said that he was aware that, after his partner died, Marc Genest was having problems with the group insurance plan. [51] The witness said that, during the time he was employed with the Respondent, several employees were homosexual and that some homosexual employees had partners who worked at Bell Mobility. [52] The witness recalled that information sessions on the group insurance plan had been given in 1998 by human resource representatives and that he had attended. B. Respondent's evidence (i) Sophie Boucher [53] Sophie Boucher was hired by Bell Mobility in 1986. She started as a clerk and was promoted to the customer service department, then the collections department, and finally the telecommunications department. [54] After she came to Bell Mobility, she always acknowledged her homosexuality. In 1995, her partner had also been working at Bell Mobility since 1990. She had been hired as a customer service representative and then became a supervisor and finally a director. [55] She maintained that in 1995 management did not have a problem with employees' homosexuality. She recalled an example where she had told her boss about her desire to have a child and about the steps she had taken. She also recalled that several employees publicly acknowledged their homosexuality. [56] Sophie Boucher stated that before 1995 there was a group insurance plan at Bell Mobility that controlled employee membership in the various insurance categories. As of 1995, the new group insurance plan allowed employees to select different types of insurance coverage. That was why human resource representatives held information sessions to explain to employees the types of insurance coverage available and the costs involved for both the employer and employees. [57] The witness stated that she had no interest in insurance coverage for same-sex spouses because her partner, also a Bell Mobility employee, could purchase life insurance. (ii) Sylvie Sauvé [58] Sylvie Sauvé was hired by Bell Mobility in March 1990 as an online representative. In 1994, she was promoted to supervisor and then in 1997 became Director of Customer Service. [59] In May 1990, the witness met her partner, who was also a Bell Mobility employee. They always publicly acknowledged that they were gay. She stated that her sexual orientation never hindered her career. She said that several employees publicly acknowledged their homosexuality, including one of her gay colleagues, who was a director. Homosexual employees sometimes joked about her sexual orientation. [60] The witness said that, with the arrival of the new group insurance plan in 1995, she was not concerned about life insurance for her partner since she too was a Bell Mobility employee. [61] She stated that the Complainant had talked to her about the situation he was experiencing regarding life insurance coverage for his partner and that she had replied that she was not in the same situation because her partner was working for Bell Mobility. (iii) Geneviève Britt [62] Geneviève Britt was hired by Bell Mobility in 1995 for the position of Director of Organizational Training and Development. In 1996, she held the position of Director of Employee Relations and, at the end of 1997, Director of Human Resources at Bell Mobility Cellular. In 1999, she quit that job to become Director of Human Resources at Bell Express Vu. [63] She met the Complainant in the spring of 1998 when he came to see her because of the difficulties he was having following the death of his partner. The Complainant had told her that his partner was Egyptian and that his family did not accept their relationship very well, which was stressful for him. In addition to being in mourning, he informed her that he had financial problems. [64] Geneviève Britt asked the Complainant if he had purchased life insurance for his partner. He responded that he was unaware that he had that possibility and seemed very surprised to hear it. [65] The witness stated that she suggested he use the employee assistance program. Because he appeared exhausted, she advised him to see a doctor. Geneviève Britt said that she could not have met with the Complainant in 1999 because she was working for Bell Express Vu. [66] The witness revealed that, contrary to the Complainant's statements in his letter to the Commission dated April 29, 2002, she had not given him any information on the group insurance plan because her duties were never in that area. She categorically denied telling the Complainant that he could indicate his partner's first name in the feminine to allow him to purchase life insurance for him. She claimed that she would never have encouraged the Complainant to commit insurance fraud. [67] The witness maintained that people were very open-minded at Bell Mobility and that no differentiation was made between homosexual and heterosexual employees. She stated that several employees in 1995 publicly acknowledged their homosexuality at work. [68] The witness did not recall holding an information meeting on the group insurance plan in 1998 that the Complainant cried at. [69] The witness stated that after she was hired in 1995, she was informed that the group insurance plan was offered to same-sex spouses. She reported that in 1998 staff meetings were held to explain the changes to the group insurance plan. (iv) Katherine Daoust [70] Katherine Daoust has been an employee at Bell Mobility since April 1, 1985. She was an executive assistant. Since September 1995, she has held the position of Executive Director of Benefits. [71] She was asked to meet with employees in small groups to provide them with information about the benefits that Bell Mobility offered, such as the group insurance plan. She stated that she indicated that the group insurance plan was available to same-sex and opposite-sex spouses, provided that it was publicly known that the couple had been living together for at least 12 months. [72] In this regard, she conceded having told Angello Galletto that he could not insure his partner because he had not been living with him for at least 12 months. The witness revealed that there were many employees, both male and female, who acknowledged their homosexuality without any problems. [73] She stated that, at each meeting she held with groups of employees, she made it her duty to inform them because she was concerned that new employees would not raise the issue of insurability of same-sex spouses. (v) Michel Côté [74] Michel Côté started working at Bell Mobility in 1988 on a special telemarketing project. He was promoted to telecommunications coordinator and then administration coordinator. In 1996, he held that position in Toronto. In 2002, he had the same responsibility with Bell Express Vu. [75] The witness stated that he is gay. He believed that Bell Mobility management did not discuss employees' sexual orientation. He stated that he was able to conduct his life as a homosexual in peace. For example, the witness recalled that, during the holiday period, performances were organized that often dealt with homosexuality, particularly since the two hosts were gay. These performances were recorded and a video was sent to Bell Mobility managers who wanted to see the performances. The performances that the witness had participated in for six or seven years were approved in advance by the management committee. [76] The witness said that a committee consisting of a manager and about 12 employees was established. The committee's mandate was to educate management about problems that employees were having at work and to develop solutions. The witness stated that during one of the committee's meetings he suggested that insurance benefits should be the same for both heterosexual and homosexual couples. He claimed that his suggestion was adopted for the June 1995 deployment of the group insurance plan. [77] When the new group insurance plan came into effect, the witness was living alone but was seeing someone of the male gender who was working at Police Credit Union in Ottawa. In 1996, that person became his partner. He purchased life insurance and accidental death and dismemberment insurance for his spouse. (vi) Lucie Laroche [78] Lucie Laroche has been a Bell Mobility employee since September 29, 1986. From January 1992 to November 1998 she held the position of human resources administrator and was then assigned to the payroll department. [79] She was in charge of managing the various benefits programs such as the insurance plan, retirement plan, employee assistance program and share purchase plan. [80] Lucie Laroche said that when an employee achieved permanent employee status he/she was eligible for the benefits programs. The human resources department had a kit specially prepared for permanent employees. It contained a brochure explaining the group insurance plan called >[translation >] Flex Benefits, along with an insurance options form. It also contained information on the other benefits programs. Employees were then invited to attend an information session in small groups given by a human resources representative who was very familiar with the benefits programs. During the session, the kits were issued to employees and the information was conveyed. Employees than had to decide which insurance coverage they wished to purchase. If they needed clarification on the insurance options, they could obtain information from a human resources administrator. Employees then had to fill out the insurance options form and forward it to the human resources department via internal mail. Finally, an insurance coverage confirmation sheet from the insurer would be sent to employees through the human resources department. [81] The witness revealed that the [translation] Flex Benefits brochure listed the insurance plans available, the content and the rates. It explained each of the plans. For example, the brochure contained information on the employee life insurance plan. It specified that the basic employee life insurance was $10,000. An employee could increase the insurance benefit twice up to seven times his/her salary. The witness explained the accidental death and dismemberment insurance plan (AD&D). This insurance coverage applied only to the accidental death of employees. In practice, in the event of accidental death, AD&D coverage and life insurance coverage would apply, but not in the case of natural death. In the event of dismemberment, a percentage of the insurance coverage would apply. The percentage varied according to the seriousness of the dismemberment. The brochure also contained information on the dental insurance, health insurance, and long-term disability. [82] The brochure also offered life insurance for spouses in increments of $25,000, and the premium was to be paid entirely by the employee. The witness explained the requirements for a person to be considered a spouse: married through a civil or religious marriage or common-law spouse. To be a common-law spouse, the person must have been living with another person for at least 12 months and publicly acknowledging that they were a couple. She maintained that same-sex spouses were recognized in the same capacity as heterosexual spouses. [83] According to the witness, the brochure also indicated the possibility of AD&D coverage for spouses and children as well as life insurance coverage for children. [84] The witness said that, before the advent of the Flex Benefits program, the insurance options of the group insurance plan in effect at the time were not as diversified as the new program and that the plan did not give employees the opportunity to select insurance options that fit their particular needs. [85] The witness pointed out that in 1994 she was part of a working group consisting of consultants and Bell Mobility representatives who were involved in developing the Flex I program with the insurance company Aetna Canada and implementing it on June 1, 1995. With reference to the group insurance contract in effect in 1995 (Exhibit P-2), the witness indicated that all applications for life insurance coverage for employees or their spouses did not require proof of insurability if they were made within 31 days of the date that an employee became eligible for the group insurance program. Eligibility was conferred on the date an employee achieved permanent status. If the insurance application was made after that time period had expired, the insurer required proof of insurability. [86] According to Exhibit P-2, page 7 ELIB, the witness explained the various life insurance options available to employees. The first option was the mandatory $10,000 of basic life insurance; the second option was insurance representing one times an employee's annual salary up to seven times the annual salary. As for spousal life insurance (Exhibit P-2, page 7, 2-DLIB2), we see that an employee can select life insurance coverage for his/her spouse ranging from $25,000 to $250,000. However, an employee could not purchase life insurance for his/her spouse for an amount higher than the life insurance he/she had purchased for him/herself. [87] Moreover, if the spouse's life insurance coverage was higher than $25,000, proof of insurability was required. In addition, when renewing the life insurance each year, any increase in spousal life insurance coverage required proof of insurability. [88] Finally, on page 9 of Exhibit P-2, Lucie Laroche indicated that all life insurance benefit claims had to be submitted to the insurer within six months of the death of the insured. [89] Lucie Laroche explained that employees' insurance option selections were valid until the renewal date of June 1, 1996. In the spring, employees would receive a new kit containing items such as the brochure explaining the group insurance program and the options form. Information meetings were held, and employees wanting to make changes to their insurance selections could do so by filling out the options form. The employee was to send the form to the human resources department, which would forward it to the insurer. Once the changes were approved, the insurer would issue a confirmation sheet to the employee via the human resources department. The same procedure was followed each year. [90] The witness was asked to comment on the insurance options form filled out by Marc Genest on August 28, 1995 (Exhibit P-4). The document shows that Bell Mobility made $411.12 available to the Complainant to pay the costs of some insurance plans. It also shows that Marc Genest chose to purchase health insurance for himself and dental insurance for himself and his partner. As for life insurance, Marc Genest selected life insurance coverage representing twice his annual salary. He did not purchase spousal or child life insurance. He selected AD&D for himself with coverage of five times his annual salary and AD&D for his partner with coverage of $200,000. He also purchased long-term disability insurance for himself. [91] The form also shows that the Complainant designated his mother as the beneficiary of his life insurance and AD&D, and his partner as a dependant. [92] Lucie Laroche revealed that when Marc Genest became a member of the group insurance plan his annual salary was $24,226.80 in August 1995. Therefore, since he had purchased life insurance representing twice his annual salary, he had $49,000 of life insurance. If Marc Genest had selected life insurance for his partner, it would have been for $25,000, according to the witness's version. She explained that spousal life insurance was offered in increments of $25,000 and that $50,000 of life insurance for his partner would have exceeded the amount of his own life insurance, which the insurer did not allow. [93] Lucie Laroche stated that in 1995 she had been married for nine years and was the mother of two children. [94] The witness said that in 1998 the Flex I program was replaced by the Flex II program. The new program did not involve major insurance coverage changes. The program was modified to enhance the flexibility of insurance selections. [95] When this program came along, Lucie Laroche helped prepare the document called [translation] Flex Benefits 2 that was issued to employees at the information sessions. She also trained the human resource representatives who were called upon to hold the information sessions. She also held some herself. [96] The witness recalled that all types of insurance coverage including health insurance, dental insurance, life insurance and AD&D were offered to same-sex spouses as well as opposite-sex spouses. [97] The witness was asked to comment on a letter that the Complainant sent to the Commission on September 26, 2000 (Exhibit I-1, Tab 8). Paragraph a) reads as follows: [translation] "The group insurance program in effect does not provide life insurance coverage for same-sex spouses, despite the fact that this same policy accepts same-sex spouses for all the other types of coverage, which I signed my spouse up for." [98] In paragraph b), the Complainant maintained that: [translation] "The policy in effect requires that payment be made through direct deductions from the pay of all employees for a basic premium that covers things such as basic life insurance protection of $20,000 for employees' opposite-sex spouses." [99] Lucie Laroche stated that the insurance contract did not require payment by direct deductions from employee pay for a basic insurance premium. She also maintained that there had never been basic life insurance coverage for same-sex or opposite-sex spouses. Moreover, the group insurance plan contained no mention of $20,000 in basic life insurance for spouses. [100] Lucie Laroche stated that Bell Mobility had established an employee assistance program (EAP) to provide timely support services to employees experiencing personal problems or requiring psychological, financial or legal assistance. The EAP had a call centre that an employee would contact. Once the problem was submitted, arrangements were made to refer the employee to a consultant who would be able to assist him/her. [101] The witness was asked to comment on the Complainant's claim that during a meeting she had put an X on the page of the brochure explaining the life insurance and stating that he was not entitled to it for his spouse. Lucie Laroche denied the claim and was certain that all types of insurance coverage applied to same-sex spouses. [102] Lucie Laroche recalled a conversation the Complainant had had with her, not to inform her of the death of his partner, but several months later. The Complainant had informed her that he was having financial problems and that he was saddened by the death of his partner. [103] The witness stated that she had no recollection of an information session with employees in June 1998 during which she would have stated that Flex Benefits 2 now allowed complete insurance coverage for same-sex spouses. She is also certain that she would not have said such a thing because the Flex Benefits program had already been allowing insurance coverage for same-sex spouses since 1995 and that the Flex Benefits 2 program had not changed in that regard. [104] Lucie Laroche stated, with reference to the document showing Marc Genest's annual salary progression (Exhibit I-1, Tab 2), that he had achieved permanent part-time status on June 28, 1995 and permanent full-time status on April 27, 1998. [105] In cross-examination, the witness was asked to comment on the fact that in 1995 insurance coverage for same-sex spouses did exist but was not advertised. The witness stated that in 1995, after receiving training on the group insurance program, she developed her own method after training the other employees who were to hold the information sessions. Therefore, she claimed that, at the training sessions and the information sessions for employees, she gave all the information regarding insurance for same-sex spouses. She stated that the information was given during the training sessions in small groups of employees. [106] The witness stated that she recalled a meeting with two employees in an office. She was unable to state whether one of them was Marc Genest. However, she recalled that one of them asked questions about the insurability of same-sex spouses. She had been surprised by this type of question because she had not often heard it during the information sessions with the small groups of employees. [107] With reference to the document called [translation] Marc Genest's attendance record between November 1997 and December 2000, Lucie Laroche pointed out that the Complainant was away from work on short-term disability from November 6 to December 19, 1997, from September 22 to October 19, 1998, from October 12, 1999 to February 8, 2000 and finally from November 9 to December 4, 2000. During these absences, the Complainant received 90% of his salary in accordance with the short-term disability plan, which was borne entirely by the employer. Long-term disability insurance applied after 26 weeks of absence due to disability. [108] Lucie Laroche submitted the brochure explaining the Flex I group insurance program that was issued to employees in the spring of 1995. The document is called [translation] Flex Benefits (Exhibit I-6). This program came into effect on June 29, 1995. [109] The witness referred to page 2 of the document, which reads: [translation] "Bell Mobility wants to ensure that all employees have basic life insurance and long-term disability insurance protection. Therefore, minimum protection is mandatory for both plans. For the other plans, you are free to select no protection if you want." [110] The witness referred to the definition of dependant on page 6 of the same document. It reads as follows: [translation] "Dependant - Members of your family may be members of the following plans: health insurance, dental insurance, life insurance and accidental death and dismemberment. The following dependants are eligible: * your spouse, to whom you are legally married or with whom you have been cohabitating for at least 12 months; * your dependent children under 21 years of age, your dependent children under 25 year of age who are regularly attending school, or your disabled children regardless of age, if they are solely dependent upon you for financial support." [111] Page 18 of the document provides information on spousal life insurance options. It states: [translation] "Flex Benefits allows you to choose life insurance for your spouse for an amount of up to $250,000. The cost of this insurance depends on the age and gender of your spouse and on whether he/she is a smoker. If your spouse must provide a health statement, his/her life insurance shall not be effective until Aetna Canada has approved the health status questionnaire. In the interim, the Bell Mobility life insurance that you already have for your spouse shall be maintained." [112] Page 19 deals with annual renewal and states: "If you wish to increase your spouse's life insurance protection when you renew your selections for next year, your spouse must fill out a health status questionnaire." [113] The witness explained that the document indicates that the spousal life insurance premium must be paid entirely by the employee. [114] From the section of the brochure called [translation] Changing your selections, the witness cites the following (page 4): [translation] "You renew your Flex Benefits selections every spring. This gives you the opportunity to review your benefit needs once a year and ensure that your coverage still fits those needs. You can change your selections in the current year if there is a change in your family situation: marriage, divorce, birth or adoption, death of a family member or loss of the protection of a spouse. If applicable, please contact the Human Resources Representative in your region within 30 days of the change." [115] In 1998, the Flex II program replaced the Flex I program. An explanatory brochure called [translation] Flex Benefits 2 was again prepared and issued to employees (Exhibit I-8). [116] The witness stated that it contained the following definition of spouse: [translation] " - the person to whom you are legally married; - or the person with whom you live and whom you publicly represent as your spouse." [117] On page 9, the brochure also describes the process in the event of the accidental death or dismemberment of an insured person: inform the benefits department as soon as possible and file a claims submission accompanied by substantiating documentation within six months of the event. (vii) Patti Sommerfeld [118] In 1995, she held the position of senior medical underwriter with the Aetna life insurance corporation, which had the group insurance contract for Bell Mobility employees. [119] The witness revealed that employees had to purchase a minimum of $10,000 in life insurance. They could also choose life insurance for an amount equal to one times their annual salary up to six times their annual salary rounded up to the nearest thousand dollars. As such, for employees choosing life insurance representing one times their salary and whose income was $24,000, their insurance would be rounded up to $25,000. [120] The witness said that the insurance application had to be filed within 31 days from the date an employee became eligible for insurance. Otherwise, a medical certificate is required, in other words a health questionnaire prepared by the insurer. [121] Regarding the insurance options that employees can select for their spouses, the witness revealed that the minimum amount was $25,000. They may also increase that in increments of $25,000 up to $250,000, with a medical certificate. [122] The witness explained that, in the event of death, the beneficiary needs to have a physician fill out the death claim form and obtain the original proof of death. A claim accompanying these documents must be sent to the insurer within six months of the death. Otherwise, the claim may be denied. [123] The witness explained that if a plan member tests positive for AIDS or immune system disorder, insurance will be denied. [124] The witness was asked to review the definition of spouse in the 1995 group insurance contract, which reads as follows: "Spouse means a husband or wife by virtue of a religious or civil marriage ceremony, except that, a person living with a member will be deemed to be the member's spouse, if such person: - is publicly represented as the member's spouse; and, - has been living with the member for a period of at least one year (12 continuous months)." [125] The witness stated that this definition of spouse applies to same-sex partners. She added that she had never seen a group insurance plan that excluded same-sex partners from part of the protection available to dependants. [126] To conclude the Respondent's evidence, a letter was filed (Exhibit I-10) attesting that the life insurance contract that the Complainant's spouse had had with Sun Life for $10,000 was cancelled on June 12, 1995 retroactive to July 1, 1994 due to unpaid premiums in July and October 1994 and January 1995. III. THE LAW [127] Section 7 of the Act states that It is a discriminatory practice, directly or indirectly in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground. In addition, section 3 of the Act lists the prohibited grounds, which include sexual orientation and marital status. [128] The jurisprudence teaches that, with respect to discrimination, the Complainant must establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if believed, is complete and sufficient to justify a decision in favour of the Complainant in the absence of an answer from the respondent. IV. ANALYSis [129] Counsel for the Complainant acknowledged that in June 1995 the group insurance plan for Bell Mobility employees provided the life insurance option for same-sex spouses as well as the options for health insurance, dental insurance and accidental death and dismemberment insurance. He maintained, however, that the Respondent's representatives did not provide the Complainant with relevant information enabling him to purchase life insurance for his partner and that they did not allow him to do so. [130] In his testimony, Marc Genest stated that he did not recall whether human resource representatives in 1995 had held information sessions with employees to give them information on the group insurance plan. The preponderance of evidence is to the contrary, through both Lucie Laroche's testimony and the documents sent to employees by Bob Ferchat, President of the Board, President and Chief Executive Officer, and Marc-André Malboeuf, Human Resources Administrator (Exhibit P-11). [131] Marc Genest maintained that, after reading the information brochure on the group insurance plan, he met with Lucie Laroche on August 28, 1995 for clarification. He stated that during that meeting she told him that she had been living with a husband for four years. Lucie Laroche categorically denied that statement and explained that at that time she had had a husband for nine years and was the mother of two children. [132] Marc Genest claimed that during that meeting Lucie Laroche told him that the spousal life insurance option did not apply to same-sex spouses. The preponderance of evidence did not demonstrate the validity of that claim. In fact, the evidence revealed that Lucie Laroche worked with a task team to deploy the new group insurance plan and was therefore very knowledgeable of the content. She was asked to train the human resource representatives who held the information sessions for groups of employees. She herself conducted training sessions for employees. She stated that, during both the training courses for human resource representatives and the information sessions for groups of employees, she always mentioned that the life insurance option applied to same-sex spouses. [133] I accept Lucie Laroche's testimony rather than the Complainant's where she denied indicating to him that the group insurance plan did not allow employees to select the life insurance option for same-sex spouses. Moreover, I do not see what Lucie Laroche's interest would have been in hiding this information from the Complainant. [134] For the foregoing reasons, I cannot believe the Complainant's testimony where he stated that, during an information session held on June 15, 1998, Lucie Laroche announced that homosexual spouses were now eligible for all insurance options provided for in the group insurance plan. That claim is even less credible when considering the testimony of the insurer's representative, who stated that she had never seen a group insurance plan that excluded same-sex partners from part of the protection available to dependants. [135] In his testimony, Marc Genest maintained that in 1995 he informed Lucie Laroche during a meeting with her that he was the victim of discrimination since he was not allowed to purchase life insurance for his spouse. In his complaint, he also said: [translation] "Right after receiving this information, I vehemently protested and pointed out that it was overt discrimination. Every step I took was unsuccessful and I was told that nothing could be done." [136] In cross-examination, he conceded that he had not stated being the victim of discrimination but rather of an unfair situation. He further acknowledged that, faced with being unable to obtain life insurance for his spouse, he did not dare press the issue because he had just achieved permanent employee status and was afraid of losing his job. This explanation may seem credible. However, why did he not bring it up again when renewing his group insurance plan in 1996 and 1997? Fear of losing his job cannot, in my view, be a valid reason. However, he did not do anything. [137] He also acknowledged that he did not seek recourse because he believed that there was nothing that could be done. Instead it was a friend who took steps for him that led to a complaint being filed on November 4, 2000. [138] Marc Genest maintained that he had to purchase life insurance for his spouse in addition to accidental death and dismemberment insurance in order to have enough financial protection in the event of his spouse's death. According to him, his spouse had $50,000 in life insurance at that time, for which he was the beneficiary. However, the evidence unequivocally showed that that it was $10,000 in life insurance. [139] Marc Genest stated that in 1997 his spouse could not pay his $800 life insurance premium and that his father paid the premium in return for becoming the beneficiary of the policy. However, as the documentation supplied by Sun Life, his spouse's insurer, demonstrates (Exhibit I-10), the Complainant's spouse had not paid the insurance premiums due in July and October 1994 and January 1995, with the result that the insurance was cancelled retroactively to July 1, 1994. [140] Marc Genest explained that it was important for him to obtain life insurance for his spouse because the couple had a relatively expensive lifestyle. They had a luxury apartment and they each had a vehicle. In 1995 and 1996 and until the fall of 1997, the couple's financial situation was good, according to the Complainant. After maintaining that his spouse's income was approximately $70,000 net, he was forced to concede in cross-examination that for 1995 and 1996 his spouse's annual income was around $40,000 gross and even lower in 1997 due to being away because of illness. He also had to acknowledge that his spouse had filed an assignment in 1996. He claimed that his spouse had never informed him about the financial problems he was having. I am not satisfied that the Complainant, who said that he had a very close relationship with his spouse, could not have been aware of his financial problems. [141] The Complainant stated that the information on the spousal insurance options simply paid lip service to it because in 1995 homosexuality was not recognized and accepted at Bell Mobility. The preponderance of evidence shows instead that homosexual employees were treated in the same way that heterosexuals were. Employees publicly acknowledged their homosexuality and, during employee-organized social evenings, they put on performances that joked about homosexuality. Employees have had very rewarding careers at Bell Mobility and have reached important executive positions without their sexual orientation being at all a consideration. The preponderance of evidence fails to support the Complainant's case that, during the training sessions, the human resource representatives did not inform employees about the possibility of insuring the lives of same-sex spouses. [142] The Complainant stated in his testimony that, between 1995 and 1998, Bell Mobility did not provide its employees with any information about the group insurance plan nor any information sessions for explaining changes to the insurance plan. This statement is in no way corroborated by the body of evidence on this point. In fact, when it was time for the annual renewal of the group insurance, employees received a brochure explaining the group insurance plan and were invited to make changes to their group insurance plan based on their needs and situation, which could have changed since the previous year. Information sessions for all employees were also held (Exhibit I-7). [143] The evidence revealed that in 1996 Michel Côté, then administration coordinator at Bell Mobility and homosexual, purchased life insurance for his same-sex spouse. [144] Marc Genest firmly stated that he had never emailed Julie Walbrecq. However, the evidence showed that he sent an email to Julie Walbrecq on September 11, 2000 (Exhibit I-1, Tab 7). [145] In that email, Marc Genest referred to a basic life insurance option of $20,000 for same-sex spouses. However, it is very clear on page 18 of the brochure called [translation] Flex Benefits (Exhibit I-6), even for someone with limited knowledge of the insurance field, that there was no basic life insurance option for same-sex or opposite-sex spouses. The only basic life insurance coverage was $10,000 and it applied solely to employees. [146] The Complainant also claimed in his complaint that the basic spousal life insurance premium had to be paid through direct payroll deductions. The evidence showed that this claim was incorrect. [147] Marc Genest stated that after his spouse passed away he informed Lucie Laroche, who hastened to remind him that his spouse had no life insurance coverage. For her part, Lucie Laroche acknowledged having had a conversation with the Complainant, not right after his spouse's death but several months later, and she denied making such a statement to him. I do not see what Lucie Laroche's motivation could have been for acting in that manner. [148] Counsel for the Complainant stated that Bell Mobility did not have a policy for clearly informing employees of the possibility of obtaining life insurance coverage for same-sex spouses. According to him, the information was conveyed on request only. If we apply this view to the Complainant's situation, he would have applied for accidental death and dismemberment insurance and dental insurance for his spouse and he would have been informed that these options were recognized and why would they not have provided the same information for the life insurance application? I do not see why they would have acted differently in the case of life insurance for same-sex spouses than they did for accidental death and dismemberment insurance and dental insurance. [149] The preponderance of evidence leads me to conclude that, in June 1995 when the Complainant was making his insurance options selections for himself and his spouse, the [translation] Flex Benefits brochure provided him with very clear information for enabling him to understand that he had the option of selecting dental insurance, health insurance, accidental death and dismemberment insurance and life insurance for both himself and his spouse. Moreover, the information relayed by the human resources representatives enabled him to make well-informed selections. In fact, he selected dental insurance for his spouse because he believed that dental care was often needed. He did not see fit to select health insurance for his spouse because he was certain that his spouse was in good health. As for accidental death and dismemberment insurance, Marc Genest hastened to purchase this for his spouse in the amount of $200,000 for completely valid reasons, which he expressed in his testimony. Regarding life insurance for his spouse, I do not believe that, through its conduct, the Respondent prevented him or disallowed him from obtaining it. I do not believe that Marc Genest, knowing that his spouse had life insurance in the amount of $50,000 for which he was the beneficiary, really intended to purchase life insurance for his spouse. V. CONCLUSION [150] I believe that Marc Genest has failed to establish a prima facie case that Bell Mobility discriminated against him by treating him in an adverse fashion in the course of employment because of his sexual orientation and marital status by not allowing him to obtain life insurance coverage for his spouse. [151] Therefore the complaint is dismissed. Roger Doyon June 4, 2004 OTTAWA, Ontario PARTIES OF RECORD TRIBUNAL FILE: T753/0303 STYLE OF CAUSE: Marc Genest v. Bell Mobility DATE AND PLACE OF HEARING: Montréal, Quebec December 8, 9 10, 2003 February 9 and 11,2004 DECISION OF THE TRIBUNAL DATED: June 4, 2004 APPEARANCES: Noël Saint-Pierre For the Complainant Johanne Cavé For the Respondent

2004 CHRT 2

CHRT

Bressette v. Kettle and Stony Point First Nation Band Council

en

2004-01-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6506/index.do

2023-12-01

Bressette v. Kettle and Stony Point First Nation Band Council Collection Canadian Human Rights Tribunal Date 2004-01-15 Neutral citation 2004 CHRT 2 File number(s) T827/7703 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BETWEEN: MAURICE BRESSETTE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - KETTLE AND STONY POINT FIRST NATION BAND COUNCIL Respondent RULING ON AMENDMENT TO COMPLAINT MEMBER: J. Grant Sinclair 2004 CHRT 02 2004/01/15 [1] The complainant Maurice Bressette filed a complaint with the Canadian Human Rights Commission dated March 30, 2002, against the respondent Kettle and Stony Point First Nation Band Council. In the complaint, he alleged that the respondent discriminated against him on the ground of family status by refusing to hire him as a Family Case Worker, contrary to s. 7 of the Canadian Human Rights Act. [2] On October 30, 2003, the Tribunal held a preliminary hearing to deal with two motions, one by the respondent disputing the Tribunal's jurisdiction under s. 67 of the Act; and one by the complainant to amend his complaint to add allegations of retaliation against him by the respondent, contrary to s. 14.1 of the Act. [3] The complainant's motion was not dealt with at the preliminary hearing. Instead, the Tribunal directed that complainant's amendment motion be dealt with the way of written submissions from the parties, the complainant to file by November 7, 2003, and the respondent to file by November 17, 2003. The Tribunal also scheduled the hearing dates for the complaint to be April 19-23, 2004 and April 26-30, 2004. The disclosure date for the complainant is March 31, 2004 and February 27, 2004 for the respondent. [4] There are a number of decisions by both this Tribunal and provincial human rights tribunals that deal with the question of amending a complaint to add an allegation of retaliation. (See Kavanagh v. Correctional Services of Canada (May 31, 1999), T505/2298 (C.H.R.T.); Entrop v. Imperial Oil Limited (1994) 23 C.H.R.R. D/186); (Fowler v. Flicka Gymnastics Club, [1998] B.C.H.R.T. No.2); Schnell v. Machiavelli Associates v. John Micka (April 25, 2001), T594/5200 (CHRT). [5] Certain principles can be derived from these decisions as follows. A human rights complaint is not like a criminal indictment. There is discretion in the Tribunal to amend the complaint to deal with additional allegations, provided that sufficient notice is given to the respondent so that it is not prejudiced and can properly defend itself. The fact that the proposed amendment involves a different section of the Act to that in the original complaint does not deprive the Tribunal of jurisdiction. [6] It should not be necessary for individuals to make allegations of reprisal or retaliation arising after a complaint, by way of separate proceedings. Rather, an amendment should be granted unless it is plain and obvious that the allegations in the amendment sought could not possibly succeed. An obvious example, at least for allegations of retaliation, would be where the alleged incidents of retaliation were shown to have occurred prior to the filing of the complaint. The Tribunal should not embark on a substantive review of the merits of the amendment. That should be done only in the fullness of the evidence after a full hearing. [7] In his submission, the complainant referred to numerous incidents occurring after March 30, 2002, which he alleges amount to retaliation. In my opinion, out of this multitude of incidents referred to by the complainant, some disclose a tenable claim for retaliation. It is not plain and obvious that the complainant would not succeed with these allegations. [8] This is not to say that the complainant has established that the respondent did contravene s. 14.1 of the Act. This remains to be proven by the complainant at the hearing of the complaint. All that this Tribunal has concluded is that the original complaint should be amended to add an allegation under s. 14.1 of the Act. [9] In its submission, the respondent argued that the complainant's submission and documentation is just a continuation of a dialogue between the Band Chief, the Band Administrator, the Band Council, and this should not and can not be characterized as retaliatory. In my view, this is not a basis for refusing the amendment. It is a submission that should be made, on evidence, at the hearing of the complaint. [10] Finally, dealing with the question of prejudice to the respondent, I note that the respondent has known at least since October 22, 2003 when the complainant first filed his motion, that the complainant intended to seek this amendment. The respondent also has known since that date, the documentation and the incidents that the complainant relies upon. Further, since November 7, 2003, the complainant has provided further disclosure to the respondent setting out further incidents he intends to rely upon. The complainant is also to provide full disclosure by March 31, 2004. [11] In my opinion, the respondent has been given adequate notice of the case to be met and will not suffer any prejudice if the amendment is granted. [12] Accordingly, for the foregoing reasons, the complainant's motion to amend the original complaint to add an allegation of retaliation under s. 14.1 of the Act, is granted. Signed by J. Grant Sinclair OTTAWA, Ontario January 15, 2004 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE: T827/7703 STYLE OF CAUSE: Maurice Bressette v. Kettle and Stony Point First Nation Band Council RULING OF THE TRIBUNAL DATED: January 15, 2004 APPEARANCES: Maurice Bressette On his own behalf Patrick O'Rourke For the Canadian Human Rights Commission Jonathon George For the Respondent

2004 CHRT 20

CHRT

Brooks v. Department of Fisheries and Oceans

en

2004-06-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6970/index.do

2023-12-01

Brooks v. Department of Fisheries and Oceans Collection Canadian Human Rights Tribunal Date 2004-06-08 Neutral citation 2004 CHRT 20 File number(s) T838/8803 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CECIL BROOKS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - DEPARTMENT OF FISHERIES AND OCEANS Respondent RULING ON THE EXPERT'S REPORT TENDERED BY THE COMPLAINANT MEMBER: Dr. Paul Groarke 2004 CHRT 20 2004/06/08 I. INTRODUCTION [1] The following ruling deals with an objection to an expert's report tendered by the complainant. The report was prepared by Dr. Frances Henry, who appears to be eminently qualified as an expert on racism. Dr. Henry has a PhD in social anthropology, has many publications, and has testified as an expert before many courts and tribunals. At this point in the proceedings, at least, her qualifications are not in issue. [2] In the introduction to the report, Dr. Henry poses two questions. Those questions are as follows: Whether or not it is possible that race played a role in having the Complainant placed in the 13th position on the competition eligibility list, or whether it was simply favoritism and incompetence on the part of the competition panel? Whether or not it is possible that the refusal to appoint the Complainant to a six plus term even though he met the legal requirements for doing so on a number of occasions, was an act of racism? I would have thought that each of these possibilities is properly before the Tribunal. [3] Dr. Henry then sets out a substantive framework for the evaluation of these questions. She asserts that there is a new racism, which has replaced older and more deliberate forms of racism. This kind of racism includes more covert, subtle and sometimes even unconscious forms of behavior and attitude that nevertheless serve to discriminate against minority groups. The new racism manifests itself in a discourse of denial, which obscures the racial motivations behind many discriminatory acts in the workplace. As Dr. Henry puts it, on page 3 of her report, there is a refusal to accept reality of racism despite the evidence of racial prejudice and discrimination in the lives and in the life chances of people of color. [4] Dr. Henry then applies these general observations to the facts of the case. The report provides little however in the way of statistical or scholarly information that would shed light on the precise circumstances before me. The real thrust of her argument is simply that this failure of perception is the principal contributing factor in the case before me. The difficulty with such an approach is that it blankets anyone who rejects the complainant's assertions with accusations of racism. These accusations naturally come with the imprimatur of an expert. This merely puts the Respondent on the defensive and upsets the equilibrium that provides the basis of any fair hearing. As a practical matter, it is impossible to assert such propositions without offering an opinion on the credibility of the witnesses to be called by the other side. This is not the proper subject of opinion evidence. [5] The Complainant has argued that the report is necessary to rebut the findings in the report of the Public Service Commission. This report has been filed as an exhibit in the hearing and deals with the same fundamental allegations that are before the Tribunal. The point is that the Commission's investigator, Ella Coffil, rejected the Complainant's allegations. Mr. Bagambiire and Mr. Flaherty have accordingly argued that Dr. Henry's report provides a necessary corrective to the views expressed in her report. This line of argument cannot succeed. Although the contents of the report may have some value, in establishing the chronology and indeed some of the facts in the case, it has nothing to say on the fundamental issue before the Tribunal. The question whether Mr. Brooks was discriminated against under the Canadian Human Rights Act lies exclusively within the keeping of the Tribunal. [6] All of this comes with a qualification. I share many of the general concerns in the Henry report and do not want to prevent the Complainant from arguing his case. Mr. Brooks is free to argue that those who made the decisions regarding his employment were unable to see the racial elements in their decisions. Those kinds of submissions are well within the ordinary range of argument in a case of this nature. I also agree that a Tribunal should be careful to distance itself from whatever perspective was adopted by the investigator from the Commission. There is no arguing with the proposition that the decision of the Tribunal must be based on the facts and evidence before the Tribunal rather than the preconceptions of the parties. II. LAW [7] The test for determining the admissibility of an expert's report was set out by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9. There, Justice Sopinka held that the admission of expert evidence depends on the application of four criteria: relevance, whether the evidence is necessary, the absence of an exclusionary rule, and the qualifications of the expert. The Court went on to say that a costs-benefits analysis should be conducted to determine whether the probative value of an expert's report outweighs its prejudicial effect. [8] The first criteria is accordingly relevance. Counsel for the Complainant appeared to raise two arguments. The first is simply that Dr. Henry's report is relevant because it tends to establish that race was a factor in the decisions that were made regarding Mr. Brooks. The problem with this argument is that the report provides no evidentiary basis for such a conclusion. There is none of the statistical or expert analysis that one would normally find in the report provided by an expert. The second argument goes to credibility. On this account, the report allegedly establishes that the investigator from the Public Service Commission was blind to the possibility of racism in the facts before her. This implies that she harboured racial views. This kind of issue is completely collateral to the matter before me however. There is no reason to investigate it. [9] On the broader issue, it seems to me that Dr. Henry has merely reviewed the facts of the case and advised the Tribunal that they support a finding of racism. This kind of coaching goes beyond the legitimate role of an expert. I agree with the decision of the Nova Scotia Supreme Court in Campbell v. Jones, [2001] N.S.J. No. 598 (QL), at para. 26, where that Court, in dealing with another report from Dr. Henry, held that: nothing in the report justifies reasoning from generalization of Social Science to the specifics of Constable Campbell in a court of law. Although the court in Campbell was concerned with the effect of such evidence on a jury, the more fundamental concern lies in the role of facts and opinion in the legal process. Mere statements of opinion are of little assistance in deciding whether a complainant was discriminated against. [10] The second question is necessity. The Supreme Court in Mohan, supra, held that the purpose of an expert's report is to provide an inference that would not be available without the evidence of the expert. At paragraph 21, the Court approved of the statement by Dickson J. in R. v. Abbey, [1982] 2 S.C.R. 24, at p. 42, where he held: An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate, `An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary'. This is the context in which the question of necessity must be considered. [11] A Tribunal should not be too scrupulous in applying a standard like necessity. The question is whether the evidence is logically rather than probatively necessary. There must be a reason to call an expert and the mere fact that the evidence seems to advance the case for one of the parties is not sufficient. A party is not entitled to buttress its evidence by providing the Tribunal with the opinions of experts who happen to share its view of the matter. The case cannot be decided by polling the experts. [12] There are additional concerns that arise in the context of necessity. One is that the Human Rights Tribunal is an expert Tribunal, with its own expertise in the area of discrimination. It is accordingly in a position to reach an informed opinion as to the weight and value of any evidence of discrimination, without the assistance of an expert. Another concern relates to the nature of the report, which argues for a specific interpretation of the evidence before the Tribunal. In Brough v. Richmond, 2003 BCSC 512, at para. 14, the British Columbia Supreme Court stated: An expert cannot lapse into advocacy, [E]very expert should avoid arguing the case, a matter which is more properly left in the hands of counsel. Surrey Credit Union v. Willson, [1990] B.C.J. No. 766 (S.C.) at p. 5. Expert opinions are inadmissible where they reflect or are a reworking of the argument of counsel. If an argument is dressed up as the report of an expert it will be rejected for what it is. I think that these comments apply to the report tendered by the Complainant. [13] The third concern is more substantive. Although the rule against providing an opinion on the ultimate issue before a Tribunal has been relaxed in recent years, it must still be respected. The responsibilities of the Tribunal cannot be delegated to experts, who have none of the legal training, evidentiary sensibilities or adjudicative experience of the members of the Tribunal. Every adjudicative body has an obligation to reach its own conclusions on the fundamental issues in a case, without direction from the parties. [14] The report of Dr. Henry is prejudicial in the true sense of the word. It comments on the evidence that the Respondent apparently intends to call and suggests that only one conclusion is available to the Tribunal at the end of the hearing. In my view, this undermines the independence of the process and implicitly impinges on the right of the Respondent to present its case. There is a danger that this might fetter the ability of the Tribunal to choose freely between the alternatives put before it by the different parties. This is exactly what the evidence of an expert must not do. III. CONCLUSION [15] When I apply the kind of cost-benefits analysis contemplated by the Supreme Court in Mohan, I find that the report of Dr. Henry does not meet the standard set out in case law. It should therefore be excluded from the evidence. This is in keeping with the ruling in Singh v. Statistics Canada (January 5, 1998; trans. attached) in reaching this conclusion, where a panel of this Tribunal made a similar ruling with respect to a previous report from Dr. Henry. Paul Groarke HALIFAX, Nova Scotia June 8, 2004 PARTIES OF RECORD TRIBUNAL FILE: T838/8803 STYLE OF CAUSE: Cecil Brooks v. Department of Fisheries and Oceans RULING OF THE TRIBUNAL DATED: June 8, 2004 APPEARANCES: Davies Bagambiire Stephen Flaherty For the Complainant Scott McCrossin Melissa Cameron For the Respondent

2004 CHRT 21

CHRT

Boudreault v. Great Circle Marine Service Inc.

en

2004-06-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6972/index.do

2023-12-01

Boudreault v. Great Circle Marine Service Inc. Collection Canadian Human Rights Tribunal Date 2004-06-30 Neutral citation 2004 CHRT 21 File number(s) T818/6803 Decision-maker(s) Doyon, Roger Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE Bruno Boudreault Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - Great Circle Marine Services Inc. Respondent REASONS FOR DECISION MEMBER: Roger Doyon 2004 CHRT 21 2004/06/30 [TRANSLATION] I. INTRODUCTION II. THE EVIDENCE A. Complainant's evidence (i) Bruno Boudreault B. Respondent's evidence (i) Robert Bélanger (ii) Andrée Viger (iii) Édouard Nadeau (iv) Georges Tousignant (v) Marcel Éthier III. THE LAW IV. ANALYSIS A. The prima facie case of discrimination B. Bona fide occupational requirement C. Was the standard adopted for a purpose that is rationally connected to the performance of the job? D. Was the standard adopted in good faith? V. REMEDIES A. Reinstatement B. Damages for financial loss C. Expenses (i) Clothing purchases (ii) Legal fees (iii) Pain and suffering (iv) Compensation for reckless and wilful conduct (v) Interest I. INTRODUCTION [1] Bruno Boudreault alleged that he was discriminated against on the basis of his disability (problem with his left knee) when Great Circle Marine Services Inc., the Respondent, terminated his employment because his physical condition prevented him from meeting the requirements of the helmsman and longshoreman duties. The Complainant claimed that the Respondent failed to comply with the provisions of section 7 of the Canadian Human Rights Act (the Act). [2] Bruno Boudreault also alleged that the Respondent had a discriminatory hiring policy contrary to section 10 of the Act by requiring that all crew members on a ship, without exception, be in suitable physical condition, with the assessment of that condition left to the judgement of the ship's captain. II. THE EVIDENCE A. Complainant's evidence (i) Bruno Boudreault [3] Bruno Boudreault lives in Île-aux-Coudres. In 1998, he worked as a day labourer at the Groupe Océan shipyard in Île-aux-Coudres. In July 1998, he had surgery on his left knee. In the spring of 1999, he was hired by Croisières A.M.L. as a day labourer assigned to preparing boats for the tourist season. He then worked as a maintenance employee and recreation leader at Hôtel Cap-aux-Pierres in Île-aux-Coudres until September 1999. In March 2000, he obtained a job as a seaman and helmsman on the cruise ship Cavalier Maxime, owned by Croisières A.M.L. [4] During the winter of 2001, at a friend's suggestion, he contacted Andrée Viger who, according to his information, was working for Logistec Navigation in order to seek work as a seaman on board a ship that was to travel to the far north during the summer. Andrée Viger asked him to send her his curriculum vitae (C.V.) and a medical certificate. He sent her his C.V. and his certificate in marine emergency duties (M.E.D.). [5] The Complainant said that, on February 13, 2001, he went to meet Dr. Marcel Éthier in Île-aux-Coudres, who was designated by Transport Canada to conduct medical assessments. Dr. Éthier conducted a medical examination. The Complainant stated that he informed the physician about the operation on his left knee. Dr. Éthier issued the required medical certificate (Exhibit P-11), which the Complainant forwarded to Andrée Viger. [6] Andrée Viger contacted the Complainant again to point out that, if he held a bridge watchman or helmsman certificate, he would improve his chances of being hired. The Complainant obtained his helmsman certificate on May 9, 2001 (Exhibit P-14). Upon receipt of this document, Andrée Viger informed him that he had obtained employment as a helmsman/longshoreman and that Édouard Nadeau, the personnel manager, would contact him to provide him with the terms of employment. [7] The witness said that he received a call from Édouard Nadeau confirming his employment as a helmsman/longshoreman. Édouard Nadeau asked him whether he was familiar with longshoreman work. He stated that he had replied having seen longshoremen work but had no experience himself. Édouard Nadeau asked him to board the Umiavut at Valleyfield harbour on June 16, 2001 and that he would meet him there personally. At the Complainant's request, Édouard Nadeau agreed to postpone his arrival until the following day, Sunday, June 17, 2001. The witness recalled that when he arrived he met Édouard Nadeau to sign his employment contract (Exhibit P-I). Édouard Nadeau gave him a tour of the ship. He issued him his seaman's book for it to be conveyed to the captain in accordance with the standards in effect. [8] The witness stated that he had not been told about the work he would be doing when the ship was in port. The crew commander, however, did mention to him that there was the possibility he would be assigned to operating a tug. [9] The witness recalled that, at the request of the chief petty officer, he started his watch shift from 8:00 p.m. to midnight. He had a four-hour shift and an eight-hour rest period followed by a four-hour shift. On Tuesday or Wednesday, he was in bed after his shift, which ended at 8:00 a.m., when he was wakened by the chief petty officer, who told him he was to go to the captain's office. [10] He went to Captain Robert Bélanger's office where he met the captain and Andrée Viger who was also at the meeting. The captain informed him that it had been brought to his attention that he was putting ice on his knee and that he was concerned that he had been injured on board the ship. The witness informed the Captain that that was not the case and that he had had surgery on his knee in 1998 and that he would sometimes put ice on his knee whenever it felt stiff, but that the situation did not prevent him from doing his work. [11] Since Captain Bélanger seemed concerned about his physical condition, the witness stated that he had suggested he contact his orthopedic physician whose telephone number he provided to him. He also offered to undergo a medical examination by the orthopedic physician of his choice. Captain Bélanger told him that he would review the situation and would speak to him again later in the day. Approximately one half an hour after he returned to his cabin, he was again summoned to Captain Bélanger's office. [12] When he arrived at the office, he asked whether his orthopedic physician had been contacted. Andrée Viger replied that she had two options: contact his physician and keep him employed or not contact his physician and terminate his employment. The witness stated that he suggested leaving the ship to go to his physician's office in Quebec and obtain his medical record. This suggestion was not pursued. Captain Bélanger told him that he had to terminate his employment because the condition of his knee did not allow him to take the risk of retaining his services for a voyage to the north. At the Complainant's request, Captain Bélanger issued him a letter attesting to the termination of his employment due to problems with his left knee (Exhibit P-2). [13] Bruno Boudreault immediately left the ship to return home. He stopped in Quebec. The following day, through his lawyer, he sent a formal demand letter to Logistec Navigation ordering it to reinstate him in his job (Exhibit P-3) before the ship's departure scheduled for the end of June 2001. However, since the formal demand letter did not refer to the employer stated in the contract, a second demand was sent to the employer/Respondent on July 19, 2001 challenging the validity of the termination and demanding reinstatement. [14] The Complainant said that, to his knowledge, the ship left Valleyfield harbour on June 26 or 27, 2001. He stated that he had contacted Andrée Viger to convince her to allow him to be reinstated in his job. On June 26, 2001, he faxed her a report from his orthopedist (Exhibit P-4) indicating that, as of June 14, 1999, he was fit to return to work after surgery on his left knee in July 1998 (Exhibit P-4). Andrée Viger informed him that someone else had been hired and that she could do nothing for him. The Complainant also produced a letter from the orthopedist who treated him (Exhibit P-6), dated October 4, 2001, confirming that the medical status of his knee did not result in any functional limitations for any type of work. [15] The Respondent sent the Complainant an initial record of employment dated June 29, 2001, with no comments in the Observations section (Exhibit P-1). On July 16, 2001, the Respondent issued a second record of employment where it stated the following in the Observations section: According to the captain, unfit for work for medical and safety reasons. [translation] [16] The witness stated that after arriving home again he was very shaken by losing his job. As a result, it was several weeks before he took steps to look for work. He then went to the employment insurance office and the seafarers' union office to find work, but was unsuccessful. He also sought work at the Groupe Océan shipyard and on the Coast Guard ships. He was rehired on July 31, 2001 as a seaman/helmsman on the Écho des Mers until October 12, 2001. From May 13, 2002 to September 21, 2003, he was employed as first mate on the Famille Dufour II and performed the same work in 2003. [17] The witness added that in January 2003 he took a radar simulator course. He intends to take a course in radiotelephony, which would allow him to take the exam for obtaining his Minor Waters Master certificate. B. Respondent's evidence (i) Robert Bélanger [18] The witness began his maritime career as a seaman in 1975. Starting in 1980, he moved up through the officer ranks and in 1995 obtained a Master Mariner certificate. As a deck officer, he often had occasion to sail in the Canadian Arctic, particularly on the Lucien Paquin. This ship's activities focused on transporting all types of goods to posts and villages in the Arctic. It would also carry goods between villages and return goods south, namely to Montreal. [19] In 2001, Transport Nanuk engaged his services as a captain on the Umiavut, which had the same mission as the Lucien Paquin. The crew of the Umiavut consisted of personnel assigned to the navigation department. It included the captain, who was responsible for supervising all shipping activity. He had to ensure that the Canada Shipping Act and Transport Canada's regulations were respected, particularly regarding the safety of the crew, the ship itself and everything carried on board the ship. He had to be able to take the required steps in emergencies such as fire or a situation requiring abandonment of ship. He stayed in constant contact with the owner to provide current information about the ship's progress. There was also the senior ship's officer in charge of activities relating specifically to the cargo. Then there were three navigation officers whose responsibilities involved the ship's progress on the water. They performed eight-hour watches per day divided into four-hour periods of work according to a schedule that began at midnight. The navigation department also included three helmsmen. Each one was assigned to and worked with an officer. [20] The helmsman was responsible for steering the vessel in a specific direction according to instructions from the navigation officer. Conditions permitting, the automatic pilot system was turned on. At that point, the helmsman would be assigned to watch duty to ensure that the ship progressed safely. [21] The personnel on board the Umiavut also included five day-labourer/seamen and one master seaman. The crew also included the engineering department personnel, specifically the chief engineer and two mechanics. Finally, there was the food department personnel, namely the head chef and one cook. [22] The delivery of goods to northern Quebec begins as soon as the ice breaks up, usually between July 1 and 15, and ends when the water freezes up again at the beginning of November. Captain Bélanger explained the importance of meeting the scheduled delivery dates. [23] In addition to carrying goods, ships heading to northern Quebec must also supply longshoreman services because the destinations do not provide port facilities. [24] Captain Bélanger described the goods unloading operations. Once the ship arrives at the delivery point, it is safely anchored as close to the pier as possible. Using cranes on the ship, the transit equipment, namely two tugs and two barges, are placed in the water. Tractors and unloading equipment for handling the goods on the pier are then placed on the barges. The tugs pull the barges to the pier and the handling equipment is unloaded there. The tugs and barges then return to the ship to proceed with unloading the goods. When these operations are complete, goods may be brought to the vessel for transportion to another destination, or the equipment is brought back on board the ship, as well as the barges and tugs. The ship then heads towards another delivery point. [25] Longshoring operations are assigned to crew members other than officers, mechanics and cooks. Captain Bélanger explained that, for unloading goods, slings manoeuvred by crew members are placed around the goods and attached to the crane for removing them from the ship and depositing them on the barges. [26] There is also the beachmaster. This person is not assigned to navigation. While the ship is at sea, the beachmaster looks after the maintenance of all equipment used for unloading goods and plans the unloading process for when the ship arrives at the delivery point. During unloading, the beachmaster goes on to the pier to ensure that the unloading operations go smoothly. The beachmaster is accompanied by a tractor operator, and they both drive the tractors. A seaman goes on to the pier and performs the role of inspector. He looks after the administrative aspect of the goods delivery with the appropriate people. [27] The tugs are operated by a tug master. Because of his maritime knowledge, this is usually the helmsman's responsibility. In addition to steering the tug, he is also responsible, with the help of a seaman, for handling the lashings used to pull the barges to the pier. [28] On the ship there is a crane operator and a senior officer crane signaller who must ensure that the barges are loaded safely and in accordance with the requirements arranged with the beachmaster. In the ship's hold, a fork-lift truck operator and two seamen manoeuvre the goods for unloading. [29] Captain Bélanger testified that crew members must be able to respond to emergencies on the ship, such as an onboard fire or the extreme situation of abandonment of ship. There is potential for fire in the engine room where there are quantities of fuel. The smallest leak can cause a fire. There is also the potential for fire with the goods on board the ship. Crew members must always be prepared to work together to fight fires using Transport Canada procedures, which set out the tasks to be carried out by crew members in such circumstances. Officers have supervisory duties, and seamen including the helmsmen must fight the fire. There may be the need to abandon ship in the event of fire or collision with ice or another ship, which requires the lifeboats to be put into the water. [30] After he was hired, Captain Bélanger boarded the Umiavut at Trois-Rivières and travelled to Valleyfield harbour where he arrived on June 17, 2001. The ship normally was to put out to sea immediately after the loading was finished. During the day, the crew members began to board the ship. Édouard Nadeau from Great Circle Marine Services Inc., who was a supplier of personnel for the Umiavut, except for the captain and chief engineer, was on board to greet personnel. The loading operations began on Monday, June 18, 2001 and ended as usual the following Friday. [31] Captain Bélanger said that the voyage was originally planned for Canadian waters. However, since it had to go to Thule, Greenland, it became a foreign voyage. For shipboard personnel, Transport Canada regulations differ depending on whether it is a voyage in Canadian waters or a foreign voyage. For example, the witness indicated that Transport Canada regulations require every crew member to furnish a medical certificate in accordance with its standards and to have passed the marine emergency duties (M.E.D.) course. As to the Complainant, he had to hold a bridge watchman certificate. For a minor waters voyage, the regulations do not require seamen to hold a medical certificate. [32] The witness acknowledged that Bruno Boudreault met all Transport Canada requirements for performing the helmsman duties for a foreign voyage. Moreover, the work that the Complainant was to carry out during the goods unloading operations had not been determined, but he believed that he would have held the position of tug master. [33] He recalled that, on Tuesday, June 19, 2001, a crew member informed him that he had seen the Complainant put ice on his knee. He took the opportunity during Andrée Viger's visit the next day, June 20, 2001, to tell her about the situation. He said the following to her (page 303 of the transcripts of proceedings): "I would like us to meet with the person in question. This way, number one, I would not be the only one passing judgement and, number two, you would be able to ask questions too, if necessary." [translation] [34] The witness summoned the Complainant to his office and told him about the information he had received. He claimed that the Complainant acknowledged that he was putting ice on his knee because it would be painful at the end of his work day. He was unable to provide more detail about that discussion, which was 15 or 20 minutes long, aside from the fact that the Complainant had stated that the discomfort in his knee was from a situation that happened previously. The witness said that he thanked him for the explanations and that the meeting ended on that note. [35] After speaking with Andrée Viger, Captain Bélanger made the decision to terminate Bruno Boudreault's employment because he felt that the Complainant's knee would not heal with the workload that he would be assigned on board the ship, which required regular attendance. He explained that it was his duty on the ship to ensure the safety of the crew members, including the Complainant himself, and that it would have been irresponsible of him to retain the Complainant. [36] Captain Bélanger states that he therefore summoned the Complainant to his office again and informed him that his employment was terminated immediately. He told him the following (page 309 of the transcripts of proceedings): "...given the situation with his knee, which I believed was a certain amount of difficulty that started after two days of work, I believed that it was not safe for him or for the rest of the crew to have to require him to be on the Arctic voyage for an entire season." [translation] [37] The witness acknowledged that the possibility of the Complainant undergoing a medical examination had been considered, but not pursued. He explained that he did not need a medical opinion to tell him what he already knew, namely that the Complainant had pain in his knee. He felt that it was unwise to allow a person with knee pains to go to the Arctic. Also, at the Complainant's request, he agreed to issue him a letter of termination (Exhibit P-2). He recalled that the Complainant was replaced by a seaman with a bridge watchman certificate and that an extra seaman was hired and came aboard at Quebec. [38] When questioned about whether he had considered taking accommodation measures that would have enabled the Complainant to keep his job, Captain Bélanger, without answering the question directly, first maintained that the living accommodation facilities on the ship did not allow extra staff to be hired to fill in for the Complainant's potential absences. Second, the constant work during the unloading operations did not allow staff to be replaced to prevent a potential loss of effectiveness and a delay in delivery times. (ii) Andrée Viger [39] In 2001, Andrée Viger was a human resources coordinator with Transport Nanuk. She was in charge of hiring office staff as well as navigation personnel on board the Aivik and the captain and chief engineer on the Umiavut rented by Transport Nanuk. Since the Respondent had to hire navigation personnel for the Umiavut, it called on the Respondent. She assisted Édouard Nadeau, a representative of the Respondent, by sending him seamen's C.V.s. She anticipated that Édouard Nadeau would have difficulties finding crew members to fill the helmsman and longshoreman positions. [40] Andrée Viger recalled that, in the spring of 2001, Bruno Boudreault contacted her by telephone to seek work as a seaman. She asked him to send her his C.V. Upon receipt of that document, she contacted him to determine whether he held a bridge watchman certificate. The Complainant replied that he did not, but that he could take the exam to obtain it because he had the prerequisites for it. After obtaining his bridge watchman certificate, the Complainant notified the witness, and she asked him to fax her the document. She then verbally notified the Complainant that she had forwarded the information to Édouard Nadeau, who would probably contact him to offer him a job. [41] The witness said that on June 20, 2001 she went to Valleyfield harbour to meet with Captain Bélanger, who was on board the Umiavut. During that visit, Captain Bélanger told her that the Complainant was putting ice on his knee, that he wanted her to attend a meeting with the Complainant and she agreed. [42] When the Complainant came to his office, Captain Bélanger told him that it had been brought to his attention that he was putting ice on his left knee. The Complainant conceded to that fact and said that he had had an operation on his left knee, that it was not completely healed, but that it was well on the way to being healed. He added that he had arthritis in his knee and that the ice soothed the pain. The Captain asked him to go and said that he would let him know about his decision. [43] The witness revealed that, after reviewing everything, the Captain decided that for safety reasons he could not keep a person on staff who did not have all his physical capabilities. Captain Bélanger summoned the Complainant to his office again and informed him that, for his own safety and that of the crew, he had to terminate his employment. [44] The witness recalled that the Complainant maintained that he could do his work. The Complainant also suggested calling his physician and arranging for his medical record to be supplied. The witness stated that she did not take these suggestions on the grounds that June 20, 2001 was a Wednesday and, with the ship leaving on Friday, June 22, 2001, she did not have time to contact the Complainant's attending physician. Because he insisted on providing his medical record, Andrée Viger told him to have it sent to her and received from the witness on June 26, 2001 a faxed copy of the letter from the orthopedist François Marquis. [45] When questioned about the possibility of the Complainant's undergoing a medical examination by an orthopedist, the witness recalled that it was impossible for her to arrange an appointment in two days with the Groupe Santé Médicis, a firm of medical experts that she had been doing business with for several years. [46] When the Complainant realized that Captain Bélanger's decision was irrevocable, he requested a letter attesting to his termination of employment (Exhibit I-2), and the witness faxed it to Édouard Nadeau. [47] The witness recalled that, to remedy Bruno Boudreault's departure, the seaman Dave Cossette was promoted to helmsman and his position was filled by hiring a seaman. [48] The witness mentioned that the Umiavut was to clear Valleyfield harbour on June 22, 2001. However, most of the seamen on board did not hold the medical certificate required by Transport Canada, which had become mandatory because the ship was to make a foreign voyage in international waters. The witness revealed that she had arranged for a physician designated by Transport Canada to board the ship on Sunday, June 24, 2001 to conduct the medical examinations and issue the required medical certificates. [49] The witness stated that the Umiavut cleared Valleyfield harbour on Tuesday, June 26, 2001 for its first voyage to the far north. It returned on August 28, 2001. During that voyage, Dave Cossette, the Complainant's replacement, was paid $17,320.07: $10,296.74 as a helmsman and $7,023.33 as a longshoreman. During the second voyage from September 3, 2001 to November 4, 2001, the helmsman Stéphane Lavoie, who replaced Dave Cossette, was paid $17,358.35: $9,524.01 as a helmsman and $7,834.34 as a longshoreman. [50] The witness stated that, when the decision was made to terminate the Complainant's employment, the possibility of limiting the Complainant's work as a helmsman and a longshoreman was not considered because the Complainant had been hired to perform both helmsman and longshoreman duties. In addition, limiting the duties would have required paying overtime hours. (iii) Édouard Nadeau [51] Édouard Nadeau is the president of the Respondent, Great Circle Marine Services Inc. It is a company that supplies personnel to work on ships. In 2001, the Respondent signed an agreement with Transport Umialarik for managing the Umiavut's crew except for the captain and the chief engineer. Umialarik's representative, Andrée Viger, informed the witness of the personnel required on board the ship. She sent him Bruno Boudreault's C.V., the medical certificate and the bridge watchman certificate. [52] He contacted the Complainant to offer him employment as a helmsman/ longshoreman on the Umiavut. Because he was not familiar with longshoreman work, the witness asked the Complainant whether he was familiar with this type of work. The Complainant informed him that he had never done that type of work, but that, according to the description that his friends had given him, he claimed that he would be able to perform the duties. Édouard Nadeau told the Complainant to bring warm clothes with him without specifying those that he would provide him with and that appeared in the employment contract signed on board the ship. [53] The witness provided his client with the required personnel. He acknowledged that for some crew members, such as the Complainant, this was their first work experience on a ship travelling to the Arctic. [54] The witness said that with his permission the Complainant boarded the ship on June 17, 2001 at Valleyfield harbour. He had him sign the employment contract (Exhibit P-1). After hiring all personnel, the witness left the ship on June 19, 2001 and returned to Shédiac (New Brunswick), where his residence and the Respondent's head office were located. [55] Édouard Nadeau said that, on June 20 or 21, 2001, Andrée Viger informed him that Captain Bélanger had terminated the Complainant's employment for safety reasons, and she sent him a letter from the Captain (Exhibit P-2). He revealed that he did not question the Captain's decision, for the following reason (page 389 of the transcripts of proceedings): "I did not challenge Mr. Boudreault's termination. I have 15 years experience as a seaman, as an officer, and the captain's decision is final. That meant that there was no discussing it with him." [translation] [56] Arrangements were made to replace the Complainant. A seaman already on board the ship, who had never travelled to the north, held a bridge watchman certificate and was promoted to helmsman. The witness then hired another seaman, who boarded the ship at Quebec. [57] After returning to his residence, Édouard Nadeau received a telephone call from the Complainant notifying him of his termination because of putting ice on his knee. He told the Complainant that he deferred to the decision of the ship's captain and that he would try to find him another job. He tried to do so, but was unsuccessful. However, after receiving the Complainant's formal demand letter (Exhibit P-5) he stopped the employment search. He acknowledged that it was difficult to find a seaman with a bridge watchman or helmsman certificate. (iv) Georges Tousignant [58] In 2001, Georges Tousignant had been Director of Operations for Transport Nanuk since 1994. He was responsible for ship-related operations, namely ship supply, transportation of goods and ship maintenance operations. After completing his studies at the École de Marine, he obtained an initial officer's certificate in 1978. Starting in 1979, he worked as a navigation officer on cargo ships. He sailed primarily on the Great Lakes and in the Canadian Arctic. In 1992, he obtained a Master Mariner certificate. [59] The witness explained that in 2001 the Umiavut went to northern Quebec twice during the navigation period to deliver goods in wooden containers or crates or even in bundles such as building materials, and rolling equipment like trucks. [60] Georges Tousignant explained that the navigation season usually runs from the beginning of July to mid-November. [61] He said that the Umiavut arrived in Valleyfield harbour on June 17, 2001. The loading was to be done during the week so the ship could leave on Friday, June 22, 2001 for a foreign voyage because it had to stop at Thule, Greenland. However, because all the staff on board were to have undergone a medical examination in accordance with Transport Canada requirements and because some seamen did not hold a medical certificate, the departure was delayed until June 26, 2001 to allow them to undergo a medical examination by a physician designated by Transport Canada. A physician boarded the ship on June 24, 2001 to conduct the examinations of the seamen and issue medical certificates. [62] The witness stated that he was on board and that he himself had a medical examination that lasted about 15 minutes. The physician took blood pressure and performed a summary hearing and vision examination. Finally, the witness answered a questionnaire. [63] The witness explained that the Umiavut could carry a load of 3,000 tonnes and that the shipping and delivery charges were approximately $200 per tonne. He explained that the ship's operating costs while waiting at the pier were around $15,000 per day and, when sailing, between $18,000 and $19,000 per day. He mentioned that, when the ship was delayed due to the client, the carrier absorbed the costs incurred because of the delay. [64] Georges Tousignant acknowledged that, even when the carrier would do everything possible to meet delivery times, delays frequently occurred, particularly due to problems during navigation. [65] Georges Tousignant mentioned that during the goods unloading operations, crew members were assigned to longshoring. On the Umiavut, the longshore team consisted of ten crew members. He maintained that a missing longshoreman would result in a 10% loss in longshoring productivity. [66] The witness explained that, in the event that a crew member could not perform his longshoreman duties, he would be sent home and replaced by someone else. He conceded that the voyage could proceed without the replacement, but he thought that this was not a desirable course of action because, if a further crew member were to become unable to do the work, productivity would be even more impacted. [67] The witness explained the duties of a helmsman. This person steers the ship from a location called the wheelhouse. He receives his instructions for steering the ship from the navigation officer or from the captain. Formerly, the helmsman would steer the ship using a wheel; hence the designation wheelsman. With the advent of technology, this work was reduced through the use of an automatic pilot. The helmsman is assigned to watch duty. He keeps watch and brings to the navigation officer's attention any obstacles or situations that can impede navigation. His daily work schedule is eight hours, on a rotating schedule of four hours of work and eight hours of rest. [68] The witness stated that the wheelhouse contains seats used exclusively by the captain. A seat is also provided, on request, for the specialized pilot who boards the ship for several hours in a row. The witness mentioned that he does not see any reason for a seat to be provided for the helmsman. According to him, the established, recognized custom is for the helmsman to remain standing to do his work, except during his 15-minute rest break during his shift. (v) Marcel Éthier [69] Marcel Éthier is a physician designated by Transport Canada to issue medical certificates in accordance with the organization's regulations. He has his practice in Île-aux-Coudres. With reference to the medical record, he stated that he had met with Bruno Boudreault in 1997 as an attending physician. He saw the Complainant again on February 13, 2001 for an examination required by Transport Canada. [70] Dr. Éthier said that he conducted a complete medical examination including blood pressure, pulse, weight and blood sugar level. He also conducted a general physical examination of his head, lungs, heart, abdomen and extremities, and everything was normal. He noticed that his record contained no mention of the Complainant having a knee problem. III. THE LAW [71] Bruno Boudreault filed a complaint against the Respondent alleging a contravention of the provisions of section 7 of the Act. Under this section, it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ an individual or, in the course of employment, to differentiate adversely in relation to an employee. The discriminatory practice must be based on a prohibited ground. Section 3 of the Act specifies that disability is a prohibited ground. He also alleged that the Respondent failed to comply with the provisions of section 10 of the Act in that it engaged in a discriminatory practice by requiring all crew members of a ship, without exception, to be in suitable physical condition, with the assessment of that condition left to the judgement of the ship's captain. Finally, paragraph 15 (1) (a) of the Act states that: "It is not a discriminatory practice if any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement." Paragraph 15 (2) of the Act specifies that: "For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost." [72] In 1999, the Federal Court issued two major decisions referred to as Meiorin 1 and Grismer. 2 In these two cases, the Supreme Court set out the rules for the adjudication of human rights complaints. First, the onus is on the complainant to establish a prima facie case of discrimination. A prima facie case of discrimination must cover the allegations made and which, if believed, is complete and sufficient to justify a verdict in favour of the complainant, in the absence of an answer from the respondent. [73] Once a prima facie case of discrimination has been established, the onus shifts to the respondent to prove, on a balance of probabilities, that the challenged standard or policy is bona fide. To do so, it must demonstrate that: it adopted the standard for a purpose that is rationally connected to the performance of the job. It is necessary to consider whether the standard was adopted for the purpose of ensuring that the job is performed safely and effectively; that it adopted the standard in good faith, in the belief that it is necessary for the fulfilment of that legitimate work-related purpose; that the standard is reasonably necessary to the accomplishment of that purpose, namely the safe and effective performance of the job. [74] To show that the standard is reasonably necessary, the respondent must prove that it is impossible to accommodate the specific needs of an individual employee sharing the characteristics of the complainant without imposing undue hardship on the respondent. IV. ANALYSIS A. The prima facie case of discrimination [75] The evidence showed that Bruno Boudreault was hired by the Respondent for the period from June 15, 2001 to October 31, 2001 to perform helmsman and longshoreman duties on board the Umiavut, which was to carry and deliver goods to various posts and villages during two voyages to the far north. The ship's captain was Robert Bélanger. [76] The Complainant had been required to board the ship anchored in Valleyfield harbour on June 17, 2001. Since the helmsman duties would be performed when the ship was at sea and the longshoreman duties at the time of unloading the goods, he was assigned to ship's watch. He performed four-hour watch periods separated by an eight-hour rest period. [77] On Wednesday, June 20, 2001, shortly after his watchkeeping shift ended at 8:00 a.m., he was summoned to the office of the Captain, who wanted to confirm the information he had received about him putting ice on his left knee. The Complainant confirmed this information. He explained that he had had an operation on his left knee in 1998, that he sometimes had stiffness or pain in his knee, which he soothed with ice. According to Andrée Viger's version, the Complainant had mentioned that he had arthritis, which he denied. However, contrary to the statement made by counsel for the Respondent, neither the Captain nor Andrée Viger mentioned that there had been any swelling in the left knee. [78] After receiving this information, the Captain asked the Complainant to return to his cabin and told him that he would inform him of his decision later in the day. The Captain spoke with Andrée Viger and then summoned the Complainant to his office again about one half an hour later. [79] The Captain informed Bruno Boudreault that he had decided to terminate his employment because of the problems with his left knee. He felt that the Complainant's disability would prevent him from performing the helmsman and longshoreman work during the upcoming voyages because of the demanding nature of the duties. In addition, the Captain felt that the Complainant's knee problems were likely to jeopardize his and the crew members' health and safety. [80] In my view, the Complainant has successfully established a prima facie case of discrimination based on an real or perceived disability in the way the Captain handled it. I also believe that the Complainant's knee problems may constitute a disability and a discriminatory practice based on a prohibited ground within the meaning of section 7 of the Act. Moreover, there is no doubt that this discrimination prevented the Complainant from continuing his employment with the Respondent. [81] I also believe that the Complainant demonstrated prima facie that the Respondent contravened the provisions of section 10 of the Act by leaving it up to the Captain alone to assess an employee's physical condition. The Respondent should rely on the expertise of medical personnel who are qualified to shed light on the physical condition required of seamen, given the duties they would be called upon to perform. However, since Captain Bélanger's employer is not a party to Bruno Boudreault's complaint, the Tribunal will not discuss measures for rectifying this situation. B. Bona fide occupational requirement [82] Once a prima facie case of discrimination is established, it is necessary to determine whether the discrimination is based upon a bona fide occupational requirement using the method suggested in the Supreme Court's jurisprudence. C. Was the standard adopted for a purpose that is rationally connected to the performance of the job? [83] To demonstrate the existence of a bona fide occupational requirement, the onus is on the Respondent to prove that requiring seamen, such as helmsmen or longshoremen, to be in suitable physical condition is rationally connected to the positions they hold. The focus at this stage is not on the validity of the standard in issue, but rather on the validity of its more general purpose 3. I believe that the general purpose of the standard in this instance is to ensure the safe and effective performance of the work. Therefore, I believe that suitable physical condition is rationally connected to the duties of seamen such as helmsmen and the longshoremen. D. Was the standard adopted in good faith? [84] At this stage, the onus is on the Respondent to demonstrate that the standard requiring suitable physical condition was adopted in good faith, in the belief that it was necessary for the fulfilment of a legitimate work-related purpose. However, if the requirement for suitable physical condition is not deemed reasonably necessary or is motivated by discriminatory reasons, it will not be considered justified. [85] The Respondent did not submit any evidence describing the suitable physical condition it requires of hired personnel on board the ship. In her list of authorities, counsel for the Respondent submitted the Crewing Regulations (Regulations) in force as of October 2003, which is subsequent to the start of this case, and she directed the Tribunal to part 8 of said Regulations, which deals with medical examinations of seafarers, which I will return to later. Counsel for the Respondent stated that part 8 of said Regulations had not been amended in October 2001 and that it applied in the present case. Neither did Captain Bélanger shed any light for the Tribunal on the definition of this standard; he simply explained the objectives of the requirement for suitable physical condition of crew members. [86] The evidence showed that neither Andrée Viger nor Édouard Nadeau ever informed Bruno Boudreault, during the telephone conversations prior to his being hired, about the importance of suitable physical condition for performing helmsman and longshoreman duties. [87] They were satisfied with the medical certificate issued by Dr. Éthier, which brings me to the discussion of the need for medical examinations of seafarers. When required, medical examinations of seafarers are conducted by a physician who is knowledgeable about the work of seafarers and is designated by the minister. It is mandatory for seafaring personnel holding the positions of captain, officer and helmsman to hold a medical certificate issued by a designated physician. [88] In addition, all seafaring personnel on board a ship making a foreign voyage must also hold a medical certificate. However, this is not the case for ships making a voyage in minor waters, for which the seamen do not require a medical certificate. [89] Section 66 of part 8 of said Regulations deals with the nature of the examination that the designated physician must conduct. It reads as follows: "66 (1) The physician conducting a medical examination under this part shall ensure that the seafarer does not have any of the following disabilities: a) an impairment that could cause a sudden loss of consciousness and cannot be controlled through medication; b) a disorder that could prevent the seafarer from reacting effectively, while on duty, in an emergency; c) a condition that could endanger the security of others, in light of the confined conditions on board ship; d) a condition that is likely to require emergency medical care and that cannot be controlled through medication; e) an untreated psychiatric disorder. (2) The physician conducting a medical examination under this part shall ensure that the seafarer has: a) adequate muscle strength to carry a mass of 22 kg; b) the physical capacity to wear breathing apparatus and life-saving equipment; c) adequate vision and hearing and the agility and strength to perform the duties of fire fighting, first-aid administration and ship abandonment in an emergency." [90] The testimony of Dr. Éthier, the designated physician, clearly shows that the Complainant's examination on February 13, 2001 was not conducted thoroughly enough to enable him to meet the requirements of section 66 of said Regulations, and the medical certificate issued does not meet them either. Dr. Éthier mentioned that he had conducted a summary general examination of the Complainant. [91] The evidence showed that, when the Complainant was hired on June 17, 2001 as a helmsman/longshoreman on board the Umiavut, the voyage as it was then planned was to be made in minor waters. The Regulations did not require medical certificates for the seamen. The evidence is that several of the seamen hired did not hold a medical certificate, and the Respondent in no way required it. It was only when the voyage became a foreign voyage that the medical certificate was expected from the seamen, not from the desire to check the seamen's physical condition, even summarily, but only because the Regulations required it. [92] From what sufficiently serious and convincing data did Captain Bélanger conclude that Bruno Boudreault was not in suitable physical condition to meet the requirements of the helmsman and longshoreman duties? It bears emphasis that the longshoreman duties that the Complainant would have had to perform were not determined. The evidence showed that he would probably have been the tug operator, specifically the tug master. [93] The first piece of information that Captain Bélanger received was that the Complainant had placed ice on his knee. There was nothing during the previous days indicating that the Complainant was unable to fulfil the watch duties he was assigned to and which, incidentally, are inherent in the helmsman duties. The second piece of information that Captain Bélanger received came from the Complainant, who told him about the operation on his left knee three years earlier and that he had some stiffness and sometimes pain in his left knee, warranting putting ice on it. The Complainant assured him that he was capable of doing his work. [94] This information alone guided Captain Bélanger's decision to terminate the Complainant's employment. Why was the Complainant's suggestion not taken regarding contacting his orthopedic physician or going to the hospital to obtain his medical record? Andrée Viger's response was that there was no time since it was a Wednesday and that the ship was to clear the harbour that Friday. In reality, the ship put out to sea the following Tuesday. The evidence also showed that the Complainant suggested he undergo a medical examination by a physician of the Respondent's choice. It should be recalled that the evidence is that seamen holding a bridge watchman certificate were a very rare commodity. Yet Andrée Viger still did not take the Complainant's suggestion, pretexting to having no time to do so. Andrée Viger explained that she had been doing business with a firm of medical experts for several years. As such, her claim that it would have been impossible for her to obtain an appointment within two days leaves me very sceptical. However, it was possible for her to engage the services of a physician, who boarded the ship on Sunday, June 24, 2002 to conduct medical examinations of the seamen not holding the required medical certificate. [95] The information that Captain Bélanger had at hand did not in itself justify his finding regarding the Complainant's physical condition. Moreover, the content of the Complainant's medical certificate, even if Captain Bélanger had read it, would not have led him to a more well-informed decision. To properly determine whether the problems with the Complainant's knee resulted in his physical condition being unsuitable for performing the helmsman and longshoreman duties safely and effectively, he should have obtained a medical assessment that met the requirements of section 66 of the Regulations. [96] Once the standard regarding suitable physical condition was adopted, every candidate should have been officially informed of its existence and importance prior to being hired, which was not done. In addition, even though they stated they were satisfied with the medical certificate from the physician designated by Transport Canada to confirm a candidate's physical condition, the evidence showed that the certificate was not an initial employment condition for all seamen. Finally, if suitable physical condition was essential, a thorough medical assessment meeting the requirements of section 66 (1) of the Regulations should have been mandatory to ensure that the standard was met. [97] I conclude that the standard regarding suitable physical condition for employees was not reasonably necessary and does not constitute a bona fide occupational requirement. Thus, the Respondent engaged in a discriminatory practice by terminating the Complainant's employment due to his unsuitable physical condition, namely the problems with his left knee. [98] Therefore, Bruno Boudreault's complaint is substantiated. V. REMEDIES A. Reinstatement [99] After concluding that the complaint is substantiated it is incumbent on the Tribunal to restore the Complainant to the situation he would have been in, had it not been for the discrimination, namely his termination on June 20, 2001. [100] The evidence showed that the Complainant was hired under a term contract of employment, specifically from June 15, 2001 to October 31, 2001. Therefore, even though the Complainant stated that the Respondent should have informed him of the possibility of another employment contract, I do not believe reinstatement to be well founded. B. Damages for financial loss [101] Bruno Boudreault claims lost wages due to his termination. The evidence revealed that, during the ship's first voyage, namely from June 26, 2001 to August 28, 2001, the Complainant's job was done by another helmsman and longshoreman, who was paid $17,320.07. In her argument, counsel for the Respondent maintained that $447.09 should be subtracted from that sum, which is the amount that the Respondent paid the Complainant for his work from June 17, 2001 to June 20, 2001. She submitted that the Complainant's replacement was also working from June 17 to June 20, 2001 and that he received the same amount as the Complainant did. However, nothing in the evidence indicated that the Complainant's replacement was working during that time. I conclude from this that the Complainant's financial loss from June 21, 2001 to August 28, 2001 was $17,320.07. [102] For the ship's second voyage, the parties agreed that the Complainant's financial loss was $17,358.35. Overall, the Complainant's lost income for the duration of the employment contract was $34,678.42. However, from July 31, 2001 to October 12, 2001 he earned $5,616.00, so his actual lost income was $29,062.42. [103] I therefore order the Respondent to pay to the Complainant the sum of $29,062.42. Since this lump sum awarded to the Complainant could potentially impose a greater tax liability on him, which would penalize him for no reason, I order the Respondent to pay to the Complainant an additional sum to cover the extra tax obligations that may be imposed on him upon receiving the ordered payment, and taking into account his other income and the accompanying compulsory deductions. [104] The Complainant was also claiming lost employment insurance income due to his termination. He justified this financial claim by the fact that working for the Respondent would have earned him a much higher income during his employment contract than what he received at another job. As a result, the employment insurance benefits were much lower than those he would have received if he had remained employed with the Respondent. However, the Complainant was unable to quantify the amount of employment insurance benefits that he lost, so this lost income cannot be accepted. [105] The Complainant was also claiming an amount of $7,000 on the grounds that his termination prevented him from accumulating hours as a helmsman for eventually becoming eligible for a Master Mariner certificate. The Complainant acknowledged that the amount he was claiming was completely arbitrary, with no data to establish the validity of it. Nothing in the evidence indicated that the Complainant had made any effort after his termination to continue working towards eventually meeting the requirements of a Master Mariner certificate. As a result, the evidence does not justify awarding the amount claimed for lost career advancement. C. Expenses (i) Clothing purchases [106] The evidence showed that during a telephone conversation Édouard Nadeau informed the Complainant that, since he was to go to the far north, he would need suitable clothing. The Complainant purchased thermal underwear, a sleeping bag, outerwear and winter boots, which cost him a total of $700. [107] I order the Respondent to pay to the Complainant the sum of $700. (ii) Legal fees [108] After the Complainant lost his job, he hired a lawyer to represent him throughout his case from the filing of the complaint with the Canadian Human Rights Commission to the end of the hearing before the Tribunal. [109] Counsel for the Complainant submitted a lawyer's bill to the Tribunal for $6,377.46. Counsel for the Respondent acknowledged that the fees claimed are directly connected with the complaint, except for an amount of $360. Counsel for the Respondent is correct on that point because that $360 is connected with a civil claim that the Complainant brought against the Respondent. [110] The Complainant requested that the Respondent be ordered to compensate him in an amount of $6,377.46 to pay his legal fees, but I feel that the amount of $6,017.46 should be considered instead. [111] The provisions of section 53 (1) of the Act confer on the Tribunal the power to award the Complainant any or all of the wages that he was deprived of and any expenses incurred as a result of the discriminatory practice. [112] The analyses in Stevenson 4 and Nkwazi 5 lead me to conclude that the legal fees claimed by the Complainant are part of the expenses incurred as a result of the discriminatory practice. Therefore, I order the Respondent to pay to the Complainant an amount of $6,017.46 for his legal fees. (iii) Pain and suffering [113] Under the provisions of section 53 (2) (e) of the Act, the Tribunal can order the Respondent to compensate the victim by an amount not exceeding $20,000 for any pain and suffering that the victim experienced as a result of the discriminatory practice. [114] The evidence revealed that the Complainant was upset by the sudden loss of his job. He lost his hope of pursuing his helmsman career and eventually obtaining his Master Mariner certificate. This sudden lost of employment impacted his morale. In light of these facts, I order the Respondent to pay to the Complainant an amount of $3,000 for pain and suffering. (iv) Compensation for reckless and wilful conduct [115] With reference to subsection 53 (3) of the Act, the Complainant requested that the Respondent be ordered to pay him $20,000 in compensation due to the fact that the discriminatory practice of which he was the victim was recklessly and wilfully engaged in. [116] There is nothing in the evidence demonstrating the validity of this request, and it is dismissed. (v) Interest [117] I order the Respondent to pay to the Complainant simple interest on all the foregoing sums awarded. This simple interest shall be calculated on a yearly basis at a rate equivalent to the Bank Rate set by the Bank of Canada (Monthly Series). [118] The interest on the amounts payable for pain and suffering and expenses shall run from the date of the termination to the date of the final payment. It shall be likewise for the amount payable for lost income. However, the interest shall be calculated as the wages would have become payable to the Complainant. Roger Doyon OTTAWA, Ontario June 30, 2004 PARTIES OF RECORD TRIBUNAL FILE: T818/6803 STYLE OF CAUSE: Bruno Boudreault v. Great Circle Marine Service Inc. DATE AND PLACE OF HEARING: February 17, 18, 19 and 20, 2004 Montréal, Quebec DECISION OF THE TRIBUNAL DATED: June 30, 2004 APPEARANCES: Kathleen Dufour On behalf of the Complainant Alain R. Pilotte and Isabelle Pillet On behalf of the Respondent 1British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [1] 2 >British Columbia (Superintendant of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 3 Meiorin, supra, para. 59 4 Attornery General of Canada v. Stevenson and the C.H.R.C. 2003 FCT 341 5 Beryl Nkwazi v. Correctional Service Canada Decision 3 C.H.R.T. 2001-03-29 5

2004 CHRT 22

CHRT

Beaudet-Fortin v. Canada Post Corporation

en

2004-07-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6974/index.do

2023-12-01

Beaudet-Fortin v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2004-07-06 Neutral citation 2004 CHRT 22 File number(s) T898/1804 Decision-maker(s) Doyon, Roger Decision type Consent Order Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE NATHELIE BEAUDET-FORTIN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent ORDER TO PRODUCE COMPLETE MEDICAL RECORDS MEMBER: Roger Doyon 2004 CHRT 22 2004/07/06 [TRANSLATION] I. OTTAWA, Ontario 2 [1] During the conference call held on May 31, 2004, the complainant, Nathalie Beaudet-Fortin, informed the Tribunal that she had been unable to send to the respondent, Canada Post Corporation, a complete disclosure of her evidence, including certain medical documents, within the previously specified time period. [2] The complainant undertook to obtain her complete medical records from the respondent so that she could provide to the respondent the medical documents to complete the disclosure of her evidence no later than June 30, 2004. [3] On June 11, 2004, the complainant advised the Tribunal that it had been impossible for her to obtain from the respondent her complete medical records from the date she was hired, which was necessary for the complete disclosure of her evidence and for then preparing the presentation of her evidence at the hearing. [4] It appears that the respondent, Canada Post Corporation, refuses to comply with the complainant's request unless it is required to do so by an order of the Tribunal. [5] Accordingly, the Tribunal orders that: Canada Post Corporation provide to Nathalie Beaudet-Fortin her complete medical records (M-840 (730) from the date she was hired, no later than July 20, 2004. Roger Doyon OTTAWA, Ontario July 6, 2004 PARTIES OF RECORD TRIBUNAL FILE: T898/1804 STYLE OF CAUSE: Nathalie Beaudet-Fortin v. Canada Post Corporation DECISION OF THE TRIBUNAL DATED: July 6, 2004 APPEARANCES: Nathalie Beaudet-Fortin (herself) Ikram Warsame For the Canadian Human Rights Commission Marc Santerre For the Respondent

2004 CHRT 23

CHRT

Beaudet-Fortin v. Canada Post Corporation

en

2004-07-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6975/index.do

2023-12-01

Beaudet-Fortin v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2004-07-06 Neutral citation 2004 CHRT 23 File number(s) T898/1804 Decision-maker(s) Doyon, Roger Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE NATHALIE BEAUDET-FORTIN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent DECISION CONCERNING THE RIGHT TO ACT AS A WITNESS AND ALSO AS A REPRESENTATIVE OF A PARTY MEMBER: Roger Doyon 2004 CHRT 23 2004/07/06 [TRANSLATION] [1] On September 9, 1999, Nathalie Beaudet-Fortin filed a complaint with the Canadian Human Rights Commission (the Commission) against her employer, Canada Post Corporation. She claims that her employer: discriminated against her on the basis of her sex (pregnancy) by refusing to accommodate her in accordance with her physician's instructions when she was 20 weeks pregnant, contrary to section 7 of the Canadian Human Rights Act (the Act); maintained a policy discriminating against pregnant women, by transferring them automatically to the mail redirection centre without considering their medical certificates when this work environment was ill suited to the needs of pregnant women, contrary to the provisions of section 10 of the Canadian Human Rights Act. [2] During a conference call held on May 31, 2004, counsel for the Commission informed the Tribunal that she intended to have Alain Duguay testify as principal witness when presenting the Commission's evidence in relation to the discrimination complaint involving the breach of section 10 of the Canadian Human Rights Act. [3] Moreover, counsel for the Commission advised the Tribunal that the Commission did not intend to participate in the presentation of evidence in relation to the discrimination complaint involving the breach of section 7 of the Canadian Human Rights Act. Accordingly, the complainant wants to be represented by Alain Duguay for the purposes of presenting her evidence. [4] The Tribunal was therefore called to decide on the right of an individual to act both as a Commission's witness at the hearing on the evidence and as the complainant's representative during the presentation of her evidence at the hearing. Subsection 50(1) of the Canadian Human Rights Act provides that: After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. [5] Despite the existence of this provision, the Tribunal has always been concerned about giving the most disadvantaged a full and ample opportunity to assert their rights by being represented by a layperson. In my opinion, the fact that an individual acts as a witness in one branch of this matter and as the complainant's representative in the other branch could not cause any prejudice to the respondent, or amount to interference with the efficient administration of justice. [6] Accordingly, the Tribunal authorizes Alain Duguay to testify at the hearing of Nathalie Beaudet-Fortin's complaint, brought pursuant to section 10 of the Canadian Human Rights Act and to act as her representative at the hearing of her complaint under section 7 of the Canadian Human Rights Act. Roger Doyon OTTAWA, Ontario July 6, 2004 PARTIES OF RECORD TRIBUNAL FILE: T898/1804 STYLE OF CAUSE: Nathalie Beaudet-Fortin v. Canada Post Corporation DECISION OF THE TRIBUNAL DATED: July 6, 2004 APPEARANCES: Nathalie Beaudet-Fortin (herself) Ikram Warsame For the Canadian Human Rights Commission Marc Santerre For the Respondent

2004 CHRT 24

CHRT

Brown v. Canada (Royal Canadian Mounted Police)

en

2004-07-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6977/index.do

2023-12-01

Brown v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2004-07-16 Neutral citation 2004 CHRT 24 File number(s) T769/1903 Decision-maker(s) Groake, Paul Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JACQUELINE BROWN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL CANADIAN MOUNTED POLICE Respondent REASONS FOR DECISION ON REMEDY MEMBER: Dr. Paul Groarke 2004 CHRT 24 2004/07/16 I. PAIN AND SUFFERING II. WILFUL OR RECKLESS CONDUCT III. RULING ON QUANTUM IV. OTHER MATTERS [1] The following decision deals with remedy. I believe that the obligation of the Tribunal to proceed expeditiously, in the wording of the Act, extends to the provision of relief. I have accordingly advised the parties that I would deal with as many of the outstanding matters as possible before dealing with the question of costs. [2] The Complainant has asked for compensation under two heads. The first is for twenty thousand dollars, the maximum, for pain and suffering under s. 53(2)(e) of the Canadian Human Rights Act. The second is for the same amount under s. 53(3), which allows a Tribunal to award additional damages if it finds that a Respondent has engaged in the discriminatory practice wilfully or recklessly. The Complainant has also asked for interest on the award and the costs of the hearing. I. Pain and suffering [3] There is no doubt that the Complainant suffered emotionally as a result of the unfairness she encountered in the promotional process. The experience rattled her. She came out of it with her self-esteem in question. I am satisfied that that she is entitled to a substantial award for pain and suffering. [4] There was some debate as to the purpose of such damages. Counsel for the Complainant argued that damages for pain and suffering are not intended solely as monetary compensation for the pain and suffering experienced by the victim. They are also intended to express society's condemnation of such practices. [5] I am not convinced. The law of human rights is remedial and not punitive. The purpose of damages is to put the Complainant in the position that she would have been in had the discrimination not occurred. It is the experience of the Complainant rather than the conduct of the Respondent that should be consulted in determining the amount of any award. [6] I believe that the argument made by Mr. Gordon should be made under section 53(3), which provides a separate head of damages in cases where the conduct of the Respondent is wilful or reckless. The condemnatory element in the section may carve out an exception to the general rule that the legislation is remedial. This provides a deterrent and serves to discourage those who deliberately discriminate. [7] The situation is different under section 53(2). As a general rule, the nature of the Respondent's conduct is only relevant in determining damages for pain and suffering when there is a causal link between the Respondent's conduct and the Complainant's feelings. If the Complainant's stress and disappointment was aggravated by the conduct of the RCMP, I accordingly agree that its conduct must be taken into account in awarding damages for pain and suffering. This is the situation that presents itself in the present case. [8] The Complainant has submitted that the conduct of the RCMP contributed unnecessarily to her suffering. I have some sympathy with this position. The conduct of the RCMP in the case was at least intransigent. It prolonged the situation well beyond its natural termination point. This contributed to the her distress and must be taken into account in compensating her. If there is a message for the RCMP, it is that it failed to redress the situation. [9] I have already recognized that there was stubbornness on both sides. It is evident that Corporal Brown was unwilling to return to work without an admission that she had been wronged. This was not entirely reasonable. I also accept that the force made sincere and well meaning attempts to resolve the situation. One of the ironies of the case is that it gave the Complainant medical leave to deal with the psychological aspects of the matter. [10] There are other factors. I am not in a position to settle the dispute between the parties as to the extent of the Complainant's pre-existing psychological condition. There are nevertheless many circumstances outside the control of the RCMP that contributed to her emotional and mental state. Her father was dying; she had a history of migraines and there is a suggestion from the Respondent that she had difficulties at home. She also refused medication, apparently on medical grounds, and rejected the overtures of the Respondent. This must also be considered in determining the appropriate level of compensation. II. Wilful or reckless conduct [11] The Complainant has also claimed exemplary damages for wilful or reckless conduct under section 53(3). My colleague Mr. Hadjis has awarded damages under the section in a number of cases dealing with harassment. The Complainant accordingly provided me with copies of his decisions in Woiden v. Lynn 2002 CHRT 6, Bushey v. Sharma, 2003 CHRT 21, and Groupe d'aide et d'information v. Jean Barbe, 2003 CHRT 24. [12] I do not see how these decisions can have any bearing on the circumstances before me. The individual in each case had acted in a manner that was humiliating and flagrantly offensive. In Woiden, for example, the Respondent used the most derisive language and regularly addressed his female staff as fucking bitches. There is nothing remotely like this on the facts before me. [13] The RCMP may have discriminated against the Complainant, but it acted well within the normal standards of management. The Career Management Unit was under enormous pressure from all sides and conducted itself in a professional manner. There was none of the insulting conduct that played such a prominent role in the cases provided by the Complainant. I do not accept that the comments of Sgt. Kallin enter into the matter. [14] The section may apply in situations other than harassment. It nevertheless requires something more than stubbornness. I would have thought that the provision provides for an award in circumstances where the Respondent intended and perhaps wanted to discriminate against the Complainant. Intention in the law extends to recklessness. This distinguishes those cases that fall under s. 53(3) from the usual instance of discrimination, which does not require proof of an intention. [15] The Complainant has argued that recklessness brings in a lower standard than wilful. She relied on a definition from The Dictionary of Canadian Law: Reckless: Describes a person who, knowing that there is a risk that something may happen as a result of acting in a certain way or existing circumstances, takes the risk when it is unreasonable to take it, considering the nature and degree of the risk known to be present. This definition would only apply if the Respondent knew that the Complainant was in a precarious psychological state and acted as it did, in the knowledge that it might precipitate a break-down. The facts simply do not support such an allegation. [16] I do not see the indicia of recklessness here. The language used by the Board of Inquiry in Cameron v. Nel-Gor Castle Nursing Home (1984), 5 C.H.R.R. D/2170, goes far beyond the kind of circumstances before me, which cannot be described as rash, heedless or wanton. The RCMP may have been in the wrong, but it conducted itself in a measured and professional way. I do not think it is fair to describe its actions as reckless. III. RULING ON QUANTUM [17] Taking all of these considerations into account, the Respondent is ordered to pay the Complainant ten thousand (10,000) dollars in compensation for her pain and suffering. She is entitled to interest on such a sum at simple interest, calculated on a yearly basis at the Canada Savings Bond rate. Interest will be payable from March 14, 2000, up to the date of payment. The Respondent is directed to pay this sum within four weeks of the date of this ruling. IV. OTHER MATTERS [18] The Complainant has also asked that a copy of my decision on liability be placed on her personnel file. The Respondent has not resisted such an order. I am accordingly directing the Respondent to place a copy of that decision, along with the present decision, on Corporal Brown's file. There is no reason to extend this direction to future rulings. [19] I gather that the Complainant has requested educational leave. A new issue has also arisen with respect to the transfer that I ordered in my earlier decision. I gather that the Complainant has applied for educational leave. The Respondent has responded by filing a Notice of Motion asking for a ruling that the Tribunal is functus on the matter. The substance of the matter is set out in the material filed by the Respondent. [20] I cannot go into the details of the controversy without further evidence. It does not matter. The reality is that both sides have agreed that the RCMP has complied with the substance of my order. I am satisfied that the RCMP has gone some considerable distance beyond its obligations to provide the Complainant with a transfer. The present decision can accordingly be treated as a formal ruling that the Tribunal does not have any jurisdiction to deal further with the matter. [21] Counsel for the Complainant has provided the Tribunal with copies of some of the correspondence between the parties on this issue. His letter to the Tribunal suggests that the application is unnecessary and merely reflects the desire of the Respondent to portray the Complainant as unreasonable while the matter of damages is before the Panel. The Complainant accordingly submits that the application amounts to an abuse of process and requests the costs of the application. This will have to be decided at a later date. I can assure the Complainant however that the application from the Respondent had no bearing on my decision regarding the quantum of damages. [22] The only outstanding issue between the parties is the matter of costs. The Respondent has raised a preliminary issue as to whether the Tribunal has the authority to award costs under the Canadian Human Rights Act. This requires further reflection. Signed by Dr. Paul Groarke OTTAWA, Ontario July 16, 2004 PARTIES OF RECORD TRIBUNAL FILE: T769/1903 STYLE OF CAUSE: Jacqueline Brown v.Royal Canadian Mounted Police DATE AND PLACE OF HEARING: June 17 and 18, 2004 Vancouver, B.C. DECISION OF THE TRIBUNAL DATED: July 16, 2004 APPEARANCES: Charles Gordon For the Complainant Keitha Richardson For the Respondent Reference: 2004 CHRT 5 February 4, 2004

2004 CHRT 25

CHRT

Opdenvelde v. Amalgamated Transit Union, Local 1374

en

2004-07-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6979/index.do

2023-12-01

Opdenvelde v. Amalgamated Transit Union, Local 1374 Collection Canadian Human Rights Tribunal Date 2004-07-20 Neutral citation 2004 CHRT 25 File number(s) T837/8703, T872/12203, T873/12303 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE PETER OPDENVELDE, KATHERINE MAYHEW Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BREWSTER TRANSPORT COMPANY LIMITED - and - AMALGAMATED TRANSIT UNION, LOCAL 1374 Respondents RULING ON COMPLAINTS PURSUANT TO SECTIONS 7, 9 AND 10 MEMBER: Michel Doucet 2004 CHRT 25 2004/07/20 [1] The complaint of Peter Opdenvelde dated August 10, 2001, pursuant to section 7 of the Canadian Human Rights Act, against Brewster Transport Company Limited is adjourned sine die. [2] The complaint of Katherine Mayhew dated June 1, 2002, pursuant to section 7 of the Act, against Brewster Transport Company Limited and the complaint of Katherine Mayhew, dated June 1, 2002, pursuant to section 9 of the Act against the Amalgamated Transit Union, Local 1374, are adjourned sine die. [3] It is admitted by all of the parties that there is a prima facie case of discrimination in relation to the section 10 complaints of Peter Opdenvelde, dated August 10, 2001, against Brewster Transport Company Limited and of Katherine Mayhew against Brewster Transport Company Limited and against the Amalgamated Transit Union, Local 1374. [4] It is admitted by all the parties that the Alcohol and Drug Use Policy of Brewster Transport Company Limited with the attached addendum containing amendments to the Policy represents a bona fide occupational requirement under section 15(1)a) of the Act. [5] It is therefore the opinion of this Tribunal that, under these circumstances, the Alcohol and Drug Use Policy of Brewster Transport Company Limited with the attached addendum containing amendments to the policy complies with the Canadian Human Rights Act. Signed by Michel Doucet OTTAWA, Ontario July 20, 2004 PARTIES OF RECORD TRIBUNAL FILES NOS.: T837/8703, T872/12203, T873/12303 STYLE OF CAUSE: Peter Opdenvelde v. Brewster Transport Company Limited Katherine Mayhew v. Brewster Transport Company Limited Katherine Mayhew v. Amalgamated Transit Union, Local 1374 DATE AND PLACE OF HEARING: July 15, 2004 Ottawa, Ontario Toronto, Ontario (via videoconference) Calgary, Alberta (via videoconference) RULING OF THE TRIBUNAL DATED: July 20, 2004 APPEARANCES: Peter Opdenvelde On his own behalf Katherine Mayhew On her own behalf R. Daniel Pagowski Counsel for the Canadian Human Rights Commission Heather Treacy Counsel for Brewster Transport Company Limited Sylvia Davis Counsel for the Amalgamated Transit Union, Local 1374

2004 CHRT 26

CHRT

Communications, Energy And Paperworkers Union of Canada v. Bell Canada

en

2004-07-28

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6981/index.do

2023-12-01

Communications, Energy And Paperworkers Union of Canada v. Bell Canada Collection Canadian Human Rights Tribunal Date 2004-07-28 Neutral citation 2004 CHRT 26 File number(s) T503/2098 Decision-maker(s) Deschamps, Pierre; Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA AND FEMMES-ACTION Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent RULING ON MOTIONS TO RECONSIDER A PREVIOUS DECISION , TO EXCLUDE AN EXPERT REPORT AND TO LIMIT THE CROSS-EXAMINATION OF A WITNESS PANEL: J. Grant Sinclair Pierre Deschamps 2004 CHRT 26 2004/07/28 [1] The Tribunal has three motions, two from the respondent, Bell and one from the complainant CEP. [2] In its first motion, Bell asks the Tribunal to reconsider its decision precluding it from cross-examining Ms. Blackstaffe on the AT&T Study, the Terms of Reference pertaining to the Joint Study and the training given to members of the Joint Committee and Subcommittee. [3] Bell's second motion is for an order that the expert report of Dr. Lawrence Gould dated March 25, 2004 on the calculation of interest, not be received in evidence by the Tribunal, or alternatively, that certain portions be struck. [4] CEP requests that the remainder of Ms. Blackstaffe's cross-examination by Bell be limited in time and specifically suggests an end date of September 14, 2004. A. Bell's reconsideration request - Cross-Examination on the AT&T Study [5] In her examination in chief, Ms. Blackstaffe testified that the Subcommittee for the Joint Study visited New Jersey to discuss with representatives of AT&T and CWA, their job evaluation study. Bell vigorously objected to this evidence because Ms. Blackstaffe had no direct personal knowledge of the AT&T Study. Bell also objected that this evidence was not relevant, the AT&T Study was never implemented and thus could not be used to evaluate the Joint Study. Bell was also concerned that Ms. Blackstaffe's evidence was hearsay, based on what she had been told by persons involved in the AT&T Study who could not be cross-examined. [6] The Tribunal concluded that Ms. Blackstaffe could be asked about the Subcommittee's visit to New Jersey, the information she obtained and what use was made by the Subcommittee of this information. Subsequently, Bell discounted its previous objections and sought to cross-examine Ms. Blackstaffe on the AT&T Study, specifically as to the difference between the point scores given to splicers versus operators at AT&T as compared to the point scores for these two jobs in the Joint Study. The Tribunal did not allow this questioning to continue because it involved direct knowledge of the AT&T Study and required an evaluative comparison. Ms. Blackstaffe was not qualified in either case. [7] In Bell's Outline of the Cross-examination of CEP Witness, Patricia Blackstaffe, dated June 30, 2004 and provided to the Tribunal, Bell states that the cross-examination on the AT&T Study is important for evaluative purposes so that one can properly appreciate the complete lack of reliability of the audit results. This alleged lack of reliability is to be proved by comparison of the AT&T Study process to the Joint Study process. [8] In oral submissions on this matter, Bell's position is that the cross-examination on the AT&T Study would not involve any comparison to the Joint Study. Rather Bell proposes to ask Ms. Blackstaffe what she learned about the AT&T Study and how she used such information; why she hired a consultant to review the AT&T Study; its value in the pay equity negotiations between Bell and CEP in 1988-1990, and finally, whether the Joint Committee was given any information relating to the AT&T Study. [9] In our opinion, these proposed questions parallel to a large extent what CEP asked Ms. Blackstaffe in chief. We have concluded that Bell can cross-examine Ms. Blackstaffe on the AT&T Study, but the questions must be strictly limited to the matters outlined in the preceding paragraph. B. The Terms of Reference - Joint Study [10] As we understand from Bell's Outline for the Cross-Examination and oral submissions, Bell wants to establish through cross-examination of Ms. Blackstaffe that decision-making for the Joint Study was located not in the Joint Committee as per the Terms of Reference. But, in fact, was relocated to the Subcommittee. Bell alleges that this was achieved by Ms. Blackstaffe, so that CEP was able to unduly influence the results of the Joint Study. [11] The Tribunal has heard extensive evidence from both Linda Wu and Ms. Blackstaffe relating to the negotiations leading to the adoption by the parties of the Terms of Reference. More to the point, there has been exhaustive evidence from Ms. Wu and more particularly Ms. Blackstaffe, pertaining to the operations of the Subcommittee. Ms. Blackstaffe has produced voluminous documentation including hand-written notes, meeting agendas of the two committees, memoranda to CEP officials, minutes of Subcommittee and Joint Committee meetings and much more documentation, all of which show how the Subcommittee operated, the decisions it made and the role it played in the Joint Study, all in contrast to the role of the Joint Committee. Ms. Blackstaffe was cross-examined in great detail on this documentation. [12] In our opinion, there is no need for any further evidence on this matter for Bell to pursue its allegations. Further cross-examination on the Terms of Reference would add little if anything to the Tribunal's knowledge and understanding of this area. C. Training of the Joint Committee [13] Bell asserts that the Joint Committee did not receive adequate training on job evaluation or pay equity. Bell alleges that Ms. Blackstaffe had much more expertise and used this to CEP's advantage. It is not clear for the Tribunal just what the nature of Bell's cross-examination will be. The Tribunal will deal with the appropriate scope of Bell's cross-examination on this matter if and when any objections are made. D. Dr. Gould's expert report on the calculation of interest [14] Bell's motion is that the Tribunal not receive in evidence the report of Professor Lawrence Gould on the calculation of interest. At this point in the hearing, Dr. Gould has not been called as a witness nor has the Tribunal been apprised of his qualifications. We understand that it is at the request of CEP that Bell brought this motion at this time, rather than at the time when Dr. Gould is to testify. CEP made the request of Bell to avoid any delay in the hearing and to provide certainty for Dr. Gould as to if and when he would be testifying. [15] In our view, the timing of this motion is ill advised. Bell has made it clear that if it does not succeed on this motion, it reserves its right to cross-examine Dr. Gould on his qualifications and make further objections to his expert report if so advised. The Tribunal having learned this, indicated to the parties that this motion would be better dealt with after the Tribunal has heard from Dr. Gould about his qualifications and how these relate to the purpose and scope of his report. The parties resisted this suggestion. [16] We do not see any useful purpose being served by hearing this motion now. CEP intends to call a number of witnesses before Dr. Gould. As to when he would testify is not predictable. Bell intends to cross-examine Dr. Gould on his qualifications so that any contemplated time saving is illusory. Finally, it is not particularly advisable for this Tribunal to deal with the admissibility of potentially important expert evidence without knowing anything about the qualifications of the witness, except as set out in Dr. Gould's draft, expert report which has been left to the Tribunal to plow through with no guidance from the parties. [17] The Tribunal has concluded that this motion is premature and untimely for the reasons set out above. Accordingly, the Tribunal will not decide this motion at this time. This is without prejudice to Bell to bring this motion or any other motion regarding the proposed evidence of Dr. Gould at some future time. It is also without prejudice to CEP to offer any arguments in response to any motion by Bell. E. CEP's request to limit the cross-examination of Ms Blackstaffe [18] CEP seeks to limit Bell's cross-examination of Ms. Blackstaffe to 10 or 12 more days. From what the Tribunal has heard to date, it appears that what is primarily if not entirely, driving this request, is Ms. Blackstaffe's desire to complete her cross-examination because of her job pressures. [19] Ms. Blackstaffe's cross-examination commenced on December 15, 2003. As of June 30, 2004 it had not yet been completed. From December 15, 2003 to June 30, 2004, Ms. Blackstaffe was on the witness stand for approximately 26 days. In the same period, the Tribunal had scheduled 57 hearing days. Thirty-one hearing days were cancelled at the instance of the parties. There were various reasons for this including, counsel mistaking the date for school break holidays, the witness attending other meetings, counsel providing further and late document disclosure, and medical/personal reasons. It is obvious that if the hearing had proceeded as scheduled, or even on most of the scheduled dates, Ms. Blackstaffe's cross-examination and any re-examination would have been completed on or before June 30, 2004. [20] As acknowledged by the parties, the Tribunal is the master of its own proceedings. According to Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 2003), a tribunal has the discretion to limit cross-examination in order to keep the proceedings within reasonable bounds. Mewett and Sankoff, Witnesses (Toronto: Carswell, 2004) also recognize that the right to cross-examine is not unlimited and that courts have a discretion to limit questioning that is repetitive or prolix, but that this discretion should be exercised carefully. [21] CEP has identified a number of ways by which the remaining cross-examination of Ms. Blackstaffe could be shortened, as follows: maintain the Tribunal's ruling on AT&T Study; limit the cross-examination to matters not already covered. The Tribunal has done this for the Terms of Reference; Counsel should not be repetitive with questions already asked. The Tribunal has previously directed this and Bell counsel has essentially complied and will continue to do so; Bell counsel should and has agreed to provide Ms. Blackstaffe with documents to read in advance of being cross-examined on them; Counsel should and will agreed in advance to enter documents on consent; the Tribunal has directed that Bell counsel should not pursue a line of questioning where Ms. Blackstaffe has indicated that she has no recollection or knowledge of the subject matter. Bell counsel has complied and will continue to comply with this direction. CEP argues that if these suggestions are adopted, then the cross-examination of Ms. Blackstaffe should take only 10 to 12 days to complete. Ergo, its request to limit her cross-examination to that time. [22] In our opinion, this is not a situation that calls for the Tribunal to exercise its discretion and time limit Bell's cross-examination. Bell has withdrawn the 17 questions that it proposed to ask Ms. Blackstaffe. This, plus the limits on cross-examination for the AT&T Study, no further cross-examination on the Terms of Reference, and compliance by counsel with the procedures referred to above, should reduce significantly the time required to complete Ms. Blackstaffe's cross-examination, perhaps even to the number of days suggested by CEP. Accordingly, the Tribunal does not grant CEP's request. Signed by J. Grant Sinclair, Chairperson Signed by Pierre Deschamps, Member OTTAWA, Ontario July 28, 2004 PARTIES OF RECORD TRIBUNAL FILE: T503/2098 STYLE OF CAUSE: Communications, Energy and Paperworkers Union of Canada and Femmes-Action v. Bell Canada DATE AND PLACE OF HEARING: Ottawa, Ontario July 5, 6 and 9, 2004 RULING OF THE TRIBUNAL DATED: July 28, 2004 APPEARANCES: Peter Engelmann Fiona Campbell For the Communications, Energy and Paperworkers Union of Canada Andrew Raven Ceilidh Snider For the Canadian Human Rights Commission Gary Rosen Peter Mantas Steve Katkin For Bell Canada

2004 CHRT 27

CHRT

Chopra v. Canada (Department of National Health and Welfare)

en

2004-08-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6986/index.do

2023-12-01

Chopra v. Canada (Department of National Health and Welfare) Collection Canadian Human Rights Tribunal Date 2004-08-17 Neutral citation 2004 CHRT 27 File number(s) T492/0098 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE SHIV CHOPRA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - department of national HEALTH and welfare Respondent REASONS FOR DECISION ON REMEDY MEMBER: Athanasios D. Hadjis 2004 CHRT 27 2004/08/17 I. BACKGROUND II. LEGAL FRAMEWORK III. REMEDIES BEING SOUGHT BY DR. CHOPRA A. Compensation for wage loss - Acting BHPD Director B. Compensation for wage loss - BHPD Director, Indeterminate Position C. Compensation for wage loss beyond the EX-2 level D. Compensation for wage loss - another EX-level position E. Dr. Chopra's Claim for an Immediate Appointment to an EX-level Position F. Gross-up for Income Tax Liability G. Non-pecuniary Damages H. Interest I. Public Posting of Decision IV. Retention of Jurisdiction [1] This decision relates to remedy. In an earlier decision in this case, I determined that the Respondent, the Department of National Health and Welfare (Health Canada), had discriminated against the Complainant, Dr. Shiv Chopra (Canada (Human Rights Comm.) v. Canada (Dept. of National Health and Welfare) (No. 5) (2001), 40 C.H.R.R. D/396 (C.H.R.T.)). At the request of the parties, I only addressed the question of the Respondent's liability under the Canadian Human Rights Act. I retained jurisdiction to hear evidence and submissions on remedy at a later time, if the parties were unable to reach an agreement in this respect. [2] On July 8, 2002, the Complainant notified the Tribunal that the parties had failed to come to an agreement and requested that a hearing be convened to deal with the issue of remedy. I. BACKGROUND [3]Dr. Chopra filed his complaint with the Canadian Human Rights Commission (Commission) on September 16, 1992. He alleged that Health Canada had discriminated against him because of his race, colour, and national or ethnic origin, in the manner in which the management position of Director of the Bureau of Human Prescription Drugs (BHPD) was staffed between September 1990 and the spring of 1992. In 1995, a Tribunal chaired by Daniel Soberman dismissed the complaint. In 1998, the Federal Court of Canada - Trial Division reviewed and set aside that decision. The Court remitted the matter back to the Tribunal to be determined on the basis of the existing record augmented by the statistical evidence that had been excluded by the first Tribunal. In January 1999, the Federal Court of Appeal upheld the Court's decision. The additional evidence was led before me during hearings that were conducted between May 1999 and December 2000. [4] In my decision, I noted that Dr. Chopra was screened out of the competition for the BHPD Director's position because he lacked recent management experience. During the two-year period leading up to this competition, the indeterminate BHPD Director's position remained vacant. Dr. Chopra had requested that he be assigned to act in the position temporarily but he was turned down. Had he been appointed, he would have acquired the recent management experience that he needed to be screened into the competition. On the basis of the evidence presented, I found that the denial to Dr. Chopra of the opportunity to act in the position was due in part to discrimination on the basis of his national or ethnic origin. [5] However, I also observed that even if Dr. Chopra had been screened into the final competition, he would not necessarily have won. This was a question to be determined later, when addressing the issue of remedy. II. LEGAL FRAMEWORK [6] The Tribunal derives its remedial jurisdiction from s. 53 of the Act. The remedies contemplated therein are designed to prevent future discrimination as well as to compensate individual victims. The goal of compensation is to make the victim whole for the damage caused by the act that is the source of liability (Canada (Attorney-General) v. McAlpine (1989), 12 C.H.R.R. D/253 at para. 13 (F.C.A.)). [7] Dr. Chopra is seeking an immediate appointment to an EX-level position and compensation for wage loss from 1990 to this day. To establish his entitlement to these remedies, he must demonstrate that the Respondent's discriminatory practice denied him the opportunity to gain recent management experience, which would have in turn led the way for him to act in the position and to later be screened into the final competition. This exercise is obviously speculative. The Tribunal must endeavour to turn back the clock and consider what would have happened had the discrimination not occurred. By what standard must such a determination be made? [8] Commission and Complainant counsel both submit that the Tribunal need only conclude that there existed a serious possibility of the occurrence of an event. For instance, if there existed a serious possibility of Dr. Chopra's winning the 1992 final competition, had he been screened in, a finding could be reached that he was denied the position because of the discriminatory act. In support of their contention, they cite the reasons given by Mr. Justice Marceau in Canada (Attorney General) v. Morgan [1992] 2 F.C. 401 (F.C.A.). The complainant in that case had attempted to enrol in the Canadian Forces but was turned down for grounds that were ultimately deemed discriminatory. The issues before the Federal Court of Appeal pertained to the remedies to which the complainant was entitled. The Court reflected on the question of how to identify the loss to be compensated. On this point, Mr. Justice Marceau wrote the following, at pages 412-13: I have great difficulty with the proposition adopted by the Review Tribunal and accepted by my colleague that it was sufficient to look at the probable result of the recruiting process to be able to draw the conclusion that the loss was that of a job rather than a mere opportunity. We are not dealing with the establishment of a past fact which in a civil court need only be proved on a balance of probabilities. Nor are we concerned with the relation between a particular result and its alleged cause. It seems to me that the proof of the existence of a real loss and its connection with the discriminatory act should not be confused with that of its extent. To establish that real damage was actually suffered creating a right to compensation, it was not required to prove that, without the discriminatory practice, the position would certainly have been obtained. Indeed, to establish actual damage, one does not require a probability. In my view, a mere possibility, provided it was a serious one, is sufficient to prove its reality. But, to establish the extent of that damage and evaluate the monetary compensation to which it could give rise, I do not see how it would be possible to simply disregard evidence that the job could have been denied in any event. The presence of such uncertainty would prevent an assessment of the damages to the same amount as if no such uncertainty existed. The amount would have had to be reduced to the extent of such uncertainty. (my emphasis) [9] The other two Federal Court of Appeal judges who sat on the Morgan case did not adopt the same approach. Mr. Justice MacGuigan, at page 425 of his dissenting judgment, suggested that a tribunal should look at the probableresult of the whole hiring process in determining whether a complainant is entitled to compensation for the loss of a position. Mr. Justice Mahoney opted to not articulate any position on this question. He noted that he and his colleagues all agreed that in any event, on the facts of the case, the complainant would certainly have been able to enlist but for the discrimination. [10] In Canada (Attorney General) v. Uzoaba[1995] 2 F.C. 569 (F.C.T.D.), Mr. Justice Rothstein explicitly referenced and adopted the test articulated by Mr. Justice Marceau in Morgan. In Canada (Attorney General) v. Green[2000] 4 F.C. 629 at para 142 (F.C.T.D.), Mr. Justice Lemieux stated that he took from Morganthe principle that if a complainant seeks to establish actual damage, losing a job, her losing a promotion, probability is not required but a possibility is sufficient provided it was a serious one. The Court went on to explain, at paragraph 151, that in making certain of its findings, it was guided by the serious possibility test in Morgan. In Nkwazi v. CSC(2001), 39 C.H.R.R. D/237, the Canadian Human Rights Tribunal applied the serious possibility test in determining whether the complainant would have succeeded in obtaining a more senior position had the respondent's act of discrimination not hindered her from competing. [11] Based on these and the other authorities submitted by counsel, I am satisfied that a complainant seeking a remedy with respect to a discriminatory denial of a higher employment position need only present evidence of a serious possibilityof success. III. REMEDIES BEING SOUGHT BY DR. CHOPRA A. Compensation for wage loss - Acting BHPD Director [12] In my earlier decision, I found that Health Canada had discriminated against Dr. Chopra by having failed to give him the opportunity to act in the BHPD Director's position. I concluded that one of the factors for not appointing him was his national or ethnic origin, and that Health Canada's explanation for not considering him for the position (lack of recent management experience) was pretextual. [13] Health Canada contends that Dr. Chopra was unqualified to act in the position and that, as a result, he never would have been selected to act in the BHPD Director's position, whether or not the discrimination had occurred. This contention cannot be sustained, however. Dr. Claire Franklin was given the assignment and it was renewed thereafter even though she herself was found by the Public Service Commission Appeal Board to have not been fully qualified for the acting post. It is evident that at this stage, Health Canada was not overly concerned about whether a candidate met each of the stated qualifications. I am therefore satisfied, taking into account the evidence in this case regarding Dr. Chopra's qualifications at the time and the minimal concern for qualifications demonstrated by Health Canada, that there existed a serious possibility of Dr. Chopra's being assigned to act in the BHPD Director's position were it not for the acts of discrimination practised against him. [14] What would have been the length of his acting assignment? Dr. Franklin was assigned to a series of three acting term appointments from October 20, 1990, to September 20, 1991, a total of eleven months. From September 20, 1991, until February 13, 1992, Dr. Franklin no longer formally acted in the position, but she informally continued to retain the responsibilities of the position. Her classification and salary returned to the levels of her previous posting. Although Dr. Franklin had officially ceased acting in the BHPD Director's position, I am satisfied, based on the findings in my earlier decision, that her acting appointment was in effect maintained throughout this period. From February 13, 1992, to April 21, 1992, the evidence is that no one acted in the position. On April 21, 1992, the Public Service Commission confirmed Dr. Franklin's appointment as BHPD Director on an indeterminate basis. This decision was appealed but the Federal Court ultimately decided to not interfere with the appointment. Accordingly, the period in question during which the acting position was occupied consists of about sixteen months (or 68 weeks) that extended from October 20, 1990, to February 13, 1992. [15] On September 13, 1990, Dr. Chopra wrote to the Director-General of the Drugs Directorate, Dr. Emmanuel Somers, proposing himself as a candidate for the acting position. Dr. Chopra suggested that he and other candidates be assigned to act on a rotational basis. The most efficient of these persons would then be allowed to continue in the position indeterminately. In the circumstances, this would have been a reasonable option that Dr. Somers and Assistant Deputy Minister, Dr. Albert Liston, could have chosen to implement, were it not for the decision that they had already taken to appoint Dr. Franklin. The evidence is that acting assignments were usually given for terms not exceeding four months because when this course was followed, a formal competitive process was not required. Acting assignments that extended beyond four months were treated as appointments against which other employees could file appeals pursuant to the Public Service Employment Act, R.S.C. 1985, c. P-33. In the present case, although Dr. Franklin's assignments were each of a duration of four months or less, they were formally renewed two times, for a total period of eleven months. [16] There were at least three individuals who expressed an interest in the acting BHPD Director's position: Dr. Chopra, Dr. Franklin and Dr. Michele Brill-Edwards. Dividing the period during which Dr. Franklin occupied the position (68 weeks) by three, to reflect the number of interested candidates, would in my view be appropriate. I am not concerned by the fact that the figure derived (22 b weeks or about 5 a months) exceeds the ordinary four-month term of acting assignments. As I have said, in Dr. Franklin's case, Health Canada had no difficulty renewing and effectively extending the terms beyond this period. [17] Respondent counsel suggested that I should base my calculations on a period of eleven months to reflect the fact that as of September 20, 1991, Dr. Franklin had ceased acting in the position. However, as I stated earlier, the change occurred only in theory. In practice, she continued to exercise the same functions as before. The 68-week period is more realistic. [18] As my determination on this point is based on the assumption that the three candidates were equally interested in acting in the BHPD Director's position, I see no reason not to order that the damages for lost wages should run from the date of the first acting term. Dr. Chopra is therefore to be indemnified for all wages and other benefits that he lost over a period of 22 b weeks commencing October 20, 1990, the date when the first acting term began. B. Compensation for wage loss - BHPD Director, Indeterminate Position [19] Dr. Chopra is seeking compensation for wage loss in relation to the indeterminate BHPD Director's position. He claims that had he acted in the post in the months leading up to the 1992 final competition, he would have acquired the recent management experience needed to be screened in. Once screened in, he maintains that there would have existed a serious possibility of his winning the competition. [20] The screening guide to the competition set out certain minimal qualifications required for a candidate to advance to the second stage of his or her assessment. They relate to the individual's education, experience, official languages proficiency and previous job performance. In the screening record used by the Selection Committee, only four of the fourteen candidates considered were identified as being qualified in each of these categories, including Dr. Franklin and Dr. Brill-Edwards. Dr. Chopra was excluded because he lacked recent experience in managing a scientific or medical organization with responsibility for a number of disciplines or program activities and a budget. This deficiency is identified on the screening record with an X. However, in addition to this annotation, a question mark was placed next to Dr. Chopra's name with respect to his level of recent experience as an official spokesperson for Health Canada or other organizations on health issues encompassing multiple dimensions. While no evidence was led to fully explain the connotation of the question mark, it is obvious that this rating is not as affirmative as the check marks found elsewhere on the screening record, such as the one confirming that Dr. Chopra had the necessary educational background. [21] Of the four candidates who were screened in, two opted to withdraw their candidacies, and the remaining two (Dr. Franklin and Dr. Brill-Edwards) proceeded to the next stage of assessment. A separate Selection Profile was adopted for this phase, which contained the statement of qualifications found in the screening guide augmented by several new requirements. They included knowledge of management techniques, knowledge of conducting trials and tests of the safety and efficacy of drugs, knowledge of the scope and nature of drugs for human use, and knowledge of the role of government in health protection and related policies, programs, objectives and priorities. In addition, the candidate was to be assessed on his or her abilities to communicate, to manage a regulatory program, and to judge, summarize and discuss scientific and medical data. The person's leadership skills and his or her personal suitability were also factors to now be considered. [22] The Selection Committee concluded that Dr. Franklin was the only qualified candidate. She testified before the Tribunal during the recent set of hearings regarding remedy. She detailed in what respects she felt she satisfied the various requirements contemplated by both the screening guide and selection profile for the BHPD Director's position. For instance, from 1984 to 1990, she had managed a division within the Environmental Health Directorate of Health Canada, with a staff of about 45 persons and a budget of about $10,000,000. She had been an official spokesperson for Health Canada before numerous committees and had been interviewed by the media. She also discussed in detail the reasons for which she felt that she met the knowledge requirements for the position. [23] Dr. Franklin described the assessment process used by the Selection Committee. Twenty-four hours prior to her interview with the Committee, she was given a one hundred page document on a scientific topic unrelated to the field of human prescription drugs and about which none of the candidates would have had any specific knowledge. She was required to read the information overnight, assimilate it, and then make a brief presentation and answer questions during the interview. Furthermore, one hour before meeting with the Committee, the candidates were given a document about which they had to prepare a briefing note intended to be read by someone at a more senior level. The topic of this document was unrelated to human prescription drugs. Dr. Franklin recalls that her interview with the Selection Committee was long and intense. Her evidence with respect to the assessment process was not challenged. [24] Dr. Chopra testified at the recent hearings on remedy as well. He was asked what would have happened to him had he gained the acting experience in the BHPD Director's position. He replied that he always had excelled in his studies in multiple disciplines. He is an industrious person who, for instance, had applied himself to learn French well before it became popular or necessary to do so. He claims that his managers recognized his potential, as reflected in his being recommended for the Career Assignment Program and the Objectives Oriented Management (OOM) Program. He believes that he was more qualified than Dr. Franklin with respect to the knowledge component, since it related to scientific areas in which he had worked for years, areas about which he claims she lacked sufficient knowledge. [25] It was pointed out to Dr. Chopra that Dr. Franklin had about thirteen years of management experience leading up to her acting appointment to the BHPD Director's position in 1990, far in excess of the several months' experience he would have acquired had he also been rotated into the acting position. Dr. Chopra's response was that in his view, management skills constituted a minor component of the job relative to the far more important scientific knowledge skills. As such, he contended that he had would have been more qualified than Dr. Franklin had he been given the opportunity to compete against her. Yet at no time did Dr. Chopra specify in what manner he could satisfy each of the required qualifications stipulated in the Selection Profile. [26] Did he have experience acting as a spokesperson for Health Canada or a similar organization on sensitive health issues? Did he have knowledge of the role of government in health protection? Did he have knowledge of management techniques and approaches? Dr. Chopra and the Commission are apparently of the view that it is somehow self-evident that he possessed, or would have possessed, the necessary qualities for the position. His performance assessments were fully satisfactory. He worked within the Bureau so he must have been knowledgeable in the relevant field. He was seconded to the OOM project in 1975, and participated in a six-week management-training program in 1977, so he must have knowledge in management techniques and approaches. [27] Other than Dr. Chopra's personal assertions that he was more qualified than Dr. Franklin, no attempt was made to lead any specific evidence to support that claim. The Commission and the Complainant argue strenuously that such an exercise is wholly unnecessary. They submit that one need not compare the two aspirants to the position, given the serious possibility test articulated in Morgan. The Complainant is not obliged to prove that he certainly, or even probably, would have been selected for the job. If it was seriously possible for Dr. Chopra to be successful in the competition, his actual loss will have been established and all that will remain to be determined will be the extent of the damage and the evaluation of the monetary compensation to which it gives rise. [28] The Complainant argues that the experience he would have acquired while acting in the BHPD position, in and of itself, would have created a serious possibility of his winning the competition. In its 1992 annual report, the Public Service Commission referred with some concern to a then recent study indicating that employees who have received an acting appointment are four times more likely to receive a subsequent promotion than those who have not. In its 2000-2001 annual report, the PSC reiterated its concern about the use of acting appointments and the fact that acting incumbents have an advantage in subsequent competitive processes for the same position. The report referenced a study regarding 249 EX appointments made over two three-month periods in 1998 and 1999. The study showed that of 83 candidates who acted in a position prior to staffing, 77 (or about 93%) won the competition for that position. [29] The Respondent led evidence to demonstrate that the data from this last study is incomplete. For instance, there was no way of knowing whether more than one person had acted in those 77 positions nor whether the periods studied were in any way representative. The study's writer, Madeleine Desroches, testified that she selected the periods at random. She also acknowledged that she identified the 83 candidates based principally on information she culled from several forms prepared in the course of the appointment processes. Apparently there was no obligation on the part of the employer to note in these forms whether the position had been previously staffed on an acting basis. This, therefore, allowed for the possibility that Ms. Desroches may have failed to identify all of the cases where someone had acted prior to the indeterminate staffing action. [30] The Respondent contends that if this type of analysis is to be conducted at all, it should be focussed on Health Canada. Of the 25 acting EX-1 level appointments of four months or longer between July 1990 and July 1993, only six of the employees were later promoted into EX level positions on an indeterminate basis (about 24%). Of the ten acting EX-2 level appointments of four months or longer during the same period, four were later promoted (40%). The combined percentage would be about 29%. [31] I do not find the concerns raised by the Respondent with respect to the PSC data to be significant. It is certainly possible that the employer omitted to note in some of the forms that the position had been previously staffed on an acting basis, but the fact remains that in 93% of those cases where the form contained sufficient information, it was found that the acting candidates were subsequently promoted to the position. This evidence must surely have been compelling enough to cause the PSC to bring the issue up in its 2001-2002 annual report. I also cannot ignore the fact that the PSC had conducted another study prior to its 1992 report that drew a similar conclusion: those who act in a position are more likely to receive a subsequent promotion than those who have not. No evidence was led to contradict the 1992 PSC study, which falls precisely into the period when the BHPD Director's position was being staffed. Even when one turns to the Health Canada data presented by the Respondent, the percentages do not rule out a serious possibility of success for persons who act in the position. [32] These findings all lead me to conclude that had Dr. Chopra acted in the BHPD Director's position for just over five months, a mere but serious possibility would have existed of his later being successful in the final competition for the indeterminate position. [33] The story does not end there, however. It may be that Dr. Chopra suffered this loss but, as Mr. Justice Marceau noted in Morgan, supra, to establish the extent of Dr. Chopra's damage and evaluate the monetary compensation to which it gave rise, evidence of any uncertainty related to Dr. Chopra's acceding to the position cannot be ignored. The damage award must be reduced to the extent of such uncertainty. [34] I have already identified many of the elements giving rise to uncertainty in this case. The selection process was very complicated and some of the testing procedures were deliberately organized so as to not provide any advantage to persons already working within the Bureau of Human Prescriptions Drugs. With respect to Dr. Chopra's particular case, I have no specific evidence before me of whether he would have satisfied the criteria set out in the Selection Profile and to what extent. His most recent management experience would have been limited to his acting assignment of just over five months. In accordance with my earlier findings, Dr. Brill Edwards and Dr. Franklin would also have gained the same experience. However, the evidence is that Dr. Franklin had additional and extensive management experience, far in excess of Dr. Chopra's. [35] It should also not be forgotten that although Dr. Brill-Edwards was screened into the competition, she was not found to be qualified for the position. Being screened in does not necessarily mean you are qualified. In Dr. Chopra's case, there also remained the issue of the question mark that had been entered on his screening record with respect to his experience as an official spokesperson. I am equally mindful that this case does not involve jobs of a generic nature. The evidence is uncontroverted that each EX position is unique, requiring different skill sets, abilities, knowledge and education. Acceding to an EX position is by no means simple or automatic. [36] Taking all of these elements into account, I am satisfied that the Complainant's wage loss should be reduced by two thirds (b) to reflect the relatively high level of uncertainty of his being successful in the final competition. [37] There is another factor to be considered as well. As noted by the Federal Court of Appeal in McAlpine, supra, at paragraph 13, only such loss as is reasonably foreseeable is recoverable. The victim of discrimination must therefore demonstrate that he has taken reasonable steps to mitigate his loss (see Morgan, supra at para. 14). For instance, in the present case, the Complainant must show that he took steps to improve his chances of successfully competing for an EX-level position and that he applied for such positions when the opportunity arose. [38] In 1997, Dr. Chopra was named Acting Chief of the Central Nervous System, Endocrine and Antiparasitic Drugs Division, Bureau of Veterinary Drugs, in which position he gained four months of line management experience. Yet in the ensuing years, he never entered any competition for promotion to the EX level. In 2002, Dr. Chopra was offered the opportunity to act as Leader for the Microbiological Safety Team in the Human Safety Division. Dr. Chopra claimed in his testimony that he refused this offer out of protest because this sort of staffing action would have been unfair to his fellow employees. However, in his letter of refusal, he gave as his reason for turning down the offer the fact that the position would effectively not constitute a promotion for him. As a VM-4 level employee, acting in the proposed REM-01 level position would not have been treated as a promotion. Be that as it may, had he accepted the position, he would have gained additional critical line management experience. Evidence was led in this case that employees often accept new positions even if they technically do not constitute promotions just for the purpose of gaining experience for future advancement. [39] Overall, aside from the 1993 Bureau of Veterinary Drugs competition, to which I referred in my previous decision, no evidence was led to indicate that Dr. Chopra had since applied for any other promotions to indeterminate positions at the EX level. He was screened out of two competitions for positions at the VM-5 level, and this only occurred fairly recently, in 2002. It may be that Dr. Chopra did not perceive himself as having any chance of success, or that he felt some level of frustration with his previous attempts at being promoted. But the fact remains that the only finding of discrimination with respect to Dr. Chopra relates to the staffing of the acting BHPD Director's position in 1990. In my previous decision in this case, I found that prior to 1990, Dr. Chopra had failed to seize upon several opportunities for advancement when they arose. He was unwilling to search for promotions in areas that were not directly within his scientific field of expertise, even though in respect of EX employees, senior management skills are generally more important than expertise in a particular scientific discipline. I concluded that no inference of discrimination could be drawn from this period. The evidence suggests that this pattern has continued to this day. I am not persuaded that the Complainant has taken all reasonable measures to mitigate his damages. [40] Considering these shortfalls with respect to Dr. Chopra's duty to mitigate his damages, I find that the Complainant's entitlement to compensation should be limited to a period of six years following the date when the PSC confirmed Dr. Franklin's appointment to the position, April 21, 1992. [41] To summarize, the Complainant is entitled to a sum equivalent to one third (a) of his lost wages and benefits at the EX-2 level over a period of six years, commencing April 21, 1992 and ending April 20, 1998. C. Compensation for wage loss beyond the EX-2 level [42] Dr. Chopra is claiming compensation for wage loss with respect to subsequent promotions that he would have received after obtaining the indeterminate BHPD Director's position in 1992. He submits that he would have reached the EX-3 level by about 1995, the EX-4 level by 1998, and the EX-5 level by 2001. [43] In support of this claim, Dr. Chopra led the evidence of Dr. John Samuel, Ph.D., who testified as an expert in systemic discrimination and career progression in the Federal Public Service. Dr. Samuel described the efforts that have been made since the early 1990's to promote the upward mobility of visible minorities within the Federal Public Service as a result of which visible minorities could have gained an advantage in the promotions process. In Dr. Samuel's opinion, had Dr. Chopra secured an initial foothold into the EX level, he would have benefited from these efforts, adding that it is quite likely Dr. Chopra would have risen within the EX ranks given his capabilities, determination and tenacity. [44] I have difficulty accepting Dr. Samuel's findings. First of all, it is not clear by what measure he has reached his conclusion regarding Dr. Chopra's capabilities, determination and tenacity. It appears that Dr. Samuel basically reviewed Dr. Chopra's curriculum vitaeand concluded that he is a highly motivated individual whose capabilities went far beyond the kind of positions he has been able to occupy in the Public Service. Dr. Samuel suggested that the career progression of other EX-level employees indicated that the Complainant would have successfully advanced to the highest levels of management. Yet Dr. Samuel's analysis of the career paths of employees who would have been Dr. Chopra's peers at the EX-2 level in 1992 was incomplete and inconclusive. Only a few individuals were studied and it was revealed on cross-examination that many of them were not appropriate comparators. [45] Dr. Samuel referred to a handful of visible minority group members who held very senior executive posts over the last decade. However, few if any of these individuals would have been Dr. Chopra's peers at the EX-2 level in 1992. No comparison was conducted between the progression of visible minority group and non-visible minority group employees in support of his contention that Dr. Chopra would have benefited from the Government's policy of encouraging the promotion of minority group members, advancing to the level of Assistant Deputy Minister by 1998, as envisaged by Dr. Samuel. I also have some concern about the expert's objectivity. He demonstrated an affinity for the Complainant and his cause, and a predisposition against the Respondent. He declared at one point, for instance, that he did not trust even the most basic employment and career progression data produced by Health Canada because in his view, Health Canada's cultural assessment is not favourable and the department is not very conducive to people with certain backgrounds. [46] However, irrespective of the probity of the expert's evidence, I am simply not persuaded that Dr. Chopra's denial of a promotion to the EX-3 level or beyond was a serious possibility. Let us not forget that the Respondent's discriminatory conduct related to its failure to appoint Dr. Chopra to the acting BHPD Director's position in 1990. It is far too remote and speculative to conclude that even a serious possibility would have existed of Dr. Chopra's reaching the highest echelons of senior management merely because he would have acted in the Director's position for a little over five months, especially when one also factors in the mitigation concerns discussed earlier as well as the unique nature of every EX position. No person can assume that advancement within the EX ranks will come automatically in the normal course of his or her career. The Complainant's claim for wage loss compensation beyond the EX-2 level is denied. D. Compensation for wage loss - another EX-level position [47] I have already found that there existed significant uncertainty with respect to the Complainant's likelihood of winning the BHPD Director's competition in 1992. The Complainant argues, however, that even if he had not been successful on this occasion, the recent management experience that he would have acquired while acting in this position would have resulted in his being appointed to another EX-level position at some point in his career. [48] I am not persuaded that this would have been the case. As I have already discussed, the appointments process to the senior management level can be distinguished from that of lower employment levels. The qualifications for each position are unique and the competition to gain entry into EX-level positions appears to be quite intense. Dr. Samuel acknowledged in his evidence, for instance, that there were typically thousands of applicants for the hundreds of EX-level jobs he has analyzed as part of his past research studies. [49] The mere fact that Dr. Chopra would have acquired five to six months' management experience were it not for the discrimination does not result in there being a serious possibility of his being appointed to an EX position later in his career. An obvious distinction is to be drawn from my finding with respect to the EX-2 BHPD Director's competition of 1992. In that instance, the acting experience he would have acquired within that very positionled me to conclude that there existed a mere but serious possibility of his winning the competition. I cannot draw the same conclusion with respect to any of the other EX positions that were staffed over the course of the last twelve years, and even more so when considering that no evidence was led identifying a specific EX-level position for which Dr. Chopra would have become more qualified had he acquired the recent management experience in the Acting BHPD Director's position. Indeed, the Complainant did manage to acquire recent management experience five years later, in 1997, when he served as an Acting Chief of a division. Nonetheless, this has not, in and of itself, led to his gaining an appointment to an indeterminate EX-level position in the ensuing years. [50] For these reasons, I am not convinced that merely by serving as Acting BHPD Director for just over five months in 1990-91, there would have developed a serious possibility of the Complainant's later gaining an indeterminate appointment to a different EX-level position. E. Dr. Chopra's Claim for an Immediate Appointment to an EX-level Position [51] In addition to his claim for lost wages, the Complainant is seeking an order from the Tribunal that he be appointed immediately to an EX-level position. Although I have concluded that but for the discrimination, there existed a mere but serious possibility of his having won the 1992 BHPD Director's position, I have also reduced the award of compensation to account for the considerable uncertainty relating to his being successful in that competition and the shortfalls regarding his duty to mitigate his loss, in accordance with the Morgantest. As such, I am satisfied that full restitution of the Complainant's loss with respect to his loss of a promotion has been made. Under these circumstances, an order that Dr. Chopra now be appointed to an EX-level is not justified. F. Gross-up for Income Tax Liability [52]The lump-sum payment to Dr. Chopra with respect to wages that he would have otherwise earned over several years may result in an unexpected increase to his income tax burden. I therefore direct the Respondent to pay Dr. Chopra an additional amount sufficient to cover any additional income tax liability he may incur as a result of the payment. G. Non-pecuniary Damages [53] The act of discrimination in this case occurred in 1990, prior to the 1998 Bill S-5 amendments to the Act. Under the older version of s. 53(3) of the Act, a victim could only seek non-pecuniary damages up to a maximum of $5,000. The amended version of the Actallows for compensation of up to $20,000 for pain and suffering (s.53(2) e)), and an additional sum of up to $20,000 if the Tribunal finds that the person who engaged in the discriminatory practice did so in a wilful or reckless manner (s.53(3)). [54] Dr. Chopra contends that he is entitled to compensation under the newer provisions of the Act. In Nkwazi, supra, at paragraphs 257-270, the Tribunal held that these provisions did not have retrospective effect and therefore could not be applied to cases where the discriminatory conduct occurred prior to the coming into force of the amendments to the Act. Counsel for the Complainant respectfully submits that this interpretation is in error. I have carefully reviewed the Nkwazidecision as well as the authorities referenced by Complainant Counsel, but I am not persuaded by his arguments. I am instead in agreement with the conclusions of the Tribunal in Nkwazi. Dr. Chopra's claim for non-pecuniary damages therefore remains subject to the older version of the Act. [55] Dr. Chopra testified as to the emotional strain and embarrassment he experienced as a result of his inability to elevate himself to an EX-level position. He spoke of his discomfort at work and of being shunned by others, due in large part to the publicity he has attracted. I am mindful, however, that some of this publicity may be attributable to issues that are not related to the present complaint. [56] When assessing this award, the maximum amount of $5,000 must be reserved for the very worst cases that fall within the range (Premakumar v. Air Canada(2002), C.H.R.R. D/63 at para. 107 (C.H.R.T.); Desormeaux v. Ottawa Carleton Regional Transit Commission2003 CHRT 2 at para. 128). Having considered all of the circumstances in this case, I order the Respondent to pay to the Complainant the sum of $3,500 in special compensation, pursuant to s. 53(3) of the older version of the Act. H. Interest [57] The Complainant and the Commission contend that interest should be awarded on the basis of the rates established in accordance with the Ontario Courts of Justice Act, R.S.O. 1990, c. C-43, given that the discrimination occurred in Ontario, the province in which Dr. Chopra also resides. They allege that the Canada Savings Bond (CSB) rates are conservative and will not satisfactorily remedy the loss suffered by the Complainant. I am not persuaded of this. No evidence was led to demonstrate how CSB, or other rates set by the Bank of Canada for that matter, would not result in the Complainant's gaining full restitution for his loss. Did these rates, for instance, fall below the rate of inflation over the same period? It was argued that there have been lengthy delays in this case, none of which were the fault of the Complainant. That may be, but I do not believe that any blame can be attributed to the Respondent either. The delays came about in large part because of the sinuous course his case has taken, from Tribunal to the Federal Court and back. [58] The Tribunal has adopted the Bank Rate (Monthly series) set by the Bank of Canada in its recent decisions and I see no reason for not applying this rate in the present case (see Bushey v. Sharma2003 CHRT 21 at para. 147; Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec Inc. v. Barbe2003 CHRT 24 at para. 77; Boudreault v. Great Circle Marine Services Inc.2004 CHRT 21 at para. 117). [59] I am not persuaded that interest should be compounded either, as proposed by the Complainant. Compound interest is warranted only if it can be deduced from the evidence or circumstances of the case that it was required to cover the loss (see Morgan, supraat 420). Aside from the long period between the date of the complaint (September 16, 1992) and the date of my decision (August 13, 2001), I do not see any circumstances in this case to distinguish it from any other complaint that typically comes before the Tribunal. I have already explained that I do not attribute the delay to the fault of anyone. I am not convinced that the delay creates any special circumstances that would result in the Complainant's not being fully compensated through the payment of simple interest. [60] Simple interest is therefore payable with respect to all of the monetary awards made in this decision. The interest shall be calculated on a yearly basis at a rate equivalent to the Bank Rate (Monthly series) set by the Bank of Canada. The interest with respect to wage loss shall be calculated as the wages would have become payable, in accordance with the findings in this decision. [61] With respect to the award for non-pecuniary damages, interest shall be payable from October 20, 1990. However, in no case shall the interest be allowed to exceed the maximum allowable sum of $5000 (Canada (Attorney General) v. Hebert(1995), C.H.R.R. D/375 at para. 23 (F.C.T.D.). I. Public Posting of Decision [62] The Complainant is seeking an order that this decision be posted publicly within Health Canada's facilities and distributed across the country via internal electronic mail to all employees of the department. It is argued that such a publication will serve the educational function of human rights legislation. The Respondent opposes this request. [63] I do not think such an order is needed. I fail to see how a mass e-mailing and large-scale publication of a decision discussing the details of the compensation to which the Complainant is entitled can significantly serve to promote human rights. One must not forget that this was a case of individual discrimination. I did not make any findings of systemic discrminiation. Furthermore, there already was widespread coverage of this case in the national media when my previous decision was issued and the Complainant made no request for public posting prior to its release. In any event, this and all previous decisions regarding the complaint are and will remain accessible to the public on the Internet. The Tribunal's website is www.chrt-tcdp.gc.ca. IV. Retention of Jurisdiction [64] I retain jurisdiction in the event a dispute may arise with respect to the quantification or implementation of any of the remedies awarded in this decision. Signed by Athanasios D. Hadjis OTTAWA, Ontario August 17, 2004 PARTIES OF RECORD TRIBUNAL FILE:< T492/0098 STYLE OF CAUSE: Shiv Chopra v. Health Canada. DATE AND PLACE OF HEARING: Ottawa, Ontario September 3, 4, 5, 15 and 16, 2003; December 11, 2003; March 25, 26 and 29, 2004; April 1 and 2, 2004. DECISION OF THE TRIBUNAL DATED: August 17, 2004 APPEARANCES: David Yazbeck For the Complainant Peter Engelmann For the Canadian Human Rights Commission David Migicovsky For the Respondent Ref.: T.D.10/01

2004 CHRT 28

CHRT

Adair v. Canada (Canadian Armed Forces)

en

2004-08-18

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6983/index.do

2023-12-01

Adair v. Canada (Canadian Armed Forces) Collection Canadian Human Rights Tribunal Date 2004-08-18 Neutral citation 2004 CHRT 28 File number(s) T811/6103 Decision-maker(s) Sinclair, Grant, Q.C. Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ROBERT D. ADAIR, BARRY CATLEY, JOSEPH T.B. CORRIGAN, PAUL D. CROSS, JOHN FRASER, ARTHUR W. GUTHREAU, BARBARINE HENRY, DOUGLAS HORSMAN, JOHN HURLEY, JOSEPH EDWARD KORPONAY Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - canadian armed forces Respondent REASONS FOR DECISION MEMBER: J. Grant Sinclair 2004 CHRT 28 2004/08/18 I. MATERIAL FACTS II. BACKGROUND III. QUESTION IN ISSUE IV. ARGUMENT OF THE COMMISSION V. THE ARGUMENT OF THE RESPONDENT, CAF VI. DECISION I. MATERIAL FACTS [1] This matter involves ten complaints brought to the Canadian Human Rights Commission between October 1992 and July 1994. [2] Each of the complainants reached their prescribed retirement age prior to September 3, 1992. However, none of the complainants were released from the Canadian Armed Forces until after September 3, 1992. [3] Prior to September 3, 1992, each of the complainants were required to take fully paid leave made up of a combination of different forms of leave including: accumulated leave (i.e. accumulated annual leave), annual leave (i.e. annual leave for the year of release), special leave and rehabilitation leave in accordance with the QR&O and the Canadian Armed Forces Administrative Orders. This leave is collectively referred to as retirement leave in article 16.18 of the QR&O. The complainants were required under the QR&O to take this leave prior to their release. [4] The complainants received their full salary and benefits and accumulated full pensionable time while on leave prior to release. They were not required to report for active duty during their leave but were subject to being recalled to report for active duty at any time until their release from the CAF. [5] All of the complainants were released from the CAF after September 3, 1992. II. BACKGROUND [6] On August 14, 1992 the Canadian Human Rights Tribunal issued its decision in Martin et al. v. Canada (Dept. of National Defence) (1992), 17 C.H.R.R. D/435. The Tribunal held that articles 15.17 and 15.31 of the Queen's Regulations and Orders were not regulations made for the purpose of paragraph 15(1)(b) of the Canadian Human Rights Act and, accordingly, could not justify the discriminatory practice of compulsory retirement. [7] On September 3, 1992, the Governor in Council amended articles 15.17 and 15.31 of the QR&O to comply with paragraph 15(1)(b) of the CHRA, thereby rendering the compulsory retirement provisions operative from that day forward. [8] The Canadian Human Rights Tribunal subsequently confirmed in Carter v. Canadian Armed Forces, [2000] C.H.R.D. No. 1 No. T.D. 2/00, aff'd, [2001] F.C.J. No. 1922 (F.C.T.D.); [2003] F.C.J. No. 212 (F.C.A.), that the amendment to articles 15.17 and 15.31 of the QR&O on September 3, 1992, put an end to the discriminatory practice that occurred with the release of Mr. Carter on May 27, 1992, because he had reached the compulsory retirement age. Accordingly, the Tribunal concluded that the Canadian Forces were not required to pay damages for lost wages after September 3, 1992. III. QUESTION IN ISSUE [9] The issue for the Tribunal in this proceeding is whether the requirement that the complainants take their retirement leave prior to September 3, 1992, is a discriminatory practice contrary to sections 7 and 10 of the CHRA. IV. ARGUMENT OF THE COMMISSION [10] The Commission argues that the complainants were compelled to take retirement leave under the CAF retirement policy when such policy was found to be discriminatory. [11] According to the Commission, the complainants were, in effect, forced out of the workplace because of their age as compared to other CAF members. This, the Commission argues, constitutes adverse differentiation in employment, contrary to s. 7(b) of the CHRA, and is pursuant to a policy that deprived the complainants of employment opportunities, contrary to s. 10 of the CHRA. [12] The Commission also argues that as a result of the discriminatory practice, the complainants had a vested right to compensation that is in no way affected by the amendment to the QR&O. The QR&O amendments are not retroactive. The QR&O amendments may impact compensation, they cannot impact liability. For this proposition, the Commission relies on the Carter decision. V. THE ARGUMENT OF THE RESPONDENT, CAF [13] The structure of the CAF's argument is built on the decisions of the Tribunal and the Federal Court in Carter. Master Corporal Carter filed a complaint against the CAF with the Commission on August 25, 1993, alleging age discrimination, contrary to s. 7 of the CHRA. He was released from the CAF on May 27, 1992 and had been on retirement leave from June 1991 until his release. At the time of his release, the compulsory retirement provisions of QR&O 15.31 were not operative because of the Martin decision. [14] There was no issue that Mr. Carter, because of the discriminatory practice, was entitled to compensation. The issue was the amount of compensation. The Commission's position was that the compensation period should run for 24 months from his release date. The CAF countered that the compensation period should run from his release date, May 27, 1992 to September 3, 1992, when the CAF compulsory retirement policy was validated. [15] The Tribunal concluded that Mr. Carter had a vested right to compensation once it was proved that he was the victim of a discriminatory practice. And the appropriate compensation period should be from May 27, 1992 to September 3, 1992. [16] The Federal Court on judicial review, agreed with the Tribunal's conclusion that Mr. Carter had a vested right to compensation, but no vested right as to the amount of compensation. As to the compensation period, the Court said that there must be a causal connection between the discriminatory practice and the amount of compensation. In Mr. Carter's case, the causal connection was broken on September 3, 1992, by the amendment to the QR&O, which allowed the CAF to release Mr. Carter. It was on that date when the discriminatory practice ended. [17] The CAF argues that the Commission has failed to make a prima facie case for the contravention of ss. 7 & 10 of the CHRA because it has not shown that the complainants suffered any adverse consequences or lost opportunities. [18] The CAF points out that it was a matter of record both before the Tribunal and the Federal Court, that Mr. Carter was put on retirement leave from June 1991 to May 27, 1992. If being put on retirement leave was a discriminatory practice, then it was open to the Commission to argue that the compensation period for Mr. Carter should have started in June 1991, not May 27, 1992. But the Commission did not argue this. Rather, the Commission's position was that Mr. Carter's right to compensation crystallized on May 27, 1992, the day of his discriminatory release. Both the Tribunal and the Federal Court in their decision explicitly referred to Mr. Carter's release as being the discriminatory practice. Thus, the CAF argues, Carter stands for the proposition that the requirement to take retirement leave is not a discriminatory practice. [19] And with good reason, says the CAF, because there are no adverse consequences to being put on retirement leave. This is because a member of the CAF, while on retirement leave, receives everything that he would be entitled to if on active duty. [20] The CAF makes another argument which also focuses on release. The QR&O require retirement leave to be taken prior to release. As pointed out in Carter, Mr. Carter could have been released from the CAF as of September 3, 1992, when the CAF compulsory retirement policy was validated. All of the complainants in this case were released after September 3, 1992. Presumably, if the complainants wanted to take their retirement leave, they would have to do so prior to their release. They did so. Accordingly, there was no discriminatory practice. VI. DECISION [21] The argument of both the Commission and the CAF are somewhat seductive. But I have concluded that the policy of the CAF that required the complainants to take their retirement leave prior to September 3, 1992, constitutes a discriminatory practice contrary to ss. 7(b) and 10 of the CHRA. As stated earlier, the complainants were taken out of active duty and put in retirement status, although still on the CAF roster. They became stay at home soldiers. Many of the complainants wanted to continue on active service as demonstrated by their requests for an extension of service. Some were granted, some were not. [22] In my view, it is not accurate to say that there were no adverse consequences because the complainants received the same benefits that they would have received if on active service. There are other benefits in addition to salary and pension benefits that are available to those on active duty, but not to those on retirement leave. Promotion, occupation transfers, would be examples. Undoubtedly, the CAF offers educational training, upgrading of a member's trade or occupation, leadership courses, all of which could enhance a CAF member's career opportunities. [23] Another adverse impact was poignantly described by Chief Justice Dickson in Reference re Public Service Employee Relations Act (Alta) [1987] 1 S.C.R. 313, 368, where he said: "Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identify, self-worth and emotional well-being". [24] Further, I do not accept the CAF's contention that Carter decided that retirement leave is not a discriminatory practice. Although it was open to the Commission to argue this in Carter, its failure to do so is not determinative in this case. Nor can it be said that the Federal Court, by referring to the discriminatory practice being Mr. Carter's release on May 27, 1992, conclusively decided that Mr. Carter's retirement leave could not be a discriminatory practice. It must be remembered that in Carter, liability for the CAF's retirement policy was not in issue, only compensation. Neither the Tribunal nor the Federal Court was asked to consider a compensation period running from the date of retirement leave instead of the date of the release. In my opinion, whether or not being put on retirement leave prior to September 3, 1992 was a discriminatory practice, remained an open question after Carter. [25] Finally, there is the argument of the CAF that the compulsory release policy was immunized by the September 3, 1992 amendment to the QR&O. And, because retirement leave is an incident of the former, it also is immunized. [26] To accept this argument would require that the amendment to the QR&O be given retroactive application. What was once discriminatory before the amendment is no longer discriminatory because of the amendment. The amendment to QR&O 15.17 and 15.31 did not expressly provide for retroactive application, nor did the CAF argue that it had this effect. [27] For the reasons set out above, I have concluded that the CAF policy requiring the complainants to take retirement leave prior to September 3, 1992 was a discriminatory practice contrary to s. 7(b) and s. 10 of the CHRA. The result is that the complainants have a claim for compensation because of the discriminatory practice. As to the amount of the compensation, if any, that is left to another day. Signed by J. Grant Sinclair OTTAWA, Ontario August 18, 2004 PARTIES OF RECORD TRIBUNAL FILE: T811/6103 STYLE OF CAUSE: Robert D. Adair, Barry Catley, Joseph T.B. Corrigan, Paul D. Cross, John Fraser, Arthur W. Guthreau, Barbarine Henry, Douglas Horsman, John Hurley, Joseph Edward Korponay v. Canadian Armed Forces DATE AND PLACE OF HEARING: Ottawa, Ontario June 7, 2004 DECISION OF THE TRIBUNAL DATED: August 18, 2004 APPEARANCES: Philippe Dufresne For the Canadian Human Rights Commission Michael Peirce For the Respondent

2004 CHRT 29

CHRT

Goodwin v. Birkett

en

2004-08-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6991/index.do

2023-12-01

Goodwin v. Birkett Collection Canadian Human Rights Tribunal Date 2004-08-20 Neutral citation 2004 CHRT 29 File number(s) T825/7503 Decision-maker(s) Hadjis, Athanasios Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE SUE GOODWIN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - DAVID BIRKETT Respondent REASONS FOR DECISION MEMBER: Athanasios D. Hadjis 2004 CHRT 29 2004/08/20 I. FACTS II. LEGAL FRAMEWORK III. ANALYSIS IV. REMEDY V. RETENTION OF JURISDICTION [1] The Complainant alleges that the Respondent sexually harassed her in contravention of s.14 of the Canadian Human Rights Act. Neither the Complainant nor the Respondent were represented by legal counsel at the hearing, and the Canadian Human Rights Commission (Commission) opted to not appear at all. I. FACTS [2] The Complainant and the Respondent were employed as bus operators by Penetang Midland Coach Lines (PMCL), based in Toronto. They had become friends on the job, having had occasion to work together on several one-day charters. In August 1999, PMCL sent both drivers to the Canadian Forces Base in Petawawa, Ontario. This was the first time they had worked together out of town for more than one day. The charter was scheduled to last for about a week and consisted of their shuttling Canadian Forces personnel to and from their military exercises. They worked from ten to fifteen hours per day. [3] While in Petawawa, they stayed at a local hotel. They had separate rooms, the doors of which faced each other. The Complainant claims that about two or three days into the assignment, she came back to the hotel at about 8 p.m., after completing her shift. She changed out of her work clothes and into a sweatshirt and shorts. Around 9:00 p.m., the Respondent telephoned the Complainant from his room asking if she wanted to do anything that evening. They decided to watch television together in her room and he came over several minutes later. [4] According to the Complainant, her room had two double beds. She sat on one and he sat on the other, while they both watched television. At some point, she nodded off to sleep. She woke up at about 3 a.m. and found the Respondent lying on her bed next to her. He was nude and was touching her with his hand below the waist in her private area. She immediately sat up and told him to stop. He laughed at her, but she insisted that he leave. He got up, put on his clothes and left the room, the whole time still laughing. [5] The Complainant stayed in her room the remainder of the night, unable to sleep. At about 3:30 a.m., she called a friend to tell him what had happened. He advised her to call the police, but she said that she would not do so before speaking to her dispatcher, Gord Tuttle. [6] She called Mr. Tuttle in the morning and recounted to him what had occurred. Mr. Tuttle suggested sending up another driver to replace her but she told him not to bother, as the charter was to be ending shortly. She assured Mr. Tuttle that in the meantime, she would deal with the problem herself until her return to Toronto. She also explained to him that she had decided to not call the police because it would result in her and the Respondent no longer being available to work, leaving the assignment short-staffed. She decided to put her duty to perform her job ahead of the other matter. The Complainant testified at the hearing that an additional reason for her unwillingness to call the authorities was that she had the misfortune of being a victim of a serious crime in her youth and she suffered emotionally during the ensuing criminal proceedings. She did not want to undergo a similar experience again. [7] Later that morning, when she went to pick up her bus at the military base, she found the Respondent standing next to his. He approached her and asked if she was the type of girl who would report this, presumably to her employer or to the authorities. She just told him to stay the fuck away, and walked to her bus. She worked the remaining days of her assignment and drove her bus back to Toronto alone on the last day, Sunday, August 29, 1999. [8] The Respondent denies the incident, as alleged by the Complainant. He acknowledges that he went over to her room that evening but he denies ever being in bed in the nude with her, nor touching her private parts. He claims that while they were watching television, he massaged her back at her request, for a matter of several minutes only. They then both returned to watching television. At some point, he noticed that the Complainant had fallen asleep. He continued watching the program for a while longer and then got up, put on his shoes and left the room while the Complainant was still asleep. [9] On Monday, August 30th, her first day back at work in Toronto, the Complainant reported the incident to her supervisor, Greg Pockneil. He asked her to put her complaint in writing. About one week later, Mr. Pockneil convened her to a meeting at which the Respondent and the branch manager, Gord Moodie, were also present. After hearing both sides of the story, Mr. Pockneil and Mr. Moodie told the parties that they would consider the matter and get back to them. [10] In the ensuing weeks, the employer arranged the working assignments so as to ensure that the Complainant and the Respondent never worked together. However, she could not help but run into him occasionally at the workplace, at the beginning or end of her shifts. She claims that one day in September 1999, the Respondent parked his bus at such an angle that she could not exit her car from her parking space. She asked him to make room but he refused. She complained to one of the managers who in turn instructed the Respondent to move his bus. She contends that the Respondent's conduct was in retaliation to her having complained to the employer that he had sexually harassed her while on the trip to Petawawa. [11] According to the Complainant, the employer never disciplined the Respondent over the alleged hotel room incident. She found it uncomfortable to continue running into him in the company's yard. She deliberately avoided going into the dispatch room in order to preclude coming into any contact with him. Rumours began spreading at the workplace about the incident. She claims that the Respondent had been making accusations to others that she was a racist (the Respondent is a member of a visible minority group). She made numerous requests to her employer that the Respondent be fired. Yet, as the months passed, nothing happened and finally, on December 17, 1999, she resigned from her position. In her letter of resignation, she claimed that she was leaving in part because she had been sexually assaulted by another worker and nothing was done about it. II. LEGAL FRAMEWORK [12] According to s. 14(1)(c) of the Act, it is a discriminatory practice to harass an individual on a prohibited ground of discrimination in matters related to employment. The prohibited grounds include sex (s. 3(1)). Section 14(2) specifies that sexual harassment is deemed to be harassment on a prohibited ground. [13] Sexual harassment is broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment. Sexual harassment in the workplace attacks the dignity and self-respect of the victim, both as an employee and as a human being. (Janzen v. Platy Enterprises Inc. [1989] 1 S.C.R. 1252). III. ANALYSIS [14] I am satisfied on the evidence that the hotel room incident took place, as alleged by the Complainant. Her evidence at the hearing was unwavering and forthright. She recalled the circumstances in detail. [15] The Respondent's recollection of the events, on the other hand, was patchy. He initially testified that the Complainant's hotel room had only one bed and that they both watched television while lying down on it. He changed his position later in his evidence, testifying that he was not sure if it was one bed or two. He does not recall when he left, claiming that he also dozed off. His lack of specific recall is odd considering that the Complainant's formal complaint against him and the meeting with their supervisors occurred only days after their return to Toronto. It is not as if the accusation was made against him months after the event's occurrence. The Respondent's testimony at the hearing to the effect that he gave the Complainant a back rub for a few minutes at her request appeared improvised and lacked any credibility. [16] The Respondent called into question Complainant's decision not to report the event to the police, suggesting that her failure to do so is indication that the incident never took place. To support his contention, the Respondent sought to introduce evidence that the Complainant had no difficulty calling authorities to report other acts committed against her in the past. He cross-examined the Complainant with respect to a series of sensitive, personal matters regarding her prior relationships. The Complainant did not raise any objection to these questions and readily acknowledged that she called the police after a violent attack against her by a former boyfriend, resulting in her hospitalization. She also disclosed that she notified the police to complain that her ex-husband had been returning to her household and harassing her children. I accept her interpretation that these incidents were of a more serious nature than the incident alleged against the Respondent and warranted police intervention. [17] Moreover, I am not persuaded that this evidence lends any credence to the Respondent's contention that the incident in the hotel room never took place. The Complainant was clearly committed to her work, as evidenced by the enormous efforts she made one night in Petawawa to repair the Respondent's bus, which he had abandoned by the side of the road. When she called him at his hotel room to assist her, he refused, and she was forced to call upon Canadian Forces personnel to help get the vehicle working. I have no difficulty believing the Complainant's claim that in deciding to not call in the police after the hotel room incident, she chose to place the execution of her professional duties ahead of her personal matters. In addition, I accept her evidence that she was also fearful of subjecting herself to the ordeal that victims sometimes experience in the course of criminal prosecutions. [18] In any event, the Complainant did in fact report the incident immediately to her superiors at work, whom she expected would deal with the matter appropriately. She complied with the employer's request to submit a complaint in writing. She felt, however, that the employer never adequately addressed her concerns. She found herself with no choice but to leave a job that she claims she loved. She contacted the Commission in the days following the incident and a complaint was filed several months later. The investigation and other stages of the process ended up taking years and in the meantime the Complainant endured a serious illness. [19] The Respondent suggested that the Complainant had fabricated her claim against him in pursuit of a financial windfall at his expense. However, this theory is not supported by the facts of the case. At the end of her evidence, the Complainant initially told the Tribunal that she was not seeking any remedy under the Act, other than a letter of apology. Only after taking some time to consult the Act during a break in the hearing, did she inform the Tribunal that she was seeking $2,500 in damages for pain and suffering (s. 53(2) (e)), and $2,500 in special compensation (s. 53(3)). She did not make any claim for lost wages. Indeed, the Complainant pointed out that she did not want to claim any additional amounts from the Respondent because she was mindful of his modest means and did not want to financially ruin him. She also requested that the Tribunal order the Respondent to pay these sums to a charitable organization instead of her. I therefore fail to see how the Respondent's assertion regarding the Complainant's motives can be supported. [20] The Respondent cited a couple of instances in the days following the incident when he claims the Complainant did not demonstrate any hostility to him. He sat down next to her at a restaurant table where she was already seated with a friend. On another occasion, he claims she accepted a sandwich from him. The Complainant denies these facts, as presented, claiming that she and her friend had finished their meal and were awaiting their bill when he Respondent sat down at the next table. They left soon thereafter. She denies outright ever having accepted the sandwich from the Respondent. More importantly, neither of these trivial incidents is indicative of the openness or friendliness that prevailed between the parties prior to the hotel room episode. The Respondent did not lead any evidence to suggest that their amicable relationship had remained unchanged after his visit to her hotel room that night. This sudden change in their friendship would be consistent with the Complainant's claim that she became cool and distant vis-à-vis the Respondent for the remainder of their assignment, pending her return to Toronto and her filing of a complaint against him with the employer. [21] On the balance of probabilities, I am persuaded that the events as alleged by the Complainant occurred on the evening in question. I find unconvincing the Respondent's contention that nothing out of the ordinary took place. [22] I am also satisfied that his behaviour that night constituted sexual harassment. His conduct was unwelcome, of a sexual nature and detrimentally affected her work environment. She was no longer comfortable working at the same workplace with the Respondent, which was one of the factors in her decision to resign from PMCL. While the incident occurred during a single evening, the Respondent's conduct was severe enough to create a hostile working environment by the measure of any reasonable person (See Canada (HRC) v. Canada (Armed Forces) and Franke (1999), 34 C.H.R.R. D/140 at paras. 29-50 (F.C.T.D.)). [23] I therefore find that the Respondent discriminated against the Complainant by sexually harassing her. The complaint is substantiated. IV. REMEDY [24] As I explained earlier, the Complainant is seeking $2,500 in damages for pain and suffering. She is also claiming that the Respondent engaged in the discriminatory practice wilfully or recklessly, for which she is seeking special compensation in the sum of $2,500. [25] The Complainant testified as to how the harassment affected her emotionally following the incident. Her life was disrupted, particularly at work. She modified her working habits so as to avoid contact with the Respondent. His discriminatory conduct was ultimately one of the factors that led to her departure from her job at PMCL, which she enjoyed very much. I am satisfied that the Complainant experienced significant pain and suffering as a result of the discrimination. There is also no question that the Respondent's conduct in the hotel room that evening was wilful. [26] Taking these circumstances into account, and considering the prevailing case law with respect to non-pecuniary damages involving harassment (see e.g., Bushey v. Sharma, 2003 CHRT 21; Woiden v. Lynn (No.2) (2002), 43 C.H.R.R. D/296 (C.H.R.T.)), I am satisfied that both of the Complainant's claims are more than justified. The Respondent is ordered to pay the Complainant the sum of $2,500 in compensation for her pain and suffering (s. 53(2)e)), and the sum of $2,500 in special compensation (s. 53(3)). Simple interest shall be payable on both of the monetary awards, to be calculated on a yearly basis, at a rate equivalent to the Bank Rate (Monthly series) set by the Bank of Canada. The interest will run from August 29, 1999. [27] The Complainant has also requested that the Respondent be ordered to provide her with a letter of apology. In Canada (Attorney-General) v. Stevenson, 2003 FCT 341, the Federal Court found that the Act does not empower Tribunals to make such orders. The Complainant's request for a letter of apology is therefore denied. V. RETENTION OF JURISDICTION [28] I retain jurisdiction in the event that any dispute arises regarding the quantification or implementation of any of the remedies awarded in this decision. Signed by Athanasios D. Hadjis OTTAWA, Ontario August 20, 2004 PARTIES OF RECORD TRIBUNAL FILE: T825/7503 STYLE OF CAUSE: Sue Goodwin v. David Birkett DATE AND PLACE OF HEARING: June 25 and 26, 2004 class="CellBody">Toronto, Ontario DECISION OF THE TRIBUNAL DATED: August 20, 2004 APPEARANCES: Sue Goodwin On her own behalf David Birkett On his own behalf

2004 CHRT 3

CHRT

Caza v. Télé-Métropole Inc. and Malo

en

2004-01-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6526/index.do

2023-12-01

Caza v. Télé-Métropole Inc. and Malo Collection Canadian Human Rights Tribunal Date 2004-01-22 Neutral citation 2004 CHRT 3 File number(s) T633/2101, T634/2201 Decision-maker(s) Doyon, Roger Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE NADIA CAZA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TÉLÉ-MÉTROPOLE INC. - and - MANON MALO Respondents DECISION ON WITHDRAWAL OF THE COMPLAINTS MEMBER: Roger Doyon 2004 CHRT 03 2004/01/21 [TRANSLATION] I. INTRODUCTION II. CONCLUSION I. INTRODUCTION [1] Whereas counsel for the Canadian Human Rights Commission informed the Tribunal, during the January 15, 2004 hearing, about the decision of the Complainant, Nadia Caza, to withdraw the complaints she had filed with the Commission dated November 7, 1996, in accordance with sections 7 and 14 of the Act, against Télé-Métropole Inc. and dated January 7, 1999, in accordance with section 14 of the Act, against Manon Malo. [2] Whereas the Complainant, Nadia Caza, confirmed to the Tribunal that she was withdrawing the complaints of discrimination on the basis of national or ethnic origin that she had filed with the Commission against the Respondents, Télé-Métropole Inc. and Manon Malo. II. CONCLUSION [3] Therefore, the Tribunal [4] takes note of Nadia Caza's decision to withdraw the complaints of discrimination on the basis of national or ethnic origin that she filed with the Canadian Human Rights Commission against Télé-Métropole Inc. and Manon Malo; [5] is discontinuing the hearing and permanently closing files T633/2101 and T634/2201. Roger Doyon OTTAWA, Ontario January 21, 2004 PARTIES OF RECORD TRIBUNAL FILE: T633/2101, T634/2201 STYLE OF CAUSE: Nadia Caza v. Télé-Métropole Inc. and Manon Malo DATE AND PLACE OF HEARING: Montréal, Quebec January 15 and 16, 2002; January 22 to 24, 2002; March 12 and 13, 2002; January 13 to 15, 2004. DECISION OF THE TRIBUNAL DATED: January 21, 2004 APPEARANCES: Nadia Caza On her own behalf Giacomo Vigna/Monette Maillet Daniel Chénard/Philippe Dufresne For the Canadian Human Rights Commission Nicola Di Iorio For the Respondents

2004 CHRT 30

CHRT

Brown v. Canada (Royal Canadian Mounted Police)

en

2004-09-01

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7091/index.do

2023-12-01

Brown v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2004-09-01 Neutral citation 2004 CHRT 30 File number(s) T769/1903 Decision-maker(s) Groake, Paul Dr. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JACQUELINE BROWN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL CANADIAN MOUNTED POLICE Respondent RULING ON THE QUESTION WHETHER THE TRIBUNAL HAS THE POWER TO AWARD COSTS MEMBER: Dr. Paul Groarke 2004 CHRT 30 2004/09/01 I. INTRODUCTION II. DAMAGES A. Damages do not Include Costs B. Initial Fees C. Legal Fees from the Hearing III. COSTS A. The Common Law Rule: The Power to Award Costs Requires Statutory Authority B. Other Sources of the Power to Award Costs IV. THE POSITIONS OF THE PARTIES A. The Position of the Respondent B. The Position of the Complainant C. The Position of the Commission V. LEGISLATION A. The Canadian Human Rights Act B. Other Human Rights Legislation VI. JURISPRUDENCE UNDER THE CANADIAN HUMAN RIGHTS ACT A. Early Cases (i) Morrell: The Tribunal Rules that it Does Not Have the Power to Award Costs (ii) Other Cases B. Thwaites: The Federal Court holds that the Tribunal has the Power to Award Costs C. Lambie: The Federal Court rules that the Tribunal does not have the Power to Award Costs D. Intervening Cases: The Tribunal continues to hold that it has the Power to Award Costs E. Green: The Federal Court rules for the second time that the Tribunal does not have the Power to Award Costs F. Nkwazi: The Tribunal continues to rule that it has the Power to Award Costs G. Premakumar and Milano: The Tribunal follows Nkwazi H. Stevenson: The Federal Court follows Nkwazi I. The Question posed by Nkwazi VII. ISSUE A. The Tribunal does not have a Common Law Power to Award Costs B. The Tribunal nevertheless has the Power to Protect the Viability of the Remedies under the Act C. The Complainant Has a Right to an Effective Remedy VIII. ADDITIONAL ISSUES A. Can a Lay Representative Appear Before the Tribunal? B. Are the Fees of a Lay Representative Recoverable? C. Waiver IX. RULING APPENDIX A I. INTRODUCTION [1] I have already awarded the Complainant a remedy. The only remaining issue is the question of costs. The Respondent has taken the position that the Tribunal has no power to award costs. I think that a proper resolution of this question requires considerable review of the caselaw, both in the courts and before the Tribunal. [2] The Respondent submits that the Canadian Human Rights Act does not give the Tribunal the power to award costs. The complainant demurs. Her counsel advises me that she has incurred legal costs in the range of $11,000.00 since the matter first arose. Most of these costs arise out of the hearing. Counsel has submitted that the failure of the Tribunal to order the Respondnt to pay her costs will effectively deprive her of the compensation to which she is entitled under the Act. II. DAMAGES A. Damages do not Include Costs [3] The basic rule in our law is simple. The power to award damages does not include the power to award costs. The Canadian Human Rights Act gives the Tribunal the power to award compensation. I think this is a form of damages and must be distinguished from costs. [4] The decision of the Cour d'appel de Quebéc in Hrtschan c. Montréal (Ville), REJB 2004-55545, at para. 60, holds that the distinction between damages and costs is a causal one: 60. Dans la logique de la responsabilité civile, laquelle requiert un lien de causalité directe entre la faute et le préjudice, il ne suffit pas de dire qu'il a fallu recourir aux services d'un avocat pour conclure, au terme d'un procès qui tranche le cas, que la totalité de la note des honoraires et débours engagés par la victime donne la mesure du préjudice subi. (emphasis added) At para. 75, Justice Pelletier cites Professor A. Popovici, in Le Sort des honoraires extrajudiciares, (2002) R. du B. 53, as authority for the proposition that costs are not damages. The Respondent provided me with an English translation of the passage at para. 60, which is conveniently quoted, without commenting on the precision of the translation. 60. In the logic of civil responsibility, which requires a direct causal link between the fault and the prejudice, a victim cannot rely on the assertion that he had to resort to the services of a lawyer to then be automatically awarded fees and disbursements at the end of the trial, on the basis that the lawyer's total bill equals the prejudice suffered. There is a sense in which the legal costs of a trial or a hearing do not flow directly from the injury. They have a second, contractual origin. As a result, they do not form an ordinary head of damages or compensation. [5] This gives rise to the principle that damages and costs must be recovered separately. It follows that the power to award costs requires a discrete and explicit head of authority. This principle applies, rather resolutely, in both the common law and civil law systems. A tribunal and indeed a court only enjoys the power to award costs in the manner and on the terms set out in the relevant legislation. B. Initial Fees [6] The test is causal and the question is open to considerable refinement. In spite of the general rule, some legal costs qualify as damages. The decision in Hrtschan, for example, recognizes that a party with a legal complaint is entitled to seek the advice of a lawyer. The fees for such advice are a recoverable head of damages. [7] This does not change the general rule. 61. Si la nécessité des premières consultations et des premières prestations de service peut, à première vue, conférer à la réclamation pour frais extrajudiciaires une légitimité du genre de celle que je viens d'évoquer, il n'en va pas nécessairement de même pour la suite des événements. De fait, la situation risque de s'embrouiller très rapidement au fil du déroulement du conflit judiciaire. There is a difference between a party's initial consultation with a lawyer and the representation provided during the course of a hearing or trial. [8] A person who has been discriminated against will in the normal and entirely predictable course of events seek the advice of a lawyer. This preliminary advice is sufficiently close in the causal chain to constitute a direct and inevitable consequence of the original wrong. It accordingly constitutes a foreseeable part of the damages that the complainant has suffered as a consequence of the discrimination. The actions of the discriminator are the proximate cause of the expenses that a complainant incurs in seeking such advice. [9] I take it that the original recourse to a lawyer and the advice of a legal representative constitutes an exception to the general rule that costs are not damages. The ultimate issue in each case is causal. The question in logical terms is whether the legal costs claimed by a Complainant are a necessary consequence of the discrimination. Once the original advice has been tendered, received and paid for, a Complainant is in a position to instruct counsel. At this point, the causal chain is broken and any decisions regarding the provision of legal services derive logically from factors that are only indirectly related to the original cause of action. [10] The exception to the general rule has been recognized in the law of human rights. In Waters v. British Columbia (Ministry of Health Services) 2003 BCHRT 13, the B.C. Tribunal dealt with legal fees that were incurred prior to the filing of a complaint. At para. 212, the Tribunal held that these expenses were recoverable: In Radloff v. Stox Broadcast Corp., [1999] BCHRTD No. 36, the Tribunal held that legal expenses that arise from the contravention but which cannot be characterized as costs' of the proceeding may be compensable: Radloff at para. 99 (see also Leeder v. O'Cana Enterprises Ltd. (c.o.b. Alisa Japanese Restaurant), [1999] B.C.H.R.T.D. No.1 at para. 29). The point is that there was a sufficient nexus between the contravention of the Act and the expenditure to characterize it as compensation or damages. [11] There are other cases where the exception arises. In Curling v. Torimiro [2000] O.H.R.B.I.D. No. 169 (QL), at para. 61, for example, a Board of Inquiry held that it was entitled to award compensation for a Complainant's legal expenses as part of a restitutional award under the Ontario Code. [12] Where, as in this case, a complainant incurs legal expenses which are directly caused by the conduct of a respondent in violation of the complainant's rights under the Code, a respondent can, in an appropriate case, be ordered to pay compensation in respect of these expenses as part of a make whole remedy. The decisive words are directly caused. The Board found, at para. 62, that the Complainant was claiming legal expenses that were incurred specifically: as a result of the retaliatory actions which have been found to infringe her rights under s. 8. It is significant that the retaliatory conduct took the form of legal action and threatened legal action, and necessitated a legal response. Curling recognizes that there are cases where the causal link between the costs and the discrimination is so close that a party is entitled to legal expenses, on the basis that they flow directly from the discrimination. C. Legal Fees from the Hearing [13] The legal expenses that occur later in the process come within the exclusionary rule, however. They should not be construed as damages. This includes the cost of an expert's report and other expenses that arise from the litigation, rather than the original discrimination. The source of these expenses lies in the instructions of the parties and the advice that they receive. This is inherently variable. The appropriateness of the decision whether to call witnesses or raise certain points of law is an incurable matter of judgement. Different persons may make these decisions differently. [14] Justice Pelletier expresses reservations with the idea that judges should enter into this area. It is not for adjudicators to second-guess the parties, in determining what services were appropriate. There is also the danger of retrying the case. This says nothing of the problem of dealing with matters handled in confidence or under the cloak of privilege. There are public policy considerations that prevent an adjudicator from looking too closely at the personal decisions of the parties or evaluating their conduct of the case. III. COSTS A. The Common Law Rule: The Power to Award Costs Requires Statutory Authority [15] The common law has always held that an adjudicative body does not enjoy the power to award costs unless it has been expressly given such a power. There is a separate power that permits it to deal with abuses. [16] This rule does not admit exceptions. The power to award costs is an extraordinary power, which requires explicit statutory authority. In Family and Children's Services of Annapolis County v. Clark, [1983] N.S.J. No. 586, for example, the Nova Scotia Appeal Division held that the Family Court of Nova Scotia had no power to award costs. At para. 5, the court sets out the historical position: The Family Court is a statutory court of record created by S.N.S. 1967, c. 98. As such it can only have jurisdiction in the substantive matter of costs if such jurisdiction is expressly given it by the Act creating it or some other Act. There is no inherent jurisdiction in statutory courts to award costs. This was made clear by this court then differently structured and constituted in Re Charles Brown (1928), 60 N.S.R. 76; 49 C.C.C. 402. The issue there was whether a County Court judge had the power and jurisdiction to award costs on a successful habeas corpus application. The statutory power to hear the application was given by the County Court Act, R.S.N.S. 1923, c. 215, as amended by S.N.S. 1924, c. 50, s. 3. The Act, however, was silent as to costs. This court held that the County Court judge did not have the power to award costs. The judgment of the court was delivered by Chisholm, J. (later C.J.N.S.), who said (pp. 78, 79 N.S.R.): ... The recovery of costs eo nomine was unknown to the common law; the courts have no inherent power to award costs which can only be granted in any case or proceeding by virtue of express statutory authority. 2 Coke's Inst. 288; Duffill v. McFall (1878), 42 U.C.Q.B. 597; Lehigh Valley Railroad Co. v. McFarland (1882), 44 N.J.L. 674 5 Ency of P. and Prac. 108. I have quoted such a long passage because it illustrates the unequivocal nature of the common law rule. [17] There are similar decisions in the area of human rights. In Ontario (Liquor Control Board) v. Ontario (Ontario Human Rights Commission), for example, [1988] O.J. No. 167 (QL), three judges of the Ontario High Court of Justice dealt summarily with the issue: The applicants/appellants submitted that Baum erred in law and jurisdiction by awarding costs to the respondents Karumanchiri, Ng and Yan. There is no inherent jurisdiction in a court, nor in any other statutory body, to award costs. Re Brown, [1928] 3 D.L.R. 234, 49 C.C.C. 402, 60 N.S.R. 76 (N.S.S.C.) Orkin, The Law of Costs, 1968, Canada Law Book Limited, Toronto, p. 1 The Board of Inquiry is created by the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. As a statutory body it can only have jurisdiction to award costs if such jurisdiction is expressly given to it either by the Code or some other act. Re Lachawski and Federated Mutual Insurance Co. (1980), 29 O.R. (2d) 273, 19 C.P.C. 126, 113 D.L.R. (3d) 209 (Div. Ct.) Franco v. Kornatz et al. (1982), 29 C.P.C. 38 (Ont. H.C.) Re Clark and Family and Children's Services of Annapolis County (1983), 37 R.F.L. (2d) 171, 39 C.P.C. 168, 3 D.L.R. (4th) 728 (N.S.C.A.) affirming (1983), 34 C.P.C. 57 (N.S. Co. Ct.) which varied (1983), 57 N.S.R. (2d) 77, 120 A.P.R. 77 (Fam. Ct.) Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc. et al. (1985), 51 O.R. (2d) 23 (Div. Ct.) [n.p.] This reflects the development of the law of costs in Ontario, which derives from the common law. [18] The bench in Ontario Liquor Control Board holds specifically that restitution does not include costs: The legislature has expressly provided for the recovery of costs in limited circumstances to the person complained against under s. 40(6) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. The power of the Board of Inquiry under s. 40(1) to make restitution including monetary compensation is not an express provision for the award of costs to complainants under the Code. The rule of liberal interpretation to carry out the objects of the Code to, as far as possible, remedy the effects of and prevent discrimination do not apply to procedural matters or the question of costs. [n.p.] There is also the decision of the New Brunswick Court of Appeal in Moncton v. Buggie and N.B. Human Rights Commission [1985] N.B.J. No. 276 (QL), at para. 35, which holds that a Board of Inquiry has no power to award costs. B. Other Sources of the Power to Award Costs [19] It may be significant that the rule was different in equity. In Oasis Hotel Ltd. v. Zurich Insurance Co. [1981] B.C.J. No. 690 (QL), the B.C. Court of Appeal reviewed the history of the power in the courts of equity. The Supreme Court of British Columbia enjoys the powers of the English High Court of Chancery, apparently as they stood in 1858. The Court of Appeal held that this gave it the power to award costs, in the words of Middleton J. in Re Sturmer and Town of Beaverton (1912) 2 D.L.R. 501, (Ont. Div. Ct.), at para. 11, not from any authority but from conscience and arbitrio boni viri. This latin maxim is explained by Albert Mayrand, Dictionnaire de maxims et locutions latines utilisées en droit (3d, Yvon Blais), as the equivalent of Selon l'arbitrage d'un bon citoyen. [20] The courts of equity seem to have had a mandate to provide effective remedies. This may help to explain why the remedial powers of a statutory body seem to be significant in determining whether it has the power to award costs. Thus, in Banca Nazionale v. Lee-Shanok, [1988] F.C.J. No. 594 (QL), a unanimous bench of the Federal Court of Appeal reviewed s. 61.5(9) of the Canada Labour Code, R.S.C. 1970, c. L-1, which gave an adjudicator the authority to order an employer who had dismissed an employee to reinstate the employee and do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal. (italics added) The court held that the purpose of the section was to make whole an employee who has been wrongly treated by his employer. The difficulty I have, writes Stone J.A., is in viewing an award of compensation, gained at some considerable expense to a complainant in terms of legal costs, as having the effect of making him whole. Legal costs incurred would effectively reduce compensation for lost remuneration, while their allowance would appear to remedy or, at least, to counteract a consequence of the dismissal. The court accordingly held that the Labour Code gave the adjudicator the power to award costs. IV. THE POSITIONS OF THE PARTIES A. The Position of the Respondent [21] The Respondent submits that the general rule with respect to federal legislation is clear. It has provided me with a number of authorities on the matter. In Big Island Band v. Big George, [1995] F.C.J. No. 543 (QL), for example, the court considered the same provision that was before the court in Banca Nazionale. The case can be distinguished from the decision in Banca Nazionale, since the adjudicator had found against the claimant but awarded costs. At para. 6, Justice Nadon quotes Sara Blake in Administrative Law in Canada (Butterworths), at page 105. He then writes, at para. 8, I am in entire agreement with the proposition set forth by the learned author in Administrative Law in Canada that express authority is necessary to empower a board or tribunal to make an award of costs against a party. I should add that, in my view, an adjudicator has no inherent jurisdiction to make such an award. It is evident, on this view, that a statutory tribunal like the Human Rights Tribunal has no power to award costs unless the statute explicitly gives it such a power. [22] The Respondent also provided me with a number of excerpts from other federal Acts. Section 251.12(4)(a) of the Canada Labour Code, for example, gives a referee on a matter under appeal the power to award costs in the proceeding. Under section 25.1(1) of the Canada Transportation Act, the Canadian Transportation Agency has all the powers that the Federal Court has to award costs in any proceeding before it. Section 30.16(1) of the Canadian International Trade Tribunal Act states that the Canadian International Trade Tribunal may award costs of, and incidental to, any proceedings before it. Other Acts contain the same explicit language. [23] There are other arguments on the Respondent's side. Part 11 of the Federal Court Rules deals with costs. The court has assessment officers. The rules deal with matters like security for costs. There is also a Tariff. There is an entire scheme to deal with costs. The Respondent submits that there is nothing of this nature in the Canadian Human Rights Act. The Act is completely silent on the matter. [24] The Respondent also submits that the Complainant incurred costs because the Commission withdrew from the hearing. This decision was taken relatively late in the process. If anyone should be responsible for those costs, the argument goes, it is the Commission. There is at least a suggestion in Canada (A-G) v. Morgan (1991) 21 C.H.R.R. D/87, at para. 67, that Respondents should not be held responsible for problems that arise out of the conduct of the Commission. B. The Position of the Complainant [25] Counsel for the Complainant relied on the caselaw that I have discussed below. He essentially took the position that the remedial provisions of the Act would be rendered ineffective without an award of costs. [26] Counsel for the Complainant also submitted that the Tribunal has the same power as arbitrators, who apparently have the authority to award costs. He relied on the decision of the British Columbia Labour Relations Board in Re Graham [2000] BCLRBD No. 1 (QL), where the Board held at para. 46 that its jurisdiction to award costs and expenses . . . as a form of damages is well-established. At para. 48, it continued as follows: The Board described the intent of an order for reimbursement of reasonable costs as the bringing about [of] a situation whereby the successful complainant obtains a `break-even finale rather than a loss': Tony McNamara and Pierre Comeau, IRC No. 302/88 (Reconsideration of C25/88), p. 12. C. The Position of the Commission [27] The Canadian Human Rights Commission was advised that the question of costs was before me. It chose not to appear, however, and has not taken a position on the matter. I accordingly do not know the circumstances under which the Commission withdrew from the case. V. LEGISLATION A. The Canadian Human Rights Act [28] The parties agreed that the fundamental starting point in any inquiry into the question before me is that the Tribunal is a creature of statute. As a result, it enjoys the powers that are granted to it by the Act. [29] It has generally been accepted that the only provisions in the Act that could provide the Tribunal with the power to award costs are found in section 53(2)(c) and 53(2)(d) of the Act, which gives a Tribunal the authority to make an order: (c) that the person [engaging in the discriminatory practice] compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; (d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice ... Both of these provisions have been used in the jurisprudence. It is evident that the exception regarding the fees paid for initial advice would come under (d). [30] There are two fundamental arguments against the use of these provisions as the source of the Tribunal's power to award costs. The first is that they refer to expenses incurred by the victim as a result of the discriminatory practice. This identifies the expenses as damages. There must be an uninterrupted causal link between the discrimination and the expenses that are being claimed. [31] The second argument is that the principles of statutory interpretation do not support such a reading of the Act. There are at least two principles that apply. The first is ejusdem generis, which holds that the meaning of general terms is restricted by the particular terms that precede them. Thus, the reference to expenses in section 53(2)(d) is a reference to expenses like the expenses incurred in obtaining alternative goods, services, facilities or accommodation. The reference in section 53(2)(c) is to the kind of expenses incurred by the victim as a result of the loss of wages. [32] The second principle is expressio unius est exclusio alterius. In Driedger on the Construction of Statutes (3d; Butterworths), at p. 168, Ruth Sullivan writes that this principle applies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Justice Lemieux relies on this kind of argument in Green, infra, at para. 186, where he writes: if Parliament had intended the Tribunal to award legal costs, it would have said so. The argument is that Parliament has set out a number of specific heads of relief. If it had wanted to give the Tribunal the power to award costs, it would have included this within the list. The rule takes added force in the immediate instance from the extraordinary nature of the power to award costs, which is only available if the enabling legislation expressly grants it. [33] There may be other problems. I am inclined to think that section 53(2)(c) contemplates the full recovery of the expenses incurred by the Complainant. This is not the general rule with legal costs, which are usually awarded on a more qualified basis. To suggest otherwise would treat fees as disbursements. Indeed I note that the entry for expense in The New Shorter Oxford Dictionary lists the word disbursement as a synonym. I think this is the kind of meaning that attaches to the use of the word in the section. [34] There are also practical issues. The Canadian Human Rights Tribunal is an expert tribunal, with a thorough knowledge of the legal and factual issues that commonly arise in the context of discrimination. It has no experience in the taxation of accounts, which has been recognized as an independent area of expertise. There is a relatively complex body of rules and principles governing legal accounts. [35] The immediate case also presents a good example of the problematic nature of an inquiry into costs. If the Tribunal has the power to award costs, I have been advised that the Respondent wishes to dispute the fees charged by the representative for the Complainant. This may take the Tribunal into the without prejudice negotiations between the parties. B. Other Human Rights Legislation [36] In Discrimination and the Law (Carswell; 2004, Rel.2), at p. 15-124, William Pentney writes that provisions concerning costs vary greatly across the country. Section 37(4) of the British Columbia Human Rights Code, for example, allows a Tribunal to award costs if a party has engaged in improper conduct. This is a high standard: see Cook v. Citizens Research Institute, 2002 BCHRTD 6. [37] There are analogous provisions in Alberta, Prince Edward Island, Newfoundland (against any party who deserves such a penalty), and Manitoba (for frivolous or vexatious conduct). The Ontario Code allows a Board of Inquiry to award costs against the Ontario Human Rights Commission for a claim that is frivolous or vexatious, or made in bad faith. The legislation in the Yukon and Saskatchewan restrict an award of costs to the party contravening the Act. [38] There are Acts with language similar to the provisions in the federal Act. Section 28.4(1)(iv) of the Human Rights Act of Prince Edward Island, for example, allows a human rights panel: (iv) to compensate the complainant or other person dealt with contrary to this Act for all or any part of wages or income lost or expenses incurred by reason of the contravention of this Act; The similarities are apparent. Section 28.4(6) of the provincial Act, however, states a panel may make any order as to costs that it considers appropriate. The Respondent submits that this only demonstrates what is missing from the federal Act. [39] Pentney has the following to say about the Canadian Human Rights Act: Neither the federal Act nor the legislation of the Northwest Territories, New Brunswick or Nova Scotia specifically confers a power on the respective tribunals to award costs. However, it could be plausibly argued that in [each case] this power could be inferred from the plenary jurisdiction of the tribunals to bring about restitutio in integrum and/or to further the purposes of the enactments. (15-125) The reality however is that the federal legislation lacks the kind of explicit provision that the common law requires. [40] The decision in Ontario (Liquor Control Board) v. Ontario (Ontario Human Rights Commission), supra, seems to go the other way. [41] I was also provided with a copy of the recent decision of a Nova Scotia Board of Inquiry in Johnson v. Halifax Regional Police Service (unrpt.; 28 May 2004), which held that it had the power to award the Complainants the costs of retaining independent counsel. The Board paid particular attention to the federal jurisprudence. I do not find the decision helpful however. Although the Human Rights Act of Nova Scotia is silent on the question of costs, s. 8, its remedial section is much broader than the comparable provisions in the federal Act. Pentney describes this provision as the most general, and probably the broadest, remedial power available in Canada. It is of no real assistance in interpreting the Canadian Human Rights Act. VI. JURISPRUDENCE UNDER THE CANADIAN HUMAN RIGHTS ACT [42] The question whether the Tribunal has the power to award costs under the Canadian Human Rights Act has a relatively long history in the jurisprudence. A. Early Cases (i) Morrell: The Tribunal Rules that it Does Not Have the Power to Award Costs [43] The early cases seem to hold in favour of the Respondent. In Morrell v. Canada (Employment & Immigration Commission) (1985), 6 C.H.R.R. D/3021, at para. 24348, the Tribunal held that section 53(2)(d) does not give the Tribunal the power to award costs: [Paragraph 53(2)(d)] is intended to cover expenses directly related to the discriminatory conduct, and not expenses related to legal proceedings under the Human Rights Act. The latter are more a question of costs, and there is no provision in the Act for recovery of costs. Consequently, I do not believe I have any authority to make an award for expenses related to the hearing. This passage from Morrell may be the simplest and most straightforward statement of the law in the jurisprudence. It distinguishes between the costs of the litigation and the expenses incurred as a result of the discriminatory practice, such as counselling or medical expenses borne by the Complainant. The former expenses do not flow from the original injury and cannot be compensated under the Act. (ii) Other Cases [44] Morrell was followed by a number of cases where the Tribunal recommended or urged that the Commission pay the Complainant's costs. In Hinds v. Canada Employment and Immigration Commission, 1988 CHRT 88, for example, a certain Ms. Mactavish appeared for the Complainant. At the end of the case, she argued that the Tribunal had the power to award costs. Although the Tribunal recognized her singular contribution to the case, it refused to order costs and merely urged the Canadian Human Rights Commission to indemnify the Complainant. [45] The same kind of practice was followed in Oliver v. Canada (Parks Canada) (1989), 11 C.H.R.R. D/456, where the Tribunal criticized the Commission and stated that it was unfair to hold the Respondent responsible for the costs of the Complainant. B. Thwaites: The Federal Court holds that the Tribunal has the Power to Award Costs [46] The position of the Tribunal changed in the early nineties. In Thwaites v. Canadian Armed Forces (1993), T.D. 9/93, a panel of the Tribunal ordered the Respondent to pay for the legal fees incurred by the Complainant during the course of the hearing. At the end of the decision, the panel held: We feel, given the complex nature of this case, that Ms. Reierson served an important and useful function in acting as counsel for Thwaites. We agree with the Tribunal in Grover v. National Research Council (T.D. 12/92) that Section 53(2)(c) of the CHRA, granting the Tribunal power to compensate for any expenses incurred by the victim as a result of the discriminatory practice is of sufficient latitude to encompass the power to award costs. That Tribunal stated at p. 91: If the purpose of remedies is to fully and adequately compensate a complainant for the discriminatory practices, then surely the consequence of costs is part and parcel of a meaningful remedy for a successful complainant. Accordingly, in the circumstances of this case, we order the CAF to pay the reasonable legal costs of Thwaites, including the actuarial fees incurred in support of the presentation of his case. If the parties cannot agree as to the amount, the costs should be assessed on the Federal Court scale. The matter was subsequently reviewed in the Federal Court. [47] In Canada (AG) v. Thwaites, [1994] 3 F.C. 38 (QL), at para. 56, Justice Gibson endorsed the position taken by the Tribunal at the hearing: The fact that lawyers and judges attach a particular significance to the term costs or the expression costs of counsel provides no basis of support for the argument that expenses incurred does not include those costs unless they are specifically identified in the legislation. On the basis of the principle that the words of legislation should be given their ordinary meaning unless the context otherwise requires, and finding nothing in the relevant context that here otherwise requires, I conclude that the Tribunal did not err in law in awarding Thwaites reasonable costs of his counsel including the cost of actuarial services. This was the first of four rulings from the Federal Court on the matter. There is no escaping the fact that it runs counter to the common law, which holds that a statutory body has no power to award costs without an express statutory warrant. [48] The decision in Thwaites was followed by the Tribunal in Swan v. Canada (Armed Forces), [1994] CHRT 15, where the Tribunal ordered the Respondent to pay to the Complainant the costs of his legal counsel to be taxed as applicable under the Rules of Court for the Province of Manitoba. C. Lambie: The Federal Court rules that the Tribunal does not have the Power to Award Costs [49] The second decision from the Federal Court is found in Canada (Attorney General) v. Lambie, [1996] F.C.J. No. 1695, where the question was whether the Complainant was entitled to claim expenses for leave and time spent to develop and prepare his complaint. The case was heard by Justice Nadon, who had rendered the decision in Big George, supra. He seems to have been unaware of the decision in Thwaites. [50] The Decision in Lambie, like the decision in Big George, recites the common law rule. At the end of his decision, Justice Nadon quotes the passage from Morrell v. Canada, supra, at para. 24348, where the Tribunal held that paragraph 53(2)(d) is not intended to cover expenses related to legal proceedings under the Human Rights Act. There is no provision in the Act that gives the Tribunal an express power to award costs. It follows that the Tribunal has no power to do so. D. Intervening Cases: The Tribunal continues to hold that it has the Power to Award Costs [51] The decision in Lambie would support the original position of the Tribunal in Morrell. In spite of this, the Tribunal continued to hold in the intervening cases that section 53 of the Act gives it the power to award costs. I was a member of the panel in Koeppel v. Department of National Defence (1997), T.D. 5/97, which awarded costs to the Complainant on the basis of Grover and Thwaites. We did not inquire into the substantive issue, however, and were unaware of the decision from the Federal Court in Lambie. In Bernard v. Waycobah Board of Education, [1999] C.H.R.T. 2, a Tribunal also ordered the Respondent to pay the costs of Ms. Bernard's legal counsel on the Federal Court Scale. The case does not discuss the jurisdictional issue. E. Green: The Federal Court rules for the second time that the Tribunal does not have the Power to Award Costs [52] The jurisdictional issue resurfaced in Canada (Attorney General) v. Green, [2000] 4 F.C. 629 (QL), where the Tribunal awarded the Complainant the legal costs that she had incurred while the matter was before the Commission. The Complainant had apparently retained the services of counsel for the purposes of arguing that the complaint should be referred to the Tribunal. [53] Like Justice Nadon in Lambie, Justice Lemieux gave the idea that the Tribunal has the power to award costs very short shrift. At para. 185-186, he holds: [185] The Attorney General cites Canada (Attorney General) v. Lambie (1996), 124 F.T.R. 303 (F.C.T.D.), where my colleague Nadon J. said at page 315 that the Act does not confer jurisdiction to award costs although Parliament could easily have included such a power. [186] I agree with my colleague that if Parliament had intended the Tribunal to award legal costs, it would have said so. Reference is had to paragraph 53(2)(d) which refers to compensation to the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation. There is no mention of legal costs, an indication Parliament did not intend the Tribunal have the power to order the payment of legal costs. This follows the principle of expressio unius. It also follows the common law rule. The court held that the Tribunal has no power to award costs unless the Act expressly provides it. The fees in the case nonetheless appear to come under the exception relating to the initial cost of consulting a lawyer. F. Nkwazi: The Tribunal continues to rule that it has the Power to Award Costs [54] The decisions in Lambie and Green did not resolve the matter. The issue was revisited by Ms. Mactavish, now the Chairperson of the Tribunal, in Nkwazi v. Canada (Correctional Service), [2001] CHRT 29. The case is notable in the present instance because the facts were similar to the facts before me. The fundamental problem was that the Commission had withdrawn. [55] The substance of the Respondent's submissions was that the Commission should pay the Complainant's costs. At para. 20, Ms. Mactavish writes: According to counsel for CSC, Ms. Nkwazi's legal expenses were incurred entirely as a result of the decision of the Canadian Human Rights Commission to withdraw from this proceeding. The Commission's decision to withdraw constitutes a novus actus interveniens and breaks the chain of causation between the discrimination suffered by Ms. Nkwazi and her decision to retain independent counsel. This line of reasoning comes from the common law. It goes more properly to damages, however, rather than costs. [56] Ms. Mactavish at least implicitly suggests that Green may have been decided on a misreading of Lambie, which dealt with the jurisdiction of the Tribunal to compensate a Complainant for the time spent to develop and prepare [the] complaint. At para. 12, she accordingly follows the lead of Justice Gibson in Thwaites. I do not accept CSC's contention that the term 'expenses' should be given a restricted meaning, based upon the ejusdem generis principle of statutory interpretation. I agree with Mr. Justice Gibson that the ordinary meaning of 'expenses incurred' includes legal expenses, and that there is nothing in the context in which the term is used in paragraph 53 (2) (c) that requires a different interpretation. It will be apparent that I find myself in a different position. If the rule at common law applies, I think there is little doubt that Morrell, Lambie and Green were correctly decided. The principles of ejusdem generis and expressio unius apply. [57] The Tribunal in Nkwazi also relies on the principle of restitutio in integrum however. At para. 17, Ms. Mactavish states: ... the interpretation of the word 'expenses' espoused by Gibson J. in Thwaites is one consistent with the principle governing remedial orders under the Canadian Human Rights Act. Where a complaint is substantiated, the task of the Tribunal is to attempt, insofar as may be possible, to make whole the victim of the discriminatory practice, subject to principles of foreseeability, remoteness and mitigation. A victim of a discriminatory practice could hardly be said to have been made whole if she were unable to seek reimbursement for the legal expenses associated with the pursuit of her complaint. This is in keeping with the reasoning of the Federal Court of Appeal in Banca Nazionale, supra. [58] The Tribunal in Nkwazi also felt that the decision not to award costs in those cases where the Commission does not appear would essentially deprive Complainants of the right to bring a complaint before the Tribunal. At para. 15, Ms. Mactavish holds: Interpreting the term 'expenses' in the narrow and restricted way that Lemieux J. did in Green, so as to deny victims of discriminatory practices the right to recover their reasonable legal expenses associated with the pursuit of their complaints would, in my respectful view, be contrary to the public policy underlying the Canadian Human Rights Act. The practical result of such an interpretation would inevitably be that the quasi-constitutional equality rights guaranteed by the Act would become meaningless in cases where the Canadian Human Rights Commission withdraws from the hearing: complainants of modest means such as Beryl Nkwazi would simply be unable to proceed further with their claims. This brings in larger policy concerns. G. Premakumar and Milano: The Tribunal follows Nkwazi [59] Ms. Mactavish followed Nkwazi in Premakumar v. Air Canada 2002 CHRT 04/26, where she relied specifically on the principle of restitutio in integrum. At para 31, she held: [31] Where a complaint is substantiated, the task of the Tribunal is to attempt, insofar as may be possible, to make whole the victim of a discriminatory practice, subject to principles of foreseeability, remoteness and mitigation. Section 53 (2) (c) of the Canadian Human Rights Act empowers the Tribunal to reimburse the victim for any expenses incurred by that individual as a result of the discriminatory practice. The point is simple: to deny Mr. Premakumar reimbursement for his reasonable legal expenses would render his victory before the Tribunal essentially a Pyrrhic one. [60] Ms. Mactavish also awarded reasonable legal expenses in Milano v. Triple K Transport 2003 CHRT 30, on the same basis. H. Stevenson: The Federal Court follows Nkwazi [61] The matter came to a head in Stevenson v. Canada (Canadian Security Intelligence Service) [2003] 2003 FCT 341, where Justice Rouleau reviews both streams of authority. Like Ms. Mactavish, who was recently appointed to the Federal Court, he holds that the ruling in Lambie merely limits the jurisdiction of the Tribunal to award costs to exceptional cases. My difficulty with such a position lies in the plain statement, in Lambie, at para. 42: The statute does not confer the jurisdiction to award costs although Parliament could easily have included such a power. Perhaps this is obiter. [62] More significantly, Justice Rouleau then adopts the position of Justice Gibson in Thwaites and Madam Mactavish in Nkwazi. I am not convinced that this completely resolves the matter. For one thing, the legal costs awarded in Stevenson were for the costs associated with filing a complaint and making submissions to the Commission. This is apparent in the decision of the Tribunal, at [2001] C.H.R.D. No. 40, para. 108, where the member held: I am satisfied ... that the Complainant did have a right to consult counsel with regard to the possibility of making a complaint to the Canadian Human Rights Commission and that the legal assistance given him in respect of the submissions made to the Commission was necessary. These expenses were a reasonably foreseeable outcome of the discriminatory conduct. The case accordingly does not deal with the recovery of costs incurred during the course of the hearing. [63] The costs awarded in Stevenson are therefore more properly considered under the exception in the law relating to the initial costs of consulting a lawyer. At para. 25, for example, Justice Rouleau states: The fact that the words legal costs or costs of counsel are not expressly mentioned in either paragraphs 53(2)(c) or (d) does not support the argument that expenses incurred as a result of the discriminatory practice excludes legal expenses incurred by a complainant in bringing a complaint for discrimination. In a case such as this, where a complainant consults a lawyer regarding the well-foundedness of his complaint, an expense of that nature is entirely justifiable. (italics added) And at para. 26: In my view therefore, costs of counsel or any legal costs incurred in the course of filing a complaint for discrimination constitute expenses incurred by the victim as a result of the discriminatory practice as referred to in the legislation and the tribunal has accordingly acted within its jurisdiction in awarding legal expenses to the respondent. (italics added) It is apparent that these kinds of damages come properly under section 53(2)(d) of the Canadian Human Rights Act. The historical issue regarding costs arises later in the process, with regard to the costs incurred in the course of litigating the case. [64] The decisions in Stevenson and Nkwazi have nevertheless been followed by the Tribunal in Boudreault v. Great Circle Marine Services, 2004 CHRT 21, where Member Doyon awarded the Complainant legal fees in the sum of six thousand dollars. I. The Question posed by Nkwazi [65] The decisions in Nkwazi, Stevenson and some of the other cases raise an obvious question. If the Tribunal has some power to award costs, why doesn't the Act deal with the matter? I think the answer lies in the role of the Canadian Human Rights Commission, which has changed over the years. The Act was passed in 1985, almost twenty years ago. I do not believe that Parliament, the Commission, or any of the interested parties, foresaw the current situation. [66] The general assumption in the early cases was that the Commission would be appearing in the hearings before the Tribunal. I am inclined to think that Parliament shared this assumption when it originally passed the Canadian Human Rights Act. As a practical matter, it follows that the cost of litigating the Complainant's case would be borne by the Commission. There was no need for Parliament to deal explicitly with the question of the Complainant's costs. The Act is nevertheless premised on the idea that a successful Complainant will receive the compensation to which she is entitled without a set-off for legal costs. [67] The more recent jurisprudence reflects the fact that the Commission has reconsidered its position. At paragraph 28 of Premakumar, for example, Ms. Mactavish distinguishes between the role of counsel for the Commission and counsel for the Complainant. She then holds: [29] In light of my conclusion as to the respective roles of the Commission and the complainant, I have some difficulty with the reasoning of the Tribunals in Potapczyk and Pond. [Potapczyk v. MacBain, (1984), 5 C.H.R.R. D/2285 and Pond v. Canada Post Corp., (1994) 94 C.L.L.C. 17,024]. In these cases, successful complainants were denied their legal costs, in the absence of any identifiable conflict between the position of the Commission and that of the Complainant. While noting the obligation of the Commission to represent the public interest, the Tribunal in Potapczyk went on to observe that the Canadian Human Rights Act ... permits an individual who has a complaint to have it prosecuted by competent counsel for the Commission without incurring personal expense. This observation was subsequently relied on by the Tribunal in Pond to deny Ms. Pond her legal expenses. These are telling remarks. [68] I am not completely comfortable with this distinction between the roles of counsel. It seems to me that every human rights complaint has a public interest component, since that is what gives the legislation its particular force. This is not the issue before me however. The reality is that the Commission no longer appears before the Tribunal on a regular basis. As a result, the burden in most cases falls on the Complainant rather than the Commission. I agree with Madam Mactavish that the reasoning in cases like Potapcyzyk and Pond can no longer be sustained. [69] The changes in the practice before the Tribunal have made the matter of costs more significant than it was in the past. It also explains why the Act fails to address such a pivotal matter. The old reasoning may still apply in cases where the Commission appears before the Tribunal. VII. ISSUE A. The Tribunal does not have a Common Law Power to Award Costs [70] The question posed by the parties is whether the Tribunal has the power to award costs. I think this question has two different answers. The first is that the Tribunal does not have a common law power to award costs. It is of little avail to argue that the Act should be interpreted liberally, or in a manner that favours complainants. The power to award costs cannot be found in the Act. It is simply not there. I am accordingly in agreement with what was said by the Federal Court in Lambie and Green. If Parliament intended to give the Tribunal the power to award costs, it would have done so, in accordance with the rules and conventions governing the matter. B. The Tribunal nevertheless has the Power to Protect the Viability of the Remedies under the Act [71] The Tribunal nevertheless has adjudicative responsibility for the remedies under the Act. There are certain powers that flow from this. This reflects the remedial nature of the legislation and the fundamental nature of the rights of the person. I think that the Act gives the Tribunal the power that it needs to protect the viability and integrity of the remedies under the Act. [72] The same kind of issue arises in other contexts. In Day v. DND, No. 4, 2002/12/18, at paragraph 20, I suggested that something more than a doctrine of necessary powers but less than the doctrine of inherent jurisdiction was needed to provide the legal basis for some aspects of the Tribunal's authority. [73] I think there is considerable merit in the Respondent's submissions concerning the jurisdiction of the Tribunal. I say this because, in my view, the jurisdiction of the Tribunal derives more from the Tribunal's mandate under the Canadian Human Rights Act than from the literal wording of the Act. This mandate is broad, remedial, and quasi-constitutional. In my view, the Tribunal has all the incidental powers that are necessary to carry out the role that the legislation has assigned to it. I think that this kind of implied or instrumental reasoning is sufficient to provide the Tribunal with the necessary power to protect the viability of the remedies under the Act. [74] These kinds of powers must be traced to the provisions of the Canadian Human Rights Act. The Tribunal remains a statutory body, which only enjoys the powers granted by the Act. There is even a sense in which these powers must be express, as the common law suggests. The decision in Banca Nazionale addresses these concerns, however, and I think it is sufficient if there is an express intention to make a successful Complainant whole. This can be found in those provisions of the Act that deal with personal remedies. [75] The relevant subsection reads as follows: 53(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate . . . The word include might be thought to leave the Tribunal with some additional powers, but the French text suggests that it is limiting. The subsection then contemplates an order: (b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice; (c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; (d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice ... I think it is the cumulative effect of these provisions that is significant. The Tribunal has the power to order that the person discriminating provide the victim with rights, opportunities and privileges; that it repay wages and wage-related expenses; and that it reimburse the Complainant for the cost of any alternative goods, services, facilities, accommodation and the expenses related thereto. There is no reason to discuss the precise meaning of the different provisions. Taken together, the intention is to give the Tribunal the power to redress any loss that the Complainant has suffered as a result of the discrimination. The legislative intention is to make the victim whole. [76] The jurisprudence in the area supports such an interpretation. The real question in this context is not whether the Tribunal has an explicit power to award costs. It is whether the failure of the Tribunal to award costs would subvert the right of a successful complainant to restitution. I think the answer is plain. The legal fees in a case like the one before me could easily be greater than the damages awarded to a complainant. There will also be cases, as Ms. Mactavish recognized in Nkwazi, where the complainant does not receive a monetary award. [77] I have already held that the Tribunal does not have an express power to award costs. It nevertheless has the power to preserve the viability of its process. This includes the power to order the payment of costs, in order to preserve the damages to which a complainant is entitled. The governing principle is that the complainant is entitled to receive the bulk of the damages intact. Anything less would not be resititutio in integrum. [78] This is a residual power, which gives the Tribunal the power to protect the efficacy of the remedies awarded under the Act. There are limits to such a precept. The principle of restitutio in integrum applies to damages, not costs, and does not give a successful complainant a right to claim the entirety of their legal costs. It follows that any costs are subject to the normal rules of taxation. This includes the cost of expert's reports and other expenses related to the conduct of the hearing. [79] It is important to recognize that one of the purposes of the Act is to bring the question of discrimination under public scrutiny. This is not possible unless complainants are willing to come forward with complaints of discrimination. The Tribunal should not interpret the Act in a way that discourages those with legitimate complaints from seeking their legal remedies. [80] It is evident that this and other cases may serve notice on Parliament that the present Act deserves attention. It does not seem entirely fair, for example, to restrict costs to a successful complainant. The only question in the present case however is whether the failure of the legislation to specifically address the question of costs--when there was no real reason to do so--should be allowed to defeat the manifest purpose of the legislation. The answer is plain. C. The Complainant Has a Right to an Effective Remedy [81] There is another side to this. Much of the impetus for the passage of the Canadian Human Rights Act came from international sources, such as the Charter of the United Nations and the Universal Declaration of Human Rights. There are international obligations in the area. The law of human rights is fundamental. The prohibition against discrimination in section 15 of the Canadian Charter of Rights also gives the parallel provisions in the Canadian Human Rights Act constitutional backing. [82] It would be wrong if the provisions of the Canadian Human Rights Act served to defeat the remedies that it provides. The Complainant provided me with a copy of a briefing paper by Joanna Birenbaum and Bruce Porter (apparently available on the Department of Justice website) on the right to adjudication under the Canadian Human Rights Act. The paper does not deal specifically with the question of costs. It nevertheless contains the following passage: The denial of adjudication of human rights claims is clearly inconsistent with international law, particularly Article 2 of the International Covenant on Civil and Political Rights (ICCPR) which guarantees that any person whose rights or freedoms...are violated shall have an effective remedy and that any person claiming such a remedy shall have this right thereto determined by competent judicial, administrative or legislative authorities. The same paper states that sections 7 and 15 of the Charter of Rights guarantee the same rights. [83] There are important policy issues here. The purpose of the Canadian Human Rights Act has always been characterized as remedial. This purpose must be respected. The International Covenant on Civil and Political Liberties speaks to this the best, in requiring that state parties provide effective remedies for those persons whose rights have been infringed. The present case concerns marital and family status. I think that article 23 of the Covenant recognizes the particular importance of such a status, which is at least implicitly included in the prohibition against discrimination in article 26. [84] The right to an effective remedy is also an integral part of our own law. Perhaps this comes from equity; I cannot say. An effective remedy is nevertheless one that is meaningful and concrete. It is unimpaired by the circumstances that exist outside the immediate purview of the process. I think that the Tribunal has the power and indeed an obligation to see that the remedies under an act like the Canadian Human Rights Act are not frustrated by extraneous factors like the costs of a hearing. This would defeat the purpose of the litigation, the intention behind the Act, and the fundamental law of human rights. VIII. ADDITIONAL ISSUES A. Can a Lay Representative Appear Before the Tribunal? [85] Mr. Finding acted for the Complainant throughout the course of the hearing. He is not a lawyer. Although the Respondent was aware of this, it did not object to his participation in the hearing. The Respondent nevertheless took the position in its final submissions that he was not entitled to act for the Complainant. It also took the position that he had contravened the Legal Profession Act, R.S.B.C. 198, c. 9, in doing so. [86] The issue for the Tribunal arises out of the wording of s. 50(1) of the Act, which states that the Tribunal shall give the parties a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. The French version of the section states that the Tribunal shall give the parties la possibilité pleine et entière de comparaître et de présenter, en personne ou par l'intermédiaire d'un avocat, des éléments de preuve ainsi que leurs observations. [87] The word avocat in the French text certainly suggests that the word counsel should be restricted to lawyers. There is a recent decision in Beaudet-Fortin v. Société Canadienne des Postes, [2004] CHRT 23, in spite of this, where the Member states that it has been the practice of the Tribunal to permit representatives who are not lawyers to appear. The matter has not been definitively decided and should be resolved in a case where there is a live issue. [88] The Respondent provided me with a number of cases that deal with the services of representatives who are not lawyers. There seems to be a concern that such representatives may be practicing law, in contravention of the provincial legislation that governs such matters. I share these concerns. They are better dealt with, however, in a hearing where the matter has been properly raised at the outset of the process. B. Are the Fees of a Lay Representative Recoverable? [89] The more immediate question concerns the power to award costs. If the Tribunal has such a power, the Respondent argues, it should be restricted to lawyer's fees. There is no authority under the Act, in its view, to award costs for the services of a lay representative. [90] Counsel for the Complainant submitted that there was no reason to distinguish between representatives who are lawyers and representatives who are not. The Labour Relations Board in Graham, supra, for example, recognized that the fees of such representatives should be recoverable. At para. 49, the Board held: Regardless of the form of representation chosen, the intent of the Board's award of costs is to provide the successful complainant with a full indemnity for fees and expenses reasonably incurred. This is not a true indemnity, but the point remains. At para. 50, the Board relies on Orkin, The Law of Costs, 2nd ed., p. 3-37 (para. 311), in setting out a series of factors that provide a rough guide in assessing solicitor-and-client costs. Counsel for the Complainant suggests that the Tribunal should adopt the same approach. C. Waiver [91] The real issue lies elsewhere however. Counsel for the Complainant argued that the Respondent waived any right to object to Mr. Finding's fees. After all, the Respondent knew from the beginning that Mr. Finding was not a lawyer. Counsel knew that he was charging fees for his services. If Counsel wanted to contest the matter, it should have done so at the beginning of the hearing. [92] The Respondent replied by citing Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co. [1994] 2 S.C.R. 400, [1994] S.C.J. No. 59 (QL), at paras. 19 and 20, for the proposition that the doctrine of waiver should be narrowly construed. At para. 20, the Supreme Court held: Waiver will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them. There is a reason for the use of such strong language: The creation of such a stringent test is justified since no consideration moves from the party in whose favour a waiver operates. It follows that the waiver must be explicit. [93] The Respondent argues that it may have waived any objections to the use of a representative who is not a lawyer. It did not take a position on the issue of fees however. This is true enough. There is nothing to suggest that it consciously intended to abandon its right to contest the question of costs. The Complainant submits that this does not resolve the matter however. The RCMP should have raised the issue earlier. [94] I think the Respondent acquiesced. The decision not to object to Mr. Finding's participation in the hearing constitutes a waiver, in my judgement, that applies to the entirety of the proceedings. It is too late to speak of retraction. Nor can the Respondent waive the issue piecemeal. I do not see how it can say that it waived its right to dispute the matter for some purposes and not for others. There is nothing in the record to support such a position. [95] I see no reason why the Respondent cannot place limitations on its original waiver. These conditions must be explicit and prospective however. They cannot be introduced after the fact. The caselaw holds that a waiver must be explicit. But the same goes for the fine print. If a party intends to add exceptions and conditions to its waiver, however, that must also be explicit. It is the Respondent who must accordingly take responsibility for the failure to clarify the matter in the present case. It follows that Mr. Finding's lack of professional status cannot be used to prevent the Complainant from recovering her costs. IX. RULING [96] For all of the above reasons, I would rule as follows: 1. Section 53(2)(c) [97] There is no jurisdictional issue with respect to legal costs that can be characterized as damages or compensation. The initial fees for obtaining legal advice can be construed as expenses incurred by the Complainant as a result of the discriminatory practice under s. 53(2)(c). It would be wrong to deny a complainant the natural legal reflex, in seeking the advice of counsel. [98] The Complainant is accordingly entitled to recover the cost of her initial consultations with a lawyer. I think this extends to preliminary discussions with the other side, for the purpose of determining whether it was necessary to file a complaint. 2. Costs [99] I am satisfied that the Tribunal has a residual power to award costs in order to preserve the compensation awarded to a successful complainant. The Complainant is accordingly entitled to her reasonable costs. The Respondent has nevertheless raised a legitimate question on the jurisdictional issue before me. In the circumstances, each party will bear its own costs for any fees incurred with respect to the present application. [100] Since the Tribunal is under the supervision of the Federal Court, it makes sense to make use of the Federal Court rules in deciding such a matter. Rule 400(3), which is attached as Appendix A to the present ruling, sets out a list of factors that may be considered in determining what costs are appropriate under the Act. I think this provides the right starting point in such an exercise. [101] If the parties cannot settle the matter by themselves, they are invited to make written submissions to the Tribunal. I will retain jurisdiction for three months from the date of this ruling. I would also like to thank counsel on both sides for their assistance. The material provided by counsel for the Respondent was particularly helpful. Signed by Dr . Paul Groarke OTTAWA, Ontario September 1, 2004 PARTIES OF RECORD TRIBUNAL FILE: T769/1903 STYLE OF CAUSE: Jacqueline Brown v. Royal Canadian Mounted Police DATE AND PLACE OF HEARING: June 17 and 18, 2004 Vancouver, British Columbia RULING OF THE TRIBUNAL DATED: September 1, 2004 APPEARANCES: Charles Gordon For the Complainant Edward Burnet Keitha Richardson For the Respondent Ref: 2004 CHRT 5 2004 CHRT 24 APPENDIX A Federal Court Rules, 1998 SOR/98-106, as am. PART 11 COSTS AWARDING OF COSTS BETWEEN PARTIES 400. (1) The court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid. ... Factors in awarding costs (3) In exercising its discretion under subsection (1), the Court may consider the result of the proceeding; the amounts claimed and the amounts recovered; the importance and complexity of the issues; the apportionment of liability; any written offer to settle; any offer to contribute made under rule 421; the amount of work; whether the public interest in having the proceeding litigated justifies a particular award of costs; any conduct of a party that tented to shorten or unnecessarily lengthen the duration of the proceeding; the failure by a party to admit anything that should have been admitted or to serve a request to admit; whether any step in the proceeding was improper, vexatious or unnecessary, or taken through negligence, mistake or excessive caution; .../2 - 2 - whether more than one set of costs should be allowed, where two or more parties were represented by different solicitors or were represented by the same solicitor but separated their defence unnecessarily; whether two or more parties, represented by the same solicitor, initiated separate proceedings unnecessarily; whether a party who was successful in an action exaggerated a claim, including a counterclaim or third party claim, to avoid the operation of rules 292 to 299; and any other matter that it considers relevant.

2004 CHRT 31

CHRT

Howell v. Canadian Armed Forces

en

2004-09-23

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7092/index.do

2023-12-01

Howell v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2004-09-23 Neutral citation 2004 CHRT 31 File number(s) T817/6703 Decision-maker(s) Chotalia, Shirish P. Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RONALD J. HOWELL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent REASONS FOR DECISION MEMBER: Shirish P. Chotalia 2004 CHRT 31 2004/09/23 I. INTRODUCTION II. DISCRIMINATION COMPLAINT - DRILL INCIDENT III. FACTS A. Knee Injuries Existing Prior to Drill Incident B. Alleged Discrimination - March 1995 - Drill Incident C. Subsequent History to Drill Incident D. Small Party Tasking E. Medical History After the Alleged Discrimination F. Release from CAF - March 1998 G. Post Release H. Application for PTSD Pension IV. BASES OF MY FACTUAL FINDINGS A. Lay Witnesses B. Mr. Howell's Notes C. Expert Witnesses V. ISSUES VI. LAW A. Human Rights Law B. Human Rights Law and Tort Law VII. ANALYSIS A. Prima Facie Case Not Established B. Causation - July 1995 Injuries VIII. CONCLUSION I. INTRODUCTION [1] The complainant, Mr. Ronald J. Howell, became a member of the Canadian Armed Forces (CAF) on September 9, 1983. At the time, he was approximately 20 years old and had a grade 11 education. He was born on December 15, 1962 and is currently 42 years of age. [2] After Mr. Howell completed basic training, he was posted to Canadian Forces Base (CFB) Winnipeg. He began his trade specific training in February of 1984 at CFB Borden in Ontario. There, he underwent his initial training as a driver. He was then posted to Toronto. Initially, he was at the rank of Private. [3] In September of 1985, Mr. Howell became a regular member of the CAF. He was posted to CFB Petawawa in a support unit. He remained in Petawawa from 1985 until 1993. While in Petawawa he was promoted to the rank of Corporal. By 1987, he completed training which qualified him as a vehicle technician. [4] He received positive job performance appraisals until his release. [5] Unfortunately, throughout his career with the CAF, Mr. Howell experienced a series of knee surgeries. II. DISCRIMINATION COMPLAINT - DRILL INCIDENT [6] Mr. Howell alleges that his superiors aggravated his existing right knee problems when they forced him to participate in a platoon drill on March 23, 1995 without his brace (drill incident). He alleges that had the CAF accommodated his request to get his brace or to go to the medical infirmary, at the time, by excusing him from drill exercise, he would not have sustained further knee deterioration of such magnitude as to result in his release. He alleges that but for the drill incident he would still be a member of the CAF today. III. FACTS A. Knee Injuries Existing Prior to Drill Incident [7] Mr. Howell has a longstanding and complex history of right knee injuries and surgeries. These are outlined in the report of Dr. Randall dated December 9, 20031 with attachments and his complete medical file found in Volumes 1-42. It is suffice to say that Mr. Howell's right knee injuries began in about January 1982 when he was involved in a serious car accident. As early as May 1984, Mr. Howell complained of pain in his right knee particularly during activities such as running and playing sports. He also complained that his right knee buckled in the mornings. He suffered a major right knee injury in September1989 when he twisted and injured his right knee after stepping on a rock during a voluntary athletic competition, known as the Ironman Competition. He was taken to the hospital and treated for a major knee injury (right knee anterior cruciate ligament injury). His right knee problems began with this incident. [8] Then, in 1990, he slipped while kicking a tire and further injured his right knee. He underwent his first right knee surgery for ACL reconstruction on May 21, 1991. [9] Following that surgery, Mr. Howell was prescribed a Generation II brace which he obtained in about November 1993. [10] In about May 1992, he re-injured his right knee while marching in a military parade exercise and twisting his right knee. In August 1992, he underwent a second surgery, an arthroscopy to his right knee. [11] By June 1, 1993, Mr. Howell was posted at CFB Shilo and promoted to the rank of Acting Master Corporal. He was required to pass a Junior Leaders Course (JLC course) in order to receive his promotion to Master Corporal. The JLC course was designed to teach non-commissioned officers leadership skills. Early in his posting, he experienced problems while performing a drill routine. On June 16, 1993, he was seen by a physician for his complaints of soreness after performing drill. He was advised to use crutches, ice, a knee brace and knee elevation to alleviate the symptoms. [12] In January 1994, he complained of discomfort with walking, and particularly running. He was referred to a physician to determine if he was fit to participate in a JLC course which would involve considerable physical activity. The CAF then referred him to Dr. de Korompay, a civilian orthopaedic surgeon. Mr. Howell reported to him his experience of occasional locking of his right knee, discomfort and other popping sensations which symptoms appeared to have been aggravated by his job. Based on Dr. de Korompay's recommendation for a further arthroscopy, Mr. Howell was found to be unfit for the course. [13] Dr. de Korompay performed a third surgery on Mr. Howell's right knee in February 1994 after a slip and fall. Dr. de Korompay noted a medial meniscus tear which he resected. The doctor also noted that although Mr. Howell had a partial tear in his ACL, he had reasonable stability. He felt that Mr. Howell could continue with his CAF duties. In fact, by March 1994, Mr. Howell's supervisors continued to recommend Mr. Howell for promotion. [14] In September 1994, Mr. Howell participated in a JNCO (Junior Non-Commissioned Officer) course, which is similar to the JLC course. The JNCO course included the administrative aspects of the JCL course with an added component of infantry. During that course, he began to experience anterior right knee problems and pain. He realized that his knee was not sufficiently well to complete the course. He asked to be released from the course. Upon such request, he was given a medical RTU (medical Return to Unit), giving him permission to leave the course and return to the unit without being given a course failure. The CAF recommended that he be given another opportunity to take the course once his medical condition was resolved. At the time, he was assessed by his supervising officer as being neither physically nor mentally prepared for leadership training. Mr. Howell agreed with this assessment because the JNCO course included an infantry component not found in the initial JLC course. [15] After his return to Shilo, Mr. Howell undertook aggressive physiotherapy for PFS (patella femoral syndrome), the most common cause of anterior knee pain. He tried to rehabilitate his knee in preparation for the JNCO course to be held at CFB Shilo in February 1995. [16] In December 1994, he passed a fitness test, and the base physician at Shilo advised him to wear cushion soles and inserts and to wear a knee brace, as well as to avoid impact sports. Mr. Howell indicated to the physician that he would try his best in the course. [17] By January 1995, Mr. Howell reported to the base physician that he was having good results from using cushion insoles and his knee brace. At this time, the base physician gave Mr. Howell a chit that he was fit for starting another JNCO course. A chit was a note given by a physician to CAF members who were unable to perform their CAF tasks due to medical problems. The chit outlined the limitations of the member to his supervisors. The member was responsible for giving the chit to his respective supervising officers who passed the chit up to the members' unit officers. B. Alleged Discrimination - March 1995 - Drill Incident [18] Mr. Howell started his JNCO course again on February 27, 1995. At the start of the course, Mr. Howell advised Sergeant Thompson that he had a knee injury and was required to wear a brace. Sergeant Thompson had no difficulty with this request. [19] Unfortunately, on March 7, 1995, Mr. Howell slipped on ice when walking into a building. He was diagnosed with a vulgus strain of the right knee. As of March 13, 1995 his knee condition was essentially unchanged: he was taking Ibuprofen for pain, and was icing his leg and elevating it. He was given a chit to wear his knee brace. [20] During a weekly interview with Sergeant Thompson, on about March 20, 1995, Mr. Howell asked him if he could be excused from participating in further drill testing given that he had already passed his drill portion of the course. Drill involved marching, halting, swift right and left turns, hard pounding and stomping of the feet, and standing in the attention position for long periods of time. Mr. Howell indicated that this type of drill activity was hard on his knee. Sergeant Thompson agreed to excuse Mr. Howell from participating in the drill portion of the course on March 23, 1995. He told Mr. Howell to rest his knee in preparation for phase two of the course, consisting of infantry tactics. Sergeant Thompson obtained the consent of other CAF staff to facilitate an exemption from drill for Mr. Howell. [21] On the morning of March 23, 1995, Mr. Howell participated in the physical fitness component of the course, wearing shorts and without his brace. He played aggressive hard charging army style basketball. Sergeant Thompson observed Mr. Howell playing this game. [22] Later that morning, after breakfast, Mr. Howell reported to the parade square without his knee brace believing that he was excused from drill. Lieutenant Hart asked Mr. Howell why he could participate in PT (physical training) but not in drill. Mr. Howell replied that he had worn his brace and running shoes. Lt. Hart replied that if he could participate in basketball, he could participate in drill. Mr. Howell stated that he did not have his brace with him. His brace was in Brandon, Manitoba. Lt. Hart ordered him to participate in the 40 minute drill without his brace. When Mr. Howell resisted, Sergeant Thompson began using expletives and demanded to know why Mr. Howell was not participating in drill. Mr. Howell again indicated that he did not have his brace with him. Again using expletives, Sergeant Thompson ordered Mr. Howell onto the parade square in spite of the fact that he did not have his brace with him. Mr. Howell obeyed the orders and participated in the first half of the drill for about 20 minutes. During a break, Mr. Howell sought permission of Sergeant Houde to go to the medical inspection room (MIR) to be excused from drill. Sergeant Houde gave him permission to do so. However, when Sergeant Thompson observed Mr. Howell putting on his jacket, he used expletives to order Mr. Howell back onto the parade square to finish the drill. Mr. Howell advised him that he wished to go to MIR and Sergeant Thompson denied this request. Sergeant Thompson told him to go to sick parade the next morning. Mr. Howell repeated his request to go to MIR for a chit but again this request was denied by Sergeant Thompson in less than polite language. Mr. Howell completed the second half of the drill as ordered. [23] After completion of the drill Mr. Howell's knee felt painful and swollen. However he did not report to MIR immediately. In fact, he completed the rest of his CAF activities for the day. The next morning, Mr. Howell reported to the base physician. C. Subsequent History to Drill Incident [24] The following day being Friday, March 24, 1995, Mr. Howell's knee was swollen. He indicated to the base physicians that he was in pain and was having problems bearing his body weight. He was given a steroid shot and an anaesthetic in order to reduce the swelling and discomfort in the knee. Mr. Howell reported that his knee had been locking and hurting for about 4 weeks to that date. He was referred to the base hospital for further assessment. [25] No medical restrictions were imposed on Mr. Howell and he was told to return to the course. He did so. He was given a practice test in preparation for his upcoming small party tasking which he failed. However, this failure did not affect his mark as each member was given a practice chance to pass. [26] Mr. Howell went home to Brandon for the weekend. The members had been given a leave pass for the weekend. He iced his knee and elevated it and felt confident that he could return to the course. [27] He returned to his course on Sunday evening March 26, 1995. On Monday, March 27, Mr. Howell, participated in physical training consisting of marching with a full rucksack. After breakfast, on his way to an underground classroom, his knee locked. He fell head first down a set of stairs. He fell on top of another member and was unable to stand in the stairwell. He was taken to MIR where he complained of pain in his right knee and true locking incidents. The base physician suspected the existence of a meniscal tear. This was a significant injury. [28] A base doctor recommended that Mr. Howell fall within a temporary category. He was unfit to work and not capable of completing the course. He recommended a medical RTU or medical return to unit for Mr. Howell. A medical RTU is where, due to a medical condition, a student is released from the course without any career ramifications. Once the member is well the member is then permitted to take the course again. Mr. Howell was given crutches and prescribed Tylenol 3 for pain. D. Small Party Tasking [29] After taking Tylenol 3 Mr. Howell felt sleepy and groggy. Nonetheless, that evening Mr. Howell was further tested in a test known as Small Party Tasking. Through small party tasking members were evaluated on their ability to command others to carry out an assigned task. Mr. Howell voluntarily participated in the small party tasking even though he indicated to Warrant Officer Legge that he was concerned about his ability to take the test given his medicated state. Mr. Howell was permitted to take the test from his bed in the barracks. His task was to direct team members to move furniture from one room into another. He failed the test due to his medicated state of mind. The following day, he was released from the course. However, Lieutenant Hart gave him a course failure on his course report for below standard performance and poor motivation and attitude. He was demoted in rank. In March 1996, Mr. Howell grieved this report successfully and it was amended to indicate that he failed the course due to medical reasons. Lieutenant Hart's concerns that Mr. Howell exhibited disrespectful attitude towards his supervisors were maintained on the revised course report post-grievance. Mr. Howell was satisfied with the amended course report. His rank of acting Master Corporal was reinstated with retroactive pay. E. Medical History After the Alleged Discrimination [30] Mr. Howell was again referred to Dr. de Korompay, who saw him on June 12, 1995. Mr. Howell advised Dr. de Korompay of the drill incident but did not advise him of his March 27, 1995 fall down the stairs. Mr. Howell exhibited some anterior and retropatellar discomfort and medial joint line symptoms. Dr. de Korompay recommended that Mr. Howell undergo another right knee arthroscopy which he performed in July 1995. This was Mr. Howell's fourth surgery. During the surgery, Dr. de Korompay found a meniscal tear as well as a slight tear to his ACL graft. Dr. de Korompay removed a significant portion of Mr. Howell's anterior meniscus. The injuries that Dr. de Korompay observed in June 1995 and during the surgery of July 1995 were caused by the March 27, 1995 fall. Further, the wearing of the requested knee brace during the drill would not have prevented such or similar injuries. [31] Post surgery Mr. Howell was advised to wear soft-soled boots. His condition improved to the point that, in August 1995, he was participating in heavier sporting activities such as European handball. He completed the forced march portion of CAF warrior training and had his temporary restricted medical category reinstated to full duties (G2O2") as of October 1995. His job duties were not modified and his knee surgeries did not prevent him from working as many overtime hours as he was accustomed to working prior to the surgery. Mr. Howell and Dr. de Korompay saw his July 1995 surgery as having successfully resolved his knee problems. [32] However, Mr. Howell had further incidents involving his right knee following the July 1995 surgery. These included a first degree strain of his right knee in about April 1996 when he was lifting a generator at work. His knee went into spasms but the symptoms resolved quickly. Unfortunately, his knee pain persisted and, in August 1996, he was given a temporary restriction in medical category due to bilateral knee pain, with the right knee being worse than the left knee. [33] He consulted Dr. de Korompay again in September 1996, complaining that he could not run and was experiencing pain while running. Mr. Howell testified that his physical and mental condition had deteriorated. Dr. de Korompay suggested that he perform another scope to his knee to determine if there were mechanical problems leading to his symptoms. He felt that unless he could remedy the problems, Mr. Howell would have to consider retiring from the CAF given his need to run. Dr. de Korompay performed a fifth arthroscopy on Mr. Howell in January 1997 and found that degenerative changes in his knee would prevent Mr. Howell from performing his CAF duties, including running. Dr. de Korompay felt that Mr. Howell should have permanent restrictions from prolonged running, particularly with weights such as having to carry backpack.3 After the surgery, Dr. de Korompay had a serious discussion with Mr. Howell about his inability to continue his career with the CAF. Mr. Howell agreed that he needed to retire from the CAF to protect his knee. He was also having mental anxieties. F. Release from CAF - March 1998 [34] Thus, on February 20, 1997, Mr. Howell voluntarily assessed himself as being incapable of performing a number of tasks due to his knee injuries, specifically the General Duties of his vehicle technician job. He indicated that he could not walk cross-country over uneven terrain for long distances, could not stand for periods of up to 10 hours each, and could not dig a personal trench. Mr. Howell completed the form knowing that his responses to the questions would result in a medical release. [35] On that day, he was given a permanent category of G4" and found to be unfit for UN duties / field duties. He was awarded O3" as being unable to perform his occupational duties such as running, rucksack, drill, marching or other high impact activities. This ultimately resulted in a CAF career medical review board reviewing Mr. Howell's career prospects. The board found that Mr. Howell's employment limitations drastically restricted his capacity to perform the full spectrum of his CAF duties. He was found not to meet the universality of service principle. As a consequence, he was discharged from the Canadian Forces effective March 31, 1998. G. Post Release [36] Following his discharge from the CAF, through a military insurance plan, Mr. Howell commenced retraining. He completed his grade 12 and then began a college radiology course. Because the radiology course required him to stand frequently, he was unable to take on the vocation of a radiology technician. After aborting his retraining in May 1999, he decided to start his own small engine repair shop which he ran from approximately June 1999 to about June 2003. He did not make a profit. Rather, the business operated at a loss. H. Application for PTSD Pension [37] During the intervening years from the date Mr. Howell left the CAF to the date of the hearing, he was awarded four disability pensions from the Department of Veterans Affairs (DVA). The effective date and percentage amounts of the pension are found at page 8 of Respondent's tab 13 of its additional disclosures4. In brief, Mr. Howell is currently receiving a pension assessed as a 20% disability for his right knee. That pension was effective April 2, 1998. [38] In February 2004, Mr. Howell made an application for a federal disability pension alleging that the drill incident contributed to or caused him to suffer from Post Traumatic Stress Disorder (PTSD) and that the drill incident led to his course failure and his ultimate release from the CAF. Dr. McIntrye, a psychiatrist, supported Mr. Howell's application by providing an opinion to DVA that Mr. Howell had PTSD and that the drill incident seemed to have precipitated Mr. Howell's anxious and depressive syndrome. The pension was granted after appeal. Mr. Howell had not served in combat. Thus, Mr. Howell eventually began to receive a second pension retroactive to September 24, 2002 for a 40% disability. [39] The total amount of the pension that Mr. Howell receives is $2,162.63 per month. That figure is 72% of the total amount which the Complainant would be entitled to if he was completely disabled and takes into account the fact that the Complainant is married and has three children. IV. BASES OF MY FACTUAL FINDINGS [40] The bases for my factual findings are outlined below. A. Lay Witnesses [41] As the events occurred many years ago, and because there is a conflict between the written notes of the events and the oral testimony of the witnesses, I place more weight on the written notes. As well, where there is a discrepancy between the testimony of Mr. Howell and that of Sergeant Thompson and Captain Hart, I prefer the testimony of the latter two CAF witnesses. [42] I find Sergeant Thompson to be a candid witness. I find him to have acted reasonably in his dealings with Mr. Howell prior to the drill incident. He had accommodated Mr. Howell's request for special consideration twice prior to the drill incident. He initially advised Mr. Howell that he had no difficulty with him wearing his brace during the course. Then he specifically exempted Mr. Howell from performing drill upon Mr. Howell's request. In fact, he obtained the consent of others to secure this exemption. I also prefer the evidence of Captain Hart over that of Mr. Howell. I find Captain Hart to be the most candid, direct and credible witness. I find both of these CAF witnesses to be more independent than the complainant. Both testified that they did not have extensive dealings with the complaint. [43] On the other hand, I do not find the oral testimony of Mr. Howell reliable given a number of factors. First, he had a more partisan interest in the complaint. Mr. Howell had lived and relived the drill incident in his mind many times since it occurred, each time revising his memory in a different context. For example, he testified that he had been advised by Dr. McIntyre that the drill incident was akin to him being raped5. [44] Second, he readily admitted that his memory of certain events was limited. There were discrepancies in his evidence in salient details. For example, he testified that during the drill incident he had asked permission to go to the barracks to get his brace and that this request was denied. Yet, his notes and other documentation regarding the drill incident indicate that he had not asked for permission to retrieve his brace from his barracks. Rather, he had asked permission to go to MIR to get a chit to be excused from drill. As well, he testified that he had initially refused an order to do the drill. Again, his notes, redress of grievance and complaint do not support such an event. [45] Third, Mr. Howell suffers from PTSD and filed a complaint for a pension for PTSD based on this same drill incident. Thus his mental abilities of recall and accuracy are compromised. His independence with respect to his account of the drill incident is also compromised. [46] I do not find the evidence of Corporal Finokio to be helpful. His memory of the drill incident and the surrounding time period was limited and he was about 30 feet away from Mr. Howell and Captain Hart when it occurred.6 B. Mr. Howell's Notes [47] The written notes of Mr. Howell made the same day of the drill incident, confirm that Mr. Howell twice repeated to Sergeant Thompson and Lieutenant Hart ...I don't have my brace.... Had the brace been five minutes away in his barracks at Shilo, as he testified during this hearing, he would have spontaneously stated to the Sergeant I don't have my brace but it is only 5 minutes away. Please let me get it, or words to that effect. He did not do so. [48] As well, Mr. Howell asked for permission to go to MIR to get a chit excusing him from drill. Had the brace been five minutes away in his barracks, he would have asked permission to go to his barracks to obtain the brace rather than to go to MIR to be excused from drill. [49] While it is true that on March 13, 1995, Mr. Howell asked for and received a chit from the base physician allowing him to wear a knee brace, I accept Sergeant Thompson's evidence that he did not receive such a chit from Mr. Howell. This is consistent with Mr. Howell's notes of the drill incident wherein he asked for permission to go to MIR for a chit excusing him from drill. He did not state to Sergeant Thompson, Sergeant, I gave you a chit telling you that I need to wear a knee brace for drill or Sergeant, you have the chit", or words to that effect. He would have spoken such words had Mr. Howell twice given Sergeant Thompson a chit. In fact, the chit itself has not been produced in this hearing as part of his CAF file. Further, Mr. Howell testified that he wanted to obtain an updated chit because he was not sure if the staff had passed the other chits to Sergeant Thompson. Thus, in his testimony, he admitted that he did not give the chits to the Sergeant personally. [50] Mr. Swayze urges that I accept that Mr. Howell would have acted in his best interests and worn the brace the morning of the drill incident during basketball. However, with respect to the time period of September 1994 to March 1995, Mr. Swayze questioned Mr. Howell as to Dr. de Korompay's advice to him regarding knee care. Mr. Howell testified that Dr. de Korompay had specifically told him to wear his knee brace during drill and to try to avoid contact sports. Yet, Mr. Howell, contrary to his doctor's advice, participated in an aggressive game of basketball. He did not seek an exemption from participation in basketball as he did with respect to participation in drill. [51] Sergeant Thompson specifically observed Mr. Howell's knee and whether he was wearing a brace that morning. This is consistent with the fact that Mr. Howell had requested special consideration for exemption from drill based upon the state of his knee. Sergeant Thompson would have carefully observed Mr. Howell and his knee that morning. C. Expert Witnesses [52] I find that Dr. de Korompay testified in a candid, professional and helpful manner. Yet, I prefer the opinion of Dr. Randall to that of Dr. de Korompay with respect to the likelihood that the drill incident led to the injuries recorded by Dr. de Korompay in June 1995 and for which he performed surgical procedures in July 1995. Some of my reasons are outlined below. [53] In assessing Mr. Howell in June 1995 and in formulating his opinions, Dr. de Korompay was not given the benefit of assessing Mr. Howell's injuries in light of the March 13, 1995 slip on ice. He testified that Mr. Howell had not advised him of the fall. Nor was he otherwise advised of Mr. Howell's March 27, 1995 head first fall down the stairs or the May 10, 1995 incident of Mr. Howell's knee giving way and recurring locking. In his report of September 12, 2003, Dr. de Korompay confirmed that he was not aware of other episodes of injury in the interim. Based on the limited information that Mr. Howell and his counsel gave to Dr. de Korompay about Mr. Howell's medical situation at the relevant times, he opined that the findings presented on the scope of July 1995 could be attributed to the injury of March 1995. [54] Dr. de Korompay freely acknowledged that in assessing the extent of the contribution of the drill incident to Mr. Howell's final state, he relied upon what the patient told him and what he saw in his knee after examination. Mr. Howell informed him that the drill incident caused him significant trauma with subsequent pain and swelling. [55] Dr. Randall, on the other hand, obtained and reviewed Mr. Howell's complete medical file, contained in four volumes. Dr. de Korompay was not given the benefit of doing so. While it is true that Dr. Randall had not examined Mr. Howell in formulating his opinion, neither had Dr. de Korompay after Mr. Howell's significant knee injuries during his CAF career, and particularly those that occurred from March 1995 through to June 1995. [56] For the same reasons, I also reject Dr. de Korompay's opinion that had Mr. Howell worn his knee brace during the drill incident, the brace would likely have prevented the injury he observed in June 1995 and July 1995. Given that I do not accept that the June 1995 and July 1995 injuries were caused by the drill incident, the effect of not wearing a brace during the drill incident does not assist me with assessing its relationship to those subsequent injuries. As well, I accept Dr. Randall's opinion that a derotational knee brace would have played a minimal role in his knee stability that day for all of the reasons he outlined in his expert report. Even Dr. de Korompay acknowledged that the question of whether a brace provides any stability support after an adequate rehabilitation program is controversial. [57] Finally, with respect to possible psychological benefits of the knee brace to Mr. Howell, while some evidence was produced in the hearing by the respondent to the effect that Mr. Howell suffered from PTSD7, the complainant and the Commission failed to call Dr. McIntryre to testify in an expert capacity. I note that he remained a potential witness throughout the hearing as per the Tribunal's potential witness list. Thus, I am unable to find that the failure to wear a brace during the drill incident precipitated or contributed to Mr. Howell's deteriorated psychological state. Respondent counsel asked me to draw an adverse inference against Mr. Howell for failing to call Dr. McIntyre. I do not need to do so to dispose of this case. V. ISSUES [58] Based upon my findings of fact I now address the legal issues that arise. [59] The jurisdiction of this tribunal arises from Mr. Howell's complaint dated July 20, 1998. Mr. Howell's counsel, Mr. Swayze, confirmed in his opening statement that the crux of Mr. Howell's complaint centres around the drill incident of March 23, 19958. Mr. Swayze argued that the CAF denied Mr. Howell the use of a knee brace, a piece of equipment which he required in order to properly function, and that this act constituted a discriminatory act. He argued that as a result of that incident, Mr. Howell required further knee surgery and further deterioration of his knee occurred. But for this incident, his knee would not have deteriorated as quickly as it did, and he probably would have spent more time in the CAF. Mr. Swayze argued: We will show, Madam Chair, that this was a case where a split second decision, had he been given an extra five minutes to walk across to the barracks and pick up his knee brace, had he been given that time, we wouldn't be here today, Madam Chair.9 [60] Thus, in accordance with the complaint, the submissions of counsel and Mr. Howell's own testimony, the only issues that arise in this case are those relating to the drill incident. The issues are: Did the drill incident constitute a discriminatory practice contrary to section 7(a) of the Canadian Human Rights Act?10 Did the drill incident constitute a discriminatory practice contrary to s. 7(b) of the Act? If the answer to either of these questions is in the affirmative, has the CAF established a BFOR defence further to s. 15(a) of the Act? If not, what remedies should be awarded to Mr. Howell? VI. LAW A. Human Rights Law [61] Mr. Howell filed a complaint dated July 20, 1998, pursuant to s. 7 of the Act as it stood on that date, complaining about events that occurred in March 1995. Section 7 of the current Act states that 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 employment. One of the prohibited grounds is disability. [62] Section 15(1)(a) outlines the bona fide occupational requirement (the BFOR) defence: It is not a discriminatory practice if any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement. Section 15(2) states: For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. Section 15(8) confirms that section 15 applies to both direct and adverse effect discrimination. Section 15(9) states: Subsection (2) is subject to the principle of universality of service under which members of the Canadian Forces must at all times and under any circumstances perform any functions that they may be required to perform. [63] The Act as it stood in March 1995 did not contain provisions equivalent to the current section 15(2), 15(8) and 15(9). These amendments came into force and effect as of June 30, 1998.11 [64] In 1999, the Supreme Court of Canada released its decisions in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Services Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 [Meiorin] and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights, [1999] 3 S.C.R. 868 [Grismer]. In these two cases, the Supreme Court of Canada replaced the former jurisprudential distinction between direct and indirect discrimination with a unified approach. Under the unified approach, the onus remains upon the complainant to establish a prima facie case of discrimination. A prima facie case is one that covers the allegations made, and which, if believed, is sufficient and complete to justify a verdict in the complainant's favour in the absence of an answer from the respondent. Once a prima facie case of discrimination has been established by the complainant, the onus shifts to the respondent to prove, on a balance of probabilities, that the discriminatory standard or policy is a BFOR. In order to establish a BFOR, the respondent must prove that: A) it adopted the standard for a purpose or goal that is rationally connected to the function being performed. At this stage, the focus is not on the validity of the particular standard, but on the more general purpose, such as the need to work safely and efficiently to perform the job. Where the general purpose is to ensure the safe and efficient performance of the job, it will not be necessary to spend much time at this stage; B) it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose, with no intention of discriminating against the claimant. Here, the analysis shifts from the general purpose of the standard, to the standard itself; and; C) the impugned standard is reasonably necessary for the employer to accomplish its purpose; i.e. the safe and efficient job performance. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship. The employer must ensure that the procedure, if any, to assess the issue of accommodation, addresses the possibility that it might discriminate unnecessarily on a prohibited ground. As well the substantive content of a more accommodating standard offered by the employer must be individually sensitive. Alternatively, the employer must justify his reason for not offering such an alternative standard. [65] The Supreme Court's rulings in Meiorin and Grismer are also instructive in assessing whether or not an undue hardship defence has been established. In Meiorin, the Supreme Court observed that the use of the word `undue' implies that some hardship is acceptable; it is only `undue' hardship that will satisfy the test.12 An uncompromisingly stringent standard may be ideal from the employer's perspective. Yet, if it is to be justified under human rights legislation, the standard must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. The Supreme Court has further observed that in order to prove that a standard is reasonably necessary, a respondent always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship. It is incumbent on the respondent to show that it has considered and reasonably rejected all viable forms of accommodation. The onus is on the respondent to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship. In some cases, excessive cost may justify a refusal to accommodate those with disabilities. However, one must be wary of putting too low a value on accommodation. It is all too easy to cite increased cost as a reason for refusing to accord equal treatment. The adoption of the respondent's standard has to be supported by convincing evidence.13 Impressionistic evidence of increased cost will not generally suffice. Innovative and practical non-monetary avenues of accommodation ought to be considered. Finally, factors such as the financial cost of methods of accommodation should be applied with common sense and flexibility in the context of the factual situation under consideration.14 As observed by Cory J. in Chambly v. Bergevin [1994] 2 SCR 525, what may be entirely reasonable in prosperous times may impose an unreasonable financial burden on an employer in times of economic restraint or recession. I note that the term `undue hardship' is not currently defined in the Act. [66] In the case at the bar, first and foremost, the issue that must be squarely addressed, is whether or not the complainant has established a prima facie case of discrimination? This tribunal, further to ss. 49 and 50, is to conduct an inquiry into the complaint. This inquiry is to be independent, impartial and have due regard to the evidence presented and the relevant law. This tribunal is bound by the Federal Court of Appeal's ruling in Hutchinson v. Canada (Minister of the Environment) (C.A.) (2003), 4 F.C. 580. The court confirmed that both Meiorin and Grismer considered the effects of discrete, explicit standards or policies which served as screening tools; i.e., an aerobic capacity standard that adversely discriminated against women, and a visual acuity standard for the issuance of driver's licenses, constituting direct discrimination. The Federal Court of Appeal distinguished those cases from a transaction between the parties that was not driven by a pre-existing policy. Instead, there was a course of dealings in which the parties operated from an understanding of their respective rights and obligations. In Hutchinson, it was difficult to isolate and identify a particular policy or standard. In Meiorin, the Court's analysis began from a finding that the policy in question distinguished between people adversely on a prohibited ground. The Federal Court ruled that where one is dealing with a course of conduct, the more appropriate question is, does the transaction between the parties, taken as a whole, result in adverse treatment on a prohibited ground? If the transaction taken as a whole does not disclose adverse treatment, then the inquiry is at an end. If adverse treatment on a prohibited ground is shown, one proceeds to the three questions envisioned by the Supreme Court's analysis in Meiorin. In Hutchinson, the Court ruled that it was reasonably open to the Commission to find that the transaction between the appellant and the respondent, taken as a whole, did not disclose adverse treatment. [67] Further, in Hutchinson the Court affirmed that a complainant does not have the right to hold out for his or her preferred alternative. In that case, the respondent did attempt to accommodate the complainant's disability by moving her to alternate work sites, employing her on a seasonal basis, promoting a scent free environment and offering telework. The Federal Court adopted the ruling in Ontario (Ministry of Community and Social Services) v. OPSEU (2000), 50 O.R. (3d) 560, where the Ontario Court of Appeal found that the employer's "Religious Observance Policy" was sufficient to accommodate the individual needs of adherents of minority religions. An employee claimed the right to paid time off to observe eleven religious holidays. The employer's policy provided for two paid days off for religious observance and allowed for additional days off to be taken via scheduling changes and earned days off accumulated through the employer's compressed work week option. The employee took the position that his earned days off from the compressed work week were his to use as he saw fit and that the employer could give him 11 paid days off for religious observance without undue hardship. The Court held that since the employer's policy was sufficiently inclusive to accommodate the claimant, the issue of accommodation to the point of undue hardship did not arise. The Federal Court ruled that one of the corollaries of this position is that claimants cannot refuse a reasonable solution on the ground that the alternative which they favour will not cause the employer undue hardship. B. Human Rights Law and Tort Law [68] The principles developed in tort law to restore victims to the position they would have enjoyed but for the wrongful act apply to human rights cases. Consequences of the act that were too indirect or too remote must be excluded from the damages recoverable.15 Subsequent to rulings by the Federal Court of Appeal such as in Morgan, the Supreme Court of Canada outlined a principled approach to assessment of causation in Athey v. Leonati, [1996] 3 S.C.R. 458. Causation is established where the defendant caused or contributed to the injury. The general, but not conclusive, test is the but for test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant. Where the but for test is unworkable, the courts have recognized that causation is established where the defendant's negligence materially contributed to the occurrence of the injury. A contributing factor is material if it falls outside the de minimus range. Causation need not be determined with scientific precision. It is essentially a practical question of fact which can best be answered by ordinary common sense. At the same time, plaintiffs need not be placed in a better position than they would have been prior to the tort. Thus it is important not only to assess the plaintiff's position after the tort but also to assess what the original position would have been. It is the difference between these two positions: the original position and the injured position which constitutes the plaintiff's loss. If an intervening event was unrelated to the tort and affected the plaintiff's original position", the net loss is not as great as it might have otherwise seemed. Thus, damages are reduced to reflect this. VII. ANALYSIS A. Prima Facie Case Not Established [69] In this case, I find that the transaction as a whole that occurred between Mr. Howell and the CAF surrounding the drill incident and the subsequent JNCO course failure did not constitute adverse treatment by the CAF against Mr. Howell. [70] With respect to s. 7(a) of the Act, Mr. Howell had a pre-existing history of knee problems prior to the drill incident. Thus, he had a disability within the meaning of the Act. However, the CAF did not refuse to employ him due to the events that transpired during the drill incident. Rather, Mr. Howell voluntarily chose to retire from the CAF due to events that transpired subsequent to the drill incident, not causally connected to the drill incident. Mr. Howell had largely recovered from his March 1995 injuries by October 1995 when his medical category was reinstated allowing him to perform full duties. At this time, his job duties were not modified and his knee surgeries did not prevent him from working as many overtime hours as he was accustomed to working prior to the surgery. Both Mr. Howell and Dr. de Korompay saw his July 1995 surgery as having successfully resolved his knee problems. In February 1997, well past his October 1995 surgical recovery, Mr. Howell evaluated himself as being unable to perform certain general military duties due to ongoing knee injuries. At the time of completing these forms, Mr. Howell was aware that this would lead to his termination as he would be found to breach universality of service principles of the CAF. Mr. Howell sought this result as he had accepted the recommendation of his physician that he should retire from the CAF. Consistent with Mr. Howell's expectations and desires, the CAF eventually discharged Mr. Howell in March 1998 on the basis that he did not comply with universality of service. The issue of the applicability, content and context of the duty of universality of service in March 1995 does not arise in this case. The complainant failed to establish a prima facie case of discrimination. Further, even if such a case had been established, the Tribunal is bound by the ruling of Irvine v. CAF 2003 FCT 660 (T.D.) wherein the court ruled that while Meorin does apply retroactively to events that occurred prior to the 1999 ruling, it must be applied with a contextual appreciation of the universality of service policy as it existed in March 1995. Thus, had the analysis proceeded to assessment of the respondent's defence, in the facts of this case, I find that the respondent would have successfully advanced its universality of service defence. [71] Secondly, I do not find that the CAF contravened s. 7(b) of the Act. It did not differentiate adversely against Mr. Howell by refusing to accommodate his request for a knee brace during drill or an exemption from drill. Mr. Howell sought a knee brace which was not medically required for him to perform drill safely. While the CAF officers denied Mr. Howell the opportunity to obtain a chit excusing him from drill due to the fact that he did not have his knee brace with him, there is insufficient evidence before me to demonstrate that more probably than not Mr. Howell required the knee brace to safely perform drill. The morning of the drill, just a few hours prior to the drill parade, Mr. Howell played an aggressive game of basketball without his brace. If he was able to perform this type of physical activity without a brace, then he was equally capable of performing drill without a brace. Mr. Howell's conduct of playing aggressive basketball without a brace is consistent with the expert opinion of both orthopaedic surgeons, Dr. Randall and Dr. de Korompay. They agreed that the brace was not physically necessary for patients one year post-surgery. They agreed that one year post-surgery, the knee brace functions to provide psychological support to the wearer, rather than mechanical support. [72] In short, Mr. Howell was not entitled to demand accommodation of a medical condition by a brace without an objective basis for such accommodation. In the facts of this case, he did not have the right to hold out for his preferred means of accommodation. [73] I do not find that the CAF adversely differentiated against Mr. Howell by assessing him negatively on the JNCO course report. Mr. Howell successfully challenged that course report through grievance proceedings. The report was amended to his satisfaction. Mr. Howell testified that he was satisfied with the revised course assessment that continued to maintain instructor concerns about Mr. Howell's performance and attitude. Indeed, Mr. Howell did not grieve the course failure even though he grieved the course evaluation. As well, I find that had the drill incident not occurred Mr. Howell would have been unable to successfully complete the JNCO course for a number of other reasons. Although Mr. Howell was given a chit that he was fit for the JNCO course, Mr. Howell himself was less confident about his ability to participate in the course. He indicated that he would try his best. Secondly, the JNCO course had an added infantry component not found in the JLC course that would have required greater physical fitness than the earlier course, and he had received an RTU from the September 1994 JNCO course. Thirdly, Mr. Howell's ability to pass the physical components of the course were compromised by his March 7, 1995 fall on ice and, more importantly, by his March 27, 1995 head first fall down the stairs. [74] Thus, the complainant and the Commission have failed to establish a prima facie case of discrimination within the meaning of either section 7(a) or section 7(b) of the Act. B. Causation - July 1995 Injuries [75] Lastly, even if the analysis had proceeded to the assessment of quantum, I do not find that Mr. Howell could have successfully advanced the quantum claim he asserts. I find that Mr. Howell did not suffer significant immediate harm immediately following his drill participation. Immediately after the drill incident, Mr. Howell's knee felt painful and swollen. However he did not report to MIR until the next morning. In fact, he completed the rest of his CAF activities for the day without his brace. This conduct can be contrasted to the March 27, 1995 head first fall down the stairs. This was a severe injury. Immediately after this fall, Mr. Howell saw a physician and was advised that he was incapable of continuing with the course and that his category was changed. Had Mr. Howell suffered a debilitating injury due to the 40 minute drill, he would have reported to MIR immediately thereafter. I find that the drill incident did not materially contribute to Mr. Howell's pre-existing right knee problems: Using a common sense review of his complex medical history I find that the effect of the drill incident upon his right knee fell within the de minimus range. Had the drill incident not occurred, in light of his ongoing knee injuries, I find that Mr. Howell would have found himself in virtually the same medical situation as he experienced after the drill incident. [76] Dr. Randall confirms that individuals, such as Mr. Howell, who undergo ACL reconstruction will at some point develop degenerative changes both from the initial injury and subsequent wear due to high impact activities they resume following ACL reconstruction. Thus, irrespective of the drill incident, given his 1991 ACL reconstruction and the nature of his CAF duties, Mr. Howell would have suffered from degenerative change during his subsequent career with the CAF. I have already found that the injury observed by Dr. de Korompay in June / July 1995 was caused by the March 27, 1995 head first fall down a flight of stairs. Indeed, Dr. de Korompay freely acknowledged that a fall could have resulted in the damage that he observed in June and July 1995. I accept Dr. Randall's opinion that it was unlikely that Mr. Howell could have suffered a significant tear to his meniscus without an acute event such as the March 27, 1995 fall. VIII. CONCLUSION [77] The 1995 drill incident, and the subsequent JNCO course failure, did not constitute discriminatory practices contrary to section 7(a) of the Act. Nor did they lead to Mr. Howell's termination from the CAF in 1998 in light of pre-existing and intervening incidents. Rather, the fall of March 26, 1995, more probably than not, led to Mr. Howell's need for the July 1995 surgery. Mr. Howell recovered from this operation by October 1995. Thereafter, the April 1996 generator incident led to Mr. Howell's subsequent more serious knee injuries that led to his voluntary actions to secure release from the CAF. [78] The 1995 drill incident and the JNCO course failure did not constitute discriminatory practices contrary to s. 7(b) of the Act. Mr. Howell was not medically required to wear a knee brace during the drill incident, and any denial by the CAF of the opportunity to secure such a brace did not constitute discrimination. Mr. Howell was satisfied with the amended course evaluation post-grievance. I do not find that the CAF failed to accommodate Mr. Howell with respect to his disability. To the contrary, Sergeant Thompson made at least two attempts to accommodate Mr. Howell's requests prior to the drill incident. Further, throughout his career, and during the years of 1995 and 1996, the CAF accommodated Mr. Howell's needs for physical care for his knee condition. [79] Thus, I dismiss Mr. Howell's complaint in its entirety. [80] At the request of counsel I am not addressing the issue of costs herein. The parties may deal with them amongst themselves. If they are unable to agree, I retain jurisdiction to address this issue. Shirish P. Chotalia OTTAWA, Ontario September 23, 2004 PARTIES OF RECORD TRIBUNAL FILE: T817/6703 STYLE OF CAUSE: Ronald J. Howell v. Canadian Armed Forces DATE AND PLACE OF HEARING: February 9 - 11, 2004 April 27 - 29, 2004 May 3 and 7, 2004 Mat 18 - 20, 2004 Brandon, Manitoba June 30, 2004 Winnipeg, Manitoba DECISION OF THE TRIBUNAL DATED: September 23, 2004 APPEARANCES: David E. Swayze For the Complainant K.E. Ceilidh Snider For the Canadian Human Rights Commission Sid Restall / Kevin Staska For the Respondent 1Exhibit R-13. 2Exhibits R-1, R-2, R-3 and R-4. 3Exhibit C-51, Tab 116. 4Exhibit R-10, Tab 13, p. 8. 5Transcript Vol 5, p. 507, lines 5 - 15. 6Transcript Vol 6, p. 612, lines 21-25 and p. 613, lines 1-4. 7See diagnosis made by Dr. Ian McIntyre in his letter dated April 22, 2003 being Exhibit R-12. 8Transcript Vol 4, pp 96-98. 9Transcript Vol 4, p. 98, lines 6-10. 10R.S.C. 1985, c. H-6 [Act] 11CIF, 1998, c. 9, ss. 9 to 34 in force 30.06.98 see SI/98-79. 12Meiorin adopts the decision in Central Okanagan School District v. Renaud, [1992] 2 S.C.R. 984. 13Grismer at paras. 41 and 42. 14Meiorin, at para. 63. See also Chambly v. Bergevin, [1994] 2.S.C.R. 525 at 546. 15Canada (Attorney General) v. Morgan (1992), 2 F.C. 401 (F.C.A.).

2004 CHRT 32

CHRT

Benoit v. Bell Canada (Quebec)

en

2004-10-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7089/index.do

2023-12-01

Benoit v. Bell Canada (Quebec) Collection Canadian Human Rights Tribunal Date 2004-10-05 Neutral citation 2004 CHRT 32 File number(s) T866/11603 Decision-maker(s) Hadjis, Athanasios Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MICHEL BENOIT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA (qUEBEC) Respondent REASONS FOR DECISION MEMBER: Athanasios D. Hadjis 2004 CHRT 32 2004/10/05 I. FACTS II. LEGAL FRAMEWORK III. ANALYSIS A. Prima facie case B. Respondent's Explanation [1] The Complainant alleges that the Respondent (Bell) discriminated against him on the basis of his disability (alcoholism) by terminating his employment, in violation of s. 7 of the Canadian Human Rights Act. The Complainant acted on his own behalf at the hearing. The Respondent was represented by legal counsel. The Canadian Human Rights Commission (Commission) opted to not appear at the hearing. I. FACTS [2] The Complainant began working for Bell in 1973, as a technician. By 1990, he held the position of Director - Installations and Repairs. [3] In 1996, Bell established a division called Gateways", which dealt exclusively with the company's largest clients. Gateways' mandate was to sell, install and maintain telecommunications equipment. Gateways operated as an autonomous enterprise within Bell. Its continued existence was, however, conditional on its generating a profit, failing which Bell intended to dismantle the project. To improve the venture's chances of success, Bell transferred in its top-rated or elite technicians and managers. [4] The Complainant was transferred into the Gateways division in 1997. There were four levels of management employees within Gateways, ranging from D", the lowest, up to A. The Complainant was employed at Level D. His duties entailed the supervision of 10 to 15 technicians who installed or repaired customers' equipment. Level D directors worked independently and many, including the Complainant, worked remotely from home. Although the Complainant was assigned some office space within one of Bell's buildings, he only attended it occasionally. He was provided with a company vehicle with which he drove to the sites where his technicians were working. Level C and D managers held meetings periodically, either at Bell's offices or at outside locations such as restaurants. [5] The Complainant stated at the hearing that he has had an alcohol dependency problem for most of his adult life. Bell maintains a program offering assistance to its employees facing any number of difficulties in their lives, including substance abuse. In 1990, under the auspices of this program, the Complainant received his first alcohol dependency treatment, which was paid for by Bell. He took a leave of absence from work for about three months and completed the treatment with success. [6] By 1995, the Complainant began to consume alcohol again. He did not disclose the recurrence of his alcohol problem to Bell but somehow, in 1997, rumours of alcohol abuse reached senior management. The Complainant was called to a meeting with a Level B senior executive, John Moon, regarding these reported suspicions. The Complainant convinced Mr. Moon that the allegations were false and unfounded. [7] Shortly after this meeting, the Complainant was assigned to a team within Gateways that fell under the supervision of Garry Prévost, a Level C director. The Complainant informed Mr. Prévost that he had recently met with Mr. Moon about a personal problem without specifying to what it related. The Complainant suspects that Mr. Moon may have provided Mr. Prévost with all the details about the meeting but he does not have any direct evidence to support his contention. In fact, the Complainant acknowledges that the only personal problem he ever discussed with Mr. Prévost related to certain marital difficulties he was experiencing. [8] Mr. Prévost eventually alluded to these personal problems in the Complainant's 1998 annual assessment, which was prepared in February 1999. Mr. Prévost noted that the Complainant had achieved very good results in his sector despite a personally very disturbing period. Both the 1997 and 1998 evaluations were positive overall. Mr. Prévost commented that the Complainant was ready to be promoted to the next level. [9] In 1999, the Complainant was transferred to a team headed by Jean-Guy Boucher, a Level C Director. Mr. Boucher testified that he spoke to Mr. Prévost about the Complainant on the occasion of the transfer, but all discussions related to performance. There was no mention made by Mr. Prévost of the Complainant's personal problems. All of Mr. Prévost's directors were eventually transferred to Mr. Boucher's team and personal matters were never discussed with respect to any of them, according to Mr. Boucher. [10] Gateways' unionized technicians went on strike in 1999 and Level D directors took over their tasks. They worked in teams of two, driving out to customers' locations to install and repair equipment. One of the directors complained to Mr. Boucher that the Complainant smelled of alcohol and asked that she no longer be assigned to work with him. The possibility that a member of his team was driving while on the job in an intoxicated state was of great concern to Mr. Boucher. Instead of confronting the Complainant with the complaint, Mr. Boucher opted to instruct Bell's internal security team to investigate. The Complainant was observed undercover over several days and a report was provided to Mr. Boucher stating that no significant drinking had been detected. The Complainant was viewed having an occasional beer or two at lunch, nothing out of the ordinary. Consequently, Mr. Boucher considered the matter closed. [11] The Complainant confirmed in this testimony that he was by this time going to great pains to conceal his drinking habit. He was consuming excessively only when at home, not while at work. Prior to any scheduled meetings with other directors, he refrained from drinking and he took special medication to suppress any bodily shakes. He acknowledges that he did not show up at work glassy-eyed and that he walked at a normal gait. He spoke coherently. Basically, he never showed up drunk at work. However, although he may not have been drinking while on the job, there may have remained a residual odour on him from his previous night's consumption of alcohol, which was probably what his colleague had detected during the strike period. [12] Through the course of 1999, certain deficiencies in the manner with which the Complainant managed his crew began to emerge. He was not doing on-site supervision on a daily basis and generally, his management style was not being executed in a tight fashion, according to Mr. Boucher. He was arriving late to scheduled meetings with other directors or failing to attend altogether. The Complainant explained in his testimony that he tried to steer clear of meetings that were conducted in restaurants or brasseries in order to avoid the temptation to drink in the presence of his colleagues. [13] Early in 2000, Mr. Boucher met with the Complainant to discuss his 1999 assessment, which was being prepared at that time. Mr. Boucher raised these performance issues with the Complainant. He also confided to the Complainant that during the strike, security agents had been assigned to investigate into his possible alcohol abuse, but their report proved negative. The Complainant assured Mr. Boucher that this finding was correct and that he did not have an alcohol problem. The Complainant explained in his testimony that his response was typical of an alcoholic who refuses to recognize that he has an addiction. [14] The Complainant's situation worsened over the summer of 2000. He had undertaken the sole care of his daughter while his spouse was away for about two weeks, and had therefore decided to stop drinking entirely during this period. By August 9th, he was in terrible shape due to the withdrawal symptoms he was experiencing. He realized that he needed help and decided to turn to Mr. Boucher for assistance. Early that morning, the Complainant telephoned him at his home. Mr. Boucher could tell from the Complainant's voice that he was in crisis. The Complainant told Mr. Boucher that he had an alcohol problem and wanted Bell's assistance to free himself of it. Mr. Boucher met up with the Complainant and drove him directly to Bell's Disability Management Group (DMG) facility situated within Bell's downtown Montreal offices. The DMG was responsible for the management of the health-related benefits to which Bell employees were entitled, including the treatment of substance abuse. [15] While being driven in, the Complainant told Mr. Boucher that he was an alcoholic and that he needed help. The Complainant explained that it was his fear of revealing his drinking problem that had prevented him from attending meetings with colleagues. Mr. Boucher testified that the Complainant also admitted that he encountered certain financial difficulties on account of his alcoholism, which he tried to resolve by filing a false expense claim. The Complainant adamantly denied this allegation in his testimony at the hearing. [16] The Complainant met with a physician on staff with the DMG, and was immediately referred to and placed in a treatment program. It consisted of three weeks of closed treatment during which he resided in the clinic full-time, followed by a four-week period of half-day treatments for which he travelled in from home, and a series of group therapy sessions for three months thereafter. The treatment was successful and the Complainant has managed to keep his alcohol problem under control to this day. The cost of the treatment was paid for by Bell. [17] The clinic had instructed the Complainant to not enter into any contact with his employer, including Mr. Boucher, during the course of the treatment. At the close of the initial stage, on September 26, 2000, the Complainant's physician issued a certificate authorizing his return to work on October 2, 2000. The same day, the Complainant picked up a voice-mail message from Rachel Turcotte, a representative of Bell's Employee Development Centre (EDC) otherwise known as Carrefour Carrière. The EDC provided training and counselling to Bell employees who had lost their positions and served as a referral service for other positions within the company. Ms. Turcotte advised the Complainant that he could begin using the services of the EDC starting October 10, 2000. He was shocked at the implication of this news and contacted Mr. Boucher immediately. Mr. Boucher met the Complainant and confirmed that he had been selected for a voluntary departure from his employment. The Complainant would be reassigned to Carrefour Carrière for a duration of three months. If at the end of this period the Complainant had not managed to find other employment within Bell, he would have no effective choice but to take early retirement. A special enhanced early retirement package was presented to him, one that would significantly increase the pension from what he would have ordinarily been entitled to, as well as provide him with a lump sum payment equivalent to four months' pay. This news was obviously most upsetting to the Complainant, particularly as it came just after completing the clinical portion of his alcohol dependency treatment. [18] Mr. Boucher testified as to the circumstances that led to the Complainant's dismissal from his position at Gateways. In 1996, there were between 550 and 600 Bell employees working within Gateways' Quebec division. The Gateways venture did not prove viable and by 2003, when the division was dismantled entirely, the number had been reduced to about 300. Mr. Boucher's team dropped from about 19 directors and 250 technicians to 11 directors and 125 technicians. Overall, Mr. Boucher estimates conservatively that more than 20,000 employees have left Bell since 1995. The company had determined that it had a surplus of management personnel and initially, it tried to reduce their numbers by offering them voluntary departure packages that included early retirement benefits with substantial bonuses. However, not enough directors opted to accept these offers and as a result, the company determined that some of its management staff would have to be released. Employees who were targeted for release were entitled to receive similar packages, which curiously continued to be referred to as voluntary in the documentation submitted to the departing employees. [19] It was in this context that during his summer holidays in July 2000, Mr. Boucher received a call at home from his own supervisor, a Level B director named Pierre Moody. Mr. Moody explained to him that five management positions had to be eliminated within the Quebec region, including two from Mr. Boucher's own team and two more from another team that he was temporarily managing. Mr. Moody and Mr. Boucher testified that they quickly passed through the list of directors and, within a matter of five minutes, had agreed upon the first choice for dismissal æ the Complainant. They were both of the view that all of the directors, including the Complainant, were outstanding performers, Gateways was after all composed of Bell's elite employees. However, they also concurred that the Complainant was unquestionably the weakest candidate amongst the strong group. Mr. Boucher and Mr. Moody had spoken to each other in the past with respect to the Complainant's failure to supervise his team as tightly as the other directors. [20] The two managers were unable to agree, however, on who should be the second director to be released. Mr. Boucher eventually convinced senior management to take into account that another Level D director had been dismissed several months earlier. In addition, Mr. Moody released Mr. Prévost (Level C) and two acting Level D directors were returned to their lower level permanent positions. Consequently, Mr. Moody's target of five employees was met. No one other than the Complainant was let go from Mr. Boucher's own team. [21] These departures were scheduled to be announced simultaneously in the second week of August 2000. However, Mr. Boucher informed Mr. Moody that the Complainant was being treated for a serious personal problem and they therefore decided it would not be appropriate to make the announcement to him at that time. He would be informed of the decision upon his return to work. Mr. Moody and Mr. Boucher both expressed regret at the hearing for the sudden manner with which the Complainant was notified of his release. Mr. Boucher had intended to meet the Complainant face to face upon his return to work and inform him of the decision. Unfortunately, Ms. Turcotte, who had been advised in advance of the Complainant's impending referral to Carrefour Carrière, chose to call and welcome him to the centre. She was unaware that he had yet to be notified of his release. [22] While assigned to Carrefour Carrière, the Complainant attended all of the compulsory workshops and training sessions. He acknowledged, however, that he did not consult Carrefour Carrière's job referral service more often than perhaps once a week, and may have even skipped a week on occasion. He did not apply for any other position at Bell over the course of the three months that he was assigned to Carrefour Carrière. The Complainant testified that he was not qualified for any of the positions posted. Moreover, he was certain that no other manager would hire him since his personal file would have clearly indicated that he was returning from an extended medical leave. In any job interview, he would have been asked to give the reason for his absence, which would have obliged him to reveal his alcohol problem and the fact that he was just coming off of a recovery program. The hiring manager would also likely learn of the medical problem from the candidate's previous manager, who would be consulted before any hiring decision would be made. Under these circumstances, no one at Bell would ever have hired him again. [23] The Respondent contends that the Complainant's concerns were unfounded and unjustified. Mr. Boucher testified that when applying for another position within the company, a director is only required to produce his curriculum vitae. The hiring manager could, at the interview stage, ask to view the candidate's prior annual performance assessments. The employee's absenteeism record would only warrant further inquiry in the case of a series of many recurring absences of short duration. A single absence of an extended period would likely be interpreted as being medically related and would not be a consideration in the hiring decision. The DMG never releases any details about an employee's medical file and according to company policy, even if a manager somehow learns of a candidate's medical condition, he or she is forbidden from treating it as a factor in the hiring decision. [24] The Complainant claims that the Respondent chose to terminate him even though other staffing options were available. This indicates, he argues, that the principal factor in the decision to dismiss him was his alcohol dependency. The Complainant referred specifically to the case of his fellow Level D Gateways director, Michel Lecompte. At the same time as the employer was looking to eliminate five managerial positions within Gateways' Quebec division, Mr. Lecompte had applied to transfer out of Gateways to another branch of Bell known as Technology and Network (T & N). Mr. Lecompte's transfer was withheld, however, until December 2000. Had it been granted earlier, Mr. Boucher would have met his staff reduction target without dismissing the Complainant. Moreover, Mr. Lecompte's departure left an opening that could have been offered to the Complainant but no such offer was forthcoming. [25] The Respondent disagrees with the Complainant's contention. Mr. Boucher noted that Mr. Lecompte managed the most elite team within the Gateways division, known informally as the SWAT team. Its crew was made up of the most knowledgeable and specialized technicians, who dealt with the largest equipment installations. Mr. Lecompte's management of these individuals had to be very tight, calling for direct supervision in all respects. Furthermore, as the head of the SWAT team, Mr. Lecompte was required on a daily basis to deal directly with customers, a responsibility that the other directors did not have. Mr. Lecompte testified that in his opinion, any Level D director could have done his job, but Mr. Boucher disagreed, suggesting that perhaps Mr. Lecompte was simply unaware of his own special talents. Mr. Boucher claims that of the roughly fifteen directors in his team at the time, no more than three were qualified to run the SWAT team. The Complainant was not among them. [26] Mr. Lecompte's request for a transfer came in late August or early September, well after the July date when the Respondent alleges the decision to release the Complainant was made. Mr. Boucher felt that Mr. Lecompte was too valuable to the team so the initial request for a transfer was turned down. Around the month of October 2000, a new Level C director, Christiane Fontaine, formally replaced Mr. Boucher. Mr. Lecompte took this opportunity to file a new request for a transfer, and it was approved on December 18, 2000. Mr. Boucher testified that although he was no longer managing this team, he actively assisted Ms. Fontaine during the period of transition. It was therefore he who in effect approved Mr. Lecompte's transfer. Mr. Boucher was also the person who decided to replace Mr. Lecompte with another director from within the team, Ronald Gagnon, one of the few Level D directors whom Mr. Boucher felt was able to lead the SWAT team. Mr. Boucher testified that there was no question of recalling the Complainant to take over Mr. Lecompte's position - the Complainant was simply not qualified. [27] In the fall of 2000, Bell issued a new directive for 2001, mandating a reduction of five more managerial positions within Mr. Moody's section. For this reason, the official elimination of Mr. Gagnon's old position, which was based in Quebec City, was postponed until January 2001 so as to be tallied amongst those job reductions. This meant that there remained no vacancy within the division into which the Complainant could be reassigned. In accordance with the directive, four more Level D directors from Mr. Boucher's section were let go in 2001. He describes these individuals as experienced and outstanding managers. None of them were replaced after their forced departures. [28] The Complainant's assignment to Carrefour Carrière came to an end on January 2, 2001. Since he had not obtained another position within Bell by then, his only option was to accept the enhanced retirement package. Between January and May 2001, he provided some services to Bell as a private contractor. In November 2001, the Casino de Montréal hired him as a slot machine attendant. He remains employed by the Casino but only on a casual basis. His twelve-hour shifts are longer than when he was employed at Bell, and he often works overnight and weekends. According to the Complainant, Casino employees have few opportunities for advancement. II. LEGAL FRAMEWORK [29] It is a discriminatory practice, under s. 7 of the Act, to dismiss an employee on the basis of a prohibited ground of discrimination. Addiction to alcohol is considered a disability, which is a prohibited ground (see Crouse v. Canadian Steamship Lines Inc., [2001] C.H.R.D. No.12 at para. 56 (C.H.R.T.) (QL). [30] As the Supreme Court of Canada stated in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28, the burden of proof is on a complainant to establish a prima facie case of discrimination. A prima facie case in this context is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour, in the absence of an answer from the respondent. Once the prima facie case is established, the onus then shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. If a reasonable explanation is given, it is up to the complainant to demonstrate that the explanation is merely a pretext for discrimination (see Basi v. Canadian National Railway Company (No. 1) (1988), 9 C.H.R.R. D/5029 at para. 38474 (C.H.R.T.); Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at paras. 17-23). [31] The Federal Court of Appeal noted, in Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 at para. 7, that discriminatory considerations need not be the sole reason for the actions at issue in order for the complaint to be substantiated. It is sufficient that the discrimination be one of the factors in the employer's decision. III. ANALYSIS A. Prima facie case [32] The Complainant has established, as alleged in his complaint, that he was told he would be removed from his position while still being treated for his alcohol dependency. Bell possessed information about the Complainant's alcohol-related problems going back to 1990, when he entered his first alcohol dependency treatment program. The Complainant was the only person from Mr. Boucher's team dismissed during the summer of 2000 round of job cutbacks. The dismissal came within weeks of the Complainant's open admission to Mr. Boucher of his alcoholism. Mr. Lecompte testified that he asked to be transferred out of Gateways but was turned down just a few days before the Complainant was informed of the dismissal. The Complainant contends that Bell could have chosen to accept Mr. Lecompte's request and cancel the plan to dismiss the Complainant. The decision to do otherwise, argues the Complainant, demonstrates that Bell's motives for its actions were not really to reduce staff, but rather to release the Complainant due, at least in part, to his alcohol problem. [33] I am satisfied that these allegations, if believed, would be complete and sufficient to justify a verdict in the Complainant's favour, in the absence of an answer from the Respondent. A prima facie case has been established. B. Respondent's Explanation [34] The Respondent contends that the Complainant was dismissed in the course of widespread job cutbacks throughout Bell. He was selected from amongst his colleagues because of certain deficiencies regarding his performance when compared to the others. Both Mr. Boucher and Mr. Moody testified that the decision to dismiss the Complainant was theirs alone and that the matter of his alcoholism was not a factor at all in their decision. I found these individuals credible and forthright, and for the reasons set out below, I have determined their explanation to be reasonable. This is not to say that the Complainant's evidence was false or misleading. To the contrary, I found him sincere and refreshingly candid. But simply put, the facts, as they were revealed in the hearing, served to substantiate the Respondent's explanation. [35] The evidence is undisputed that Bell, in its attempt to deal with ever-increasing competition, has over the years significantly reduced the number of its employees. These cutbacks have extended to the managerial level. The Complainant was not alone in being targeted by this strategy of forced departures. A Level C director was also dismissed at the same time as him, and two acting Level D directors were returned to their lower level duties. More revealing is what transpired in the following months and years: five additonal Gateways managerial positions were eliminated in 2001 and another five or six in 2002. In 2003, even Mr. Moody was affected by the employer's strategy. He was released from his Level B position and sent to Carrefour Carrière. It is clear that the Complainant was not alone in being terminated. He was one of many persons affected by widespread changes within the company. [36] In any event, I accept the evidence of Mr. Boucher and Mr. Moody that they had no knowledge about the Complainant's alcohol dependence problem in advance of their decision to terminate him, which was made weeks before the Complainant called upon Mr. Boucher's assistance to get to a treatment centre. The Complainant himself testified that he explained to Mr. Boucher the nature and extent of his alcoholism during his phone call of August 9, 2000, and their subsequent drive in Mr. Boucher's car. If Mr. Boucher knew of the problem, why was the explanation necessary? [37] The Complainant referred back to the incident involving his colleague who refused to work with him during the strike on account of the scent of alcohol emanating from him. The Complainant argues that Mr. Boucher knew, or should have known, of the Complainant's problem at this point. Mr. Boucher, however, received independent information from Bell's security service that the Complainant was not drinking abusively. In fact, the Complainant made the same affirmation directly to Mr. Boucher during the performance assessment interview, and he testified that he was successfully hiding his dependency from everyone at work and even from his family at home. The evidence is that the Gateways directors worked independently and only met periodically. There was little opportunity for Mr. Boucher to personally draw any other conclusion than that the Complainant was in fine health. [38] It may well be that as a corporation, Bell had knowledge about the Complainant's prior alcohol dependency treatment, which took place in 1990. However, aside from the fact that the company's Disability Management Group held this information in confidence and would not have revealed it to other Bell employees, almost a decade had passed and the Complainant had not made another formal request for additional assistance. Furthermore, by his own account the Complainant convinced Mr. Moon, during their meeting in 1997, that he did not have a drinking problem. The Complainant also acknowledged that he did not speak to his director, Mr. Prévost, about his alcoholism either. In sum, there is no evidence to demonstrate that either Mr. Boucher or Mr. Moody had any way of knowing about the Complainant's alcoholism. [39] The Complainant produced a document at the hearing that appears to emanate from Bell, which the Commission communicated to the Complainant as part of its disclosure. No one at the hearing could definitively explain the origins of the document. The document was entitled Log sheet. Directors ordinarily wrote down their working notes with respect to their staff's performance on log sheets. The document in question refers to the rumours of alcohol abuse that led to the Complainant's meeting with Mr. Moon. It also refers to some of the deficiencies in his work performance. Mr. Boucher acknowledged that he used to prepare log sheets with respect to his directors, but denies having been involved in the preparation of the document produced by the Complainant at the hearing. Indeed, the document appears to be a compilation of numerous log sheets, dating back to early 1998, at least a year before Mr. Boucher became the Complainant's supervising director. Mr. Boucher claims he never saw the document before the hearing and maintains that he had no knowledge of any alcohol-related incident in the past, involving the Complainant. Having examined the document closely and considered all of the evidence presented at the hearing, I am persuaded that Mr. Boucher did not prepare the document. The format and syntax of the text suggests that it was written by a third party who compiled the information from numerous log sheets. This document cannot, therefore, be relied upon to advance the notion that Mr. Boucher was aware of the Complainant's alcoholism prior to the July 2000 decision to dismiss him. [40] The Complainant contends that over the years, sufficient indicia of his disability came before the Respondent, which should have prompted it to intervene more actively in his case. He claims that had Bell referred him to treatment at an earlier stage, both his health and his work performance would not have deteriorated to the same extent. An improved work record would have in turn meant that he would not have been the first person selected for release in the summer of 2000. [41] This raises a related point. Mr. Boucher and Mr. Moody claim that they selected the Complainant for dismissal based on his weaker performance record, when compared with the other managerial employees. The Complainant appears to suggest in his submissions that the deficiencies in his performance were linked to his disability, alcoholism. In such circumstances, choosing to terminate an employee because of his poor performance may in fact be discriminatory. In effect, the disability becomes a factor in the decision to dismiss (see eg. Desormeaux v. Ottawa-Carleton Regional Transit Commission 2003 CHRT 2 at para. 72; Parisien v. Ottawa-Carleton Regional Transit Commission 2003 CHRT 10 at para. 46). [42] However, in the present case, the Complainant, by his own admission, deliberately and successfully misled his supervising directors into sincerely believing that he was not an alcoholic. Although an employer has a duty to inform itself about an employee's disability and how the person can be accommodated, it seems only logical and fair that this duty should not be extended to situations where the employer does not in good faith have any knowledge whatsoever of the employee's disability. [43] This is certainly the case before me. The Complainant performed an excellent job of negating the indicia that he claims were placed before his employer. His ability to conceal his secret was aided by the fact that the Complainant only occasionally met Mr. Boucher, thereby restricting the latter's opportunities to view any outward symptoms of the disability. [44] The Complainant, in asserting that the Respondent should have compelled him to seek treatment years before he was dismissed, seems to be implying that the Respondent failed in its duty to accommodate him and his disability. It may well be, as the Complainant claimed in his testimony, that his denial of the existence of a problem was a symptom of the disease, and that he should not be faulted for this. However, there must be a limit to this principle. The employer had put in place a mechanism to accommodate the Complainant's disability, which was quite effective as evidenced by the fact that the Complainant called upon the service twice during his career at Bell. But the accommodation remained contingent on one basic component - the employee's responsibility to take matters into his own hands and ask for help. As was pointed out by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, the search for accommodation is a multi-party inquiry, that commands an active participation on the part of the complainant. In the present case, the Complainant did not make any such effort prior to his telephone call to Mr. Boucher on August 9, 2000. To the contrary, he deliberately misled the employer regarding his health. I am not, therefore, persuaded by this submission. [45] The Complainant put forth the evidence of Mr. Lecompte's transfer to T & N to demonstrate that the Respondent's explanation was pretextual. If Bell's intention in dismissing the Complainant was merely to reduce by one the number of management employees within Mr. Boucher's team, this goal could have been achieved by granting Mr. Lecompte's first request to transfer out of Gateways. However, as I have already indicated, I accept the evidence of Mr. Boucher and Mr. Moody that their decision to dismiss the Complainant was made in July, a month or more prior to Mr. Lecompte's transfer request. It was entirely within their prerogatives, as senior managers, to deny Mr. Lecompte his transfer. I see no reason to impugn this decision in the context of this human rights inquiry. As for the Complainant's assertion that he should have been assigned to replace Mr. Lecompte, I find the Respondent's reply persuasive æ the Complainant was not qualified to replace Mr. Lecompte. It is not in dispute that Mr. Lecompte headed the most elite of Gateways' teams. On the other hand, weaknesses had been identified with respect to the tightness of the Complainant's management style. It was reasonable for the Respondent to not have considered the Complainant as an appropriate replacement for Mr. Lecompte. [46] For all of the above reasons, I am not convinced that the Complainant's alcoholism was a factor in the decision to terminate his employment and I find the explanation provided by the Respondent reasonable. I have not been persuaded that the explanation was pretextual. [47] The complaint is therefore dismissed. signed by Athanasios D. Hadjis OTTAWA, Ontario October 5, 2004 PARTIES OF RECORD TRIBUNAL FILE: T866/11603 STYLE OF CAUSE: Michel Benoit v. Bell Canada (Quebec) DATE AND PLACE OF HEARING: May 17 to 20, 2004 Montreal, Quebec DECISION OF THE TRIBUNAL DATED: October 5, 2004 APPEARANCES: Michel Benoit On his own behalf Johanne Cavé For the Respondent

2004 CHRT 33

CHRT

Sanusi v. Brown

en

2004-07-26

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7090/index.do

2023-12-01

Sanusi v. Brown Collection Canadian Human Rights Tribunal Date 2004-07-26 Neutral citation 2004 CHRT 33 File number(s) T841/9103 Decision-maker(s) Pensa, Claude, Q.C. Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE SERINA SANUSI Complainant - and - Leroy Brown Respondent REASONS FOR DECISION MEMBER: Claude Pensa, Q.C. 2004 CHRT 33 2004/07/26 [1] This hearing was convened on Monday, July 26, 2004 in Toronto. At the commencement of the hearing, the Tribunal Registry Officer read the Case for Hearing and called for appearances. Mr. D. McLeod was present and appeared on behalf of the respondent, Leroy Brown, who was also in attendance. [2] The complainant, Serina Sanusi was not present at the hearing, nor was anyone present who appeared on her behalf. [3] The Tribunal adjourned for 15 minutes and upon resumption of the hearing, the Registry Officer asked whether Serina Sanusi or a representative of Serina Sanusi was in attendance at the proceedings. This was the second time this was asked and again there was no response. [4] The affidavit of service of Donna Chiappa, Process Server, was filed. The affidavit set out that the complainant, Serina Sanusi, was personally served on July 16, 2004 with a Tribunal letter dated July 13, 2004, which enclosed a Tribunal letter dated June 4, 2004 with the following enclosures: copy of the CHRT Interim Rules of Procedure, the Tribunal Publication What Happens Next", as well as a revised Notice of Postponement indicating that this hearing would proceed on July 26, 2004 at the Federal Court of Canada in Toronto, Ontario. These documents were filed as Tribunal Exhibit no. T-1. [5] The Canadian Human Rights Commission did not attend the hearing and did not call any evidence or provide any evidence in support of the complaint. No evidence was called by the complainant in support of the complaint. [6] Accordingly, I find that the complaint has not been substantiated and the complaint is hereby dismissed under s. 53(1) of the Canadian Human Rights Act. Signed by Claude Pensa TORONTO, Ontario July 26, 2004 PARTIES OF RECORD TRIBUNAL FILE: T841/9103 STYLE OF CAUSE: Serina Sanusi v. Leroy Brown DATE AND PLACE OF HEARING: July 26, 2004 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: July 26, 2004 (Written decision forwarded to the parties on November 3, 2004) APPEARANCES: Mr. D. McLeod For the Respondent, Leroy Brown

2004 CHRT 34

CHRT

Guay v. Canada (Royal Canadian Mounted Police)

en

2004-11-18

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7087/index.do

2023-12-01

Guay v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2004-11-18 Neutral citation 2004 CHRT 34 File number(s) T914/3404 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JOHANNE GUAY Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL CANADIAN MOUNTED POLICE Respondent RULING ON PRELIMINARY QUESTIONS 2004 CHRT 34 2004/11/18 MEMBER: Michel Doucet [TRADUCTION] I. PRELIMINARY ISSUES RAISED BY THE COMPLAINANT AND THE COMMISSION A. First issue: amendments to the complaint form to add allegations of retaliation contrary to section 14.1 of the Act B. Second issue: order amending the complaint to add three new respondents. II. PRELIMINARY ISSUES RAISED BY THE RESPONDENT A. First issue: amendment to the style of cause B. Second issue: medical records 8 C. Third issue: production of notes taken by the Complainant during conversations with Inspector Marc Proulx III. CONCLUSION [1] The Tribunal has before it several preliminary issues raised by the parties regarding a complaint filed on September 23, 2002 by Johanne Guay (the Complainant) with the Canadian Human Rights Commission (the Commission) in which she alleged that the Royal Canadian Mounted Police (the Respondent) discriminated against her contrary to sections 7 and 14 of the Canadian Human Rights Act R.S.C. 1985, c. H-6 (the Act). [2] In their motions, the Complainant and the Commission seek an amendment to the complaint form to add allegations of retaliation contrary to section 14.1 of the Canadian Human Rights Act R.S.C. 1985, c. H-6 and an order amending the complaint to add three new respondents. [3] The Respondent requests that the style of cause be changed to show the Attorney General of Canada as the respondent instead of the Royal Canadian Mounted Police. It also seeks an order serving several physicians and the Royal Canadian Mounted Police Health Services with a subpoena duces tecum, ordering them to disclose the Complainant's medical records, clinical study notes, consultation reports, test results and laboratory examination results between January 1, 2000 and the present. Alternatively, it seeks an order requiring the Complainant to agree to this disclosure. It also seeks an order requiring the Complainant to disclose the names of all health professionals that treated her between January 1, 2000 and the present and that they be served with a subpoena duces tecum. [4] The Respondent also seeks an order requiring the Complainant to disclose the notes she took during her conversations with Inspector Marc Proulx and all other relevant notes she may have in her possession. [5] Finally, it seeks an order extending the communication time set out in Rule 6(1) of the Canadian Human Rights Tribunal Interim Rules of Procedure to 30 days following receipt of the health information sought. I. PRELIMINARY ISSUES RAISED BY THE COMPLAINANT AND THE COMMISSION A. First issue: amendments to the complaint form to add allegations of retaliation contrary to section 14.1 of the Act [6] The Complainant and the Commission made a motion pursuant to Rule 3(1) of the Canadian Human Rights Tribunal Interim Rules of Procedure. The purpose of the motion is to amend the complaint to add the ground of retaliation set out in section 14.1 of the Act. They allege that, subsequent to the filing of the complaint signed by the Complainant on September 23, 2002, the Respondent, by the actions of its employees, took retaliatory action against the Complainant. [7] In Schnell v. Machiavelli and Associates Emprize Inc. and Micka, rendered on April 25, 2001, the Tribunal set out in paragraph 12 the test to apply in such a case: With respect to the Commission's application to amend the complaint, the test as enunciated by this Tribunal is whether the nature of the allegations of retaliation are linked, at least by the complainant, to the allegations giving rise to the original complaint. The fact that the proposed amendment involves a different section of the Act in issue in the original complaint does not deprive the Tribunal of jurisdiction to allow such an amendment. There is a discretion in the Tribunal to amend the complaint to deal with additional allegations, provided that sufficient notice is given to the respondents to enable them to properly defend themselves. [8] In its written submissions, the Respondent did not object to the amendments requested by the Complainant and the Commission, provided that it receives sufficient notice enabling it to reply to the new allegations. [9] Since the hearing in this case has been postponed to March 8, 2005, there is no question that the Respondent has enough time to reply to the new allegations. [10] Therefore, the Tribunal grants the Complainant's and the Commission's motion. It also gives the Respondent 21 days from the date of the present decision to submit a written response to these new allegations, if it so desires. [11] The complaint is hereby amended to include the allegation of retaliation in accordance with section 14.1 of the Act. B. Second issue: order amending the complaint to add three new respondents. [12] The Commission and the Complainant seek an order adding Messrs. Marc Proulx, Normand Goulet and Denis Fortin as respondents. The Complainant and the Commission allege that these individuals are responsible for the harassment that the Complainant claims she was subjected to and that they committed retaliatory action against the Complainant after the complaint was filed with the Commission. [13] In support of its motion, the Commission maintains that Marc Proulx and Normand Goulet were referred to in the complaint, and they were questioned by the Commission's investigator. It adds that the addition of these new parties, with respect to the retaliation, was not reasonably foreseeable at the time the complaint was filed but that it has now become necessary to dispose of this aspect of the complaint. [14] According to the Commission, if the Respondent, as the employer of these individuals, is indeed responsible for the discriminatory acts that they may have committed in the course of their employment under section 65 of the Act, the fact still remains that they are discrete persons. [15] The Respondent argues that the addition of the three members of the Royal Canadian Mounted Police is unnecessary and will only complicate the proceeding and unnecessarily prolong the hearing. [16] In Desormeaux v. Ottawa-Carleton Regional Transit Commission, T701/0602, October 2, 2002, vol. 1, p. 46, the Tribunal pointed out that paragraph 48.9(2)(b) of the Act specifically contemplates the addition of parties to the proceedings before the Tribunal. Subsection 48.9(2) also provides for the Tribunal to make rules of procedure governing the procedure before it. [17] Two of the Tribunal's relatively recent decisions deal directly with this issue: Syndicat des employés d'exécution de Québec-Téléphone, Section Locale 5044 du SCFP v. Telus Communication (Québec) Inc., 2003 CHRT 31 (hereafter Telus) and Brown v. National Capital Commission, 2003 CHRT 43 (hereafter Brown). [18] In Telus, the Tribunal indicated that, although the Act gives the Tribunal the power to add parties to a proceeding when the Tribunal deems it appropriate, the legislative context surrounding this discretionary power argues for a measure of restraint or caution. The Tribunal pointed out that the Act provides for, in dealing with complaints of discrimination, a carefully developed process of investigation and inquiry in which both the Commission and the Tribunal have clearly defined roles. The addition of parties during a proceeding before the Tribunal deprives the new respondent of the benefit of certain means of defence it can normally have access to at the stage of the screening of a complaint by the Commission, notably the possibility of having the complaint dismissed without the need for an inquiry. [19] The Tribunal found, at paragraph 30, that the forced addition of a new respondent once the Tribunal has been charged with inquiring into a complaint is appropriate...if it is established that the presence of this new party is necessary to dispose of the complaint before the Tribunal and that it was not reasonably foreseeable, once the complaint was filed with the Commission, that the addition of a new respondent would be necessary to dispose of the complaint [translation]. In Telus, the Tribunal refused the addition of the third party, namely the Syndicat des Agents de Maîtrise de Québec-Téléphone (the SAQT). The Tribunal believed that the impleading of the SAQT would be prejudicial to it from a procedural fairness standpoint. [20] In Brown, the Tribunal indicated that it can add a party when such a measure is necessary to decide all of the matters in dispute or provide a complete and effective solution of the matter before it. The member added another factor, which in his view is more significant than the question of foreseeability. He stated that the purpose of the Act is to remedy discrimination and that the Tribunal's power to add parties must be subordinated to that purpose. Human rights proceedings have a constitutional component that is often missing in civil proceedings. Since the litigation before the Tribunal is public interest litigation, the rules regarding the addition of parties must reflect the mandate of the Tribunal, which is to provide an effective remedy for discrimination. In Brown, the addition of a new party was requested not because the party was considered directly liable for the discrimination, but rather because it was considered essential for a more appropriate enforcement of the decision against the original respondent. [21] The original party in Brown was the National Capital Commission (the NCC). It became evident during the hearing that the solution to the problem that the Tribunal had to resolve would probably be found in an adjacent building belonging to the Department of Public Works. Although Public Works and the NCC are separate in law, they are both creatures of the Federal Crown. The addition of Public Works was permitted because it would allow for a more appropriate enforcement of the decision. [22] In the present case, the three new respondents that the Commission and the Complainant wish added are employees of the Respondent. In this regard, section 65 of the Act states the following: 65. (1) Sous réserve du paragraphe (2), les actes ou omissions commis par un employé, un mandataire, un administrateur ou un dirigeant dans le cadre de son emploi sont réputés, pour l'application de la présente loi, avoir été commis par la personne, l'organisme ou l'association qui l'emploie. (2) La personne, l'organisme ou l'association visé au paragraphe (1) peut se soustraire à son application s'il établit que l'acte ou l'omission a eu lieu sans son consentenent, qu'il avait pris toutes les mesures nécessaires pour l'empêcher et que, par la suite, il a tenté d'en atténuer ou d'en annuler les effets. 65. (1) Subject to subsection (2), any act or omission committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent shall, for the purposes of this Act, be deemed to be an act or omission committed by that person, association or organization. (2) An act or omission shall not, by virtue of subsection (1), be deemed to be an act or omission committed by a person, association or organization if it is established that the person, association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, tomitigate or avoid the effect thereof. [23] In its written arguments, the Commission states that these employees are persons separate from the Respondent. It added that, according to section 4 of the Act, anyone found guilty of discriminatory practices may be subject to specific orders. [24] The Complainant is not seeking any particular remedy from these plaintiffs. The Respondent did not raise a defence for them based on subsection 65(2). Obviously, if the Respondent had raised such a defence, my decision on the addition of the parties could have been different. [25] Their discriminatory acts are one and the same as those alleged against the Respondent, and no evidence was submitted demonstrating that these acts were committed outside their employment. Thus, if it is established that the acts or omissions of its employees are discriminatory because they were committed in the course of their employment, they will be deemed, for the purposes of the Act, to have been committed by the Respondent. [26] Moreover, the Tribunal cannot ignore the fact that the Commission and the Complainant could reasonably have foreseen, at the time of filing the complaint and during the investigation, the addition of these parties. At the time, they chose not to add them. Adding them now, with no formal complaint having been brought against them, deprives them of the opportunity to present certain grounds of defence before the Commission pursuant to sections 41 and 44 of the Act. [27] The Tribunal is not satisfied that the addition of these respondents is necessary for the disposal of the complaint and, contrary to the decision in Brown, their presence is not essential for a more appropriate enforcement of the decision that would be made against the Respondent. [28] The request from the Commission and the Complainant for adding three new parties is denied. II. PRELIMINARY ISSUES RAISED BY THE RESPONDENT A. First issue: amendment to the style of cause [29] The Respondent brought a motion to amend the style of cause so that the Attorney General of Canada is designated as the respondent The current style of cause identifies the Royal Canadian Mounted Police as the respondent. The Respondent claims that only the Attorney General of Canada may appear in judicial proceedings to reply to acts committed by members of the Royal Canadian Mounted Police. [30] It adds that the capacity to sue and be sued is reserved solely for natural persons and corporations. Since the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 does not give the Royal Canadian Mounted Police a distinct legal personality, it therefore does not have the capacity to sue and be sued. It adds that the RCMP is not a person and thus cannot not be a party to a complaint under the Canadian Human Rights Act. [31] Section 3 of the Royal Canadian Mounted Police Act stipulates that: 3. Est maintenue pour le Canada une force de police composée d'officiers et autres membres et appelée Gendarmerie royale du Canada. 3. There shall continue to be a police force for Canada, which shall consist of officers and other members and be known as the Royal Canadian Mounted Police. [32] The Commission does not object to this motion. The Complainant maintains that the Attorney General of Canada is not her employer and that the amendment should not be granted. [33] In Plante v. Royal Canadian Mounted Police, 2003 CHRT 28, the Tribunal had before it a motion very similar to the present one. In granting the Respondent's motion in that case, the Tribunal indicated that a review of the jurisprudence cited by the respondent, as well as the relevant provisions of the Crown Liability Act, discloses that the respondent is correct, and that the complainant's case should properly be brought against the Attorney General of Canada (representing the Royal Canadian Mounted Police). [34] I can understand how the Respondent's request may appear to the Complainant, but I believe that the Respondent's motion deals solely with the legal formalities of disputes to which the federal government is a party and that the Complainant will not suffer any prejudice as a result. Changing the style of cause will not impair the Complainant's capacity to present her arguments or the remedy that would be awarded to her if her complaint is sustained. [35] I therefore order that the respondent name be replaced with the Attorney General of Canada (representing the Royal Canadian Mounted Police). B. Second issue: medical records [36] On September 23, 2002, the Complainant filed a complaint with the Commission alleging that she was discriminated against by the Respondent on the basis of her disability. She alleged, among other things, that the Respondent refused to accommodate her medical condition and that she was harassed because of her disability. In her disclosure, the Complainant maintained that her supervisors required her to work days or shifts that did not take her physician's recommendations into account and that they refused to transfer her to a position more suited to her medical condition. [37] Her disclosure of documents reveals that, in addition to her attending physician, Dr. Mireille Belzile, she also consulted Drs. John Gosselin, Bruno Laplante and Jocelyn Aubut. In the Statement of Issues of Fact and Law, the remedies sought by the Complainant include a request for financial compensation in the amount of $20,000 for physical injuries and pain and suffering. She maintains that the Respondent's acts cause undue stress [translation] and cause insomnia, exhaustion, migraines and digestive problems [translation] to her. [38] According to the Respondent, as soon as a party brings his/her medical condition into a dispute, he/she implicitly waives his/her right to confidentiality otherwise protecting his/her medical record and that, since this record contains information that is potentially relevant to the facts in dispute, it must be disclosed. The Respondent adds that the extent of the disability is at issue, likewise the existence and extent of the psychological and physiological signs of stress that the Complainant claims to be suffering. It thereby concludes that the information pertaining to the Complainant's medical condition is relevant. [39] The Commission and the Complainant allege that the disclosure of the Complainant's medical records is not necessary because the Respondent has been aware of her medical condition for several years. [40] The Act and the Canadian Human Rights Tribunal Interim Rules of Procedure codifies the rule of natural justice granting each party the right to a full and complete hearing. This right also includes the right to the disclosure of relevant evidence in the possession or care of the opposing party. However, in a motion such as the one before us, the Tribunal must weigh the competing interests: the interests of natural justice on one hand and the individual's right to privacy and confidentiality on the other. [41] In its amended Notice of Motion, the Respondent seeks an order for serving the Complainant's attending physicians with a subpoena duces tecum. The purpose of the duces tecum portion of the subpoena is to order third parties, who are not litigants, to produce documents that they have in their possession. [42] Other relevant principles must also be considered before I can render my decision. First, there has to be a rational connection between the documents requested and the issues in this motion. In other words, the information sought must be arguably relevant. [43] The request must not be speculative or amount to a fishing expedition. The description of the documents should not be too broad or general and should be identified with reasonable particularity. Finally, the request should not be oppressive, that is, should not subject a stranger to the litigation to an onerous and far-ranging search for the documents. (See CTEA v. Bell Canada, T503/2098, Ruling No. 2.) [44] In Day v. Department of National Defence and Hortie, Ruling No. 3, 2002/12/06, the Tribunal used a three-step approach to determine whether documents should be disclosed or not: The Tribunal should determine whether the information is likely to be relevant, which is not a particularly high standard. There must be some relevance, and the party seeking production of the information or documents must demonstrate a nexus between the information or documents sought and the issues in dispute. The material must be probative and arguably relevant to an issue in the hearing. This is meant to prevent production for purposes which are speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming. The Tribunal must then consider any other issues that may have a bearing on disclosure, without examining the documents. If there is no compelling reason to maintain the privacy of the documents, they should be released. If the Tribunal is unable to resolve the matter without examining the material, it should inspect the documents. In the final step of this process, it may be helpful for the party requiring the documents to be protected to draw the Tribunal's attention to passages or individual documents that raise concerns. [45] I find in the present case that the requested documents are likely to be relevant and that they could be relevant to an issue in the hearing. The Respondent has established that there is a connection between the requested documents and the issues in dispute, particularly regarding the remedies sought. In human rights proceedings, when a complainant seeks compensation for physical injuries and for pain and suffering, he/she implicitly agrees to allow a respondent to have access to medical records or, in general, personal health information. The right to confidentiality of medical records no longer exists. In the present case, the Complainant is seeking financial compensation for physical injuries and pain and suffering. The right to confidentiality is therefore overridden by the Respondent's right to know the grounds and scope of the complaint against it. In human rights proceedings, justice requires that a respondent be permitted to present a complete defence to a Complainant's arguments. If a complainant bases the case on his/her medical condition, a respondent is entitled to relevant health information that may be pertinent to the claim. [46] The Complainant and the Commission have not raised any arguments likely to have a bearing on my decision to order the disclosure of the documents sought. [47] In view of the foregoing, the Tribunal shall issue subpoenae duces tecum to Drs. Mireille Belzile, John Gosselin, Bruno Laplante, Jocelyn Aubut and the Royal Canadian Mounted Police Health Services, ordering them to disclose to the Respondent's lawyers the Complainant's medical files, clinical study notes, consultation reports, test results and/or laboratory examination results between January 1, 2000 and the present. [48] To protect the Complainant's right to confidentiality, it is also agreed that the Respondent's lawyers themselves shall consult these documents and shall not disclose their contents to any other individuals without prior permission from the Tribunal and without notifying the Complainant. It is also agreed that the disclosure of these documents does not mean that they are submitted as evidence and any issues in this regard shall be dealt with during the hearing. In addition, if the Complainant wishes to raise any issues regarding the confidentiality of certain information that may be contained in these documents but does not concern the present case, she is asked to inform the Tribunal as soon as possible. In such a case, upon notice to the parties, the Tribunal shall review the records to determine which information should be disclosed because of its relevance to the issues in the present dispute and which information should not be disclosed. [49] As to the Respondent's request for an extension of the communication time set out in Rule 6(1) of the Interim Rules of Procedure, the Tribunal sees no reason to grant this request and orders the Respondent to proceed with this, if not already done, within seven days following this decision. If, after the medical records are filed, the Respondent must make changes to its communication, it may at that time bring a motion before the Tribunal. C. Third issue: production of notes taken by the Complainant during conversations with Inspector Marc Proulx [50] In her disclosure, the Complainant appears to refer to personal notes she took during her conversations with Inspector Marc Proulx. In her reply to the present motion, she adds that these notes consist almost entirely of the information in the allegations of retaliation mentioned earlier. [51] Paragraph 6(1)(d) of the Interim Rules of Procedure requires that the parties disclose all documents in their possession for which they are not claiming any privilege and which are relevant to issues in the case. In the present case, no privilege was claimed for the notes in question. [52] I therefore order the Complainant to disclose to the Respondent the notes taken during her conversations with Inspector Marc Proulx and which she referred to in her disclosure. [53] My ordering the disclosure of these documents does not mean that they are admissible in evidence. This issue shall be dealt with at the hearing. III. CONCLUSION [54] The Tribunal grants the Complainant's and the Commission's motion and orders that the complaint be amended to include the allegation of retaliation in accordance with section 14.1 of the Act. [55] The Tribunal gives the Respondent 21 days from the date of the present decision to submit a written response to these new allegations. [56] The Commission's and the Complainant's request for the addition of three new parties is denied. [57] The motion for the Respondent name to be replaced with the Attorney General of Canada (representing the Royal Canadian Mounted Police) is granted. [58] The Tribunal agrees to issue subpoenae duces tecum to Drs. Mireille Belzile, John Gosselin, Bruno Laplante, Jocelyn Aubut and to the Royal Canadian Mounted Police Health Services, ordering them to disclose to the Respondent's lawyers the Complainant's medical records, clinical study notes, consultation reports, test results and/or laboratory examination results between January 1, 2000 and the present. [59] The Tribunal orders the Complainant to disclose to the Respondent the notes taken during her conversations with Inspector Marc Proulx. Michel Doucet OTTAWA, Ontario November 18, 2004 PARTIES OF RECORD TRIBUNAL FILE: T914/3404 STYLE OF CAUSE: Johanne Guay v. Royal Canadian Mounted Police DECISION OF THE TRIBUNAL DATED: November 18, 2004 APPEARANCES: Johanne Guay On her own behalf François Lumbu On behalf of the Canadian Human Rights Commission Alexandre Kaufman On behalf of the Respondent

2004 CHRT 35

CHRT

Orughu v. Canada (Border Services Agency)

en

2004-11-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7088/index.do

2023-12-01

Orughu v. Canada (Border Services Agency) Collection Canadian Human Rights Tribunal Date 2004-11-25 Neutral citation 2004 CHRT 35 File number(s) T886/0604 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE IDRIS ORUGHU Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA BORDER SERVICES AGENCY Respondent RULING ON THE EXPERT'S REPORT TENDERED BY THE COMMISSION MEMBER: Dr. Paul Groarke 2004 CHRT 35 2004/11/25 I. DELAY II. WHETHER DR. WORTLEY CAN TESTIFY III. THE SUBSTANCE OF THE REPORT A. Necessity B. Credibility C. Legal commentary D. Advocacy E. Ultimate issue F. Sources IV. RULING [1] The Commission has advised the Tribunal that it wishes to tender an expert's report. The Respondent has raised a number of objections to the report. I have received oral and written submissions from both sides. I. DELAY [2] The first objection relates to the tardiness of the report. The Complainant and the Commission were originally given until May 17th to provide its disclosure in the present case. This included any expert reports. The hearing was scheduled for September 13th. The period for disclosure was extended to June 4th, at the request of the Complainant. It was then extended to June 28th. [3] There was no expert's report. On September 3rd, the parties requested a conference call. The call was held on September 8th. The Commission applied for an adjournment of the hearing. I refused the request. [4] There was another frantic conference call on September 10th, the day on which the report was finally disclosed. The Respondent was naturally upset at the late disclosure of the report. All of the parties requested for an adjournment of the hearing. Since I was advised by counsel that the expert's report was central to the case, I agreed to adjourn the first week of the hearing until September 20th. This would allow the parties to deal with the expert's report at a subsequent sitting. [5] The Respondent has submitted that the late delivery of the report was tantamount to trial by ambush. It was impossible for the Respondent to review and respond to the report within the time set for the original hearing. The resulting delay has resulted in inconvenience and presumably some additional expense for the Respondent. [6] Although I sympathize with the Respondent's position, the Respondent has now had the Commission's report for some time. The adjournment of the hearing is sufficient in my judgement for it to respond to the expert's report. The Complainant and Commission have a right to a full inquiry and a proper airing of the complaint, and should not be deprived of their opportunity to present the case for hearing. [7] I agree with the Respondent that the Commission's conduct should be censured. There is to be no trial by ambush. I think there are other ways of dealing with the unfairness in the delivery of the report however. There may be a question of costs. It may also be possible to place limits on the Complainant's recovery, or deduct a set-off from the award. This was the course of action followed by the member in Charlton v. International Longshoremen's Association, Local 269 2004 CHRT 12. [8] The Respondent is free to raise the issue at the close of the case. II. WHETHER DR. WORTLEY CAN TESTIFY [9] The Respondent also objects to the Commission's decision to call Dr. Wortley as an expert. This requires explanation. [10] The Commission has advised me that the Respondent agreed, in settling another matter, to let the Commission investigate the racial aspects of the Respondent's inspection policies. This apparently requires information regarding hit rates, a reference to the number of times that members of an identifiable group are subjected to inquiry. The Commission says that this data was never provided. As a result, the Commission is unable to determine whether a systemic complaint should be filed against the Respondent. It is accordingly seeking an order from the Tribunal, in the immediate case, that the information be provided. This is one of the remedies that it has requested. [11] Mr. Underhill's submission in this regard deserves to be quoted in full: The Commission concedes that this Tribunal could inquire into this complaint without reference to the Wortley Report and the phenomenon of racial profiling. However, such an approach would undermine the object and purpose of the Tribunal and its enabling legislation. The Commission is participating in this case because it is concerned that Mr. Orughu's experiences with the Respondent appear to be consistent with racial profiling (as that term is understood in the social science literature), and that there is preliminary evidence to suggest that Mr. Orughu's complaint may be but one example of a wider problem within the Canada Border Services Agency (the Agency). The Commission is not in a position to bring a systemic racial profiling complaint before this Tribunal and is therefore asking that the Tribunal inquire into Mr. Orughu's complaint as a single example of racial profiling, and pursuant to its fundamental statutory object of removing discriminatory practices, order a wider investigation into the matter. There are a number of legal issues that arise out of these submissions. I cannot deal with these issues without full submissions from all of the parties. [12] At this stage, I think it is enough to focus on the evidence. Dr. Wortley is being tendered as a witness who can testify with respect to the larger problem of racial profiling within the Agency. This evidence is relevant to the complaint of Mr. Orughu, which may gain credence from the fact that the policies within Customs are in some sense prejudicial. The law of human rights recognizes that the context in which a complaint occurs is relevant to an inquiry. This generally includes some evidence of the general policies and practices of a Respondent. [13] The law also establishes that evidence with respect to systemic issues may be used to bolster the evidence of a personal complaint. In Canada (Canadian Human Rights Commission) v. Canada (Department of National Health and Welfare) (re Chopra), [1998] F.C.J. No. 432 (QL), at para. 22, for example, the Federal Court ruled that the Tribunal had erred in not allowing the applicants to lead general evidence of a systemic problem as circumstantial evidence to infer that discrimination probably occurred in this particular case as well. The court in Chopra was dealing with statistical evidence, which requires the intervention of an expert. [14] I also agree that the Commission is entitled to ask the Tribunal to enquire into the broader allegation that Mr. Orughu's treatment raises concerns that there may be larger problems at the Agency. I agree with the Commission that an inquiry calls for some degree of exploration and is significantly broader than the trial process. It is also significant that the Tribunal is obliged, under section 50(1) of the Canadian Human Rights Act, to give all of the parties full and ample opportunity to present evidence. The Respondent will have ample opportunity to address any legal issues that arise in the context of the remedy that the Commission is seeking at the close of the case. [15] I think it is fair to characterize this aspect of the hearing as an inevitable and necessary adjunct of the inquiry into Mr. Orughu's complaint, which raises larger issues for the Commission. This is a matter of degree. The Commission has acknowledged that there is no systemic complaint before the Tribunal. The policies and practices of the Agency are not directly before the Tribunal. They have nevertheless been called into question by Mr. Orughu. I think it is probably impossible to divide these two aspects of the complaint in any definitive way. It is more a matter of keeping the evidence within its proper bounds. [16] The only legal question at this stage of the process is whether the testimony of the expert is relevant and necessary, if the Commission is to present the complaint for hearing. I think it is. The law of human rights has long recognized that the analysis provided by standard research methods may be indispensable, in determining whether the effect of a Respondent's policies is discriminatory. If Dr. Wortley is of the view that the Commission is not in possession of the information that it needs, to determine what the practices of the Respondent may be, that is in itself a legitimate piece of opinion evidence. [17] The matter goes beyond this, however, since Dr. Wortley is also being called as a witness on the facts. I say this because the Commission has submitted that he is familiar with the practices of the Agency and can speak about the protocols that are commonly used at inspection points. I realize that the Respondent disputes this. That can be dealt with when he is qualified however and cannot be decided at this point. [18] Even if Dr. Wortley cannot comment on the protocols employed by the Respondent, he appears to have some knowledge of international standards in the area and the practices that have been followed in other jurisdictions. This has apparently been the subject of comment in the social science literature. There also appears to be a body of research into what has been described as racial profiling. It is evident that this is a loaded term, with many pejorative associations, which should be used cautiously. The research in the area may nevertheless be of assistance in determining whether Mr. Orughu was discriminated against. [19] There are a number of points that could be made. At its simplest, however, the Commission is calling Dr. Wortley as an expert who can testify as to the use of racial identifiers, in customs or elsewhere. This goes to the substance of the complaint, which is that Mr. Orughu was treated differently at the border because of his race. As long as Dr. Wortley is properly qualified, I do not see why he should not testify. III. THE SUBSTANCE OF THE REPORT [20] I nevertheless agree with many of the Respondent's criticisms of the report. These can be dealt with under a variety of headings. A. Necessity [21] The first is necessity. The Respondent relied on R. v. Beland, [1982] 2 S.C.R. 24, at p. 42, which follows Davie v. Magistrate of Edinburgh [1953] S.C. 34, at p. 40, where Lord Cooper said that expert evidence should not be allowed if the question falls within the knowledge and experience of the triers of fact. It is the Tribunal that must make the findings in the case and rule on legal issues. It would be a mistake for the Tribunal to receive instruction on the discharge of its duties in a particular case. [22] Dr. Wortley's report does not respect this fundamental principle. It contains a theory of the case and even comments on the legal strategy of the Respondent. This goes well beyond the role of an expert witness. An expert is not in the business of investigating and determining the facts of the case. If an expert's opinion is based on certain factual assumptions, those assumptions should be clearly laid out, in a neutral fashion, as assumptions. [23] Some of the reluctance to accept expert evidence comes from the fact that the weight of such evidence is easily overstated. Dr. Wortley suggests, for example, that Mr. Orughu's experiences are consistent with certain hypotheses in the social science literature. This may or may not be significant. The reality however is that a number of the observations made by Dr. Wortley simply clothe our common observations of life in the language of the social sciences, thereby giving them an air of scientific credibility that overstates their significance. B. Credibility [24] There is a more specific concern. The Respondent submits that the report comments on the credibility of the Complainant. Mr. Burnet referred me to R. v. Marquard [1993] 4 S.C.R. 223, at 248, which holds that a judge should rely on his own knowledge of the case in deciding such an issue. I would go further. It is the particular province of the Tribunal to assess the weight and significance of a witness' testimony, in accordance with the relevant legal rules. [25] There are many reasons why an expert is not in a good position to judge the evidence that comes before the Tribunal. Some of these reasons are a matter of policy. The law is burdened with consequences, which brings in considerations that do not arise in the academic exercise. Some of these reasons are a matter of expertise. The assessment and interpretation of evidence cannot be delegated to experts, who do not have the training, sensibilities or adjudicative experience of the members of the Tribunal. Some are simply practical. An expert is not in the position of the trier of fact, who will inevitably have a more comprehensive view of the case and the legal context in which it arises. There may also be a question of independence or partiality. [26] There is nothing to prevent counsel from canvassing the issues that arise in this context in his final submissions. I agree with the Respondent that paragraphs 19 and 20 of the report interpret the evidence and are offensive. The same is true of paragraph 39 and many other passages. C. Legal commentary [27] Dr. Wortley also indulges in legal commentary. The report shows little appreciation of the rationale behind some aspects of the law. It nevertheless wanders into legal terrain, and argues, for example, that the burden of proof should be on the Respondent. Dr. Wortley is not in a position to instruct the Tribunal in such matters. [28] Paragraph 14 of the report is offensive. D. Advocacy [29] Then there is a question of advocacy. Mr. Burnet referred me to Yewdale v. Insurance Corporation of B.C. (1995), 3 B.C.L.R. (3d) 240 (S.C.), at para. 4, where Justice Newbury states that experts must not become advocates. Thus the expert should express his or her opinion in an objective and impartial manner, and must not present argument in the guise of expert evidence. [30] The report frequently crosses this line and lapses into argument. Paragraph 37 of the report is offensive. The report also shows serious signs of bias. This is troubling. Although experts are called for the purpose of advancing a specific case, a Tribunal is within its rights to expect a certain neutrality from expert witnesses. These witnesses are allowed to provide opinion evidence because they possess the accumulated knowledge and insight of those who practice in their discipline. It is the fact that this knowledge has an objective component that makes it compelling. E. Ultimate issue [31] Then there is the rule regarding the ultimate issue before a legal body. An expert is allowed to give opinion evidence, in order to assist the Tribunal. It is not for the purpose of coaching or second-guessing the Tribunal in its deliberations. The Tribunal must reach its own conclusions in the case. I agree with the Respondent that paragraphs 16 and 17 of the report are offensive in this respect. [32] The issue before the Tribunal is whether Mr. Orughu was a victim of discrimination. This is a legal matter. It is not for Dr. Wortley to tell the Tribunal what constitutes discrimination, or whether Mr. Orughu was the victim of discrimination. Unfortunately, this seems to be the goal of much of the report, which is heavy-handed and rather didactic. I think it fails to respect the role of the Tribunal as the decision maker in the process. [33] The Commission tries to argue its way around this criticism by saying that Dr. Wortley has restricted himself to the observation that Mr. Orughu's treatment is consistent with racial profiling. That merely demonstrates the point. This is exactly what the Commission is trying to prove, in arguing that it needs the data from the Agency to investigate the systemic aspects of the case. It is for the Tribunal to draw its own conclusions on the evidence and determine whether the Commission's concerns are justified. F. Sources [34] There was a minor issue regarding Dr. Wortley's sources. Material such as newspaper articles may be helpful, in illustrating a point. They do not however provide a proper basis for expert evidence. This is not a matter that can be dealt with in the abstract and is better saved for another time. All of the material on which the expert relies, within reason, should be provided to the other side. This does not extend to standard texts, reference works, or work which would be familiar to other experts. IV. RULING [35] The report is inadmissible in its present state. The Commission has suggested, in such a circumstance, that I should allow it into evidence and ignore the offending passages. I think this would be a mistake. The report is fundamentally flawed and needs extensive editing. In the circumstances, I think it is preferable to let the Commission tender a revised report, should it wish to do so. [36] This does not necessarily dispose of the matter. The Respondent is within its rights to raise other issues when Dr. Wortley takes the witness stand. original signed by Dr. Paul Groarke OTTAWA, Ontario November 25, 2004 PARTIES OF RECORD TRIBUNAL FILE: T886/0604 STYLE OF CAUSE: Idris Orughu v. Canada Border Services Agency RULING OF THE TRIBUNAL DATED: November 25, 2004 APPEARANCES: Idris Orughu On his own behalf Mark Underhill For the Commission Keitha Richardson Edward Burnet For the Respondent

2004 CHRT 36

CHRT

Brooks v. Department of Fisheries and Oceans

en

2004-12-03

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7085/index.do

2023-12-01

Brooks v. Department of Fisheries and Oceans Collection Canadian Human Rights Tribunal Date 2004-12-03 Neutral citation 2004 CHRT 36 File number(s) T838/8803 Decision-maker(s) Groake, Paul Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CECIL BROOKS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - DEPARTMENT OF FISHERIES AND OCEANS Respondent REASONS FOR DECISION MEMBER: Dr. Paul Groarke 2004 CHRT 36 2004/12/03 I. INTRODUCTION A.The positions of the parties B. The record II. FACTS A. General background B. The first allegation: general unfairness C. The second allegation: the 1989 eligibility list D. The third allegation: the 1992 competition (i) The competition board (ii) The statement of qualifications (iii) The closing date of the competition (iv) Screening (v) The interview process (vi) Mr. Brooks (vii) Ms. Howe (viii) The eligibility list (ix) The evidence of Mr. Fox (x) Subsequent events (xi) The Public Service investigation (xii) Denouement III. LEGAL ISSUES A. Prima Facie case B. The case as a whole IV. RULING I. INTRODUCTION A. The positions of the parties [1] Cecil Brooks is black. He makes three allegations, all of them under section 7 of the Canadian Human Rights Act. His first allegation is simply that he was treated unfairly in the course of his employment. [2] The second allegation relates to an eligibility list that was drawn up in 1989. The Complainant alleges that the Respondent appointed two stewards from the list, after it had expired. Both of them were white. [3] The third allegation relates to a competition that was held in 1992 and 1993. The Complainant placed thirteen. He submits that there were serious irregularities in the process. He was discriminated against. [4] The Respondent submits that Mr. Brooks was treated fairly throughout the course of his employment. It also submits that competitions in the Coast Guard are subject to regulation. Promotions are based on merit. Although there may have been irregularities in the 1992 competition, there is no evidence of discrimination. B. The record [5] The major difficulty with the case lies in its historical character. The complaint was filed in 1996. The events that gave rise to the hearing took place as early as 1988, sixteen years ago. The delay is abusive. [6] The record is deficient. Most of the relevant documents have been destroyed. I have only heard from a few of the individuals who played a role in the events before me. In the circumstances, I do not think it is possible to establish anything more than the main features of the case. These are nevertheless sufficient to establish, in at least one instance, that something was seriously amiss. II. FACTS A. General background [7] Some matters are not in dispute. Mr. Brooks first applied for the Coast Guard in 1988. He went down to the Coast Guard Building, entered a competition, and was hired as a steward on a temporary basis. He later discovered that he had been hired under the employment equity program. [8] As a steward, Mr. Brooks' responsibilities were to maintain the mess, clean the dishes, serve the meals and keep the cabins. He was also responsible for ordering the necessary supplies. He was good at his job. He taught other stewards how to drain and clean the dish machine, how to make a hospital bed, and other points of practice. [9] The Complainant called character evidence. Tim Clayton and Tyrone Saunders, both cooks, testified that Mr. Brooks was good-natured, did extra work, and got on great with others. Charles Roy Hamilton, a deckhand, stated that Mr. Brooks was loved on the ships. He was happy go lucky and convivial, exactly the kind of person that you need at sea. [10] This deserves some elaboration. As supply officers, stewards have a special responsibility for observing and maintaining the morale of the crew. I accept Mr. Brooks' evidence that he was very good at this. He had a talent for lifting the spirits of others. [11] There was a darker side, however. Mr. Brooks had conflicts with his supervisors. He liked things his own way. There was an incident, for example, with respect to the stripping and polishing of floors on the Henry Larsen. There were problems much later, at the library. He resented his subordinate position and had difficulty accepting the normal lines of authority. [12] Mr. Brooks filed two complaints. The second was apparently a complaint with regard to the general hiring and personnel practices of the Respondent. It was never referred to the Tribunal. [13] Counsel for the Complainant submitted that evidence with regard to the general employment environment nevertheless in the Coast Guard was admissible on the inquiry into Mr. Brooks' complaint. After hearing from both sides, I allowed a limited amount of evidence on the issue, on the basis that it helped to establish the context in which the complaint arose. [14] The caselaw also establishes that this evidence may be relevant on the substantive issue of discrimination. In Canada (Canadian Human Rights Commission) v. Canada (Department of National Health and Welfare) (re Chopra), [1998] F.C.J. No. 432 (QL), at para. 22, Justice Richard ruled that a previous Tribunal erred in refusing to let the applicants lead general evidence of a systemic problem as circumstantial evidence to infer that discrimination probably occurred in this particular case as well. Although the decision in Chopra dealt with statistical evidence, I think the same principle applies in the case before me. [15] The general environment relating to minorities at the Coast Guard during the relevant time was not particularly good. The Coast Guard was aware of this and wanted to deal with the matter. In 1991, its regional director asked Joan Jones, a community activist, to write a report on racism in the Coast Guard. James Francois, the equity officer, was assigned to assist her. [16] The Complaint tendered the report. The Respondent objected that there was no real methodology behind it. The report is basically a collection of unsubstantiated allegations. I agree with this assessment of the report. [17] I cannot see that it matters. Ms. Jones testified that her report was only intended to prove that minority employees felt there were systemic issues in the Coast Guard. This was exemplified, on the stand, by the testimony of Mr. Books. He testified that permanent positions were at least implicitly reserved for members of the white majority. [18] I allowed the report into evidence. If nothing else, it establishes that some employees believed that race was a factor in the decisions made within the Coast Guard. There was evidence from other witnesses to support this. B. The first allegation: general unfairness [19] Mr. Brooks feels that he was continually discriminated against in the course of his employment. An enormous amount of evidence was presented with respect to Mr. Brooks' work history. At times, the hearing served more as a discovery than a trial process. [20] As it turns out, most of the evidence presented by the Complainant was based on a misunderstanding of the staffing process. The best evidence was given by Brenda DeBaie, a human resources assistant, who testified for the Respondent. She has extensive experience in the area. [21] Ms. DeBaie testified that there were three kinds of appointments in the Coast Guard. Some appointments made through an open competition process. Some appointments were made under the exclusion order. And there were emergency appointments. [22] Mr. Brooks was originally hired under an exclusion order issued by the Public Service Commission under section 41(1) of the Public Service Employment Act, RSC 1985, C. P-33. This section permits the Commission to exclude employees from the application of the Act. The relevant order came into effect in 1988, under order-in-council SOR/90-198. [23] The use of exclusion order appointments allowed the Coast Guard to meet the seasonal and short-term needs of the fleet. These appointments were limited however, and could not be extended beyond six months. This was reduced to three months in 1992. [24] Since employees could only be hired under the exclusion order for a limited period, it was necessary to keep a record of the length of time that they had worked under the exclusion order. This explains the time cards kept by Ms. DeBaie, which figured so prominently in the evidence. These cards should not be treated as an official record of employment. [25] Then there were the appointments made by means of a competitive process. These could either be specified period appointments or indeterminate, i.e. permanent appointments. These appointments were made in accordance with the current eligibility list. This was drawn up under the provisions of the Public Service Employment Act. [26] The specified period appointments were known as term appointments. Term appointments over six months were referred to as term plus six or term over six. The Complainant's letters of appointments change in February, 1990, and no longer refer to the exclusion order. These letters provide him with term employment. [27] There was a history of bitterness relating to the appointments. The exclusion order appointments appear to have had different pay scales. A term plus six brought an employee into the collective agreement. This came with health and dental benefits. It brought the right to ask for a revision of an employee's grade and status, if the employee was carrying extra duties. It brought the right to compete in closed competitions. [28] Mr. Fox, the union representative, testified that the appointments process had been historically abused by the Coast Guard. He seemed to feel that the exclusion order appointments were used to staff positions that needed to be filled on a more regular basis. He also felt that some employees were given preferential treatment. They were repeatedly given contracts, with few breaks, and were occasionally given acting positions. These positions were desirable from a financial perspective. They also gave employees valuable experience, which would allow them to advance. [29] Ms. DeBaie maintained a list of regular employees, who would be contacted when exclusion order appointments became available. This list was taken from previous eligibility lists and the employment equity list. This was as much a matter of convenience as anything else, since these employees had been cleared for employment and did not require training. [30] The process of awarding the exclusion order contracts was extremely internal. Time was short, there were many demands and, Ms. DeBaie simply worked her lists until she found someone who was willing to take the appointment. She acknowledged that she took the location of the employee and the ship into account, in placing her calls. She also avoided assigning someone to a commander, if the commander didn't want him. This was common sense, however, and she was simply happy to find someone who wanted an appointment. [31] Ms. DeBaie testified that she dealt with Mr. Brooks fairly and cordially. He was a very likeable person and was one of the most dependable employees. In spite of this, he would come into the office and vent about the employment he was getting. He was no different than 40 or 50 other employees in this respect. He didn't like the arctic assignments and complained that other employees were getting employment closer to home. [32] I have to say that there was a lot of room for favouritism in the system. In spite of this, I do not have any evidence that suggests Ms. DeBaie exercised her discretion in a discriminatory fashion. These issues do not arise with respect to the term appointments, since these appointments were awarded in accordance with an eligibility list. [33] I should mention some of the more specific allegations. Mr. Brooks submitted, that he went over six months on November 26, 1988 and should have been given a term over six for five days. I cannot see that it matters. Under the payroll regulations, any deductions would have had to be returned to him. [34] Mr. Brooks seemed to think that term appointments should be included within the calculations under the exclusion order. He also submitted that the exclusion order appointments awarded to some employees were converted to term plus six after the employee had served six months. He was wrong on both counts. [35] Mr. Brooks thought he was being treated unfairly and became increasingly bitter about the fact that he did not have permanent employment. This began to take its toll on him. By 1990, certainly, he felt that his peers thought there was something wrong with him. People were starting to look at him strange. This became part of the problem. [36] Mr. Brooks went for lunch in 1991 with the crew from the Henry Larsen, and was told that two stewards had been hired. He was also told that the office had been unable to reach him. He found this suspicious and eventually went to see Ms. Mahar, the crewing officer, about the term appointments. She said that they were hiring from the lists. He demanded to see the lists. There was a heated exchange. Mr. Brooks felt that he was subsequently punished for raising the issue. He only received eight weeks of employment on a de-commissioned ship for the rest of the year. [37] There were other allegations. Mr. Brooks was provided with an emergency notice of appointment in 1992, as a result of repairs to the Henry Larsen, which had apparently backed into an ice floe. This took him beyond the contract he had signed and the 182 days under the exclusion order. He still seems to feel that the emergency appointment was a way of denying him a term plus six appointment. [38] I think this says more about the deterioration in the relations between the parties than anything else. The real problem was that Mr. Brooks desperately wanted an indeterminate position. There was nothing in the exclusion order or term appointments however, that gave him a right to such a position. This does not mean the system was particularly equitable. It was inevitable that the use of exclusion order appointments, alongside term and indeterminate appointments, would arouse the suspicions of those who failed to obtain permanent employment. [39] There is no reason to go further. Whatever inequities existed at the time, the evidence in support of these allegations is not sufficient to establish a prima facie case. I accept the submissions of Ms. Cameron, for the Respondent, on this aspect of his complaint. C. The second allegation: the 1989 eligibility list [40] The second allegation relates to an eligibility list from 1989. There is a letter to Mr. Brooks, in August, 1989, which informs him that he is eighth on the list. There are also letters from January, 1992, offering indeterminate positions to two persons on the list. [41] The allegation of discrimination is rather vague. It is nevertheless based on the fact that the life of the eligibility list limited for two years. The Complainant accordingly submits that the list must have expired before these appointments were made. Both of the persons who were appointed in 1992 were white. [42] The Respondent relies on the fact that both of these candidates were ahead of Mr. Books on the list. It also submits that the list would have been finalized after Mr. Books received his letter. There was evidence that would support such a conclusion. The Complainant's case is entirely conjectural. Nor is there any evidence of wrongdoing. The competition was held some fifteen years ago and I do not believe that it is possible to reconstruct what happened on the record of the case. The evidence is simply too weak to support any findings of fact. D. The third allegation: the 1992 competition [43] The third allegation concerns a competition to establish an eligibility list for stewards in 1992. This is where the real issue in the case lies. (i) The competition board [44] The person responsible for the 1992 competition was Steve Savoury, a Supervisor in logistics. He testified that he appointed Don Smith and Rose Lucas to the competition board. He asked Ms. Lucas to sit on the board because she was a black woman. This would address the concerns of minorities. [45] Mr. Smith had major managerial experience and was appointed as chairperson of the competition board. He described a five or six stage process: The board determined what qualifications were required. It screened out the candidates who were not qualified. It agreed on a list of questions, which tested the knowledge, ability and personal suitability of each candidate. It agreed on the answers. The board then conducted the interviews. The references were checked. The score from the references was added to the score from the interview. Finally, the board ranked the applicants in accordance with their score and prepared an eligibility list. The entire process proceeded by consensus. (ii) The statement of qualifications [46] The parties entered two Statements of Qualifications into evidence. They are very similar. Each of them contains a list of qualifications, which are marked (S) or (R) to indicate whether they were part of the screening or rating process. Those candidates who did not possess the qualifications marked (S), should have been screened out of the competition. [47] The first Statement of Qualifications states that the candidates must have: (S) Work experience as a steward/stewardess onboard a sea going vessel. [48] The second stated that candidates must have: (S) Work experience relating to steward/ stewardess working onboard a sea going vessel. This is significant because the candidate who finished first in the competition had never worked as a steward on a sea going vessel. The same is true of the second place candidate. [49] Mr. Bagambiire and Mr. Flaherty argued for the first Statement of Qualifications. They referred me to the report from the Public Service investigator, which states: Mr. Savoury agreed that the Statement of Qualifications on the competition file read work experience as a Steward/Stewardess onboard a seagoing vessel. [In spite of this, he originally stated that:] The screening board was looking for seagoing experience or stewards duties. A combination of both was not required. Ms. Boggs was screened [in] as she had seagoing experience as a clerk and worked as a waitress. It was [then] brought to his attention that a candidate who had DND experience as a food service attendant was screened out of the process. He amended his original statement saying experience both on a seagoing vessel and as a steward/stewardess were required. The candidate with the DND experience had no seagoing experience. (17) I think this is in keeping with Mr. Savoury's testimony at the hearing, which was tailored The real force of the report however, lies in the suggestion that the first Statement of Qualifications was taken from the competition file. [50] Mr. McCrossin argued for the second statement. He relied on a routing slip from Ms. Mahar to Mr. Savoury, dated May 12, 1992. The slip contains a list of points. One is: Should redo S. of Q. to cut down applications. Another is: I have info. for S. of Q. . The slip suggests that the first Statement of Qualifications is a revision of the second. [51] The real issue is when the revision took place. Mr. Savoury was emphatic that it did not refer to the June competition. This merely serves his own interests. The contents of the slip strongly suggest that it was a response to a series of questions regarding the upcoming competitions. It is best described as a set of directions. The tone is imperative. Even Mr. Savoury agreed that staffing officers had the final say in the competition. [52] I find that the first Statement of Qualifications is the right one. The logic of the routing slip favours this. If there were enough applicants with experience as stewards, why would one want applications from other individuals? (iii) The closing date of the competition [53] The closing date of the competition is also significant. Although we do not have the job posting, the screening report states that Stephen Aubut's application was rejected on June 15th, on the basis that it was received after the post had closed. The applications that were received earlier in the day were accepted. The closing date of the competition was accordingly June 15th. [54] It is true that a number of applicants were accepted on the 16th. There is another explanation for this, however. The Canada Employment and Immigration Centre was also receiving applications. They clearly collected the applications they had received by the close of post on the 15th, and sent them over to the Coast Guard on the 16th. (iv) Screening [55] The screening was done by Mr. Savoury, rather than the competition board. Mr. Smith merely signed off the sheets. Ms. Lucas did not participate in the process. [56] The application form from Ms. Boggs is dated Dec. 8th, 1992, six months after the close of the competition. Mr. Savoury stated that he found Ms. Boggs' application on his desk one or two days after the screening closed. He asked the staffing officer if her application should be processed and was told to screen her into the competition. He neglected to say that Ms. Boggs was working for him at the time. [57] There was no record of any of this on the screening sheets and I do not believe that she was ever screened. I find as a fact that she entered the competition late. It is clear that Ms. Boggs should have been screened out, like Mr. Aubut, who simply missed the post. [58] Danny Greenough, who finished second in the competition, may have received the same kind of favour. I have already mentioned the list of applications at the end of the screening sheets that came in from the Canada Employment and Immigration Centre. This is followed by three applications, which must have come in independently. The last name on the list is Greenough, Daniel and a Date Rec'd of June 23. It follows that Mr. Greenough's application was late. [59] It is telling that Mr. Smith would not accept any responsibility for the decision to include Ms. Boggs and Mr. Greenough in the interviews. He pointed out that Mr. Greenough's name was added to the screening sheet after he had signed off on the screening. There was a considerable period of time between the screening and the interviews. As a result, he was not aware that the application of Ms. Boggs and Mr. Greenough were late. This is a lame excuse. [60] Mr. Smith was not alone in trying to distance himself from what had happened. I think it is significant that Mr. Savoury would not accept any responsibility either. He put the blame on the staffing officer, who never testified. Other witnesses side-stepped the issue. [61] There are also a number of substantive issues. I have already made it clear that Ms. Boggs did not meet the requirements in the Statement of Qualifications. She had no experience as a steward on a seagoing vessel. Mr. Savoury tried to argue his way around this by saying that she had experience as a waitress and experience on a seagoing vessel. In my view, this was a rather transparent attempt to stretch the requirements of the position beyond their legal limits. Close is not the same as being there. [62] The same issue arises with respect to the second place candidate. Mr. Greenough had onboard experience as an oiler, who is responsible for the repair and maintenance of ships. He did not have experience as a steward on a seagoing vessel. [63] The Complainant raised a number of other issues. He took the position, for example, that Mr. Greenough's schooling was deficient. There was a similar issue with respect to Mr. Strickland, who finished in 11th place. This led to a debate as to whether he had PSC approved alternatives. I do not see how I can decide these kinds of issues on the evidence before me. The evidence nevertheless suggests that there were many problems with the competition. (v) The interview process [64] Rose Lucas came back into the competition during the interviews. She assumed that the candidates had been properly screened. Mr. Smith had written up the questions and answers. They were of the nature: how do you clean a cabin? How do you set the mess for dinner? The candidates were scored on their answers. [65] Mr. Smith and Ms. Lucas testified that they tried to make the candidates comfortable. They took turns asking questions. The answers were marked immediately after the interview, on the basis of the scripted answers. Ms. Lucas stated that she and Mr. Smith participated equally in the scoring. They came to a consensus. [66] Mr. Smith and Ms. Lucas were willing to acknowledge that there may have been a problem with the interview process. They suggested that candidates who had studied the manual extensively may have had an advantage over candidates with actual experience, who may have given answers that took them outside the manual. This points up the deficiencies in the process. [67] Ms. Boggs had an excellent interview, which was reflected in her score. There are problems here. Even if she met the requirements in the Statement of Qualifications, her success in the interview process is hard to explain. She did not have the experience that one would expect of a winning candidate. I think the rest of the evidence suggests that some improper motive was at play. [68] The fact that Ms. Boggs used Mr. Savoury as a reference adds to the air of impropriety that surrounds the process. I realize that Ms. DeBaie saw nothing improper in this fact, since Mr. Savoury only did the screening. This neglects the obvious fact that he should have screened her out. (vi) Mr. Brooks [69] Mr. Smith phoned Mr. Brooks and asked him to participate in the competition. I accept Mr. Books' evidence, that they were looking for minority candidates. He received a letter in November, advising him that an interview had been scheduled. This took place on December 7, 1992, at the Coast Guard building. It took 45 minutes to an hour. Mr. Brooks says that Don Smith asked all the questions. Rose Lucas wrote down the answers. [70] Mr. Smith and Ms. Lucas testified that Mr. Brooks' interview went well. It was friendly, he was comfortable with the questions, and presented himself well. Mr. Brooks was asked if he got on well with other people. He said yes. His references were insufficient however. They wanted three references from his immediate superiors. Mr. Brooks suggested Karen Jewett and Murray McLean. Don Smith suggested Perry West. [71] Mr. West said Mr. Brooks was a hard worker. There was a small problem up north", however, which was described as drinking. This apparently led to an accusation that Mr. Brooks had urinated in someone's sink. Mr. Smith was understanding. He said that these kinds of things happen on extended voyages and made a small deduction for the reference. This did not affect Mr. Brook's rating, Very Good, which was the highest that was available. [72] Mr. Brooks disputed Mr. West's account, and took issue with the score that he received for the interview. In his view, the score for interpersonal skills was particularly unfair. He feels that he should have received 20 points out of 20. (vii) Ms. Howe [73] Lisa Howe is also black. She participated in the 1992 competition and stated that it took her 14 years to get her indeterminate status. Although she has some bitterness over the issue, I found her evidence convincing. [74] Ms. Howe testified that your application had to be on time. If your application was late coming in, you should have been disqualified from the competition. You also needed experience. [75] Ms. Howe placed fifth in the competition. She knew some of the other candidates and was surprised by the results. She felt that she should have ranked first. Mr. Brooks should have ranked in the first three. I do not think she was in a position to judge exactly where Mr. Brooks should have ranked. The point is that she thought the competition was a travesty. She still feels that there was racism at the bottom of it. [76] Ms. Howe stated that Ms. Boggs never worked as a steward, once she had her full time status. It was just a matter of getting her a full time job, so that she could work her way in a better position. She also knew that Mr. Savoury was Terry Boggs' supervisor. He was running the competition. Ms. Howe concluded the process was fixed. It left her ticked off. Someone from the office was getting her job. (viii) The eligibility list [77] On February 25, 1993, the successful candidates--Terry Boggs, Danny Greenough, and Rick Starr--were offered indeterminate positions. All of them went on to other jobs. Mr. Greenough ended up in the engine room. Mr. Starr became a mate on deck. [78] Mr. Brooks was grossly insulted by the eligibility list. He had placed 8th in the 1989 competition; he had another 3 years of seniority; and now he found himself 13th, against individuals who had no experience. He was particularly indignant that Ms. Boggs had received a higher score for her knowledge of the duties and responsibilities of a steward. She hadn't even run a dish machine. [79] Mr. Brooks criticized Mr. Greenough's attitude. He stated that Mr. Starr had a drinking problem. Ms. Howe confirmed this. I think it would be unfair to comment on this aspect of the case without hearing from Mr. Greenough and Mr. Starr. There is evidence that Mr. Starr had more experience than Mr. Brooks. [80] Mr. Brooks was unfair to some of the candidates. He was insulted, for example, that Graeme Garrett was ranked ahead of him on the eligibility list. He testified that Mr. Garrett had less than a year of service and was ranked sixth in the competition. This is not a fair assessment of the situation. Mr. Garrett had 18 years of experience as a steward in the navy and had worked himself up to Steward Level (6). He had certificates. He had completed training as a flight steward. He had owned and managed a restaurant. [81] I am not in a position to determine the exact ranking of the candidates. The evidence does not however support Mr. Brooks' contention that he would have finished high enough on the eligibility list to receive an indeterminate appointment. (ix) The evidence of Mr. Fox [82] Mr. Fox is now the union President. He feels that the winners of the 1992 competition were cherry-picked. The competition was fixed. His reasons were straight forward. The process was partial. There was a very superficial assessment process. There were no proper references. The Coast Guard evaluations were not provided. The whole thing was a mess. (x) Subsequent events [83] Mr. Brooks suggested that he lost some status when he was placed 13th on the eligibility list. He stated that his co-workers would not listen to him. He could not teach them things. He nevertheless continued to work as a steward. He was a term plus six between 1994 and 1996. In February of 1996, he received a form letter advising him that his employment would be terminated on March 31st, as a result of down sizing. The letter was sent to all term employees. [84] Mr. Brooks was now a member of the union and decided to file a grievance. He was told a few weeks later that Kelly Carvery, the equity officer for the Coast Guard, would be dealing with the grievance. At some point, there was a meeting with John Thomas, the Commissioner for the Coast Guard to address the concerns of minorities. The meeting was chaired by Ms. Carvery. After the meeting, Mr. Brooks met with her personally. She had no knowledge of his grievance. She said something, which suggested that he would be rolled over into indeterminate status. [85] I am convinced that Mr. Brooks filed the original grievance. In any event, nothing happened. He eventually wrote up another grievance, which was entered as an exhibit. This grievance form is dated March 29, 1996 and states: I grive [sic] that under the collective agreement I have been desecrated [sic, discrinated] against by job threats, by unfair staffing or staffing practices, also promise a permanent position by Kelly Carvey. He asked for a permanent position as promised by Kelly Carvey. [86] The problem was that Mr. Brooks was no longer a term employee. He was accordingly out of the union. There appears to have been some disagreement as to whether the grievance could go forward. [87] On April 25, 1996, the Director of Maritime Services wrote Mr. Brooks a letter advising him that he was not entitled to grieve, since he was no longer an employee. The letter stated that hirings were done on merit, there was a surplus of stewards and the Coast Guard was down-sizing. It then stated that the Coast Guard would investigate his allegations regarding general staffing practices. The grievance may have been taken further, but nothing came of it. [88] The Director subsequently wrote Mr. Brooks a letter stating that the Public Service Commission would conduct a review of the staffing procedures within the Coast Guard. (xi) The Public Service investigation [89] The Public Service Commission appointed Ella Coffill to investigate the allegations of improper staffing processes. Her report was issued on July 9, 1997 and does not deal directly with racial issues. It nevertheless contains a record of Ms. Coffill's conversations with a variety of witnesses and provided the basis of considerable cross-examination. It also contained a set of conclusions. These go both ways. Mr. Brooks was not satisfied with the report and filed a human rights complaint in August. [90] Ms. Coffill found serious irregularities in the 1992 competition. She upheld some of Mr. Brooks' allegations. There was some follow-up. There was a meeting to discuss the report. The Coast Guard also proposed corrective action in a letter to the investigator. This included a new competition and eligibility list. [91] Mr. Fox kindly wrote a letter, which Mr. Brooks signed, suggesting a resolution of the matter. The Coast Guard suggested measures of its own. The two parties drafted a conciliation agreement on September 22, 1997. The Coast Guard signed it. Mr. Fox witnessed the document, in anticipation of Mr. Brooks' signature. Mr. Brooks then balked and refused to sign. [92] There were a few consequences. Mr. Savoury, Mr. Smith and Ms. Lucas were required to take a 3 day course on staffing. They were not allowed to participate in staffing actions until they had completed it. Ms. Lucas was upset by the hostility aroused by the competition and she chose not to take the course. There seems to have been a further investigation of the allegation of racial discrimination, which merely delayed the human rights complaint. [93] The Acting Regional Director of the Coast Guard sent Mr. Brooks a letter of apology in April 1998. This had little effect. Mr. Brooks found the apology, without the offer of a job, insulting. I do not think that this was justified. It is not clear that he was entitled to an indeterminate appointment, ahead of the other candidates in the competition. I realize that the candidates who won the 1992 competition retained their positions. This must have rankled Mr. Brooks. Mr. Savoury played favourites and got away with it. (xii) Denouement [94] By this time, Mr. Brooks was working as a library support clerk, in merging two department libraries. The base salary was similar to that of a steward, but there was no overtime. Maureen Martin worked with Mr. Brooks. She testified that they were moving the periodicals into a new compact shelving system. They had sets from two libraries and would retain the best set. The final responsibility for deciding where the periodicals would go rested with a Mr. Oxley. [95] Mr. Brooks and Ms. Martin were both smokers and shared many cigarette breaks. They made fun of Mr. Oxley. Things went badly. Mr. Brooks complained that he had to take over the project and figure out a way to do it on his own. I think by now he simply resented authority. [96] Mr. Brooks left the library in August of 1997, without notice. He felt that he was going nowhere. There were a number of issues in his life, and everything came apart. There was a mental fracture. He became unglued. III. LEGAL ISSUES A. Prima Facie case [97] The caselaw sets out a two-stage approach to the adjudication of a human rights complaint. The Complainant must establish a prima facie case of discrimination. The burden then shifts to the Respondent to provide a reasonable explanation for what occurred. This analysis provides the methodology that should be used in scrutinizing the evidence before the Tribunal. [98] There is a major qualification. As I understand it, this does not affect the fundamental burden of proof in the case, which remains with the Complainant. It would seem to follow that the burden on the Respondent is a rhetorical or explicatory burden, rather than a strictly evidentiary one. [99] The nature of a prima facie case was described in Ont. Human Rights Comm. v. Simpsons -Sears Ltd., [1985] 2 S.C.R. 536, at para. 28, as a case that covers the allegations made and which, if believed, is sufficient to justify a verdict in the complainant's favour. This description seems to have been taken from the test for a non-suit, since it suggests that the evidence should not be weighed. [100] This is a simple way of looking at the matter. The question on the prima facie test is whether there is evidence, taken by itself, which would establish on a balance of probabilities that the Complainant was a victim of discrimination. This was the way it was presented by the Respondent, which submitted that there is no positive evidence of discrimination before me. There is accordingly no case to meet. The complaint should simply be dismissed. [101] The Respondent cited Kibale v. Transport Canada (1985), 6 C.H.R.R. D/3033, at para. 24369, in support of its position. The Tribunal in that case held that it is not possible to draw an inference of discrimination from an irregularity or outright illegality in the administration of the staffing process of the Public Service of Canada without some evidence linking the irregularity to a ground of discrimination. This principle has been followed in other cases, notably Chopra v. Canada (Dept. of National Health and Welfare) (No. 5) (2001), 40 C.H.R.R. D/396, at para. 268, (CHRT) and Singh v. Statistics Canada (1998) 34 C.H.R.R. D/203 (CHRT), at para. 241. [102] The Complainant, for his part, relied on the decision of the Board of Inquiry in Shakes v. Rex Pak Limited (1981), 3 CHHR D/1001 (Ont. B. of Inq.), which holds, at para. 8918, that discrimination is almost invariably proved by circumstantial evidence. The complainant merely needs to establish that he was as qualified as the other candidates. This is enough to meet the prima facie test and shift the burden to the Respondent. [103] Mr. McCrossin was visibly uncomfortable with the Complainant's position. I think he felt that the Respondent has a right to choose between equally qualified candidates. He also tried to restrict Shakes to the facts of the case. In his submissions, he took the position that Mr. Brooks was not as well qualified as the other candidates. This is apparent in the results of the competition. Mr. Brooks finished well down the eligibility list. The evidence also establishes that some of the other candidates had better qualifications. [104] There is still the fact that the Complainant was better qualified than the candidates who finished first and second. Mr. McCrossin has an answer for this however. He says that the same can be said of other candidates in the competition, who were white. It follows that there is nothing racial in such a fact. This is resourceful but misses the point. The question for the Tribunal is whether Mr. Brooks and Ms. Howe were victimized because they were black. The fact that other candidates were victimized does not decide the matter. [105] There is a sense at least in which I agree with the Respondent. I do not believe that the line of reasoning in Shakes is all that helpful in resolving the question before me. The central issue in Shakes was whether the competition was unfair. Here the competition was manifestly unfair. The only question is whether there was a discriminatory component in the wrongdoing. This calls for a different kind of analysis. [106] The Complainant submits that there is evidence before me that would support an inference of discrimination. Some of this consists of the perceptions of Mr. Brooks, Ms. Howe and a number of minority employees, who believed that racism had permeated the workplace. The Respondent argues that there is little objective evidence to substantiate their beliefs. Some of this is attributable to the fact that the events in the present case occurred many years ago. The matter goes deeper than this, however. [107] The proof of discrimination has its own set of difficulties. Foremost among these is the fact that the same set of circumstances may be open to a variety of interpretations. It could be said that the act of discrimination lies in differentiation. The problem is that this differentiation does not exist independently of the actions of the parties. It must be inferred. It follows that here is an element of judgement in any assessment of the circumstances that give rise to a complaint of discrimination. [108] This brings in the impressions of the parties. I think there is an important point here for the Complainant. The problem is not that discrimination is difficult to see. The Complainant states that people who are discriminated against have no difficulty seeing it. They confront it at every turn. The problem is that their perceptions are routinely discarded as illegitimate. [109] This goes to the nature of discrimination. It is widely accepted that discrimination has an invisible face. Those who discriminate usually fail to see that they are discriminating. This does not mean that it is invisible to others: indeed, the suggestion is that the racism in the Coast Guard was readily apparent to those who were discriminated against. [110] There are legitimate concerns on the other side. The Board in Shakes recognizes the limits on this kind of impressionistic evidence, at para. 8918, when it quotes Professor Borins, in Kennedy v. Mohawk College (1973): It should also be added that the Board must view the conduct complained of in an objective manner and not from the subjective viewpoint of the person alleging discrimination whose interpretation of the impugned conduct may well be distorted because of innate personality characteristics, such as a high degree of sensitivity or defensiveness. The word innate seems unfortunate. The point in the immediate instance is that a Tribunal should be cautious, in relying on the perceptions of the parties. [111] There is something to both positions. It would be a mistake to reduce the process of adjudication to a contest between the perceptions on either side of the case. I nevertheless think that impressions, even mere impressions, may have some probative value. The beliefs of Ms. Howe, in particular, are entitled to some weight. Ms. Howe is not a party to the case and still works at the Coast Guard. She has not let her feelings interfere with her relations with her employer. I found her evidence credible and convincing. [112] I think Ms. Howe's testimony provides some evidence of discrimination. There is the testimony of Mr. Brooks and a number of other minority employees to support it. There is a context in which the competition occurred, and that context is full of an apprehension that race was a factor in the employment decisions of the Respondent. No one suggested that this was particularly explicit. It was nevertheless an integral part of the sociology of the situation. There was a general recognition that there were legitimate grievances in this area. [113] The Coast Guard shared these concerns. This explains why there was an equity list and an equity officer. This explains why the Jones' Report was commissioned. This explains why Rose Lucas was appointed to the competition board. This explains why Mr. Brooks was invited to participate in the competition. This explains the meeting that Mr. Brooks described, where the Director of the Coast Guard addressed the concerns of minorities. I think that this kind of circumstantial evidence adds credibility to Mr. Brooks' contention that he and Ms. Howe were discriminated against. [114] There is a rule regarding circumstantial evidence. As I understand it, it is not enough if circumstantial evidence is consistent with an inference of discrimination. This merely establishes the possibility of discrimination, which is not enough to prove the case. The evidence must be inconsistent with other possibilities. [115] I realize that the rule has been formulated somewhat differently in some of the caselaw. This is not the place to discuss the matter. The point is simply that the Respondent says here is another possibility. That possibility is that the process was corrupted by favouritism. I have already suggested that this kind of submission misses the point. There is nothing in the fact of favouritism that negates the possibility of discrimination. Indeed, it is in the nature of favouritism to favour some and disadvantage others. B. The case as a whole [116] The evidence before me is more than sufficient to meet the prima facie test. There is accordingly a burden on the Respondent to provide a plausible explanation for what occurred. It is apparent that the Tribunal should look at the totality of the evidence, in deciding such an issue. [117] The decision in O'Malley v. Simpsons Sears, supra, at para. 28, recognizes that there is an aspect of strict liability in the Supreme Court's decision to place the explanatory burden on the Respondent. For the most part, the Complainant was a spectator to events that occurred outside his control. It is the Respondent that is in the best position to explain what happened. It was responsible for the 1992 competition and has full access to the sources of information needed to determine what occurred. [118] The Respondent is in the best position to provide an explanation for what occurred. It has simply failed to do so. The only explanation I have really heard is that there was favouritism in the department. This simply shifts the focus of the inquiry. If there was favouritism, as there clearly was, the question is whether there was a racial element in that favouritism. I think this is where the burden falls on the Respondent. [119] The evidence supports the Complainant's submission that race had entered the employment process. It may not have been the primary factor, but it was there, in the background. The caselaw has held, since Holden v. Canadian National Railway Co. (1990) 14 C.H.R.R. D/12 (F.C.A.), at p. 397, that this is sufficient to establish discrimination. [120] The Respondent did not provide any real explanation of the circumstances before me. The case on the Respondent's side consisted essentially of denials. The witnesses for the Respondent rejected the allegations of racism. But of course they also rejected the idea that the 1992 competition was corrupted by the politics within the department. Mr. Savoury kept his motivations to himself. [121] The Respondent has failed to meet its burden in the case. The complaint has accordingly been substantiated. IV. RULING [122] Mr. Brooks has waited a long time for some recognition of the problems that existed in the 1992 period. There may still be differences regarding his account of what occurred. The fundamental point is nevertheless clear. The Complainant has established that he was a victim of discrimination. [123] I should add that the allegation regarding the 1992 competition was not specific to Mr. Brooks. It was that the black candidates in the competition were discriminated against. It follows that Ms. Howe was a victim of the same discrimination. In point of fact, she had more to complain about than Mr. Brooks, since she finished fifth in the competition. [124] The parties are invited to make submissions on remedy. It may be of assistance to say that I am satisfied, on the evidence before me, that Mr. Brooks would not have obtained an indeterminate position, even if the competition was properly conducted. It is also clear that he refused to sign the proposed conciliation agreement. I would accordingly think that the major issue relates to pain and suffering. There is also the question of costs. Signed by Dr. Paul Groarke OTTAWA, Ontario December 3, 2004 PARTIES OF RECORD TRIBUNAL FILE: T838/8803 STYLE OF CAUSE: Cecil Brooks v. Department of Fisheries and Oceans DATE AND PLACE OF HEARING: Halifax, Nova Scotia March 22 to 26, 2004 March 29 to April 2, 2004 June 7 to 11, 2004 June 14 and 15, 2004 July 6 to 8, 2004 DECISION OF THE TRIBUNAL DATED: December 3, 2004 APPEARANCES: Davies Bagambiire Stephen Flaherty For the Complainant Scott McCrossin Melissa Cameron For the Respondent

2004 CHRT 37

CHRT

Coulter v. Purolator Courier Ltd.

en

2004-12-07

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7086/index.do

2023-12-01

Coulter v. Purolator Courier Ltd. Collection Canadian Human Rights Tribunal Date 2004-12-07 Neutral citation 2004 CHRT 37 File number(s) T768/1803 Decision-maker(s) Doucet, Michel Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ROBERT COULTER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - PUROLATOR COURIER LIMITED Respondent REASONS FOR DECISION MEMBER: Michel Doucet 2004 CHRT 37 2004/12/07 [TRANSLATION] I. INTRODUCTION A. THE FACTS B. Background on the illness and employment with Purolator C. The incidents leading to the December 15, 1998 meeting D. The December 15, 1998 meeting E. The period between January and December 1999 F. His position at the call centre II. ISSUES III. RELEVANT PROVISIONS FROM THE CANADIAN HUMAN RIGHTS ACT IV. ANALYSIS AND DECISION V. REMEDIES I. INTRODUCTION [1] Robert Coulter (the Complainant) alleged discrimination on the basis of a disability, in that the Respondent, Purolator Courier Ltd. (Purolator), refused to accommodate and continue to employ him contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act). A. THE FACTS B. Background on the illness and employment with Purolator [2] The Complainant is married and has one son, 11 years old. He is the carrier of a disease called myotonic dystrophy. The first symptoms of his disease appeared at age 27 or 28, when he noticed a loss of muscle strength in his hands and difficulty relaxing the muscles after contraction. [3] In 1990, Dr. Pierre-Paul Noiseux, a neurologist, diagnosed the Complainant with Steinert's myotonic dystrophy, a degenerative change in the motor functions normally appearing in adolescence. Specifically, Steinert's myotonic dystrophy is a disease of the striated muscles that prevents quick and effective contraction and relaxation of all muscles. This disease can sometimes affect the heart muscles. It is a hereditary, congenital disease, meaning that the person is born with it. In society, this disease affects approximately three people in 10,000. [4] Steinert's myotonic myopathy or dystrophy can remain stable for a long period, or the affected person's condition may deteriorate gradually over the years until he/she can no longer work. [5] The effect of this disease is seen in the slowness of movements affecting speech, diction, the opening and closing of the eyes and muscle relaxation. With speech, there is dysphonia, which is a variation in language performance caused by an impairment of the muscles that control speech, the muscles involved in breathing, and those of the larynx and pharynx. Thus, the pitch of the voice can change and even become virtually inaudible. A person with dysphonia can be hard to understand. [6] Among the people afflicted, there are degrees of variation or degrees of severity. The disease can appear at various stages of life. Some individuals may be carriers of the disease at birth and become symptomatic in childhood, while others may not become symptomatic until adulthood. The disease does not affect all individuals with the same severity. There can be slight manifestations of the disease in the 0-to-18 age group, moderate manifestation from 18 to 40 years of age and more serious manifestations in the 40-and-above age group. [7] According to Dr. Noiseux, the Complainant is moderately affected, meaning that he has difficulty walking - he walks slowly - and he has foot drop on both sides. He has reduced muscle strength during contraction, and relaxation is quite slow. He has also had an operation for cataracts on his eyes. [8] After diagnosing the Complainant with myopathy, Dr. Noiseux did not see him again until 1997. He said that he has seen him occasionally since 1997, about once a year, but not for treatment because there is no treatment for this disease. Between 1990 and 1997, he observed some deterioration primarily in the pupils and eyes. From 1997 to 2003, he determined that the Complainant was losing about 3% to 4% of his physical ability per year. [9] In 1991, the Respondent hired the Complainant as a courier (delivery driver). He said that he had told his new employer that he had Steinert's myotonic dystrophy. When he was hired, his supervisor was George Foster. He was the person who conducted his road test and interview. The Complainant was employed with Purolator for 7½ years. [10] According to the description by Guy Wilson, Purolator's Human Resources District Manager for Quebec, Purolator is a transportation service company that picks up and delivers parcels, in other words, envelopes and small packages. In Quebec, it has three sorting centres and about 20 depots or sub-depots. [11] According to the Collective Agreement between Purolator and the Teamsters, there are three functional group categories at the depots. A functional group encompasses classifications having relatively similar activities. Within the functional group, there is the linehaul driver classification, which includes all drivers of heavy vehicles, which are vehicles with a net mass of five tonnes or more. [12] Then there are the couriers, which include conventional couriers, utility couriers, conventional foot couriers and utility foot couriers. Quebec does not have the last two classifications. The difference between conventional couriers and utility couriers is that the latter are used as replacements or during peak periods. They do not have dedicated routes, and their schedules may vary from day to day depending on the company's requirements. They are guaranteed 25 hours of work per week that can be increased with extra hours. [13] Until 1998, conventional and utility couriers had to hold a class 5 driver's licence. In February 1998, Purolator raised its driver's licence requirements for these positions to class 3. However, it continued to recognize the qualification of couriers with class 5 before the requirements changed. Also at that time, Purolator adopted a policy whereby employees who had not driven a Purolator vehicle for a year had to re-qualify in order to drive Purolator vehicles. Re-qualification involved taking the written examination and road test again. Examinations were administered by a Purolator driver/instructor or unit manager. According to Mr. Wilson, these measures were adopted to comply with the spirit of the Act Respecting Owners and Operators of Heavy Vehicles, S.Q. 1998, c. 40, which the provincial government had just passed. [14] When he was first hired, the Complainant worked on call. In 1993, he obtained a permanent position with 32.5 hours a week, but he added that the weeks when he worked only 32.5 hours were rare because he was always willing to do overtime and often worked 45 hours a week. His regular shift would start at 1:00 p.m. and end at 7:30 p.m. During a normal day, he would make deliveries from 1:00 p.m. to 3:00 p.m., and the rest of the day would be devoted to pick-ups. In 1998, he was paid $17.26 an hour. [15] When performing their duties, couriers must comply with certain standards, such as making a delivery in 6 minutes and a pick-up in 7 minutes. The work also required physical exertion. They are required to handle parcels up to 70 lbs. They must also be able to go up and down ramps and stairs and squat to gather parcels. In his testimony, the Complainant pointed out that, in a normal day, he would have to squat and stand up again between 60 and 80 times to lift packages and parcels. [16] The Complainant was working out of the Ville Saint-Pierre depot. This depot serves the greater part of downtown Montreal, namely Ste-Catherine, Sherbrooke, De Maisonneuve, René-Lévesque and McGill College streets. This part of downtown Montreal is very busy with many pedestrians. The route includes Old Montreal, with its narrow streets, pedestrians and carriages. [17] There were two or three places along this route where, to make deliveries or pick up parcels, the courier would have to back the truck up to a loading dock. At other locations, the courier would have to carry parcels on foot. There are very few elevators in the buildings in Old Montreal. Therefore, parcels have to be carried up the stairs. This route is very different and more demanding from a driving perspective than a route in an industrial area where virtually every building has a loading dock. [18] To do his work, the Complainant drove a Curb Master truck about 14 ft. long and between 3,100 and 3,500 lbs. The driver's licence required for this type of truck, at the time the Complainant was hired, was a class 5 licence, in other words a regular driver's licence. [19] The Complainant testified that during his employment, he had two road tests in addition to the one in 1998, which is of particular relevance in this case. Both were conducted under the supervision of Ferrier Caron, a Purolator driver/instructor whose responsibilities included conducting examinations of new drivers and coordinating the driver training. One of the tests was held in 1997 and the other in the fall of 1998, a few months before the one that would be conducted by George Foster. The Complainant indicated that, in both cases, Mr. Caron did not make any negative comments on his driving of the vehicle. [20] The Complainant also testified that, after the 1998 road test, he received a "Certificate of Automobile Driving Excellence [translation]. This certificate states that Purolator is pleased to award Robert Coulter for two year(s) a certificate of automobile driving excellence in recognition of his accident-free, safe and courteous driving, his responsibility towards others, and the care he takes while driving motor vehicles on public highways and roads [translation]. The certificate is signed by Mark Tilden and Daniel Quévillon, the operations manager, in Ville Saint-Pierre. C. The incidents leading to the December 15, 1998 meeting [21] In his testimony, Guy Wilson stated that, at the beginning of December 1998, Ferrier Caron informed him that he had noticed the Complainant having difficulty driving his vehicle. Mr. Wilson said that he then contacted the operations manager in Ville Saint-Pierre, Daniel Quévillon, to inform him of the situation and suggest a route audit of the Complainant. Mr. Quévillon assigned the task to Mr. Foster. Mr. Caron and Mr. Quévillon were not called upon to testify at the hearing. [22] On December 7, 1998, George Foster conducted a route audit of the Complainant to evaluate his truck driving. According to George Foster, the goal of such an audit is to establish criteria for the number of stops that may be made within a given period of time on a given route. There are usually two route audits per year for each route. He added that the purpose of these audits is more to evaluate employee productivity than their ability to drive a truck. This testimony is not consistent with the one from Mr. Wilson, who said that the evaluation was requested because of concerns raised by Mr. Caron. [23] According to the testimony from Paul Océan, the depot's chief union steward, Mr. Foster had told him that he had conducted this route audit because he had noticed the Complainant taking longer than scheduled to complete his route. Therefore, his testimony appears to confirm Mr. Foster's account. [24] On December 7, 1998, Mr. Foster accompanied the Complainant on his route. From 1:00 p.m. to 3:00 p.m., the Complainant made his deliveries. He stated that he made about 15 deliveries and finished them around 3:00 p.m. He then proceeded with his usual letter and parcel pick-ups. He acknowledged that, at one particular customer location on Ste-Catherine Street, he received assistance loading boxes into the truck, but stated that he had not asked for this assistance. He added that that particular customer always gave him a hand loading boxes into the truck even though he never asked for help. [25] The Complainant stated that, during that day, George Foster made no negative comments about his vehicle driving or about safety. They returned to the depot around 7:45 p.m. He added that there had been no accidents or incidents that day. [26] On the Driving Certification Form [translation] that George Foster filled out during the evaluation, he noted two locations during the deliveries where there had been incidents. The first occurred at 2:18 p.m. and reads as follows, Hit entrance. Hit Dock Hard"; the second occurred at 2:38 p.m. and states Hit Dock Hard. The evaluation started at 1:00 p.m. and ended at 8:15 p.m. [27] After this route evaluation, Mr. Foster also prepared a written report on December 15, 1998 because, according to him, there was a problem with the security of the truck which Mr. Coulter was driving. [28] In this written report, he noted that the Complainant had had difficulty controlling the steering wheel on several occasions, which, according to him, was due to the fact that he was holding the steering wheel with the palm of his hand instead of his fingers. He then noted the 2:18 p.m. incident at 1250 René-Lévesque, where the Complainant hit a cement post. He added, On a couple of occasions, pedestrians crossing the street inadvertently, caused him to veer but in a dangerous fashion due to his inability to react quickly. He then added another incident, which he had not entered on his Driving Certification Form [translation], that occurred at 1 Place du Canada and, finally, he mentioned the 2:38 p.m. incident at 1800 McGill College. The Complainant hit the loading dock in both cases and, according to Mr. Foster, the impact was so hard that it hurt his back. In neither case was an accident report filled out, as stipulated in Article 25.03 of the Collective Agreement. [29] Mr. Foster also added that, during the parcel pick-up portion, he was walking at a normal pace and had to keep waiting for the Complainant: He appears to have great difficulty walking quickly. As to his ability to carry parcels, this too seemed inadequate in Mr. Foster's estimation. One of the procedures the Complainant used that was not compliant with Purolator's procedure, according to Mr. Foster, was the one the Complainant used to carry parcels from the loading dock to the truck. Instead of carrying a parcel in his arms and going down the stairs, the Complainant would place the parcel on the dock, go down the stairs and then retrieve the parcel from the dock. This was an unproductive method according to Mr. Foster. He noted that, on several occasions, the Complainant dropped parcels and on other occasions asked the customer to help him lift parcels. Regarding this latter case, he said he did not remember where or how often the Complainant had asked for help. [30] In his conclusion he stated, "While these problems do effect the productivity of the company, the principal reason for these events is that Robert suffers from a degenerative disease called `Steinert's Myotonic Dystrophy' [translation]. I feel that there is both a security and an image problem so evident that I do not feel that Robert is capable of performing the duties of a courier as is required by the company. (My emphasis.) No solid evidence was submitted to the Tribunal regarding the road safety problem that the Complainant presented, other than the minor incidents that Mr. Foster indicated in his written report. No evidence of vehicle damage, if any, or of the extent of the back injuries Mr. Foster sustained. No evidence of customer complaints about the Complainant's work. Everything is based on Mr. Foster's perceptions. When asked whether other route audits of the Complainant had been conducted, Mr. Foster answered that he did not remember. However, since he testified that two route audits per year were done, it is very likely that the Complainant had been through this procedure before. The Complainant testified that Ferrier Caron had conducted such an audit just two months earlier. [31] Louise Fillion, the Senior Human Resources Advisor, and Marie-Claude Pilon, the Human Resources Advisor at the Ville Saint-Pierre depot at the time, testified having discussed the Complainant's route audit. Ms. Pilon described the problems that the Complainant had experienced on the road. Ms. Fillion said that she had advised her to meet the employee with Mr. Foster and advise him of the observations and to suspend him from the route with pay until he could be assessed by a physician. [32] On December 14, one week after the route audit, the Complainant, who had continued to perform his normal duties during that time, received a call from his employer to come in in the morning to make deliveries because they were short on drivers. This was a rather surprising request, given the safety problem that the Complainant supposedly presented. [33] Around 11:30 a.m., after he had finished his deliveries, he was asked to return to the depot. When he arrived, he was told that the supervisor wanted to see him in the conference room. George Foster; Marie-Claude Pilon; Richard Marques, a Ville Saint-Pierre supervisor; and Paul Océan, the Ville Saint-Pierre depot chief union steward, were present. In his testimony, George Foster said that he had no recollection of that meeting, whereas all those testifying who had attended the meeting confirmed that he was there. [34] During that meeting, Mr. Foster informed the Complainant that his truck driving was unsatisfactory and that his method of carrying parcels was incorrect. He criticized him for hitting two posts and for rolling [translation] parcels instead of lifting and carrying them. He then informed him that he would not be returning to his route to do the pick-ups and that a decision about him would be made the following day. He assigned him to inventorying parts in the garage. He was informed that he was to appear for work the next morning at around 8:00 a.m. to continue with the inventory. D. The December 15, 1998 meeting [35] On December 15, 1998, another meeting was held to discuss the Complainant's case. In addition to the Complainant, George Foster (he again said he had no recollection of this meeting), Louise Fillion, Richard Marques and Paul Océan were present. According to the Complainant's testimony, George Foster spoke first. Mr. Foster said that the Complainant was a hazard on the road, that he could not hold the steering wheel correctly and that he should not even have a driver's licence. [36] According to the notes that Marie-Claude Pilon took during this meeting, Mr. Foster had added, I saw you drop boxes that were not even five pounds. What does the customer think, that you're drunk? The Complainant was informed that he was relieved from his courier duties with pay until he could receive a neurological assessment. [37] The Complainant stated that he had been surprised and insulted by Mr. Foster's remarks, particularly since he had had a road test two months earlier and had received no negative comments about his truck driving. [38] The Complainant said that, during the December 15th meeting, he had indicated that he was prepared to do anything to keep working. He stated having asked whether he could do other duties, such as continuing with the inventory they had asked him to do. Mr. Foster had said no and had added that he had been hired to drive trucks and that since he could not perform his duties, he would have to go home. The Complainant had asked whether he could do foot courier duties and Mr. Foster answered that he could not because of the physical requirements of that position. [39] Paul Océan, who had also attended the December 15th meeting, added that Mr. Foster had informed the Complainant that the decision he had made was not easy but that he had to terminate his employment because he was no longer qualified for it. Mr. Océan had then asked what would happen with the Complainant. Mr. Foster had answered that there was nothing available for him, and Marie-Claude Pilon had added that the Complainant was going to go on insurance [translation] and that after that they would see. Again according to Mr. Océan, the Complainant continued to plead that he was capable of doing his work, and it was then that Mr. Foster had said, Look we don't want you here, you have a disability. [40] After the meeting, Mr. Océan informed the Complainant that the union was going to file a grievance challenging Purolator's decision. On December 22, 1998, the union filed a grievance demanding that the employer reinstate the Complainant in his courier position and pay him the wages that he alleged having lost. [41] After the December 15, 1998 meeting, the Complainant went home. Purolator continued to pay his wages based on 32.5 hours per week. [42] On December 24, 1998, the Complainant received a letter from Purolator summoning him to an appointment on January 19, 1999 for a medical assessment with Dr. Suzanne Rousseau, a neurologist. E. The period between January and December 1999 [43] After the December 15, 1998 meeting, the Complainant contacted his neurologist, Dr. Pierre-Paul Noiseux. The neurologist wrote a letter dated January 5, 1999 saying that the Complainant was capable of performing his courier duties, but with the observation that, because of his myopathy, his performance would be slower than that of someone not having this disease. [44] The Complainant stated that he had submitted a copy of this letter to Marie-Claude Pilon the following day, namely January 6, 1999. According to the Complainant, Ms. Pilon told him that the letter was not enough, that he would have to have a neurological assessment with a Purolator-designated neurologist. [45] On January 19, 1999, the Complainant arrived for his appointment with Dr. Suzanne Rousseau at Les neurologues de Maisonneuve private clinic. It is interesting that, in her letter of December 22, 1998 addressed to Dr. Rousseau, Marie-Claude Pilon stated that, since 1993, the Complainant had been involved in 19 road accidents, but immediately added that each of the road accidents was minor, a fender bender while turning, another while backing up ....none of the damage was very costly, but on the whole, it demonstrates Mr. Coulter's lack of `coordination' [translation]. (My emphasis.) She also indicated that [t]he manager [Mr. Foster] drew our attention to the fact that Mr. Coulter drove with his wrists [in his report, Mr. Foster wrote that the Complainant drove with the `palm' of his hands] and not with his hands, that he drives bent over almost at 90°, that he would get into the truck head first [I have trouble understanding what these two observations have to do with safety while driving a vehicle]'' [translation]. Finally, she requested that Dr. Rousseau assess the Complainant's ability to perform his work: Is he able to drive a truck safely? Is his hand grip strong enough to hold the steering wheel properly? Has there been any deterioration in his condition since your last examination in July 1997? [translation] [46] As Ms. Pilon's letter indicates, Dr. Rousseau had already conducted a neurological examination of the Complainant on July 23, 1997 to determine his neurological condition. Following that examination, she expressed the opinion that the Complainant's muscle weakness, while allowing him to engage in most normal daily activities, was nevertheless enough to put him in a risk position that I consider excessive in the job he holds. In fact, even though he is probably capable of driving a personal vehicle, his job requires him to drive a heavier vehicle for an eight-hour work period every day, thereby increasing the risk of an accident [translation]. (My emphasis.) [47] She then added that the disease progresses slowly and that deterioration and a heightened risk [translation] could be expected. Therefore, in 1997 the Respondent was aware of the Complainant's health condition. In cross-examination, Ms. Fillion said that she was unaware of the 1997 assessment until she read about it in Dr Rousseau's report. However, Marie-Claude Pilon was aware of it because she mentioned it in her letter of December 22, 1998. [48] In her 1997 report, Dr. Rousseau stated, "I therefore believe that the applicant is at risk of an accident because of his myotonic dystrophy. However, in fairness, I suggest that it would probably be preferable to have his actual driving abilities evaluated, for example at the Constance-Lethbridge Centre or the Lucie-Bruneau Rehabilitation Centre (in ergotherapy) [translation]. (My emphasis.) The Respondent did not follow-up on this recommendation until two years later, specifically May 31, 1999. Between 1997 and 1998, there was no follow-up to this report. The issue of the Complainant's truck-driving safety apparently did not worry Purolator at that time. [49] After her second examination, Dr. Rousseau sent a report to Purolator on January 26, 1999. In the cover letter, she stressed, as she had in 1997, that the Complainant should undergo an evaluation of his driving abilities with a qualified ergotherapist. [50] In her 1999 report, she said she had essentially the same opinion as the one she had expressed in the July 1997 report. She added that the current muscle weakness that is obvious upon objective examination, while allowing him to engage in most normal daily activities, is enough to put him in a risk position that I consider excessive in the job he holds [translation]. It is interesting that this finding is not necessarily due, according to her report, to the fact that the Complainant was required to drive a heavy truck, but instead to the fact that he had to do so for an eight-hour shift every day [translation], which, according to her, unquestionably increases the risk of an accident [translation]. [51] She then added that she had not observed any obvious or overall deterioration in his muscle strength since his previous assessment. However, she did explain that, since this is a disease that progresses slowly, deterioration and therefore a heightened risk could be expected [translation]. [52] In response to specific questions put to her, Dr. Rousseau concluded that the Complainant was fit for remunerative work, but believed that he was at risk driving a truck safely and holding a full-time driving position. According to her observations, the Complainant is capable of holding a steering wheel with his hands, but the myotonic condition limits his ability to let go of the steering wheel when required to perform repetitive actions. In her view, the Complainant could be relocated [translation] to a more suitable work, preferably office work. [53] Ms. Fillion acknowledged in cross-examination that relocating the Complainant was never considered at that time. Purolator preferred instead to follow one of Dr. Rousseau's other recommendations, namely to conduct an evaluation of actual driving ability through a simulation exercise and an ergotherapy assessment, a recommendation that had been made previously in 1997. [54] Dr. Noiseux, the expert witness for the Commission and the Complainant, also conducted, at the Commission's request, a neurological assessment of the Complainant on July 28, 2003. He observed that, because of the dysfunction of the striated muscles, the Complainant had slowed muscle function during both contraction and relaxation and that this affected his mouth, tongue, eyes, hands, arms, feet, pelvis, quadriceps and all muscles involved in walking. As a result, with a sustained speed of contraction and slowed relaxation speed and with myotonia in the muscles, the doctor concluded that the Complainant's functioning was slowed. [55] As to strength, he said that the Complainant could not lift weights exceeding 40 lbs. He explained that it was frequency that was important in this case. The Complainant could lift an object weighing that much, but that if it was too often, he would probably be unable to do so. [56] He stated that, when squatting, the Complainant could not stand back up again without holding onto furniture or a support pole. In the cerebellum, his movements were slow, but not distorted. He exhibited a bit of steppage gait [translation]. [57] In his assessment report, Dr. Noiseux concluded that the Complainant's muscle functioning was slowed throughout his whole body. He was unable to make quick movements because the muscles did not relax fast enough. In his view, the Complainant's medical condition did not prevent him from driving a delivery truck even though his muscle movements were slower than those of someone who does not have this disease. Therefore, according to his assessment, he was fit for his normal duties. [58] According to Dr. Noiseux, making quick movements was not possible since the muscles did not relax fast enough. He added that there was a manipulation paresis (a weakness). The only muscle not currently affected was the heart. He acknowledged that, because of the Complainant's medical condition, turning a steering wheel quickly using contraction and relaxation movements would be difficult. He agreed that, when turning, the Complainant would be slower with a larger turning radius. He also conceded that the total lack of the Achilles reflex prevented the cautionary or contraction and relaxation preparation movements required for acceleration and deceleration when driving a vehicle. The monosynaptic reflex, an involuntary reflex or automatism, is not there, but Dr. Noiseux immediately added that this does not prevent the Complainant from voluntarily ordering his foot to accelerate or decelerate, but again with some degree of slowness. [59] He also added that the Complainant's only restrictions were to not lift weights greater than 40 lbs., run, engage in sports and strenuous physical activity or go up stairs quickly. [60] Other than these restrictions, the Complainant is, in his view, capable of performing all courier duties, albeit slowly. He conceded that his conclusion was based on the job description that the Complainant had provided him, not on an official job description from the Respondent. He said that he had taken into account that the Complainant had performed his work with no problems from 1991 to 1998. In his view, this patient should have been relocated...to perform some other work that is consistent with his condition [translation], a recommendation similar to the one Dr. Rousseau had made in her 1997 and 1999 reports. [61] Dr. Noiseux said he saw no contradiction between the statement that the Complainant was fit for his duties and the comment that he should have been relocated [translation]. When the Complainant had been removed from duty, the Respondent, according to Dr. Noiseux, should have found him some work that was consistent with his condition, in other words work that could be performed with a degree of slowness, such as office work. [62] Dr. Noiseux also read Dr. Rousseau's two reports in order to prepare his assessment report. He stated that he did not share Dr. Rousseau's findings regarding the risk the Complainant presented in his truck-driving duties. According to him, this conclusion does not flow logically from the premises in the reports. As regards Dr. Noiseux's and Dr. Rousseau's assessments, since Dr. Noiseux was called to testify and was cross-examined and seemed to me to be a credible witness, where there are contradictions in the reports, I tend to favour Dr. Noiseux's findings. [63] Following Dr. Rousseau's report, the Complainant had another meeting with Louise Fillion and Marie-Claude Pilon, on January 29, 1999. They informed him of the findings in Dr. Rousseau's report and suggested that he submits an application under Purolator's long-term medical insurance [translation] plan. Ms. Fillion testified that she had told the Complainant that he had to have the forms filled out soon and attach a copy of a medical report because, from then on Purolator would no longer be paying him. Ms. Fillion also said that she had then informed the Complainant that arrangements would be made for an ergotherapist to conduct an assessment. [64] The medical insurance form was duly filled out and sent to the insurer, who refused the Complainant's application. The reason for the refusal was that Dr. Drainville, the Complainant's family doctor, indicated in his report that he had not placed the Complainant on sick leave. The Complainant did not appeal the decision. Ms. Fillion testified that, following the insurance company's refusal, she forwarded them a copy of Dr. Rousseau's report, but the decision remained unchanged. [65] When asked why she had not considered assigning the Complainant to another position when she received Dr. Rousseau's report, Ms. Fillion responded that it was not the Respondent's policy to assign an employee on medical insurance to another position, particularly since, at the time, the Complainant was asking to be reinstated in his courier position. [66] On February 15, 1999, the Complainant received his Record of Employment [translation]. According to this record, Purolator terminated his employment because, in the box indicating the reason for this record of employment [translation], the code M was entered, meaning termination [translation]. According to Marie-Claude Pilon, the use of the code M was an error. According to her, on February 16, 1999, instructions were given to deactivate [translation] the Complainant because he was no longer being paid. However, she added that he was still considered an employee. On June 21, 1999, after his assessment at the Lucie Bruneau Centre, which we will return to further on, the Complainant received an amended record of employment indicating that the reason was now code D", meaning illness or injury [translation]. I do not doubt Ms. Pilon's testimony, but I do wonder about the time that passed between the error and when it was corrected. [67] The Complainant stated that, on February 25, 1999, after the first Record of Employment [translation] was issued, he filed another grievance. In this grievance, he challenged his termination. Surprisingly, when Purolator received this grievance, it did not correct what it had considered to be an error on the February 15, 1999 record of employment. [68] After his assessment with Dr. Rousseau, the Complainant was referred to an ergotherapist, France Duhamel, of the Lucie Bruneau Centre. According to Louise Fillion, there were to be two parts to the assessment. The first was a driving evaluation in a car and afterwards, if necessary, a second evaluation would be conducted in a truck. The Lucie Bruneau Centre had suggested this procedure. If there were any problems in the car, there would be no need to proceed with the second evaluation. [69] The Complainant's car-driving evaluation by the ergotherapist was held on May 31, 1999. The Complainant claimed to be surprised that the evaluation was done with a car having a 5-speed standard transmission and no power steering, whereas for the Respondent, he was required to drive trucks. The evaluation took two and a half hours and followed the Complainant's route. [70] The ergotherapist's report was submitted on June 7, 1999. The only comments from the Complainant's driving evaluation that could be considered negative are those regarding the turns that were executed slower than normal, according to the evaluator. The evaluator observed a tendency to turn on a slightly wider turning radius and that hairpin turns were a bit more difficult. She also noticed that the manoeuvres for backing up while turning had to be executed at a slower speed because of motor impairment, but that the Complainant backed up satisfactorily using the mirrors. There was no mention of any manoeuvres that could endanger the safety of the Complainant or pedestrians. [71] From her evaluation, she concluded that the Complainant was able to drive a motor vehicle safely. She suggested that he modify certain manoeuvres to compensate for his motor impairment, for example turning a little more slowly. She also added that the Complainant had functional limitations and suggested adding a ball (or other type of handle) to the steering wheel to make turning easier, due to the number of hours of driving per day. [72] According to Dr. Noiseux, adding a ball to the steering wheel would be pointless. He pointed out that the Complainant had to perform his driving tasks with both hands, and adding a ball would not make any difference He also said that the Complainant does not have a problem with his grip on the steering wheel. He does not have a muscle contraction problem; his problem is with relaxation. [73] When asked whether the Complainant could perform all aspects of Purolator's courier duties, Ms. Duhamel answered, With respect to driving a vehicle, Mr. Coulter is able to carry out all aspects of this part of the job. As for delivering parcels, it is possible that he has some difficulties, but it would be better for him to be examined by an ergotherapist in an occupational fitness assessment [translation]. This recommendation received no follow-up. [74] Finally, she stated that, for now and according to the road tests, the Complainant did not present any imminent danger. Despite the use of a car, this conclusion is very different from George Foster's. Mr. Foster had stated that, if it were up to him, the Complainant would not have a driver's licence. [75] According to Ms. Fillion, Purolator had problems with the ball recommendation because installing one would result in a restriction on his driver's licence. In addition, Purolator was still not sure of the Complainant's truck-driving ability. It had therefore been decided to conduct a second road test with a truck. On August 5, 1999, two months after Ms. Duhamel's report was submitted, Ms. Fillion had a conversation about this with Isabelle Fontaine of SécuriMed. However, it was not until October 14, 1999 that SécuriMed sent the Respondent a cost estimate for a road test with a truck. In the end, the truck test did not happen. [76] According to Purolator's witnesses, there were two reasons why this test never took place. First, apparently it was difficult to find an instructor who was able to conduct this test with a truck. However, no evidence was submitted regarding steps taken in this direction other than the cost estimate submitted by SécuriMed in October 1999. The second reason involves the SAAQ's decision on October 1, 1999 to issue restrictions on the Complainant's driver's licence preventing him from driving a truck. [77] Around September 1999, the Complainant decided to apply for his class 1 driver's licence so he could, according to him, find another driving job. On October 1, 1999, the Société de l'assurance automobile du Québec notified him in a letter that it would not issue him a class 1 driver's licence because of his disability. However, the Complainant still had the privilege of driving vehicles corresponding to classes 5 and 6A licences, but with some restrictions including a vehicle weight restriction. In accordance with these new restrictions, the Complainant could not drive vehicles over 2,500 kilograms, which eliminated many employment opportunities for him, including with Purolator, whose trucks exceed this weight. [78] The Complainant stated that he could have appealed the SAAQ's decision, but that he chose not to do so because of Article 11.04(b) of the Collective Agreement. He believed that he could benefit from this article and be moved to another classification. A grievance was filed on December 8, 1999, asking the employer to apply Article 11.04(b). [79] Jimmy Mansell testified that, after this grievance was filed, he had discussions with Louise Fillion to determine the possibility of moving the Complainant within the company. Note that Article 11.04(b) does not provide for the creation of a new position but rather for moving an employee within the company in accordance with the procedure set out in Article 15.02 of the Collective Agreement. According to Mr. Wilson, this provision did not apply in the Complainant's case because his driver's licence had not been revoked, just reclassified [translation]. [80] A meeting involving the Complainant, Mr. Mansell, Mr. Wilson and Ms. Fillion was held on December 22, 1999. During this meeting, the parties discussed the possibility of relocating [translation] the Complainant. According to Mr. Wilson, the marker [translation] position seemed to be the only operations position suitable for the Complainant because it was one of the few positions not requiring an employee to use much physical effort. Mr. Wilson stated that he was sure the Complainant would be able to perform most of the marker [translation] duties and that it was possible that a suitable environment would be found for his situation. [81] A marker is a person responsible for identifying the destination on parcels to facilitate sorting and directing. The wage is comparable to that of a courier. [82] Purolator representatives gave the Complainant a book to study the codes for becoming a marker because the Complainant would have to qualify for this position. If he was successful, the employer would then have to perform checks to find a position in accordance with the provisions of the Collective Agreement. According to Mr. Wilson, Purolator had shown the union that it was open to considering opportunities that may not comply with those provisions. To accomplish that, however, a letter of understanding with the union had to be signed. [83] The Complainant decided not to apply for the marker [translation] position because Mr. Mansell had told him that even if he qualified, he could not be moved to that position since he did not have enough seniority. Mr. Mansell explained that the Complainant could have been moved to a marker [translation] position, but that he would not have enough hours to support himself because of his low seniority. However, the Complainant acknowledged that the Respondent had told him during the December 22nd meeting, If you pass the marker position, we'll see if we can find you a job somewhere. [84] Purolator and the union never reached a point in their discussion where they contemplated a special agreement for deviating from the Collective Agreement in order to move the Complainant to a marker [translation] position. [85] A second meeting was held on January 7, 2000. Attending this meeting were the Complainant, Jimmy Mansell, Guy Wilson and Louise Fillion. During the meeting, they first discussed the possibility of relocating the Complainant to operations, but according to Ms. Fillion's testimony, the Complainant's medical condition meant that the only operations opportunity was the marker [translation] position. Therefore, it was decided to focus on clerical positions. [86] The Complainant expressed his desire to write the proficiency tests for a support officer position in the RRP (document control centre) and an operator position at the call centre. The Complainant passed the proficiency tests for both positions. These positions were in a different bargaining unit than the one for couriers, namely the Energy and Paperworkers' Union of Canada. In the end, the Complainant chose the call center operator position because the pay was better. The advancement opportunities in this position were also more attractive according to the Complainant. F. His position at the call centre [87] The Complainant started working at the call centre on January 25, 2000. His wage was $13.24 an hour. [88] The Complainant, even though already a Purolator employee, was considered a new employee for the purposes of this position because he had come from a different certification unit. Therefore, he was on probation for 60 days. [89] Josée Nadon said that she had met with the Complainant on February 8, 2000, to explain, among other things, the regular employee evaluations. As to these evaluations, every month the employees had to take general knowledge tests. Monthly monitoring of employee communications with customers was also conducted and evaluated by supervisors. These evaluations were used to prepare quality reports for each employee. [90] On his first quality report in February 2000, the Complainant received a mark of 84%. According to Josée Nadon, the Complainant's greatest difficulties during the evaluation were that he spoke too fast, that he failed to confirm some information and that he used the French familiar form of address with customers. In March 2000, the mark on his quality report increased to 94%; in April his mark was 91%. The same comments were made regarding his speech rate, his use of the familiar form of address and the fact that he sometimes failed to confirm information. [91] The May 2000 quality report was not submitted as evidence and no reason was given for its absence. [92] According to Ms. Nadon, the average for the Complainant's four call evaluations was 89%. She added that she saw no progress in his results, except between February and March. However, not having the May results, I find it difficult to draw this conclusion. [93] On the general knowledge tests, his marks were 85% for February 2000, 60% for March 2000 and 85% for April 2000. Note that, for April, only the mark was submitted as evidence because the test documents could not be located. On the May 2000 general knowledge test, the Complainant received a mark of 100%. His four-month average for the exams was 83%. [94] According to Ms. Nadon, the employer required its employees to achieve 95% on both evaluations. She added that the Complainant's performance evaluations were not very good. She said that she had met with the Complainant on April 26, 2000 and explained to him what the employer expected of him, the objectives he had to achieve and that he had a month to improve. She added that she told him he was on probation and that if he did not meet these expectations, Purolator would terminate his employment. [95] Ms. Nadon said that, since the Complainant's performance did not improve, she discussed his case with Ms. Fillion, who discussed it with Mr. Wilson. The decision was then made to terminate the Complainant's employment. According to their evaluations, the Complainant did not have the skills required for the call centre operator position. [96] On June 9, 2000, Josée Nadon met with the Complainant and told him that he was terminated because of the quality of his work. [97] The Complainant stated that his termination from the call centre was a surprise to him because he was in no way expecting it. He said he was shocked and discouraged by his employer's decision. Since he was on probation and was not permanent, he could not file a grievance. The Respondent never considered relocating him to another position. As Ms. Fillion pointed out, When someone on probation ... is terminated, relocating him/her to another position is not considered. If he/she doesn't have the skills for a specific duty or position, he/she doesn't have the skills for another one [translation]. [98] After his termination, the Complainant said that he met with people at Emploi-Québec. Through them, he was accepted into a computer technical support officer course for September 2000 at John Abbott College in Sainte-Anne-de-Bellevue. Emploi-Québec paid for the course. [99] On September 12, 2000, the Complainant filed a complaint with the Canadian Human Rights Commission. It was also around this time that the Complainant applied for Quebec Pension Plan disability benefits, which he would receive from October 2000 until his return to the labour market after finishing his course at John Abbott College. He said that he had applied for this because of his precarious financial situation. The amounts he received for his studies were not enough to support him and his family. [100] In mid-September 2000, he started his course at John Abbott College. He successfully passed his final exams. He then took three months of training. He found a job with a company called Gexel Telecom, a call centre providing technical support for high-speed users. In February 2002, he found a new job with another call centre, Sodema Télé-Performance, where his work involved providing customers with technical support. He is still working for this company. II. ISSUES The questions I was called upon to decide can be summarized as follows: Was the Complainant discriminated against by the Respondent, Purolator Courier Ltd., on the basis of a disability? If the Tribunal answers in the affirmative, did the Respondent contravene section 7 of the Canadian Human Rights Act by refusing to accommodate and continue to employ the Complainant? If the Tribunal answers in the affirmative to the second question, to what remedies is the Complainant entitled? III. RELEVANT PROVISIONS FROM THE CANADIAN HUMAN RIGHTS ACT The relevant provisions from the Canadian Human Rights Act are as follows: 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. 15. (1) It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. IV. ANALYSIS AND DECISION [101] In the Supreme Court's decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [also referred to as Meiorin"] and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [also referred to as Grismer"], the classic distinction between direct and indirect discrimination has been replaced by a unified approach to the adjudication of human rights complaints. Under this unified approach, the initial onus is on a complainant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent. [102] Once a prima facie case of discrimination has been established, the onus shifts to the respondent to prove, on a balance of probabilities, that the discriminatory standard or policy is a bona fide occupational requirement. In order to establish this, the respondent must prove that: it adopted the standard for a purpose or goal that is rationally connected to the function being performed. it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose, with no intention of discriminating against the claimant. the impugned standard is reasonably necessary for the employer to accomplish its purpose, i.e. safe and efficient job performance. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship. [103] The Meiorin and Grismer cases address parameters for determining whether a defence based on undue hardship has been established. In Meiorin, the Supreme Court observed that the use of the word undue implies that some hardship is acceptable. It is only undue hardship that satisfies this test. An uncompromisingly stringent standard may be ideal from the employer's perspective. Yet, if it is to be justified under human rights legislation, the standard must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. [104] The Supreme Court further observed that, in order to prove that a standard is reasonably necessary, a respondent always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship. [See Grismer, supra, para. 32.] It is incumbent on the respondent to show that it has considered and reasonably rejected all viable forms of accommodation. The onus is on the respondent to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship. [See Grismer, supra, para. 42.] [105] In the present case, there is no doubt that the Complainant has a physical disability, Steinert's Myotonic Dystrophy, and I do not believe that I need to elaborate further on that. The Respondent had been aware of this physical disability since the Complainant was first hired. [106] Once the existence of this disability is established, it is incumbent upon the Commission and the Complainant to establish a prima facie case of discrimination. Once this is established, the burden shifts to the Respondent to justify its decision based on a bona fide occupational requirement. [107] To determine whether a prima facie case has been established, we must return to the evidence surrounding the December 15, 1998 meeting. In the conclusion of the written report he prepared after his road test, George Foster wrote, While these problems do effect the productivity of the company, the principal reason for these events is that Robert suffers from a degenerative disease called `Steinert's Myotonic Dystrophy' [translation]. I feel that there is both a security and an image problem so evident that I do not feel that Robert is capable of performing the duties of a courier as is required by the company (My emphasis). It is clear upon reading this excerpt that the reason why Purolator removed the Complainant from his position was his disability. If that were not enough to convince us, we need only refer to the notes taken by Marie-Claude Pilon during the December 15, 1999 meeting, in which she wrote that Mr. Foster had said, I saw you drop boxes that were not even five pounds. What does the customer think, that you're drunk? [108] I am of the view that this evidence alone is sufficient to justify a verdict in the Complainant's favour, in the absence of an answer from the Respondent. Therefore, I find that a prima facie case of discrimination has been established and that it is now up to Purolator to justify its decision based on a bona fide occupational requirement. [109] On this point, if we rely on Mr. Wilson's testimony, the goal of Purolator's standard is road safety for its employees, the public and goods. According to him, this concern for road safety arises from the Act Respecting Owners and Operators of Heavy Vehicles, approved on June 20, 1998 by the Quebec government. It is obviously impossible to establish an absolute road safety goal because there is no such thing as a perfect driver. As the Supreme Court observed in Grismer, driving ability varies even among drivers with excellent vision, hearing and reflexes [translation] [Grismer, supra, para. 26.]. Therefore, there is a road safety goal that I would describe as reasonable. Moreover, given the nature of Purolator's services, we can also identify another standard, the goal of which is the effective performance of courier duties. [110] After determining the nature of Purolator's goals, we must now ask whether it has established, on a balance of probabilities, that these road safety and effectiveness goals are rationally connected with the functions it performs. In other words, whether the goal sought (safety and effectiveness) is rationally connected to the performance of the work in question (delivering parcels). I am of the view that a rational connection has been established. There is an unquestionable connection between road safety and effectiveness and parcel delivery by a private courier service. In fact, companies using vehicles in their business must be conscious of the safety of its employees, the general public and the goods it conveys. Also, to keep its market position, it must ensure that its services are as efficient as possible. [111] The third issue is whether Purolator's standard is reasonably necessary to the accomplishment of the legitimate goal. To satisfy this requirement, it must demonstrate that, to meet its goals, it is impossible to accommodate individuals like the Complainant without experiencing undue hardship. [112] In Meiorin, the Supreme Court suggests an approach for taking into account various ways of accommodating an individual's abilitities. Beyond personal evaluations for determining whether the individual has the skills and abilities required for the job, the Respondent should consider different ways of performing the work while still achieving the legitimate work-related purpose. Purolator never carried out this evaluation. [113] As to the danger the Complainant presented while driving a vehicle, the evidence submitted at the hearing seems inconclusive to me. In the Driving Certification Form [translation] that George Foster filled out during the route evaluation, he noted only two incidents, and no reports were prepared for either of them. [114] In her letter of December 22, 1998, addressed to Dr. Rousseau, Marie-Claude Pilon said that, since 1993, the Complainant had been involved in 19 road accidents, but immediately added that each of the road accidents was minor, a fender bender while turning, another while backing up....none of the damage was very costly [translation]. [115] In 1997, Dr. Rousseau examined the Complainant for the first time, and she observed that he was at risk of an accident because of myotonic dystrophy [translation]. She had suggested that it would probably be preferable to have his actual driving abilities evaluated by an ergotherapist. The issue of the Complainant's truck-driving safety apparently did not worry Purolator at that time since it did not follow up on this recommendation from Dr. Rousseau and did not remove the Complainant from the route. [116] In her second report in 1999, Dr. Rousseau reproduced her 1997 recommendation and suggested that the Complainant undergo an evaluation of his driving abilities with a qualified ergotherapist. She noted what she described as numerous [translation] accidents involving the applicant and added that, on the whole, these accidents demonstrate the applicant's functional difficulties [translation]. I have a hard time understanding on what Dr. Rousseau based her conclusions. Since she was not called upon to testify, I have no evidence before me for evaluating the reasons that led her to make this judgement. I have to agree on this point with the opinion from Dr. Noiseux, the Commission's and the Complainant's expert witness, and I find that this conclusion does not flow logically from the premises in Dr. Rousseau's reports. [117] I also find interesting a further conclusion in Dr. Rousseau's report, where she states that the current muscle weakness that is obvious upon objective examination, while allowing the applicant to engage in most normal daily activities, is enough to put him in a position of excess risk in the job he holds [translation]. This finding is not necessarily due, according to her report, to the fact that the Complainant was required to drive a heavy truck, but instead to the fact that he had to do so for an eight-hour shift every day [translation], which, according to her, unquestionably increases the risk of an accident [translation]. [118] Another interesting observation was her adding that she had not observed any obvious or overall deterioration in the Complainant's muscle strength since her previous assessment. In that case, why did Purolator decide to take action then, whereas, in 1997 when the Complainant's condition was more or less the same, Purolator did not consider the situation to be serious enough to take any action? The only difference, according to Mr. Wilson, was the 1998 passing of the Quebec legislation, but the evidence on this issue is too patchy to make a bona fide occupational requirement from it in this case. [119] Nor is there evidence of any attempt on Purolator's part to determine whether it could not accommodate the Complainant in his courier duties or some other duties without experiencing undue hardship. [120] In her submissions, counsel for Purolator referred to the decision in Brimacombe v. Northland Road Services Ltd, British Columbia Human Rights Council, issued on June 17, 1998, to justify Purolator's request to remove the Complainant from the route while waiting for his medical examination. However, in Brimacombe, once the requested medical certificate was supplied, Northland, the employer, accommodated Brimacombe's disability by assigning him to another position. [See para. 84]. In the case before us, Purolator did not proceed that way, but instead stopped paying the Complainant's wages and suggested that he apply for disability insurance. [121] As to the Complainant's effectiveness problems, Purolator did not submit to the Tribunal any evidence of customer complaints regarding the Complainant's work. Only George Foster complained about the image [translation] the Complainant was projecting, his overly slow way of walking, and the way he conveyed parcels. Here, too, there was no attempt at accommodation, yet Mr. Foster found a way to criticize the Complainant's method of conveying parcels from the loading dock to the truck, which enabled him to accommodate his disability. [122] Has it been demonstrated that it was completely impossible for a person with the disability in question to meet the reasonable objectives of road safety and effectiveness? Has it been demonstrated that any accommodation would impose undue hardship? The answer is obviously no. Purolator's evidence is far from sufficient. [123] Therefore, I find that Purolator failed to demonstrate satisfactorily that, between December 15, 1998 and January 25, 2000, the Complainant, due to his disability, was unable to meet the road safety and effectiveness objectives without imposing undue hardship and that it therefore had the duty to accommodate the Complainant in the performance of his duties. Sending the Complainant home without pay as of the end of January and suggesting that he apply for disability insurance is definitely not an acceptable form of accommodation. [124] More than just meagre effort is required from the employer to meet its duty to accommodate. Accommodation is not limited to simply determining whether a complainant is capable of performing his/her current work. The employer is responsible for initiating the accommodation process. [See Conte v. Rogers Cablesystems Ltd., T.D. 4/99, decision rendered on November 10, 1999.] [125] Counsel for Purolator pointed out several times in her final submissions what she described as the strategy that the union and the Complainant had used during that time, which involved demanding that the Complainant be reinstated in his courier position. I attach little importance to this argument. The Complainant, faced with the difficult situation created by Purolator's decision to remove him from duty, had no choice but to try to protect his rights under the Collective Agreement. Faced with this decision, there was nothing preventing Purolator from immediately initiating the process for accommodating the Complainant like Mr. Océan and the Complainant had asked for at the December 15th meeting. Recall that, at that time, Mr. Foster's response had been that nothing was available for him and that Marie-Claude Pilon had added that the Complainant was going to go on insurance [translation] and that afterwards they would see. [126] But what about the period between January 2000 and June 2000, during which the Complainant was working at Purolator's call centre? I agree that the duty to accommodate requires that the employer consider alternatives including reorganizing essential duties, moving the employee to another position and even creating a position geared to the employee's condition. Obviously, the concept of undue hardship applies to this duty. [127] The evidence shows that, as of December 1999, Purolator finally made a reasonable effort to accommodate the Complainant. Mr. Wilson testified that he had evaluated the operations positions available and that he had concluded that the most appropriate position for the Complainant was the marker [translation] position, since the physical effort required was not as great. He also indicated that Purolator was prepared to consider a special arrangement with the union to find such a position for the Complainant. However, on the advice of his union representative Mr. Mansell, the Complainant decided to turn down this opportunity. [128] In his final argument, counsel for the Commission raised the point that Purolator had not considered the possibility of accommodating the Complainant in another position such as a sorter or caretaker. I believe that the evidence submitted by Mr. Wilson demonstrates that Purolator considered these possibilities but rejected them because it believed that they would require too much physical effort from the Complainant. Other possibilities were in clerical services and customer service. In the end, the Complainant accepted a call centre position. [129] However, counsel for the Commission asked us to consider the conditions the Complainant was placed in, in this new position, particularly the fact that he was put on probation for six months. Recall that the duty to accommodate does not require one party to depart significantly from the provisions of the Collective Agreement [Brimacombe - para. 75]. In this context, the Complainant had been informed of the conditions that the new position presented, and he accepted them. [130] Does the duty to accommodate require that the employment relationship be maintained at all costs? The duty to accommodate must be approached with some common sense. When the Complainant accepted a position that completely suited his abilities, he no longer required special accommodation for his limitations. The evidence does not show that the Complainant had any limitations in his operator position. His problems in this position were essentially performance-related. From then on, he was subject to the same rules and performance evaluation as all the other employees. [131] I believe that we must be careful not to acknowledge a duty to accommodate that gives a disabled employee the privilege of maintaining an employment relationship for as long as he/she stays with the company. The duty to accommodate must be to allow disabled employees to keep their jobs as long as they are able to perform their duties. [132] The notion that the duty to accommodate gives employees like the Complainant the right to maintain the employment relationship is contrary to the very existence of the defence of a bona fide occupational requirement. In addition, as Professor Laflamme pointed out in her article L'obligation d'accommodement confère-t-elle aux personnes handicapées un droit à l'emploi? (2002) 62 Rev. of B. 125, at page 156, it could adversely affect true, sustainable integration of the disabled into the labour market [translation]. [133] Therefore, I find that the Complainant was discriminated against on the basis of a disability, in that Purolator refused to accommodate and continue to employ him contrary to section 7 of the Canadian Human Rights Act during the period from December 15, 1998 to January 25, 2000 and that, because of this contravention, he is entitled to the following remedies. V. REMEDIES [134] According to paragraph 53(2)(c) of the Act, at the conclusion of the inquiry the member or panel finding the complaint to be substantiated may make an order to compensate the victim for wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice. [135] In the Complainant's case, I believe that he is entitled to compensation for the wages he lost between December 15, 1998 and January 25, 2000. According to the evidence submitted at the hearing, the Complainant's last pay day at Purolator was February 5, 1999, and his first day of work at the call centre was January 25, 2000. I understand that, as of October 1999, the Complainant had a restriction on his licence preventing him from driving a truck. However, I find that Purolator still had a duty to accommodate him at that time. [136] Therefore, I order Purolator to pay to the Complainant the income he lost in wages between February 5, 1999 and January 25, 2000. This amount will be calculated based on the hourly wage rate provided for in the Collective Agreement in force at the time for a courier with the Complainant's seniority. To reflect the overtime that the Complainant could have worked during that period, I order the wages to be calculated on the basis of 37.5 hours of work per week. [137] By virtue of the power vested in me by subsection 53(2) e) of the Act, I also order the Respondent to pay to the Complainant $5,000 for the pain and suffering caused by its action. [138] As the Complainant stated during the hearing, he will have to use money from this amount to pay back the income he received from the employment insurance program during that period. [139] As to the claim for future lost wages, I believe that an order for this is not justified. [140] I accept the claim for the penalty amount that the Complainant had to pay on February 18, 1999 under his car rental contract, which he had to terminate early. I order the Respondent to reimburse the Complainant the sum of $24,449.82. [141] Due to lack of evidence, I do not accept the Complainant's claims for medical insurance, mediator fees, the loan he allegedly had to obtain from his father and losses to his pension fund. [142] By virtue of the powers vested in me by subsection 53(3) of the Act, I order Purolator to pay to the Complainant $7,500 in compensation for the reckless nature of its action. I believe that George Foster's attitude alone, during the December 15, 1998 meeting, warrants this order. I would also add the slowness with which those responsible at Purolator handled this matter, at least until December 1999, and their attitude of believing that it was enough simply to refer the Complainant to disability insurance to fulfill their obligations. [143] In accordance with subsection 53(4) of the Act and Rule 9(12) of the Tribunal's Interim Rules of Procedure, I award the Complainant interest on the aforementioned amounts, at simple interest, calculated on a yearly basis using the current Canada Savings Bond rate. The interest begins accruing on September 12, 2000, the date the Complainant filed a complaint with the Commission. [144] Purolator is responsible for calculating the amounts as soon as possible and informing the Complainant and the Commission in writing of the details. [145] I also order Purolator, in consultation with the Commission, to take steps to prevent similar practices in the future. [146] Finally, I agree to maintain my jurisdiction regarding the fiscal implications of my order relating to the income losses and the implementation of the remedies I ordered above. Signed by Michel Doucet OTTAWA, Ontario December 7, 2004 PARTIES OF RECORD TRIBUNAL FILE: T768/1803 STYLE OF CAUSE: Robert Coulter v. Purolator Courier Limited DATE AND PLACE OF HEARING: January 11 to 13, 2004 January 19 to 22, 2004 April 19 to 23, 2004 Montréal, Quebec DECISION OF THE TRIBUNAL DATED: December 7, 2004 APPEARANCES: Robert Coulter On his own behalf Giacomo Vigna For the Canadian Human Rights Commission Louise Béchamp For Purolator Courier Limited

2004 CHRT 38

CHRT

Public Service Alliance of Canada (Local 70396) v. Canadian Museum of Civilization Corporation

en

2004-12-14

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7096/index.do

2023-12-01

Public Service Alliance of Canada (Local 70396) v. Canadian Museum of Civilization Corporation Collection Canadian Human Rights Tribunal Date 2004-12-14 Neutral citation 2004 CHRT 38 File number(s) T915/3504 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE PUBLIC SERVICE ALLIANCE OF CANADA (LOCAL 70396) Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN MUSEUM OF CIVILIZATION CORPORATION Respondent RULING ON DOCUMENT DISCLOSURE MEMBER: J. Grant Sinclair 2004 CHRT 38 2004/12/14 I. FACTS II. ANALYSIS III. ORDER I. FACTS [1] The Complainant, Public Service Alliance of Canada (Local 70396) has filed a complaint with the Canadian Human Rights Commission, dated March 6, 2000, alleging that the Respondent, Canadian Museum of Civilization Corporation has contravened ss.10 and 11 of the Canadian Human Rights Act by applying a gender biased job evaluation plan to its employees in the Complainant bargaining unit. [2] In its disclosure request, the Complainant asked the Museum for the point factors weightings and the sub-factor weighting scale used in the job evaluation plan to calculate the point value of a particular job and determine the job classification. These in turn are used to set the pay level for the job. [3] The Complainant also requested production of the Computer Program that generates the point scores and classification levels from the data fed into it by Museum Human Resources staff. As I understand the Complainant's request, the Computer Program is necessary to validate or test the validity of the job point scores and job classifications. The Museum uses the Computer Program to avoid any human error that could result in manually calculating a job score and classification. [4] The Museum accepts that the point factor ratings and sub-factor weighting scale are relevant to the complaint and necessary for the Complainant to support its case. But it has serious concerns that if it discloses the point factor weightings and sub-factor weighting scale, the Complainant could use this information for purposes collateral to the complaint to the prejudice of the Museum. [5] The Museum filed a Notice of Motion with the Tribunal dated August 18, 2004 for an order restricting who can receive this information, how it can be used and requiring individual undertakings be given relating to disclosure. The Museum also resists producing the Computer Program because of a licensing agreement between itself and Watson Wyatt & Company, owner of the Computer Program. The agreement prohibits the Museum from copying the program or giving it to a third party and production could violate the Museum's contractual obligations. Further, the Museum says, the calculations done by the Computer Program can be done by other readily available software programs or manually. [6] The concerns of the Museum are set out in the affidavit of Rhéal Bouvier, Manager, Human Resources Staffing, Programmes and Policies for the Museum, which affidavit was filed at the hearing of the Motion. According to Mr. Bouvier, after the complaint was filed with the Commission, the parties established a Job Evaluation System Review Committee to attempt to design a new job evaluation plan. [7] On this Committee were Mr. Bouvier, Maggie Arbour-Doucet, Denise Corbett, both members of the Complainant bargaining unit, Robert Lamoureux, Classification and Equal Pay Officer employed by PSAC, four PIPSC representatives and three non-unionized members of the Museum. [8] At that time, Mr. Lamoureux's responsibilities included job evaluation, classification and pay equity issues for Complainant Local 70396. He continued to work with the Local until May 2004 when his responsibilities were taken over by Bonnie Carroll, also a Classification and Equal Pay Officer employed by the Complainant, who had these responsibilities from 1988-1997. [9] The Committee held a meeting on November 1, 2004. At the meeting, Mr. Bouvier was asked by Mr. Lamoureux if the Museum would provide committee members with the point factor weightings. He responded by requesting assurance from Mr. Lamoureux that if disclosed, the information be kept confidential. Mr. Lamoureux would not give such an assurance and also said that such information would likely get out. According to Mr. Bouvier, Ms. Arbour-Doucet and Ms. Corbett nodded their heads in agreement with this position. [10] Mr. Bouvier also deposed that in subsequent conversations, Mr. Lamoureux told him that he could not assure the confidentiality of the information if disclosed, and he would give the information to any bargaining unit member who asked. [11] Ms. Carroll, in her affidavit on behalf of the Complainant, agreed with Mr. Lamoureux's position and believed that this information should be shared with employees whose jobs were evaluated by the plan so they could understand how their job scores were determined. Further, Ms. Carroll stated that this information should be used by the Complainant, as the certified bargaining agent, for collective bargaining purposes. II. ANALYSIS [12] All parties agree that the implied undertaking rule, applies to any documents or information disclosed by the Museum. The rationale for this rule is that a party to litigation should have the full right of disclosure and inspection of relevant information, including that which is confidential, as is necessary to dispose fairly of the case. However, a party cannot use this right of disclosure for any purpose collateral to the litigation. If there is a real risk of such use despite the undertaking, additional restrictions can be imposed on how the disclosed information can be used. (See Zellers Inc. v. Venta Investments Ltd. [1998] O.J. No. 2118, (O.C.J.); Reichmann v. Toronto Life Publishing Co. [1990], 44 C.P.C. (2d) 206, 207-210 (H.C.J.); Alberta (Treasury Branches) v. Leahy [2000] A.J. No. 993, pp. 54-55 (Q.B.). [13] The Museum argues that the implied undertaking rule is not sufficient to protect the confidentiality of the disclosed information, information that it says has always been confidential and has never been disclosed to the Complainant. The risk of its collateral use, the Museum argues, is found in the statements of Mr. Lamoureux, and Ms. Carroll and the apparently nodding agreement of Ms. Corbett and Ms. Arbour-Doucet. [14] But these persons did not express an intent to breach an undertaking. Rather they expressed an unwillingness to give an undertaking at that time. This is not evidence suggesting that they would not honor any undertaking if they gave it. [15] As for the Complainant, its position is that the implied undertaking rule is sufficient to protect confidentiality. I do not agree. Unlimited disclosure within the Complainant bargaining unit is incompatible with confidentiality notwithstanding the implied undertaking rule. [16] For the Complainant to be given a full and ample opportunity to present its case the disclosure need only be shared with counsel, the instructing member/members of the Complainant bargaining unit and any consultants retained by the Complainant for advice and/or expert opinion. Disclosure should be limited to these persons only. And with the exception of counsel, who are subject to professional obligations and rules of conduct, these persons should be required to give written undertakings with respect to non-disclosure of the documents. In my opinion, this would satisfy both the concerns of the Museum and the needs of the Complainant. [17] The Commission is satisfied with the terms of the order sought by the Museum, except the terms relating to the Computer Program. [18] The Complainant asks for production of the Computer Program. The Commission agrees that it should be provided. This is somewhat problematic. Although the Tribunal can order disclosure by the Museum as an incident of ensuring a fair hearing under the Act, such an order could affect the proprietary interest of Watson Wyatt & Company. Fairness requires that Watson Wyatt & Company be given notice of the request and the opportunity to make submissions to the Tribunal as to under what terms, if any, the Computer Program should be produced. III. ORDER [19] Until and unless otherwise ordered, the point factor weightings and the sub-factor weighting scale, as defined in the Notice of Motion (documents) shall be disclosed to the Commission and/or the Complainant, in non-electronic format, only on the following terms: The Complainant and the Commission shall not use the documents or the information contained therein for any purposes other than those of this proceeding; The Commission shall not disclose or communicate in any manner whatsoever the documents or the information contained therein to anyone other than its legal counsel, legal services branch staff, the Chief Commissioner, the Secretary General or any consultants retained for the purpose of providing it with advice and/or expert opinion evidence, and with the exception of legal counsel only, subject to them providing written undertakings to be bound by the terms of this Order; The Complainant shall not disclose or communicate in any manner whatsoever the documents or the information contained therein to anyone, other than its legal counsel and their staff, the instructing member or members of the Complainant bargaining unit, and or any consultants retained for the purpose of providing it with advice and/or expert opinion evidence, and with the exception of legal counsel only, subject to them providing written undertakings to be bound by the terms of this Order; and The Complainant and the Commission shall not make any additional copies of the documents and shall return to the Respondent the original copy thereof provided by the Respondent within one week of the close of the hearing of the complaint; The Complainant, the Commission and all other persons providing a written undertaking to be bound by the terms of this Order shall not scan the documents or in any way whatsoever convert the documents into electronic format; and The Complainant, the Commission and any other person or persons providing a written undertaking to be bound by the terms of this Order may enter the information contained in the documents into a computer program for the purpose of the within proceeding provided that: All reasonable and necessary precautions are taken to ensure that that computer program, and all information files related thereto containing any information contained in the documents (Information Files), are maintained and stored in a secure manner so as to ensure that no person other than one who has provided a written undertaking to be bound by the terms of this Order will have access to the computer program and/or the Information Files; All Information Files are permanently deleted from all computer storage media, including, but not limited to, all hard drives, computer disks, CD-ROMs and USB mass storage devices, within one week of the close of the hearing of the complaint; and All reasonable and necessary precautions are taken to ensure that all printed copies of the Information Files, including any portion thereof, all printed copies of any and all calculations performed the computer program using information contained in the Information Files, and any and all notes made in relation thereto, in electronic or other format, shall be maintained and stored in a secure manner so as to ensure that no person other than one who has provided a written undertaking to be bound by the terms of this Order will have access to them. [20] The form of the written undertaking shall be agreed upon by counsel for the parties within seven days of this Order and, failing agreement, shall be prescribed by the Tribunal. [21] This Order applies only to disclosure of the documents for the purpose of hearing preparation. It does not speak to any issues of confidentiality of the documents should the documents be put into evidence at the hearing of the complaint. Signed by J. Grant Sinclair OTTAWA, Ontario December 14, 2004 PARTIES OF RECORD TRIBUNAL FILE: T915/3504 STYLE OF CAUSE: Public Service Alliance of Canada (Local 70396) v. Canadian Museum of Civilization Corporation DATE AND PLACE OF HEARING: November 8, 2004 Ottawa, Ontario RULING OF THE TRIBUNAL DATED: December 14, 2004 APPEARANCES: Andrew Raven For the Complainant Patrick O'Rourke Ceilidh Snider For the Canadian Human Rights Commission David Sherriff-Scott For the Respondent

2004 CHRT 39

CHRT

Reid v. Agriculture and Agri-food Canada and Canadian Food Inspection Agency

en

2004-12-23

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7095/index.do

2023-12-01

Reid v. Agriculture and Agri-food Canada and Canadian Food Inspection Agency Collection Canadian Human Rights Tribunal Date 2004-12-23 Neutral citation 2004 CHRT 39 File number(s) T921/4104 Decision-maker(s) Groake, Paul Decision type Consent Order Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE STEPHANIE REID Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AGRICULTURE AND AGRI-FOOD CANADA - and - CANADIAN FOOD INSPECTION AGENCY Respondents RULING ON REQUEST TO AMEND THE STYLE OF CAUSE MEMBER: Dr. Paul Groarke 2004 CHRT 39 2004/12/23 [1] Counsel for the Respondents has requested that the style of cause of the proceedings be amended to read: Stephanie Reid v. Attorney General of Canada (representing the Department of Agriculture and Agri-Food Canada) and Canadian Food Inspection Agency instead of the current: Stephanie Reid v. Agriculture and Agri-Food Canada and Canadian Food Inspection Agency. [2] In her letter requesting the amendment, counsel states: The capacity to sue and be sued is reserved to natural and moral persons. The only organizations that constitute moral persons who can sue and be sued are those granted, by statute, a distinct legal personality. The Department of Agriculture and Agri-Food does not have a distinct legal personality. It is simply a department of the Government of Canada. [3] The issue does not arise with respect to the Canadian Food Inspection Agency, which may sue or be sued under section 3 and section 15 of the Canadian Food Inspection Agency Act, S.C. 1997, c. 6. [4] Counsel submits that the proper Respondent is the Crown, which employs the individuals who participated in the events that led to the Complaint. The Queen however cannot be named in proceedings. The Common Law apparently holds that the Attorney General should be named as the Respondent, as representative of the Crown. None of this is in question on the application. [5] It seems to me that all of the parties, as well as the Tribunal, share a common interest in seeing that the right persons are before the Tribunal. This is a matter of clarity and is important in establishing who has the right to be heard in the case. It may, at least implicitly, determine who has the right to give instructions in the case. [6] Counsel for the Commission consents to the amendment. The Complainant has written a letter, in which she consents to the amendment on the basis of the Tribunal's assurance that this in no way prejudices my case and that both responding parties Agriculture and Agri-Food Canada and Canadian Food Inspection Agency will continue to be parties to this action. I am not entirely sure what this statement means. [7] The Complainant is right in thinking that I cannot see any prejudice to the Complainant in permitting the amendment. As I understand it, the issues before the Tribunal will remain as they were before the amendment. Indeed, the prejudice lies on the other side of the application, since the Complainant will not be able to recover damages from Agriculture and Agri-Food Canada. [8] I am nevertheless obliged to state that the Tribunal is not in the business of providing the Complainant with guarantees. Dr. Reid bears full responsibility for any decisions that she makes regarding her case. She cannot escape that responsibility by placing conditions on her consent. Nor can she transfer that responsibility to anyone else, whether it is the Tribunal, its officers, or the other parties in the case. [9] The request for an amendment is not contentious. Dr. Reid has had ample opportunity to seek legal advice and respond to the application. In the circumstances, I am prepared to grant the request, with or without the consent of the Complainant. The style of cause will accordingly be changed to: Stephanie Reid v. Attorney General of Canada (representing the Department of Agriculture and Agri-Food Canada) and Canadian Food Inspection Agency [10] I should add that Dr. Reid seems to be upset that the issue was raised during the conference call. Rather than go into the details of the matter, I would simply remind her that the Tribunal has the responsibility for managing the inquiry. This is a necessary feature of litigation. It is the adjudicator, not the parties, who controls the process. The parties are entitled to address any issue that concerns them. It is the Tribunal, however, that ultimately decides what matters will be dealt with in the course of a case conference. All of the parties are required to respect its decisions in this regard. Signed by Dr. Paul Groarke OTTAWA, Ontario December 23, 2004 PARTIES OF RECORD TRIBUNAL FILE: T921/4104 STYLE OF CAUSE: Stephanie Reid v. Agriculture and Agri-food Canada and Canadian Food Inspection Agency DATE OF THE TELECONFERENCE: December 1, 2004 RULING OF THE TRIBUNAL DATED: December 23, 2004 APPEARANCES: Stephanie Reid On her own behalf Pam MacEachern On behalf of the Canadian Human Rights Commission Catherine A. Lawrence On behalf of the Respondents

2004 CHRT 4

CHRT

Beauregard v. Canada Post Corp.

en

2004-01-28

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6525/index.do

2023-12-01

Beauregard v. Canada Post Corp. Collection Canadian Human Rights Tribunal Date 2004-01-28 Neutral citation 2004 CHRT 4 File number(s) T761/1103 Decision-maker(s) Doucet, Michel Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MICHEL BEAUREGARD Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent REASONS FOR DECISION MEMBER: Michel Doucet 2004 CHRT 4 2004/01/28 [TRANSLATION] I. INTRODUCTION II. FACTS A. Relationship between the Complainant and the Respondent B. The visits with Dr. Allen Payne C. The appointment with Dr. Marc Guérin D. Dr. André Gamache's assessment E. Dr. Gérard Cournoyer's examination F. Dr. Jacques Gagnon's assessment III. GENERAL OBSERVATIONS REGARDING MICHEL BEAUREGARD'S CREDIBILITY AS A WITNESS IV. THE LAW V. ANALYSIS VI. DISPOSITION I. INTRODUCTION [1] The complainant, Michel Beauregard (Beauregard), alleges he was discriminated against on the basis of a disability in that the Respondent, Canada Post Corporation (the Corporation), refused to accommodate him and terminated his employment, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act). II. FACTS A. Relationship between the Complainant and the Respondent [2] Beauregard started working for the Respondent in 1993. During his employment, he held various positions, including driver, letter carrier and clerk. On August 31, 1997, he applied for a position in the automated area of the St. Laurent letter processing plant (LPP)1. He obtained the position and was assigned to the evening shift with a schedule of 3:30 p.m. to 11:30 p.m. [3] On September 7, 1997, he was temporarily assigned to the daytime swing shift at the bulk processing plant (BPP) in the same plant. His assignment was to last until the employee who normally held that position returned or until September 5, 1998 at the latest. In this position, he worked the day shift from 7:30 a.m. to 3:30 p.m. [4] On July 2, 1998, he was loaned to the swing shift at the Retail Sales Operations Branch. The letter confirming his being loaned to this branch states, you are considered on loan and will retain your position [translation]. Beauregard stated that he understood he was keeping his position on the daytime swing shift, which is surprising because this was a temporary assignment and was to end on September 5, 1998 at the latest. [5] On September 14, 1998, his employer asked him to return to his former position at the St. Laurent plant. Beauregard stated that when he returned, he was not put back into his position in the parcel area (BPP) but in the letter area (LPP) instead. [6] He said that he came to work on the morning of September 14, 1998, to the BPP area at 7:30 a.m. and that the supervisors told him that he had no business [translation] being in that area but that since he was there, they would keep him for the day but that the next day he would have to return to his position at the LPP, on the evening shift. [7] The next day, September 15, he appeared for work, at the LPP, at 3:30 p.m. but stated that he left work shortly after. He testified that, at the beginning of his shift on September 15, Réal Caron, the evening shift superintendent, came to see him and said, You are not here to make trouble. You are here to work, and I hope you're going to work so my numbers are good [translation]. [8] Réal Caron testified that he did not know the Complainant and that he never had to work with him before. He stated that he was not informed about his case until October 1, 1998, when Beauregard left a message on the answering machine saying that he would not be coming to work due to illness. [9] Beauregard described his working conditions at the LPP as follows: They would watch over us constantly. They made little comments to me when they passed through my area. There was a very cold atmosphere, there were no windows, it was noisy, dusty, very hot near the machines where the letters are processed. There were a lot of problems and I did not feel very well starting... on the 14th, going back was difficult, but the 15th was even worse than what happened on the 14th [translation]. He added that he entered the plant backwards and that he did not feel well until he left in the evening, When I would leave in the evening after working in the plant, it was very relaxing to leave the plant [translation]. A little further on he added, It was such a relief. The employees had a term that they used that went, inside it's like a prison without bars. So, everyone used that expression and I think even a doctor said inside and outside. Also, that same expression can describe the difference in the work mentality between the plant areas and the postal stations. So, inside means the plants and outside means the postal stations. And they used the expression prison without bars. Everybody used that expression [translation]. In cross-examination, he explained, Obviously I would have preferred to stay at the stations. It's a career choice to work either at the stations or the plant. There are staff who love working in the plant. But I'm maybe someone who is better suited to the outside [translation]. [10] After leaving work on September 15, 1998, Beauregard did not return until October 7, 1998. [11] According to Réal Caron, nothing particular was brought to his attention about the Complainant between September 15 and October 1, 1998. On October 5, 1998, while indicating he was still sick, his supervisor Renée D'Amours tried unsuccessfully to reach him. [12] On October 6, 1998, the Complainant consulted a physician, Dr. Allen Payne, for a sinus problem and also, according to him, for lack of sleep, no appetite and stress. [13] On October 7, 1998 he went to work. For part of that day, he received training outside of the automated area. Around 7:00 p.m., after finishing his training, he submitted a medical certificate to his supervisor. Caron stated that D'Amours contacted him in the 10 minutes that followed. Caron then went down to the floor to meet with Beauregard because the document he had submitted to D'Amours was an occupational injury document and that certain forms need to be filled out in such cases. The document was actually an official document from the Commission de la santé et de la sécurité du travail du Québec (the CSST). It is used for opening a claim file with the CSST. [14] According to Caron, the employer must complete a report explaining in detail the occupational injury. He said that he had gone down to the floor with D'Amours for this purpose and that he had contacted the union to inform them of the situation. Richard Gagnon, a union representative, arrived on the premises. Beauregard did not show up. Caron, D'Amours and Gagnon were informed that Beauregard had gone home and that he had just called in sick. [15] On October 13, 1998, Réal Caron sent Beauregard a letter by priority post with signature2, in which he requested that Beauregard contact him to provide more information about his medical certificate dated October 7, 1998. [16] Beauregard said that he did not receive this letter until October 28, 1998. The letter was sent to him by priority post with signature and since nobody was home when the letter carrier tried to deliver it, it was returned to the postal depot. Beauregard added that he then had 15 days to pick it up.3 [17] On October 14 and 15, 1998, Caron said that he had tried several times to contact Beauregard by telephone. On the 14th, there was no answer. On the 15th, he said that he spoke with someone whom he assumed was Beauregard's father and that he left a message for Beauregard to contact him. On October 16, Beauregard contacted the administration and informed the receptionist that the employer should not phone him at home anymore.4 [18] On October 19, 1998, Caron sent Beauregard another letter, by priority post without signature. In that letter, Caron referred again to the medical certificate from October 6, 1998 and to a medical certificate from October 13, 1998. Caron indicated that Beauregard had to comply with the procedures regarding occupational injuries and explained that he was giving him 48 hours, from receipt of the letter, to contact him. Otherwise, disciplinary action would be considered. [19] The Complainant states that he received this letter on November 4, 1998, exactly 15 days after it was sent. [20] In a third letter dated October 23, sent by priority post with signature, which Beauregard stated he received on October 28, 19985, Caron informed him that he was being given a one-day suspension for not having obeyed to the request in the October 19 letter. He gave him an additional 48 hours to contact him. [21] On October 23, 1998, the PPP's Occupational Health, Safety and Environment Department in St. Laurent sent Beauregard a letter by priority post with signature asking him to appear for a medical assessment on October 28 at the office of Dr. Marc Guérin. The letter carrier left a card in the mailbox on October 26. The letter was claimed at the retail postal outlet on November 10, one day before the 15-day period expired. [22] On October 28, 1998, the employer sent Beauregard a fourth letter, this time by priority post without signature. It was left in Beauregard's mailbox, and he said he received it on October 29, 1998. In the letter, Caron indicated that since he did not show up for the appointment with Dr. Guérin, the employer was giving him a two-day suspension. Another medical assessment appointment was set for November 6, 1998. [23] On November 3, 1998, Beauregard went to the employer to fill out the CSST document entitled Employer's Notice and Reimbursement Claim. [24] In the meantime, he also received another letter on October 29, by priority post without signature. He said he received this letter on October 30. This letter informed him of a three-day suspension, from November 6 to 10. Therefore, when he went to the employer on November 3, he knew he was suspended for three days. It is surprising that he subsequently stated that he had been surprised to receive a November 4 letter indicating that he was suspended. [25] The November 4 letter was an amendment to the October 29 letter. It simply changed the dates of the suspension from November 6 to 10 to November 9 to 12 because, according to the employer, Beauregard was to appear for a medical examination with Dr. Guérin on November 6. [26] At the meeting on November 3, 1998, Caron indicated that he had asked Beauregard about the circumstances in which the injury occurred and that he had responded with it's written on the sheet [translation]. He then asked him where the injury occurred, and he responded, in the LPP [translation]. Caron asked him for clarification and he responded, I don't have to answer your questions. It's written on the sheet [translation]. [27] Beauregard reacted as follows to Caron's comments as I said earlier in the other document, he wanted me to specify a person involved in my problem. He didn't want me to specify a work location, but a person. He seemed to want me to pick a name and tell him that name. I told him that I did not have a name to provide, that it was a location and series of events [translation]. However, referring to Dr. Payne's notes regarding the medical consultation on October 6, 1998, he indicates noticed symptoms starting from the day of his transfer to the plant on 14-09-98, unpleasant, his supervisor causes him a great deal of stress [translation]. (My underlining.) [28] The Complainant added that he could not be more precise because, in his words, I had no examples to give him [translation]. However, on December 9, 1998, in a letter to France Villeneuve of the CSST, he gave three pages of examples with names and dates of events. In this document, he did not mention any events occurring at the automated plant on September 14 or September 15, 1998. The only events he mentioned having occurred between September 14 and October 1 are as follows: On the 24th, I applied as an AP-2, telemarketing representative, and I was informed that I had been selected. On the 28th, for the position mentioned above, I was informed that I was not selected because I did not have all the requirements (bilingual imperative BBBB), which is false because I speak English fluently. [Translation] [29] On November 6, 1998, Beauregard met with Dr. Guérin. I will discuss this appointment further on. [30] On November 12, 1998, he received another letter from Réal Caron giving him another three-day suspension because of his attitude during the examination with Dr. Guérin. [31] In a November 16 meeting, the employer informed Beauregard that it was still unaware of exactly what he wanted in terms of assignement or what his functional limitations were. Beauregard mentioned that he would be seeing his physician on November 19, 1998 and that, at that point, he would be better informed about his illness. [32] On November 25, 1998, another meeting was held to discuss his redeployment. Caron offered Beauregard an assignment to Matane, in a full-time position as a clerk. Beauregard stated that he had never filled out a transfer request for Matane. When informed that he had filled out such a request on May 16, 1997, he responded that the request was no longer valid because, according to the collective agreement, a transfer request is only good for one year. [33] Beauregard's refusal to accept the assignment to Matane is surprising in light of his statements to Dr. Payne and Dr. Gérard Cournoyer, psychiatrist.In Dr. Payne's case, during a visit on November 3, 1998, a few weeks before he was offered the assignment to Matane, he explained that due to a seniority problem, he could not get the type of assignment he wanted. He then stated that he wanted to go to Baie Comeau, that in the end he was prepared to go anywhere to get out of Montreal. [34] He mentioned to Dr. Cournoyer that he was free to go where he wanted because he did not have a spouse or children. In the words of Dr. Cournoyer in his report, he went to great lengths in filling out, in the space of about two weeks, approximately 240 transfer requests to assure his employer that he was truly prepared to work anywhere in Quebec so that he would no longer have to be `inside', a jargon term used among Corporation employees to refer to the automated plant where the working environment is, in the eyes of many, much more difficult than `outside'[translation]. If that is the case, then why did he turn down the offer of the assignment to Matane? Why did he not refer to this offer during his visit with Dr. Cournoyer? At the hearing, he stated that, at the time, there were changes in his personal life, which was why he did not want to go to Matane. But why did he not talk about these changes with Dr. Cournoyer, leaving him instead with the impression that he was free to go anywhere? [35] He stated that he did not remember those transfer requests because they were good only for one year and that he did not keep them after that. He said that he was unable to say if 240 was correct or whether it was he or Dr. Cournoyer who suggested that number. I personally do not see why or in whose interest Dr. Cournoyer would talk about 240 transfer requests if the Complainant had not brought up that figure.6 [36] As to the transfer requests, he added, [Translation] Q. Now, I see there are many locations, it's marked Trois-Rivières, Sept-Îles, Mont-Joli, Alma and we are going through the whole stack. There are some for Ontario. A. There are some for Ontario, yes. Q. And there is one for Matane at the top of the pile. After that I see Roberval, and all that. A. Yes. Q.And these are the locations that you were prepared to go to. Correct? A. When I signed that transfer request, yes, because of my situation in 1997, but from the union's perspective, when someone puts in a transfer request, there is nothing requiring him/her to accept or not accept it because at times there are things in life that can change from day to day. Q. I understand. A. So there is nothing requiring him/her to accept. It's just a request to keep one's name on the list. So you put your name on the Matane list, for example, and then when someone offers you the job ... it's good for a year. So a year from May 16, 1997. But it is in no way an obligation. It's just to keep your option open in the event that you may need it. [...] Q. But let's say, Mr. Beauregard, that you make applications like that to Matane, Sept-Îles, Roberval, Guelph and that you are in fact not interested in going to any of those places, could it be said that those requests were made in bad faith? A. It cannot be said that they were made in bad faith because you fill them out and wait to see if anything comes available there, whether it will serve your purpose. It's a way of improving your situation. So, if you look at the route presented to you at that time and that route does not suit you, you are entitled to turn it down. Q. But for example, Mr. Beauregard, I understand for a Montreal letter carrier putting in a request for a letter carrier route in Matane, he can look at what route would be suitable in Matane, but for an employee at the automated plants in St. Laurent and who absolutely does not like being at the automated plants in St. Laurent, do you choose a letter carrier route based on the number of floors or the number of staircases? A. Yes, exactly. You choose by number of floors and number of staircases and each step is counted. So, for example, if it is a route like the one I had in Youville, which has 230 staircases in a day, then you think about it. Q. You would rather stay at the plant. A. And the number of doors too. The number of doors varies greatly depending on the route and on the amount of sorting to do in the morning. So, if it's a route with a lot of sorting or not much sorting, these are all things you need to consider when the employer offers you a position. [37] On November 20, 1998, after meeting with the psychologist Léoline Daigle7 on November 2, Dr. Luc Morin on November 18, and Dr. Payne on November 19, he sent a letter to Réal Caron in which he requested an assignment under paragraph 54.02(b) of the collective agreement.8 This paragraph provides that, where an employee becomes physically handicapped because of health reasons and that the need for an assignment is supported by a certificate issued by a qualified medical doctor, upon written application, the employee may be assigned to any appropriate vacant position in his or her group. According to Beauregard, Dr. Payne's results showed that he could not be reinstated in his position at either automated plant. I do not intend to deal here with the issue regarding assignment under section 54 of the collective agreement because the grievance arbitrator has already dealt with it9. [38] On December 1, 1998, Georges Dolan, evening shift manager, gave Beauregard a copy of Dr. Guérin's medical assessment report. Dolan also asked him if Dr. Payne and Dr. Guérin could meet to discuss his case. Beauregard first answered yes to this request. However, when Dolan gave him the authorizations to sign, he asked if he could meet with his union representatives before signing the documents. [39] He stated that he discussed the issue with his union and that it suggested that he not sign the authorizations. Therefore he refused to sign them. [40] On December 3, 1998, he informed Georges Dolan, in a letter, that he had seen Dr. Payne again since the December 1 meeting and that Dr. Payne reconfirmed that he was able to go back to work outside of the two automated plants with no restrictions. The letter was countersigned by Dr. Payne. [41] On December 9, 1998, Caron responded to the December 3 letter and indicated that there was nothing in it showing that Beauregard could not do the work in his own position. He therefore ordered Beauregard to appear for work on December 14, 1998, in his position on his own shift, otherwise disciplinary action, not excluding discharge, would be considered [translation]. Beauregard replied that this demand was contrary to Dr. Payne's recommendation and that in addition, the CSST has not [yet] rendered its decision [translation].10 [42] On December 16, 1998, Caron informed Beauregard that his employment with the Respondent was terminated as of December 17, 1998.11 B. The visits with Dr. Allen Payne [43] Dr. Allen Payne is a general practitioner. He has a general practice and, according to what he says, he has also been doing CSST medicine since 1995. When a patient comes to see him following an occupational injury, he becomes the attending physician for CSST purposes. He provides all medical follow-up. He has no particular specialty in psychology or psychiatry. [44] In 1998, Dr. Payne was working out of both his general practice clinic and the Polyclinique Médicale Populaire on Sainte-Catherine St. in Montreal. People can drop in to the Polyclinique without an appointment. A large percentage of the Polyclinique's clients are workers. Dr. Payne indicated that the Polyclinique handles an industrial quantity [translation] of CSST cases. [45] Dr. Payne said he saw Beauregard on October 6, 1998. Beauregard said he had gone to that clinic because he had to drive someone to the Papineau subway station that day near the clinic and that it was a union-recommended clinic. He stated that he felt comfortable going there. [46] In cross-examination, he admitted that he had already consulted Dr. Payne. In fact, Dr. Payne remembered seeing the Complainant in 1997 for another problem. However, in the two medical reports filled out on the CSST forms during the 1997 visits, in the section entitled Diagnosis and progress of the pathology and treatment there is the expression situational depression [translation]. When questioned about these visits, the Complainant stated that he had no memory of these documents because the copies, he stated, were illegible. His responses about the events surrounding his visits to Dr. Payne in 1997 were vague and less than convincing. It is also surprising that, in his testimony, Dr. Payne did not draw a connection between the 1997 medical reports and the 1998 ones, considering that he was the attending physician in both cases [47] In any event, the Complainant went to the Polyclinique on October 6, 1998, with what Dr. Payne described as sinus congestion, wakefulness at night, no recovery, poor appetite, low morale, wants to lie down after being up for only 2 hours; noticed symptoms since his transfer to the plant on 14-09-98, unpleasant, his supervisor causes him a great deal of stress, problem of `inside', slow of train and content of thought, will try to return to work in December, daily headaches, does not really like taking medication, appointment with Dr. Morin psychiatrist on 18-11-98 [translation]. (My underlining.) [48] In cross-examination, when counsel for the Respondent asked Beauregard which supervisor he was referring to, he said he did not remember. He also added that he was speaking generally", that it was not one supervisor in particular who was causing him stress, but the workplace. However, according to Dr. Payne's notes, it was a supervisor who causes him a great deal of stress. [49] Dr. Payne stated that he had spent 10 to 15 minutes with Beauregard during his October 6 visit. Beauregard said he explained the entire situation to Dr. Payne at that visit. However, he stated that he neglected to inform Dr. Payne that he had been on sick leave since October 1. Dr. Payne acknowledged that the consultation was short because there were other people waiting [translation]. [50] In his testimony, Dr. Jacques Gagnon, an expert witness in psychiatry, indicated that a proper psychiatric examination should take 40 to 50 minutes. He is of the view that a ten-minute examination is not thorough and that the resulting assessment is definitely not based on evidence. He added that the diagnosis should be based on a minimum number of significant symptoms. Another psychiatrist, Dr. Gérard Cournoyer, witness for the Commission and for Beauregard, added that he does not think that a psychiatric examination can be done in the space of a few minutes. He added that an examination of this sort should take at least an hour, sometimes longer. He stated that, before psychiatrists issue an opinion, they must be sure that they have truly gathered all the information on which to base that opinion. In his view, the first visit should last, on average, at least an hour or an hour and a half, because time must be taken to go through the person's entire background and medical history. [51] Dr. Payne stated that he arrived at his diagnosis by asking Beauregard certain questions. He added that he was attempting to assess the patient's higher mental functions, the risk of suicide and what he referred to as the inside, in other words the patient's ability to have insight into his own situation. He stated that, at that time, he wanted to gather data on the circumstances and context surrounding the symptoms. [52] He said he recalled Beauregard's condition when reviewing his notes, but added that there was nothing particular. You must understand that, at 50, 60, 70 patients a day...there was not necessarily anything more particular with Beauregard than with any other [translation]. He added that he had come to see him with a sinus problem first and that he then said, By the way, Doctor, I don't feel well, etc. [translation]. He stated that he was able to arrive at this conclusion by looking at his notes [b]ecause I marked down the reason for the consultation as congestion, then after I started talking. So, that means that logically he discussed his sinus problem with me, then it came out, when I questioned him a little further, that he did not feel well, that he had no appetite, etc., as I wrote in my notes [translation]. He added that the sinus problem was not connected with Beauregard's psychological state. [53] Dr. Payne stated that he asked a series of thorough questions as required by the Régime d'assurance maladie du Québec (the RAMQ). He acknowledged that consultations carried out by psychiatrists are much different. He said that he asked Beauregard how he was feeling. Beauregard mentioned that he would wake up during the night, that he had difficulty recovering from that, that he lost his appetite, that his morale was flat, as he described it, that he was tired, that he wanted to lie down after a couple of hours. He said he had had those symptoms since September 14, 1998. [54] The doctor acknowledged that it is important for a patient in a depressed state to be aware of his/her state of mind, his/her mental or psychological condition. In this regard, he noted that Beauregard was not crying and that he had not mentioned having cried at any point. He added that, to determine a state of mind, he looks at whether the information is delusional. Is the patient's speech normal or slow? Is the patient having trouble making connections? [55] He stated that, after ten minutes of this type of questioning, he had enough information to arrive at the diagnosis that Beauregard appeared to have work-related depression. [56] On the medical certificate12 from October 6, 1998, Dr. Payne wrote Reactive depression [translation] as the diagnosis. The date of the event is identified as September 14, 1998. Dr. Payne based this on what Beauregard told him: It is the worker who ultimately determines the date of the event [translation]. He added that, in a psychological case, the date of the event is usually based on the worker's memory of the date when symptoms began. [57] On the medical certificate, Dr. Payne also wrote RT 71098, meaning return to work on October 7, 1998. In his notes he wrote, will try to return to work in December [translation]. He stated that Beauregard had said this. However, Dr. Payne had written in the medical report that the return to work was planned for the following day. He added that, since it was a situational problem and not major depression, there could be administrative adjustments. Therefore, a relatively speedy return to work was possible. In his examination, Beauregard stated that he was the one who insisted on returning to work on October 7. He indicated that he had told Dr. Payne, I've had a few days rest, now. So on the 7th I want to try to work and function normally [translation]. [58] I have no reason to challenge Dr. Payne's version, and I maintain that it was Dr. Payne, not Beauregard, who suggested going back to work the next day. [59] When comparing the copies from the medical certificate that Dr. Payne issued on October 6, 1998, we see an annotation on the worker's and employer's copies that does not appear on the physician's copy. This annotation adds, we suggest a change in work location [translation]. Beauregard said he could not explain why this addition appeared on those copies but not on the physician's copy. The doctor could not provide a satisfactory explanation either. [60] On October 6, 1998, Dr. Payne also issued another document entitled, Medical Report [translation], again on a CSST form. Dr. Payne explained that, because the medical certificate form in 1998 did not include a box for indicating whether the patient is referred to a specialist, physicians at that time would prepare a medical report that did have such a box. In this case, Beauregard was referred to Dr. Luc Morin, a psychiatrist. [61] At the time, Dr. Morin was a psychiatrist at the Polyclinique. He left the Polyclinique in December 2001. Dr. Morin was not called upon to testify. According to Dr. Payne, it would appear that he has passed away or is very sick. [62] Dr. Payne said he decided to refer Beauregard to Dr. Morin because he had a psychiatric problem. He also added that the fact that he suggested a change in work location also influenced him to make the referral because [it] could be a suggestion that the employer may or may not be happy with or may lead to problems, second opinions and all that. Therefore, at that time, it was also a question of specialist coverage, you could say. It is a standard procedure for generalists [translation]. (My underlining.) [63] On October 13, 1998, Beauregard had another visit with Dr. Payne. During this visit, Dr. Payne prepared a Medical Progress Report [translation]. The diagnosis was still the same, situational depression, this time with the words (work) and (location) [translation] added to clarify, according to Dr. Payne, that the situation was work-related. Below these annotations, he added, appointment, sick leave, October 20, 1998 [translation]. He therefore extended the sick leave to October 20. This appointment lasted only five minutes. Dr. Payne acknowledged that he did not re-examine Beauregard. [64] In his notes, Dr. Payne indicated, agrees to see psychologist, referred to Ms. Daigle, sinus X-ray13 [translation]. [65] Dr. Payne stated that, during this visit, he was not surprised to learn that he had not returned to work on October 7, 1998. Beauregard explained to him that his situation was complex and that resolving it required more time from an administrative perspective and that it could not be done in 24 hours. Dr. Payne said he extended his sick leave because the problem had not yet been resolved from an administrative perspective. [66] Dr. Payne added that the adjustment disorder diagnosis was primarily an administrative management issue for which drugs are not prescribed. Instead, time is given to allow administrative management to resolve the problem. [67] On October 13, 1998, Dr. Payne noted an ongoing unmanageable depression. This condition was characterized by the fact that Beauregard said he had no appetite, low morale, no energy-the same characteristics he had identified at the examination on October 6, 1998. However, he acknowledged in cross-examination that it was not Beauregard who described these symptoms to him, but that during the five-minute visit, he noted that he seemed a bit downcast. He appeared to have the same types of symptoms [translation]. [68] At the time of that visit, Beauregard was still waiting to see a psychiatrist, and Dr. Payne also invited him to make an appointment with the psychologist Léoline Daigle. [69] Beauregard saw Dr. Payne again on October 20, 1998. He said he had had an appointment with the psychologist Daigle between October 13 and 20. However, no evidence of this visit or what was said during the visit was presented at the hearing. He stated that he had also made an appointment with Dr. Morin during this period for November 18. However, in his notes for October 20, 1998, Dr. Payne indicated will make an appointment with the psychiatrist Morin [translation]. It appears, then, that on October 20, 1998, there was still no appointment made with Dr. Morin. [70] In the Medical Report that Dr. Payne filled out during the visit on October 20, 1998, the diagnosis was still the same, situational depression [translation]. The sick leave was extended to November 5, 1998. [71] On November 3, 1998, Dr. Payne performed another examination, this time lasting nearly 10 minutes. According to Dr. Payne, Beauregard was in the same psychological state as he was during his first visit on October 6, 1998. The doctor said he arrived at this conclusion by watching his actions, from his tone, the way he described the events and the copious details he provided. He concluded that Beauregard was emotionally disturbed. He stated that he was not in a position to provide objective clinical signs of this emotional disturbance since psychiatry is, according to him, rarely objective. He also added that Beauregard was not suffering from major depression. [72] He said that he was better able to identify subjective signs of an emotional disturbance. Among other things, he noted that Beauregard had what he described as circumstantiality. He added that his thinking was not delusional, but that it was not focused either. He was not obsessive. He went into copious detail to describe a situation that could have been summed up in a few words. [73] Dr. Payne recommended a sick leave due to situational or reactive depression [translation], which are the same thing in his view. He added that he would now describe his diagnosis as adjustment disorder [translation]. Dr. Payne never used this expression in his diagnoses. It first appeared in Dr. Luc Morin's note. [74] According to Dr. Payne, situational or reactive depression or adjustment disorder are equivalent, and the signs and symptoms are subtle as opposed to those of major depression. He added that drugs are not used to treat them. [75] Dr. Gagnon testified that adjustment disorder is a reaction to a significant event in a person's life. Everything usually returns to normal relatively quickly when the stressor is removed. He added that, in Beauregard's case, as soon as he was removed from his work environment, he should have returned to normal functioning within a few days, not in six weeks as Dr. Payne indicated. [76] Dr. Marc Guérin, another expert witness in psychiatry, mentioned that depression can take several forms but that it is characterized for the most part by a mood disorder, in other words the mood is sad. The sadness is generally accompanied by a relatively high level of anxiety. The main symptoms of depression are sadness and anxiety. Both of these lead to other symptoms such as difficulty concentrating. A person who is very anxious has difficulty concentrating. This results in a breakdown in emotional control. People who are sad often cry, they are less able to control themselves and are more sensitive. Anxiety generally leads to insomnia. With depression, what is seen most often is initial insomnia or early-morning insomnia: the person wakes up very early and cannot fall back to sleep. He finds that most people experience times when they wake up at night but manage to get back to sleep. It is not pathological in that case. What is more typical in depression is initial or terminal insomnia. Long-term insomnia will increase concentration problems because mental fatigue sets in, and the person will also complain of physical fatigue. Appetite problems are also involved. The person either loses his/her appetite, which is more common, or eats more and becomes bulimic. In severe cases, when it becomes incapacitating, agitation or psychomotor retardation problems can arise. The person is so anxious that he/she is disturbed, and is unable to stop moving or slows down mentally and physically. These are all pathological cases that can be considered major. [77] Dr. Guérin continued, indicating that adjustment disorder is a lesser form of depression. In the U.S. classification, the symptoms of adjustment disorder are essentially the same as the ones just described but are somewhat less intense. Adjustment disorder is usually directly connected with something identifiable: financial or family worries or problems at work. It is something that is at the end limit of normality. [78] When the pathology is self-sustaining, it is referred to as either situational or neurotic depressive disorder. In other words, the symptoms are out of proportion with what the person is experiencing in the external world. These people feel sad even if there is no real reason to feel sad. The pathology is more significant because it is out of proportion with or cannot be explained by the individual's normal or natural reactions. Dr. Guérin talked about extreme cases involving people on the verge of losing contact with reality. They are so sad that they start blaming themselves for everything bad. Their situation is virtually delusional. [79] According to Dr. Guérin, there is a gradation in depression symptoms. When a patient goes to see the doctor and says, I have such and such a symptom, for example I'm not sleeping as well...I have less interest, I'm worried, I'm having difficulty concentrating, the physician should question him/her to determine if there are other symptoms associated with this condition. The physician should try to determine how great the symptoms are. Dr. Guérin stated that there are people who say, I'm having difficulty concentrating, but after a half-hour interview, the physician notices that they are concentrating well, not losing their train of thoughts, and answering questions well. If a person says, I don't have much appetite, the physician must determine if the person has lost weight. According to Dr. Guérin, the physician must take these steps in an attempt to objectify the pathology. [80] On November 19, 1998, the Complainant saw Dr. Payne again. According to Dr. Payne this appointment lasted about five minutes. During this appointment, Dr. Payne prepared a final report. Such a document is issued when the patient has reached, in the CSST's words, a state of consolidation [translation]. The final report is different than the other documents because it asks different specific questions. For example, will there be a permanent injury? [translation] and if yes is checked, it continues, will there be functional limitations? [translation]. If yes", then, is this an aggravation of previous functional limitations [translation]. If the answer is yes, an assessment report must be prepared. In Beauregard's case, this assessment report was never prepared. [81] When asked why he did not prepare this assessment report, Dr. Payne responded, Excellent question. Perhaps it has to do with not being able to reach Mr. Beauregard, lack of availability, or because Mr. Beauregard had an administrative process and I was waiting for that? I can't answer you. [translation]. [82] The consolidation date on the final report is indicated as November 23, 1998. Dr. Payne stated that he could not say for certain how he arrived at that date. According to him, from an administrative perspective, patients are normally consolidated two or three days after their visit. He also added, It can be that, because it is Thursday, for example, the patient is consolidated on Monday. And it's logical, if the 19th is a Thursday, the 20th, the 23rd, that's Monday. It's usually only for administrative reasons that we put the consolidation date a few days after [translation]. [83] When asked whether it is normal for the consolidation date to be determined based on a day of the week, he responded, That depends. We're talking about administrative management here, and administrative management means that there will be an administrative, not just medical, consolidation. Consolidation must also be done from an administrative perspective, in other words, giving him the time to contact his employer [translation]. [84] However, the consolidation date, for CSST purposes, is defined as the date of the therapy plateau of an occupational injury. Dr. Payne defines therapy plateau more broadly than in a strictly medical definition. He sees it as the date when it is the most convenient and practical for the worker to return to work, particularly in a case like this one because the problem is, in his view, more administrative than medical. In addition, Dr. Payne describes the Complainant's psychological examinations as venting, but I am not certain that it would call for a major medical treatment [translation]. [85] He stated that, by an administrative problem, he meant that managing and resolving it are essentially administrative. He added, we are dealing with a problem that is mostly administrative and somewhat medical. ...To assign a percentage, you could say it's 80 [administrative]-20 [medical] or 85-15 [translation]. [86] Dr. Payne had difficulty explaining what problem the Complainant had with his work, it seemed to be an issue involving difficult labour relations with several people [translation]. However, in his written report of the appointment on October 6, 1998, he wrote, his supervisor causes him a great deal of stress [translation], in the singular. Beauregard did not give him a name, nor did Beauregard tell him during their appointments what he did not like about the individual(s). But it was obvious to Dr. Payne that it was a labour relations issue. However, Beauregard apparently said that the automated plant was the problem, no windows, noisy, dusty [translation]. [87] The November 19th medical report indicated the following diagnosis: situational depression. Return to work in accordance with paragraph 54.02(b) outside of 2 plants with no night hours. Day or evening 23-11-98, permanently according to psychiatric advice [translation]. Why does it talk about two plants? [88] Dr. Payne stated that he made this new diagnosis following the appointment between Beauregard and Dr. Morin. As to paragraph 54.02(b) of the collective agreement, Dr. Payne testified that the Complainant had asked him to refer to it; he himself was not aware of the provision. [89] He added that he had recommended that the Complainant work outside the two plants because of Dr. Morin's recommendation. However, if the problem is a question of labour relations with several people, it is hard to see how this recommendation would resolve the problem, especially if the supervisors are not the same at both plants. [90] He explained that he made these recommendations for the two plants because the two plants have the same work characteristics and because that was what caused the problem. As such, the problem is no longer work conflicts with supervisors but rather a work location problem. [91] Dr. Payne testified that Dr. Morin also recommended working outside the two plants [translation]. However, referring to Dr. Morin's handwritten note that he prepared after his examination of Beauregard, we see that he refers to plant in the singular, not the plural, Rec: Change of position and location (plant) [translation]. Moreover, there is nothing leading us to believe that Dr. Morin was aware of the second plant. [92] Dr. Payne eventually acknowledged that Beauregard requested that he restrict him, through a medical certificate, from the two plants and from the night shift, but added that his recommendation was not based on this request, but gave no further explanation. He also admitted that Beauregard explained to him that he had made an application under paragraph 54.02(b) of the collective agreement and asked him to write that recommendation on the certificate. Dr. Payne admitted that he was not familiar with the paragraph in question and recognized that it is not a medical provision, and added that administrative management is required for this case anyway. [93] He said that he had suggested with no night hours because he considered Beauregard fragile, which made it difficult for him to adjust to working nights. The noise, isolation, stress and night work are, according to him, factors that could bring on a relapse. He recognized, however, that it very well could have been that Beauregard asked him to restrict him from the night shift, but he is not as certain about this as he was regarding the suggestion about the two plants. [94] As to the appointment with Dr. Morin, the only evidence we have about this is Beauregard's testimony and Dr. Morin's note. This appointment apparently lasted about 45 minutes. Dr. Morin's questions dealt specifically with the work location and the Complainant's state of mind when he was inside his workplace and when he was outside. Beauregard indicated that Dr. Payne had asked Dr. Morin this specific question, Should the patient be transferred or relocated to a job outside the two plants [translation], and Dr. Morin responded in the affirmative. However, Dr. Payne never referred to that question in his testimony or his notes. As to the two plants", it should be remembered that Dr. Morin in his note referred to plant in the singular. [95] Moreover, Dr. Morin's note was very brief, and I reproduce it here in its entirety, Working at Canada Post since June 93 in an automated mail-processing plant. Complains of management harassment. Has been a replacement employee at postal stations. Felt that the work was pleasant supervisor Æ superintendent. Occupational injury: work-related situational depression (Dr. Payne) versus suspension according to management. Environment (plant: noise - isolation - stress. Diagnosis: acute stress + adjustment disorder in the working environment with anxio-depressive mood. Recommend change in position and environment (plant) [translation]. [96] Dr. Morin's diagnosis referred to acute stress.In Dr. Payne's interpretation, acute stress is something that happens within a short period of time and brings on an emotional affect. Dr. Payne stated that, in his examination of Beauregard the day after his appointment with Dr. Morin, he did not note any acute stress. Dr. Gagnon stated that it was difficult to support a diagnosis of acute stress because the primary element is missing: a reaction to an event. An acute stress reaction is equivalent to a state of post-traumatic stress, but does not last very long. In Beauregard's case, there had never been a traumatic event. [97] Dr. Payne stated that, during the appointment on November 19, 1998, Beauregard was a bit agitated. He remained standing for the entire interview. However, Dr. Payne stated that he did not ask the patient any questions since Dr. Morin had seen him the previous day. The appointment lasted 2 to 5 minutes. In this short time, Dr. Payne completed a medical report and the final report. He acknowledged that in the final report he checked off yes to all the questions in the section entitled, permanent physical or psychological injury and functional limitations [translation]. He said, though, that he mistakenly checked off yes to the question if yes, did this limitations aggravate previous functional limitations [translation] since this question usually applies to individuals who have had an earlier occupational injury. He said that this mistake could be due to lack of attention because he had to be quick, but that it could also be explained by the fact that, at that time, he was not as familiar with the administrative workings. [98] In the final report, he also checked off yes to the question did you prepare the assessment report in accordance with the scale of bodily injuries [translation] but admitted that this report was never prepared. [99] As previously mentioned, during the November 19th appointment, Dr. Payne again diagnosed situational depression. According to Dr. Gagnon, such a diagnosis on that date æ Beauregard had not been working since October 1 æ is surprising to say the least because, according to him, a person suffering from adjustment disorder or reactive or situational depression will improve as soon as he/she is out of the situation causing the disorder since the stressor no longer exists. He added that it is difficult to believe that a person's depression could persist for several weeks without the attending physician taking any medical steps to treat it. [100] On November 26, 1998, Dr. Payne prepared another medical report. Preparation of the report did not involve a clinical consultation or examination. According to Dr. Payne, the document was an administrative certificate that restated the existing recommendations. In the diagnosis, we read, consolidated on 19-11-98, sick leave in accordance with paragraph 54.02(b), outside the 2 plants etc., until application in accordance with 08665 [translation]. What this document means, according to Dr. Payne, is that until what he describes as the Complainant's permanent limitations are made effective, the Complainant will remain on sick leave. [101] A medical report was prepared on December 15, 1998. The diagnosis in this document indicated, work outside the plant is mandatory in accordance with section 54. Known depression [translation]. Dr. Payne said that he wrote mandatory because it was obvious that there were problems with the administrative management of the Complainant's file and that, in his view, working outside the plant was the solution. [102] In his notes for December 15, 1998, Dr. Payne wrote, relapse, aggravation because he was put back in the plant [translation]. According to him, Beauregard re-entered a more difficult psychological state because he was put back in the plant. In cross-examination, he explained that it was a mistake to consider it a relapse and that he should have indicated instead that it was a continuation of the same problem. C. The appointment with Dr. Marc Guérin [103] Dr. Marc Guérin is a psychiatrist. His experience falls into three main fields: psychiatric and psychoanalytical practice in hospitals and in private; the teaching of psychiatry at McGill University and psychoanalysis at the Canadian Institute of Psychoanalysis; and forensic assessment, which has been his sole field of activity since the end of 1996. Dr. Guérin said he has twenty years' experience in interviews and assessments of the kind he had with Beauregard. He added that in his professional life he has interviewed at least 10,000 patients, which is nearly 500 per year. [104] Dr. Guérin qualifies as an expert in psychiatry. [105] On November 6, 1998, Dr. Guérin met with Beauregard to perform an assessment at the request of the Respondent. The interview was very short. It did not last longer than 15 or 20 minutes because Beauregard refused to cooperate and answer the doctor's questions. Dr. Guérin did not see the point in persisting and he ended the interview. Beauregard explained that his reluctance was due to not being prepared and informed about what a psychiatric assessment is all about. He said that he understands better now what was expected of him and that it was the reason why he asked to see Dr. Guérin again and stated that he was prepared to cooperate with him 100%. The Respondent did not follow up on this request, which in my view is unfortunate, but immaterial for the final disposition of this case. [106] Dr. Guérin conducted the assessment using the method he said he uses in all his cases. He starts by identifying himself. He then informs the patient of his purpose. He explains what questions he will be asking. He said that he wants to ensure that the person knows who referred him. He also explained that he prepares a report after the examination. He then issues a form on which he gives the contact information of the person to whom he will send the report. Finally, he proceeds with his questions. He begins by gathering factual data: age, date of birth, etc. He then questions the patient about his/her medical and psychiatric history and about the problem that brought the patient to him. [107] He said that this was the exact process he followed with Beauregard but that Beauregard did not want to answer his questions. All Beauregard said to him was that he could not work at the automated plants and that there was a conflict, but did not elaborate on the nature of the conflict. [108] When he questioned him about his symptoms, the Complainant responded, that he could not tell me about it further until he could see his doctor [translation]. According to Dr. Guérin, this is a very unusual response. He acknowledged that people coming to him for an assessment do not do so willingly; they are always sent by someone. They are therefore a little apprehensive when they arrive and are somewhat reluctant. But he added that when he explains his purpose and role to them, they generally cooperate well. He said that occasionally there are people who do not cooperate as well. However, it is very rare that people are uncooperative to the point where they cannot go ahead with the questions and a thorough or satisfactory examination. He said that, in his 20-year practice, this has happened only a few times. [109] Dr. Guérin mentioned that the people who usually come to see him are sent because they have a problem, and his job is to identify the problem and, where appropriate, offer treatment suggestions. People know, even those who are somewhat reluctant upon arrival, that they are with a doctor who is going to try to help them as much as possible. Therefore, despite their initial hesitation, it is in their best interest to cooperate and talk about their symptoms. [110] Dr. Guérin testified that he was unable to determine any psychiatric pathology in Beauregard during the examination. He said that what he could tell from the discussion with Beauregard is that he was unhappy at work and that he seemed to have some sort of conflict. Beauregard did not report any psychiatric symptoms to Dr. Guérin. The doctor observed that there were no obvious signs of psychiatric pathology: his speech was coherent; he was alert and well-oriented; and throughout the interview he did not exhibit any problems concentrating or any pathologies [translation]. [111] In his report, Dr. Guérin acknowledged that Beauregard was obviously unhappy at work and that he did not want to work in his position at the automated plant. He added that he mentioned that he had to leave work due to internal stress and pressure at the automated plants. However, he did not want to elaborate on these issues and when Dr. Guérin questioned him about the symptoms, he answered that he had to see his doctor again and that then he would know what to say. [112] During the brief interview, Dr. Guérin was able to observe that Beauregard looked well and seemed to be in good health. His sensorium, in other words his temporal orientation, seemed clear. He did not note any anomalies in cognitive functioning, in other words his ability to concentrate, his memory and his comprehension. There was no agitation or psychomotor retardation, which are the signs observed in a person with, for example, a relatively serious case of anxio-depressive syndrome. In these instances, there is either motor restlessness and psychological agitation caused by anxiety or slowness in the case of deep depression. Beauregard exhibited none of these. [113] His mood was normal; he did not seem sad. His affect was, in Dr. Guérin's words, mobilizable [translation]. He concluded that there was no evidence of a pathology that could be described as a mood disorder of the depressive or manic type. During the examination, Beauregard did not appear anxious. His thinking was normal and his speech was coherent. However, it was impossible for Dr. Guérin to get a good idea of the psychological content since he refused to answer questions. But he added that he was clearly not delusional and did not present any suicidal thoughts. [114] Since he did not observe any obvious pathologies, Dr. Guérin stated that he was unable to issue any restrictions or treatment recommendations. There was no evidence of disability and no evidence of psychiatric limitations with respect to his work. According to Dr. Guérin, if there was indeed a problem, it was administrative and should therefore be addressed from an administrative perspective, which does not involve the medical field. This partly coincides with Dr. Payne's conclusions. [115] If this were a medical issue, Dr. Guérin indicated that, for anxio-depressive symptoms, the two most common forms of treatment are psychotherapy and drug therapy. There are drugs, either tranquillizers or antidepressants, that may be prescribed if the symptoms are serious enough to warrant it. These drugs all have side affects, so they are not prescribed if the person is not sufficiently disturbed. In this case, the total lack of treatment leads one to believe that, according to Dr. Guérin, there is slight impairment, if anything. [116] Beauregard did not inform Dr. Guérin that he had seen a psychologist on November 2, 1998, just four days before the appointment with him. Neither did he indicate that he was going to see Dr. Morin on November 18, 1998. There was also nothing in Dr. Morin's notes indicating that Beauregard had informed him about having seen Dr. Guérin on November 6, 1998. [117] In his report, Dr. Guérin concluded that the brief examination did not allow him to arrive at a psychiatric diagnosis. As a result, he indicated that his opinion was based on the short interview with Beauregard and that his opinion should be taken with some reserve because it may be that Beauregard had specific problems that he did not talk to him about. D. Dr. André Gamache's assessment [118] Dr. André Gamache is a psychiatrist. The Commission and the Complainant called on him to testify as a witness. However, neither the Commission nor the Complainant thought it appropriate to consider him an expert witness. Therefore, without challenging his competence as a psychiatrist, I must take Dr. Gamache's opinions in his testimony with some reserve. [119] In 1999, Dr. Gamache was working as an emergency psychiatrist at Louis-H. Lafontaine Hospital in Montreal. From 1999 to 2001, he also was working at the Medical Review Board (MRB) one day a week on average, where he conducted assessments. The MRB is a government organization. Physicians in different specialties work there as arbitrators in disputes relating to CSST cases. It is an arbitration board called upon when medical reports differ. A joint employer/employee committee appoints physicians to the MRB. These physicians are independent and are not hired by the employees, the employers or the unions. They must carry out non-partisan examinations to settle disputes. They must eventually say which of the two physicians is correct. In this case, Dr. Gamache had to decide between Dr. Payne's and Dr. Guérin's assessments. [120] The procedure provides that the MRB physician may be called upon to decide several issues that are subject to the Act respecting industrial accidents and occupational diseases14. In Beauregard's case, Dr. Gamache was asked five questions. They dealt with the diagnosis, consolidation date, care or treatment, permanent injury and functional limitations. [121] In the section of his report from February 26, 1999 entitled, History of the problem [translation], Dr. Gamache said, On September 14, he [Beauregard] was ordered to return to work at the automated plants as a letter clerk. He said that was when he felt that the employer was using pressure tactics. Today he gave me some examples, such as his employer would stand behind him and watch over him. They would also check to see if he was taking too much time in the bathroom or on breaks. He also mentioned to me that he was not allowed to talk to his neighbours, even to ask for information pertaining to his work. He told me about an example where he had a parcel and did not know how to sort it, so he asked his neighbour what to do in those situations. They forbade him from doing that and told him to ask his supervisor instead. He mentioned to me that he was even told, with supporting evidence, that his supervisor told him that if he did not do it that way (his work), they would `kick his ass' out the door. (My underlining) [Translation]] [122] Thus, according to the history that Beauregard related to Dr. Gamache, September 14 was when the employer started using pressure tactics. He then mentioned a series of events that could not have occurred on September 14 or after, since he left work on September 15 and did not return again except for part of the day on October 7. Moreover, in his letter to France Villeneuve of the CSST dated December 9, 1998, in which he gave three pages of examples with names and dates of events, no events were identified for September 14 or 15, 1998. Finally, a supervisor's remarks about him, reproduced in the last sentence of that section in Dr. Gamache's report, were not said directly to him. According to Réal Caron's and Richard Gagnon's testimonies, the remarks were made on October 7 when Caron, Gagnon and D'Amours were waiting for him and he did not show up. In addition, Caron, without denying that he had used those words, stated that he said them to his colleague D'Amours, not to Gagnon, and definitely not to Beauregard, who was not present. [123] In his report, Dr. Gamache also noted that the attending physician mentioned workplace adjustment disorder with anxio-depressive mood...permanent psychological injury: 5% [translation]. This means that, when Dr. Payne examined him, he was exhibiting the psychological after-effects of his adjustment disorder. At 5%, he agreed that this is mild neurosis. [124] In the Progress of the Problem [translation], Dr. Gamache indicated It was relatively difficult at first with Mr. Beauregard to determine exactly what he was suffering from on October 1, 1998. I should mention that, at the beginning of the interview, he was a little wary, but that his wariness subsequently dissipated [translation]. He added that this difficulty seemed normal at the beginning, but once he explained the MRB's role, his wariness dissipated. In cross-examination, Dr. Gamache acknowledged that he only notes a patient's wariness in cases where he considers it significant. [125] Dr. Gamache indicated that a psychiatrist must ask certain questions when assessing a patient. However, he admitted that he did not ask any questions about Beauregard's psychosocial behaviour, such as the type of person he is, how he conducts himself in society, what his personality traits are, or what his main psychological or personality characteristics are. He acknowledged that, given the problem, these questions would have enabled him to determine how Beauregard reacts to authority in a supervised work environment and to instructions and orders, information that could have been used in the diagnosis. [126] Dr. Gamache added in his report, he mentioned that his attending physician had written a paper about this, in which he discussed anxio-depressive reaction to work-related stress. I told him, however, that Dr. Payne had not mentioned any symptoms and that I would like to explore that with him [translation]. (My underlining.) Dr. Gamache therefore could not identify any symptoms in Dr. Payne's medical reports. [127] Dr. Gamache admitted that, during the examination, he did not observe any of the symptoms required for diagnosing adjustment disorder and, since there were no symptoms in Dr. Payne's report to use to reach the conclusion that Beauregard was suffering from adjustment disorder, he said he left it to Beauregard to describe his symptoms to him. [128] In his diagnosis, Dr. Gamache concluded, in my opinion, Mr. Beauregard exhibited adjustment disorder with mixed anxiety and depressed mood, code 309.21 [translation]. Code 309.21 refers to the DSM-IV (Diagnostic and Statistical Manual for Mental Disorders) which contains the nomenclature for mental illnesses and diagnoses. The DSM-IV is used in clinics, assessments and medical reports. Dr. Gamache said he came to the conclusion he did because Beauregard told him that, as of October 1, 1998, he was having sleep problems, would wake up frequently and that he felt exhausted, tired and anxious. In addition, he added that at the automated plants, he did not feel like he was being treated like a human first, that he could not see outside at all, that there were no windows, that there was a lot of dust, that they were watched constantly, in short just robots. For him it was an untenable situation and he asked several times for an assignment under, as he said, section 54 of the collective agreement. He told me that he did indeed want to work but not in a place where he did not feel well psychologically, that his employer always denied him job redeployment [translation]. [129] The symptoms then, according to Dr. Gamache, were tiredness, exhaustion and anxiety. The doctor added that it can be concluded that someone in a stress situation who, because of the stress, develops these symptoms in the weeks, days and months that follow, is suffering from adjustment disorder with anxio-depressive mood. [130] In the reasoned opinion in his report, Dr. Gamache concluded that he agrees with Dr. Payne's diagnosis of the case. However, he gives as a diagnosis adjustment disorder with mixed anxiety and depressed mood and does not maintain the situational or reactive depression, which is not a diagnosis in the DSM-IV. According to him, the symptoms more closely match the code for adjustment disorder with anxio-depressive mood. Again, the symptoms that led him to this conclusion came from Beauregard. [131] According to Dr. Gamache, adjustment disorder is characterized by symptoms of anxiety or depression or both following stress experienced by the individual. He added that, in psychiatry, there is no objective examination, like a blood test for example, for making a diagnosis. Psychiatrists must trust what their patients tell them and what they know about human nature. According to Dr. Gamache, it is highly likely that Beauregard did exhibit adjustment disorder following the events he experienced. [132] When Dr. Gamache performed his assessment of Beauregard on February 25, 1999, Beauregard was not having nightmares, his mood was good, he was sleeping well and his appetite was good. He therefore had no psychological problems at that point and he had no after-effects, which confirmed, in his opinion, that once the stress was removed, the symptoms disappeared. However, he added that if the stress reappears, there is the chance that the symptoms will return. He testified, According to what I read in my assessment, Mr. Beauregard mentioned that, at the automated plants where he was working at the time, if I recall correctly, it was primarily his employer's attitude, who as I mentioned was watching over him: `Did you take 15 minutes to go to the bathroom' and things like that. So, obviously, that was very difficult for him to deal with. So it was stressful for him and in addition he was working nights, if I understand correctly, he was working at the automated plants, there was no light, and it was dusty. I don't remember if he was working nights, days or evenings, but for him that was stressful too. Therefore, many factors contributed to his experiencing a stressful situation at the automated plants where he was working and the fact of removing him from that, the fact of removing him, then at that time there were no longer any symptoms. But if they put him back, there is the chance of reappearance of... I don't know if that's clear [translation]. (My underlining.) [133] According to Dr. Gamache, there is no treatment, psychotherapy or drug therapy for this situation. Even if he were prescribed tranquillizers or antidepressants, it would not change anything. Only time can rectify things and remove the stress. When a person has adjustment disorder and the stress is removed, the symptoms disappear. However, in November 1998, Beauregard had been away from the automated plant since mid-September 1998, and Dr. Payne's diagnosis was still adjustment disorder. [134] When he examined Beauregard, Dr. Gamache said that he had no injury and that his mental state was normal. He did not see any after-effects or functional limitations because he did not have sleep, attention, concentration or mood problems. He was normal and was prepared to work, just not in the same work as before, according to Dr. Gamache. [135] In the section of his report entitled Nature, necessity, sufficiency or duration of care [translation], Dr. Gamache indicated nil because the stress was gone. He added that a doctor cannot suggest treatment when there are no symptoms. [136] A little further on in the section entitled, Existence or percentage of the worker's permanent psychological injury [translation], Dr. Gamache indicated none. In Dr. Payne's medical report from January 1, 1999, however, he had indicated that Beauregard had a 5% permanent injury. On February 26, 1999, Dr. Gamache indicated that there was none. Dr. Gamache said that he did not remember why Dr. Payne had determined that percentage. However, he added that, even if there were no permanent injury, that did not mean that Beauregard could return to the automated plants because there was still the chance of a relapse. [137] In cross-examination, Dr. Gamache admitted that a permanent injury is not something that goes away in a few weeks. Thus, since Dr. Payne determined that Beauregard had a permanent psychological injury and that Dr. Gamache, a month later, said that there was no permanent injury, it is obvious that either Dr. Payne was wrong or Dr. Gamache was wrong. I tend to favour Dr. Gamache's diagnosis on this point. [138] Then in Existence or assessment of the worker's functional limitations [translation], he concluded that the Complainant had no functional limitations from a psychiatric perspective. When Dr. Gamache examined him, his was sleeping well, his appetite was good, he was not anxious, he was well-oriented, and his affect was mobilizable. His mental examination was normal. He said that he was ready to go back to work tomorrow, he said, but at a different location [translation]. He had no symptoms. [139] Dr. Gamache mentioned ...it would be good if there were an administrative agreement with his employer for a change of position and work location as stipulated by his attending physician... [translation]. But he took care to add, However, I'll say it again that, from a psychological perspective, his mental state is normal and he has no functional limitations [translation]. He stated that, by administrative agreement", he did not mean that the problem was solely administrative. What he was suggesting was a dialogue between Beauregard, his employer and his union to determine the possibility of finding him a position elsewhere, due to his adjustment disorder. E. Dr. Gérard Cournoyer's examination [140] Dr. Gérard Cournoyer has been a psychiatrist at Louis-H. Lafontaine Hospital for 20 years. He was not considered an expert witness and his testimony, with respect to his opinions, should be taken with reserve. [141] According to Dr. Cournoyer, several times in his career, he has agreed to perform psychiatric assessments. It was in this capacity that he met with Beauregard on September 25, 2000, at the request of Ms. Marie-Christine Dufour, counsel for the postal workers' union. The examination lasted two hours. [142] Dr. Cournoyer's task required him to issue an opinion on Beauregard's ability to return to work, taking into consideration the presence or absence of functional limitations. On September 28, 2000, he submitted his psychiatric assessment report. [143] The fact that Beauregard had made 240 transfer requests made a strong impression with Dr. Cournoyer. When he questioned Beauregard about this, Beauregard explained that there was nothing in the collective agreement limiting the number of transfer requests that an employee can submit. He told him that he was completely free to go anywhere because he had no spouse or children. [144] In cross-examination, Dr. Cournoyer stated that he had questioned him on his real reasons regarding the transfer requests. Q. You noted in your examination that this person's 240 transfer requests were for the purpose of going anywhere in Quebec. He told you that? A. Yes, because I had asked him that question since I considered it to be a lot of requests. What I wanted to find out was whether he put in those requests just for the sake of it or if it was actually possible for him to accept a job anywhere in Quebec, in French or English. He told me, `Yes. I have no preference. All I want is a full-time position and I am not married, I have no children and I am available to go.' [Translation] [145] However, we have seen that Beauregard spoke of changes in his personal life as justification for refusing to go to Matane. It is surprising then that he did not mention this fact to Dr. Cournoyer. [146] Dr. Cournoyer continued, If memory serves me correctly, I don't know how... I think his bosses asked him the same question. It seems to make perfect sense to me, if someone puts in so many requests, to say `What are you doing? Are you serious? You could go anywhere?' If the person says, `Yes I am serious. I can go anywhere,' then I think they would take his requests more seriously and not think he was just putting in requests for the sake of it. [...] Q. In your opinion, in evaluating the situation that day, did you believe Mr. Beauregard when he told you, `I am available to go anywhere'? Did you believe it was in good faith? A. I believed him. He convinced me of that when he told me that he did not have a wife or children, which, for most people are factors limiting their choice of work (My underlining.) [Translation] [147] Beauregard explained to Dr. Cournoyer that, at the automated plant in St. Laurent, there were very noisy areas and that, in general, employees prefer not to work at this plant. They prefer to work elsewhere, either on the road, as a letter carrier, on the trucks, in the postal stations or even in the post offices. [148] However, Dr. Cournoyer did not believe that working in an environment such as the Complainant described could cause adjustment disorder, since many people work in very noisy locations and if everybody had adjustment disorder... I am not saying that it can't happen to some people, but in general, no. In my mind, noise is certainly not pleasant, but it's more likely the climate of conflict, which was the original stressor I identified, than the noise [translation]. (My underlining.) [149] Dr. Cournoyer's diagnosis is [that in] September 1998, Mr. Beauregard was suffering from adjustment disorder and the disorder persisted as long as he was faced with the possibility of returning to work at the automated plant [translation]. To arrive at this diagnosis, he said he used the history that Beauregard related to him and his emotional symptoms documented by Dr. Payne. [150] Dr. Cournoyer indicated that, in this case, there was an identifiable stressor, namely the difficult situation that the Complainant was experiencing at work. He noted that Dr. Luc Morin diagnosed an acute stress reaction and that Beauregard had anxiety symptoms and a depressed mood. According to Dr. Cournoyer these symptoms were consistent with a diagnosis of adjustment disorder. [151] The most significant symptom of a state of major psychological distress, according to Dr. Cournoyer, is seen in the Complainant's statement that he could no longer function normally. In his report, he wrote, on October 6, 1998, when I consulted with Dr. Allen Payne, he was not functioning normally [translation]. According to him, this is a symptom consistent with major psychological distress. If a person is sleeping poorly, does not get restorative sleep, loses his/her appetite, has low morale, then the person is relatively depressed. If, two hours after getting up, that same person states he/she feels so tired and feels the need to lie down again, then that, according to Dr. Cournoyer, is rather significant because the situation is preventing him/her from functioning normally during the day. Add to that that there are stressors because this same person feels anxious at the thought of being at work, and has a slowing down of the thinking process and headaches. According to Dr. Cournoyer, Dr. Payne put Beauregard on sick leave because he could no longer function normally. He added that the severity of the clinical symptoms and the change in the person's overall functioning were the reason for the sick leave. [152] According to Dr. Cournoyer, describing the stress as acute refers to the fact that the symptoms manifested quickly. The symptoms recorded in the doctor's file and the facts as reported by Beauregard are, in his opinion, consistent with a diagnosis of acute stress. [153] Dr. Cournoyer is of the view that the Complainant had a functional limitation preventing him from working at the automated plant even though, at the time of his examination, he admitted there were no symptoms. His psychological analysis is based in the conflict situation that Beauregard said he was experiencing at work and which was making him psychologically unable to return. For Dr. Cournoyer, the stressor is the work conflict. [154] Dr. Cournoyer added that it is possible for people to experience conflict situations that are significant enough to cause them psychological problems and that the only way to resolve the problem is to remove them from the conflict situation. He considers it wishful thinking to believe that, from a psychological perspective, Beauregard could return to the same location with the same people, where there is a complex and unpleasant history for everyone [translation]. [155] In his report, he said that he observed [w]hen I brought up the possibility of his returning to work one day at the automated plant, he appeared tense, anxious and he said he was getting a headache just at the thought of it [translation]. [156] The conflict, which was the stressor according to Dr. Cournoyer, originated from the fact that Beauregard wanted a full-time position. According to the facts he related to Dr. Cournoyer, he obtained a full-time position in 1995 or 1996, but after three weeks, he was informed that, due to an administrative error, he was being transferred to another position and lost his full-time status. In the summer of 1998, he was working as a clerk in a postal station replacing employees away on vacation. When he returned to the automated plant on September 14, 1998, he said that he was not put back into the position he had before the summer in the parcel area. Instead he ended up in the letter area. However, he did not inform Dr. Cournoyer that this was a temporary position and that his assignment was to end September 5, 1998, at the latest. Since he was not happy with the work environment and preferred very much to leave the automated plant, he said that he started to fill out the transfer requests. However, Dr. Cournoyer is of the view that these facts alone are not enough to arrive at a diagnosis of adjustment disorder. [157] As another item in the work conflict, Dr. Cournoyer mentioned a call that the Complainant made to the Respondent's Vice-President15, which, according to Beauregard, created tension between him and his superiors. From then on, he told Dr. Cournoyer, he was targeted [translation] in his work environment by his supervisors. In addition, in September 1998, he did not feel good returning to the automated plant, in a position he did not like and where he once again had to face managers that he was already in conflict with. [158] Dr. Cournoyer concluded, It seems wishful thinking to me to think that this man could work normally, given the psychological stress that can result from the exceptional circumstances he was in [translation]. By exceptional circumstances", he said he was referring to the work conflict. For an employee experiencing a conflict to call the Vice-President of the Corporation is exceptional, in Dr. Cournoyer's view; this same person putting in 240 transfer requests is also exceptional. However, there is nothing exceptional about being at an automated plant and having supervisors. There is nothing exceptional about having grievances against one's employer or personal dissatisfaction. What is exceptional here, according to Dr. Cournoyer, is the accumulation of facts in the conflict's history. The accumulation gives the impression that there was adversity in the workplace. [159] The adversity was caused by people, according to Dr. Cournoyer. Therefore, since we have a dilemma here and it is psychologically unbearable, and that there are people who can no longer tolerate each other, the solution is to separate the protagonists, but medically, it's not a reason for saying, `to avoid arguments, we'll call it functional limitation'. It's not right to say that [translation]. (My underlining.) [160] However, in his conclusion, Dr. Cournoyer added, In my opinion, Mr. Beauregard has a functional limitation for working at the automated plant [translation]. In cross-examination, in response to the question whether Beauregard could work at a another automated plant, Dr. Cournoyer answered that this question never came to mind, but that if he had asked him that question, he probably would have said that he could since, according to him, everything that had happened involved people working at a specific automated plant. Dr. Cournoyer did not seem aware of the existence of another automated plant downtown. However, Beauregard stated that he had talked to him about everything and explained that it could be that he did not specifically mention the automated plant downtown, but that he was sure he had indicated to Dr. Cournoyer that there were other automated plants in Ottawa, Quebec and Trois-Rivières! [161] Dr. Cournoyer's conclusion that the stress resulted from a work conflict is inconsistent with Beauregard's testimony, which identified the workplace as the stressor and not his supervisor(s). Since the doctor's conclusion was based on facts that Beauregard related to him, to me it appears inconsistent with the facts presented at the hearing and does not identify a conflict situation between Beauregard and his superintendent or supervisor as of September 14, 1998. It could very well be that the facts retained by Dr. Cournoyer could lead to the identification of adjustment disorder symptoms, but they still have to be consistent with what actually took place. However, I am not putting the blame for this situation on Dr. Cournoyer who, in good faith, trusted what Beauregard told him. F. Dr. Jacques Gagnon's assessment [162] Dr. Jacques Gagnon has been practising medicine since 1965: from 1965 to 1970 as a physician and since 1970 as a psychiatric specialist. He currently spends two thirds of his time in psychiatry. He is involved with a day hospital (HMR) where he mainly sees people with mood disorders. He has also had a career in teaching (over 25 years). He is an assistant professor of the Université de Montréal clinic. He teaches to residents in psychiatry and to residents and non-residents in family medicine. He has also done administrative medicine at the Maisonneuve-Rosemont Hospital, which is a teaching hospital. Since 1995, he has performed over a hundred assessments per year, while still maintaining a clinical component. [163] Dr. Gagnon qualifies as an expert witness in psychiatry. [164] Dr. Gagnon examined Beauregard on November 17, 2000 as part of an assessment for the Respondent. The main question Dr. Gagnon was asked was whether Beauregard had any functional limitations of a permanent psychological nature, as Dr. Cournoyer indicated. That was the first time he had met him. [165] Dr. Gagnon said he remembered that appointment, even though it had taken place three years earlier, since he had been one of the most difficult patients I have ever had to interview in my entire practice [translation]. Beauregard was reticent. He refused to sign the authorization for communicating the information but still agreed to have Dr. Gagnon proceed with the examination and prepare a report. [166] Dr. Gagnon explained that patients are sometimes reticent, but once he has explained to them the reasons for the examination and once the initial reservation passes, people usually cooperate. Dr. Gagnon said that, with Beauregard, he got the impression of treading on sensitive ground and having to make him feel as comfortable as possible and handling him very delicately in order to obtain his cooperation [translation]. Despite that, however, he managed to make the interview last almost an hour. [167] In the report prepared following that examination, Dr. Gagnon noted on the employee's application16, it mentioned situational depression ...and that this disorder persisted as long as he faced the possibility of returning to work at the automated plant [translation]. A little further, ...Mr. Beauregard exhibited adjustment disorder with mixed anxiety and depressed mood [translation]. Dr. Gagnon acknowledged that he was unable, with the information in his possession, to make a diagnosis on the Complainant's health in 1998. [168] However, Dr. Gagnon added that, according to him, what was causing his problem was clearly his perception of his work environment. Many of his complaints were due to the fact that he felt he was being watched by his superiors. From that he deduced that it was a harassment strategy on the part of the employer. For Dr. Gagnon, however, there was nothing unusual about the facts he related. [169] When Dr. Gagnon asked him what was troubling him, he answered that he had situational depression. According to Dr. Gagnon, this was obviously a learned response because the average person does not state that as a problem. Instead, people usually say they are sad or anxious or nervous, that they are sleeping poorly or have no appetite. However, it must be remembered that the Complainant had known for over a year that this was Dr. Payne's and Dr. Morin's diagnosis and he was simply repeating the information he had received from his doctors, which seems perfectly normal under the circumstances. [170] Dr. Gagnon said that Beauregard's answers to his questions were vague and very laconic throughout the examination. [171] After going over the list of symptoms identified by Dr. Payne, he mentioned that it is not enough for a person to simply state that he/she has insomnia. It must be determined whether it is initial or terminal insomnia because they mean different things. He added that a person waking up in the night but going back to sleep afterwards is normal. Thus, to determine if someone truly has insomnia, several questions must be asked; the doctor cannot just settle for the patient saying he/she has difficulty sleeping. [172] When asked about his sleeping and appetite problems, Beauregard explained that he would sometimes wake up at night and that his appetite was up and down. As for his weight, he indicated that he does not weigh himself but that he noticed that his waist was smaller by one belt hole [translation]. Regarding his mood, he talked primarily about his irritability at work, an aggressiveness that he said was controllable. He did not cry and did not appear particularly sad. [173] Dr. Gagnon felt that those are the questions that must be asked when looking for depression. Significant mood disturbance must be identified, either sadness or irritability. He added that if someone does not cry and does not appear sad, that greatly reduces the likelihood of it being true depression. [174] Dr. Gagnon said he had asked him questions about his concentration. He answered that, outside the automated plant, he was fine. According to Dr. Gagnon, people who are significantly depressed have concentration problems. If a person says that outside work he/she can concentrate, then the lack of concentration at work does not necessarily lead to a diagnosis of depression. Other factors could explain the lack of concentration. [175] Dr. Gagnon also questioned him about whether he had thoughts of persecution because it may happen that a person feels watched over in the pathological sense. The person may think certain people are conspiring against him/her, that they have something against him/her, that they are following him/her everywhere. That is not the case here. [176] He has no hallucinations or obsessions either. Dr. Gagnon indicated that people with anxiety problems sometimes have obsessive-compulsive disorder. He mentioned that these are routine questions in this type of examination. [177] He said that he noticed Beauregard was preoccupied with his work environment, which he considered unworthy. Which is not, according to Dr. Gagnon, an obsession in the medical sense. [178] Dr. Gagnon also questioned him about phobias because there are people who experience partial or total disability as a result of major phobias: specific exaggerated fears. For example, people with a phobia of heights should not be placed in a work environment where they have to work high up. In Beauregard's case, there are no phobias. [179] He observed that Beauregard had no delusional thoughts and no delusions of persecution. He did not have what Dr. Gagnon described as Schneiderian symptoms, in other words psychotic symptoms; no hallucinations, no obsessions and no phobias. [180] According to Dr. Gagnon, he was very alert. He was attentive and able to concentrate. His memory was functional, which means that, throughout the entire interview, he was in perfect command of what he was saying. The examination of his higher mental faculties showed them to be within the normal range. [181] Dr. Gagnon felt that his questioning was quite thorough, but that, even so, it could have been more satisfactory. It was unsatisfactory because of Beauregard's distrust and mental rigidity during the examination. [182] Dr. Gagnon acknowledged that anxiety attacks, thoughts of persecution, hallucinations, phobias or even obsession are not essential for a diagnosis of adjustment disorder. He added, however, that when a mental examination is performed, those questions must be asked to determine if the anxiety is the result of a more serious illness. Therefore, for an accurate adjustment disorder assessment, the more serious illnesses must be ruled out, including major depression, severe anxiety disorder, panic disorder, phobic disorders, obsessive-compulsive disorders or psychoses. [183] For Dr. Gagnon, a person with major personality disorder is someone who, throughout their adult life, has had adjustment difficulties because of the way he/she interacts with others. There are several prototypes of major personality disorder. Dr. Gagnon stated that, during his examination, he did not detect major personality disorder. However, he did observe some items about the Complainant's personality: coldness, distrust, and rigidity in his thinking. [184] He said that he questioned him about the treatment he had received. He found that he had not been prescribed any medication (Beauregard mentioned that he was against taking medication) or psychotherapy17. According to Dr. Gagnon, the accepted treatment for major depression is antidepressants, which have an anxiolytic effect. In this case, with the reported symptoms, there was no reason, according to Dr. Gagnon, to prescribe medication or any other treatment. The lack of a prescription is indicative, according to him, of the scope of the illness. If a person's illness is severe or long-lasting, it is normally expected that they will receive appropriate medical treatment. [185] According to Dr. Gagnon, one aspect that was a bit unusual in his examination of Beauregard was his distrustful attitude, but everything else was within the normal range. [186] Dr. Gagnon's examination did not reveal any active pathologies, but he still believed that there was probably a personality problem that could explain the extent of the conflict. He indicated that he said probably because he did not have all the information at hand for deciding the matter. He said that, by personality problem, he was referring to a conflict that was still unresolved. However, he indicated that he did not mean personality disorder when he spoke of personality problem. [187] Dr. Gagnon concluded that Beauregard did not have an active psychiatric pathology. He was in good health. It could be that he was experiencing minor adjustment difficulties, but according to Dr. Gagnon, these difficulties do not constitute illness. [188] Dr. Gagnon added that, when someone is cold or distrustful, it could be said that, at a minimum, they have some maladaptive traits. He added, however, that it could not necessarily be concluded that he/she has a major personality disorder. It has to be qualified. With reserve, he believes that Beauregard exhibited some traits of a paranoid personality, which is based on distrust. People with paranoid personality disorder are afraid that people are doing things behind their back, are afraid that others are against them. However, he added that a paranoid personality does not become psychotic, in other words they are not delusional, but are very reserved, very distrusting. He said, however, that Beauregard's lack of cooperation during the examination required him to issue this opinion with reserve. [189] Dr. Gagnon also found that Beauregard was not open about his personal life. The only thing he brought up of any significance, according to the physician, was his feeling of indignity in his work environment. In his report, he explained that, he talked about noise-related stress, stress due to unworthy work and the aggressiveness between employees and the union [translation]. The only stressor that he brought up was his difficulty dealing with the work environment. Therefore, as soon as he would be removed from his work environment, it could be expected that his anxiety would disappear in the ensuing days and weeks. [190] Dr. Gagnon stated that he had difficulty with the opinion of the physicians who gave a diagnosis of adjustment disorder. They should have indicated instead that he had, at most, anticipation anxiety, anxiety related to his perception of his work environment. People generally learn to manage this anxiety, which is not an illness. With a diagnosis of chronic adjustment disorder, it is understood that the individual has ongoing disruption of his/her sleep, appetite or functioning, which none of the physicians who examined Beauregard mentioned. [191] He added that when someone has anticipation anxiety, it can be due to personal preferences or difficulty managing a conflict. If there is a conflict at work, the employer should try to resolve it. However, for it to be an illness, it should be based on symptoms that would lead to such a conclusion. [192] According to Dr. Gagnon, the Complainant's actions should be interpreted in this case as a strong desire to go somewhere else [translation], but he added that there are mechanisms in the collective agreement that provide for these situations. This situation is not of medical competence. If a physician determines that the problem is administrative, he/she should indicate this to the employer or the interested party, thereby turning the problem back to the company's management. It is not for the physician to decide whether someone should or should not work at a particular plant or location unless it can be demonstrated that there is a pathology. [193] He went on to say that in the case of an illness, if the person wishes to return to his/her work environment, he/she can take medication, to calm anxiety for example, or can learn from a psychologist how to handle the situation. However, if the employee does not want to return to work, it is difficult to offer the treatment and support he/she needs. III. GENERAL OBSERVATIONS REGARDING MICHEL BEAUREGARD'S CREDIBILITY AS A WITNESS [194] For much of the evidence, I had to choose between Beauregard's testimony and those of the other witnesses. I must now explain why, where the evidence conflicted, I chose the other witnesses' testimonies over Beauregard's. Without challenging his honesty in other respects, Beauregard did not seem to me at the hearing to be a credible witness. Several examples support this conclusion. [195] First consider the reason he gave for choosing Dr. Allen Payne as the attending physician. When counsel for the Commission interrogated him about this, the Complainant seemed to attribute his choice to chance. He was taking a family member to the Papineau subway station and said that he had noticed in his union booklet that the Polyclinique was not far. He forgot to add, however, that Dr. Payne had already treated him in 1997 for epicondylitis in his right elbow and for situational depression. When counsel for the Respondent questioned him about this, he said that he did not remember that. [196] He also testified that the first time he heard about situational depression was in October 1998. However, we have just seen that this is the diagnosis Dr. Payne made in 1997 as well. [197] Another example: on November 25, 1998, the Respondent offered him an assignment to Matane. He first stated that he had never filled out a transfer request for Matane. When informed that he had indeed filled out such a request on May 16, 1997, he responded that it was no longer valid because, according to the collective agreement, a transfer request is valid for only one year. He then added that, at that time, there were changes in his personal life and he therefore did not want to accept a transfer outside of Montreal. He also mentioned that several other factors have to be considered before accepting a transfer and that he was not actually required to accept any. [198] This response is surprising to say the least, given his statements to Dr. Gérard Cournoyer that he was free to go where he wanted since he had no wife or children, that he was prepared to go anywhere to get away from the automated plant. If that was the case, then why did he turn down the offer of an assignment to Matane? Why did he not refer to this offer during his visit with Dr. Cournoyer? Why did he not tell Dr. Cournoyer about the changes in his personal life? [199] As to the 240 transfer requests, he first said that he had forgotten about these transfer requests because they were only good for a year and had not kept them. He then added that he could not say whether the figure 240 was right or whether it was he or Dr. Cournoyer who came up with that figure. [200] In reaction to Dr. Cournoyer's statement in his testimony that he was not aware of another plant downtown, he first stated that he had talked to him about it. He then added that he may not have specifically mentioned the automated plant downtown, but that he was sure he had indicated to Dr. Cournoyer that there were other automated plants in Ottawa, Quebec and Trois-Rivières. [201] There are inconsistencies with several other points in his testimony, but I will not go through a detailed list. I will also pass over the continuing confusion regarding the dates of receipt of the mail that the Respondent sent to him. I do wish to make one comment, however, namely that I was surprised by the Complainant's attitude. Although it was true, according to the regulations, that he had fifteen days to pick up the letters, was it not in his best interest to do so as soon as possible and to cooperate with the Respondent so that the situation could be dealt with as quickly as possible? IV. THE LAW [202] Before dealing with the issues raised by the Act, I would like to address a preliminary issue submitted by counsel for the Respondent that the grievance arbitrator, Mr. R. Blouin, had already inquired into the same issue. As a result, the Respondent submitted that the Tribunal does not have jurisdiction for deciding this case. A close reading of the two decisions rendered by arbitrator Blouin shows that the grievances he was asked to decide do not raise issues of discrimination or allegations of human rights violations, and the arbitrator did not in fact deal with issues of this type. The issues submitted to the arbitrator and those that I am called upon to decide in this case are very different. I consequently dismiss the Respondent's preliminary issue without further ado. [203] Mr. Beauregard's complaint was submitted pursuant to section 7 of the Act, which stipulates that it is a discriminatory practice to differentiate adversely in the course of a person's employment on a prohibited ground of discrimination. [204] According to section 3 of the Act, disability is a prohibited ground. Section 25 indicates that disability includes mental disability. The first issue I will respond to, then, is whether Beauregard had, at the relevant time in this case, a mental disability, and therefore a disability within the meaning of the Act. [205] In a case of this nature, it is the Complainant's responsibility to establish a prima facie case of discrimination.18 If a prima facie case is established, the onus shifts to the Respondent to provide a reasonable explanation for the conduct in issue.19 [206] A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in favour of the Complainant in the absence of an answer from the Respondent.20 The allegations made by the Complainant must be credible to justify the claim that a prima facie case has been established.21 V. ANALYSIS [207] In this case, the Commission and the Complainant have not successfully established a prima facie case of discrimination because I am not satisfied that they have established that the Complainant has a disability. [208] The conclusion I have reached in this case does not question the possibility that an adjustment disorder can, in the right circumstances, be a sufficient disability within the meaning of the Act22. The Act does not contain a list of acceptable and unacceptable mental disabilities. It is not just the most serious or most severe mental disabilities that are entitled to remedy under the Act. Additionally, it is not solely those that result in a permanent injury that must be considered. Where appropriate, even mental disabilities described as minor with no permanent injuries could be entitled to remedy under the Act. However, sufficient evidence still needs to be presented to support the existence of the disability. [209] In most cases, the issue of whether there is a disability is not disputed. In this case, however, the Respondent submitted that the Complainant does not have a disability. [210] Beauregard claimed that, on September 14, 1998, he sustained an injury while at work.23 He said that, as a result, he was off work from October 1, 1998 until December 17, 1998. His attending physician for a CSST claim diagnosed situational depression that left him with permanent functional limitations, specifically that he could no longer work on the night shift at either of the Respondent's two plants in Montreal: the one downtown and the one in St. Laurent. As far as the Commission and the Complainant are concerned, this condition constitutes a disability within the meaning of the Act. [211] The Complainant also claimed that by ordering him to return to work on December 9, 1998, and terminating his employment on December 16, 1998 for refusing to return to work, the Respondent is in violation of section 7 of the Act. [212] The Respondent submitted that the Complainant does not have a disability within the meaning of the Act and that it therefore did not engage in a discriminatory practice towards him. [213] There is no doubt that adjustment disorder with anxio-depressive mood or even situational or reactive depression are psychological pathologies that can result in a disability within the meaning of the Act. [214] However, I agree with the Respondent's statement that it is not enough for a physician to state that a person has this condition to acknowledge automatically that it exists. Evidence still needs to be presented to the Tribunal in support of the traits specific to this pathology and that leads to the conclusion that the illness exists. [215] What, according to the evidence submitted to the Tribunal, are the traits specific to adjustment disorder with anxio-depressive mood? To answer this question, we must first acknowledge that any pathology has symptoms and a cause. [216] The evidence presented at the hearing showed that the following are symptoms of adjustment disorder with anxio-depressive mood24: loss of appetite, weight loss, loss of sleep, sad mood, loss of concentration, and stress. [217] Only Dr. Payne, Dr. Morin and Dr. Guérin examined the Complainant at a time contemporaneous with the events. In his medical reports, Dr. Payne did not mention any symptoms. Moreover, he acknowledged that the Complainant had come to see him for a sinus problem and that he had said By the way, Doctor, I don't feel well, etc. [translation]. He added that the sinus problem was not connected with the Complainant's psychological state. In a note written on June 8, 1999, he noticed in his entry for October 6, 1998, wakefulness at night, no recovery, poor appetite, low morale ... since his transfer to the plant on 14-09-98 [translation]. However, he does not give any details about the symptoms. Dr. Gamache, who saw the Complainant after the events, stated that he was unable to identify any symptoms in Dr. Payne's reports. In his short note, Dr. Morin did not identify any symptoms either. And Dr. Guérin, after conducting his examination, concluded that, in the Complainant's case, there were no active pathologies. [218] None of them reported any sadness in the Complainant. As to the loss of sleep, there was very little detail, if any. Dr. Payne stated that the Complainant's thoughts seemed slow, whereas Dr. Guérin stated that he found him normal in this respect. There was no evidence of loss of concentration. [219] All the experts and psychiatrists testified that adjustment disorder symptoms usually disappear when the stressor disappears. Yet Dr. Payne indicated that the Complainant still showed signs of anxio-depressive mood in November 1998, more than a month after he stopped working. If that is case, the situation seems to me to be more serious than first diagnosed and should require a more aggressive medical treatment, yet no treatment was prescribed. Moreover, Dr. Payne's conclusion in November is surprising to say the least since, at the Complainant's first visit, the alleged depression was so minor, according to his testimony, that he prescribed a return to work the next day. [220] In Chamberlin quoted by the Commission, the Complainant in that case had also been diagnosed by his physician as having adjustment disorder. The symptoms and causes are described in paragraph 11 and 12 of that decision. In that case, where the facts appear to describe a more severe situation than the one in this instance, the attending physician had prescribed two to four weeks leave and a reassessment at the end of that period to determine whether the Complainant was fit to return to work. We can conclude from this that if the situation had been serious, Dr. Payne would have prescribed a longer leave and that since he considered that one day was sufficient, he must have considered the depression minor, if anything. [221] Dr. Payne's diagnoses must be taken with some reserve, from a facts perspective. By his own admission, the Complainant's examinations at the Polyclinique had to be done rather quickly because there were many patients waiting. The Polyclinique handles an industrial quantity [translation] of CSST cases, to use Dr. Payne's expression. None of the appointments with the Complainant exceeded 10 or 15 minutes. Some lasted only 2 to 5 minutes and a medical report was issued without an examination. Dr. Payne admitted that some of the comments in his diagnoses were suggested to him by the Complainant, including the outside of the two plants [translation] restriction, the reference to a section in the collective agreement, and the night shift restriction. I also notice that there remains the unexplained issue regarding the annotation on the employer and employee copies of the medical report from October 6, 1998 that does not appear on the physician's copy. He acknowledged that he made some mistakes on other medical reports. Finally, he admitted that the Complainant's problem is primarily administrative and somewhat medical [translation]. [222] I conclude from this that, in the fall of 1998, there was no evidence that the Complainant had symptoms of adjustment disorder with anxio-depressive mood or any other psychiatric symptoms and as such there is no disability within the meaning of the Act. [223] Nevertheless, I will now discuss the evidence presented that would explain the causes of the Complainant's alleged condition, in case my conclusion regarding the symptoms proves to be incorrect. There are many causes of adjustment disorder with anxio-depressive mood.25 The expert witnesses all testified that, for adjustment disorder to be triggered, there needs to be a stressor. [224] Dr. Cournoyer testified that the Complainant's workplace can not be considered a stressor. Dr. Guérin agreed when he indicated that the type of location where the Complainant works cannot in itself create the type of pathology that is alleged here. [225] What Dr. Cournoyer considered as the stressor was the work conflict. However, upon reading the history of the conflict, as related by Dr. Cournoyer in his report, we cannot help but notice that he used a version of the facts that diverges on several points from the version the Tribunal heard. In this case, either Dr. Cournoyer was misled or the Tribunal was misled. [226] Dr. Cournoyer, in good faith, developed his medical opinion using those facts. Among other things, he was convinced that, when the Complainant left his position on September 15, 1998, he was surrounded by supervisors that were harassing and watching over him. However, the evidence, uncontradicted at the hearing, showed that, before September 15, Réal Caron did not know the Complainant and that he had never had to work with him. In addition, no evidence was submitted describing the events from September 14, 1998 onwards, which would lead me to the same conclusions as Dr. Cournoyer's in this regard. [227] In addition, the Complainant did not explain to Dr. Cournoyer why, on September 14, 1998, he had to report to the LPP on the night shift and not the BPP, creating the impression that the employer was being arbitrary in its treatment of him, whereas the facts show that his temporary assignment at the BPP had ended. [228] Neither did the Complainant consider it necessary to inform Dr. Cournoyer of the second Montreal plant like the one in St. Laurent. When informed of this situation at the hearing, Dr. Cournoyer acknowledged that the Complainant could work at the other plant because there was no reason to believe that the conflict with the supervisors at the St. Laurent plant - the stressor - would move to the other plant. [229] Dr. Gamache, who stated that he found no adjustment disorder symptoms in Dr. Payne's medical reports, said that, for his examination, he relied on the facts as told to him by the Complainant and concluded that the stressor was a labour relations problem. In his report, he wrote that the problems began on September 14, 1998, when the Respondent ordered the Complainant to return to work at the automated plants as a letter clerk. Once again, the Complainant did not explain the circumstances surrounding this situation as they were related to the Tribunal. Dr. Gamache then produced examples the Complainant had given him of situations which, as of that date, demonstrated that the employer was using pressure tactics on him. Only one of these examples was produced at the hearing. In addition, the evidence showed that only one of these events could have occurred after September 14, 1998. Only one, the last event that Dr. Gamache mentioned, occurred after September 14, 1998: he was even told, he mentioned to me, with supporting evidence, that his supervisor told him that if he did not do it that way (his work), they would `kick his ass' out the door [translation]. Réal Caron did not deny using the words they would kick his ass out the door", but states that he said it to Renée D'Amours, on October 7, 1998, in the evening when he was waiting to meet with the Complainant to discuss the medical report the employer had just received. In addition, it should be remembered that Gagnon, the union representative, had heard these remarks, which he surprisingly wrote at the bottom of his minutes from the meeting of December 1, 1998. In any event, the remarks were never said directly to the Complainant who, moreover, was not at the October 7 meeting. [230] In Dr. Gamache's view, then, the problems started on September 14, and it was from the facts as related to him by the Complainant that he had, in good faith, prepared his medical report. [231] Therefore, Dr. Payne, Dr. Cournoyer and Dr. Gamache all had the impression that, in September 1998, there was a work conflict between the Complainant and his supervisor(s), which was the event - the stressor - that justified a diagnosis of adjustment disorder with anxio-depressive mood. [232] The Complainant himself testified that his problems started at the LPP in St. Laurent on September 14, 1998. Yet in a letter to France Villeneuve of the CSST on December 9, 1998, in which he said he detailed the facts about what caused his situational depression, there was no significant facts for the period between September 15 and October 1 and definitely no facts demonstrating that there was a conflict with his supervisor(s) at the LPP. In addition, the names of Réal Caron, his superintendent, and Renée D'Amours, his supervisor, did not appear in this period. [233] In assessing the evidence presented to me, I have to conclude that the alleged stressor or alleged cause of the pathology is a work conflict at the LPP in St. Laurent. However, there is no evidence before me that enables me to determine whether the work conflict is real or perceived. The evidence does not enable me to conclude that the alleged stressor exists to warrant psychological stress and therefore a disability within the meaning of the Act. [234] I am convinced that the Complainant is unhappy at a job he does not like and that he finds degrading [translation], to use his own expression. For him the plant is a source of frustration and job dissatisfaction. However, that does not justify the conclusion of a disability within the meaning of the Act. VI. DISPOSITION [235] As a result of the foregoing, Michel Beauregard's complaint under section 7 of the Act is dismissed. Michel Doucet OTTAWA, Ontario January 28, 2004 1The St. Laurent plant is physically divided into three units: the administrative unit; the West depot, which is a letter carrier depot, and inside the plant is another unit with two functions, one for processing letters (LPP) and the other for processing parcels (BPP, known today as the PPP). 1The LPP is organized into several work areas: the manual area, the automated area, the shipping area and the international area. At the BPP, there is the admail area, the receiving and distribution area and the oversized area. For parcels, there is also an area called priority courier which was set up in 1997. 1The BPP and the LPP are physically separated by a cement wall that has about five doors. The LPP is about 500 feet by 672 feet, and the BPP is about 800 feet by 672 feet. There are conveyors and a parcel-sorting machine in the BPP. The noise is louder there. There is automation in the LPP as well, but it is different than in the BPP. 1As to the organization of work, LPP employees look after mail that is collected from mailboxes and mail dropped off right at the plant. The employees essentially prepare and process the mail for delivery. Some employees manually process letters; others, the coders, are trained to process mail using machines. There are also multi-line optical character readers or bar code sorting machines that speed up mail processing. 1As to the bulk or parcel processing plant (BPP), trucks transport the parcels, which are then processed for shipping. The work is less automated. The employees' work is more physical. There are also clerks in the oversize parcel area who process over-sized parcels. At the loading docks, shippers load and unload the trucks. 1The work at the BPP and the LPP is organized into three shifts: the day shift from 7:30 a.m. to 3:30 p.m.; the evening shift from 3:30 to 11:30 p.m. and the night shift from 11:30 p.m. to 7:30 a.m. The evening shift has between 125 and 150 employees. Each shift has superintendents. There are also supervisors under the superintendents. Superintendents and supervisors are assigned either to the LPP or the BPP. Above the superintendents in the hierarchy are managers: two at the LPP and two at the BPP. At the top of the hierarchy is the director. 2 For a letter sent by priority post with signature, the letter carrier must go to the recipient's home and obtain his/her signature before handing him/her the letter. If the recipient is not at home, a card is left in his/her mailbox stating where the letter can be picked up. 3Canada Post's items delivered bill indicated that Beauregard took delivery of this letter on October 29th, not the 28th. Beauregard stated that the date on the bill was incorrect. However, Danielle Billod, the employee at the Canada Post retail outlet at the Bachir convenience store in Anjou, where Beauregard would pick up his mail, testified that he insisted that she fill out the document in front of him so he could ensure there were no mistakes. The complainant stated that, when he went to pick up the letter at the retail postal outlet, he did not remember if there was another letter there for him. Ms. Billod stated that when he would come to pick up his mail, the complainant did not necessarily take all the mail that was addressed to him; he would just take the information, saying he would come by again later. It would sometimes happen that he would take some envelopes and leave others. 3 4Regarding the ways the employer could contact him, Beauregard testified that he did not want anyone calling him at home because the number belonged to his father and that the latter did not like to receive calls. He also added that he uses his cell phone for personal calls but had not authorized the employer to contact him at that number. He added that if the employer wanted to reach him, it should do so in writing. According to him, the best way to contact him was by priority post without signature. In this case, the letter was delivered the next day to the mailbox at his home. 4 5However, according to Canada Post's priority courier tracking and tracing system", this letter was delivered on October 26, 1998. 6Beauregard's testimony is vague, to say the least, with respect to the number of transfer requests he prepared. On one hand, he stated that he might have put in between 20 and 40 transfer requests per year. In cross-examination, he said he no longer knew whether it was he or Dr. Cournoyer who spoke of 240 transfer requests. He stated that he did not have the transfer requests with him at the time of that visit, only a blank form as an example. A little further on, he said that he filled out these requests about 40 per week, over a period of 6 weeks. On the other hand, he talks about 40 requests per day, in 6 days. If we look at the impressive number of transfer requests presented as evidence during the hearing, they are all dated May 16, 1997. 7No evidence of this appointment was presented at the hearing other than Beauregard's conclusion that Ms. Daigle had arrived at the same diagnosis as Dr. Payne did, namely that there should be a change in workplace. 7 854.02 Work Reintegration for Employees in Groups 1, 3, 4, and 5. Where an employee has become physically handicapped because of: 8(a) a compensable injury; or 8(b) non-compensable health reasons, and the need for assignment is supported by a certificate issued by a qualified medical doctor, upon written application he or she may be assigned to any vacant position in his or her group. Where such a position is described by the provisions of section 43, the first assignment shall be made only for the period required for applying that section. However, if the employee accepts appointments in the assigned classification, he or she shall be deemed to belong to the assigned classification and the normal rules of seniority shall apply. 8 9Canadian Union of Postal Workers v. Canada Post Corporation (Beauregard's grievance, STTP 350-95-18617, Blouin, arbitrator), [2001] D.A.T.C. no. 645. 10On December 29, 1998, the CSST informed him that it could not accept his claim because it did not involve an occupational injury. According to the CSST, the case did not lead to the conclusion that there had been an unforeseen and sudden event. As a result, compensation would not be paid. In a letter dated March 10, 1999, France Villeneuve of the CSST stated that the diagnosis was adjustment disorder with mixed anxiety and depressed mood, code 309.21. According to the CSST, this did not result in a permanent injury. A little further on, it found that, given the date of consolidation of the injury and the lack of functional limitations, Beauregard was able to perform his duties. 11The disciplinary action that the Respondent took against Beauregard and the discharge were the subject of two labour arbitration rulings. In an initial decision on July 21, 2000, (Canadian Union of Postal Workers v. Canada Post Corporation (Beauregard's grievance, STTP 350-95-18617, Blouin, arbitrator), [2000] D.A.T.C. no. 467), the grievance arbitrator, R. Blouin, ruled that the discharge and disciplinary action against him were unjust. He ordered that he be reinstated and that the disciplinary letters be deleted from his record. However, the arbitrator indicated that he would retain jurisdiction on any problems that may arise from the enforcement of his decision. In a second decision dated September 7, 2001 (Canadian Union of Postal Workers v. Canada Post Corporation (Beauregard's grievance, STTP 350-95-18617, Blouin, arbitrator), [2001] D.A.T.C. no. 645) dealing with the redeployment request and the issue of the quantum of damages, the arbitrator ruled, on the first issue, that the stressor was the work conflict at the automated plant and that it could be a personality conflict. He added that he did not have evidence of a work conflict. He noted that the issue was that Beauregard felt he was being watched over, but he stated that there was no evidence for verifying whether this was perceived or real. In the end, he found that the evidence did not lead him to the conclusion that the existence of the alleged stressor justified psychological stress. Therefore, the request for redeployment under section 54 was not justified. The application for the quantum of damages is also closely linked with the redeployment issue and since the latter was unjustified, the arbitrator found that Beauregard could not justify a monetary claim on it. In addition, since the employer considered him to be on unpaid sick leave and since he had no more sick leave credits, he could not claim for this item either. 12The initial medical certificate is a CSST document in quintuplicate. Copies 1 and 2 go to the CSST, copy 3 is the physician's copy, copy 4 is for the worker, and copy 5 goes to the employer. The worker gives copy 5 to the employer. 13During this visit, Dr. Payne prescribed Flonase for him, a sinus medication. The Complainant was not opposed to the prescription, but he appears not to have taken the medication, nor to have gone for the X-ray. The sinus problem seems to have improved on its own. 14R.S.Q., c. S-2.1. 15On April 28, 1998, Beauregard telephoned Mr. Blanchette, the Respondent's Vice-President, to inform him of some grievances. 16He acknowledged that this was poorly worded. Instead he should have said the employee's form. 17He did not mention his appointment with the psychologist. 18Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202, p. 208, and Ontario Human Rights Commission and O'Malley v. Simpson Sears Limited, [1985] 2 S.C.R. 536, p. 558 18 19Israeli v. Canadian Human Rights Commission, 4 C.H.R.R. D/1616, p. 1617 (aff'd 5 C.H.R.R. D/2147 (Review Tribunal). 19 20O'Malley, supra, p. 558. 21Singh v. Statistics Canada, [1998] C.H.R.T. No. 7, aff'd [2000] F.C.J. No. 417 (T.D.), and Dhanjal v. Air Canada, [1997] F.C.J. No. 1599, (1997) 139 F.T.R. 37. 22To this effect, see Boucher v. Canada (Correctional Service) (1988), 9 C.H.R.R. D/4910; Chamberlin v. 599273 Ontario (1989), 11 C.H.R.R. D/110; and Zaiyski v. Loftsgard (1995), 22 C.H.R.R. D/256. 23See the complaint form. 24The evidence also showed that not all of these symptoms need to be present for a diagnosis of adjustment disorder. 25See Chamberlin v. 5992273 Ontario Limited, supra, para. 30

2004 CHRT 40

CHRT

Bressette v. Kettle and Stony Point First Nation Band Council

en

2004-12-24

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7047/index.do

2023-12-01

Bressette v. Kettle and Stony Point First Nation Band Council Collection Canadian Human Rights Tribunal Date 2004-12-24 Neutral citation 2004 CHRT 40 File number(s) T827/7703 Decision-maker(s) Hadjis, Athanasios Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MAURICE BRESSETTE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - KETTLE AND STONY POINT FIRST NATION BAND COUNCIL Respondent REASONS FOR DECISION MEMBER: Athanasios D. Hadjis 2004 CHRT 40 2004/12/24 I. FACTS A. Facts Relating to the Section 7 Allegations B. Facts Relating to the Allegation of Retaliation (s. 14.1 of the Act) II. LEGAL FRAMEWORK III. ANALYSIS A. Section 7 complaint (i) Prima facie case B. Section 14.1 complaint IV. REMEDY A. Compensation for pain and suffering (s. 53(2) e)) B. Special Compensation (s. 53(3)) C. Expenses D. Interest [1] The Complainant, Maurice Bressette, alleges that the Respondent, the Kettle and Stony Point First Nation Band Council, did not hire him because he was not related to the Band's Chief. He claims that this refusal constitutes discrimination on the basis of his family status, in contravention of s. 7 of the Canadian Human Rights Act. [2] The complaint was filed with the Canadian Human Rights Commission (Commission) on March 30, 2002. On January 15, 2004, the Tribunal granted the Complainant's motion to amend his complaint to include an additional allegation of retaliation under s. 14.1 of the Act. He asserts that he was the victim of numerous incidents of reprisal on the part of the Respondent following the filing of his complaint. [3] The Complainant acted on his own behalf at the hearing. The Respondent was represented by legal counsel. The Commission opted to not appear at the hearing. I. FACTS A. Facts Relating to the Section 7 Allegations [4] The Complainant is a member of the Kettle and Stony Point First Nation Band Council (Band). The Band's reserve is located northeast of Sarnia, Ontario. Many members of this community have the same family names although they are only distantly related to each other, if at all. In the case at hand, the Complainant and the Chief, Tom Bressette, bear identical last names but they are not related to one another. [5] The Complainant holds a Certificate from Lambton College's Human Services Foundation Program, which he completed in 1997. As part of his training, the Complainant was assigned to work within the Band's social services department for about six months. His functions included assisting the Band's social services administrator, performing clerical duties, and meeting with the department's clients. [6] In April 2000, the Complainant followed up his certificate with a Diploma from the same college in its Social Service Worker Program. The training for this program also provided for a six-month co-operative work assignment, which he completed within the Band. The Complainant was posted to the Family and Community Development Program operating within the Band's health centre. His duties included making observations regarding the centre's clients, preparing their case files, and providing them with referrals. In addition, he helped set up a drop-in centre for people with substance abuse problems. [7] In October 2000, the Band hired the Complainant as a casual employee assigned to work within the Children's and Family Services Program. He assisted in the preparation of case files and in the organization of events such as Christmas festivities, community dinners and fundraising activities. He joined the Band's youth worker on home visits to children who were on supervised care with family members. He also occasionally accompanied the program's workers when they were required to attend court hearings. Whenever time allowed, the Complainant took the opportunity to review some of the material available at the office regarding Ontario's Child and Family Services Act. His term was scheduled to conclude at the end of December 2000 but it was renewed for two more months. A second renewal was not offered and his employment came to a close at the end of February 2001. [8] In July 2001, the Respondent announced a competition for the full-time position of family caseworker", under the auspices of the Children's and Family Services Program. The job's duties included the development of an individualized casework plan to assist children and families in receipt of family support services that are delivered in the home. The successful applicant was required to have a good familiarity with the culture and attitudes of native people, as well as knowledge and experience in administrative procedures and report writing. Excellent interpersonal and communication skills were also called for, in addition to an understanding of all applicable legislation. The successful candidate had to possess a valid driver's licence and a vehicle. All applicants were required to provide criminal reference checks. [9] The Complainant sent in his letter of application for the position on July 20, 2001. He was one of five candidates who were invited shortly thereafter to an interview conducted by Laura Wilde (a Band elder), Sharon Henry (the coordinator of the Children's and Family Services Program) and Robert Bressette (a member of the Band Council). The interviewers were provided with a set of questions and possible answers, which had been prepared in advance. The candidates were asked to explain, amongst other things, the level of their involvement within the community, their opinion on the role of the Children's & Family Services Program in the community, and the obligation of a family caseworker in law to report child abuse. [10] The Complainant was not given any news about the outcome of the competition for several months following the interview. In November 2001, Stan Sabourin, the Band administrator at the time, told the Complainant that the Band's Finance Committee and the Council were still dealing with the matter. In February 2002, the Complainant finally learned that he had not been selected. Some weeks later, he came to know that Eva Bressette, Chief Tom Bressette's sister, had been transferred internally into the position. [11] Eva Bressette had worked for the Band since 1994. Most recently, she had been officially employed as the Band Representative. Her duties consisted of representing the Band's interests in child welfare proceedings before the courts. Her office was located within the Children's & Family Services Building in which the Complainant had also worked as a casual employee. [12] The Complainant believed that Ms. Bressette lacked the proper qualifications for the position. He found out, for instance, that at the time of her transfer, Ms. Bressette's driver's licence had been suspended and that she did not possess a vehicle. Yet, according to the statement of qualifications for the position, both were required. [13] The Complainant suspected that Ms. Bressette was hired because she was the Chief's sister, prompting him to file the complaint that is before this Tribunal. It appears that when the Complainant signed his complaint, he was of the belief that Ms. Bressette had participated in the same competition. However, the evidence at the hearing revealed that this was not the case - she had not applied for the position in connection with this competition. [14] Of those individuals who had in fact applied, five were screened into the interview phase of assessment, including the Complainant. The interview panel ultimately decided to recommend Deborah Herman as its first choice to the Band Council, and Dorothy French as an alternate. Neither candidate was related to Chief Bressette nor, for that matter, to any of the interview panel members. When the panel's recommendation came before the Band Council some time later, however, it was rejected. The Band Council determined that neither Ms. Herman nor Ms. French possessed the requisite background and qualifications for the caseworker position. As a result, the post remained vacant. [15] During the same period, the Band's Finance Committee realized that some serious problems had developed regarding the Band's finances. The Band was facing a fairly large accumulated deficit combined with a significant diminishment in its cash flow. The Finance Committee sought to develop a deficit reduction strategy that would at the same time eliminate the cash flow problem. It was in the context of dealing with this financial predicament that Mr. Sabourin raised the possibility of transferring employees internally to maximize the utilization of available government funding. [16] He had observed that the funding for the Band Representative's position came from the Department of Indian and Northern Affairs Canada and was intended to compensate a workload of up to 20 hours per week. Ms. Bressette was in fact working well beyond this level. Aside from her Band Representative duties, which themselves exceeded 20 hours per week, she performed several tasks within the Children's and Family Services Department, including many that were ordinarily executed by a caseworker, for which she was being paid from the Band's general funds. The Band had also engaged the full-time services of in-house general counsel, Jonathon George. He was being paid from the Band's general funds as well. Meanwhile, the funding from the Ontario Government for the family caseworker's position was being left untapped due to the job's ongoing vacancy. [17] Typically, both Mr. George and Ms. Bressette were in attendance at all court proceedings relating to child and family services, each in their respective capacities as Band counsel and Band Representative. Mr. Sabourin proposed that Mr. George assume both functions. A portion of Mr. George's salary as in-house legal counsel would thus be paid from the Federal Government's funding of the Band Representative's position. Ms. Bressette, in turn, would be transferred internally to the vacant caseworker's post. In this way, her entire full-time salary would be paid from the provincial funding scheme. Her work would include many of the functions that she had already been performing, for which she was previously being paid from the Band's own funds, as well as any additional tasks arising from the formal caseworker's position. Thus, the Band could maintain the services of in-house legal counsel and a Band Representative, while gaining the services of a family caseworker and reducing overall spending from its general funds. [18] The Band's Finance Committee agreed with the recommendation when the matter came before it at a meeting held on February 6, 2002. The Complainant raised some concerns at the hearing about this Finance Committee meeting. Chief Bressette was not formally a member of this committee. However, the minutes document his arrival just after the meeting was called to order and the agenda approved. It is noted that Chief Bressette provided the committee with an update on several matters. There is no specific mention of his having left the session prior to the question of his sister's internal transfer coming up for discussion later that evening. The Complainant contends that the Chief remained present and influenced the decision taken by the Committee. He also points out that the Committee may have lacked quorum when the decision regarding the caseworker position was taken. [19] The Finance Committee's recommendation came before a meeting of the Band Council on March 21, 2002. The Band Council approved the transfer, effective the same day, the minutes noting that the position was budgeted for. Chief Bressette was not present at this session as he was away on business. In accordance with the Band's decision, Ms. Bressette assumed the functions of the family caseworker position and Mr. George took over her duties as Band Representative. B. Facts Relating to the Allegation of Retaliation (s. 14.1 of the Act) [20] The Complainant filed his human rights complaint on March 30, 2002. In June of the same year, he was elected as a member of the Band Council. He alleges that since his election, he has been singled out and treated in a differential manner by the Band Council, and Chief Bressette in particular, in retaliation for his having filed the human rights complaint. [21] On July 8, 2002, the Band Council conducted its first meeting following the election. Councillors were required to take an oath of confidentiality according to which they undertook to not disclose any information gained by reason of their official duties. The Complainant declined to take his oath claiming that he wanted to study its terms and consider its implications before doing so. He eventually swore his oath one month later. The Complainant claims that his initial refusal provoked a negative reaction from the Chief during the meeting. In criticizing the Complainant, Chief Bressette berated him for having brought a lawsuit against his sister, Eva Bressette. An argument ensued in public until the Chief decided to call an in camera session, during which he continued accusing the Complainant of bringing lawsuits against the Band. It is important to mention here that at the time, there existed an outstanding complaint filed by the Complainant's spouse against the Band under the Canada Labour Code regarding her employment as a teacher in the Band's school. Beginning in mid-2001, the Complainant had sent numerous letters of complaint to the Band Council regarding her claim, and he had circulated several notices within the community criticizing the Band about this matter. [22] The Complainant takes issue with the criticism he faced for having initially resisted taking the oath of confidentiality. Another Band Council member, Ron George, had still not taken his oath by the time he testified at the hearing into this complaint, in April 2004. Mr. George explained that his frequent business travel resulted in his being absent on the occasions when the Justice of the Peace was available to administer the oath. Nevertheless, it is common ground that Mr. George has never been criticized for having failed to take his oath and he has been allowed to participate in in camera sessions of Council meetings. [23] In September 2002, the Band Council held a post-election orientation workshop during which councillors identified the committees in which they would prefer to participate. The Complainant and two other councillors requested membership on the Finance and Personnel Committee. At the next Band Council meeting, however, the Complainant was removed from the list and only the other two individuals were retained. The Complainant contends that the removal was made in retaliation for his having filed his human rights complaint against the Band. On the other hand, Lorraine George testified that only two councillors could be designated to sit on this committee, according to the committee's terms of reference. The other two nominees were chosen because of their prior experience on the committee. Ms. George maintained that the Complainant's human rights complaint against the Band had no bearing whatsoever on Council's decision. [24] The Complainant alleges that in February 2003, he was unjustifiably denied a copy of the Ron Commons Report", a study commissioned by Council into the activities of the Band's board of education. Council took the position that the Complainant could not view the document because it contained confidential information about the Band's position regarding his spouse's Canada Labour Code claim. The Complainant objected to this stance arguing that as he had by then taken his oath of confidentiality, he could be entrusted with the information contained in the document. The Band Council maintained its position and the document was never communicated to the Complainant. [25] During the Band Council meeting of June 28, 2003, an in camera session was called to discuss the Complainant's human rights complaint. He was asked to step out of the meeting for reasons of conflict of interest, and he willingly complied. However, he objected to the fact that Chief Bressette and several other relatives of Eva Bressette were allowed to remain. The Complainant contends that since his complaint centres around Ms. Bressette's appointment, all of her relatives sitting on the Band Council were in conflict of interest and should have been asked to withdraw from the room, not just he. [26] The Complainant invokes a series of events, which commenced at the Band Council meeting of November 24, 2003, as additional indicia of the retaliatory treatment to which he was being subjected. Shortly after the meeting was called to order, Chief Bressette brought forth an issue regarding the confidentiality of some Council proceedings. He explained that certain information that had come before Council in confidence had somehow been released to persons outside Council. It was clear that Chief Bressette was pointing to the Complainant as being the source of the leak. The Chief then left the meeting room to allow debate on the matter to occur. In the ensuing discussion, the Complainant engaged in what the minutes describe as a belligerent exchange with other Councillors, to the point that the Chairperson advised him that if he did not immediately correct his behaviour, the police would be called to escort him out of the room. Things apparently calmed down thereafter and Chief Bressette returned to the meeting. The minutes record that after some further discussion, all parties agreed (including the Complainant and Chief Bressette) that an independent inquiry, headed possibly by the local Justice of the Peace, be established to look into the charges. [27] Council apparently also decided at this time to arrange for a special meeting in the following days to discuss how the inquiry would be conducted. According to Faye Jackson, who recorded the minutes, and Lorraine George, the Band Administrator, it was understood by all that the Complainant and Chief Bressette would not be invited to this organizational meeting, although no mention of this was entered in the minutes. The Complainant denies ever having agreed to not being present. In any event, Ms. George set November 26th as the date for this second meeting, to which Ms. Jackson called and invited all of the Councillors except the Complainant. The Chief was telephoned and informed of the date of the meeting but he was told that he was not to attend. The Complainant did not receive a similar call and he only learned of the meeting from other sources. He was incensed at not being invited and presented himself at the November 26th meeting nonetheless. The minutes record that he showed up with angry feelings at not having been invited, but that Band Council decided at this point to let him sit in on the meeting. The Band Council later formally apologized to both Chief Bressette and the Complainant for not having properly informed them that the meeting was to take place without their presence. [28] One of the conclusions reached during the November 26th meeting, according to the minutes, was that Council would no longer tolerate listening to the discord between Chief Bressette and the Complainant, and that attempts should be made to resolve the conflict. The Complainant contends that Council mistreated him over the course of these two late-November meetings and that this mistreatment came about at least in part because of his human rights complaint. [29] On November 27th, six Councillors signed a letter addressed to the Complainant informing him of their disapproval of his conduct, noting specifically certain comments made by him about Chief Bressette and another Council member during the November 24th meeting. [30] In early December 2003, the Band Council released an open notice to the community. The communiqué was said to be in answer to a letter and a bulletin that had recently been distributed throughout the community, criticizing Council for its secrecy regarding two pending legal actions against the Band, including one that had been taken by the Complainant's brother, Miles Bressette. The Band Council explained in its reply notice that details about both claims were being kept confidential so as not to prejudice the Band's position. However, the document also stated that Maurice Bressette, who is an elected member of Council and who authored at least one of the referenced letters released to the community, also has a Human Rights Claim against the First Nation. The notice went on to say that this fact, together with the Complainant's ongoing interest in obtaining more details about the other legal claims against the Band, were hampering the Council's ability to conduct business in an open, transparent manner. The Complainant claims that this charge was made in retaliation to his human rights complaint. [31] The Complainant alleges other incidents of differential and retaliatory treatment on account of his human rights complaint. At the same November 24th Band Council meeting referred to above, a motion was passed designating him and Peter B. Cloud as delegates to the Southern First Nations Secretariat's Annual General Assembly to be held a few days later in London, Ontario. Yet, in a follow-up letter sent to the Secretariat by the Band Council's Executive Assistant, Faye Jackson, the Complainant is not identified as a representative to the General Assembly, his name having been replaced by that of another councillor. Ms. Jackson testified that while she had no specific recollection of how this change came about, ordinarily Council resolutions could only be modified in either of two ways: by a subsequent resolution, which had not occurred in the present instance, or as a result of a specific direction from the Chief. [32] On March 11, 2004, the Band Council convened a special Task Force meeting to deal with certain comments made to the media by a councillor regarding an important community issue. It appears that all but two members of Council were invited to this meeting - Ron George and the Complainant. Ms. Jackson testified that she would have called Mr. George but did not do so because she knew he was away on business. Thus, it was only the Complainant who was not specifically invited. He contends that he was again being singled out due to his having filed a human rights complaint against the Band. For her part, Ms. Jackson explained that the decision not to call the Complainant was hers alone. Chief Bressette had simply instructed her to notify all senior Council members about this meeting. Since the Complainant was in his initial term as a councillor, having been first elected in 2002, she did not include him in this list. However, another councillor, Maynard (Sam) D. George, who was also not a sitting member of Council when he was elected in 2002, was invited. Ms. Jackson testified that what distinguished Mr. George from the Complainant was that he had served on Council in a previous term several years prior and as such, she perceived him as being a senior member. II. LEGAL FRAMEWORK [33] It is a discriminatory practice under s. 7 of the Act to refuse to employ an individual on a prohibited ground of discrimination. For the purposes of the Act, a person's family status constitutes a prohibited ground of discrimination (s. 3). It is also a discriminatory practice for a person against whom a complaint has been filed to retaliate or threaten retaliation against the complainant (s. 14.1). [34] The burden of proof is on a complainant to establish a prima facie case of discrimination - in other words, a case at first glance. According to the Supreme Court of Canada, in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28, a prima facie case in this context is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour, in the absence of an answer from the respondent. Once the prima facie case is established, the onus then shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. If a reasonable explanation is given, it is up to the complainant to demonstrate that the explanation is merely a pretext for discrimination (see Basi v. Canadian National Railway Company (No. 1) (1988), 9 C.H.R.R. D/5029 at para. 38474 (C.H.R.T.); Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at paras. 17-23). [35] The Federal Court of Appeal noted, in Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 at para. 7, that discriminatory considerations need not be the sole reason for the actions at issue in order for the complaint to be substantiated. It is sufficient that the discrimination be one of the factors in the employer's decision. [36] In relation to employment, two tests have emerged to assist a tribunal in the determination of whether a prima facie case of discrimination has been established. The first was articulated in the case of Shakes v. Rex Pak Ltd., (1981), 3 C.H.R.R. D/1001 at para. 8918 (Ont. Bd. Inq.). The Ontario Board of Inquiry held that a prima facie case could be established by proving: that the complainant was qualified for the particular employment; that the complainant was not hired; and that someone no better qualified but lacking the distinguishing feature, which is the gravamen of the human rights complaint, subsequently obtained the position. [37] In Israeli v. Canadian Human Rights Commission, ((1983), 4 C.H.R.R. D/1616 at 1618 (C.H.R.T.), aff'd (1984), 5 C.H.R.R. D/2147 (C.H.R.T.- Rev. Trib.)), the Canadian Human Rights Tribunal developed a second test to address situations where the complainant is qualified but is not hired, and the employer then continues to look for a suitable candidate. In such cases, a prima facie case may be established by demonstrating: that the complainant belongs to one of the designated groups under the Act; that the complainant applied and was qualified for a job that the employer wished to fill; that, although qualified, the complainant was rejected; and that, thereafter, the employer continued to seek applicants with the complainant's qualifications. [38] While the Shakes and Israeli tests serve as useful guides, neither test should be automatically applied in a rigid or arbitrary fashion in every hiring case (see Singh v. Canada (Statistics Canada) (1998), 34 C.H.R.R. D/203 at para. 161 (C.H.R.T.), aff'd [2000] F.C.J. No. 417 (F.C.T.D.) (QL); Premakumar v. Air Canada, [2002] C.H.R.D. at para 77 (C.H.R.T.) (QL)). The circumstances of each case should be considered to determine if the application of either of the tests, in whole or in part, is appropriate. III. ANALYSIS A. Section 7 complaint (i) Prima facie case [39] Depending on one's interpretation of the facts in this case, either of the above noted tests might apply. On the one hand, based on the description set out in the complaint, the Shakes test would seem appropriate. The Complainant claims that he was qualified for the position, that he was not hired and that Eva Bressette, the Chief's sister, obtained the position even though she was no better qualified, if not entirely lacking in some of the qualifications required for the job. [40] On the other hand, the evidence is that no one was hired into the position at the close of the competition process. The candidates recommended by the interview panel to Band Council (Deborah Herman and Dorothy French) were not hired because they were not deemed to be fully qualified. The position remained vacant for a time, until the decision was made to hire Eva Bressette, who had not participated in the initial competition. It can thus be said that the employer continued to seek applicants, as contemplated by the Israeli test. [41] I am not persuaded that the Complainant has made out a prima facie case of discrimination under either test. Both approaches require the Complainant to demonstrate that he was qualified for the family caseworker position. The evidence indicates that he was not. [42] The Complainant alleged in his complaint that he met all of the posted requirements of the position. It is true that he apparently satisfied all the necessary criteria to be screened into the interview stage of the assessment process. After interviewing him, however, the interview panel determined that he was not sufficiently qualified to justify referring his candidacy to the Band Council. As events would unfold, even the two candidates whose names were put forward were ultimately deemed unqualified by Council. No evidence was introduced to indicate that the panel's decision was biased or influenced by Chief Bressette, nor that either of the candidates recommended ahead of him were related to the Chief. [43] If one were even to assume that the Complainant was qualified for the job, the decision to not hire him was not made by the Respondent. It was made by the interview panel, a decision that, as I just stated, was not affected or influenced by the Complainant's family status. It cannot be said that someone lacking the distinguishing feature was selected instead of the Complainant, for in fact both of the recommended candidates, Deborah Herman and Dorothy French, possessed the same distinguishing feature as the Complainant - they were not related to Chief Bressette. [44] Even when the Shakes/Israeli tests are not relied upon, I am not persuaded that a prima facie case of discrimination on the basis of the Complainant's family status can be made out. Quite frankly, there is no evidence to support, even at first glance, the contention that the Complainant was discriminated against. The Band Council appointed Eva Bressette months after the interview panel determined that the Complainant's candidacy was simply not strong enough to even forward his name to Band Council for consideration. Indeed, if the decision to appoint Ms. Bressette was in any way influenced by her relationship to the Chief, the appropriate persons to file a complaint would have been Deborah Herman or Dorothy French, for it was their candidacies that were rejected by the Band Council, not the Complainant's. [45] Were I to have concluded that the Complainant had made out a prima facie case, his complaint would still not be substantiated. Transfering Eva Bressette into the then still vacant caseworker position was a sound financial and human resource management decision. The explanation provided was reasonable and no evidence was tendered to bring that into doubt. [46] I do not find the question raised by the Complaint about Ms. Bressette's qualifications (namely, her failure to possess a vehicle and a valid driver's licence at the time of her transfer) to be indicative of a pretextual explanation. The evidence is that existing employees who held valid licences when they were first hired were not asked to show proof that they had maintained their licences thereafter, it was simply assumed. Only new employees were required to show proof thereof. Lorraine George, the Band Administrator, testified that as soon as she learned of Ms. Bressette's lapsed licence, in November 2002, the employee was instructed to rectify the situation forthwith, failing which disciplinary measures would be taken. Ms. Bressette complied with the order immediately and produced evidence of her renewed licence to the employer. As for the question of the vehicle, it appears that on the occasions when Ms. Bressette was required to travel outside the office, she had made arrangements with other employees for transportation. In other words, she was able to fulfill all of her employment duties despite her suspended licence and lack of a personal vehicle. In any event, it appears that she has since acquired a vehicle of her own. Neither of these issues have convinced me that the explanation given for opting to transfer Ms. Bressette into the caseworker position was pretextual. [47] For all these reasons, I find that the s. 7 portion of the complaint is not substantiated. B. Section 14.1 complaint [48] Section 14.1 of the Act makes it a discriminatory practice for a person against whom a human rights complaint has been filed to retaliate or threaten retaliation against the person who filed the complaint. The parties did not refer me to any authorities specifically related to this issue. The matter was, however, dealt with at length by the Canadian Human Rights Tribunal in the case of Wong v. Royal Bank of Canada, [2001] C.H.R.D. No. 11 at paras. 213-229 (QL). The Tribunal stated that s. 14.1 should not be interpreted as requiring a complainant to prove an intention to retaliate, nor should the provision be viewed as different in operation from those sections in the Act that confer rights. The Tribunal noted that this is in keeping with the Supreme Court's statement in Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, that the Act is remedial in nature, not punitive, and that therefore, the motives or intention of those who discriminate are not central to the concerns of the Act. [49] The decision in Wong is consistent with the conclusions of the Ontario Board of Inquiry in Entrop v. Imperial Oil Ltd. (No. 7), (1995) 23 C.H.R.R. D/213, regarding a similarly worded provision prohibiting reprisals under Ontario's Human Rights Code, R.S.O. 1990, c. H-19. The Board held that even if a complainant reasonably perceived the impugned conduct by the respondent to be in retaliation to the human rights complaint, this could also amount to retaliation, quite apart from any proven intention of the respondent. However, as noted in Wong, the reasonableness of the complainant's perception must be measured. Respondents should not be held accountable for any unreasonable anxiety or undue reaction of complainants. [50] In the present case, I have determined that at least some of the incidents raised by the Complainant were retaliatory and prohibited under s. 14.1 of the Act. [51] There is no doubt that there exists a long-standing animosity between the Complainant and his family on the one hand, and the Chief and Council on the other. The Complainant's spouse had filed an employment-related complaint that had put her at odds with Council, which had still not been resolved when the Complainant was elected to Council. The Complainant's brother had also been in litigation with the Band. The Complainant had advocated on their behalf within the community in a vocal and, at least in the eyes of the Chief and some councillors, abrasive manner. Politically, the Complainant stood unquestionably in opposition to the Chief and other members of Council. [52] In this context, it can be difficult to discern whether certain incidents regarding the Complainant arose simply as a result of this ongoing conflict, or whether they were linked to his human rights complaint. Even so, I am prepared to accept that a prima facie case of retaliation was established in relation to each occasion on which the Complainant was treated differently than the other councillors. Without any explanation, it would be reasonable to perceive the human rights complaint as at least one of the factors in the differential treatment. [53] The Respondent provided several explanations, most of which were rooted in the acrimony and political disagreements that prevailed between the Complainant and the Chief. For instance, the Band contends that the issues raised relating to the meetings of November 24 and 26, 2003, in Council chambers, were of the Complainant's own doing, namely, the release by him of confidential information and his belligerent attitude during the meeting. This explanation is consistent with the evidence of several witnesses who were present, some of whom later wrote him a letter expressing their disapproval of his conduct. In fact, even members of the Band Council's staff found it necessary, on December 3, 2003, to file a report about the Complainant's aggressive behaviour, alleging in particular that he had been very confrontational when attending the Band's offices. [54] In all of the circumstances, I do not believe that the Complainant's human rights complaint was a factor in his not being invited to the November 26th follow-up meeting. It is significant that the Chief was not invited either. I am convinced that there was some misunderstanding regarding who was to be present at the second meeting, a misunderstanding for which the Band Council ultimately apologized to both the Complainant and Chief Bressette. [55] I am equally not persuaded that retaliation was a factor in denying the Complainant access to the Ron Commons Report. Whether or not he had taken his oath of confidentiality, I find it perfectly reasonable for Council to have felt it inappropriate for him to be made aware of Band strategy regarding its pending litigation against his own spouse. Similarly, I find the Respondent's explanation for not excluding the Chief from the June 28, 2003, in camera meeting that dealt with the Complainant's human rights complaint, to be reasonable. The complaint named the Band Council as Respondent, not the Chief. Although he was identified at the source of the alleged discrimination, it seems logical and fair for the Respondent to be able to consult with him about the allegations. After all, the Band Council was not acting as a neutral arbitrator in the matter, it was a named respondent to the complaint and it had no duty to deal at arm's length with both the Complainant and the Chief. I see no reason to consider any of these explanations as mere pretexts for otherwise discriminatory conduct. [56] I also accept as reasonable and not pretextual the explanation given regarding the allegedly disparate treatment afforded to Ron George and the Complainant, regarding the oath of confidentiality. There is a clear and justifiable distinction to be drawn between the two councillors. The Complainant initially refused to take the oath outright, whereas Mr. George was simply unavailable to take the oath. The respective situations are therefore quite different. [57] I also see no reason to dismiss Lorraine George's explanation regarding the composition of the Finance and Personnel Committee. It was perfectly reasonable for Council to appoint councillors who were more experienced than the Complainant to sit on one of its most important committees. [58] This all having been said, there were other alleged incidents of retaliation where I am not convinced of the reasonableness of the explanations advanced by the Respondent. At the first Council meeting of the new session, held on July 8, 2002, Chief Bressette's concern regarding the Complainant's failure to swear an oath of confidentiality may have been well founded. But, rather than deal exclusively with this problem, he reacted by also singling out the Complainant for having filed a human rights complaint against the Band. No evidence was adduced to contradict the Complainant's version of events at this first meeting. The notice that the Band Council circulated in December 2003 raises a similar issue. Council was clearly upset with the letter and bulletin that had just been distributed throughout the community, criticizing its activities. I am satisfied on the evidence that the Complainant was likely involved in the preparation and distribution of at least one of these documents. A reply by Band Council was certainly justified, but Council chose to go beyond merely setting out its position on the questions raised. It asserted that the reason why Council was no longer able to function in an open manner was in part because the Complainant had filed a human rights complaint - in effect, putting the blame on his shoulders, merely because he had exercised his right to file a complaint under the Act. [59] It is reasonable to perceive such differential treatment as being in retaliation for having filed a human rights complaint. Complainants who find themselves singled out in this manner may develop an unwillingness to proceed with their complaints. This is precisely the mischief that s. 14.1 seeks to cure or prevent. It is important for complainants to remain confident that they can exercise and enforce their human rights without fear of suffering any prejudicial consequences thereafter. [60] At roughly the same time that Council was publishing these remarks about the Complainant, his designation as a delegate to the Southern First Nations Secretariat's Annual General Assembly was mysteriously revoked. The Respondent provided no explanation, but the clear implication from Ms. Jackson's testimony was that this reversal could only have come about through some intervention by the Chief. When the Task Force meeting was convened about four months later, in March 2004, the Complainant was the only councillor not invited. The explanation given was that the meeting was organized for senior Council members only, and it was Ms. Jackson who determined which members met this criterion. I do not doubt that she followed these instructions dutifully and in good faith. Indeed, her assessment that the Complainant was effectively the only non-senior member appears sound. It is precisely because of this fact that one may wonder whether the instructions provided to her were intended to have the effect of excluding the Complainant. In any event, whether or not such intent actually existed, a reasonable person would perceive this exclusion as well as the decision to revoke his delegate status as forms of reprisal against him. The reprisals may be linked to the many conflicts that existed between the Complainant and the Chief and Council, but one of those disagreements related to the filing of his human rights complaint. In light of the other comments made by the Chief and Band Council with regard to the complaint, it would be reasonable to perceive that the pending human rights claim was at least one of the factors in these particular acts of retaliation. [61] In sum, I am satisfied that the Complainant's perceptions of retaliation were reasonable, as they relate to the particular incidents referenced above. Considering the acrimonious relations that prevailed between the Complainant and Chief Bressette on a whole range of issues unrelated to the complaint, I am not persuaded that the Respondent intended to retaliate against the Complainant because of the human rights complaint. After all, the Complainant had filed a complaint against a public institution that is accountable to its constituents, the members of the Kettle and Stony Point First Nation Band Council. It is understandable for Chief and Council to openly discuss any legal actions pending against the Band. But the manner with which the Chief and Council raised the issue in some instances created a reasonable perception of retaliation. The Complainant's claim under s.14.1 of the Act has therefore been substantiated. IV. REMEDY A. Compensation for pain and suffering (s. 53(2) e)) [62] The Complainant seeks compensation for the pain and suffering he experienced as a result of the discriminatory practice (s. 53(2) e)). The Complainant testified about the stress he has endured since the competition for the caseworker position. The Complainant associates most of this stress with the lost employment opportunity and the ensuing loss of a good steady income. This put a financial strain on him and his family. However, I have already determined that discrimination was not a factor in his failure to secure the caseworker's position. Consequently, no compensation is to be awarded for any pain and suffering regarding this stress. [63] Most of the pain and suffering that the Complainant attributes to acts of retaliation is in fact related to incidents that I have concluded are not associated with any form of retaliation, such as the disruptions that occurred during the November 24th Council Meeting. [64] In my view, the few specific incidents that I have determined to be retaliatory have had but a modest effect on the Complainant. In these circumstances, an award to the Complainant of $2,000.00 for pain and suffering is justified (s. 53(2) e)). B. Special Compensation (s. 53(3)) [65] Section 53(3) of the Act provides that the Tribunal can award special compensation to the victim where a respondent has engaged in the discriminatory practice wilfully or recklessly. I have not found evidence to support the claim that the Respondent intended to retaliate against the Complainant for filing his complaint. I have merely concluded that it was reasonable for the Complainant to perceive certain aspects of the Respondent's conduct as retaliatory. It has not been established therefore that the Respondent wilfully discriminated against the Complainant. [66] Did the Respondent act recklessly? That is, did the Chief and Council know of the risk that their conduct would be perceived as retaliatory, and yet choose to proceed nonetheless? In my view, the evidence does not support this proposition. The Respondent's decision to deal with the Complainant's active political opposition by openly referring to his human rights complaint and by resorting to treating him differently from other councillors may have been ill-advised, but not reckless as contemplated in s. 53(3). [67] The Complainant's claim for special compensation under s. 53(3) of the Act is therefore denied. C. Expenses [68] The Complainant seeks compensation for the following expenses incurred as a result of the discriminatory practice (s. 53(2) c)): a) Witness fees: Many of the witnesses summoned by the Complainant to testify at the hearing were Band employees or councillors, or were otherwise closely associated with Band Council. At the request of Respondent Counsel, I issued an order obliging the Complainant to pay conduct fees at a specified rate to any witness who so requested. Since only the s. 14.1 portion of his complaint has been substantiated, I order the Respondent to reimburse the Complainant any fees paid to the following witnesses, whose evidence had some bearing on the issue of retaliation: Faye Jackson Chief Tom Bressette Ron George David Henry Robert Bressette Peter Cloud Lorraine George b) Photocopying and other stationery costs: Under the Tribunal's Rules of Procedure, parties are required to disclose material facts and documents to one another in advance of the hearing, and to produce in multiple copies all exhibits entered into evidence. The Complainant testified that he had to rely on the services of an office supplies retailer located in Sarnia to prepare this documentation, at a total cost of $300. He also alleges that his numerous visits to the retailer cost him about $300 in travelling costs. Unfortunately, the Complainant was unable to produce receipts in support of this claim but the extensive use of photocopying services is apparent from the record and it is common ground that his residence, situated on the Band's reserve, is about 50 km from Sarnia. I therefore accept the Complainant's evidence that his total expenses in this regard were about $600. However, considering that only the s. 14.1 aspect of his complaint has been substantiated, I order the Respondent to pay the Complainant one half of these expenses, ie. $300. c) Time spent: The Complainant is claiming $8,000 in compensation for the time he put into the endeavour of preparing his case. A similar claim was dealt with by the Federal Court - Trial Division in Attorney General of Canada v. Lambie (1996), 29 C.H.R.R. D/483. The complainant in that case was seeking a sum for leave and time spent to develop and prepare his complaint. The Court rejected the claim, noting that the word expense is not broad enough to cover such claims and that in any event, these expenses are to be compensated only in exceptional circumstances. There were no exceptional circumstances present here, particularly in connection with the case of retaliation, which was the only portion of the complaint to be substantiated. The claim is therefore dismissed. D. Interest [69] Simple interest shall be paid on all monetary awards made in this decision. The interest shall be calculated on a yearly basis at a rate equivalent to the Bank Rate (Monthly Series) set by the Bank of Canada, and shall be payable from the date when the complaint was amended to add the allegation of retaliation, January 15, 2004. Signed by Athanasios D. Hadjis OTTAWA, Ontario December 24, 2004 PARTIES OF RECORD TRIBUNAL FILE: T827/7703 STYLE OF CAUSE: Maurice Bressette v. Kettle and Stony Point First Nation Band Council DATE AND PLACE OF HEARING: April 19 to 22, 2004 April 28 and 29, 2004 June 14, 2004 Sarnia, Ontario DECISION OF THE TRIBUNAL DATED: December 24, 2004 APPEARANCES: Maurice Bressette On his own behalf Jonathon George For the Respondent

2004 CHRT 5

CHRT

Brown v. Canada (Royal Canadian Mounted Police)

en

2004-02-04

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6524/index.do

2023-12-01

Brown v. Canada (Royal Canadian Mounted Police) Collection Canadian Human Rights Tribunal Date 2004-02-04 Neutral citation 2004 CHRT 5 File number(s) T769/1903 Decision-maker(s) Groake, Paul Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne jacqueline brown Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - royal canadian mounted police Respondent REASON FOR DECISION MEMBER: Dr. Paul Groarke 2004 CHRT 5 04/02/04 I. INTRODUCTION II. FACTS A. The promotional process B. The Offering in March 2000 C. Cpl. Brown's Application D. The First Round of Promotions E. Intervening Events F. Staff Sgt. Wills G. The Second Round of Promotions H. Sick Leave III. LAW IV. ANALYSIS V. CONCLUSIONS A. Section 10 B. Section 7 C. Remedy (i) Apology (ii) Cost Transfer (iii) Compensation (iv) Costs I. INTRODUCTION [1] The Complainant is a member of the Royal Canadian Mounted Police. On March 14, 2001 she filed a complaint with the Human Rights Commission alleging that the force had discriminated against her under section 7 of the Canadian Human Rights Act on the basis of sex and family status, by treating me differently with respect to the terms and conditions of my employment. The allegation arose out of the Complainant's application for a promotion. The complaint was later amended to include an allegation under section 10. [2] A hearing was held in Vancouver in August and September 2003. The Commission did not participate in the hearing, other than to provide a general sketch of the existing law. It will be apparent that I have consulted its statement of key principles, along with the written submissions for the Complainant and Respondent, in preparing the following reasons. II. FACTS [3] Corporal Brown is a member of the RCMP. She is married to Corporal Colin Brown, another member of the force. She submits that she was passed over in favor of other candidates because of her sex and marital status. The Respondent does not dispute the fundamental allegation and merely argues that it was reasonable to consider her marital status in the promotional process. It states that sex was not a consideration. A. The promotional process [4] It may be helpful to review the promotional process in the RCMP before dealing with the specific facts of the present case. Staff Sergeant Mitchell, the special advisor to the Career Management Unit advised the Tribunal that the RCMP has used three different systems of promotion. The original system of promotions was based on a review of personnel files. An officer seeking a promotion would apply to a promotion board, which dealt with applications on an individual basis. [5] This system was replaced with the cycle system, which was based on the publication of lists of available postings. These lists were sent to interested members, who would apply for a promotion by submitting a list of their preferred postings. The third system, predictably, was a synthesis of the two previous systems. [6] Staff Sergeant Wills was the Staff Relations Representative. This was an elected full time position. He testified that members who criticized the first system would have called it an old boys network. By the mid-eighties, there were complaints that the system was unfair. It was generally agreed that the process should shift its focus from managerial supervision to core competencies. The idea was to rid the system of any biases. [7] The cycle system was implemented in 1994. The word cycle refers to a distinct process of promotional offers that takes place every two years. There were 4 cycles. There were problems however, maintaining the schedule set by the cycle system. The third cycle should have ended on March 31, 2000 and was well behind. Apparently there was a computer problem. Cycle 4 had already started and was also behind schedule. It was a frantic time. [8] There were additional concerns. The promotional cycles that were held in the spring of 2000 were the last cycles before the implementation of a new promotions system. This was a pressing concern because the rules for the new system had not been established and the next round of promotions would not be completed for some time. The Career Management Unit was looking at a void. [9] It follows that there was a lot of pressure on Staffing and Personnel. Inspector Donovan testified that the Career Management Unit was over budget and had to obtain permission to go with the last lists. Transfers presented an additional problem. Each move cost the RCMP an average of 36 thousand dollars and there wasn't enough money to pay for all the moves. Staff Sgt. Mitchell's instructions were to go ahead with the promotions, but in a financially responsible manner. [10] There were other pressures. The promotional process in the RCMP is handled on a divisional basis. The British Columbia Command is known as E Division. The Division was seriously understaffed and was trying to keep as many members working as possible at the time. There was also a problem recruiting members for promotions in the lower mainland. This was apparently a reflection of the cost of living in the area. B. The Offering in March 2000 [11] The promotional offering for E Division in March 2000 was sent to 200 officers. There were approximately 60 corporal's positions. The members applying for a position were placed on a promotion list. This list ranked the candidates on the basis of a combine score calculated on the basis of the candidate's performance report, a test, and the candidate's seniority. There was a second round of promotions because a number of corporals were promoted to sergeant, leaving vacancies at the corporal's rank. The candidates were advised that a member who refused a posting that she had requested would be struck from the promotion's list. [12] The Career Management Unit in E Division was run by Superintendent Schlecker. There were two inspectors under him. One of them was Inspector Donovan, who was in charge of the promotional process. Staff Sgt. Mitchell reported to Insp. Donovan and had immediate custody of the process. It was Staff Sgt. Mitchell's responsibility to vet the lists and make recommendations to his superiors. These recommendations were reviewed by Insp. Donovan and approved by Supt. Schlecker. The Superintendent had the final say in the matter. [13] Staff Sgt. Mitchell testified that he started with the most highly ranked candidate, placed that candidate and moved down the list. Some positions required specific qualifications. Once a candidate met the qualifications however, that there was no reason not to appoint them. After the list of promotions had been approved by his superiors, he would contact each member's supervisor, to see if there was any reason not to give her the selected posting. C. Cpl. Brown's Application [14] The Complainant had written the Corporal's exam in 1997. She scored in the top 10 percent but did not apply for a promotion. She had other matters to deal with and in 1999, her father became terminally ill. She requested a compassionate transfer to Saskatchewan, so that she could be close to her father. Although she was placed on a humanitarian list, she was denied the transfer. [15] Corporal Brown's Career Management Officer was Sergeant Kimoto. He had been in Staffing and Personnel since 1993. He advised Cpl. Brown to participate in the promotional cycle for 2000, since it was probably the last. Cpl. Brown accordingly applied for a number of postings within driving range of Calgary, where her father was occasionally hospitalized. Although this has little bearing on the legalities of the situation, it explains a good deal of her response to subsequent events. [16] Cpl. Brown was ranked 47 on the list of candidates and applied for 37 postions, in order of preference. Her first five preferences were Columbia Valley, Whistler, Gibson's Landing, Prince George, and a detective's position in Coquitlam. She wanted the position in the Columbia Valley because it was 4 hours from Calgary. She listed a general duty posting in Coquitlam as her 17th choice. I am inclined to think that the senior managers in Staffing and Personnel felt that she was ranked too highly, since that would go a long ways in explaining what followed. [17] There is no doubt that Cpl. Brown made a mistake in applying for too many positions, some of which were of little interest to her. I think this showed a lack of confidence that inevitably became a factor in the decisions made by the Career Management Unit. There is some truth to the suggestion that she did not seem to know what she wanted. Sgt. Kimoto thought she was wide open for positions in the lower mainland. [18] Cpl. Brown and her husband, Colin Brown, were nevertheless concerned that management would simply leave her in Coquitlam, if she included it in her preferences. They accordingly spoke to Sgt. Chris Deevy, officer in the Career Management Unit, who assured them that there wouldn't be any leap-frogging. Colin Brown checked this with Staff Sgt. Mitchell and felt confident that a lower ranking officer would not be given a position ahead of his wife. [19] Sgt. Deevy testified that Cpl. Brown phoned him on May 3, 2000 and asked him a question of the following nature: If I'm the first qualified candidate for a position, would I receive that position? He simply said yes. This became a pivotal event in what followed. The reality is that Cpl. Brown relied far too heavily on the advice of Sgt. Deevy and Constable Lou, another Staffing officer, who simply encouraged Cpl. Brown to put down as many postions as possible. It is notable that Sgt. Deevy would not provide the same advice today. [20] Much of the evidence at the hearing focused on the ranking of candidates. Staff Sgt. Kimoto believed that the person who was ranked higher would normally be given the posting, as long as that person met the required qualifications. He nevertheless acknowledged that the Career Management Unit had discretion under 134(4)(d)(1) of the Career Manual to award a posting to another applicant. He stated that this section had been invoked from time to time, prior to the Brown case. D. The First Round of Promotions [21] Insp. Donovan and Staff Sgt. Mitchell described the first round of promotions. Staff Sgt. Mitchell provided Insp. Donovan with a list of the candidates, in the order they were ranked matching each candidate with the promotion that he was proposing. They went through the list together. When they got to Corporal Brown, who was 47th on the list, they worked through her choices, one by one. Although the Complainant was the highest-ranking candidate for at least five of her earlier preferences, Staff Sgt. Mitchell recommended that she be given a general duty posting in Coquitlam, her 17th choice. Insp. Donovan had no difficulty with the recommendation, which was later confirmed by Supt. Schlecker. [22] Columbia Valley was the Complainant's second choice. Staff Sgt. Mitchell and Insp. Donovan both gave evidence that the posting was given to someone else because it was not possible to find a position for her husband. There was an issue of cost transfers. When a transfer of over 40 kilometers is made, it triggers the relocation process, which costs something in the range of 28 to 40 thousand dollars. The problem with moving someone with a spouse is that management would have to move them a second time, if no posting for the spouse became available. It was the second cost transfer that concerned the Management Unit. [23] The Management Unit was concerned that they would not be able to find a position for Cpl. Brown's husband, if his wife was transferred to a small detachment. This was a general staffing problem in small detachments, where the rules apparently prevent the force from posting family members together. At the back of this reasoning, there was the fact that it was far more convenient to leave both of the Browns in the lower mainland. [24] The requests for a posting in Columbia, Gibson's Landing, Whistler and Prince George were rejected for much the same reasons. There was no specific strategy to limit the cost transfers. It was simply done on a case-by-case basis. If it was possible to keep someone where they were, they would keep them there. The evidence was that the Management Unit was working within dire financial constraints at the time. They were under orders to keep costs to a minimum. [25] Staff Sgt. Mitchell candidly acknowledged that Cpl. Brown had listed too many choices. If she would have only listed the Columbia Valley posting, he testified that she would have been awarded that position. This is because the Career Management Unit would have had no choice in the matter. She was entitled to a promotion. It was only because she had listed her other preferences that she was awarded another posting. [26] On March 14, Staff Sgt. Mitchell sent an email to the Complainant advising her of the recommendation that she be promoted on site to Coquitlam. This would leave her husband where he was. Cpl. Brown was surprised, since she felt that she was entitled to a posting if she was the highest ranking candidate who had applied for it. E. Intervening Events [27] Cpl. Brown and her husband met with Staff Sgt. Mitchell the following day. He confirmed that she had been ranked number one for the Invermere posting. He also informed them that they were concerned about finding another posting for her husband. They then spoke to Supt. Schlecker. They wanted to resolve the matter before the official list went out and it was too late to change things. [28] Supt. Schlecker gave them a number of reasons for the decision to leave Cpl. Brown in Coquitlam. One was cost. Another was their spousal situation. He stated that it was prudent to leave them in Coquitlam. Cpl. Brown's husband responded by requesting leave without pay. Supt. Schlecker was unwilling to consider it. The meeting lasted for about an hour. Supt. Schlecker agreed to discuss the matter with his staff but was firmly of the view that Coquitlam was a good place to work. [29] After the meeting with Cpl. Brown and her husband Supt. Schlecker met with Staff Sgt. Mitchell and Insp. Donovan. Sgt. Kimoto may have been present. Supt. Schlecker told them that Cpl. Brown and her husband were unhappy. They discussed the matter and decided that it wasn't feasible to change the decision. The most fundamental issue was the Complainant's husband. There were no other corporal's positions in the area and it didn't make sense to give her the Columbia Valley posting, since that only meant that they would have to relocate her husband at a later date. This would require another cost transfer. [30] I do not believe that gender entered into the discussion. There was a discussion about giving the Complainant's husband leave without pay. The problem was that this would merely delay the problem of finding a position for her husband and present transfer costs at a later date. I feel obliged to add that this kind of ad hoc solution to the problem, which circumvents the formal staffing process, would have been inappropriate. [31] I think it is clear from the circumstances that there was another consideration that entered into the matter. The consensus was that the decision had already been made and there was no going back. It would have had an impact on too many other decisions. There was an email waiting for the Browns when they returned to Coquitlam, saying that the Complainant would be posted on site. Cpl. Brown and her husband were angry and disappointed. They felt that the process had betrayed them. F. Staff Sgt. Wills [32] The exact chronology of events is not completely clear to me. Cpl. Brown and her husband also discussed the matter with Staff Sgt. Wills, their Staff Representative. Staff Sgt. Wills told them that there were positions for the Complainant's husband sufficiently close to Whistler, Gibson's and Prince George to give her any of these posting. He testified that there were five Corporal's postings within a one hour drive from Invermere. [33] Staff Sgt. Wills knew Sgt. Kallin, the Commander in charge of the Columbia Valley detachment. He accordingly phoned Sgt. Kallin to find out what the responsibilities would be. Sgt. Kallin said that he didn't want any more females. Staff Sgt. Wills said: Ed, you can't talk like that. Sgt. Kallin said that he didn't care. He had already had two maternity leaves, which left him under-staffed, and he didn't want any more. He didn't want to work any more nights. The problem was that there was no mechanism in place at the time to replace a member on maternity leave. This left many detachments understaffed. [34] Staff Sgt. Wills recounted the conversation with Sgt. Kallin to Cpl. Brown, who naturally came to the conclusion that this explained what had happened. As I understand it, this conversation was also relayed to Staff Sgt. Mitchell, who mentioned it to his superiors. The evidence is nonetheless clear that the Management Unit had no contact with anyone at Columbia Valley and I do not accept that Sgt. Kallin's views entered into the matter. Sgt. Kimoto testified that the receiving detachment commander has very little say in determining who would be promoted into a detachment. [35] Staff Sgt. Wills met with Staff Sgt. Mitchell to discuss the situation. The two men went through Cpl. Brown's preferences one by one. Staff Sgt. Wills stated that Columbia Valley was available. Staff Sgt. Mitchell replied that there were issues because of her husband. There was only one Corporal's position. Staff Sgt. Wills told Staff Sgt. Mitchell that he didn't think Cpl. Brown was welcome in Columbia Valley. This was a reference to Sgt. Kallin's comments. [36] There was a discussion of the detective's position in Coquitlam. That posting was available, Staff Sgt. Wills said, and Cpl. Brown was qualified for the position. Why couldn't she have that? Staff Sgt. Mitchell said that she wasn't GI material. Staff Sgt. Wills demurred stating that she had experience in the investigation of serious offences of the person. Her performance evaluations were satisfactory. There was a similar discussion of the other postings. [37] They discussed cost transfers. Staff Sgt. Wills pointed out that the person who got the Ridge Meadows position was a cost transfer. The person who got Coquitlam GIS was a cost transfer. This was also true of Columbia Valley. Staff Sgt. Wills accepted that there was a spousal issue with respect to Columbia Valley. But this was not properly explored, in his view, and could have been dealt with in a number of ways. One of the possibilities was to give the Complainant's husband leave. [38] It was a wide-ranging discussion. The two men disagreed about whether it was difficult to accommodate Cpl. Brown's husband in Whistler. Staff Sgt. Wills felt that she could have been given one of the Prince George postings. It was a huge detachment. There would have been something like 15 Corporals in the detachment, plus the Corporals in the district headquarters. So why couldn't her husband have been accommodated there? [39] Staff Sgt. Wills was unhappy with the answers he was getting. By his count, Cpl. Brown was passed over 7 times. The two men discussed her qualifications. Staff Sgt. Mitchell agreed that she was a hard-working, competent young officer. So Staff Sgt. Wills wanted to know why they weren't willing to accommodate her? Staff Sgt. Mitchell said something like: She is all over the map. She hasn't got a clue what she's doing. Staff Sgt. Wills stated that he was taking the matter over Staff Sgt. Mitchell's head. [40] Staff Sgt. Wills met with Supt. Schlecker about a week later. He wanted a rationale for what happened, something that makes sense of it all. Supt. Schlecker simply kept saying that he had to make the hard choices. When pressed, he relied on section 134(4)(d)(1) of the Career Management Manual. Staff Sgt. Wills testified that he has not seen another case where this section was relied upon. G. The Second Round of Promotions [41] Nothing came of the efforts made by Staff Sgt. Wills. Cpl. Brown refused to accept the Coquitlam GD position and withdrew her name from the promotional process. Management took the position that she was refusing a promotion. They then relented and allowed her to participate in the second round of promotions, which was needed to fill the vacancies created by any Corporals who had been promoted to Sergeant. This can be taken as some recognition by the Career Management Unit that the original process had gone awry. [42] I do not feel that this round of promotions has much bearing on the case before me. Cpl. Brown feels that she should have been given a posting in drugs. Her previous career was in traffic, community policing and community development however. Constable Lou was familiar with her personnel file and had no recollection of anything that would indicate she had the necessary investigative experience for GIS or drugs. Sgt. Kimoto could not recall her having major investigative experience and did not feel that her experience in the area of drug offences was significant. [43] The decision that Cpl. Brown did not have the qualifications for a drug posting is reasonable and is certainly sufficient to withstand scrutiny. I see nothing unfair in the manner that the competition was conducted and I suspect that the allegations that arose in this context reflect the continuing deterioration in the relations between the parties. The real problem in my view is that there were not enough vacancies to provide Cpl. Brown with a satisfactory posting. H. Sick Leave [44] At the end of the second round of promotions, Cpl. Brown was offered a Corporal's position in the Burnaby detachment. She was formally promoted on the day she arrived at the detachment and signed her A22A transfer report. This was on April 12th, 2001. The following day, she reported sick. The Respondent suggested that this was deliberate. If she had taken sick leave on April 6 rather than April 13, she would have received a Constable's salary. [45] I would prefer to think that Cpl. Brown had come into the new position with mixed feelings and discovered that she could not face her responsibilities. On the stand, Cpl. Brown testified that she went to her doctor, Susan Buchan, and told her that she couldn't go back to work unless things changed. She was experiencing migraines and having dizzy spells. She was also concerned about her father. Dr. Bowman, the regional psychologist from the force, subsequently contacted her. He referred Cpl. Brown to Dr. Hannah, another psychologist. Dr. Hannah thought it was a good idea that she visit her father. So she spent the summer in Saskatchewan on sick leave. [46] I do not propose to go into the medical evidence at any length, which is sufficient to establish that Cpl. Brown was in considerable distress. Corporal Brown had a lengthy history of migraines and some previous psychological problems. Some of her depression had to do with her father's illness. I nevertheless believe that Cpl. Brown's feelings with respect to her employment were very simple. She found herself unable to return to work without an acknowledgement from the force that she had been treated unfairly. [47] On the stand, Cpl. Brown took the position that she made a mistake in seeing a psychologist appointed by the force. Her husband appeared to agree. I am not that sympathetic with them on this point. There is evidence on the other side that she was avoiding treatment. She stated that she refused to take the medication that had been prescribed because she was worried about side effects. That maybe so, but I think it is clear that Cpl. Brown was stalling. She had grieved the original promotion and was hoping for a decision in her favor before she returned to work. This came to naught when the grievance was denied. [48] Insp. Donovan eventually contacted Cpl. Brown, in an effort to resolve the situation. He testified that it is important to get people back to work as soon as possible. There was at least some evidence of rumors and innuendo among the other members of the force. I accept his view that the real solution to these kinds of social issues is to get the member back in a healthy work environment. I accept that Insp. Donovan made real efforts to place Cpl. Brown and her husband in a posting that met their satisfaction. He obtained the authority, for example, to offer them two corporal's positions with the photo radar program in Kamloops before these postings were offered to the rest of the force. Cpl. Brown and her husband declined this posting because they did not believe the photo radar program would survive the next election. [49] Insp. Donovan also offered Cpl. Brown a posting in Castlegar. She and her husband were prepared to take this posting, on the understanding that the Complainant's husband would take leave without pay until such time as a posting became available. This appeared to be the answer, until Cpl. Brown realized that she was required to sign off on her grievance. This was too much for her and the offer fell apart. [50] Cpl. Brown felt that there was something sinister in the fact that she was required to forgo her grievance. I do not share her feelings. There was nothing improper in the RCMP trying to settle the matter on this basis. This does not affect the situation. Cpl. Brown wanted an open admission that she had been discriminated against and she was entitled to insist on it. Although one has to wonder whether Cpl. Brown made the right decision, she was entitled to reject the agreement on the basis that it did not include such an admission. [51] Cpl. Brown's refusal to sign the agreement brought the negotiations with Insp. Donovan to a close. There is no doubt that the Inspector was upset and felt she was being unreasonable. But that was the end of it. Insp. Donovan advised her that she would be receiving an order to return to work. Dr. Buchan had reached the opinion that Cpl. Brown was fit for work but did not want to return until her dispute with the force had been resolved. I think there is a certain moral truth in this. It is evident that there was considerable obstinacy on both sides. [52] When the negotiations with the Insp. Donovan collapsed, the dialogue between Cpl. Brown and her employer collapsed with it. I think it is fair to say that by this point, the Complainant's lack of trust in her employer had progressed to the point where she was suspicious of any efforts to resolve the situation. When Dr. Hannah advised her that she was fit for a desk job, she felt that Dr. Hannah had been pressured. I see no reason to question the good faith of any of the medical or psychological practitioners. [53] In a last effort to resolve the matter, Colin Brown contacted Sgt. Haggymasy, an assistant to the commanding officer in human resources. The three of them had a meeting, in which the Complainant made it clear that she wanted to continue with her human rights complaint. They then discussed her qualifications. Sgt. Haggymasy discovered that Cpl. Brown had a business diploma and suggested a position at the Integrated Proceeds of Crime Unit. This was a coveted posting. Cpl. Brown was eventually awarded the position and has been complimented for her service there. Sgt. Haggymasy was also good enough to find a position for her husband. III. LAW [54] There are four points that might be made in discussing the legal issues in the case. The first point is merely that there is no obligation on the complainant to prove a specific intent to discriminate. This is trite law, which was established in O'Malley v. Simpson Sears Ltd., [1985] 2 S.C.R. 536. [55] The second point relates to the allegation that Corporal Brown was discriminated against on the basis of family status under s.7 of the Canadian Human Rights Act. The Commission has provided me with B. v. Ontario (Human Rights Comm.) (2002), 44 C.H.R.R. D/1 (SCC), where Justices Iacobucci and Bastarache held that family status and marital status are not restricted to the mere fact that one is married or enjoys some other family attribute. These terms include the particular status that one enjoys by virtue of being married to specific individual. [56] The third point is also uncontroversial. The Commission has cited Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 (FCA), at D/15, for the proposition that discrimination need not be the sole factor in the Respondent's treatment of the Complainant. This is important, if only because it simplifies the present case. If the Complainant's family status was one of the factors in the decision to deny her a specific promotion, that is sufficient to establish discrimination for the purposes of the Act. [57] This takes me to the more fundamental legal issue in the case which relates to the complainant's obligation to establish a prima facie case of discrimination. In Basi v. Canadian National Railway Co. (1988), 9 C.H.R.R. D/5029, for example, this Tribunal held: The burden, and order, of proof in discrimination cases involving refusal of employment appears clear and constant through all Canadian jurisdictions: a complainant must first establish a prima facie case of discrimination; once that is done, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. Thereafter, assuming the employer has provided an explanation, the complainant has the eventual burden of showing that the explanation provided was merely a pretext and that the true motivation behind the employer's actions was in fact discriminatory. This analysis provides a pragmatic means of determining whether discrimination occurred in a particular situation. It should not be applied in a rigid or mechanical manner. [58] The decision of an Ontario Board of Inquiry in Shakes v. Rex Pak Ltd. (1982), 3 C.H.R.R. D/1001, at D/1002, sets out a standard precis of what usually required to establish a prima facie case. In an employment complaint, the Commission usually establishes a prima facie case by proving: that the complainant was qualified for the particular employment; that the complainant was not hired; and, that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position. If these elements are proved, there is an evidentiary onus on the Respondent to provide an explanation ... for what occurred. The point of cases like Shakes is that there is no need to prove anything more than the fact that someone no better qualified than the Complainant was hired or promoted. [59] The situation is simpler where someone less qualified was hired. The usual rationale for the prima facie test does not seem of much assistance in this context. In Basi, for example, at paragraph 38481, the Tribunal held that: ...the complainant would have a herculean task were it necessary for him to prove, by direct evidence, that discrimination was the motivating factor. Discrimination is not a practice which one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practiced. This overlooks the fact that there is no obligation on a Complainant to establish that discrimination was a conscious factor in the decision to hire someone else. Although the animus of an alleged discriminator may be significant in certain aspects of the process, there is no need to prove a mental state in substantiating a complaint of discrimination. [60] The older case law speaks of indirect or adverse effect discrimination. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at p. 173, for example, the court asked: What does discrimination mean? The question has arisen most commonly in a consideration of the Human Rights Acts and the general concept of discrimination under those enactments has been fairly well settled. There is little difficulty, drawing upon the cases in this Court, in isolating an acceptable definition. In Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at p. 551, discrimination (in the case of adverse effect discrimination) was described in these terms: It arises where an employer . . . adopts a rule or standard . . . which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. It was held in that case, as well, that no intent was required as an element of discrimination, for it is in essence the impact of the discriminatory act or provision upon the person affected which is decisive in considering any complaint. The probative side of the human rights inquiry has always focused on the effect of an employer's actions. The same approach can be seen in CNR v. Canada (Human Rights Commission) (1987) 1 C.H.R.R. D/1014, at paragraph 30. [61] The more recent case law has reinforced this approach. In British Columbia v. BCGSEU, [1999] 3 S.C.R. 3, usually referred to as the Meiorin decision, the Supreme Court held that there was no reason to distinguish between the concepts of direct and adverse affect discrimination. This was true under both the Charter of Rights and human rights legislation. At paragraph 47, the court wrote that: ... the distinction between direct and adverse effect discrimination may have some analytical significance but, because the principal concern is the effect of the impugned law, it has little legal importance. At paragraph 48, it continued: ...this Court long ago held that the fact that a discriminatory effect was unintended is not determinative of its general Charter analysis and certainly does not determine the available remedy. Law, supra, at para. 80, per Iacobucci J.; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 174-75, per McIntyre J.; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 62, per La Forest J. In cases such as O'Malley, supra, and Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, this Court endeavoured to entrench the same principle in its analysis of human rights legislation. (30) This is a consistent theme in the case law. If the doctrine of discriminatory effect applies, evidence of improper motives is an adjunct of discrimination, rather than a defining feature. [62] It seems to me that this should be the real focus of the process. The initial task of a Tribunal in examining the kind of case before me is to determine whether there is credible evidence that the actions of the Respondent had the requisite effect upon the Complainant. The reality is that discrimination is often a notional act, which exists at least legally in the consequences that flow from it. As I understand the case law, all the Complainant is obliged to do is establish that she suffered the necessary effect. The inference of discrimination already exists in the substantive law and nothing more is needed. The inference of discrimination already exists in the substantive law and nothing more is needed. [63] There is nothing very difficult in such a proposition. This is much like saying that the Complainant is obliged to lead evidence that she was discriminated against. Nor does it affect the standard analysis, since the doctrine of discriminatory effect and the prima facie test introduce the same principle of strict liability into the human rights process. If there is a reasonable explanation for what appears on its face to be discriminatory conduct, it is for the Respondent to establish that explanation. There is no need, however, to see the evidence of such conduct as circumstantial evidence of some corrupt intent. [64] There is a more general sense in which any person making a legal claim has an obligation to establish the elements of the case that it wishes to advance. It is for the Respondent to reply. This is often referred to as a prima facie case, but does not require any significant weighing of the evidence. I do not believe that this affects the primary burden in the case, which remains on the complainant throughout the process. If the Complainant does not establish at the end of the day that she has suffered some discriminatory effect, on a balance of probabilities, the complaint should be dismissed. [65] This is fundamental law, which derives from the simple proposition that the prosecuting party must prove its case. The case law suggests that the situation is different when the Respondent raises a statutory defence. All I can say is that this is not the situation before me and requires further analysis. I cannot see that there is anything for a Tribunal to do in a case like the one before me other than to weigh the evidence on both sides and determine whether the Complainant has made out her case on a balance the probabilities. This is a compelling and reliable means of deciding the proper outcome in the case, which keeps extraneous considerations out of the process. The general jurisprudence recognizes that it is preferable to keep the tasks of evaluating evidence as simple as possible. [66] The legal dynamics of the case before me are extremely simple. The testimony establishes that the Complainant was passed over in the promotion process because she was married to another member. The Complainant had no difficulty establishing a credible case in the matter before me. The probative issue is accordingly whether the Respondent was able to provide a reasonable explanation of what occurred and deprive the Complainant of the legal preponderance in the evidence. The failure of the Respondent to provide such an explanation merely leaves the case for the Complainant intact. IV. ANALYSIS [67] The purpose of the Canadian Human Rights Act is to rectify the problem of discrimination. The Complainant is obliged to establish that she was treated differently than the other candidates on the basis of her sex or marital status. She must also establish that this worked to her disadvantage. The case before me is remarkably simple. Corporal Brown was ranked 47th in the list of candidates and the Respondent has not challenged her ranking. The evidence on all sides was that the Career Management Unit had an obligation to place the higher candidates in the list before placing the candidates below them. The assignment of positions was strictly hierarchical. [68] I am willing to accede that management was entitled to some discretion in awarding positions. There are global factors that come into play in the promotional process, which extend beyond the circumstances of individual candidates. This is borne out by section 134(4)(d)(1) of the Career Management Manual. The prerogatives of management only extend so far, however, and the qualifications of the candidates must take precedence over other considerations. In my view, this is the positive side of the law of human rights. It is not simply that employers are prohibited from discriminating against their employees in awarding promotions. It is that they are obliged to respect the merit principle. [69] There were a number of factors that the Career Management Unit was entitled to consider in deciding whether to give Cpl. Brown a particular posting. One of these factors was that Corporal Brown was married to another member of the force. This had a number of implications for the force. It is also apparent that the exact qualifications and circumstances of other candidates needed to be considered. There was evidence for example that members in limited duration posts were entitled to a transfer. I think it was reasonable for the Career Management Unit to consider moving costs, the need to accommodate her spouse and the special circumstance of other candidates, in exercising its prerogatives. [70] It follows that the Career Management Unit was entitled to award a posting to a lower ranked candidate, if it had valid reasons for doing so. This must not be taken too far however. It may have been reasonable to pass over Cpl. Brown's initial choices. The force of such an argument however dissipates as one works one's way through the list. At some point in the process, it can no longer be sustained. [71] It is apparent that the strength of a candidate's case increases as one goes through her list of preferences. The second time one passes over a candidate, management should take note of that fact. The third time calls for serious reflection. The ranking system must be respected. The Career Management Unit simply failed to meet its legal obligations in this regard. The best illustration of this is probably the fourteenth choice of Cpl. Brown, which was awarded to a candidate who had ranked 96 in the scoring, almost 50 positions below her. This is unfathomable. The prerogative of management to deny Cpl. Brown one of the requested promotions was exhausted long before it reached her 17th choice. [72] One of the problems with the argument that the Respondent has the right to appoint lower ranking candidates is that this logic cannot be reserved for other candidates. It also applies to Corporal Brown. If a lower ranked candidate was occasionally entitled to a promotion, over and above a candidate that ranked higher in the scoring, this only means that the Respondent had ample latitude to give Cpl. Brown one of her higher preferences. [73] It is clear that Cpl. Brown's list of preferences demonstrated a certain indecisiveness. I have already suggested that her lack of confidence had a part to play in this. Her choices were all over the place. It does not matter. The preferences were hers to make and it is not for anyone, least of all me, to question why she chose to list certain positions over others. There is no evidence before me to suggest that other candidates were given their seventeenth choice. The evidence is quite to the contrary. The case is anomalous. [74] Staff Sgt. Mitchell candidly acknowledged that Cpl. Brown would have been awarded a higher preference if she had limited her choices. At the end of the day, it was the lower choices on her own list of preferences that defeated her. This was a travesty of the process. Corporal Brown did not list her additional preferences, so that her employer could pass her by, in awarding the postings that she wanted to candidates who were ranked below her. [75] I am satisfied that the decision to give Cpl. Brown the posting in Coquitlam was driven more by costs and the needs of the force than the legitimate concerns of the promotional process. It was convenient to leave Cpl. Brown and her husband in the lower mainland, where management had difficulty retaining officers. This was contrary to the spirit of the promotions process, which was supposed to be based on the preferences of individual members. The Respondent has not provided me with any other examples of a well qualified candidate who was awarded such a low ranking preference. [76] I cannot say whether Supt. Schlecker and his staff deliberately treated Cpl. Brown unfairly. This is a common theme in cases of discrimination however. The face of discrimination has an invisible side, which does nothing to mitigate its effect. It is enough to say that the decision to promote Cpl. Brown on site was manifestly unfair. It is equally apparent that her marital status was the major factor in such a decision. This brings the Canadian Human Rights Act into play, and is more than sufficient to substantiate the complaint. V. CONCLUSIONS A. Section 10 [77] I do not believe that the present case raises significant policy issues. The evidence established that there was a personal rather than a systemic unfairness in the process. The decisions in the promotional process were made on a case-by-case basis. Any policy concerns are peripheral and merely provide the context in which the personal complaint was laid. The allegations under section 10 have not been substantiated. B. Section 7 [78] This takes me to the complaint under section 7, which alleges that Cpl. Brown was unfairly treated in the promotional process because of her sex and family status. The former allegation was never substantiated. There was evidence that the RCMP is still experiencing some difficulties in integrating women, if only because members of the other gender have felt that they receive preferential treatment. This was very much in the background however. [79] Staff Sgt. Mitchell acknowledged that there was some banter regarding Sgt. Kallin's comments, but that banter was at his expense. It would be overstating Sgt. Kallin's importance in the narrative to think his views mattered to Staff Sgt. Mitchell, who was under far too much pressure to concern himself with the individual preferences of detachment commanders. The idea that Supt. Schlecker and Insp. Donovan were attentive to Sgt. Kallin's views in dealing with a complex set of promotional requests does not bear up under analysis. [80] I believe that the staff in the Career Management Unit were aware of their responsibility to make decisions regarding promotion without discriminating against female members. There may have been remnants of an historical bias against female members, particularly at the lower levels. But there is no convincing evidence before me that this affected the competition for promotions. I accept Staff Sgt. Mitchell's evidence that gender was off the table and was not considered in the promotional process. [81] This leaves the allegation that Cpl. Brown was discriminated against on the basis of family status. I am satisfied that this aspect of the case has been substantiated. The witnesses openly acknowledged that marital status was the major factor in the decision and no real explanation was provided by the Respondent, other than to establish that there were significant expenses associated with moving a member to another posting. The Career Management Unit, was under strict orders not to spend money. This was a misplaced concern however and there is nothing in the evidence that would legally justify the decision to leave the Complainant in the lower mainland. [82] I am not convinced that I have the entire story. Sgt. Deevy still has difficulty explaining what occurred. Staff Sgt. Wills and testified that he had never heard a satisfactory account of what had happened. There is no doubt that Staff Sgt. Wills may have developed a certain mistrust of management as a result of his role as a member representative. Even after this is taken into account however, it is evident that the situation cries out for an explanation. [83] They were probably a variety of factors, legitimate and illegitimate, that contributed to the decision making process. The reality however is that less qualified candidates were given promotions ahead of Cpl. Brown. The unfairness in the process was flagrant. There is no doubt that the Complainant has established a prima facie case. She has established a good deal more. The case before me is a case that requires an answer, which was never supplied by the Respondent. [84] I might say in passing that the promotional process was poorly designed at the outset. This will come as no surprise to the officers in the Career Management Unit. Everyone was under enormous pressure and there were too many demands on the process. In the end, it was simply easier to leave the situation as it was and walk away. I accept the laconic remark of Staff Sgt. Wills who simply said that the amount of effort that would have been required to stop the process and rectify the mistake would have been huge. The evidence of the other witnesses bears out this observation. C. Remedy (i) Apology [85] The employer's efforts to accommodate the Complainant and redress the initial injustice were substantial. The problem is that it made these efforts without acknowledging that Corporal Brown had been unfairly treated. I believe that this has become the most prominent issue between the parties. When Colin Brown was asked why his wife wouldn't accept the Castlegar posting, he stated that it was all about regaining her dignity. She needed some admission that she had been wronged. [86] I am concerned that Cpl. Brown has become more interested in proving a moral point than in resolving the substantive issues before me. There was real stubbornness displayed on both sides of the case. This does not affect my view of the situation. It does not matter whether the discrimination was intended or a product of some conspiracy of circumstances. The fact is that Cpl. Brown was treated unfairly in the promotional process. [87] Although this is exactly the kind of case that would seem to call for a corporate apology, the decision of the Federal Court in Attorney General (Canada) v. Stevenson 2003 FCT 341 (FCTD) prevents me from ordering an apology. This does not exhaust the issue, since it does not prevent the Respondent from making such a gesture. The parties are welcome to make submissions as to whether the conduct of the Respondent in this regard has any bearing on the compensation to which the Complainant may be entitled under section 53. [88] I expressed some frustration during the hearing that the parties were unable to resolve the complaint among themselves. I am still of the view that it should have been possible to settle the matter, though it may be that the admission Cpl. Brown has been seeking is simply not available. If that is the case, my ruling will have to suffice. It constitutes finding in law that the Royal Canadian Mounted Police discriminated against Corporal Brown. [89] It is my hope that the force will make what amends it can by negotiating a final resolution of the matter, in a spirit of reconciliation. I am also of the view that Corporal Brown needs to put the matter behind her. Corporal Brown and her husband are dedicated officers and there is no reason why they should not enjoy satisfying professional careers with the force. (ii) Cost Transfer [90] Corporal Brown is entitled to the cost transfer that she was denied in the promotional process. I am accordingly ordering that the RCMP provide her with another posting, preferably with the detachment in Saskatoon or Calgary. I gather that either of these locations would be satisfactory. I am reluctant to enter any further into the specifics of the matter, which remains within the reasonable discretion of management. [91] I was nevertheless asked to retain jurisdiction on this aspect of the case. If the parties are unable to agree on an appropriate posting within 4 months, I am accordingly prepared to revisit the issue, at the request of either side. As a matter of good faith, I would ask the Respondent to provide reasonable prospects for Corporal Brown's husband. The evidence establishes that there should be no difficulty in providing positions for both of them in a larger centre. (iii) Compensation [92] I think it is necessary to hear further submissions as to the appropriate quantum of damages and costs. I would prefer to deal with these matters at the same time. It may nevertheless be helpful to provide some commentary on this aspect of the case. [93] There were a number of submissions. The Complainant relies on the fact that she was on sick leave for over a year. The Respondent replies that she left on medical leave the day after she returned to work and remained on salary until the day that she returned. There was accordingly no wage loss. It is a strange situation in many respects. The RCMP refused to openly acknowledge that it had discriminated against Cpl. Brown. But it was happy to pay her sick leave, which can be traced directly to the distress that she suffered as a result of the discrimination. [94] The Complainant is entitled to compensation for pain and suffering. She had difficulty testifying and still feels an enormous sense of betrayal. Her emotional, psychological and physical well-being have been affected by the dispute. She has had a loss of confidence and suffered from depression. Her marriage and family has suffered. I would like to hear the parties views as to the significance of these factors in assessing damages. [95] There are issues on the other side. I believe that the RCMP was within its rights in insisting that Cpl. Brown return to work. I do not think that it was reasonable for her to demand that the complaint be resolved before she returned to her duties. Any institutional process takes time, and an employee cannot expect to be paid indefinitely, when she essentially refuses to work. [96] I accept Insp. Donovan's observation that the most important thing in rebuilding the relationship between an employer and an employee is to bring the employee back to work. Time runs against the resumption of a harmonious working relationship. It is clear from the evidence of Corporal Brown that she has done well in her new position and this process has at least begun. [97] The Complainant also submits that her prospects in the force have diminished as a result of raising her hand in protest. I am not prepared to assume that the force will act in bad faith however, and I accept the Respondent's submission that she has been given a desirable position. [98] There is an additional suggestion that Corporal Brown was the victim of gossip in the workplace. That is inevitable and the evidence is that the RCMP discourages any public discussion of matters relating to an officer's personnel file. It is not responsible for the illicit gossip of other officers and staff. (iv) Costs [99] In a normal set of circumstances, I would have been inclined to award the Complainant her reasonable costs. The Respondent has asked me to reserve my decision on the question however, apparently on the basis that the Complainant rejected a reasonable offer of settlement before the hearing. I have some concern that the facts relevant to such an inquiry may be in dispute. There may also be issues of confidentiality or privilege that need to be addressed. I would accordingly ask the parties to determine whether evidence will be required before proceeding further. [100] There may be other issues that require attention. Cpl. Brown has asked me, for example, to order that the RCMP to place a copy of my decision on her personnel file. I believe that it is better to deal with such a request after I have heard from the parties on the outstanding issues with respect to remedy. I would accordingly invite the parties to advise the Tribunal how they wish to proceed. I will retain the jurisdiction to deal with any matters arising out of this decision. signed by Dr. Paul Groarke OTTAWA, Ontario February 4, 2004 CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD TRIBUNAL FILE: T769/1903 STYLE OF CAUSE: Jacqueline Brown v. Royal Canadian Mounted Police DATE AND PLACE OF HEARING: August 25-29, 2003 September 2,3 and 5, 2003 Vancouver, British Columbia DECISION OF THE TRIBUNAL DATED: February 4, 2004 APPEARANCES: Chris Finding For the Complainant Ronald Snider For the Canadian Human Rights Commission Keitha Richardson For the Respondent

2004 CHRT 7

CHRT

Montreuil v. National Bank of Canada

en

2004-02-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6521/index.do

2023-12-01

Montreuil v. National Bank of Canada Collection Canadian Human Rights Tribunal Date 2004-02-05 Neutral citation 2004 CHRT 7 File number(s) T795/4503 Decision-maker(s) Hadjis, Athanasios Decision Content Canadian Human Rights Tribunal Tribunal canadien des droits de la personne MICHELINE MONTREUIL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - national bank of canada Respondent REASONS FOR DECISION MEMBER: Athanasios D. Hadjis 2004 CHRT 7 2004/02/05 I. INTRODUCTION A. References to the Complainant in this Decision B. The Role of the Canadian Human Rights Commission at the Hearing II. FACTS A. Complainant's Employment Application B. First Interview C. Second Interview D. Third Interview E. Notification to Complainant of Refusal to Hire III. LEGAL FRAMEWORK IV. ANALYSIS A. Prima Facie case B. The Complainant Belongs to One of the Designated Groups C. The Complainant Applied and Was Qualified for a Job the Employer Wished to Fill D. Although Qualified, the Complainant's Candidacy was Rejected E. The Employer Continued to Seek Applicants with the Complainant's Qualifications. F. Respondent's Explanation V. REMEDY I. INTRODUCTION [1] The Complainant alleges in her complaint that the Respondent refused to employ her because she is a transsexual person. She claims that in so doing, the Respondent discriminated against her on the ground of sex. [2] The Canadian Human Rights Act (Act) provides that it is a discriminatory practice to refuse to employ an individual on the prohibited ground of sex (ss. 3 & 7). The Complainant's birth certificate identifies her sex as being male. According to the complaint form that the Complainant filed in September 2001, she declares herself to be a transsexual person who dresses as a woman and who was, at that time, in the period of transition to become a woman. The Respondent is not contesting the Complainant's contention that discrimination on the basis of a person's transgendered status constitutes sex discrimination under the Act. [3] However, at the opening of the hearing into the complaint, Counsel for the Respondent noted that in a recent Court of Appeal of Quebec judgment regarding the Complainant,1 she apparently acknowledged before the Court that she no longer intends to undergo the surgical operations to modify her sexual organs. Consequently, Respondent Counsel reserved himself the right to submit, in final argument, that this apparent variation from her allegations in the complaint may raise questions as to her credibility. A. References to the Complainant in this Decision [4] The Complainant has acted as a party to proceedings before several courts, including the Federal Court, the Superior Court of Quebec, and the Court of Appeal of Quebec, on matters relating to the name by which she may be permitted to identify herself. In the judgments rendered in these cases, the Complainant has been referred to either by the female or the male gender, depending on the decision-maker. For instance, in the case of Montreuil v. Directeur de l'état civil2, Madam Justice Rousseau-Houle applied the female gender, whereas Mr. Justice Morin, noting that the Complainant is still physically a man, used the male gender in his dissenting reasons. [5] In relation to this topic of gender identity, I find of particular interest the discussion in Sheridan v. Sanctuary Investments Ltd. No. 3,3 a case regarding a complaint filed by a transgendered person. The British Columbia Human Rights Tribunal noted that there exists in some individuals a lack of congruence between the various indicators of sex. With respect to transsexuals, there can exist a complete dissociation between their physical sex and their subjective experience of their masculinity or femininity. [6] The Respondent did not present any position, one way or the other, regarding this question. The Complainant, on the other hand, explained that she wishes to be referred to by the female gender. Under the circumstances, I see no reason to deny the Complainant's request. The Complainant is therefore referred to by the female gender throughout this decision. B. The Role of the Canadian Human Rights Commission at the Hearing [7] The Commission limited its participation to the delivery of a statement at the opening of the hearing, in which it set out what it perceived to be the principles that are key to the inquiry into the complaint. Commission counsel left the hearing room shortly after reading the statement and did not attend for the remainder of the hearing. II. FACTS A. Complainant's Employment Application [8] The Complainant's academic and professional background is broad and varied. She is a member of the Bar of Quebec, and has earned a Master's degree in business administration from Laval University, as well as a Diplôme d'études supérieures spécialisées in human resources, administration and organization from the University of Paris - Panthéon-Sorbonne. In 1981, she successfully completed the securities course offered by the Canadian Securities Institute (CSI). Aside from the practice of law, she has worked as a management consultant and has taught numerous courses in law, economics, finance and management at the University of Quebec and at several colleges (CEGEPs). In the 1970's, she owned and operated a restaurant in Quebec City. She is the author of numerous publications including several articles involving the banking industry. The Complainant has even served in the Canadian military. Suffice it to say that the Complainant has benefited from a wealth of experience in her lifetime. [9] The Complainant lived most of her public life as a man, under the name of Pierre Montreuil, while at the same time concealing her existence as Micheline. The Complainant contends that in 1997, the Quebec City CEGEP at which she was then employed as an instructor, dismissed her for having been observed in public at a local shopping centre, dressed as a woman. She decided at this point to cease hiding her true identity and to proceed with the development of her new life as Micheline. She disposed of her men's clothing and set about changing her life completely, which included reorienting her professional career. She was by now certain that her dismissal had effectively barred any future teaching opportunities within the CEGEP system. [10] The Complainant felt compelled to move from Quebec City to a larger city like Montreal. She viewed Quebec City as being an insular place that was not open to individuals like her. She perceived Montreal, on the other hand, as a diverse and large community in which she could live her life more anonymously without drawing the same negative attention. She testified that it is normal for persons who are in the process of changing their sex to radically turn their backs on the past and make new lives for themselves by, for instance, moving to a different place. [11] The Complainant therefore decided to seek employment, now openly as a woman, in a completely new environment. She came across an employment advertisement placed by the Respondent in the La Presse newspaper of May 2, 1998. The notice stated that the Respondent was recruiting persons to work in its call centre (known as TelNat) on a part-time basis (20 to 35 hours per five day week) with the eventual possibility of full-time work. The stated salary was a minimum of ten dollars per hour. The job's duties consisted of providing customer service and selling banking products. Candidates were required to possess at least a Diploma of Collegiate Studies, be bilingual, and have experience in customer service or sales. The advertisement noted that the Respondent was offering an opportunity for a career path commensurate with the employee's skills, as well as ongoing training, a nice working environment and a competitive wage scale. The indicated place of work for these positions was Montreal. The Respondent ended its advertisement by urging those who are willing to take up a challenge and interested in pursuing a career within a large-scale enterprise, to apply. Although not stated in the ad, a condition of employment for all new TelNat agents was that they would be subject to a six-month probationary period during which the Respondent maintained the right to dismiss an employee at its discretion. [12] The Complainant responded to the ad by telephone, following which she also sent in a one-page version of her curriculum vitae and photocopies of her passport, driver's licence and Social Insurance Card. The name appearing on these latter documents is Micheline Montreuil or, in the case of the passport, Micheline Pierre Montreuil. In the accompanying photographs, she bears an appearance that is usually associated with that of a woman. However, her sex is identified on the driver's licence and the passport as being male. [13] The Complainant had already applied to other banking institutions for different positions but the jobs being offered by the Respondent were particularly attractive to her. As stated in the advertisement, the Respondent employed 16,000 employees and offered the opportunity for a rising career within the company. She knew that there was a relatively high rate of turnover amongst call centre employees. She believed that as a lawyer, with qualifications in the banking and securities field, she would be able to advance fairly quickly within the bank, perhaps becoming a member of the litigation branch after a few years. B. First Interview [14] The Respondent invited the Complainant to its offices on Metcalfe Street in Montreal, to proceed through a pre-selection or screening process. The Complainant and about thirty other candidates were convened on May 22, 1998. Upon her arrival, the Complainant was asked to complete an application form. She explained on the form that her reason for leaving her previous employment at the CEGEP was her desire to completely change her life and re-orient her professional career. In the space on the form earmarked for the addition of other information that would be helpful in the assessment of her candidacy, the Complainant wrote that she had made a big change in her life and that she hoped that the Respondent would help her to realize [ concrétiser , in French] this change. She added that she must start at the bottom of the ladder in order to climb. In accordance with the Respondent's employment equity policy, a self-identification questionnaire was provided to the Complainant to complete. Although not identifying herself as being a member of any of the designated groups listed (aboriginal, visible minority or disabled), she wrote in, under the heading other, that she was transgendered. [15] After the form was completed, the Respondent conducted what it described as an exploratory interview of the Complainant. The interviewer's report indicated that her candidacy was accepted, meaning that it would now proceed to the next stage of assessment. It was noted in the report that the Complainant was a special case [ cas particulier ] and that she had exceptional motivation. After the interview, the Complainant had to complete a series of tests: a scenario-type test, a numerical reasoning test and a personality test. The first two exams were passed with success. The Complainant contends that she passed the personality test at this stage as well, but I am not persuaded of this fact. The briefing card [ fiche synthèse ] prepared following this phase of her assessment noted that several elements arising from her personality testing needed to be verified more thoroughly during the subsequent final interview that was to be conducted with the managers at TelNat. It was stipulated, however, that these elements could not form the sole basis for the elimination of a candidacy. The elements were identified as her emotionalism (empathy and sense of urgency) [ emotivité (empathie et sens de l'urgence) ] and her social desirability [ désirabilité sociale ]. C. Second Interview [16] Once a candidate passes the pre-selection process, it is ordinarily the Respondent's policy to invite her back for a final interview, which is conducted by the manager in charge of the department that is recruiting the candidates. However, in the present case, the Complainant was asked by the Director of the Respondent's human resources department, Suzanne Girard, to return to the Metcalfe Street offices for an intermediate or second interview, before proceeding to the final interview. At Ms. Girard's request, Lisette Cloutier, who was in charge of human resources within TelNat, also attended the interview, which took place on July 8, 1998. Ms. Cloutier testified that on certain occasions, such intermediate interviews were conducted, particularly where the profile of the candidate called for additional verifications for reasons such as the level of the candidate's education, her years of experience or even her personal situation. Ms. Cloutier could not identify the specific reason for which Ms. Girard decided to interview the Complainant, and Ms. Girard was not called as a witness during the course of the hearing to provide any additional explanation. [17] The interview lasted for about two hours. By the accounts of both Ms. Cloutier and the Complainant, the interview went well overall. Ms. Cloutier found the Complainant to be courteous and articulate. She did not find the candidate's attitude during the course of the interview to be arrogant. There was some discussion about the Complainant's academic background and professional experience, and the interviewers asked why she was interested in such a low level position, considering her extensive qualifications. The Complainant replied that she viewed the TelNat job as an opportunity to gain entry into the company, with the hope of advancing through the ranks over time. Ms. Cloutier testified that she considered this reply to be acceptable [ correct ]. She advised the Complainant that in order to advance within the bank, she must be willing to remain in her entry level position for up to two or three years. The Complainant answered that she was prepared to accept this condition and to even work extended hours, if necessary. [18] According to the Complainant, it was obvious from her physical appearance that she was a transgendered person, and, to ensure that the there would be no misunderstanding, she asked in a frank manner whether her status created a problem for the employer. Ms. Cloutier explained that she was responsible for dealing with special cases, and she assured the Complainant that the Respondent maintained a non-discrimination policy with respect to its hiring practices. The Complainant thought it appropriate at this point to hand over to her interviewers a one-page document entitled Firms that officially accept Transgendered", the text of which set out a list of large American-based multinational companies that had adopted liberal and open policies vis à vis transgendered persons. Amongst the businesses listed was the Chase Bank. The Complainant had received this list by e-mail from an acquaintance in the United States who has worked for the advancement of transgendered rights. The Complainant claims that the reason she delivered the document to Ms. Cloutier and Ms. Girard was so as to reassure the Respondent that it would not be alone amongst large corporations in adopting an open policy towards transgendered persons. [19] Ms. Cloutier interpreted the Complainant's gesture differently. She wondered to herself whether the Complainant genuinely wanted to work as a call centre employee or whether her true intention instead was to get herself hired and then set about promoting the integration of transgendered persons within the organization. However, at no time did Ms. Cloutier, or Ms. Girard for that matter, ever question the Complainant openly about these concerns. The interviewers ultimately concluded that the Complainant met all the basic criteria and that her application for employment should be advanced to the next and final stage of assessment. About two weeks later, Ms. Cloutier called the Complainant and notified her that she had passed the second interview. D. Third Interview [20] On August 12, 1998, Lise Roy, who was the supervisor of the quality control section at TelNat, telephoned the Complainant to invite her to the third and final interview. During the call, Ms. Roy discussed with the Complainant some of the conditions of employment including salary, work hours, as well as the required training and probation periods. According to Ms. Roy, such matters are usually discussed with all candidates during these calls. The Complainant recalls explaining to Ms. Roy that, if offered a position with the Respondent, she would move from Quebec City to Montreal. [21] The interview was conducted on August 20, 1998, at the TelNat offices situated within the Respondent's head office, at 500 Place d'Armes in Old Montreal. The Complainant met with Ms. Roy and with Josée Lecompte, who was a team supervisor at TelNat. The interview followed a typical pattern, according to Ms. Roy. During the first portion, which she described as the formal part, questions were posed to the Complainant to determine her interest in and suitability for the job. This was followed by an informal discussion, during which the Complainant was asked if she had any questions to put to her interviewers. This second phase was meant to create a more relaxed atmosphere by engaging the candidate in some light talk. Interviewees were not obliged to ask any questions and indeed, some chose not to do so. It appears that candidates could be hired even where the informal conversations did not ensue. In the Complainant's case, however, the informal exchange took place, and it evolved into what Ms. Roy described as a blah-blah-blah between women. [22] The Complainant recalls the interview as having been very positive. It was explained to her that the initial functions of the position (within TelNat's Express Line service) involved providing basic information over the telephone to the Respondent's clients, such as their account balances. After acquiring more experience, employees were assigned to receive calls of a more complex nature. According to the Complainant, after her interviewers had noted that she held an MBA degree and that she had completed her CSI securities course, they informed her that there was a possibility of advancement to the loans and investments branch of the customer service department. At the close of the interview, the Complainant was told that she would be receiving a reply from the Respondent within two to three weeks. She asserts that she was shown the TelNat work area and was told that this was where she would be working. She left the meeting feeling certain that she would be hired for the job. [23] Ms. Roy and Ms. Lecompte deny having indicated where the Complainant would be working or having intimated that she would be hired at all. They testified that immediately after the Complainant's departure, they sat down to discuss her candidacy. They agreed to recommend to the human resources department that it would be risky to hire the Complainant. It was decided that Ms. Lecompte, who had been taking notes during the interview, would prepare a typed report setting out the reasons for their decision. It was not the normal practice to prepare such reports but they felt compelled to do so in this case, due to certain specific remarks made by the Complainant. I have reproduced the report in its entirety below, without any alteration to the emphasis and underlining of the original text: [TRANSLATION] MS. MICHELINE MONTREUIL September 1, 1998 Re: Report of the interview held on August 25, 1998 at the Telnat Call Centre, in the presence of Josée Lecompte and Lise G. Roy. There were two parts to the interview. q "Formal part of the interview During this interview, Ms. Montreuil showed that she was willing and able to take our training and hold the position of Telnat customer service representative. In our opinion, the candidate was overqualified for the Express Line representative position. Because of her skills, knowledge and experience, she seemed to us to be a suitable candidate for a position in the financial services sector. However, we detected a condescending, even self-important, tone when she mentioned, "If the Bank does not recognize my abilities, a competitor will seek me out." q Informal discussion part of the interview We wanted to make Ms. Montreuil aware of her overqualification, in light of her experience, and to explain that the position may not be suitable for her. It was then that she launched into a description of the different stages that financial institutions have gone through over the last forty years and mentioned racism, sexism, and other types of discrimination. She claimed that she herself was the ambassador of her type in the banking industry and said, "In the 1950s, women, with some difficulty, entered the workforce. Subsequent to that, in the 1960s, companies hired on Italians and Greeks. In the 1970s, Blacks and Chinese made their entrance. Then in the 1980s, Gays were accepted. Now it's my turn, just like Martians who, in 2010, will pay everyone a surprise visit with their little antennae and their green bodies." In a joking manner, she added the following: "Not only can I open doors, but I can also break them down." She also informed us about her time with the Canadian Forces and showed us a photo in which she was dressed as a soldier before she underwent her physical transformation. The discussion continued and Ms. Montreuil asked us where the courthouse was because she had to go plead her case regarding the name change she requested (i.e. from Michel Montreuil to Micheline Montreuil). On this topic, she said the following: "I'll get my way by wearing them down; I'm persistent." The interview ended on a humorous note from Ms. Montreuil. Knowing that Josée Lecompte had also been a member of the Canadian Forces, she finished with, You could say that the Army turns out beautiful, great women! In light of Ms. Montreuil's remarks, we believe it would be risky to offer her a position as a customer service representative. Lise Roy, Team Leader Josée Lecompte, Team Leader Ms. Roy and Ms. Lecompte testified that in describing the making of a job offer to the Complainant as being risky, they were in effect recommending that she not be hired. [24] The Complainant takes issue with the manner with which her alleged remarks were presented in the report. She identifies several errors in the text, which call into question its reliability in recounting the events and statements contained therein. For instance, while it is possible that the Complainant spoke to the interviewers about her pending litigation regarding her petition to have her name officially changed, she denies ever having asked them for directions to the Montreal Courthouse. The Complainant points out that she has attended the Montreal Courthouse countless times during her legal career and knows its location very well. Moreover, her petition had been filed and presented before the Superior Court in Quebec City, not Montreal. She also notes that she was not seeking to have her name changed from Michel, as set out in the report, but rather from Pierre. The Complainant alludes to these errors as evidence that the report does not reliably reflect her comments during the interview, suggesting that her words were presented out of context. [25] Similarly, the Complainant presents a somewhat different version of the comment that she allegedly made with respect to the hiring of various minority groups within the banking industry. She claims that this part of the conversation was far more detailed than as put forward in the report and consisted of her pointing out that over the last forty years, one minority group after another has managed to be integrated into the industry, in spite of initial resistance attributable to misconceived notions and prejudice. She contends that the remark about how Martians may one day also seek integration was intended to illustrate with some humour, how firms are continuously adapting to accommodate the needs of various groups within society. The Complainant underscores the fact that this conversation took place during the informal portion of the meeting that Ms. Roy herself described as a blah, blah, blah between women. [26] This report was never shown to the Complainant prior to the hearing and in fact, the Respondent only disclosed it to her part way through her testimony. E. Notification to Complainant of Refusal to Hire [27] By September 10, 1998, exactly three weeks after the Complainant's third interview, the Respondent had still not informed her of whether she had been hired. On the same day, however, a very significant event occurred in the Complainant's life. The Superior Court of Quebec issued a judgment confirming the decision by the Société de l'assurance automobile du Québec (SAAQ) to delete the name Micheline from her driver's licence. Unbeknownst to the Complainant, and in fact, even before she herself had learned of the Court's ruling, two Quebec City newspapers published articles about the judgment, that very morning. Over the course of the day, other newspapers as well as numerous radio stations and television networks from across the province contacted her. She agreed to participate in interviews with all media outlets. She felt it important to present her side of the story, ever mindful of the fact that her status as a transgendered person, who also happens to be a lawyer by profession, lent itself easily to sensationalism. She also points out that the first newspaper articles were printed without putting forward her perspective on the questions raised, and contained several important errors. [28] According to the Complainant, she had never contacted the press in the past about any of the legal proceedings regarding her name, and in particular, she did not solicit any of the coverage that followed the judgment's release on September 10th. She acknowledges, however, that she did not turn down interviews whenever they were sought by the media. The articles about her continued into the month of October 1998, and on October 7, 1998, her story was featured on the front pages of the Journal de Montréal and the Journal de Québec. She was interviewed on popular television programs such as Point J and JE en direct. [29] Over this entire period, the Complainant had still not received any word from the Respondent about her job application. On October 14th, she went to the Respondent's Place d'Armes head offices, where her third interview had been conducted, and asked to speak to Ms. Roy. The Complainant was told that Ms. Roy was unavailable but that a reply would be received by the Complainant in the mail, on or before October 19th. Despite these assurances, the Complainant did not receive any correspondence from the Respondent throughout the month of October. In the meantime, she noticed that the Respondent was continuing to place the same advertisement in the La Presse newspaper that she had first seen back in May, for the recruitment of new employees to work at the TelNat call centre. [30] On November 10, 1998, the Complainant attended at the Respondent's recruitment centre in its offices on Metcalfe Street, where her first two interviews had taken place. She was given an appointment to meet with Ms. Girard later that week. In the meantime, the Complainant prepared and handed over to the Respondent a three-page letter setting out in detail each of her interactions with the Respondent since applying for the job. The Complainant concluded her letter by requesting that she be provided with some information as to the status of her application for employment. The Complainant stated, in unambiguous terms, that she wanted to work for the Respondent. She affirmed her willingness to work in any posting that the Respondent felt was best suited to her qualifications, adding that she understood that most non-entry level vacancies are filled internally. She noted that it was precisely for that reason that she wanted to join the Respondent's workforce at the entry level, irrespective of how low the wage scale was. [31] When the Complainant arrived for her appointment with Ms. Girard on November 13th, the latter told the Complainant that a decision had been made and a written reply would be forthcoming shortly. Indeed, the Complainant did receive a letter at her home, from the Respondent, dated November 6, 1998, but she insists that it was not delivered until November 18th or 19th. The letter explains, in two short paragraphs, that after having interviewed the Complainant, the Respondent unfortunately could not retain her candidacy, as her qualifications did not meet the requirements of the position. Interestingly, the letter is addressed to Mister Pierre Montreuil, not Micheline Montreuil. [32] The Complainant took great offence to the usage of this name, arguing at the hearing that it demonstrates how the Respondent's decision was influenced by the media coverage she had received. In all of the documents that she had submitted to the Respondent, she had never referred to herself as Pierre, only as Micheline. The evidence, however, shows that a background check conducted of her by the Respondent when she first applied for the job yielded a report that identified her name at birth as being Pierre Montreuil. The Respondent claims that it simply thought it appropriate to address the Complainant by her official name, as it was recorded at that time. I am not persuaded that the usage of Pierre in the letter is indicative of a desire by the Respondent to insult the Complainant nor that it demonstrates that its decision not to hire her came about as a result of the publicity she was then attracting. [33] By March 4, 1999, the Complainant had written no fewer than three letters to the Respondent, requesting information about the status of her job application. She did not acknowledge, in any of these letters, that she had received the Respondent's refusal letter of November 6th, 1998. The Complainant testified that since the letter was addressed to Mister Pierre Montreuil, she never treated it as having been sent to her. On March 16, 1999, the Complainant received another letter from the Respondent, signed by its Vice-President (Human Resources), Santo Alborino. This letter, which was now addressed specifically to Ms. Micheline Montreuil, noted that a response had already been sent to her (the November 6th letter) and that consequently, the Respondent considered the file closed. [34] On April 13, 1999, the Complainant filed the first version of her complaint with the Canadian Human Rights Commission. The Commission initially decided that her complaint was inadmissible because it was not filed under her legal name, as it was registered at that time. The Complainant sought judicial review of this decision before the Federal Court and was successful. The Court ordered the Commission to accept the Complainant's complaint and further ordered that it be drafted setting out her name as being Joseph Yves Pierre Papineau Montreuil, known under the name of Micheline Montreuil. The complaint that is now before me, drafted pursuant to the order, was signed and filed with the Commission on September 4, 2001. On April 15, 2003, the Tribunal granted the Complainant's request to modify the style of cause of the case and identify her only by the name of Micheline Montreuil. [35] Since June 3, 2002, the Complainant has been employed as a tax collection agent within the call centre of the Ministère du revenu du Québec. Her functions consist of calling taxpayers who are in default and making arrangements for the payment of the sums that are due. I was not provided with any details about what employment the Complainant may have had prior to this date. III. LEGAL FRAMEWORK [36] It is a discriminatory practice under the Act to refuse to hire a person on the basis of sex (ss. 3 and 7). In Kavanagh v. Attorney-General of Canada,4 a case involving a post-operative transsexual, the Canadian Human Rights Tribunal decided that discrimination on the basis of transsexualism constitutes sex discrimination. A similar finding was reached in the British Columbia case of Sheridan,5 which related to a pre-operative transsexual. As I have already indicated, the Respondent is not contesting the notion that a refusal to hire based on a person's transgendered status constitutes sex discrimination. [37] The burden is said to be on a complainant to establish a prima facie case of discrimination.6 A prima facie case, in this context, is one that covers the allegations made and that, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour, in the absence of an answer from the respondent. Once the prima facie case is established, the onus then shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. If a reasonable explanation is put forward, the complainant must demonstrate that the explanation is merely a pretext and that the true motivation behind the employer's actions was in fact discriminatory.7 [38] It is not necessary that discriminatory considerations be the sole reason for the actions at issue in order for the complaint to be substantiated. It is sufficient that the discrimination be one of the factors in the employer's decision.8 The standard of proof in discrimination cases is the balance of probabilities. [39] In Basi,9 the Canadian Human Rights Tribunal stated that discrimination is not a practice that one would expect to see displayed overtly. The Tribunal went on to say that in fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practiced. A tribunal should therefore consider all circumstances to determine if there exists a subtle scent of discrimination. [40] In the employment context, two tests have been developed in the jurisprudence to assist a tribunal in the determination of whether a prima facie case of discrimination has been established.10 The first was articulated in the case of Shakes v. Rex Pak Ltd.11 The Ontario Board of Inquiry held, in that case, that a prima facie case could be established by proving: that the complainant was qualified for the particular employment; that the complainant was not hired; and that someone no better qualified but lacking the distinguishing feature, which is the gravamen of the human rights complaint, subsequently obtained the position. [41] The Canadian Human Rights Tribunal developed a second test, in Israeli v. Canadian Human Rights Commission,12 to address situations where the complainant is qualified but is not hired, and the employer continues to look for a suitable candidate. In such cases, a prima facie case may be established by demonstrating: that the complainant belongs to one of the designated groups under the Act; that the complainant applied and was qualified for a job that the employer wished to fill; that, although qualified, the complainant was rejected; and that, thereafter, the employer continued to seek applicants with the complainant's qualifications. [42] In several subsequent decisions of this Tribunal, it has been observed that while the Shakes and Israeli tests serve as useful guides, neither test should be automatically applied in a rigid or arbitrary fashion in every hiring case.13 The circumstances of each case should be considered to determine if the application of either of the tests, in whole or in part, is appropriate. IV. ANALYSIS A. Prima Facie case [43] The Complainant applied for the position in May 1998 and had she been hired, she would have begun work with a group of numerous other new recruits, who were to be trained in September for about a week, and then begin answering calls shortly thereafter. There do not appear to have been a finite number of job openings available. On the contrary, the Respondent was advertising on a regular basis for the recruitment of new TelNat employees. TelNat had an annual turnover rate that fell between 20% and 30%, and this necessitated an ongoing search on the Respondent's part to fill positions and ensure that the service was being provided to its customers. Moreover, TelNat was in the process of expanding at that time, which in turn, presumably, required the presence of a growing number of customer service representatives. Thus, while there were individuals from the Complainant's cohort of job applicants who were eventually hired, the Respondent continued to seek other applicants thereafter. [44] The Shakes test appears to contemplate circumstances where a complainant participates in a job competition against others for one or several specific positions. The test does not appear appropriate, however, in ongoing recruitment-type situations because, irrespective of whether the persons hired at a given moment lack the distinguishing feature of the complainant, other employment positions into which the complainant could potentially be hired continue to remain available. The Israeli test, on the other hand, by virtue of its fourth component, encompasses situations where an employer continues to seek job applicants. As such, the Israeli test is better suited to the facts that are before me, and my analysis, therefore, follows the stages advanced therein. B. The Complainant Belongs to One of the Designated Groups [45] As I have already mentioned, it is not in dispute in the present case that as a pre-operative transgendered person, the Complainant belonged to the group of persons who cannot be discriminated against on the basis of sex, under the Act. C. The Complainant Applied and Was Qualified for a Job the Employer Wished to Fill [46] The Complainant applied for a job that the Respondent undoubtedly wished to fill. The Respondent was engaged in an ongoing campaign for the recruitment of TelNat agents, and the Complainant sought to be one of those hired. Was she qualified for the job? [47] The Complainant had successfully passed through the first stage of the selection process. Although her briefing card stated that her emotionalism and social desirability remained to be addressed in the final interview, it was also specified that a candidacy could not be eliminated solely on account of these elements. The Complainant was later requested to submit, by exception, to a second, intermediate level interview. She passed this stage as well. [48] The Respondent suggested at the hearing that the Complainant lacked experience in customer sales and service, which was a required qualification according to the Respondent's newspaper advertisement. The facts do not support this submission. Her knowledge in sales consisted of her business experience, derived principally from the operation of a restaurant. This information was provided in the first two copies of her curriculum vitae that she sent to the Respondent by mail in early May 1998, and was repeated in the more complete version of the document that she gave to the Respondent during the second interview in July. Moreover, none of the documents spelling out the Respondent's assessment of the Complainant make mention of any weakness in this area. On the contrary, one finds in Ms. Cloutier's handwritten notes from the second interview, the following entry: sales = OK. The Respondent's records confirm that the Complainant also met the other two minimum requirements set out in the job ad, namely, possessing a Diploma of Collegiate Studies and being bilingual. [49] In the report prepared after the third interview, Ms. Lecompte and Ms. Roy noted that the Complainant had shown that she was in a position to take the Respondent's training and to hold the position of TelNat customer service representative. According to Ms. Roy, the job called for persons who could follow all the necessary training, and who would thereafter be able to appropriately answer customer inquiries. Ms. Roy testified that without any doubt, the Complainant possessed the abilities to perform all of these tasks. Ms. Roy's and Ms. Lecompte's stated concern with respect to the Complainant's candidacy lay, instead, with her being overqualified for the position. In their opinion, overqualified employees are more likely to lose their motivation to work, which in turn leads to poor performance or a premature departure from their job. [50] If a complainant is overqualified, does it mean that he or she is not qualified for the purposes of satisfying the second component of the Israeli test? I do not believe so. It seems counterintuitive to expect a complainant, who bears the burden of demonstrating that she was qualified for the position at issue, to exercise a certain self-restraint in leading evidence about her qualifications, for fear of crossing some imaginary Rubicon beyond which she will suddenly be deemed to have been overqualified and thereby, not qualified at all. [51] In my opinion, once a complainant has established that she was qualified for a position, and assuming that a prima facie case has been proven in all other requisite respects, it should then fall to the employer, in its explanation, to demonstrate that the complainant was overqualified for the job and that the refusal to hire her was justified as a result. Besides, from a practical perspective, an employer would certainly be better placed to demonstrate in what manner a complainant is overqualified for the position, than a complainant herself is able to demonstrate that she is not overqualified. For instance, in the present case, the evidence is that a majority of TelNat employees are university students. A number of the agents hold Bachelor level degrees, and there is definitely at least one Master's graduate who has been employed within the call centre. Mr. Alborino stated in his testimony that he imagines it is possible that persons with doctoral degrees have been hired at TelNat in the past. How then can the Complainant be expected to demonstrate that she is not overqualified when, based on these facts, there is no readily apparent point beyond which a job applicant ends up becoming overqualified for a TelNat position? [52] Thus, in answer to the second question of the Israeli test, I find that the Complainant applied and was qualified for a job that the Respondent wished to fill. D. Although Qualified, the Complainant's Candidacy was Rejected [53] The Respondent rejected the Complainant's candidacy although it took several months before she was formally advised of its decision. E. The Employer Continued to Seek Applicants with the Complainant's Qualifications [54] The Respondent continued its advertisements for the hiring of TelNat customer service representatives throughout 1998 and into 1999. The annual turnover rate of between 20% and 30% necessitated an ongoing renewal of staff. The Respondent's newspaper ads were all virtually identical and no changes were stipulated in the required job qualifications. I am, therefore, satisfied that the Respondent continued to seek applicants with the same qualifications as the complainant. [55] Each of the components of the Israeli test has been made out and consequently, the Complainant has established a prima facie case of discrimination. F. Respondent's Explanation [56] The Respondent put forth essentially three explanations for not having hired the Complainant: the Complainant was overqualified for the position; the Complainant's attitude during the final interview was not that of a person who wishes to serve the public, but was rather one of a person who is self-centred and condescending; the Complainant's real motive for applying was to use the position to promote the rights of transgendered persons. [57] The Respondent contends that it would not, under any circumstances, have hired the Complainant because she was overqualified. Employees, it is argued, whose skills and knowledge exceed the requirements of their position are more likely to lose interest in their jobs and perform inadequately, or even worse, quit their jobs altogether. The Respondent could not afford to allow such situations to develop since there is a cost involved in training a TelNat call centre employee, not to mention the operational difficulties that would result from an unexpected loss of personnel. [58] This explanation appears reasonable but I find, for the following reasons, that it is in fact, pretextual. During all of the Complainant's interviews, she dealt directly with the Respondent's concerns regarding her stability at this job. The Complainant stated repeatedly that she was seeking to make a change in her life and to that end she declared that she would move to Montreal and stay in the position for as long as required of her (perhaps as many as two to three years), before seeking a promotion. The Respondent acknowledged that, in fact, many TelNat employees seek and successfully end up gaining promotions within the Bank. [59] Furthermore, if indeed the Complainant were at risk of leaving her job prematurely, as alleged by the Respondent, it would not have been an extraordinary occurrence. Most TelNat call centre agents are students, and a good number of them typically do not remain in their positions for as long as two years. In fact, the 20% to 30% annual turnover rate suggests that many, if not the majority, of all employees do not stay in their jobs for a prolonged duration. Ms. Roy testified that twenty-four months is considered to be a long stay for a call centre employee. [60] The Complainant was fully aware of the tasks associated with frontline call centre work, no matter how menial. It was obvious that she nonetheless was deliberately seeking this employment in order to make a change in her life, and with the hope, or even the expectation, that a person with her talents would eventually rise up through the ranks of the company. After all, the Respondent's print ads for the job stated explicitly that employees would be offered the opportunity for a career plan that would be commensurate with their skills. Mr. Alborino testified that the majority of staffing actions, other than those at the lowest entry levels, are initially posted internally within the company. If this search does not prove fruitful, an external recruitment is organized. I accept the Complainant's evidence that she was mindful of this prospect of eventual advancement and that this topic formed part of her conversation with the interviewers. [61] So then, in light of her declared commitment to stay in the job in accordance with, if not beyond, all of the employer's expectations, why did the Respondent not take the Complainant at her word? [62] The answer lies in the Respondent's third explanation for not having hired the Complainant. It is clear from the evidence of Ms. Roy, Ms. Lecompte, and Ms. Cloutier that they had some difficulty understanding why a person with the Complainant's credentials would choose to work at an entry-level position. As Ms. Lecompte put it, she was perplexed by the Complainant's decision. The Complainant must have had some other motive. Ms. Roy and Ms. Lecompte believed to have found their answer during the informal conversation at the close of the interview. In hearing the Complainant's comments about the progress of minority groups over the last century and her statement that she is a persistent person who is prepared to break down doors, Ms. Roy and Ms. Lecompte concluded that her genuine motive for applying was to promote the rights of transgendered persons. It is noteworthy that the interviewers chose to end their report by advising that it would be risky to hire the Complainant in light of her remarks, not her qualifications. [63] Indeed, Ms. Roy testified that after hearing these comments, she concluded that the Complainant's real reason for seeking an entry-level position must be to become a pioneer who will make her condition publicly known. Ms. Roy added that the Respondent does not recruit employees in order to give them an opportunity to make their crusade. Yet, both interviewers acknowledged that the Complainant never said that she intended to do anything of the sort. In their report, it is stated that the Complainant told them she considered herself to be an ambassador of her `type', but at the hearing, Ms. Lecompte admitted that she had formulated this term herself and that the Complainant never actually made such an assertion. [64] Moreover, their concern was never put directly to the Complainant for an answer. She was never asked about her true motives or whether she intended to use her position as a promotional tool. I accept the Complainant's explanation with respect to her comments about the progress of various minority groups within society. In the context of the light conversation, or blah-blah-blah, the Complainant sought to make the point, in the same tone, that it was proper for the Respondent to allow transgendered persons to join its workforce, just as the door had been opened to others in the past. [65] Mr. Alborino, in his capacity as the Respondent's Vice President (Human Resources), endorsed the findings of Ms. Roy and Ms. Lecompte. He believed that the Complainant was seeking a sort of platform to advance a personal interest and he affirmed, in his testimony, that there was no place for such activity within the bank. When pressed, however, neither he nor any of the other witnesses were able to satisfactorily explain how a call centre agent, whose tasks consist of answering calls from bank customers about branch locations, account balances and the like, would use this position as a platform for the rights of the transgendered. No one suggested, for instance, that the Complainant would somehow engage customers in conversations about transgendered rights. The Respondent's concerns appeared to basically centre on her motivation for the job; while the interest of other TelNat employees, such as university students, supposedly lay in performing the job's tasks and receiving a salary in return, the Complainant's interests would somehow lie elsewhere. [66] I find this contention troubling. If indeed the Complainant attaches some importance to the fact that she may be the first openly transgendered person to be hired by the Respondent, or any other Canadian bank for that matter, does this imply that her dedication to the job should be put in question, that her sincerity should be doubted? The advancement of human rights has been achieved over time through the actions of many individuals who have made great efforts and sacrifices in order to break through barriers, whether, for instance, to gain access to certain schools or to acquire the right to sit at the front of a bus. Their principal motivation may have been to bring an end to discrimination, but does this necessarily imply that they were not equally interested in earning an education or travelling to the other end of town? [67] In reality, the Respondent's rationale means that employment will be denied only to a member of the designated group (transgendered persons, in this case), for it is likely that this same individual would be the one to celebrate his or her achievement, and perhaps make it known to others. In so doing, the Respondent is effectively treating, as a factor in its decision not to hire, the candidate's status as a member of the designated group. It falls to reason that a similar job applicant who lacks the distinguishing feature that is the gravamen of the human rights complaint would not be denied the same employment opportunity on this basis. What is more disturbing in the present case, is that the Respondent's decision was based solely on its perception that the Complainant would act in what it considered to be an unacceptable fashion, without ever testing that perception by questioning the Complainant directly on the topic. [68] For all these reasons, I am satisfied that the Complainant's sex was a factor in the decision by the Respondent to refuse to offer her the TelNat position. [69] It was argued by the Respondent that the Complainant would not have been hired, in any event, because of her condescending and self-important tone noted by the interviewers during the formal first portion of the meeting. I am not persuaded, however, that this conclusion was drawn solely from observations gleaned during the first part of the interview. Ms. Roy testified that she came to this finding based on, for instance, the Complainant's comments about changes that she had made to her physical appearance and remarks about her prior military service. Ms. Roy also cited as an example, the photo that the Complainant presented of herself as a soldier, before her physical transformation. All of these occurred during the informal latter portion of the interview. [70] Ms. Roy explained that the problem with self-centred call centre agents who like to hear themselves talk, is that they occasionally engage customers in unnecessary conversation, which takes up their and the customer's time. It appears, however, that possessing such a tendency has not prevented other persons from being hired at the call centre. Ms. Roy pointed out that she must occasionally work on this aspect with respect to some of her employees. The fact that these persons are nonetheless employed by TelNat brings into question whether this explanation by the Respondent, for not having hired the Complainant, is just a pretext. [71] However, whether or not the explanation is deemed pretextual is, in the end, of no significance. I have already found that discrimination was a factor underlying the other two explanations provided. It is of no bearing, if, as the Respondent alleges, the principal reason for refusing to hire the Complainant was her alleged self-centredness. As the Federal Court of Appeal pointed out in Cranston v. Canada,14 the notion of proximate cause has no relevance under the Act. For there to be a finding of discrimination, it is sufficient that the discrimination be a basis for the employer's decision, it need not be the only reason.15 [72] Although I have determined that the Respondent's conduct was discriminatory, I do not believe that its representatives demonstrated any intent to discriminate against the Complainant. To the contrary, I have no reason to doubt their declared sense of openness with respect to her transgendered status. It is settled law, however, that intent to discriminate is not a pre-condition to a finding of discrimination.16 [73] To summarize, after having considered all of the evidence, I am satisfied that discrimination based on sex was a basis, at least in part, for the Respondent's decision not to hire the Complainant for the position of call centre agent at TelNat. The complaint is therefore substantiated. V. REMEDY [74] During the hearing, the Complainant requested that the Tribunal only determine the question of liability at this time. In the event of a finding of liability, the Tribunal would retain jurisdiction to hear, at a later time, evidence and arguments from the parties on the question of remedy. The Respondent did not object to this request and I therefore granted it. In light of my present finding that the complaint has been substantiated, I am retaining jurisdiction with respect to any remedy to which the Complainant may be entitled under the Act. In the event that the parties do not reach an agreement on this issue, they may contact the Tribunal Registry to arrange for additional hearing dates. Signed by Athanasios D. Hadjis OTTAWA, Ontario February 5, 2004 Canadian Human Rights Tribunal PARTIES OF RECORD TRIBUNAL FILE: T795/4503 STYLE OF CAUSE: Micheline Montreuil v. National Bank of Canada DATE AND PLACE OF HEARING: August 18-22, 2003 Montreal, Quebec DECISION OF THE TRIBUNAL DATED: February 5, 2004 APPEARANCES: Micheline Montreuil On her own behalf Céline Harrington For the Canadian Human Rights Commission André Giroux For the Respondent 1Montreuil v. Directeur de l'état civil, REJB 2002-35333, [2002] J.Q. No. 5004 (C.A.Q.) (QL). 1 2Ibid. 3 (1999), 33 C.H.R.R. D`467 at para. 92 (B.C.H.R.T.). See alsoKavanagh v. Attorney-General of Canada (2001), C.H.R.R. D/119 at para. 11-18 (C.H.R.T.). 4Ibid. 5Ibid. 6Ont. Human Rights Comm. v. Simpsons-Sears Ltd.,[1985] 2 S.C.R. 536 at para. 28 ["O'Malley"]. 7Basi v. Canadian National Railway Company (No. 1) (1988), 9 C.H.R.R. D/5029 at para. 38474 (C.H.R.T.);Singh v. Canada (Statistics Canada) (1998), 34 C.H.R.R. D/203 at para. 162 (C.H.R.T.), aff'd [2000] F.C.J. No. 417 (F.C.T.D.) (QL);Premakumar v. Air Canada, [2002] C.H.R.D. at para 78 (C.H.R.T.) (QL). 8Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 at para 7 (F.C.A.);Pitawanakwat v. Canada (Secretary of State) (1992), 19 C.H.R.R. D/10 at para. 85 (C.H.R.T.). 9Supra note 7 at para. 38481. 10Lincoln v. Bay Ferries Ltd., 2003 FC 1156. 11 (1981), 3 C.H.R.R. D/1001 at para. 8918 (Ont. Bd. Inq.). 12 (1983), 4 C.H.R.R. D/1616 at1618 (C.H.R.T.), aff'd (1984), 5 C.H.R.R. D/2147 (C.H.R.T.- Rev. Trib.). 13Singh,supra note 7 at para. 161 (C.H.R.T.);Premakumar,supra note 7 at para. 77;Martin v. Saulteaux Band [2002] C.H.R.D. No. 4 at para. 27 (CHRT) (QL);International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster[2002] 2 FC 430 at paras. 33-35 (F.C.T.D.). 14[1995] F.C.J. No. 1719 at para. 10 (F.C.A.). 15Canada (Employment and Immigration Commission) v. Lang, [1991] 3 F.C. 65 at para. 2 (F.C.A.). 16 O'Malley, supra note 6 at para. 14;Chopra v. Canada (Attorney-General), 2002 FCT 787 at para. 62.

2004 CHRT 8

CHRT

Tweten v. RTL Robinson Enterprises Ltd.

en

2004-02-11

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6520/index.do

2023-12-01

Tweten v. RTL Robinson Enterprises Ltd. Collection Canadian Human Rights Tribunal Date 2004-02-11 Neutral citation 2004 CHRT 8 File number(s) T842/9203 Decision-maker(s) Deschamps, Pierre Decision type Ruling Decision Content CANDIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BRUCE TWETEN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - RTL ROBINSON ENTERPRISES LTD. Respondent RULING ON PRELIMINARY MOTION MEMBER: Pierre Deschamps 2004 CHRT 8 2004/02/11 I. BACKGROUND II. SUBMISSIONS OF THE PARTIES III. THE LAW A. Issue estoppel B. Frivolous, vexatious complaints and complaints made in bad faith C. Abuse of process IV. ANALYSIS A. Issue estoppel B. The complaint is frivolous, vexatious or otherwise made in bad faith C. The complaint constitutes an abuse of process V. ORDER [1] The Tribunal is called upon to rule on a motion brought by the Respondent whereby the latter seeks to have Mr. Tweten's complaint summarily dismissed before the commencement of the inquiry into his complaint. I. BACKGROUND [2] On September 9, 1998, Mr. Tweten filed a complaint with the Canadian Human Rights Commission (Commission) in which he alleges that he has reasonable grounds to believe that RTL Robinson Enterprises Ltd. (Respondent) discriminated against him on the ground of disability by failing to accommodate him, by treating him differently in the course of employment and by refusing to allow him back to work, contrary to section 7 of the Canadian Human Rights Act1. The record shows that the Commission referred Mr. Tweten's human rights complaint to the Tribunal on July 3, 2003 for it to institute an inquiry. [3] Following the filing of his human rights complaint with the Commission, Mr. Tweten filed a complaint of unjust dismissal under the Canada Labour Code. That complaint was heard on November 28, 2000. [4] In a decision dated December 29, 2000, the Canada Labour Code adjudicator, Ms. Donna C. Read, concluded that there was no evidence for her to find that this was a case of constructive unjust dismissal. Rather, she concluded that Mr. Tweten had quit his job. She thus dismissed Mr. Tweten's complaint. II. SUBMISSIONS OF THE PARTIES [5] In its written submissions, the Respondent, relying on the doctrine of issue estoppel, not only argues that the Tribunal is barred from hearing Mr. Tweten's human rights complaint, but also that the complaint should be dismissed because it is frivolous, vexatious or otherwise made in bad faith as per s. 41(1)d) of the Act. The Respondent further argues that the complaint constitutes an abuse of process. [6] With respect to the estoppel issue, it appears from Respondent counsel's letter dated November 12, 2003 that the latter concedes that issue estoppel is impossible to apply to matters involving the Commission. That said, the Tribunal intends nonetheless to address this issue in its ruling. [7] As for the allegation that the complaint is frivolous, vexatious and made in bad faith, the Respondent refers to the fact that Mr. Tweten did not provide the Respondent, when asked, with relevant information supporting any ongoing limitations or accommodation requirements, that his complaint was investigated by three different investigators on behalf of the Commission over a period of 2 years following the filing of the complaint, that the last investigator recommended that the matter not proceed to the Tribunal, that the Commission nonetheless referred the matter to the Tribunal instead of dismissing the complaint. [8] Finally, with respect to the allegation that the complaint constitutes an abuse of process, the Respondent argues that all issues have been dealt with in prior proceedings, that for the Tribunal to proceed with the inquiry would allow for inconsistent findings amongst two federally appointed Tribunals (sic) (Labour Board and the Human Rights Tribunal) which would bring the administration of justice into disrepute. Furthermore, the Respondent argues that Mr. Tweten has had his claims against the Respondent heard in two other forums at great expense for the Respondent. [9] In support of the above allegations, the Respondent relies mainly on the decisions rendered in Barter v. Insurance Corp. of British Columbia2 and Toronto (City) v. Canadian Union of Public Employees, Local 79 (C.U.P.E.)3. [10] For its part, the Commission contends that the doctrine of issue estoppel has no application to this case. In support of its position, it relies on the ruling of this Tribunal in Desormeaux v. Ottawa-Carleton Regional Transit Commission4 as well as on the decision rendered by the Supreme Court of Canada in Angle v. Canada (Minister of National Revenue - M.N.R.)5. [11] As for the other two grounds, i.e. that the complaint is frivolous, vexatious or made in bad faith and that it constitutes an abuse of process, the Commission submits that the Tribunal does not have jurisdiction to consider these arguments. In this regard, the Commission relies on the decision rendered by this Tribunal in Roch v. Maltais Transport Lte and Gatan Maltais6. [12] On the whole, the Commission argues that the decision to refer a complaint to the Tribunal is solely within the discretion of the Commission pursuant to section 49(1) of the Act and that once a complaint has been referred to the Tribunal, the latter has no discretion but to institute an inquiry as provided by subsection 49(2) of the Act. III. THE LAW A. Issue estoppel [13] As stated previously by this Tribunal in Desormeaux7, Parisien8 and Thompson9, issue estoppel is a public policy doctrine designed to advance the interests of justice. Its object is to prevent parties from relitigating issues that have already been decided in other proceedings. The policy considerations underlying the doctrine include the need to have an end to litigation, as well as the desire to protect individuals from having to defend multiple legal proceedings arising out of the same set of circumstances. It is also meant to reduce the risk of inconsistent results if the same issue is pursued in multiple fora. [14] According to the case law10, for issue estoppel to be successfully invoked three preconditions or requirements must be met: the issue must be the same as the one decided in the prior decision; the prior judicial decision must have been final; the parties to both proceedings must be the same or their privies11. Thus, if one of the three preconditions or requirements is lacking, the doctrine does not apply. B. Frivolous, vexatious complaints and complaints made in bad faith [15] Section 41(1)d) of the Act provides that the Commission can dismiss a complaint found to be trivial, frivolous, vexatious or made in bad faith. It must be noted here that this provision of the Act applies solely to the Commission and not to the Tribunal. Thus, the Tribunal's power to dismiss a frivolous, vexatious complaint or one made in bad faith, cannot be derived from this provision of the Act. This said, section 53(1) of the Act provides however that, at the conclusion of an inquiry, the Tribunal is entitled to dismiss a complaint if it finds that the latter is not substantiated. [16] It thus appears that, under the scheme of the Act, once a complaint has been referred to the Tribunal, the only avenue open to it is to hold an inquiry into the complaint unless the delays associated with the human rights process violate section 7 of the Charter12 or if, as will be seen hereafter, there is an abuse of process. In those circumstances, it is open to the Tribunal to forgo holding an inquiry. Short of such findings, the Tribunal has no discretion with respect to holding or not an inquiry into a complaint. [17] Furthermore, it must be noted that the Tribunal has no authority under the Act to review a decision of the Commission to refer a complaint to the Tribunal. As stated in Oster13 and restated in many other decisions of this Tribunal14, the Tribunal does not exercise supervisory jurisdiction over the actions and decisions of the Commission. These matters lie within the exclusive purview of the Trial Division of the Federal Court. [18] Hence, if a respondent is of the view that the Commission's decision to refer a complaint to the Tribunal is unjustified or ill-founded, the only recourse available to that respondent is to seek the judicial review of the Commission's decision before the Federal Court15. C. Abuse of process [19] The doctrine of abuse of process is used in a variety of legal contexts. Among other things, the doctrine is used to deal with the relitigation of issues finally decided in a previous judicial proceeding. As stated by Justice Arbour in Toronto (City) v. Canadian Union of Public Employees, Local 79 (C.U.P.E.), Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice16. Justice Arbour further adds that the doctrine of abuse of process has been extended beyond the strict parameters of res judicata while borrowing much of its rationales and some of its constraints and that the policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel17. [20] For the Tribunal to find that a referral constitutes an abuse of process, the Tribunal must be convinced that the proceedings, if they were to go ahead, would be oppressive or vexatious and would violate the fundamental principles of justice underlying the community's sense of fair play and decency. IV. ANALYSIS [21] The Tribunal will now proceed to examine and dispose of each of the arguments raised by the Respondent in its preliminary motion. A. Issue estoppel [22] In his letter dated November 12, 2003, Counsel for the Respondent concedes that at least one of the three preconditions for issue estoppel to apply is not met, i.e. identical parties. He further acknowledges that, in the end, it is impossible to apply issue estoppel to matters involving the Commission. The Tribunal agrees. [23] As stated by the former chairperson of the Tribunal in Desormeaux18 and Parisien19, as well as in Thompson20, the Commission is not a privy of a complainant and does not represent the complainant. The Commission and the complainant are distinct parties to the inquiry under the Act, each having a specific role, the role of the Commission being that of representing the public interest. [24] These views are in keeping with the decision rendered by the Supreme Court of Canada in Toronto (City) v. Canadian Union of Public Employees21 where Justice Arbour, after having carefully reviewed the state of the law on this aspect of the doctrine, stated that she saw no need to reverse or relax the long-standing application of the mutuality requirement (third precondition). [25] It thus follows that the parties to the proceedings before the Canada Labour Code adjudicator and the Tribunal are not the same. Hence, the Tribunal concludes that at least one of the three elements required for the doctrine of issue estoppel to apply in the present case is absent. [26] Though this finding is in itself sufficient to dispose of the estoppel issue, the Tribunal is also of the view that the issue now before it was never squarely addressed by the Canada Labour Code adjudicator in her decision. This matter will further be dealt with in relation to the issue of abuse of process. B. The complaint is frivolous, vexatious or otherwise made in bad faith [27] The fact that, in relation to his labor law complaint, Mr. Tweten did not provide the Respondent with information on his physical limitations or accommodation requirement does not constitute a sufficient reason for the Tribunal to conclude that Mr. Tweten's complaint is frivolous, vexatious or otherwise made in bad faith and to bring about a dismissal of Mr. Tweten's complaint at this stage of the proceedings. Nor does the finding by the Labour Code adjudicator that Mr. Tweten quit his job. [28] One must not forget that both the Complainant and the Commission are parties to the present proceedings and that both have a right to be heard on the substantive human rights issues raised by the Complaint. The Complainant's failure to provide pertinent information on his condition as well as the compensation he received for his work injury are all matters that the Respondent will be able to raise in the course of the inquiry as a means of defense to the complaint. [29] In another vein, the fact that the complaint was investigated by three different investigators on behalf of the Commission over a period of two years following the filing of the complaint, that the last investigator recommended that the matter not proceed to the Tribunal and that the Commission nevertheless referred the complaint to the Tribunal are all matters that should have been part of a judicial review of the Commission's decision to refer the complaint to the Tribunal. [30] In the case at bar, the record shows that the Respondent did not seek judicial review of the Commission's decision to refer Mr. Tweten's complaint to the Tribunal. As stated previously, the Tribunal has no jurisdiction to review that decision. [31] The Tribunal thus finds that Respondent's second preliminary objection is ill-founded. C. The complaint constitutes an abuse of process [32] Abuse of process has, in recent years, been raised several times by respondents to challenge the referral of a complaint by the Commission to the Tribunal22. The grounds for these challenges relate mainly to the alleged misconduct and delay of the Commission in processing and investigating a complaint. Many respondents seem to be offended by the fact that, in some cases, the referral is made even though the investigation report recommends the dismissal of the complaint. [33] In the case at bar, with respect to the issue of abuse of process, the Tribunal is called upon to determine if, in the course of the inquiry it is required to hold under the Act once a complaint has been referred to it, the issues litigated before the Labour Code adjudicator will be relitigated before it. The determination of this issue requires that the Tribunal closely examine the content of the decision rendered by Ms. Donna C. Read as was done in Barter23. [34] After reviewing the facts of the case, Ms. Donna C. Read framed as follows the issues she had to decide24: Was Mr. Tweten out of time in making a complaint under section 240(2) of the Canada Labour Code because he made his complaint more than 90 days from the date on which the person making the complaint was dismissed? If not, was Mr. Tweten unjustly dismissed? If he was unjustly dismissed, what is the appropriate remedy? [35] In his human rights complaint, Mr. Tweten alleges that he has reasonable grounds to believe that the Respondent has discriminated against him on the ground of disability by failing to accommodate him, by treating him differently in the course of employment and by refusing to allow him back to work contrary to section 7 of the Act. [36] In view of the allegations contained in Mr. Tweten's human rights complaint, the issues now before the Tribunal appear to be the following: Was Mr. Tweten discriminated against on the ground of disability contrary to section 7 of the Canadian Human Rights Act? did the Respondent fail to accommodate him? was Mr. Tweten treated differently in the course of employment? did the respondent refuse to allow Mr. Tweten back to work? [37] It thus appears that the main issue before Ms. Read was whether Mr. Tweten was dismissed or not from his job and if he was, was the dismissal unjust under the provisions of the Canada Labour Code whereas the main issue that the Tribunal has to decide is whether Mr. Tweten has been the victim of a discriminatory practice within the meaning of the Act in relation to an existing disability. These are two very different issues. [38] As to the issue of accommodation, it must be noted here that Ms. Read clearly stated in her decision that the parties never got to the point where the issue of what would be an appropriate accommodation was addressed25. Thus, this issue still remains to be decided. [39] Hence, the Tribunal is of the view that the issues that were before Ms. Read don't stand to be relitigated before the Tribunal. There is thus no real risk of having two divergent decisions on the same issues and of having the integrity of the judicial process negatively affected and its credibility undermined by different findings26. V. ORDER [40] For the foregoing reasons, the preliminary motion of the Respondent is dismissed. Signed by Pierre Deschamps OTTAWA, Ontario February 11, 2004 PARTIES OF RECORD TRIBUNAL FILE: T842/9203 STYLE OF CAUSE: Bruce Tweten v. RTL Robinson Enterprises Ltd. DECISION OF THE TRIBUNAL DATED: February 11, 2004 APPEARANCES: Bruce Tweten On his own behalf Daniel Pagowski For the Canadian Human Rights Commission Barry D. Young For RTL Robinson Enterprises Ltd. 1 R.S., 1985, ch. H-6. 2 [2003] B.C.H.R.T.D. No. 9. 3 [2003] S.C.J. No. 64. 4 [2002] C.H.R.D. No. 22, File No. T701/0602, 2002/07/19, Ruling No. 1. 5 [1975] 2 S.C.R. 248. 6 2003 CHRT 33, 03/10/22. 7 Supra, note 4, para. 20. 8 Parisien v. Ottawa-Carleton Regional Transit Commission, C.H.R.T., File No. T699/0402, 2002/07/15, Ruling No. 1, para. 19. 9 Thompson v. Rivtow Marine Ltd, C.H.R.T., File No. T656/4401, 2001/11/28, Ruling No. 1, para. 17. 10 Toronto (City) v. Canadian Union of Public Employees, Local 79 (C.U.P.E.), supra note 3, para. 23; Angle v. (Canada) Minister of National Revenue -M.N.R.), supra note, 5. See also Thompson v. Rivtow Marine Ltd, supra note 9, para. 12; Cremasco v. Canada Post Corporation, C.H.R.T., File No. T702/0702, 2002/09/30, para. 69; Desormeaux v. Ottawa-Carleton Regional Transit Commission, supra note 4, para. 19; Leonardis v. Canada Post Corporation and Kordoban, C.H.R.T., 2002/07/30, Ruling No 1, para. 9. 11 This precondition is also referred to as mutuality 12 Blencoe v. (B.C. (Human Rights Commission)), [2000] 2 R.C.S. 307; see also, in this respect, Dumont v. Transport Jeannot Gagnon, C.H.R.T., File No.T639/2701, 2001/06/13, Ruling No. 1, Rhault v. Maritime Employers Association, C.H.R.T., File No T578/3600, 2000/11/03; Desormeaux v. Ottawa-Carleton Regional Transit Commission, supra note 4. 13 International Longshore & Warehouse Union (Maritime Section), Local 400 v. Oster, [2002] 2 F.C. 430. 14 Leonardis v. Canada Post Corporation and Kordoban, supra note 10, para. 5; Quigley v. Ocean Construction Supplies, C.H.R.T., File No. T582/4000, 2001/09/17, para. 7; Eyerley v. Seaspan International Ltd., C.H.R.T., File No. T565/2300, 2000/08/02, Ruling No. 2, para. 4; Parisien v. Ottawa-Carleton Regional Transit Commission, supra note 8, para. 9; Rock v. Maltais Transport Lte and Gatan Maltais, supra note 6, para. 10. 15 International Longshore & Warehouse Union (Maritime Section), Local 400 v. Oster, supra note 13; see also Rock v. Maltais Transport Lte and Gatan Maltais, supra note 6, para. 12. 16 Supra note 3, para. 37. 17 Idem, para. 38. 18 Supra note 4, para. 31. 19 Supra note 8, para. 32. 20 Supra note 9, para. 26. 21 Supra note 3, para. 32. 22 Bozek v. MCL Ryder Transport Inc. and McGill, C.H.R.T., File No. t716/2102, Ruling No. 1, 2002/11/27; Rhault v. Maritime Employers Association, supra note 12; Dumont v. Transport Jeannot Gagnon, supra note 12; Cremaso v. Canada Post Corporation, supra note 10. 23 Supra note 2. 24 In the Matter of an Adjudication under Division XIV - Part III of the Canada Labour Code: Mr. Bruce Tweten v. RTL Robinson Enterprises Ltd., Edmonton, Alberta, Decision, p. 9. 25 Idem, p. 12. 26Toronto (City) v. Canadian Union of Public Employees, Local 79 (C.U.P.E.), supra note 3, para. 51.

2004 CHRT 9

CHRT

Irvine v. Canadian Armed Forces

en

2004-02-12

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6519/index.do

2023-12-01

Irvine v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2004-02-12 Neutral citation 2004 CHRT 9 Other citations T.D. 15/01 File number(s) T584/4200 Decision-maker(s) Chotalia, Shirish P. Decision type Decision Decision status Final Grounds Disability Decision Content Between: Raymond Irvine Complainant - and - Canadian Human Rights Commission Commission - and - Canadian Armed Forces Respondent Decision Member: Shirish P. Chotalia Date: February 12, 2004 Citation: 2004 CHRT 9 Table of Contents I Introduction. II Federal Court Decision. III Re-determination. A. Tribunal Decision 2001 – Re-Determination In Light Of Universality of Service. (i) Findings of Fact (ii) Legal Principles. B. Reasons. (i) Party Submissions Regarding Direction of the Federal Court C. Universality of Service. (i) The Duties of a Soldier (ii) The Duties Are Universal D. Meiorin. E. Anvari (i) The Direction in Anvari (ii) Application to Mr. Irvine’s Case. IV Conclusion. V Remedies. I. Introduction [1] This Tribunal rendered a decision on November 23, 2001 [the 2001 decision]. Further to a judicial review of that decision, Mr. Justice Noël issued a ruling dated May 27, 2003 (2003 FCT 660). II. Federal Court Decision [2] In his decision, Mr. Justice Noël ruled: The Tribunal referred in passing to the universality of service principle as it was in 1996 when the decision to release Mr. Irvine was made. In my opinion, it failed to recognize the existing jurisprudence of that period, confirming that the issue of universality of service is a bona fide occupational requirement. More importantly, the Tribunal dismissed the fact that this jurisprudence was the Federal Court of Appeal’s interpretation of a statute. The Tribunal had to consider the applicable law in 1996 and determine if there had been direct discrimination against Mr. Irvine, and if so, whether the medical standard required of him was a bona fide occupational requirement by which the CAF would be exempted from the duty to accommodate. [para 25] The Federal Court observed that in 1995 and 1996, when the CAF made the decisions concerning Mr. Irvine’s career in the military, the law was as stated by the Federal Court of Appeal in Canada (Attorney General) v. St. Thomas and Canadian Human Rights Commission[1], Canada (Human Rights Commission) v. Canada (Armed Forces)[2], and Canada (Attorney General) v. Robinson[3] [respectively St. Thomas, Husband, Robinson] and by the Supreme Court of Canada in Central Alberta Dairy Pool v. Alberta (Human Rights Commission) 1990 2 S.C.R. 489 [Central Alberta Dairy Pool]. Further to this jurisprudence, at that point in time, there was no duty to accommodate in cases of direct discrimination. In Mr. Irvine’s case, the discrimination constituted direct discrimination. Therefore, further to the jurisprudence of that time period, the CAF had no legal duty to accommodate Mr. Irvine. Furthermore, Mr. Justice Noël observed that the requirement for a member to be liable to perform combat duty or to be a soldier first was recognized as a statutory obligation in Robinson. Therefore, according to the trilogy of cases which applied in 1996, the universality of service principle required every CAF member to be fit at all times for combat duty. Thereafter, this was recognized by Parliament in its 1998 amendments to the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended, with the addition of subsection 15(9). Noël J. ruled that this Tribunal had correctly applied Meiorin retroactively, but that it failed to analyze it in the context of the universality of service principle. This principle was found by the Federal Court of Appeal to have a statutory source in the National Defence Act R.S.C. 1985, c. N-5. Noël J. was troubled by the minimal wording used by this Tribunal in discussing universality of service principles and found that this Tribunal insufficiently addressed this issue. The Federal Court concluded that the Tribunal ought to have considered, in its analysis and application of British Columbia (Public Service Employee Relations Commission) v. BCGSEU [1999] 3 S.C.R. 3, also known as Meiorin, the intention of Parliament and the Court’s interpretation of the legislation establishing and implementing the universality of service principle at the time of the decision in 1996. [3] With respect to alleged errors of fact, Mr. Justice Noël chose not to address these in light of the above decision. In granting the judicial review application, he ordered that the matter be sent back for re-determination without costs. III. Re-determination [4] This decision constitutes a re-determination of the case further to the said order of the Federal Court of Canada. Oral submissions and written submissions were received from the Commission, Mr. Irvine and the respondent, Canadian Armed Forces (CAF). A. Tribunal Decision 2001 – Re-Determination In Light Of Universality of Service [5] In the 2001 decision, I made findings of fact contained in paragraphs 3 - 102. I had outlined legal principles in paragraphs 103 - 113 and analysis in paragraphs 114 - 163. Within this prior grouping, I had made evidentiary findings in paragraphs 122 - 124. My conclusion and remedial award are found at paragraphs 164 - 165. [6] In this re-determination, for the reasons cited below, I place no weight on facts contained in paragraphs 36 - 57 and I find that paragraphs 151 and 154 - 163 of my analysis are no longer pertinent. (i) Findings of Fact [7] The Commission submits that the Federal Court did not rule with respect to the facts and that therefore the facts as originally found are to be left undisturbed. The Commission submits that this Tribunal is bound by its previous findings of fact and that this Tribunal has no jurisdiction to disturb them: this would require the Tribunal to sit as an appellate court in review of its own decision. Thus the Commission argues that paragraphs 3 - 102 of the original decision are not to be disturbed. The respondent argues that each of the paragraphs that address and apply universality of service, including paragraphs 36 - 57 and 125 - 163, must be re-considered. [8] In dealing with paragraphs 36 - 57 [facts pertaining to General Military Duties and Universality of Service Principles; CAF December 1999 Universality of Service Policies; CAF Pre-December 1999 Accommodation Policies and Post December 1999 Policies; CAF November 2000 Accommodation Policies; CAF General Military Duties and Universality of Service], I note that these paragraphs address post-1996 policies, policies concerning the assignment of occupational factors (the O factor), and post-termination CAF accommodation policies. These facts are based upon the evidence adduced at the hearing, but I place no weight on these in my re-determination of the 2001 decision as only the G factor is at issue in Mr. Irvine’s case, and the post-termination policies, particularly with respect to CAF accommodation are not relevant. [9] In dealing with paragraphs 58 - 102 [Mr. Irvine’s Particular Circumstances and Relevant Medical Data], I continue to find that these paragraphs contain the facts of Mr. Irvine’s case. (ii) Legal Principles [10] In addressing paragraphs 103 - 113 [Legal Principles], I amend those that address universality of service to include my comments on these principles set out below. [11] Regarding paragraphs 114 - 121 [Analysis], I continue to find that the Commission and Mr. Irvine established a prima facie case of discrimination on the basis of disability against Mr. Irvine both in its termination of Mr. Irvine, contrary to s. 7 of the Act, and in its policies and procedures as applied to Mr. Irvine, contrary to s. 10 of the Act. [12] Regarding paragraphs 122 - 124 [Evidentiary Issues], the Commission argues that I should continue to be bound by the original decision. The Respondent has not taken specific exception to the same. I have reviewed the same and continue to maintain the same findings. [13] In dealing with paragraph 125 [Universality of Service], I reconsider it as per my discussions on Universality of Service below. [14] In dealing with paragraphs 126 - 132 [Identifying the Standards Leading to Mr. Irvine’s Release], I continue to find that these three dispositive medical assessments of Dr. Kafka, the CAD Committee and the Career Board assessed against the CAF standards being the 1979 CAF Policies and Bridging Policies, and the September 1995 Guidelines, regarding assignment of employment limitations, are at issue in this re-determination. [15] In addressing paragraphs 133 - 136 wherein the analysis outlined in Meiorin was conducted [Rational Connection and Was the Standard Adopted in Good Faith], I continue to find that the CAF standards were rationally connected to its goal of requiring that Mr. Irvine be a soldier first. As well, I continue to find that both the standards and the medical / career assessments, including the CAD Committee assignment of employment limitations, were made in good faith. [16] In addressing paragraphs 137 - 140 [the Reasonable Necessity and Accommodation portion of the Meiorin test], I continue to find that the Bridging Policies were not as accommodating as the September 1995 Guidelines. My findings in these paragraphs remain intact. [17] In addressing paragraphs 141 - 148 [Dr. Kafka’s Assessment; CAD Committee and Career Board Assessments], I continue to find that the concerns I expressed in these paragraphs are pertinent to the re-determination. In accordance with Meiorin, the standards for assessing universality of service must be as accommodating as possible, or in other words, individualized. Having found as such, a discussion of the crux of Mr. Irvine’s case and my reasons are reiterated below. [18] With respect to paragraphs 149 - 150 [Proportionate and Measured Expectations of Those With Disabilities], I continue to find that CAF’s individual testing of Mr. Irvine was applied more vigorously to exclude him from service when he was disabled than other testing was applied to able bodied members. I continue to find that the CAF should have provided Mr Irvine with further opportunity to take another EXPRES test, to the extent that such testing would have assisted with prediction of mortality and morbidity. [19] With respect to paragraph 151 of the 2001 decision, I find that it is superfluous because it deals only with the occupational factor (O factor) which was not determinative in Mr. Irvine’s release. [20] With respect to paragraphs 152 - 153 [Subjective Nature of Assignment of Limitations and Category], I continue to find that the inexact nature of category assignment by the CAF is a factor that further casts doubt upon the validity of the CAF’s category assignment of Mr. Irvine (further elaborated upon below). [21] With respect to paragraph 154 [Imposition of Medical Conditions], I do not find it necessary to maintain this concern in disposing of Mr. Irvine’s complaint, as Mr. Irvine’s access to medical information about his condition was not determinative in this case. [22] With respect to paragraphs 155 - 163 [dealing with accommodation of unfit members, deployability, retention, and costs of accommodation], I find that these paragraphs cannot be sustained in light of universality of service principles. [23] With respect to paragraphs 164 - 165 [Conclusion and Remedies], I maintain my original ruling as set out below. [24] The prior analysis is made with the express acknowledgement that a member of the CAF is liable for combat duty. I have reconsidered each paragraph of the 2001 decision in light of universality of service principles more thoroughly canvassed below. B. Reasons (i) Party Submissions Regarding Direction of the Federal Court [25] The Commission and Mr. Irvine submit that the Federal Court’s decision herein is based upon a narrow and discreet issue of law: the Court has asked the Tribunal to reconsider its decision having regard to the principle of universality of service. Given that the Federal Court has directed the Tribunal to re-consider its decision in accordance with the principles of universality of service, the Commission argues that the Court has also conversely confirmed that the Tribunal has correctly applied Meiorin retroactively. The Commission submits that the only issue for the Tribunal to decide is whether the CAF has met the third part of the Meiorin test. [26] With respect to the CAF’s duty to accommodate, the Commission submits that the exemption which the CAF enjoys pursuant to universality of service is as follows: once a CAF member is found not to meet the medical standards, and thereby does not satisfy the principles of universality of service, the CAF is not under an obligation to prove that it would suffer an undue hardship if it was required to accommodate the member through whatever means available. The Commission submits, however, that in all other respects the Meiorin test applies. In other words, the CAF still bears the onus of showing that its medical standards are reasonably necessary for the achievement of their general purpose. In this respect, the medical standards themselves must allow for individual assessment and be applied in a procedurally fair manner. [27] Conversely, the respondent argues that the medical limitation at issue, being G4 physician services required was reasonably necessary to protect the complainant and the CAF from the risks of heart failure and to preserve the principle of universality of service. It argues that the medical standard at issue constitutes a BFOR because the complainant was at a serious risk of another cardiac event. Thus, the CAF was not required to accommodate the complainant following his diagnosis of coronary artery disease (CAD) with significant risk of another event. [28] Secondly, the CAF further argues that the individual assessment conducted by the CAF’s medical officers for the purpose of diagnosing the complainant’s medical condition and estimating the risk of event recurrence is not reviewable by this Tribunal. It cites the decision of Canada (Attorney General) v. Anvari [1993] F.C.J. No. 317 (C.A.) [Anvari] as authority for this argument. [29] I will now address these arguments in re-determining this case. C. Universality of Service [30] Universality of service in the Canadian Armed Forces requires every member to be fit to be a soldier first. Universality of service is the term given to a set of principles which govern the service of members in the CAF. The Federal Court of Appeal articulated the principles in three cases decided in the early 1990s, St. Thomas, Husband and Robinson. Each of these cases turned on the issue of whether a military employment standard constituted a Bona Fide Occupational Requirement (BFOR). [31] Universality of service is comprised of three essential principles: Whatever their trade or profession might be, members of the CAF are soldiers first and foremost. The duty of a soldier is to be ready to serve at all times in any place and under any conditions. The duty is universal in that it applies to all members of the CAF. [32] In each of these trilogy cases, the Court of Appeal held that the medical standards at issue were reasonably necessary to assure the efficient and economical performance of universal military duties. As such, they were BFORs. These cases were adjudicated under the pre-Meiorin, bifurcated analysis of direct versus indirect discrimination arising out of Central Alberta Dairy Pool. In these cases, because the discrimination was direct discrimination, once a BFOR was established, the CAF was not obliged to accommodate the particular employees. The CAF had no duty to accommodate persons who did not comply with the principles of universal service. (i) The Duties of a Soldier [33] Regarding the second principle, the respondent submits that, as soldiers, members of the CAF play a unique role in Canadian society. I agree. Sections 31 and 33 of the National Defence Act, R.S.C. 1985, c. N-5, provide that any member of the Canadian Forces may be placed on active service by reason of emergency for the defence of Canada, and is at all times liable to perform any lawful duty. [34] The Federal Court of Appeal emphasized the importance of this military context in St. Thomas at p. 677: In my view, examination of this issue must take account of a contextual element to which the Tribunal did not give sufficient consideration. It is that we are here considering the case of a soldier. As a member of the Canadian Forces, the respondent, St. Thomas, was first and foremost a soldier. As such, he was expected to live and work under conditions unknown in civilian life and to be able to function, on short-notice, in conditions of extreme physical and emotional stress and in locations where medical facilities for the treatment of his condition might not be available or, if available, might not be adequate. This, it seems to me, is the context in which the conduct of the Canadian Forces in this case should be evaluated. (ii) The Duties Are Universal [35] The duties of a soldier are universal in the sense that every member of the CAF must be able to perform them. In Robinson, the Court of Appeal quashed a Tribunal decision that a seizure-free medical policy could not be justified because the Forces had not shown that it was likely that the complainant would be assigned to a combat position. The Court of Appeal held, at p. 238, that the Tribunal had erred in requiring such proof: …[T]he tribunal erred in the way it dealt with the applicant’s argument. That argument was neither hypothetical nor specious. The statute rendered Mr. Robinson liable for combat duty. It is an obligation well understood within the Armed Forces. Those serving in support roles are not exempt. Performance of the obligation depends neither on a transfer to a combat role nor on remustering. The Tribunal’s view to the contrary led to the rejection of the applicant’s argument and to the conclusion, erroneous in my view, that somehow the applicant was required to adduce additional evidence showing the number of non-combat personnel transferred to combat functions over a period of time. That view simply ignores that the obligation is one that is imposed by statute. Administrative practice cannot work a modification. The statute binds. The Court of Appeal went on to hold that the CAF was not obliged to show that the complainant was likely to be deployed to a combat role. [36] I find that the CAF was entitled to require that every member of the CAF meet these principles of universality of service. This conclusion is underscored by the stated jurisprudence, the prior human rights jurisprudence of direct discrimination relevant to the actions of the CAF in 1995 and 1996, and the direction of Mr. Justice Noël. In other words, once the CAF established a BFOR in the context of combat duty, the CAF is exempted from its duty to accommodate Mr. Irvine in non-combat duties. D. Meiorin [37] However, this finding does not end the inquiry into Mr. Irvine’s case. While the CAF is entitled to require that every member be a soldier first, it must still demonstrate, in accordance with Meiorin, that the standards that it has developed to assess universality of service allow for individual testing. I have already found, in my original decision, that the CAF has met the first two criteria of the Meiorin tests in that the 1979 Policies, the Bridging Policies and the September 1995 Guidelines were rationally connected to the CAF’s goal of requiring that Mr. Irvine be able to safely and efficiently perform his duties as a soldier, and that these standards were adopted in good faith. [38] The third portion of the Meiorin analysis requires that the impugned standards be reasonably necessary for the employer to accomplish its purpose; i.e. the safe and efficient performance of the job. The CAF must establish that it cannot accommodate the complainant and others adversely affected by the standard without experiencing undue hardship. The CAF must ensure that the procedure, if any, to assess the issue of accommodation, addressed the possibility that it may discriminate unnecessarily on a prohibited ground. Second, the substantive content of either a more accommodating standard which was offered by the CAF, or alternatively the CAF’s reasons for not offering any such standard must be assessed. As I have already found at paragraph 139 of the 2001 decision, the September 1995 guidelines, to the extent that they allowed for individual assessment, were reasonably necessary to accomplish the CAF’s goal of ensuring that members meet universality of service. Thus they evidenced a more accommodating standard in assessing members suffering from CAD than the prior 1979 standards and bridging policies. Yet the CAF failed to use a more individualized accommodating standard, such as that found in the September 1995 guidelines, in assessing Mr. Irvine, (further elaborated upon below). E. Anvari [39] The respondent submits that as per Anvari, the diagnostic testing of the CAF is beyond the expertise and jurisdiction of this Tribunal. This point of law is not cited by Noël J. as a basis for the judicial review of the original decision. For that matter, it was not argued before me at the original hearing. Thus, I do not believe that this argument is properly before me. Even if I am wrong on this point, I find that Anvari must be read in the context of the totality of the jurisprudence of the Federal Court in this area. (i) The Direction in Anvari [40] I have carefully reviewed Anvari, a case dealing with the medical inadmissibility of a potential immigrant further to the federal Immigration Act. In this case, the complaint was framed on the basis of s. 5, being the provision of goods, services, facilities or accommodation customarily available to the general public. The Court ruled that a Tribunal cannot require as a part of the bona fide justified defence that the respondent demonstrate that the standard had been applied in a reasonable fashion, or that its application was justified in the particular case. [41] Anvari must be read in conjunction with other Federal Court jurisprudence in the area. For example, in A.G. v. Levac [1992] 3 F.C.463 (F.C.A.), a case dealing with s. 7(a) discrimination wherein the CAF tried to establish a BFOR, Mr. Justice Décary, ruled that the Tribunal had not committed a reviewable error in its assessment of the medical evidence, nor reached a conclusion that it could not reasonably reach in preferring the evidence of the complainant’s physician, who had examined him, to that of the CAF’s physician, whose evidence had been based upon a review of his medical record, rather than upon an examination. Décary J.A. expressly upheld the Tribunal’s analysis of the CAF’s medical assessment. In Canada (A.G.) v. Beaulieu [1993] F.C.J. No.174, 103 D.L.R. (4th) 217 (C.A.), another case dealing with the CAF’s BFOR defence in the context of both a complaint based upon sections 7(a) and 10 of the Act, the Federal Court of Appeal held that a Tribunal could not find a complaint of discrimination invalid merely because it was persuaded that a diagnosis of disability was incorrect. Yet, the Tribunal could have been further satisfied that, either, the diagnosis was arrived at imprudently, in which case it could perhaps have spoken of a disguised discrimination and a false and hasty perception, or that the requirement was not a BFOR. For that matter, Anvari speaks of the ability of the Tribunal to deal with the discriminatory application of a standard or practice. Mahoney J.A. writes: …For jurisdiction to arise under the CHRA, the provision must have been applied in a discriminatory fashion. Unless a prima facie case of a discriminatory practice on the part of the medical officers in reaching their opinion were established, there was no onus on them to show that their opinion was bona fide justified. It may have been reached wrongly as a matter of law or it may have been reached in the teeth of the evidence and, if it was, a remedy exists elsewhere but, unless a discriminatory practice is established in the application of subsection 19(1)(a), no remedy exits under the CHRA. Put another way, the discriminatory practice mandated by subsection 19(1)(a) being bona fide justified, the question for decision under the CHRA was not whether their opinion was probably right but whether, in carrying out their duties, the medical officers engaged in a discriminatory practice that is not likewise bona fide justified. In other words, analogizing this ruling to Mr. Irvine’s case, medical officers and committees must carry out their duties in a non-discriminatory fashion. In Mr. Irvine’s case, as set out below, the officers and committees in favour of assigning him a G4 category, failed to provide Mr. Irvine with an individual assessment consistent with the most accommodating policies of the CAF. Their individual assessments did not adhere to the letter or the spirit of the individualized approach mandated by the CAF September 1995 guidelines. Their pattern of decision making and their decisions regarding employment limitations discriminated against him on the basis of disability and are caught within the purview of both sections 7 and 10 of the Act. [42] In a subsequent decision concerning s. 7 of the Act, the Federal Court Trial Division in VIA Rail Canada v. Mills [1997] F.C.J. No. 1089, in distinguishing Beaulieu, upheld the jurisdiction of the Tribunal to find that the respondent had not performed an adequate and comprehensive investigation into the medical evidence. Mr. Justice Teitelbaum wrote: There is also no suggestion in the Tribunal’s decision that it did not have regard to the material before it. The Tribunal carefully examined Mr. Mills' rather involved medical history and did not confine its discussion of the varied consultations and medical opinions to the primary August 1991 incident. The Tribunal analyzed and sifted through a diversity of relevant medical opinions, including those expressed before, during and after the August 1991 injury and abortive return to work in October 1991.... The Tribunal's finding that VIA had not performed an adequate and comprehensive investigation into the medical evidence does not therefore warrant judicial review. Here, the Court held that it was open to the Tribunal to give more weight to the opinion of a particular physician over that of another, and to prefer the evidence of physicians who had examined the complainant over that of those physicians who had conducted only a paper review. [43] Based upon the totality of the jurisprudence, and the statutory provisions of s.7 and s. 10 of the Act, it appears that the Tribunal has jurisdiction to deal with both discriminatory, and arbitrary, hasty, imprudent or inadequate medical assessments in the application of standards proffered as BFORs. To state otherwise, would be to undermine the entire purpose of human rights legislation. For example, a respondent could establish that a standard constitutes a BFOR, and then despite discriminatory, hasty or deliberate misapplication of the standard to the complainant, justify the complainant’s dismissal. In other words, the respondent would accomplish indirectly, what it is prohibited from doing directly. (ii) Application to Mr. Irvine’s Case [44] In Mr. Irvine’s case, the issue of attacking the diagnosis of CAD does not arise. The diagnosis is not in dispute. Rather, the issue remains that of whether the CAF conducted a non-discriminatory, adequate and comprehensive investigation into the medical evidence sufficient to justify its G4 employment limitation categorization and its prima facie discriminatory discharge of Mr. Irvine on the ground of disability. Did the CAF’s individual assessment of Mr. Irvine, categorizing him as G4 (subject to discharge) versus G3 (retainable for service as a soldier), meet the requirement of individual testing consistent with the most accommodating standard available as per Meiorin and the stated Federal Court jurisprudence? [45] In Mr. Irvine’s case, as per my findings of fact outlined in the 2001 decision at paragraphs 69 - 80, the CAF’s physicians recommended contradictory employment limitation categories for Mr. Irvine. Some recommended G3O3, while others, including the CAD Committee, recommended G4O3. This difference in geographic factor between G3 versus G4 was the determinative factor in Mr. Irvine’s release. For example, the CAF’s consultant and Chief of Medicine, Dr. Buchholtz, examined Mr. Irvine in November 1994. Thereafter Mr. Irvine performed exceedingly well on a treadmill test. Mr. Irvine exhibited no chest discomfort or ischemia, had lost 35 pounds, and was completely asymptomatic. Dr. Buchholtz was tempted to recommend a G3O3 category which he believed was justified in the long term [para 70-71]. However, Dr. Buchholtz wrote that Mr. Irvine’s cholesterol level was normal, when in fact in October 1994, a laboratory report confirmed that it was still high. Then on January 16, 1995, the CAF’s Dr. MacKinnon, a base examining physician, recommended a G3O3 for Mr. Irvine, finding him fit for promotion. Thus at this point, Mr. Irvine was categorized by the CAF’s physician as fit for retention and promotion. [46] However, Mr. Irvine’s case was brought to the attention of Dr. Kafka, the base surgeon. On February 7, 1995, Dr. Kafka, the base surgeon, reviewed Mr. Irvine’s chart from the perspective of risk factor control. Dr. Kafka expressed concerns about the G3 portion of the assessment. Dr. Kafka noted that Mr. Irvine was a former smoker; that in spite of significant weight reduction after the heart attack he was still heavier than he had been in 1990; and that his more recent cholesterol test showed higher cholesterol levels than those reviewed by Dr. Buchholtz in December 1994. Dr. Kafka confirmed that he had recommended a G3 category for a: small group of patients who, post bypass surgery, have no evidence of ischemia, have limited disease and have excellent control of their risk factors. W.O. Irvine will need to better control his diet and with the use of medication get his cholesterol down lower. Dr. Kafka felt that if Mr. Irvine could reach a targeted LDL level (2.6), then a G3 category would not be unreasonable subject to the provision that Mr. Irvine was to be assessed with an exercise Mibi and that Mr. Irvine be given an angiography in another year. So even at this point, Dr. Kafka was prepared to recognize a conditional G3 category. While it was conditional upon Mr. Irvine’s LDL level, his performance on another type of treadmill test (being an exercise Mibi), and an angiography, this was the view of the CAF’s own physician. This view contemplated Mr. Irvine’s retention. [47] Then, on July 4, 1995, Dr. Buchholtz again observed that Mr. Irvine had achieved an excellent exercise program and had been seen by the Dietary unit. Mr. Irvine’s total cholesterol was lowered, although his LDL, being a specific type of cholesterol, was still above the target of 2.6. Dr. Buchholtz acknowledged Dr. Kafka’s view and agreed that if risk factors were not modified, a G4 would be warranted. However, he noted that Mr. Irvine was exercising and following his diet. He felt that as long as he continued with his exercise program and risk modification, he would be fit for all activities, and a G3 would reflect his posting ability to both isolated and foreign duty. Thus, at this point, Dr. Buchholtz, with the benefit of Dr. Kafka’s view, and the benefit of accurate medical data, contemplated a G3 category for Mr. Irvine based on his current exercise and diet program. Indeed, on July 11, 1995, Mr. Irvine was geographically upgraded to G3O3 with the notation medical condition requiring closer medical supervision. [48] Thus, the CAF’s consultant and Chief of Medicine, Dr. Buchholtz, contemplated a G3O3 category for Mr. Irvine and Mr. Irvine was assigned this category. With this category, Mr. Irvine was entitled to retention in the CAF and met CAF Universality of Service criteria. [49] However, immediately thereafter, Mr. Irvine’s career officer brought his file to the attention of other CAF staff, and his medical category was placed on hold pending a review of his file by the CAD Committee at DHTS. A new change of category form was issued with a G3O3 rating, but which indicated that the category was to be reviewed by the CAD Committee. [50] On August 30, 1995, a CAD Committee reviewed Mr. Irvine’s medical file and noted that the consultant had recommended a G4O3, but if lipids come down, G3, and that a base surgeon had recommended G3O3 - closer medical supervision. Thus, the CAD Committee had two potentially conflicting employment limitation category assignments before it: one made by Dr. Buchholtz, Chief of Medicine, who had examined Mr. Irvine, and one made by Dr. Kafka, who had conducted a paper review of Mr. Irvine’s file. There is little or no evidence that the CAD Committee carefully considered that Dr. Kafka was prepared to recommend a G3 category on the basis of better LDL levels, a new exercise Mibi and an angiography. There is little or no evidence that the CAD Committee carefully considered the extent of the congruence of the two opinions and their respective bases. There is little or no evidence that the CAD Committee chose to take measures to explore whether Mr. Irvine could have met the G3 rating, contemplated by its own physicians. Rather, the CAD Committee summarily and arbitrarily assessed him as unfit for two or more specific military environments and recommended a permanent medical category of G4. [51] Further, as per the 2001 decision, this CAD decision was made in accordance with the 1979 Policies for category assignment of the CAF [para 13 - 19] and / or the Bridging Policies [paragraph 18]. These 1979 standards and bridging policies, dealing with evaluation of medical condition and assignment of employment categories, did not provide for the individualized approach contemplated by the September 1995 Guidelines [para 20 -26, 138, 139]. The September 1995 Guidelines contemplated consultation amongst CAF staff in category assignment. Specifically in relation to CAD cases, they provided that NOT all members with coronary atherosclerosis were to be released. Thus, the CAF expressly, through its physicians and its policies, contemplated that a group of CAD patients was eligible for retention and could meet Universality of Service. As well, those September 1995 Guidelines contemplated, in cases of CAD, that many factors were to be used to identify the extent of disease and the functional capacity of the member, including the seven factors set out at paragraph 25 of my initial decision. I found that the respondent did not proffer sufficient evidence of the careful consideration of at least those seven factors, by the CAD Committee, in particular, the factors that Mr. Irvine did not have ischemia; that Mr. Irvine had performed well on prior treadmill testing and ought to have been given an opportunity to perform another one pre-release, in accordance with Dr. Kafka’s early conditional assessment; that while Mr. Irvine exhibited a number of risk factors, he did not possess others such as hypertension or diabetes. Nor, is there sufficient evidence that the Committee obtained and considered carefully Mr. Irvine’s ejection fraction which would have been helpful in determining both his functional capacity and the likelihood of another event, particularly if considered in conjunction with the results of an exercise Mibi [paragraphs 93 - 95, 144 - 146]. Thus, I had already found that the respondent led insufficient evidence that the CAD Committee, in its August 30, 1995 decision, and thereafter, adhered to the most accommodating and individualized standard available in assessing persons with CAD, such as that found in the September 1995 Guidelines. As per Meiorin the CAF had the duty of applying a more accommodating standard and / or had the onus of explaining satisfactorily its failure to use such an individualized approach. [52] In contrast, Dr. Buchholtz, who after examination and follow-up of Mr. Irvine, contemplated a G3 based on his individual and careful assessment of Mr. Irvine’s condition. The CAD Committee decision struck me as having been made in a mechanical and impressionistic manner. I maintain my initial views expressed at paragraphs 143 - 150 of the 2001 decision to the extent that they relate to the geographic factor. Based on the views of Dr. Buchholtz and for all the reasons set out above, I continue to find the CAD Committee’s decision discriminatory and based upon a hasty and inadequate consideration of Mr. Irvine’s file. [53] As I have already ruled, the April 1996 Career Board review of Mr. Irvine’s file did not correct these problems. Again, this Board simply accepted the CAD Committee recommendation in mechanical fashion and assigned Mr. Irvine the permanent medical category of G4O3. It failed, as did the CAD Committee, to provide for a current individualized assessment even though the September 1995 Guidelines were in force [para 143 - 148]. [54] The respondent argues that neither further testing, nor additional time, nor different testing would have reduced or eliminated the risks posed by Mr. Irvine’s cardiac condition. In so far as this argument addresses the liability of the CAF for discrimination, it fails to acknowledge that the CAF retained a group of cardiac patients post event as being capable of fulfilling combat duties. The CAF was required to take all steps possible pre-release to ensure that Mr. Irvine’s ability to fall within this group was fully considered. The CAD Committee had to make thorough and careful consideration of at least the seven factors outlined in the September 1995 Guidelines, including current ejection fraction reading, assessment of the same in conjunction with an exercise Mibi, and thorough consultation with its own physicians including Dr. Buchholtz. The CAF’s evidence itself established that additional testing would have been helpful to the CAD Committee; i.e. exercise Mibi and angiogram as per Dr. Kafka. In Mr Irvine’s case, there was a very thin wedge between the assignment to him of a G3and a G4 rating. The CAF had to take all possible measures to fairly assess his ability to obtain a G3 pre-release and meet universality of service principles. The CAF had the onus of demonstrating that more probably than not Mr. Irvine would have received a G4 rating had such measures been attended to. Based on the facts of this case, I do not accept that the CAF met this onus. IV. Conclusion [55] For all of the reasons cited I continue to find that the CAF adversely differentiated against Mr. Irvine during Mr. Irvine’s employ, on the basis of his disability, in the stated identified policies governing Mr. Irvine as a member with coronary artery disease and in its medical assessments of his condition and in its assignments of employment limitations to him. The CAF was entitled to require that Mr. Irvine meet universality of service principles: indeed each of its standards were based on the requirement that members be fit to be soldiers first. However, the CAF failed to establish that it applied those very standards to him in a discriminatory free manner. It thus failed to establish on a balance of probabilities a BFOR with respect to either the section 7 or section 10 complaints. V. Remedies [56] Again, as per the 2001 decision, I decline to address the issue of damages at the request of the parties but retain jurisdiction to hear evidence on the same if the parties cannot reach consensus. Signed by Shirish P. Chotalia President Ottawa, Ontario February 12, 2004 Canadian Human Rights Tribunal Parties of Record Tribunal File:T584/4200 Style of Cause: Raymond Irvine v. Canadian Armed Forces Decision of the Tribunal Dated: February 12, 2004 Date and Place of Hearing: November 5, 2003 Edmonton, Alberta Appearances: Raymond Irvine, for himself Patrick O’Rourke, for the Canadian Human Rights Commission Sanderson A. Graham, for the Respondent Reference: T.D. 15/01 November 23, 2001 [1] Canada (Attorney General) v. St. Thomas and Canadian Human Rights Commission (1993), 109 D.L.R. 671 at 677 [2] Canada (Human Rights Commission) v. Canada (Armed Forces); Husband, mise en cause, [1994] 3 F.C. 188; application for leave to appeal dismissed [1994] S.C.C.A. No. 269 [3] Canada (Attorney General) v. Robinson, [1994] 3 F.C. 228; application for leave to appeal dismissed [1994] S.C.C.A. No. 309. See also Canada (Attorney General) v. Hebert et al. (1996), 122 F.T.R. 274 (T.D.)

2005 CHRT 1

CHRT

Gaucher v. Canadian Armed Forces

en

2005-01-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6523/index.do

2023-12-01

Gaucher v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2005-01-13 Neutral citation 2005 CHRT 1 File number(s) T903/2304 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ALETA GAUCHER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent RULING ON THE COMMISSION'S MOTION TO AMEND THE COMPLAINT MEMBER: Dr. Paul Groarke 2005 CHRT 1 2005/01/13 I. INTRODUCTION A. The position of the Commission B. The Respondent's position II. ANALYSIS I. INTRODUCTION [1] Aleta Gaucher filed a complaint with the Canadian Human Rights Commission in 1998 alleging discrimination under section 7 of the Act. The Commission now brings a Motion to amend the Complaint. The Complainant supports the amendment. [2] The material filed by the Commission is not entirely clear. As I understand it, the application is simply to add a reference to section 10 of the Canadian Human Rights Act in the Allegation clause of the complaint, which would then read as follows: The Canadian Armed Forces have discriminated against me on the grounds of sex, race, national or ethnic origin, marital status, family status and age by treating me in an adverse differential manner, by failing to promote me, and by refusing to continue to employ me in violation of Section 7 [and section 10] of the Canadian Human Rights Act. In the future, I would ask that the Commission file a Notice of Motion with an attachment containing the exact wording of the proposed amendment. This would be in keeping with section 3(1) of the Tribunal's Rules of Procedure. A. The position of the Commission [3] The Commission submits that the complaint is based on allegations that the employment policies of the Canadian Forces systemically discriminate against women, aboriginal women and single mothers. In paragraph 26 of it's written submissions, the Commission states that this was brought to the attention of the Respondent in a variety of ways, in both the proceedings before the Commission and an application for judicial review in the Federal Court. 26. In this case, the Respondent had notice of the systemic nature of the complaint in the pre-complaint stage by way of the affidavit of the complainant in her judicial review application as well as throughout the course of the investigation and supplementary investigation by the Commission. The written submissions refer to a number of passages in the existing documentation that contain references to the systemic nature of the Complaint. [4] The Respondent objects that most of these passages are taken from the affidavit that was provided to the Federal Court. In spite of this, it is evident that the investigation was reopened, at a relatively late stage, to collect information regarding five male employees who were allegedly promoted ahead of the Complainant. This would seem to be the point of departure for any inquiry into the systemic aspects of the complaint. The Respondent was apparently of the view that it could not provide this information under the Privacy Act without a subpoena or a warrant. [5] I think the more important factor lies in the evidentiary process. I say this because the Commission suggests that it is difficult if not impossible to investigate Ms. Gaucher's complaint without examining a number of systemic issues in the workplace. This is an inevitable part of the law of human rights and is frequently the case in those matters that come before the Tribunal. The Federal Court has held that the Commission is entitled to lead institutional and systemic evidence as circumstantial evidence, which may help to establish that an individual complainant was discriminated against. B. The position of the Respondent [6] The Respondent has opposed the application. It submits that the amendment would significantly change the nature of the complaint and prolong the ultimate resolution of it. The essential submission is that the statutory scheme must be respected. The Tribunal cannot inquire into a complaint unless it has gone through the process set out in the Canadian Human Rights Act. [7] The Respondent cites the decision of the Nova Scotia Court of Appeal in IMP Group Limited v. Dillman [1995] N.S.J. No. 326 (QL), at para. 37, where the court says: As counsel for the Company says, it was not merely an extension, elaboration or clarification of the sexual harassment complaint already before the Board. To raise a new complaint at the hearing stage would circumvent the whole legislative process that is designed to provide for attempts at conciliation and settlement. This matter did not go through the preliminary stages of investigation, conciliation and referral by the Commission to an inquiry pursuant to s. 32A of the Act. The Board dealt with a matter which had never been referred to it. The Respondent also cites my own decision in Cook v. Onion Lake First Nation [2002] CHRT 2002/04/22, where I wrote that there is a point where an amendment introduces a substantially new complaint. [8] I naturally agree with these statements of the law. The substance of the complaint must pass through the referral process. The Commission cannot bring in a new complaint after the referral, under the guise of an amendment, and circumvent its own referral process. The situation was quite different in Dillman, however, where the amendment related to an averment of facts that were not included in the original complaint. There are cases on the other side, which seem much closer to the situation before me. In Woiden v. Lynn CHRT 2002/01/23, for example, the member allowed an amendment of the complaint to include a reference to an additional section in the Act, on the basis that the facts before the Tribunal would remain the same. II. ANALYSIS [9] The jurisdiction of the Tribunal under the Canadian Human Rights Act comes from the fact that the complaint has been referred by the Commission. This provides the general context in which any request for an amendment must be considered. The Commission must have considered the essential situation that forms the subject-matter of the inquiry, when it referred the complaint to the Tribunal. This places certain limits on amendments, which must have their pedigree in the circumstances that were put before the Commission. [10] This is only one aspect of the matter however. I think that one needs to be conscious of the reality of the situation, in examining an application for an amendment. The complaint form is there primarily for the purposes of the Commission. It is a necessary first step, which raises a set of facts that call for further investigation. The complaint form provides an important starting point and is inherently approximate. It was never intended to serve the purposes of a pleading in adjudicative process leading up to a hearing. It is the Statements of Particulars, rather than the original complaint, that set the more precise terms of the hearing. [11] The parties must be aware that there is nothing unusual in the request for an amendment. The forms that come before the Tribunal are usually drawn up before the Complaint has been properly examined and all the relevant facts are on the table. It is inevitable that new facts and circumstances will often come to light in the course of the investigation. It follows that complaints are open to refinement. As long as the substance of the original complaint is respected, I do not see why the Complainant and the Commission should not be allowed to clarify and elaborate upon the initial allegations before the matter goes to a hearing. [12] I think that human rights tribunals have adopted a liberal approach to amendments. This is in keeping with the Canadian Human Rights Act, which is remedial legislation. It should not be interpreted in a narrow or technical manner. In Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.J. No. 75 (QL), at para. 50, for example, the Supreme Court approved of an amendment to a complaint that simply brought the complaint into conformity with the proceedings. I think that I am presented with a similar situation. It is merely a matter of ensuring that the form of the complaint accurately reflects the substance of the allegations that were referred to the Tribunal. [13] The Federal Court has also endorsed this approach. In Canadian Human Rights Commission et al. v. Bell Canada 2002 FCT 776, at para. 31, Justice Kelen suggests that the rule before the Tribunal and the Federal Court should be the same. The jurisprudence in human rights: . . . is echoed in the decisions of the Federal Court with respect to amendments to pleadings under Rule 75 of the Federal Court Rules, 1998. I refer to the case of Rolls Royce plc v. Fitzwilliam (2000), 10 C.P.R. (4th) 1 (F.C.T.D.), where Blanchard J. set out as a general rule that proposed amendments should be allowed where they do not result in prejudice to the opposing party . . . Justice Kelen then quotes the Federal Court of Appeal, in Canderel Ltd. v. Canada, [1994] 1 F.C. 3 (F.C.A.) at p. 10, to much the same effect. As long as they can be tracked back to the facts and allegations that went before the Commission, and do not prejudice the Respondent, amendments should be allowed. This assists all of the parties in determining the real questions in controversy between the parties. [14] As I see it, the Commission simply wants to clarify the legalities of the situation, in advance of the hearing, so that all of the parties are on notice that the Complaint raises deeper systemic issues. This is a laudable move. It is better to be explicit. I do not accept the Respondent's characterization of the request for an amendment as a request to add a new, systemic complaint to the inquiry. The chose or tort or delict before the Tribunal will remain as it was before any amendment was granted. The substance of the complaint will remain as it was before any amendment was granted. [15] I should add that I think the Commission could proceed without an amendment. The provisions in section 53 that deal with relief do not distinguish between the private and systemic aspects of a complaint and it is a mistake to draw some rigid dichotomy between complaints under section 7 and section 10. The Act is remedial and calls for a more organic approach. As a general rule, the Tribunal has an obligation to follow the substance of the complaint, wherever it leads. The issue on remedy is simply whether the corrective action that the Commission is seeking arises naturally out of the allegations before the Tribunal. This is generally determined by the facts of the case rather than the section under which the complaint was laid. [16] The decision of the Federal Court of Appeal in Canada (Attorney General) v. Robinson, [1994] 3 F.C. (F.C.A) 228, at 248, would at least implicitly support the contention that the scope of the remedial power exercised by the Tribunal is determined by the provisions of section 53, as I have suggested, rather than the section under which the complaint is laid. It would follow that systemic remedies are available, if the complaint, the ensuing investigation and disclosure process before the Tribunal indicate that they are appropriate. If the source of the alleged discrimination under section 7 lies in the system of promotions, I would think that the Tribunal has an obligation to inquire into that process. [17] The statements of particulars in the immediate case have not been exchanged. It follows that any issue with regard to the evidence that the Commission wishes to introduce or the precise remedy that it is seeking will have to be left for another day. From a practical perspective, however, one has to wonder how it is possible to inquire into the process of promotions as it affects the Complainant without looking into the process of promotions more generally? If the evidence establishes that there are deficiencies in that process, it seems to me that the Commission is within its rights to have the process corrected under section 53 of the Act. That is clearly what the Act contemplates. [18] The real issue in a case like the one before me is whether the amendment would prejudice the Respondent. This calls for an exercise of judgement, rather than a logical or linguistic analysis of the original complaint. The question is whether the proposed amendment would seriously undermine the fairness of the process. The basic principle is simple enough. If a proposed amendment opens up a new and unanticipated route of inquiry, it should not be allowed. The practical issue is usually whether the Respondent has had sufficient notice to meet the requirements of natural justice. [19] I see nothing in the amendment requested by the Commission that is prejudicial in this sense. The amendment is accordingly allowed, in the terms that I have set out. Signed by Dr. Paul Groarke OTTAWA, Ontario January 13, 2005 PARTIES OF RECORD TRIBUNAL FILE: T903/2304 STYLE OF CAUSE: Aleta Gaucher v. Canadian Armed Forces RULING OF THE TRIBUNAL DATED: January 13, 2005 <APPEARANCES: Dennis Callihoo On behalf of the Complainant Leslie Reaume On behalf of the Canadian Human Rights Commission Doreen Mueller On behalf of the Respondent

2005 CHRT 10

CHRT

Schuyler v. Oneida Nation of the Thames

en

2005-02-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7110/index.do

2023-12-01

Schuyler v. Oneida Nation of the Thames Collection Canadian Human Rights Tribunal Date 2005-02-17 Neutral citation 2005 CHRT 10 File number(s) T1014/13404, T980/10004 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE KAREN SCHUYLER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ONEIDA NATION OF THE THAMES Respondent RULING ON THE CONSOLIDATION OF COMPLAINTS MEMBER: Athanasios D. Hadjis 2005 CHRT 10 2005/02/17 [1] This ruling relates to a request by the Canadian Human Rights Commission (Commission) to have the Tribunal conduct one hearing to inquire into the Complainant's two human rights complaints against the same respondent. Her first complaint, which I will refer to as the Disability Complaint (Commission File Number 20020557), was filed on July 31, 2002. Her second complaint, which I will refer to as the Retaliation Complaint (Commission File Number 20031212), was filed on January 20, 2004. [2] The Complainant alleges in her Disability Complaint that her employer, the Respondent, discriminated against her on the ground of her disability in contravention of s. 7 of the Act. She claims that the Respondent refused to accommodate her when she returned to work after having undergone surgery and other treatments for colon cancer. [3] In the Retaliation Complaint, the Complainant alleges that the Respondent retaliated against her because she filed the Disability Complaint. She sets out a list of 30 incidents that she claims constitute retaliation. She submits that this conduct diminished her authority at work, hindered her ability to effectively carry out her duties, and negatively affected her credibility with staff and managers under her supervision. The final listed incident of retaliation is the dismissal from her job, which occurred on September 2, 2003. [4] The Commission referred the Disability Complaint to the Tribunal on August 19, 2004. The Retaliation Complaint was referred on December 20, 2004, and was accompanied by a letter from the Chief Commissioner requesting that the Retaliation Complaint be consolidated with the Disability Complaint, as the Commission was satisfied that the two complaints involve substantially the same issues of fact and law. On January 20, 2005, the Respondent notified the parties and the Tribunal that it objected to the consolidation of the two complaints, disagreeing with the Commission's position that similar issues are involved in both cases. [5] There is no specific provision in the Act regarding the power of the Tribunal to join complaints where the parties to each complaint are the same. Section 40 (4) provides that the Commission may request the Chairperson of the Tribunal to institute a single inquiry in situations where two or more complainants have each filed separate complaints against the same respondent. This is not the case here. However, as was noted by the Tribunal in Lattey v. C.P.R. and M. Douglas (February 25, 2002), T685/7301 and T686/7401 (C.H.R.T.) at para. 12, the issue of whether to hold a single hearing or multiple hearings into complaints is, in the absence of any specific statutory direction, a procedural matter that the Tribunal has the authority to address as master of its own procedure. [6] The Respondent submits that the Tribunal should refuse to hear both complaints in one hearing, since the issues being dealt with in each are substantially different. It is argued that while the Disability Complaint relates to an alleged failure to accommodate, the Retaliation Complaint concerns the termination of the Complainant's employment. The Respondent notes that the Complainant has filed an unjust dismissal complaint pursuant to the Canada Labour Code, which will be heard before an adjudicator within the next few months. [7] I do not agree with the Respondent's submission. The Retaliation Complaint deals with significantly more events than just the termination of her employment. The Complainant specifically alleges that all of the incidents detailed in the complaint, including her dismissal, constitute retaliation against her for having filed the Disability Complaint. The issue raised is not so much whether her dismissal was unjust but rather whether retaliation against the filing of the Disability Complaint constituted at least one of the factors in the alleged conduct against her, in violation of s. 14.1 of the Act. This is precisely the form of discrimination contemplated by this provision. [8] The Tribunal has had occasion in the past to rule on whether to allow the amendment of an existing complaint of discrimination in order to add a claim of retaliation under s. 14.1 (see e.g. Kavanagh v. Correctional Services of Canada (May 31, 1999), T505/2298 (C.H.R.T.); Bressette v. Kettle and Stony Point First Nation Band Council, 2004 CHRT 2; Blondin v. Purolator Courier Ltd., 2005 CHRT 7). It has been observed in these cases that it makes sense for evidence of acts made in reprisal to an existing human rights complaint, to be heard within the context of the hearing into that complaint. Before granting such amendments, however, the Tribunal should be satisfied that the respondent is not prejudiced by a lack of sufficient notice of the new allegations. The respondent must be given the chance to properly defend itself. [9] These notions can certainly be extended to the present situation. The allegations set out in the Retaliation Complaint are hardly new to the Respondent - the complaint was filed over a year ago. It has not been demonstrated to me how the joinder at this stage of two separate yet connected pre-existing complaints could potentially prejudice the Respondent in the presentation of its case. If anything, avoiding a multiplicity of proceedings would appear to be in the common interest of all parties, including the Respondent. [10] The Respondent has raised an additional submission, which relates to the Commission's authority, pursuant to s. 41 (1) b) of the Act, to refuse to deal with a complaint that could be more appropriately dealt with by another legal procedure. The Respondent takes issue with the Commission's decision to not exercise this authority and refuse to deal with the Retaliation Complaint, in light of the Complainant's pending Canada Labour Code complaint. The Respondent is in effect seeking a review of the Commission's conduct with regard to the Retaliation Complaint. However, this is a matter that falls within the exclusive purview of the Federal Court, not the Tribunal (see Eyerley v. Seaspan International Ltd., (August 2, 2000), T565/2300 (C.H.R.T.) at para. 4). I cannot therefore address this submission. [11] For the above reasons, the Commission's request to consolidate the Disability Complaint and the Retaliation Complaint is granted. The Tribunal will conduct one hearing to inquire into the two complaints. Signed by Athanasios D. Hadjis OTTAWA, Ontario February 17, 2005 PARTIES OF RECORD TRIBUNAL FILE NOS: T980/10004 and T1014/13404 STYLE OF CAUSE: Karen Schuyler v. Oneida Nation of the Thames RULING OF THE TRIBUNAL DATED: February 17, 2005 APPEARANCES: Karen Schuyler On her own behalf Daniel Pagowski On behalf of the Canadian Human Rights Commission John C. Peters On behalf of the Respondent

2005 CHRT 11

CHRT

McAuley v. Cameco Corporation

en

2005-02-23

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7106/index.do

2023-12-01

McAuley v. Cameco Corporation Collection Canadian Human Rights Tribunal Date 2005-02-23 Neutral citation 2005 CHRT 11 File number(s) T723/2802 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE Debby Mcauley Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - Cameco Corporation Respondent DECISION ON REMEDY DECISION ON REMEDY MEMBER: Dr. Paul Groarke 2005 CHRT 11 2005/02/23 [1] There was a hearing in the present case on December 4, 2003, in Saskatoon. The Respondent admitted liability and the case proceeded on the basis of an agreement on the facts. The only outstanding issue is the amount of compensation to which the Complainant is entitled for lost wages. [2] The Tribunal has encountered a variety of obstacles in trying to bring the case to its proper conclusion. By my count, and I am sure there are others, the Complainant is responsible for at least five delays in the process. Some of this may be attributable to her psychological state. The equities in the case nevertheless lie on the side of the Respondent and the Commission. [3] The Complainant takes the position that she suffers from post-traumatic stress disorder and is unable to work. She attributes this to the discrimination, which occurred between 1984 and 1996. The Respondent and the Commission have submitted that there is no evidence that the effects of the discrimination have prevented her from finding employment. They say that an award of 22,000 dollars for two years of lost wages would be sufficient. [4] Counsel for the Complainant, Mr. Korchin, has now provided the Tribunal with a medical report and an affidavit from Ms. McAuley. The parties have asked me to deal with the relevance and admissibility of this material on the basis of written submissions. Although I have received submissions from all counsel, Mr. Korchin now seems to have changed his mind on the matter. All I can say is that it is too late for this. I have already cancelled the remaining hearing days, at the request of the parties. [5] Although the affidavit from Ms. McAuley establishes her firm belief that the discrimination has had a lasting psychological effect, it does not contribute all that much to the positions taken by the parties. I cannot see any reason why the bare affidavit would not be admissible, subject to any rights of cross-examination. It has been suggested that Ms. McAuley should be spared the rigours of viva voce evidence. [6] The exhibits attached to the affidavit are more problematic. They include material from the files of Dr. Burgess, a psychiatrist, which contains the strongest statement in the Complainant's favour. In one document, Dr. Burgess states that the workplace environment was definitely a cause, the sole cause of triggering the post traumatic stress disorder. This conclusion is naturally based on information that he received from Ms. McAuley. [7] The exact words that Dr. Burgess uses may be significant. I say this because he refers to the triggering of the disorder rather than the disorder itself. This is in keeping with the position of the Respondent, which has suggested that other factors contributed to the origins of the disorder. The situation is further complicated by the fact that the material from Dr. Burgess is taken from correspondence regarding a complaint that Ms. McAuley filed with the College of Physicians and Surgeons. [8] The medical report consists of a brief letter from Dr. Li, a psychiatrist, who apparently saw the Complainant four years after she left Dr. Burgess. It contains only the most general evaluation of the situation and is of little assistance without the material supplied by Dr. Burgess. The medical information, taken as a whole, might be sufficient to establish that the precipitating cause of any post-traumatic stress disorder lies in the discrimination. It does not comment on the longevity of such a cause. [9] Mr. Garden, for the Respondent, argues that the medical evidence is inadmissible. His submission is based primarily on the fact that the Respondent has not had an opportunity to investigate the Complainant's psychological condition and obtain its own advice on the matter. It would simply be unfair to let the Complainant lead this evidence without giving the Respondent an opportunity to reply. [10] This kind of argument is based on the principles of natural justice. There are other terms, like fundamental justice or even due process, that may be helpful. At the end of the day, however, the question is simply whether the process is fair. This calls for an exercise of judgement, which takes into account the various factors that arise in the case. I agree with counsel that any questions of fairness must be decided in the specific context of each case. [11] I do not think it would be fair to let the Complainant introduce this kind of psychiatric evidence without giving the Respondent an ample opportunity to respond. The Respondent submits that this would require some kind of independent psychological examination. Ms. McAuley has wavered on this question. At one point, she was unwilling to submit to such an examination. At another point, her lawyer was unable to obtain instructions. At yet another point, she appeared to say yes, but with conditions that would at least symbolically leave her in control of the process. I cannot accept these conditions. [12] The best that can be said is that the Complainant is extremely reluctant to submit herself to any kind of independent medical or psychological examination. I do not take issue with her feelings on this account. Psychological records provide the most personal accounts of our individual lives. In a society that values privacy and personal autonomy, public policy militates against any order that would compel an individual to share such records with a stranger. There is no doubt in my mind that any psychologist or psychiatrist retained by the Respondent would be a stranger within the meaning of these words. [13] There are significant differences between a psychological and a medical examination. I am quite sure that a psychologist or psychiatrist would be uncomfortable with the idea that a patient can be compelled, as a matter of force, to submit to the kind of probing encounter that is necessary to establish the origins of a psychological disorder. For a fuller discussion of these issues, I would refer the parties to my ruling in Day v. Department of National Defense, No. 4 (2002/12/18). [14] There is some recognition of these issues in Bion v. Sehok, QB 1998 SASK. D. 770.45.20.00-01 (QL), which was cited by counsel for the Complainant. I do not accept, however, that it would be reasonable to allow the Complainant or some independent body to nominate the examining psychiatrist or psychologist. I realize that the Complainant does not trust the legal or medical process. This is regrettable but does not alter the situation. It would not be fair to the Respondent to deprive it of the right to choose its own expert, unless compelling grounds have been advanced for doing so. In any event, the issues that arise in the present case go far beyond the identity of the Respondent's proposed expert. [15] There is no need to discuss the jurisdiction of the Tribunal to order a psychological examination. All three counsel seem to agree that it would not be in Ms. McAuley's psychological interests to submit to such an examination. I think their views deserve a certain measure of respect. There is an element of professional and even moral judgement that comes into play in dealing with these kinds of issues, which takes lawyers beyond the narrow self-interests of the parties. In the circumstances, I do not think it is in the interest of the Complainant, or the larger public interest, to require her to submit to the potential indignity of an independent psychological examination. [16] On the medical issue, this is where the matter rests. I have the psychiatric information tendered by the Complainant. The problem is that this information is all on one side. As I have stated, it would be a plain contravention of the most basic principles of justice to let the Complainant introduce such evidence, without giving the Respondent an equal opportunity to do so. I am accordingly of the view that the medical documents are inadmissible. [17] The second argument is advanced by Ms. Reaume, for the Commission. She simply submits that the medical information provided by the Complainant is not material to the issue that comes before me. It does not assist me in determining the amount of compensation to which the Complainant is entitled for lost wages. The Respondent and the Commission have already acknowledged that the discrimination was a proximate cause of the Complainant's condition. [18] I agree with the Commission. Even if the documents were entered into evidence, they are too general to be of much assistance. They do not address the financial question before me. I think the psychological information is too sparse and too imprecise to assist me in determining the extent to which the Respondent should be held responsible for her ongoing problems. [19] At the end of the day, I am left with the original agreement on the facts. This is sufficient to establish that the Respondent is liable for 22,000 dollars in lost wages, with interest. There is no evidence before the Tribunal that would justify a larger sum. I cannot see any reason to ask for further submissions. I will nevertheless reserve jurisdiction in the case for 30 days, to allow the parties to raise any other issues that might require the assistance of the Tribunal. Once the thirty days have elapsed, I will instruct the Registrar to issue a Notice of Discontinuance and close the file. [20] I would like to make one final comment. The human rights process is remedial. I accordingly think it is important to recognize the positive steps taken by employers in rectifying such matters. The Respondent in the present case deserves considerable credit for accepting its responsibilities and adopting a constructive approach to the resolution of the complaint. I appreciate the work of all counsel on the file. Signed by Dr. Paul Groarke OTTAWA, Ontario February 23, 2005 PARTIES OF RECORD TRIBUNAL FILE: T723/2802 STYLE OF CAUSE: Debby McAuley v. Cameco Corporation, DATE AND PLACE OF HEARING: December 4, 2003 Saskatoon, Saskatchewan DECISION OF THE TRIBUNAL DATED: February 23, 2005 APPEARANCES: Laurie Korchin On behalf of the Complainant Leslie Reaume On behalf of the Canadian Human Rights Commission A. Robson Garden On behalf of the Respondent

2005 CHRT 12

CHRT

Mellon v. Human Resources Development Canada

en

2005-02-23

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7108/index.do

2023-12-01

Mellon v. Human Resources Development Canada Collection Canadian Human Rights Tribunal Date 2005-02-23 Neutral citation 2005 CHRT 12 File number(s) T928/4804 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNEMary Mellon Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - HUMAN RESOURCES DEVELOPMENT CANADA Respondent RULING ON THE QUALIFICATION OF THE WITNESS AS AN EXPERT PANEL/MEMBER: Michel Doucet 2005 CHRT 12 2005/02/23 [1] The following ruling deals with a request by the complainant that one of its witnesses, Mr. William Wilkerson, President of Global Business and the Economic Roundtable on Addiction and Mental Health, be qualified as an expert in the field of managing mental health issues in the workplace. [2] The Respondent opposed this request. It referred us to three authorities: R. v. Mohan, (1994) 80 C.C.C. (3d) 401, a criminal case, Mayfield v. Mayfield, [2001] O.J. No.2212, a civil matter and the Tribunal's decision in Public Service Alliance of Canada v. Minister of Personnel for the Government of the Northwest Territories, decided on August 27, 2001. [3] The Mohan decision in particular deals with factors to be applied in deciding whether expert evidence is admissible. According to the decision, admission of expert evidence depends on the application of the following criteria: relevance; necessity in assisting the trier of fact; the absence of any exclusionary rule; a properly qualified expert. [4] In applying the Mohan criteria in a Tribunal setting, we must always remember that we are not dealing with the admission of expert evidence in a trial by jury setting and that the issue of the qualification of the expert cannot be considered in a voir dire, where the judge involved has the opportunity to assess the evidence to be given and apply to it the Mohan criteria. [5] As stated by my colleague, Paul Groarke, in the PSAC decision: The purpose of expert evidence is to assist an adjudicative body in deciding the facts of the case. It does so by providing the trier of facts with knowledge and ready-made inferences which stand outside the scope of their experience. It follows that experts have a special role in litigation which relies on statistical and scientific evidence. The issue in each instance is whether the evidence is necessary to decide the issues in the case. It is important to distinguish between the issues which arise on an application for leave to call witnesses and the issues which arise with respect to the admissibility of their testimony. Although it is inevitable that there will be some blurring of the line between the two areas, issues with respect to the relevance and admissibility of an expert's testimony are more properly decided when the witness is called. [6] Counsel for the Respondent appeared to take the position that the relevant question was whether the proposed evidence was necessary in assisting the Tribunal to decide the issue. It is important to remember that a Tribunal is not in a position, at the qualification stage, where it can fully assess the reliability of the proposed witness' evidence. The most that can be expected at this stage is for the Tribunal to address the issue whether this testimony would logically contribute to the case of the party calling the witness. Paraphrasing my colleague Paul Groarke: It is accordingly sufficient if it can be reasonably said that the expert's testimony is needed to determine one of the factual issues in the case. [7] In order to do this and in all fairness to the opposing party it is important that the Tribunal and the opposing party have access to the substance of the expert's proposed testimony. That is why the Tribunal in its Interim Rules of Procedure provides at rule 6(4): 6(4) Where a party has given Notice of its intention to call an expert witness under 6(1)(f), it shall, in addition to the summary required under 6(1)(f), serve and file a report not less than ten days before the commencement of the hearing which report shall, be signed by the expert, set out the expert's name, address and qualification; and set out the substance of the expert's proposed testimony. [8] In this case, counsel for the complainant did not provide a Notice of its intention to call an expert witness, nor did he file a report of the substance of the expert's proposed testimony. This being the case, the Tribunal will not qualify this witness as an expert witness. Signed by Michel Doucet OTTAWA, Ontario February 23, 2005 [9] CANADIAN HUMAN RIGHTS TRIBUNAL [10] PARTIES OF RECORD [11] TRIBUNAL FILE NO.: T928/4804 [12] STYLE OF CAUSE: Mary Mellon v. Human Resources Development Canada [13] RULING OF THE TRIBUNAL DATED: February 23, 2005 [14] APPEARANCES: [15] Craig Spencer For the Complainant [16] Chris Leafloor For Human Resources Development Canada [17] PARTIES OF RECORD TRIBUNAL FILE: T928/4804 STYLE OF CAUSE: Mary Mellon v. Human Resources Canada DATE AND PLACE OF HEARING: February 23, 2005 APPEARANCES: Craig Spencer For the Complainant Chris Leafloor For Human Resources Development Canada

2005 CHRT 13

CHRT

Smith v. S & S Delivery Service Ltd.

en

2005-03-02

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7101/index.do

2023-12-01

Smith v. S & S Delivery Service Ltd. Collection Canadian Human Rights Tribunal Date 2005-03-02 Neutral citation 2005 CHRT 13 File number(s) T962/8204 Decision-maker(s) Groake, Paul Dr. Decision type Decision Decision status Final Grounds Disability Decision Content Between: Fred Smith Complainant - and - Canadian Human Rights Commission Commission - and - S & S Delivery Service Ltd. Respondent Decision Member: Dr. Paul Groarke Date: March 2, 2005 Citation: 2005 CHRT 13 Table of Contents I. Introduction. II. Facts. III. Law and Analysis. I. Introduction [1] Fred Smith has filed a complaint against S & S. Delivery Service, his former employer. S & S is owned by Brian Slobodian. Mr. Smith worked for Mr. Slobodian from March 2001 to April of 2002. He worked five days a week, sometimes on Saturday. He was paid by mileage. [2] The complaint states that S & S Delivery: . . . has discriminated against me in violation of sections 7 and 10 of the Canadian Human Rights Act by requiring me to submit to a drug test prior to allowing me to return to work following an injury and by failing to return me to work because of a perceived disability (drug dependency). It will become apparent that the situation is not so simple. [3] The hearing in the case took less than a day. Mr. Smith and Mr. Slobodian were the only witnesses. They had no lawyers. Their submissions crossed into testimony and it was difficult to keep the inquiry within its proper legal bounds. II. Facts [4] Mr. Smith and Mr. Slobodian never liked each other. On April 23rd, 2002, the truck that Mr. Smith was driving hit a pothole. It must have been a terrible pothole. Mr. Smith’s head hit the roof of the cab and his neck was badly injured. He was off work for six weeks and filed a claim with the Worker’s Compensation Board. They provided him with six thousand dollars. [5] Mr. Slobodian is convinced that Mr. Smith wasn’t wearing a seat belt when his head hit the roof. He admitted that he doesn’t wear a belt when he drives at home. Mr. Smith nevertheless insists that he was wearing a belt at the time of the accident. He adds that the real problem lies in the construction of the seat, which is mounted on springs. So in theory his head would have hit the roof, even if he were attached to it. [6] On June 4, 2002, Mr. Smith was given a letter from his physiotherapist saying he was fit to go back to work. He took the letter to S & S Delivery. An hour and a half later, he received a call telling him that there was a letter from the company in the office. The letter was from Mr. Slobodian and indicated that there was a new drug policy. Mr. Smith would not be accepted back at work until he took a drug test. [7] Mr. Slobodian states that he instituted the drug policy while Mr. Smith was on compensation. There is more to it, however. Mr. Slobodian candidly says that he was hoping that Mr. Smith would fail the drug test. He had seen him come into the yard with bloodshot eyes. Mr. Slobodian nevertheless states that other employees were asked for drug tests. [8] Mr. Smith thinks there was no drug policy. He says no one else was tested. I do not know if there was a real policy; if there was, it was more ad hoc than it should have been. It was nevertheless apparent, even at the hearing, that Mr. Slobodian has a temper. Mr. Slobodian says that he and Mr. Smith constantly butted heads. I think Mr. Smith agrees. [9] Mr. Slobodian had a problem with Mr. Smith’s attitude. He says that he heard from customers that Mr. Smith was saying things about his operations and his equipment. He mentioned a call from someone at Revelstoke. Mr. Slobodian had six weeks to think about it, while Mr. Smith was on Worker’s Compensation. He didn’t want Mr. Smith back. [10] Mr. Smith refused to budge. He took the position that he was still an employee of S & S Delivery. He went to a doctor and requested a drug test. The results were given to Mr. Slobodian on June 11th. They were negative. Mr. Smith asked for work. Mr. Slobodian said he would call him. He never did. [11] Mr. Smith phoned the office a number of times. At the end of June, he saw a newspaper ad in the StarPhoenix from S & S looking for a driver. So he knew there was work. Mr. Smith tried to contact Mr. Slobodian, without success. Communications ceased. There was another ad in August. [12] The fight was not over. Mr. Smith went to Labour Standards at the end of June. Neil Klassen, the labour standards officer, said that he was entitled to two weeks pay in lieu of notice. Mr. Klassen discussed the matter with S & S and after legal threats from the Respondent, and an appeal, Mr. Smith received a cheque for two weeks pay. At the end of August, he filed a complaint with the Canadian Human Rights Commission. [13] Mr. Smith now wants his wages for the period between June and September. Mr. Slobodian feels that this is piling on. Mr. Smith has already collected twelve thousand dollars from Worker’s Compensation and something like 1500 dollars for salary in lieu of notice. Although he does not cite any law, Mr. Slobodian argues that Mr. Smith accepted that the job was over in June, when he went to Labour Standards in June and requested pay in lieu of notice. [14] There may be something to this line of argument. Mr. Smith said that all Mr. Slobodian had to do was tell him, face to face, that he was terminated. He insisted on this, however. Mr. Slobodian conceded at the hearing that he should have been more forthright when Mr. Smith came to see him on June 5th. He should have told Mr. Smith that he was terminating his employment. He should have paid him the salary in lieu of notice. But he does not think it is fair to ask anything more of him. III. Law and Analysis [15] The complaint was laid under section 7 and section 10 of the Canadian Human Rights Act. Section 10 refers to an employment policy or practice. The argument is that the drug policy, if there was one, discriminated against those with a dependency on drugs. [16] Mr. Smith had little if anything to say on this aspect of the case, and I cannot see any reason to discuss it. Both men agreed that drug testing is standard in the industry, at least for drivers who cross the border into the United States. In Milazzo v. Canadian Human Rights Commission and Motor Coach Canada, 2005 CHRT 5, the Tribunal recognized the legitimacy of such conditions in the transportation industry. [17] The real issue lies under section 7(a) of the Canadian Human Rights Act. That provision states: It is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual . . . on a prohibited ground of discrimination. [18] The allegation is that S & S refused to continue Mr. Smith’s employment on the basis that he might use drugs. [19] The facts do not support this kind of assertion. The situation might be different if there was evidence that Mr. Slobodian had a prejudice against drivers who might have used drugs. As it stands, however, the evidence merely suggests that Mr. Slobodian didn’t want Mr. Smith coming back to work. They had become enemies. The drug test was really beside the point. It was merely a ruse, a ploy to keep Mr. Smith out of the company. [20] The problem goes deeper, however. I cannot see how Mr. Slobodian’s conduct comes within the meaning of the term discrimination. The Merriam-Webster Online Dictionary states that discrimination consists, in one sense, of treating someone differently on a basis other than individual merit. It then gives two examples: to discriminate in favor of your friends and to discriminate against a certain nationality. [21] The Compact Oxford Dictionary provides a similar definition. It states that discrimination consists of making an unjust distinction in the treatment of different categories of people, especially on the grounds of race, sex, or age. This reflects the contemporary legal use of the word. The idea is that a person is being treated differently because he is a member of a certain group. [22] The complaint alleges that Mr. Slobodian refused to continue to employ Mr. Smith because he thought that he used drugs. I cannot see this. All of the evidence suggests that the dispute between Mr. Smith and Mr. Slobodian was entirely personal. Mr. Slobodian never liked Mr. Smith. He thought that Mr. Smith lied when he filed his claim with Worker’s Compensation. Mr. Slobodian may have been wrong in this; he admits that he has no proof, but the point is that his resentment was specific to Mr. Smith. It did not relate to his membership in a group. [23] There might be an argument that Mr. Slobodian treated Mr. Smith differently because of the accident. This might be construed as discrimination on the basis of a disability. I suppose it is possible that Mr. Slobodian had it in for anyone who was unlucky enough to be injured on the job. Perhaps he saw this as a mark against his company. Or was concerned about the financial implications. This is mere speculation however. [24] In the circumstances, I do not think that the case falls under section 7 of the Canadian Human Rights Act. This is a private dispute, between two men who dislike each other. Mr. Smith may or may not have grounds for a lawsuit. But that is another matter. The Complainant has not established that he was treated differently because he was a member of an identifiable group. There are none of the comparisons that the law of equality requires. This is essential. [25] The Tribunal is not a court. There is a public interest component in the human rights process, which distinguishes it from private litigation. This is true, even when the issues are, for all practical purposes, exclusive to the parties. The point is fundamental. The human rights process engages larger interests, which concern everyone in society. It should not be used, for the purpose of trying a private claim in contracts or some other area of the law. [26] I am not sure that I can say that much to appease either of the parties. I think that Mr. Smith and Mr. Slobodian probably need to move on to other things in their lives. The complaint is dismissed. Signed by Dr. Paul Groarke Tribunal Member Ottawa, Ontario March 2, 2005 Canadian Human Rights Tribunal Parties of Record Tribunal File: T962/8204 Style of Cause: Fred Smith v. S & S Delivery Service Ltd. Decision of the Tribunal Dated: March 2, 2005 (Written decision forwarded to the parties on March 4, 2005) Date and Place of Hearing: February 28, 2005 March 2, 2005Saskatoon, Saskatchewan Appearances: Fred Smith, for himself No one appearing, for the Canadian Human Rights Commission Brian Slobodian, for the Respondent

2005 CHRT 14

CHRT

Brooks v. Department of Fisheries and Oceans

en

2005-03-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7103/index.do

2023-12-01

Brooks v. Department of Fisheries and Oceans Collection Canadian Human Rights Tribunal Date 2005-03-10 Neutral citation 2005 CHRT 14 File number(s) T838/8803 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CECIL BROOKS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - DEPARTMENT OF FISHERIES AND OCEANS Respondent RULING ON THE QUESTION WHETHER THE TRIBUNAL HAS THE POWER TO AWARD COSTS MEMBER: Dr. Paul Groarke 2005 CHRT 14 2005/03/10 [1] The following ruling deals with the question whether the Tribunal has the power to award costs. I have already ruled on the matter in Brown v. RCMP, 2004 CHRT 30, where I found that the Tribunal had a residual power to award costs. After reviewing the submissions on both sides, I find myself in the same position in the present case. [2] The Respondent has relied principally on Digby Municipal School Board v. CUPE, Local 118 (1982), 135 D.L.R. (3d) 582 (N.S.C.A.), which was upheld by the Supreme Court at (1983), 1 D.L.R. (4th) 1. Although the Digby decision dealt with the jurisdiction of the Labour Relations Board, it contains a convincing account of the older law. This body of law stipulates that an adjudicative body with statutory authority has no power to award costs unless the legislation bestows it with that power. [3] I am familiar with this jurisprudence. As it turns out, the Respondent has also relied on my decision in Brown, at para. 70, where I said: The power to award costs cannot be found in the Act. It is simply not there . . . If Parliament had intended to give the Tribunal the power to award costs, it would have done so, in accordance with the rules and conventions governing the matter. I naturally accept this assertion. I agree that the Canadian Human Rights Act does not give the Tribunal the express jurisdiction to award costs. [4] That is not the end of the matter. I have to take issue with the position taken by the Respondent in paragraph 12 of its submissions, where it states: Human rights legislation in most provinces contains express provisions with respect to costs. This confirms that when the legislature intends to grant a human rights tribunal the jurisdiction to award costs, it does so expressly. In the absence of an express provision, Parliament must not have intended the Tribunal to have jurisdiction to award costs. I do not agree that the second proposition follows from the first. [5] The point is that I limited my remarks, in Brown, to the assertion that Parliament did not intend to give the Tribunal a power to award costs in the circumstances that existed at the time the legislation was drafted. It may be a fine point, but this does not mean that it intended to deprive the Tribunal of such a power in the circumstances that exist in Brown and the present case. The practice of the Human Rights Commission has evolved over time and the situation is not the same as it was, when the legislation was passed. [6] It will be apparent that my ruling is restricted to those cases in which the Commission does not appear. Although Parliament did not give the Tribunal an express power to award costs, I think there is a negative thought in the Act that suffices to demonstrate its intentions. One of those intentions, at least in those cases where the Commission appears, is that a successful Complainant will not be burdened by legal fees. I think it is somewhat arbitrary to make a distinction between Complainants who have the benefit of the Commission's presence and those who are required, by force of circumstances, to retain their own lawyer. [7] It comes down to a matter of representation. The law of human rights has become relatively complex, and the experience of the Tribunal in dealing with lay litigants has demonstrated that the efficacy of the process depends to some extent on the assistance of counsel. This is particularly true in the circumstances of the present case, which involved a detailed review of Mr. Brooks' employment history. In a case where the Commission decides not to appear, it seems to me that a Complainant is entitled to legal representation. It follows that someone must pay for that representation. [8] Mr. Bagambiire is reluctant about the public release of his accounts. I think it is important however that the reality of the situation be put squarely before the Federal Court, should the matter be reviewed. Mr. Brooks has been awarded five thousand dollars for hurt feelings, the maximum under the old Act, on the consent of the parties. I do not know what the costs would be, after taxation, but the accounts that have been entered into evidence certainly suggest that the Complainant's legal fees could reach a hundred thousand dollars. [9] I think this is enough to make anyone pause. The failure of the Tribunal to award costs in the present case would not only penalize a successful Complainant. It would also discourage complainants from coming forward in the future. It seems to me that this runs counter to both the plan of the Act and the existing jurisprudence. I cannot see how the Tribunal can endorse a situation where a successful Complainant incurs a loss, as a result of legal fees that must be paid to bring a matter to a successful conclusion. This would defeat the purposes of the legislation. [10] The caselaw establishes that the principle of recovery under the Act is restitutio in integrum. The provisions of the Canadian Human Rights Act relating to remedy are extremely broad and contemplate that a successful complainant will recover any and all expenses related to the litigation. I cannot bring myself, as a point of law, to interpret the word expenses in a way that includes legal fees. It nevertheless strikes me as rather strained to suggest that Parliament went out of its way to ensure that a Complainant would recover all of his expenses but none of his legal fees, in a case where he clearly needs a lawyer. [11] I should note that the Respondent also raises a more technical issue. It is evident, from Banca Nazionale v. Lee-Shanok, [1988] F.C.J. No. 594 (QL) and Oasis Hotel Ltd. v. Zurich Insurance Co. [1981] B.C.J. No. 690 (QL), both of which I cite in Brown, that there is another source of the power to award costs. This comes from equity. The question is whether the remedies available to a successful Complainant under the Canadian Human Rights Act can be described as equitable. The Respondent says no. [12] It is true that the Tribunal is a statutory body, which only has the powers granted to it under the Canadian Human Rights Act. The Act is remedial, however. It deals with human rights, which are also known as the rights of the person. This law is not part of the ordinary law. It is fundamental. The significance of this law has been recognized in the domestic and international arena. It forms part of the jus cogens. [13] This is where the Respondent's analysis founders. The principal decision cited by the Respondent, Digby Municipal School Board v. CUPE, supra, falls outside the law of human rights. Although the courts are in a better position to decide the equitable issue, it seems to me that the subject matter of the Canadian Human Rights Act distinguishes it from other pieces of legislation. It is well settled law that a literal approach is out of place in the context of the Act. I do not think that Parliament intended that the law of equality would be frustrated by an overly fastidious reading of the niceties of the legislation. [14] I think the Tribunal has an obligation to protect the efficacy and integrity of the Canadian Human Rights Act. The entire purpose of the Act is to provide a meaningful remedy for those who have suffered discrimination. I do not see how this is possible, at least in a case where the Commission decides not to appear, without an award of costs. The idea that a complainant who has been discriminated against should be required to pay something in the order of a hundred thousand dollars, for a five thousand dollar claim, and the full gamut of hardship that comes with litigation, is untenable. The cure is worse than the disease. [15] Although the provisions of the Charter of Rights and Freedoms might have some bearing on the question before me, this was never raised by the parties. I will accordingly leave it for others to investigate this aspect of the matter. Signed by Dr. Paul Groarke OTTAWA, Ontario March 10, 2005 PARTIES OF RECORD TRIBUNAL FILE: T838/8803 STYLE OF CAUSE: Cecil Brooks v. Department of Fisheries and Oceans RULING OF THE TRIBUNAL DATED: March 10, 2005 APPEARANCES: Davies Bagambiire For the Complainant Scott McCrossin Melissa Cameron For the Respondent

2005 CHRT 15

CHRT

Communications, Energy and Paper Workers Union of Canada v. Bell Canada

en

2005-01-28

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7097/index.do

2023-12-01

Communications, Energy and Paper Workers Union of Canada v. Bell Canada Collection Canadian Human Rights Tribunal Date 2005-01-28 Neutral citation 2005 CHRT 15 File number(s) T503/2098 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA AND FEMMES-ACTION Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent RULING ON ADMISSIBILITY OF EXPERT TESTIMONY PANEL: J. Grant Sinclair Pierre Deschamps 2005 CHRT 15 2005/01/28 [1] Bell has brought a motion requesting that the proposed expert testimony of Dr. Lawrence Gould not be received in evidence by the Tribunal because the subject of his testimony is one within the Tribunal's own knowledge and experience. In support of its motion, Bell relies on the Mohan decision and argues that Dr. Gould's testimony or evidence is not necessary to assist the Tribunal in making a final determination on the issue of interest. [2] Under section 53(4) of the CHRA, as we have discussed this many times in the last few days, the Tribunal may make an award of interest and determine the rate of interest and the period of interest that it considers appropriate subject to Rule 9.12 of the Tribunal's Rules of Procedure, which provides for a specific rate and an interest period unless the Tribunal orders otherwise. CEP has come here asking that the Tribunal order otherwise and relies on Dr. Gould's expert evidence to establish the rate and method of calculation of interest as it should apply in this particular case. [3] Dr. Gould has been qualified as an expert in finance by this Tribunal. In doing so, the Tribunal heard evidence from Dr. Gould that the matters of interest and the method of calculation of interest are an integral part of finance and financial expertise, as he has described it. On the basis of this evidence and evidence of his academic qualifications and experience, he was accepted as an expert to testify with respect to the appropriate interest rate and method of calculation. [4] Section 50(3)(c) of the CHRA provides that the Tribunal may receive and accept any evidence and other information that the Tribunal sees fit whether or not that information would be admissible as evidence in a court of law subject to the law of privilege. In our view, as we indicated yesterday when the motion was being argued, this is the starting point for determining the admissibility of expert evidence. [5] Going back to Mohan, it sets out four criteria to be considered with respect to the admissibility of expert evidence. Those are: (a) relevance, (b) necessity in assisting the trier of fact, (c) the absence of any exclusionary rule and (d) a properly qualified expert. At this point (a), (c) and (d) are not in issue and only (b) is the question that has to be determined. In our opinion, in light of section 50(3)(c) of the Act, Mohan is not strictly transferrable when the question of the admissibility of expert testimony arises before the Tribunal. [6] However, given the facts of this case, the nature of Dr. Gould's proposed evidence and without elaborating any further on how section 50(3)(c) interacts with Mohan, we are satisfied that the Mohan criteria can be used here and criteria (b) is answered in favour of admitting Dr. Gould's expert evidence. [7] With respect to the necessity in assisting the trier of fact, the Court stated in Mohan that what is required is that the opinion be necessary in the sense that it provide information which is likely to be outside the experience and knowledge of a judge or jury or the trier of fact. In making that statement, the Court also referred to the case of R. v. Abbey. In that case, the Court said the evidence must be necessary so the trier of fact can appreciate the technical nature of the matters in issue. [8] In our view, because of the complexity of the questions that Dr. Gould proposes to deal with and the issues to be decided, the Tribunal has concluded that his expert testimony will be useful to assist the Tribunal in deciding the issues that arise with respect to an appropriate award of interest. We also have concluded that the subject matter addressed in his report is outside our expertise and knowledge. Accordingly, Bell's motion is dismissed and Dr. Gould's evidence will be received by the Tribunal. Signed by J. Grant Sinclair, Chairperson Signed by Pierre Deschamps, Member OTTAWA, Ontario January 28, 2005 PARTIES OF RECORD TRIBUNAL FILE: T503/2098 STYLE OF CAUSE: Communications, Energy and Paperworkers Union of Canada and Femmes-Action v. Bell Canada DATE AND PLACE OF HEARING: January 27, 2005 Ottawa, Ontario RULING OF THE TRIBUNAL DATED: January 28, 2005 (Written decision forwarded to the parties on March 11, 2005) APPEARANCES: Peter Engelmann Fiona Campbell For Communications, Energy and Paperworkers Union of Canada Odette Gagnon For Femmes-Action Andrew Raven Patrick O'Rourke K.E. Ceilidh Snider For the Canadian Human Rights Commission Peter Mantas Guy Dufort George Karayannides For Bell Canada

2005 CHRT 16

CHRT

Buffett v. Canadian Armed Forces

en

2005-03-21

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7099/index.do

2023-12-01

Buffett v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2005-03-21 Neutral citation 2005 CHRT 16 File number(s) T976/9604 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE TERRY BUFFETT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent PRELIMINARY MOTION SEEKING THE DISMISSAL OF THE COMPLAINT MEMBER: Michel Doucet 2005 CHRT 16 2005/03/21 I. INTRODUCTION II. THE FACTS A. The Canadian Health Care System B. The Canadian Armed Forces Health Services C. Canadian Forces Spectrum of Care Policy D. Dependant Care E. The Complainant III. THE RESPONDENT'S ARGUMENTS IV. THE COMMISSION'S ARGUMENTS V. THE ISSUES ON THE PRELIMINARY MOTION VI. THE DECISION I. INTRODUCTION [1] On February 10, 2005, the Respondent, the Canadian Armed Forces, brought a preliminary motion to have the complaint of Terry Buffett (the Complainant) dismissed. It is the Respondent's position that the alleged discrimination does not constitute a denial of an employment benefit on one of the enumerated grounds under section 7 of the Canadian Human Rights Act, R.S. 1985, c. H-6. It argues that since there is no employment relationship between the Respondent and the Complainant's spouse, the conduct does not fall within the course of employment. Furthermore, the Respondent adds that the provision of benefits to only its members under the Canadian Forces Health Services Plan is a distinction based solely on employment status which is not an enumerated ground under the Canadian Human Rights Act. [2] The Respondent further indicated that the provision of insured health care benefits by the Canadian Armed Forces is not an employment practice or policy related to employment opportunities and it does not, therefore, fall within the jurisdiction of section 10 of the Canadian Human Rights Act. [3] At the preliminary hearing, the Respondent also raised the issue of whether the Complainant had met the legal test for proving a prima facie case of discrimination. II. THE FACTS [4] For the purpose of the preliminary motion, the parties have agreed to the following facts. A. The Canadian Health Care System [5] By virtue of the Constitution Act, and as expressed in the Canada Health Act, Canada has a system of universal health care in which all provinces are responsible for the provision of essential health care to residents with financial contribution from the Federal Government. [6] The only exception to this system is those groups of persons falling directly under the control of the Federal Government, including the Canadian Armed Forces, who are exempted from coverage by the Provincial Health Care Plan. [7] The Constitution Act places responsibility upon the Federal Government for providing health care to members of the Canadian Armed Forces at public expense. The Respondent provides its members with comprehensive health care comparable to that guaranteed under the Canada Health Act. The health care services provided by the Respondent stand in the same position and have the same role as the Provincial Health Care Plan. B. The Canadian Armed Forces Health Services [8] The Canadian Forces Health Care Plan operates under the direction of the Canadian Forces Health Services Group, which is responsible for the delivery of health services to members of the Canadian Armed Forces. [9] The Respondent has developed a large infrastructure for the provision of services inside and outside Canada and operates on an annual budget in excess of 728 million dollars. [10] The Respondent strives to provide its members with access to the same health care that the average canadian would expect; however the Respondent also has added health care delivery requirements associated with the operational nature of the Canadian Armed Forces. The Respondent has a core of uniformed medical professionals and it also employs a number of civilian medical experts on a contractual basis to provide care to its members. It provides enhanced primary care services, including coverage for family doctor care, laboratories, mental health coverage, full pharmaceutical coverage, physiotherapy, social work and dental care. [11] The Respondent also relies on various agreements with civilian health care agencies to assist in providing comprehensive health care to its members. Where it is necessary for a member to utilize the services of a civilian medical professional, the civilian agency submits an invoice to the Respondent for payment. C. Canadian Forces Spectrum of Care Policy [12] The Canadian Forces Spectrum of Care Policy describes the health care benefits and services that are available and publicly funded for members of the Canadian Armed Forces. The five principles which are considered in determining the scope of benefit coverage are: the benefit is necessary for the purposes of maintaining health and mental well being, preventing disease; diagnosing or treating injury, illness or disability; the benefit sustains or restores a serving member to be an operationally effective and deployable member of the Respondent; the benefit adheres to the scientific principle of evidence - based medicine; the benefit is not for purely experimental, research or cosmetic purposes; and the benefit is funded by a single province of federal agency. [13] There is also a process within the Canadian Forces Health Services Group whereby requests for funding medical procedures, not covered by the Respondent's Health Care Plan, may be made by Canadian Armed Forces members and considered by the Respondent. D. Dependant Care [14] The Respondent does not have a program for publicly funded health care for families of its members and does not have the legislative mandate to provide medical coverage for non-members of the Canadian Armed Forces. Spouses and children of its members receive medical coverage through the Provincial Health Services Plan in the province in which they reside or through the Public Service Health Care Plan. [15] There are a number of limited and exceptional circumstances in which the Respondent's medical personnel may provide medical treatment to family members of its personnel. These are limited to emergency situations in remote locations or where families accompany a member to positions outside of Canada. E. The Complainant [16] The Complainant holds the rank of Sergeant in the Regular Force of the Canadian Armed Forces. He is currently posted at CFB Gagetown, in the province of New Brunswick and receives health care through the Respondent's Health Services Plan. Rhonda Buffett, his wife, is not a member of the Canadian Armed Forces. She is a resident of the province of New Brunswick and at the relevant time was covered by the New Brunswick Medicare Plan. [17] The Complainant and his wife have had difficulty conceiving. The Complainant's wife suffered four miscarriages early in their marriage. Following these difficulties the couple went through medical investigation to determine the cause of the problem. This medical investigation for the Complainant was covered by the Respondent's health plan. The investigation revealed that the Complainant was suffering from male factor infertility. [18] The Complainant underwent further medical treatment for his condition. He received varicocele, surgery which was funded by the Respondent's health plan. Medication, the only other treatment for his condition, was not recommended in his circumstances. [19] His physician recommended In Vitro Fertilization (IVF) and Intracytoplasmic Sperm Injection (ICSI) as his spouse's best chance at becoming pregnant. In IVF, physicians prescribe medication to the female to stimulate the production of multiple eggs, which are then retrieved from the ovaries and incubated. The sperm sample is then mixed with the woman's eggs in a Petri dish. If conception occurs a small number of the resulting embryos are placed in the female's uterus. [20] ICSI may be used with immotile sperm during In Vitro Fertilization. In ICSI, a sperm sample is assessed under a microscope. A single sperm is selected from the sample and injected, with a needle, directly into an egg. The fertilized egg is placed in an incubator. The resulting embryo is implanted into the female's uterus. [21] The Complainant requested funding from the Respondent for his wife to have IVF with ICSI. [22] The Respondent's Spectrum of Care Policy provides the following treatments for infertility: investigation, medication, surgical treatment, artificial insemination, and in vitro fertilization. However funding will be provided in this case only if the infertility is the result of double fallopian tube obstruction, for a maximum of three cycles, and to serving members, not to civilian dependents, spouses or partners of serving members. [23] The Complainant's request was denied because the beneficiary of the funding was not a member of the Canadian Armed Forces. In other words he was denied funding for IVF and ICSI because his wife is not a member of the Canadian Armed Forces and the IVF with ICSI can only be performed on a woman. If she had been a member of the Canadian Armed Forces, the agreed statement of facts indicates that her request would also have been denied because the treatment requested did not fall into the specific provision for funding, since she did not have double fallopian tube blockage. [24] The Respondent's coverage for infertility is the same as the coverage offered by the Ontario Health Insurance Plan and the Public Service Health Care Plan. No other provincial health care plan covers the cost of IVF. There are currently no medical insurance plans in Canada which cover the costs of ICSI. [25] Mrs. Buffet did request funding from the New Brunswick Medicare plan for IVF with ICSI but was denied. She also requested funding through the Public Service Health Care Plan and was also denied. [26] On May 23, 2002, the Complainant filed his human rights complaint asserting that providing funding to only female members of the Canadian Armed Forces, who suffer from fallopian tube obstruction, is discriminatory on the basis of sex, disability, and family status contrary to section 7 of the Canadian Human Rights Act. On February 3, 2004, he amended his complaint to add that the Respondent had applied a discriminatory policy contrary to section 10 of the Act. III. THE RESPONDENT'S ARGUMENTS [27] The Respondent referred to the complex set of Federal and Provincial legislation, which govern the provision of universal insured health services in Canada. It also made reference to the National Defence Act, R.S. 1985, c. N-5, which defines the Respondent's organization, administration and responsibilities. Pursuant to subsection 12(2) of this Act, the Minister responsible has the authority to make regulations for the administration and good government of the Canadian Armed Forces. Pursuant to this subsection the Queen's Regulations and Orders for the Canadian Forces, chap, 34, (the Regulation) was adopted. This regulation sets out the requirements regarding provision of health services to members of the Canadian Armed Forces. [28] Subsection 34.07(4) of the Regulation indicates that medical care shall be provided to all members of the Canadian Armed Forces at public expense. Furthermore, subsection 34.23 states that medical services may only be provided to dependents in very limited circumstances. Family members are normally requested to access insured health services through the provincial government where they reside. In the case of the Complainant's wife this would be the province of New Brunswick. The dependants are also eligible for third party insurance coverage through the Public Service Health Care Plan. [29] The Respondent, after setting out the legislative framework, spoke of the well known principle that in a discrimination case it is up to the Complainant to establish a prima facie case. In the case of this complaint this means that the Complainant must prove, on a balance of probabilities, that the actions of the Respondent constitute an employment practice which creates a distinction based on a prohibited ground. Once this prima facie case is established then the burden of proof shifts to the Respondent to show, on a balance of probabilities, a bona fide justification for its practices in relation to the Complainant. [30] According to the Respondent the claim under section 7 of the Canadian Human Rights Act should be denied because the refusal to fund the medical procedure was not in the course of the Complainant's employment. In this case, the Complainant, as an employee of the Canadian Armed Forces, requested funding for a medical procedure to be performed on his wife. Therefore, according to the Respondent, there has been no benefit denied to the Complainant by his employer in respect of his employment relationship, but rather, there has been a refusal to extend funding for medical procedures to the Complainant's wife. [31] The Respondent goes on to argue that pursuant to the legislative scheme described above, a non-member is not entitled to coverage under its medical plan and given that the benefit requested was for a non-member, this complaint is not related to a differentiation based on employment. [32] It is also the Respondent's position that the claim under section 10 of the Canadian Human Rights Act should be denied because its Health Services Plan, and the related Spectrum of Care Policy, does not deprive the Complainant or any other employee of an employment opportunity. According to the Respondent, health care benefits and services are not an employment opportunity as defined by the Act. It adds that employment opportunities are ways by which an employee is hired, promoted and trained within an organization. The Respondent argues that the purpose of section 10 is to prevent employers from having discriminatory practices or policies which affect the way they hire, train or promote employees. IV. THE COMMISSION'S ARGUMENTS [33] According to the Commission, the Respondent's arguments do not take into account the seriousness and the complexity of the complaint. It fails to take into account that the complaint is that of Sgt. Buffett, a member of the Canadian Armed Forces, and not the complaint of his spouse. The Complainant alleges that he has been discriminated against on the basis of the Respondent's application of its Health Care Plan. For the Commission, the complaint raises a host of other questions going beyond the single issue of funding for a medical procedure. [34] The Commission asserts that the Tribunal should not dismiss this complaint without a hearing and that the Respondent's request for dismissal does not meet the test set out in previous decisions where the Tribunal has stated that it should exercise its jurisdiction to dismiss a complaint only in the clearest of cases. [35] Although the parties have come to an agreement on certain facts for the purpose of this preliminary hearing, the Commission maintains that they also agreed that they would be able to expand on these facts at a full hearing of the matter. [36] The issues raised by the Complainant are, according to the Commission, live and complex issues. They cannot be narrowly boiled down to a question of whether or not the Complainant's spouse ought to be covered by the health benefit plan. The Commission consequently requests that the Respondent's application be dismissed. V. THE ISSUES ON THE PRELIMINARY MOTION [37] In its preliminary motion, the Respondent asks that the complaint be dismissed on the basis : that its refusal to fund the medical procedure did not constitute a denial of an employment benefit on one of the enumerated ground of section 7 of the Act; that the Complainant cannot make out a prima facie case of discrimination; that the provision of insured health care benefits is not an employment practice or policy related to employment opportunities and does not, therefore, fall within the jurisdiction of section 10 of the Act. VI. THE DECISION [38] Subsections 49(1) and 50(1) of the Canadian Human Rights Act, provides: 49(1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted. 50(1) After due notice to the Commission the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. [39] Taking into consideration the obligation set out in the Act that all parties should be given a full and ample opportunity to appear at the inquiry and present evidence and make representations, the Tribunal is of the opinion that it should exercise cautiously its jurisdiction to dismiss a complaint at a preliminary stage. As it was stated by my colleague Paul Groarke in Cremasco v. Canada Post Corporation, (2002/09/30 - Ruling No. 1), at paragraph 83: It would undermine the remedial character of human rights legislation, which calls for a large and liberal interpretation, to curtail the right of complainants to a hearing. [40] Accordingly, I agree with my colleague that the power of the Tribunal to dismiss a case at a preliminary stage should only be exercised in the clearest of cases. Does it make any difference that the parties have agreed to some facts for the purpose of the motion? I do not believe so in regard to the parties' own admission that they could expand on these facts at the hearing of the complaint. [41] At the hearing on the motion, the parties and the Tribunal had the following exchange: MR. PAGOWSKI: I'd make just one further submission. This just arises out of something that my friend has said, it doesn't go to the substance. THE CHAIRPERSON: No. MR. PAGOWSKI: My friend and I have had correspondence -- I'm sure my friend would agree with me here -- we've had correspondence on the issue of the factual background that would have formed this particular motion, and we had agreed that -- that that context -- the factual basis may well be expanded at the time that we get to the Tribunal hearing. So only for the purposes of this - MS RICHARDS: Yes. THE CHAIRPERSON: Because I did understand that at the last conference call, when I have said I thought the parties had agreed on all the facts, and both of you did indicate that you could expand on the facts if there was a hearing. MS RICHARDS: Absolutely, and I didn't intend to mislead you in regards to that. THE CHAIRPERSON: No, I understand that. [42] The matters raised by the Respondent in its motion are certainly very important. They raise significant issues of public interest which could have an impact well beyond the present complaint. In fairness to all the parties, the Tribunal feels that these matters should be dealt with at a full hearing of the matter during which all parties will have the opportunity to present their evidence and make legal representations. It would not be in the parties' best interest that these issues be dealt with expeditiously as a preliminary motion, certainly not when all the facts have not been submitted. [43] The preliminary motion of the Respondent is dismissed and the matter will proceed to a full hearing on the merits. The parties will provide forthwith to the Tribunal their dates of availability for a hearing of one week in the month of May or June 2005. They will also exchange and file with the Tribunal a final list of their witnesses with a resum of the evidence that these witnesses will be giving at the hearing. The parties will also conform themselves with the Tribunal's Rules of Procedure in regards to expert evidence, if any. The Tribunal is also available to deal with any matter arising from this decision or any other preliminary matters that the parties would want to raise prior to the hearing. Signed by Michel Doucet OTTAWA, Ontario March 21, 2005 PARTIES OF RECORD TRIBUNAL FILE: T976/9604 STYLE OF CAUSE: Terry Buffett v. Canadian Armed Forces DATE AND PLACE OF PRELIMINARY HEARING: February 10, 2005 Fredericton, New Brunswick DECISION OF THE TRIBUNAL DATED: APPEARANCES: March 21, 2005 Terry Buffett On his own behalf Dan Pagowski On behalf of the Canadian Human Rights Commission Elizabeth Richards Jessica Harris On behalf of the Respondent

2005 CHRT 17

CHRT

Public Service Alliance of Canada (local 70396) v. Canadian Museum of Civilization

en

2005-03-21

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7084/index.do

2023-12-01

Public Service Alliance of Canada (local 70396) v. Canadian Museum of Civilization Collection Canadian Human Rights Tribunal Date 2005-03-21 Neutral citation 2005 CHRT 17 File number(s) T915/3504 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE PUBLIC SERVICE ALLIANCE OF CANADA (LOCAL 70396) Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN MUSEUM OF CIVILIZATION Respondent RULING ON SECTION 11 MOTION MEMBER: Athanasios D. Hadjis 2005 CHRT 17 2005/03/21 I. BACKGROUND II. ANALYSIS [1] The Respondent, the Canadian Museum of Civilization (the Museum) has brought a preliminary motion requesting that the Tribunal dismiss the complaint insofar as it alleges a breach of s. 11 of the Act. In the alternative, the Museum seeks an order compelling the Complainant, the Public Service Alliance of Canada (Local 70396) (the Union), to provide detailed particulars of its s. 11 complaint. I. BACKGROUND [2] On March 6, 2000, the Union filed a complaint with the Canadian Human Rights Commission (the Commission) alleging that the Museum uses a job evaluation plan that is flawed and results in the underpayment of female jobs in relation to male jobs of comparable value, in contravention of ss. 10 and 11 of the Act. The Commission referred the complaint to the Tribunal on April 1, 2004. [3] The Museum's employees were at one time classified according to the Treasury Board Standard, which sorted jobs into various occupational groups including the CR and GT groups. It is alleged in the complaint that the CR group was composed of predominantly female jobs and that the GT group was made up predominantly of male jobs. On April 1, 1997, the Museum implemented a new job evaluation plan. The Union claims that the plan differentiates adversely against female jobs in comparison to male jobs of equal value. Certain factors that are known to measure aspects of jobs that are typically female are allegedly absent from the plan, and conversely, other factors that typically favour predominantly male jobs are taken into consideration by the plan. [4] An interesting characteristic of the new plan is that jobs are no longer divided into occupational groups. Instead, each job is individually assessed and, depending on its point rating, is assigned to one of several levels. Wage ranges increase in proportion to the assigned level. [5] The complaint form contains a table purporting to demonstrate that after the conversion to the new plan, all of the employees in the female-dominated CR jobs were given designations between levels 2 and 4, whereas only 16.7% of the male-dominated GT positions were rated at level 4 or lower. The remaining GT employees were ranked between levels 5 and 8, of which 43% were ranked at level 6. The highest maximum salary at level 4 (as indicated in the table) was $37,737.82, while the maximum available wage at level 6 was $49,111.11. [6] The complaint alleges that the male bias illustrated in these results was confirmed by an evaluation of a random mix of seven predominantly female and seven predominantly male jobs using a gender-neutral job evaluation plan jointly developed by the Public Service Alliance of Canada (the PSAC) and Deloite & Touche. The results allegedly demonstrate that two female jobs that were rated equal to two male jobs under the employer's new plan, were higher rated than the male jobs when assessed under the gender-neutral plan. Similarly, the review found that three predominantly male jobs that were higher rated than three other female jobs under the new plan, were given ratings that were equivalent or slightly lower than the female jobs, when assessed under the gender-neutral plan. [7] It is important to note here that the complaint form does not specify which jobs were the objects of this random assessment. In addition, the Union does not indicate which predominantly female jobs are undervalued when compared to the predominantly male jobs. This alleged omission in the complaint lies at the core of the Museum's present motion. [8] The Museum points out that although there is some reference in the complaint to CR and GT jobs, these classifications ceased to exist on April 1, 1997. The alleged discriminatory practice relates to the new job evaluation plan under which there is no breakdown of occupational groups. [9] The Museum contends that without a particularization of the female complainant group and the male comparator counterpart, the Union's claim of discrimination under s. 11 cannot be substantiated, especially when taking into account the Equal Wage Guidelines, 1986, SOR/86-1082, (the Guidelines) adopted pursuant to s. 27(2) of the Act. According to s. 12 of the Guidelines, where a complaint alleging differences in wages is filed by or on behalf of an identifiable occupational group, the group must be predominantly of one sex and the group to which it is compared must be predominantly of the other sex. The Museum claims that in order to comply with this provision, both the complainant group and its male comparator group must be precisely identified. [10] The Museum maintains that the present complaint does not conform to the Guidelines because it fails to identify the complainant and comparator occupational groups. Moreover, claims the employer, this omission constitutes a denial of its right to know the case it must meet and is in breach of the minimum requirements of procedural fairness. [11] The Museum has over the years repeatedly conveyed its concerns regarding the lack of particularization of these occupational groups to the Union and the Commission. A first reference appears in the Museum's initial response to the complaint, communicated to the other parties in June 2000. The same misgivings were reiterated as recently as August 2004, in a Statement of Case filed by the Museum in preparation for a case management meeting. The Museum notes that at no time along the way did the Union or the Commission provide it with the requested details. An expert's report obtained by the Commission (the Haignire Report), released in June 2003, studied whether the new classification plan tended to deprive women of employment opportunities, in breach of s. 10 of the Act. The findings of this report were later incorporated into the Commission investigator's report. In the Museum's view, neither the expert nor the Commission investigator looked into nor reported on any s. 11 contravention. The expert's report did review several specific jobs, which were identified as either female or male, but no comparison was done of these jobs' values or relative rates of pay. The investigation report recommended that a tribunal be appointed to inquire into the s. 11 portion of the complaint, but did not state which were the complainant and comparator groups. [12] The Union for its part mentioned in its Statement of Case dated July 9, 2004, that it was relying on the male-dominated and female-dominated occupational groups as defined in terms of job titles and commonality of duties and responsibilities. The Museum contends that this declaration did not provide it with any further insight as to the identification of the complainant and comparator occupational groups. [13] The issue re-emerged during the ensuing case management meeting that was conducted by the Tribunal Chairperson on August 20, 2004. Following some discussion, the Museum undertook to communicate to the other parties the point factor weightings and the sub-factor weighting scales that were applied in the implementation of the new job classification plan. Counsel for the Union had explained at the meeting that without this data, it would be difficult for his client to provide any particularization regarding the groups. After receiving this information, the Union's counsel addressed a letter dated October 15, 2004, to the Museum's counsel, in an effort to clarify the position of the Complainant on the position of complainant and comparator groups for purposes of the section 11 portion of the [...] complaint. He went on to list in his letter eleven female-dominated groups and nine male-dominated groups. At the hearing into the present motion, conducted on February 22, 2005, counsel for the Union elaborated on this statement. He confirmed the Union's position that, subject to any change in the data, each of the listed female groups constitutes a discrete, predominantly female complainant group. He added that the combined list of male occupational groups comprises a single male comparator group, in accordance with s. 14 of the Guidelines. Section 14 provides that where the comparison is being made to two or more occupational groups, those groups are deemed to be one group. [14] The Museum points out that the jobs listed in the October 15th letter do not correspond to any previously declared enumeration of jobs. In particular, the PSAC/Deloitte & Touche review of the new plan that is referenced in the complaint alluded to a different set of jobs. The occupations catalogued in a schedule attached to the Haignire Report do not correspond to those in the newer list either. For that matter, it would appear that the October 15th list does not even match the breakdown of jobs as delineated by the old CR and GT classifications. The Museum contends that the Union is now in effect attempting to amend its complaint. [15] In sum, the Museum alleges that by failing to identify the complainant and comparator groups, the s. 11 portion of the complaint does not comply with the Guidelines and is therefore invalid. As such, the Museum argues that it does not know the case it has to meet, and to require it to respond to the complaint would constitute a breach of fundamental fairness and natural justice. Alternatively, the Museum contends that the incorporation of the job titles into the complaint through the October 15th letter amounts to an amendment of the complaint that is impermissible on account of the resulting prejudice to the Museum. In addition, the Museum submits that the complaint, as amended by the October 15th letter, makes a fundamentally new complaint, which is not the one referred to the Tribunal. As a result, the Tribunal has no jurisdiction to inquire this new complaint. II. ANALYSIS [16] I have difficulty accepting the premise that the complaint is invalid. The complaint sets out a series of facts that are alleged to constitute discrimination on the basis of sex. There can be no doubt, upon reading the text, about what is being alleged. Simply put, it is claimed that the Museum adopted a job evaluation plan in 1997 that was inherently gender-biased in its formulation and application. This bias resulted in female-dominated jobs being undervalued when compared to male-dominated jobs. In order to substantiate these allegations, it is plain that the Commission and the Union will have to establish that the bias in the plan exists and that the bias has resulted in the undervaluation of female jobs. As for remedy, it will have to be demonstrated that on account of this undervaluation, the wages of employees in those female jobs were less than they would have been had an unbiased plan been used. Compensation for this wage gap would have to be calculated. This is in essence the complaint alleged. It is up to the Union and Commission to lead their evidence and make their case. [17] A given set of facts could in theory constitute a breach of more than one provision of the Act. For instance, an employer practice that deprived an employee of an employment opportunity on the basis of a prohibited ground (a violation of s. 10) could at the same time also constitute adverse differential treatment of that employee (a breach of s. 7). In the correspondence between the Union and the Commission prior to the filing of the present complaint, there was in fact some debate about whether the claim should be made under ss. 7, 10, and/or 11 of the Act. [18] In the case of Canada (Attorney General) v. Robinson, [1994] 3 F.C. 228 at paras. 37-39, the Federal Court of Appeal indicated that in conducting its inquiry, a Tribunal should not be pre-occupied with the enumeration in the complaint of the provisions of the Act that were allegedly breached. The matter before the Court in that case related to a Tribunal decision in which one of the respondent's policies was found to be in violation of s. 10 of the Act. The complaint, however, had only alleged a s. 7 violation. The Court held this fact to be irrelevant noting that human rights complaint forms are not to be perused in the same manner as criminal indictments. What was important for the Court was that the facts brought before the Tribunal proved the policy to be discriminatory, whether in violation of s. 7 or s.10. [19] The rationale for not adopting too narrow or technical an approach in perusing complaint forms was articulated in a recent ruling from the Tribunal in the case of Gaucher v. Canadian Armed Forces, [2005] CHRT 1 at para. 10. The Tribunal observed that the complaint form exists primarily for the purposes of the Commission. It is a necessary first step, which raises a set of facts that calls for further investigation. The form is inherently approximate and was never intended to serve the purposes of a pleading in the adjudicative process leading to a hearing. It is the Statement of Particulars (ordinarily filed pursuant to Rule 6 of the Tribunal's Rules of Procedure), rather than the original complaint, that sets the more precise terms of the hearing. [20] In the present instance, the Statements of Particulars have yet to be filed. Nonetheless, the Union has provided additional details, not only by way of its Statement of Case submitted in preparation for the August 2004 case management meeting, but more importantly, through the letter of October 15, 2004. Counsel for the Union further elaborated upon these particulars during oral arguments on the motion. In my view, these additional details complete any information that the Museum alleges was lacking from the complaint form in relation to the claim under s. 11. To order the Union and the Commission to provide any further particulars would go beyond what is required for the purposes of pleadings. As was noted in PSAC v. Northwest Territories (Minister of Personnel), [2000] C.H.R.D. No. 9 at para. 7 (CHRT), parties are only obliged to set out the material facts on which they are relying in pleading their cases - they are not required to plead evidence. I am satisfied that the information given to the Museum is sufficient for it to know the case that it must meet. I am also satisfied that the details provided do not constitute an amendment to the original complaint but merely further particulars relating to the existing complaint. [21] The matter does not end there, however. These particulars were provided fairly recently. The October 15, 2004, letter was issued about six months after the case was referred to the Tribunal and the final clarification regarding the female complainant groups was made four months later at the motion hearing. The issue, therefore, is whether the Museum is somehow prejudiced by the disclosure having come at this stage in the process. [22] In its written submissions on the motion, the Museum alleged that it would be significantly prejudiced if it were required to proceed to a hearing in respect to what it described as new allegations. As I have indicated, I do not consider the details provided to the Museum since the referral of the complaint to the Tribunal as new allegations, but rather as further particulars regarding the existing complaint. Assuming that these details were communicated somewhat tardily, what is the prejudice to the Museum? [23] The Museum asserted in its written submissions that the advancement of the inquiry into this complaint would somehow be delayed. I am not quite sure how that would be the case. Will the Museum need more time to prepare its case? Hearing and disclosure dates have yet to be set so it is likely that we are still many months away from the opening of the inquiry. The Museum should therefore have adequate time to prepare itself. Moreover, it was made quite evident by Commission and Union counsel that at the outset, their evidence will consist of establishing the existence of an inherent gender bias in the current job evaluation plan. The Commission even suggested bifurcating the case so as to deal with this issue in its entirety before advancing to the secondary question of determining the existence of any wage gap. Whether or not the bifurcation will occur, it is nonetheless evident that the issues arising from the application of the Guidelines are not likely to come before the Tribunal for quite some time. If the Museum needs additional time to organize its case, it is certainly free to request some reasonable accommodation from the Tribunal in terms of scheduling. In any case, I fail to see how the Museum is prejudiced. [24] The Museum argued that it was also prejudiced in having been denied access to the Commission's investigation and conciliation processes with respect to what it views as the new allegations regarding s. 11. However, as I have stated earlier, these are not new allegations, just particulars concerning the existing complaint. This submission need not therefore be addressed. [25] For all these reasons, the Museum's motion is dismissed. Signed by Athanasios D. Hadjis OTTAWA, Ontario March 21, 2005 PARTIES OF RECORD TRIBUNAL FILE: T915/3504 STYLE OF CAUSE: Public Service Alliance of Canada (local 70396) v. Canadian Museum of Civilization DATE AND PLACE OF HEARING: February 22, 2005 Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: March 21, 2005 APPEARANCES: Andrew Raven On behalf of the Complainant Patrick O'Rourke On behalf of the Canadian Human Rights Commission Peter Doody On behalf of the Respondent

2005 CHRT 18

CHRT

Schuyler v. Oneida Nation of the Thames

en

2005-05-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7083/index.do

2023-12-01

Schuyler v. Oneida Nation of the Thames Collection Canadian Human Rights Tribunal Date 2005-05-06 Neutral citation 2005 CHRT 18 File number(s) T1014/13404, T980/10004 Decision-maker(s) Groake, Paul Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE KAREN SCHUYLER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ONEIDA NATION OF THE THAMES Respondent RULING ON RESPONDENT'S APPLICATION FOR A NON-SUIT MEMBER: Dr. Paul Groarke 2005 CHRT 18 2005/05/06 [1] The Respondent has applied for a nonsuit. [2] The evidence on the two complaints is all from the Complainant. [3] In her first complaint, she alleges that the band failed to accommodate her, when she returned from her cancer treatment. Her position is that they failed to provide her with half time work. Then there is a financial issue. And a question of dignity. She says that the band did not have the necessary process in place for bringing her back into the workforce. She says that she wasn't treated with compassion. [4] There are difficulties on the financial side, since the Complainant accepted disability payments, which were awarded on the basis that she was totally disabled. As I understand her testimony, however, she says that she only accepted these payments after she gave up on the idea of coming back to work on a graduated, part-time basis. [5] The second complaint alleges retaliation. Both sides agree that their relationship got progressively worse. Ms. Schuyler attributes this to the human rights complaint. She says that she had seen this kind of thing before. She says that the band did not like being sued. [6] At this point, I only have Ms. Schuyler's testimony. Any evidence of retaliation is a matter of inference. From her perspective, however, it is a simple situation. When she refused to withdraw the complaint, she was ostracized. There may have been other factors, but that was the crux of it. The situation deteriorated and she was eventually dismissed. [7] Ms. Schuyler's view of the situation may or may not be the right one. It is very difficult for me to say, without hearing from the Respondent. The band has already taken the position that the problems were on Ms. Schuyler's side, in the performance of her duties. I have an obligation, however, to suspend my judgement until the case closes. This is not the time, however, to choose between the two sides. [8] Under the Canadian Human Rights Act, retaliation is a form of discrimination. The evidence of discrimination is often indirect. Respondents rarely admit openly that they have discriminated against a Complainant. I think that Ms. Schuyler's conclusions are entitled to some consideration. She knew the band and council and cannot be expected to provide direct evidence of the employer's motivations. [9] The only question on a non-suit is whether there is some kind of case before me, which calls for a response from the Respondent. I think there is. [10] I am not saying that there is a strong case. There may be difficulties with the evidence. But this is not the time to deal with those kinds of issues. The only question is whether there is a case to meet. [11] In the circumstances, the motion is dismissed. There is a prima facie case. It is for the Respondent to decide whether to call evidence. Signed by Dr. Paul Groarke OTTAWA, Ontario May 6, 2005 PARTIES OF RECORD TRIBUNAL FILES: T980/10004 and T1014/13404 STYLE OF CAUSE: Karen Schuyler v. Oneida Nation of the Thames DATE AND PLACE OF HEARING: May 3 to 6, 2005 London, Ontario RULING OF THE TRIBUNAL DATED: May 6, 2005 APPEARANCES: Karen Schuyler On her own behalf John C. Peters On behalf of the Respondent

2005 CHRT 19

CHRT

Toth v. Kitchener Aero Avionics

en

2005-05-18

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7082/index.do

2023-12-01

Toth v. Kitchener Aero Avionics Collection Canadian Human Rights Tribunal Date 2005-05-18 Neutral citation 2005 CHRT 19 File number(s) T986/10604 Decision-maker(s) Groake, Paul Dr. Decision type Decision Decision status Final Grounds Sex Decision Content Between: Paulette Toth Complainant - and - Canadian Human Rights Commission Commission - and - Kitchener Aero Avionics Respondent Decision Member: Dr. Paul Groarke Date: May 18, 2005 Citation: 2005 CHRT 19 Table of Contents I. Introduction. II. The Doctrine of Res Judicata. A. Does the case meet the criteria in Danyluk?. (i). The decision was final (ii). The parties are the same. (iii). The question is the same. III. Additional remedies. IV. Order I. Introduction [1] The Respondent has made a motion to stay or dismiss the complaint on the basis of the doctrine of res judicata. The Notice of Motion states that the case has already been heard under Part III of the Canada Labour Code, RSC 1985, c. L-2. It follows that the question before the Tribunal has already been decided. [2] The facts behind the complaint are relatively simple. Ms. Toth was hired in 2000. She subsequently went through a process of in vitro fertilization and became pregnant. She alleges that Mr. Aylward, the President of the company, resented the fact that she took sick leave and maternity leave as a result. [3] Ms. Toth filed a human rights complaint in 2002, alleging that she had been discriminated against under section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. Her position was terminated the following year. The human rights complaint was later amended to include the termination. [4] This is only half the story. As it turns out, Ms. Toth also filed a complaint under the Canada Labour Code, alleging that she had been unjustly dismissed. There was a hearing in April 2004. The adjudicator found that Ms. Toth had been unjustly dismissed and ordered the Respondent to pay her salary in lieu of notice. [5] The motion before me proceeded by means of a voir dire. There was an affidavit from both sides: one from Mr. Salveta, a human resources adviser who represented the Respondent at the labour hearing, and one from the Complainant. There was cross-examination on the affidavits. Ms. Toth agreed that Mr. Aylward’s attitude towards her pregnancy was central in the labour hearing. [6] Mr. Taylor appeared for the Respondent. He submitted that the issues in the present proceeding are identical to the issues that were before the adjudicator under the Canada Labour Code. As he sees it, the essential question in the labour hearing was whether Ms. Toth was discriminated against because she underwent a process of in vitro fertilization and became pregnant. This is the question before the Tribunal. [7] Mr. Verbanac appeared for the Complainant. He submitted that the hearing under the Canada Labour Code addressed financial and employment matters. It did not deal with the issues under the Canadian Human Rights Act. This seems unconvincing. Mr. Taylor referred me to the Complainant’s Statement of Particulars, which states that the Complainant’s argument before the Tribunal will follow a similar format to the argument presented to the adjudicator. [8] The Respondent acknowledges that there may be situations where proceedings with respect to the loss of employment under the Canada Labour Code and the Canadian Human Rights Act might be distinguished. In the present case, however, it submits that the Complainant has already won her case. It would be wrong to let her now turn to the Tribunal and shop for additional remedies. II. The Doctrine of Res Judicata A. Does the case meet the criteria in Danyluk? [9] The doctrine of res judicata holds that judicial decisions, at least, are final. They stand against the world. The doctrine has been extended into the administrative realm and is now of general application. The specific branch of the doctrine that appears to apply in the present circumstances is commonly called cause of action estoppel. The argument is essentially that the case has been heard. It cannot be heard again. [10] Mr. Taylor and Mr. Verbanac agreed that three conditions must be established, to bring the doctrine of res judicata into operation. These conditions are set out in Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.R. 460 at 477. They are as follows: the party relying on the doctrine must establish that the prior decision was final; it must establish that the parties were the same; and 3) it must establish that the decision dealt with the same question. (i) The decision was final [11] The Complainant accepts that the decision of the adjudicator in the present case was final. The Respondent is not satisfied with this, however, and relies on section 243 of the Canada Labour Code. That section reads as follows: 243(1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court. (2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242. The Respondent submits that I cannot revisit the issues considered by the adjudicator without offending the intentions of this provision. (ii) The parties are the same [12] Counsel for the Complainant submits that the Human Rights Commission was not a party to the hearing under the Canada Labour Code. It follows that the parties to the two hearings are not the same. [13] Mr. Vebanac relies on the ruling of this Tribunal in Parisien v. Ottawa-Carleton Regional Transit Commission, CHRT T699/0402 (15 July 2002), where the Complainant had filed an unsuccessful grievance. The Canadian Human Rights Commission, which appeared at the human rights inquiry, had not participated in the grievance process. The Tribunal held that the doctrine of res judicata did not apply. [14] The Tribunal in Parisien recognized that the human rights process engages fundamental rights, which go beyond the private rights of the parties. This may have a bearing on other cases. I am dealing with a different set of circumstances, however. The Human Rights Commission, which represents the public interest, did not appear at the hearing in the present case. [15] There is a complication. Although the Commission has advised the Tribunal that it has nothing to say on the motion, it continues to take the position that it remains a party to the inquiry. I think the way out of this difficulty is to recognize that legal terms have a certain flexibility. The Commission may be a party to the present inquiry for some purposes and not for others. I am satisfied, however, that it is not a party for the purpose of determining whether the doctrine of res judicata applies. [16] This is ultimately a matter of fairness. The purpose of determining whether the Commission is a party in the context of the immediate motion is largely to determine whether it has been deprived of an opportunity to address the issues in the case. I cannot see how anyone can make such an assertion in the present circumstances. It follows that the parties before me, for the purposes of res judicata, are the same parties that appeared before the adjudicator in the labour hearing. (iii) The question is the same [17] The more difficult issue is whether the question before the Tribunal is the same as the question that was before the adjudicator. Mr. Verbanac submitted that the question before the adjudicator was whether the termination of the Complainant’s position could be justified on business and employment grounds. The Respondent says that this merely reflects the process under the Canada Labour Code, which puts the onus on the employer to justify the termination. This forces the employer to go first. [18] The adjudicator sets out the position taken by the two sides in the labour hearing in the first paragraph of his award. The employer, he writes, states that Ms. Toth was terminated for legitimate business reasons due to a downturn in profits, and that her former duties were redistributed among the remaining employees. The Complainant replied that the reason for her termination was that the employer objected to her taking sick leave, and then maternity leave, after going through a process of in vitro fertilization. [19] It is apparent from the adjudicator’s decision that the Complainant’s case proceeded on the basis that the Respondent’s attitude towards her pregnancy was completely inappropriate. The Complainant alleged that the business reasons put forward by the Respondent were nothing more than a pretext, which was advanced to justify the termination. This is a common form of argument in the caselaw of human rights. [20] There is no transcript of the labour hearing. Ms. Toth nevertheless told the adjudicator that Mr. Aylward’s behaviour deteriorated after he discovered that she was undergoing in vitro fertilization. She agreed on the witness stand that the case she presented to the adjudicator was all about her pregnancy and maternity leave. As Mr. Salveta put it, the core of her position was that Mr. Aylward terminated her position because she became pregnant. [21] I cannot see any way around it. The legal question before the Tribunal is whether Ms. Toth was discriminated against. The legal question before the adjudicator was whether she was unjustly dismissed. These two questions collapse into each other. The adjudicator’s decision was premised on the finding that Mr. Aylward’s attitude to the pregnancy entered into his decision to let her go. I think this constitutes a finding of discrimination. [22] If Ms. Toth was unjustly dismissed, it was because she was discriminated against. It follows that the same question was at least implicitly before the adjudicator. A ruling in favour of the Respondent on the human rights complaint would contradict the ruling of the adjudicator. It would not be possible to find that the Complainant’s position was properly terminated without offending the privative clause in section 243 of the Canada Labour Code. [23] The situation might be different if there was a distinct allegation of harassment, which could be severed from the termination. The underlying factual issues in the two hearings are the same, however. The adjudicator had to consider the Respondent’s entire course of conduct, in reaching his conclusions. Any other allegations are an integral part of the course of conduct that culminated in the termination. It is all part of the same fabric. [24] The Respondent has argued that the present case is governed by the principle set out by Justice Abella, in Rasanen v. Rosemount Instruments Limited [1994] O.J. No. 200 (Ont. C.A.). The plaintiff in Rasanen had sought termination pay under the Employment Standards Act, R.S.O. 1980, c. 137. He also sued for wrongful dismissal. There was a hearing by a referee under the Employment Standards Act, before the action came to trial. [25] Justice Abella agreed with the trial judge, who held that res judicata applied. At p. 278, she writes that the question in the two proceedings should not be narrowly construed. In my view, the question to be decided in these proceedings is the same question that was, and was necessarily, decided in the earlier Employment Standards Act proceedings: was there an entitlement by the employee to compensation from the employer arising from the termination of his employment? There is no doubt that under the Employment Standards Act this question has a different linguistic and quantitative formulation than at common law. But a different characterization and process does not, in this case, mean a different question. I am aware that the reaction to Rasanen has been somewhat mixed. I nevertheless think that the same reasoning applies to the present case. [26] There is a healthy measure of common sense in the analysis provided by Justice Abella. The fact that there were differences in the two processes was not decisive. The parties in Rasanen had the opportunity to call witnesses, present their cases, and respond to the position on the other side. The substance of the allegations was the same. This was sufficient to bring res judicata into operation. [27] I think there is probably a public interest exception, which might apply in a case that raises issues that go beyond the private interests of the parties. The Tribunal has implicitly recognized this, in declining to apply the doctrine when the Human Rights Commission chooses to appear. The present case does not raise these kinds of issues, however, and bears the features of private litigation. [28] The principle in Rasanen is that a case should only be heard once. It is sometimes said that a party cannot litigate in installments. If a hearing or trial is deficient, that can be dealt with by review or appeal. But that is the end of it. It would be wrong to let a Complainant start again, merely by moving a case to another statutory regime. [29] The Complainant has cited cases where adjudicators have refused to hear allegations of discrimination or harassment, on the basis that the Complainant has a source of redress under the Canadian Human Rights Act. I think this presents a different kind of situation. If it is apparent at the outset of a hearing that a complaint is more properly made under different legislation, it makes sense for an adjudicator to decline the case. Here, the Complainant made the allegation of discrimination in the course of a hearing that was properly before the adjudicator. III. Additional remedies [30] This does not dispense entirely with the motion. The decision in Danyluk holds that there is a discretionary element in the doctrine of res judicata. Even if the technical requirements of the law have been met, Mr. Verbanac submits that the Complainant should be allowed to seek additional remedies under the Canadian Human Rights Act. [31] The first remedy that the Complainant is seeking is payment of the discretionary bonus. This is an issue that arises naturally out of the termination of Ms. Toth’s employment. It was dealt with explicitly by the adjudicator. I do not see how I can reconsider this issue without reviewing the substance of his decision, which is protected by section 243 of the Canada Labour Code. [32] Then there is pain and suffering. Mr. Verbanac says that his client is not entitled to compensation for pain and suffering under the Canada Labour Code. Mr. Taylor disagrees. He has referred me to s. 242(4) of the Canada Labour Code, which gives an adjudicator the authority to do anything that it is equitable to require the employer to do in order to remedy or counteract any consequences of the dismissal. This language is very broad. [33] Mr. Taylor has also given me a number of cases. In Greyeyes v. Ahtahkakoop Cree Nation, [2003] C.L.A.D. No. 205, for example, at para. 45, an adjudicator stated that the purpose of an award under the relevant provisions of the Canada Labour Code is to make the complainant whole. This includes compensation, at para. 51, for any psychological harm suffered as a consequence of being unlawfully dismissed. In Papequash v. Key Indian Band, [2003] C.L.A.D. No. 142, at para. 226, an adjudicator made an award for mental distress. [34] The Complainant submits that these cases are exceptional. Even if an adjudicator has the power to award damages for mental distress, it is an extraordinary form of relief, which is rarely sought or given. An adjudicator does not have the explicit jurisdiction enjoyed by the Tribunal in this area. [35] The Complainant has also asked for a remedy under s. 53(3) of the Canadian Human Rights Act, which gives the Tribunal the power to compensate a Complainant for wilful and reckless conduct. This is apparently unavailable under the Canada Labour Code. I was nevertheless given caselaw in support of the proposition that aggravated damages are available under section 242 of the Canada Labour Code. These kinds of damages were described by Lord Devlin in Rookes v. Barnard, [1964] A.C. 1129, [1964] 2 W.L.R. 269, [1964] 1 All E.R. 367 (H.L.), at 1121. I think that they provide a similar form of relief. [36] There is a substantial overlap in the remedies that were available under the Canada Labour Code and the remedies that she is seeking under the Canadian Human Rights Act. The adjudicator could have compensated the Complainant for emotional distress, if only by extending the period of salary in lieu of notice. In the circumstances, I am not convinced that a complainant is entitled to seek additional remedies in a second hearing, under a different statute. The additional relief that might be available under the Canadian Human Rights Act is not sufficient to justify a second hearing. [37] The present ruling naturally applies to the facts of the present case. I have already suggested that there is an exception, in cases which call for a public interest remedy that is not available under the Canada Labour Code. The remedies sought by the Complainant under the Canadian Human Rights Act are personal and compensatory, however. They do not engage the larger public interest or take the case out of the realm of private litigation. [38] There are other considerations. It is significant, for example, that the Respondent is not entitled to costs under the Canadian Human Rights Act. I think it would be unfair to force it to go through a second hearing, at its own cost, when the matter has already been decided in another forum. [39] I cannot see any reason not to apply the doctrine of res judicata in the present case. The fact that there are differences, even substantial differences, in the remedies available in different forums, is not sufficient to justify a second hearing. Justice Abella recognized in Rasanen that broader remedies were available in the lawsuit. It did not matter. A party is only entitled to one adjudication. [40] It is evident that Ms. Toth has other sources of redress. She could, for example, have filed a lawsuit for wrongful dismissal. It seems clear that she would be barred from doing so. I think she must also be barred here. It is asking too much of me, to find that the Tribunal can somehow deal with the termination, in spite of the fact that a court cannot do so. The cases cited by the Complainant are distinguishable on the facts. IV. Order [41] The motion asks me to stay or dismiss the complaint. I am not sure what a stay would consist of in the present circumstances. The Tribunal is a statutory Tribunal, moreover, with limited powers. In addition, there is evidence before me, which goes at least implicitly to the merits of the case. Finally, there is the fact that the doctrine of res judicata is based on the need for finality in the legal process. In the circumstances, I think the appropriate course of action is to dismiss the complaint. Signed by Dr. Paul Groarke Tribunal Member Ottawa, Ontario May 18, 2005 Canadian Human Rights Tribunal Parties of Record Tribunal File: T986/10604 Style of Cause: Paulette Toth v. Kitchener Aero Avionics Decision of the Tribunal Dated: May 18, 2005 Date and Place of Hearing: April 4 to 6, 2005 Kitchener, Ontario Appearances: Bernard Verbanac, for the Complainant No one appearing, for the Canadian Human Rights Commission Gerry Taylor and Jennifer Breithaupt, for the Respondent

2005 CHRT 2

CHRT

Virk v. Bell Canada (Ontario)

en

2005-01-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6512/index.do

2023-12-01

Virk v. Bell Canada (Ontario) Collection Canadian Human Rights Tribunal Date 2005-01-20 Neutral citation 2005 CHRT 2 File number(s) T858/10803 Decision-maker(s) Deschamps, Pierre Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ROGER VIRK Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA (ONTARIO) Respondent REASONS FOR DECISION MEMBER: Pierre Deschamps 2005 CHRT 2 2005/01/20 I. INTRODUCTION [1] The Tribunal is called upon to decide if Bell Canada discriminated against the complainant, Mr. Roger Virk, in the course of his employment at Bell on the ground of national or ethic origin, contrary to section 7 of the Canadian Human Rights Act. The Tribunal is also asked to decide if the complainant was the object of retaliation on the part of Bell Canada, contrary to section 14.1 of the Act. [2] Mr. Virk alleges that Bell Canada, in general, and Mr. Ted Weich, in particular, discriminated against him in January 2002 by not confirming him as manager on the Globe and Mail project because he is of South Asian descent and that Mr. Penno Makdessian retaliated against him, at the end of 2003, by terminating his employment because he had filed a human rights complaint. [3] At the hearing, the complainant was not represented by counsel. The respondent was. The Commission did not appear. Three witnesses were heard: the complainant, Mr. Virk, as well as Mr. Ted Weich and Mr. Penno Makdessian, for the Respondent. [4] Mr. Weich testified that he was made aware of Mr. Virk's human rights complaint by Ms. Incognito, Bell's Industrial Relations Director, on May 9, 2002. As for Mr. Makdessian, he testified that he learned about the complaint in January 2003. II. BACKGROUND A. Mr. Virk's employment history at Bell prior to the Globe and Mail project [5] Mr. Virk started working at Bell Canada on October 12, 1993 as a Direct Marketing Sales Associate. Before joining Bell, Mr. Virk worked as a district supervisor for an electronics retail store chain. [6] On July 7, 1995, Mr. Virk advanced to a support associate function. Subsequently, he was promoted to the position of a support supervisor (Senior Associate 8). As of January 9, 1998, this designation was changed to that of Resource Associate. [7] In December 1998, Mr. Ted Weich became Associate Director for the Vendor Management Team that is part of the Direct Marketing Centre (DMC). At the time, Mr. Virk was a Resource Associate with the Vendor Management Team. The Vendor Management Team was composed of Mr. Weich, three Sales Managers and five Resource Associates who reported to the Sales Managers. Resource Associates are unionized employees. Sales Managers are management employees. [8] The record shows that Mr. Virk was at the time and until he left Bell Canada covered by the CTEA Clerical collective agreement as opposed to the CTEA Sales collective agreement. The record also shows that in the Direct Marketing Centre, there are two types of unionized employees that can be promoted, clerical employees, under the Clerical Collective Agreement, and sales employees, under the Sales Collective Agreement. [9] According to the evidence, clerical employees, such as Resource Associates and Associates are mainly support functions. Sales employees, such as Direct Marketing Associates, are telemarketers. Mr. Virk testified that all Resource Associates are former Direct Marketing Associates and that he had been in the past a Direct Marketing Associate. [10] On May 2, 2000, a canvass for a DMC Strategic Partnering Manager CP-2 was posted. Mr. Virk applied for the position. In an e-mail sent to Mr. Weich a few days before sending in his application, Mr. Virk raised his concern about a possible perception on Mr. Weich's part that he might not have the required sales background and skills for the management position. In his e-mail, Mr. Virk highlighted his past sales and management experience at Bell as well as prior to joining Bell. [11] Mr. John Chung, a confirmed Sales Manager in the Direct Marketing Centre, was selected for the job. According to Mr. Weich, better candidates than Mr. Virk applied for the job. [12] The evidence shows that in the course of his employment at Bell, Mr. Virk held a few acting assignments. What constitutes an acting assignment is specified in Exhibit R-1. [13] An acting assignment is when an employee assumes the responsibilities of a higher position requiring greater professional responsibility and competence. A typical example of this is when an employee replaces another employee (on a higher position) who is on maternity/ parental leave. If the assignment is not of a temporary nature, the employee should be promoted to the position. According to Exhibit R-1, acting assignments are used when the assignment is for more than three weeks. [14] Asked to explain the purpose of acting assignments in the case of unionized employees, Mr. Weich stated that the purpose is to fulfill a need of the required business unit, that in most cases those given an acting position are individuals identified as having the potential to move in their career development. Mr. Weich testified that the people asked to fill an acting position will normally be selected by the person in charge of a particular business unit depending on the needs of that particular unit. [15] According to Mr. Weich, an acting assignment will vary in time depending on the needs of the business unit. In his testimony, Mr. Virk acknowledged that acting assignments are quite frequent in the Direct Marketing Centre, that they can be from anywhere between a few days to a few months and that they provide unionized employees with an opportunity to get experience in a management role. [16] For his part, Mr. Makdessian testified that acting assignments can last up to 14 months, that people are put into acting positions based on the business need of that moment and that in the event the business needs change, the employee goes back to his substantive position. According to Mr. Makdessian, it is very common for employees holding an acting assignment to revert to their substantive position at the end of the assignment. [17] Asked how frequent it is for employees to revert to their substantive position after an acting assignment versus being confirmed right away as a manager, Mr. Weich stated that there is no formal policy that exists at Bell, that it all depends on the needs of a particular business unit. Furthermore, Mr. Weich stated that he knew of no policy existing at Bell to confirm acting managers after a specific period of time. He acknowledged, however, in his testimony that an acting manager is a potential confirmed manager. [18] For his part, Mr. Virk acknowledged that once an acting assignment is over, it is not unusual in usual circumstances for the unionized employee to revert to his former position. However, Mr. Virk holds the view that, in his case, it was rather odd, extremely odd. [19] The evidence shows that, in July 2001, Mr. Virk got an acting assignment as a Sales Manager in the Consumer section of the Direct Marketing Centre and another one in September 2001. This last acting assignment did not entail the supervision of any staff. According to Mr. Virk, this position involved working with an improvement process with the reporting section that looked after the reports and the revenue capturing of the entire Direct Marketing Centre. B. Mr. Virk's employment history in relation to the Globe and Mail project [20] The evidence shows that in July 2001, the Globe and Mail approached Bell to set up a call centre to solicit potential Globe and Mail subscribers. A first meeting was held in August 2001 with the Globe and Mail people. The decision was made to set up the call centre within the Vendor Management Group in the Direct Marketing Centre because of its expertise in that area. Mr. Ted Weich took charge of the project. [21] Under the terms of the agreement reached with the Globe and Mail, the latter would provide Bell Canada with calling lists of approximately 135 000 to 150 000 phone numbers per month. Bell Canada was to be paid on a per contact basis. Initially, the Globe and Mail project was considered a pilot project that was to last two months. [22] The months of September and October 2001 were spent on setting up the project, which started in November 2001. The evidence shows that Mr. Weich was instrumental in creating the infrastructure for the Globe and Mail project. In his testimony, Mr. Virk acknowledged that Mr. Weich was involved in launching the Globe and Mail project, that he was in fact the one who put it together. [23] According to Mr. Weich, temporary employees and not permanent employees were hired for the project because of the restructuring that was going on at that time at Bell Canada. The number of employees hired ranged from twelve to fourteen. [24] In October 2001, Mr. Virk was offered by Mr. Weich, his supervisor, an acting management position on the Globe and Mail project. There was no posting for the position. Mr. Virk accepted the offer and became the acting manager on the project effective October 22, 2001. The evidence shows that Mr. Virk was to report to Mr. Weich. [25] Asked to explain why he decided to choose an acting manager for the project rather than a confirmed manager, Mr. Weich stated that because it was a trial, he thought that an acting manager would be best. Asked to explain why he chose Mr. Virk, Mr. Weich stated that it was because he wanted to provide Mr. Virk with an opportunity to develop his skills given the fact that Mr. Virk had expressed in the past his desire to have management opportunities for his own development and growth. [26] Asked how much time he spent on the Globe and Mail project during the months of September, October, November and December 2001, Mr. Weich testified that the Globe and Mail project consumed about 80 percent of his time during the first two months and probably between 60 and 65 percent of his time in the months of November and December 2001. [27] In his testimony, Mr. Weich acknowledged that Mr. Virk played a role in the setting up of the Globe and Mail project, notably in setting up some of the workstations, in making sure the configuration was working and in participating in conference calls. [28] According to Mr. Weich, Mr. Virk's role on the Globe and Mail project was to maintain the activities on the floor, participate in group meetings and prepare reports. Mr. Virk listed as part of his functions managing potential subscribers' lists, liaising with other groups, setting up the computers. Mr. Weich acknowledged in his testimony that on the Globe and Mail project, Mr. Virk assumed more responsibilities than a Sales Manager in the Direct Marketing Centre would ordinarily have. [29] The evidence shows that Mr. Virk saw himself, and not Mr. Weich, as the project manager. In his testimony, Mr. Weich strongly disputed the allegation made by Mr. Virk that he, not Mr. Weich, was the project manager. Mr. Virk did however acknowledge in his testimony that Mr. Weich was the architect of the project. [30] On this point, the evidence clearly shows that, during the months of November and December 2001, Mr. Virk was at all times the acting Sales Manager on the Globe and Mail project, that Mr. Weich remained the project manager and that it was under his supervision and direction that Mr. Virk worked. [31] On November 30, 2001, Mr. Virk was informed by Mr. Weich that a reorganization was being implemented in his group (Vendor Management) effective January 1, 2002 and that starting January 2, 2002, the project would fall under Mr. Charlie Latino's group (Consumer Sales). The evidence shows that on that day, Mr. Weich told Mr. Virk that, as of January 1, 2002, he would remain on the Globe and Mail project but would revert to his status of Resource Associate, replacing Mr. Simon Shim as Resource Associate on the project. [32] Asked to explain the reason of this transfer, Mr. Weich stated that given the content of the project and what was involved, it had been decided that it fitted better under Mr. Latino's group. [33] In his testimony, Mr. Virk stated that Mr. Weich told him that the decision to revert him back to his Resource Associate position was in no way related to his performance. According to Mr. Weich, Mr. Virk never expressed at the time the desire to leave the Globe and Mail project once he had been told that he would be going back to his Resource Associate status or to be assigned to another position in the Vendor Management Group. [34] The evidence shows that Mr. Weich also informed Mr. Virk that a confirmed manager from the Consumer Group would become the manager of the Globe and Mail project as of January 1, 2002, that person being Mr. Penno Makdessian. Mr. Virk was to stay on the project to provide assistance to Mr. Makdessian. [35] According to Mr. Weich, given the fact that Mr. Latino would be taking over the project as of January 1, 2002, the decision to choose Mr. Makdessian was that of Mr. Latino and not his even though the decision was made in November 2001. Mr. Weich testified that his opinion was sought by Mr. Latino. [36] Asked to explain why Mr. Virk was sent back to his Resource Associate position effective January 1, 2002, Mr. Weich offered the following explanation: since the project was going under Mr. Latino's organization and since the company was rightsizing its operations in the Direct Marketing Centre and some Sales Managers stood to lose their jobs while employees like Mr. Virk were not confronted with that prospect since they were going back to their previously held position, the decision was made to bring a confirmed Sales Manager from the consumer floor to manage the project. According to Mr. Weich, this was a sound business decision and had nothing to do with Mr. Virk's performance on the Globe and Mail project. [37] According to the evidence, rightsizing entails the elimination of certain positions within an organization or a department, positions that the organization or the department can do without. [38] In his testimony, Mr. Weich stated that even though an organization is rightsizing, it will still fill jobs that it considers a crucial part of the operations of the organization. Thus, it is not unusual for an organization to canvass a specific job in those circumstances to replace the departing incumbent. Mr. Virk acknowledged in his testimony that it was normal for an organization to fill a key position, a position that the company cannot do without, when an incumbent leaves this position vacant even if the company is in a rightsizing mode. [39] The evidence shows that, in December 2001, a canvass for a Sales Manager in the Business Unit in the Direct Marketing Centre was posted when the confirmed Sales Manager who held that position left. [40] Asked to explain why the Direct Marketing Centre was hiring while the company was rightsizing, Mr. Weich stated that this Sales Manager position was a crucial part of the operations of the Business Unit and had to be filled by a confirmed Sales Manager because of the high level of expertise required. The person chosen was a confirmed Sales Manager from the Consumer Direct Marketing Centre. [41] Finally, at the November 30, 2001 meeting, Mr. Weich told Mr. Virk that because of the right sizing that was taking place in the company, there would be no more acting manager assignments as of November 2001. [42] Asked to explain that decision, Mr. Weich stated in his testimony that at the time, the priority was given to securing the jobs of confirmed Sales Managers who faced the possibility of losing their jobs in a rightsizing environment before giving out acting assignments. Time and again, Mr. Weich stated that when a confirmed manager stands to lose his job, the company will try to protect that person's job. Thus, it will terminate an acting manager's assignment, however good his performance is, so as to secure a confirmed manager's job knowing that the acting manager will go back to his previous unionized job. [43] Mr. Virk testified that, at first, he believed the explanation provided to him by Mr. Weich as to why he was being replaced as acting manager on the Globe and Mail project. His feelings changed, according to his testimony, when he saw in mid-December that two unionized employees had been given acting manager assignments as of January 2, 2002, Ms. Debbie Vieira and Mr. Ernesto Imbrogno. Both were Direct Marketing Associates in the Consumer group of the Direct Marketing Centre. Both were appointed acting Consumer Sales Manager. [44] It is suggested by the evidence that Ms. Vieira got eight acting assignments in 2002 and that after each assignment, she reverted to her previously held position. In January 2003, she got a new acting management assignment and was eventually confirmed as manager. In his testimony, Mr. Virk acknowledged that it is logical for a person who has been on acting assignment to get confirmed in the position if the position becomes available for a promotion. [45] As for Mr. Imbrogno, the evidence shows that at the end of the acting assignment referred to above, he reverted to his Direct Marketing Associate position. [46] Asked to explain why Ms. Debbie Vieira and Mr. Ernesto Imbrogno, both Caucasian, were given acting assignments effective January 2, 2002, Mr. Weich stated that these occurred in the Consumer Division under Mr. Latino and that he was not aware of the reasons why these two acting assignments were given out. He, however, stated that, on November 30, 2001, when he met with Mr. Virk, the information he had at the time was that there would be no opportunities for acting managers. [47] On December 6, 2001, Mr. Virk sent Mr. Weich a memo in which he expressed his disappointment in reverting to the position of a Resource Associate on the same project he had assisted in launching and managing from its inception. He stated in his e-mail that he would continue his ongoing support and assistance to the project but that given the circumstances, he would explore other opportunities within Bell in 2002. [48] In his response to Mr. Virk's e-mail, Mr. Weich offered the latter his assistance to find another Resource Associate job within Bell. The evidence shows that Mr. Virk never asked for Mr. Weich's assistance. [49] At the hearing, Mr. Virk alluded to the fact that, at the time, he had asked Mr. Weich to be moved back to the Vendor Management Team as a Resource Associate so as to have another person from the Vendor Management Team take over the Resource Associate position on the Globe and Mail project. According to Mr. Virk, this would have saved him from a lot of anguish. Mr. Weich testified that Mr. Virk never expressed this desire. [50] The evidence shows that the Globe and Mail project, as of January 1, 2002, was transferred from the Vendor Management Group to the Consumer Sales Group within the Direct Marketing Centre. The evidence also shows that Mr. Weich officially stopped being responsible for the Globe and Mail project as of January 1, 2002. [51] As for Mr. Virk, on January 2, 2002, he resumed working on the Globe and Mail project, this time as a Resource Associate and not as acting manager. The evidence shows that Mr. Virk reported to Mr. Makdessian who in turn reported to Mr. Latino. Mr. Virk replaced Mr. Simon Shim who had been working on the Globe and Mail project as Resource Associate. Mr. Shim, according to Mr. Virk, was reassigned somewhere else. [52] Asked what his involvement was with the Globe and Mail project after January 2, 2002, Mr. Weich stated in his testimony that he still provided advice to those in charge of the project for about three months given his knowledge and expertise. However, during that period, he had no involvement in the day-to-day activities that were handled by Mr. Makdessian and had no authority on the hiring process. [53] In his testimony, Mr. Virk expressed the view that he did not think that Mr. Makdessian could do the job as well as he did. Mr. Virk alluded to the fact that when Mr. Makdessian took charge of the Globe and Mail project, he had no previous experience on the project. This fact was acknowledged by Mr. Makdessian who stated in his testimony that when he took charge of the project, he was not familiar with all of its aspects but learned as he went along. [54] Asked to explain the context in which he joined the project, Mr. Makdessian indicated that in late November or early December 2001, he was informed by his Associate Director, Mr. Charlie Latino, that the strategy of the Consumer Sales Group in the Direct Marketing Centre for 2002 would change, that they would be doing less work and that this meant that there would be a reduction of the number of managers. According to Mr. Makdessian, Mr. Latino informed him of the rightsizing exercise that the company would be doing and that he would secure a position for him as a confirmed manager. [55] Asked what happened to his former Sales Manager position in the Consumer Sales Group after he took over the Globe and Mail position, Mr. Makdessian stated that his former team was dismantled, that the employees on that team were distributed to the remaining Sales Managers on the sales floor and that in fact his position was eliminated. [56] In his testimony, Mr. Makdessian stated that when he took over the Globe and Mail project, Mr. Virk was a little bit disappointed at first and that he shared this disappointment with him. According to Mr. Makdessian, Mr. Virk assured him that he was going to give one hundred percent while he was there and would not let him down. Mr. Virk also informed Mr. Makdessian that he would probably be pursuing other opportunities within the Bell environment. Mr. Makdessian stated in his testimony that he offered to help Mr. Virk but that the latter never asked for his help. [57] Asked to comment on how he advanced the Globe and Mail project, Mr. Makdessian testified that one of his achievements was to design and implement an Incentive and Recognition Program. He also stated that he brought with him a wealth of sales expertise that helped him coach his team. [58] The evidence shows that Mr. Makdessian managed the Globe and Mail project from January 2, 2002 to April 25, 2002. According to Mr. Virk, during that period, the sales objectives were not met for every month. [59] In April 2002,Mr. Makdessian became an Acting Senior Team Leader in the Consumer Sales Group in Mr. Charlie Latino's organization. This left the Sales Manager position on the Globe and Mail project vacant. [60] In his new role as Senior Team Leader, Mr. Makdessian had responsibility for the Globe and Mail project as well as other projects. In his testimony, Mr. Makdessian acknowledged that as Senior Team Leader, he was less involved in the day-to-day management of the Globe and Mail project. He further acknowledged that when he stopped managing the Globe and Mail project, Mr. Virk was left to himself to manage the project. [61] On April 25, 2002, an e-mail was sent out announcing that Mr. Virk would be acting Sales Manager on the Globe and Mail project as of April 23, 2002. The e-mail indicates that the assignment was scheduled to end on June 30, 2002. The evidence shows however that, at the end of June 2002, Mr. Virk's assignment was extended to October 3, 2002. The record shows that on April 25, 2002, Mr. Weich sent an e-mail to Mr. Virk congratulating him on his new acting assignment. [62] Mr. Makdessian testified that it was Mr. Latino who made the decision to give the Sales Manager assignment to Mr. Virk. Mr. Makdessian stated in his testimony that he supported Mr. Latino's decision having worked with Mr. Virk since January. [63] According to Mr. Makdessian, Mr. Virk was not given the Sales Manager position at the time but rather an acting assignment because he wanted to have the opportunity to observe Mr. Virk on a day-to-day basis, notably the leadership qualities he would be looking for in a Sales Manager. [64] The evidence shows that in September 2002, Mr. Makdessian was confirmed in this role of Senior Team Leader that he held until September 2003 when he took on the role of Associate Director in the Sales Department for the Consumer Direct Marketing Centre in an acting capacity. [65] For the period running from April 23, 2002 to October 3, 2002, Mr. Virk, as Acting Manager and Ms. Madeline Young, an Associate, were the only two people involved on a day-to-day basis on the Globe and Mail project. Mr. Virk testified that, during that period, he met all of his sales and contact objectives. This was confirmed by Mr. Makdessian in his testimony. [66] At the end of the period, Mr. Virk reverted to his usual Resource Associate position and Mr. Ron Singh, a Confirmed Manager, who is of South Asian descent, was appointed to the Sales Manager position on the Globe and Mail project, a position which he held until October 2003 when the Globe and Mail project folded. Mr. Virk acknowledged in his testimony that Mr. Singh was like himself of South Asian descent. According to Mr. Virk, Mr. Singh was able to do the job properly. [67] Asked why Mr. Singh, a confirmed manager, was preferred to Mr. Virk to manage the Globe and Mail project in October 2002, Mr. Makdessian explained that as the Globe and Mail project was evolving, the Globe partners were asking his group to have more aggressive sales targets; more complicated campaigns were on the horizon which required a lot of attention and detail. [68] Mr. Makdessian stated in his testimony that in order to meet these needs, he preferred to go ahead with Mr. Ron Singh rather than Mr. Virk, being of the view that Mr. Singh was better suited than Mr. Virk to do the job because he had a strong sales background. According to Mr. Makdessian, it was Mr. Latino who made the decision after having solicited his advice. [69] The evidence shows that, in August 2003, Mr. Virk got a new acting assignment on the Globe and Mail project, replacing Mr. Ron Singh as acting manager while the latter was on vacation. This assignment lasted until the end of October 2003. [70] In October 2003, Mr. Makdessian's group received notification from the Globe partners that they were going to be dramatically reducing the call volumes, by 50 percent in the month of November and 75 percent in the month of December. [71] Considering the Globe and Mail's notification, Bell Canada reviewed the overall profitability of the relationship with its Globe partners and concluded that from a financial perspective, it did not make business sense to continue positioning the Globe and Mail, unless the Globe could guarantee a higher call volume and agree to set new prices per contact. As the Globe and Mail was not prepared to change the terms of the agreement, the decision was made to shut down the Globe and Mail project permanently. [72] The evidence shows that the project shut down on October 31, 2003. Mr. Makdessian testified that the Globe and Mail people were shocked by the decision and asked if they could come back with a counter-offer. [73] Asked to explain the announcement that went out on November 4, 2003 to the effect that the project would be shutting down for the remainder of 2003 rather than permanently, Mr. Makdessian stated that, given that the Globe and Mail people had said that they would come back with a counter-offer, Bell wanted to position itself in case the Globe and Mail did in fact come back with a counter-offer. Bell did not think at the time that the project would resume but was ready to leave the door open. [74] On November 5, 2003, Mr. Penno Makdessian held a meeting with a number of Direct Marketing Centre employees to announce that, given the reorganization that was taking place at Bell, there would be some positions, in fact seven, that would be declared surplus. [75] In attendance at the meeting, according to Mr. Makdessian, were three of the four First Call resolution employees, Mr. Virk, Ms. Young, Ms. Karen Anderson, as well as Ms. Anna Paolella from the Direct Marketing Centre and Ms. Sonia Bell, a union representative from the CTEA Sales bargaining unit. In his testimony, Mr. Virk was not able to recall precisely who was in attendance. [76] The evidence shows that the people in attendance were told that the First Call Resolution function was going to be terminated as well as the Globe and Mail project. They were also told that the E-Contact position, which was a temporary position, held by Ms. Karen Anderson, was being declared surplus, its future being however uncertain. Contrary to the First Call Resolution and the Globe and Mail positions, which were being eliminated immediately, the company required someone to remain in the E-Contact position for the time being. Mr. Virk stated in his testimony that this meeting was a bombshell for him. [77] According to Mr. Makdessian, those attending the November 5, 2003 meeting were told that all those having more than eight years of service had, under the collective agreement, the opportunity to exercise their displacement right and that if they wished to do so, they could contact the union or the management team to further get explanation on the displacement option. The CTEA Clerical and Associated Employees collective agreement specifically deals with the issue of displacement. [78] The evidence shows that the employees were also told that they would have until November 12, 2003 to exercise their displacement right. This period was later extended to November 19, 2003. They were finally told that if they chose to exercise their displacement right, they would need to integrate into the chosen position within 21 days without any formal training. [79] At the hearing, Mr. Virk was unable to recall Mr. Makdessian explaining to the employees present on November 5, 2003, that employees, such as himself, who had eight years of service or more, could use their displacement right on a position held by employees who had less than eight years, that employees had one week from November, 5, 2003 to exercise their displacement right and that if they wanted to exercise their displacement rights, they would have to advise their manager. [80] The evidence shows that Mr. Virk could have displaced four Resource Associates, who had not been declared surplus, in the Vendor Management Group. In his testimony, Mr. Virk acknowledged that he had more service than these four individuals and that he would have been qualified to do their job. He, however, stated that it was never specifically put to him by Mr. Makdessian that he could have displaced them. In his testimony, Mr. Virk stated that had he known about this fact, he would have exercised his displacement right. [81] The evidence shows that none of the employees declared surplus on November 5, 2003 did in fact exercise their displacement right. Asked to provide an explanation, Mr. Makdessian stated that it was not surprising given that a lot of people felt uncomfortable in putting somebody else out of a job. According to Mr. Makdessian, historically few employees had ever exercised their displacement right. [82] After the November 5, 2003 meeting, Mr. Makdessian sent a letter to Mr. Virk confirming that his employment with Bell Canada would end on January 11, 2004. In the letter, Mr. Virk is informed of the opportunity for redeployment within Bell and apprised of the rules pertaining to salary continuance, benefits and pension plan, etc. The letter contains however no information on displacement rights. [83] The evidence shows that on November 11, 2003, Mr. Makdessian met with Mr. Virk. In his testimony, Mr. Virk acknowledged that, in the course of the meeting, Mr. Makdessian reviewed with him the various options that he had, given the fact that he had been declared surplus. Mr. Virk also acknowledged that Mr. Makdessian inquired as to how his job search was progressing and told him that both he and Mr. Singh would be of assistance to him throughout this ordeal. [84] Mr. Virk testified that, at the time, he informed Mr. Makdessian that he wished to look for other opportunities and that the had applied for a Resource Associate position in the Direct Marketing Centre Business group and was looking forward to a response. The evidence shows that he never received one. [85] In his testimony, Mr. Makdessian stated that he identified to Mr. Virk that the E-Contact position, albeit temporary, was available and that he was qualified to move into that job if he so desired. According to Mr. Virk, the E-Contact job was the only job that Mr. Makdessian mentioned. Mr. Makdessian never spoke of Mr. Virk's displacement right with respect to the other Resource Associates of the Vendor Management Group. [86] Mr. Makdessian testified that, at the meeting, Mr. Virk mentioned to him that he did not want to pursue the Resource Associate position in E-Contact further because it was temporary in nature. This is acknowledged by Mr. Virk. According to Mr. Makdessian, Mr. Virk was quite passionate about the fact that he would not feel comfortable pushing someone else out of a position. [87] According to Mr. Makdessian, the surplus tag on the E-Contact position held by Ms. Anderson was removed after November 11, 2003. It appears from the evidence that Ms. Anderson had been able to convince both the respondent and the union that it made no sense to declare her position, albeit temporary, surplus given the fact that the position was not at that stage being eliminated. The status of Ms. Anderson was thus changed. [88] Asked what impact this decision had on Ms. Anderson, Mr. Makdessian stated that it had a major impact on her for if Bell had not done so, she would have lost her job in January 2002. But given that no one was prepared to exercise his or her displacement right, the company and the union concluded that it was the fair thing to do to leave her in her temporary position. According to Mr. Makdessian, this decision was seen both by the respondent and the union as having no impact on other employees' displacement rights because any employee could still have exercised his displacement right regardless of that decision. [89] Mr. Makdessian acknowledged in his testimony that he did not inform Mr. Virk of the removal of the surplus status on the E-Contact position held by Ms. Anderson. Asked why he did not do so after November 11, 2003, Mr. Makdessian stated that the decision had no impact on Mr. Virk's status, that the latter still had the option, as did any employee having eight years of service, to exercise his displacement right if he chose to do so. Given the fact that Mr. Virk had made it clear to him that he would feel uncomfortable in doing so, Mr. Makdessian did not see any need to go back to Mr. Virk. [90] The evidence shows that, on November 27, 2003, Mr. Virk approached Mr. Makdessian seeking to understand the rationale as to why Ms. Anderson's E-Contact job was no longer declared surplus. Mr. Makdessian explained to Mr. Virk that whether or not Ms. Anderson was declared surplus had no impact on his ability to transition into the Resource Associate role she held, a thing he could have done when the window of opportunity was available. In his testimony, Mr. Makdessian acknowledged that on November 27, 2003, it was too late for Mr. Virk to exercise his displacement right. [91] Mr. Makdessian further explained to Mr. Virk that not declaring the E-Contact position as surplus did not in any way imply that the E-Contact role was permanent, the future of the E-Contact role still being uncertain at that point. [92] The record shows that on December 4, 2003, Mr. Virk sent to Mr. Makdessian, as well as to Mr. Charlie Latino and Mr. Ron Singh, an e-mail regarding misinformation about the E-Contact surplus. On December 8, 2003, as well as on December 10 and 11, 2003, Mr. Makdessian tried to locate Mr. Virk without success. [93] On December 11, 2003, Mr. Virk sent an e-mail to Mr. Makdessian indicating that he would be available to meet with him the following day. Mr. Makdessian confirmed that he was available. [94] On December 12, 2003, Mr. Virk called Mr. Makdessian to inform him that he could not attend the meeting. A new meeting was scheduled for December 15, 2003. However, on the morning of December 15, 2003, Mr. Virk called Mr. Makdessian telling him that he was no longer available but that he might be able to meet with him on December 17, 2003. [95] The record shows that, on December 12, 2003, Mr. Virk filed a grievance against the respondent alleging that its failure to give him correct information had resulted in him missing an opportunity to displace a more junior Resource Associate in the E-Contact Group. [96] At the hearing, Mr. Virk acknowledged that he also filed a grievance against his union for having misrepresented him. Mr. Virk stated that he holds the union partly responsible for not having informed him of the removal of the surplus tag on Ms. Anderson's position. [97] On December 17, 2003, a meeting was held between Ms. Sonia Bell, a union representative from the CTEA, Mr. Makdessian and Mr. Virk to discuss the grievance regarding the company's failure to inform Mr. Virk of the change in surplus status for Ms. Anderson. [98] The record shows that Ms. Bell explained to Mr. Makdessian that Mr. Virk felt misled about the company's position regarding the E-Contact position. According to Mr. Makdessian, Ms. Bell, who was not called as a witness, stated that had Mr. Virk been informed of the decision to remove the surplus tag on Ms. Anderson, Mr. Virk might have wanted to exercise his displacement right. [99] Mr. Makdessian testified that he told Ms. Bell that removing the surplus tag from Karen Anderson did not influence Mr. Virk's ability to exercise his displacement right if he had chosen to do so. Nor did the removal of the tag change the temporary nature of the job. [100] On December 23, 2003, Mr. Makdessian denied the grievance after meeting with Ms. Sonia Bell. Mr. Makdessian testified that with Ms. Bell, he went over the reasons as to why Mr. Virk wanted to displace Ms. Anderson, as well as what was said at the meeting held on November 5, 2003, a meeting attended by Ms. Bell. According to Mr. Makdessian, Ms. Bell fully agreed with what had been said by Mr. Makdessian at the meeting. The evidence shows that on January 13, 2004, Mr. Virk's grievance was presented to Ms. Maria Arpino and was denied. [101] Mr. Virk's employment with Bell ended on January 11, 2004. The evidence shows that the status of the E-Contact position had not changed at the time of the hearing. It was still temporary. [102] The Globe and Mail project resumed on February 1, 2004. Asked why the Globe and Mail project was revived in 2004, Mr. Makdessian testified that in January 2004, the Globe and Mail consultants contacted Ms. Arpino, saying that they wanted to re-open the issue of the price point. A meeting was held during which a new price point structure was proposed. [103] According to Mr. Makdessian, the decision to revive the project was taken the same day or the day after the meeting. Asked to comment on why the project was so quick in running again in the latter part of January 2004, Mr. Makdessian stated that none of the applications had been removed given that no other project had been planned to replace it. [104] The evidence shows that the resumption of the Globe and Mail project was accompanied by changes to the structure of the Globe and Mail team. The positions of Resource Associate held by Mr. Virk as well as that of Associate held by Ms. Young were abolished. A Team Coordinator position was created in order to assist the Sales Manager, Mr. Ron Singh who had previously been the Sales manager on the project. According to the evidence, Mr. Rakesh Sharma, already a team leader, was given the job. The evidence shows that the Team Coordinator position is one covered by the CTEA Sales Collective Agreement as opposed to the Clerical Collective Agreement that applied to Mr. Virk. [105] Furthermore, a lot of the processes were streamlined and automated. According to Mr. Makdessian, a lot less administrative work was required with the new structure, the focus being put on coaching people to sales success. In this context, the position of Team Coordinator was more in tune with the new structure than that of Resource Associate. III. ANALYSIS [106] There are two issues before the Tribunal. The first one pertains to the allegation that Mr. Virk was discriminated against by Bell in the course of employment through the acts of Mr. Weich on the ground that Mr. Virk is of South Asian descent (discrimination issue). The second one pertains to the allegation that Mr. Makdessian retaliated against Mr. Virk for filing his human rights complaint (retaliation issue). [107] As for the first issue, Mr. Virk alleges that the discrimination occurred when he was demoted, as stated by Mr. Virk, from an Acting Manager position to his previously held Resource Associate position as of January 2, 2002 rather than being confirmed as a Sales Manager effective January 2, 2002, this occurring because he is of South Asian descent. [108] In this regard, Mr. Virk seeks, amongst other things, that the respondent provide him with a management position based on his performance and on the opportunity that he had in January 2002 of becoming a manager. It is Mr. Virk's view that he was at the time ready for a management position, that he should have become then a confirmed manager. In support of his claim, Mr. Virk relies on the fact that two unionized employees who are Caucasian got acting assignments in January 2002 and were later confirmed as managers. [109] As for the second issue, Mr. Virk's main allegation is that the retaliation occurred when he was not told by Mr. Makdessian that the employee who had been declared surplus, Ms. Karen Anderson, was no longer surplus as of mid-November 2003. Mr. Virk also identified as an act of retaliation the fact that in November 2003, Mr. Makdessian never identified, apart from Ms. Karen Anderson, who the other Resource Associates were that he could have displaced. Mr. Virk went as far as saying that he considered as part of the retaliation events of 2002 leading to it without identifying these events. A. THE DISCRIMINATION ISSUE [110] It is one thing to allege discrimination. It is another to prove it. Discrimination is generally subtle and thus often hard to prove. Still the person alleging discrimination in an employment context must present evidence that will bring a Tribunal to conclude that discrimination played a role in that person not getting a position. [111] Here, Mr. Virk had the burden of proving that, on January 2, 2002, he was discriminated against because he is of South Asian descent. Mr. Virk had to prove facts that would lead the Tribunal to conclude that one of the reasons why he was not kept as a manager on the Globe and Mail project as of January 2, 2002 was because of his ethnic origin. [112] To support his allegations that Mr. Weich discriminated against him, Mr. Virk referred to an array of situations, firstly, that Mr. Weich used South Asians only in support functions, secondly that most of the support staff in Mr. Weich's section is of South Asian origin and none of his managers are of South Asian descent, a fact that is highlighted by Exhibit R-4, thirdly that, since 1998, Mr. Weich never hired a South Asian as a manager and, fourthly that, in 1998, the only South Asian manager working when Mr. Weich joined the Vendor Management section left within a year. [113] Mr. Virk also relied on an e-mail dated October 22, 2001 to show that all five Associate Directors whose names appear on the e-mail are Caucasian and that the managers were mainly Caucasian. Mr. Virk confirmed however that amongst the people he identified as Caucasian were people from Italian, Portuguese, Irish, Greek descent. [114] To further buttress his allegation that Bell discriminated against him, Mr. Virk relied on the fact that Bell has failed to keep up with the changes relating to visible minorities in the Canadian workforce and that the people in the upper management in the Ontario Direct Marketing Centre Organization are all Caucasians. [115] At the hearing, Mr. Weich strongly denied having discriminated against Mr. Virk in November 2001 because he is of South Asian descent. He acknowledged that Mr. Virk did qualify to retain the Globe and Mail management position based on performance as of January 1, 2002. However, he stated that the sole reason why Mr. Virk reverted to his Resource Associate position in January 2002 was because it had been decided that the position of manager on the Globe and Mail project, in a context of rightsizing, should be filled by a confirmed manager so as to protect that person's job. [116] In response to Mr. Virk's claim that Mr. Weich discriminated against him on January 2, 2002, the respondent relied, firstly, on the fact that Mr. Weich had, in the past, filled managerial positions within his group with people from visible minorities, secondly, that the composition of his group in March 2003 reflected a diversity of cultural backgrounds: Jamaican, Armenian, Indian, Afghan, South American, South Asian, Black, Arab, Mediterranean, Filipino, Asian. Thirdly, the respondent put in evidence a picture taken in the summer of 2003 of Mr. Weich's Vendor Management Team to illustrate its claim that the employees working in the Direct Marketing Centre came from different cultural backgrounds. At the hearing, Mr. Virk made the point that in the picture, there are three individuals of South Asian descent but none of them are Sales Managers. Mr. Weich acknowledged that fact in his testimony. [117] Asked why he had not hired a person of South Asian descent as a manager from 1998 onward, Mr. Weich stated that when he is hiring, he is looking for the best possible candidate. (i) State of the law [118] In a human rights case, the burden of proof lies with the complainant. This said, the case law requires that the complainant, in order to be successful, imperatively make from the outset a prima facie case of discrimination. [119] In Lincoln v. Bay Ferries Ltd., [2004] F.C.J. No. 941, the Federal Court of Appeal stated that the decisions in O'Malley v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 and Ontario (Human Rights Commission) v. Etobicoke (Borough), [1985] 2 S.C.R. 536, provide the basic guidance for what is required of a complainant to establish a prima facie case of discrimination under the Canadian Human Rights Act. [120] According to O'Malley, a prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the complainant's favour in the absence of an answer from the respondent. According to Etobicoke, once a complainant has established a prima facie case of discrimination, he is entitled to relief in the absence of a justification by the respondent. The justification provided by the respondent must not be a mere pretext or a disguise for the respondent's otherwise discriminatory conduct. [121] Thus, if the respondent is able to prove conclusively that the decision reached in relation to the complainant was not based on a prohibited ground of discrimination, the complaint must be dismissed. [122] With respect to the establishment of a prima facie case of discrimination in an employment context, tribunals have generally referred to the Shakes v. Rex Pak Limited, (1981) 3 C.H.R.R. D/1001 and Israeli v. Canadian Human Rights Commission and Public Service Commission, (1983) 4 C.H.R.R. D/1001 decisions. In Lincoln, the Federal Court of Appeal stated, however, that the decisions in Shakes and Israeli are but illustrations of the application of the guidance referred to above. [123] In the case at hand, the respondent is of the view that the complainant has failed to even make a prima facie case of discrimination and that if he did, the respondent provided an explanation which is not a mere pretext. (ii) Review of the evidence [124] The evidence shows that Mr. Virk strongly believed that he should have continued managing the Globe and Mail project on January 2, 2002 because of his skills and experience and given the fact that he was more qualified than the confirmed manager who replaced him. According to Mr. Virk, it would have made prudent business sense for Bell Canada to retain the most qualified employee as manager on the Globe and Mail project. [125] Mr. Virk testified that he felt that, on January 2, 2002, all of his accomplishments and capabilities were overlooked, that he was deprived of immediate and future potential opportunities of being confirmed as a manager. The decision not to let him continue to manage the Globe and Mail project took away the prospect of his career growth as a manager at Bell Canada. The evidence shows that Mr. Virk found it humiliating and hurtful to go back to his Resource Associate position after having been Acting Manager. [126] Time and again in the present proceedings, Mr. Virk referred to the fact that, on January 2, 2002, he was demoted from Acting Manager to Resource Associate on the Globe and Mail project and asserted that this demotion was related to the fact that he is of South Asian descent and not Caucasian. [127] For example, in his complaint, Mr. Virk asserts that the respondent discriminated against him by demoting him, that he was told on November 30, 2001 by his Associate Director, Mr. Ted Weich, that he was going to be demoted from his position as acting manager and placed in a position of Resource Associate on the same project, that the demotion was not related to his performance, that his demotion would be effective January 1, 2002, and that he believed that he was demoted because of his national or ethnic origin. (Emphasis added) [128] In his final submissions, Mr. Virk again reiterated that Bell Canada discriminated against him in the course of his employment on the grounds of national or ethnic origin, by demoting him contrary to section 7 of the Act. According to Mr. Virk, the only reason why he was demoted to a non-management Resource Associate position on January 2, 2002, was because of his national or ethnic origin, i.e. South Asian. [129] Mr. Virk argued that the reasons provided by Bell to support its decision to return him to his unionized Resource Associate position on January 2, 2002 are implausible. According to Mr. Virk, at the time of his demotion, there was no rightsizing going on at Bell and acting managers were still being appointed. That confirmed managers were at risk of losing their jobs is strongly disputed by Mr. Virk. [130] The Tribunal finds that the evidence does not support Mr. Virk's allegation that he was demoted on January 1, 2002. The evidence shows that Mr. Virk was given in October 2001 an acting manager position on the Globe and Mail project that ended when the Globe and Mail project was temporarily shut down in November 2001. The fact of reverting to one's previous unionized position cannot be interpreted by any stretch of the imagination as a demotion. [131] On this point, the evidence clearly establishes that, at the time he was given an acting manager assignment on the Globe and Mail project, in November 2001, Mr. Virk was a Resource Associate in the Vendor Management Group of Mr. Ted Weich in the Direct Marketing Centre and a unionized employee governed by the CTEA Clerical and Associated Employees Collective Agreement. [132] As the evidence shows, the fact of being given an acting assignment does not in itself guarantee that at the end of the assignment, the person will be confirmed as a manager. [133] The Tribunal finds that Mr. Virk's acting manager assignment on the Globe and Mail project in the fall of 2002 was temporary in nature and that once the acting assignment was over, it was not unusual, contrary to what Mr. Virk asserts, for him to revert to his former position, that of Resource Associate. [134] The evidence shows that prior to his acting assignment on the Globe and Mail project, Mr. Virk had had only two other acting assignments, one of which was not in a managerial context. The evidence also suggests that Ms. Debbie Vieira had eight acting assignments in 2002 and only became a confirmed manager in 2003. Thus, no matter how many acting manager positions one has held in the past, being confirmed as a manager at the end of an acting assignment is not automatic. [135] After a careful review of the evidence, the Tribunal finds that the respondent provided a reasonable explanation as to why Mr. Penno Makdessian, a confirmed manager, was asked to take over the Globe and Mail project in January 2002 and Mr. Virk's acting assignment was not extended beyond December 2001. [136] The evidence shows that Mr. Makdessian had the sales experience that the job required, that given the impetus that Bell wanted to give to the Globe and Mail project, Mr. Makdessian was seen as the right candidate for the job. In addition, because of the rightsizing context prevailing in the Direct Marketing Centre, priority was given to confirmed managers in order to secure their job. [137] The Tribunal shares the view that, in any organization, the employer has the right to determine which employee will be assigned to perform a certain job. Many elements can come into play when making such a decision. As stated in Hill v. Air Canada, 2003 CHRT 9, it is not the role of the Tribunal to fine-tune these kinds of decisions that are beyond its expertise. The role of the Tribunal is to inquire if the decision was in part based on a prohibited ground of discrimination. [138] As to the representations made by Mr. Weich to Mr. Virk on November 30, 2001 that there would be no more acting managers or new manager assignments in his department as of November 2001 and the fact that two acting managers were subsequently appointed, given the evidence, the Tribunal cannot find or infer that Mr. Virk was not chosen because he is of South Asian descent or that he had been lied to by Mr. Weich. [139] The fact of the matter is that in April 2002, Mr. Virk was given a new acting position on the Globe and Mail project that lasted until October 2002. He was again appointed acting Sales Manager on the project in August 2003. [140] The fact that Mr. Weich has since 1998 never hired a person of South Asian descent as manager does not in itself prove or give rise to a presumption that Mr. Weich is someone who discriminates against individuals of South Asian descent. As mentioned previously, asked by Mr. Virk why he had not hired a manager of South Asian descent since 1998, Mr. Weich answered that when he is hiring, he is looking for the best possible candidate for the job irrespective of the person's ethnic background. [141] The evidence shows also that Mr. Weich has on his Vendor Management Team individuals of South Asian descent who do not seem to have complained of any discrimination on his part. No evidence to that effect was put before the Tribunal. In addition, the evidence shows that Mr. Singh, the confirmed manager in charge of the Globe and Mail project from October 2002 to August 2003 is of South Asian descent. [142] That a list of names contains more names of people who are Caucasian (Italian, Portuguese, Irish, Spanish) than of any other ethnic origin, such as people from South Asian, African, Middle Eastern or Far Eastern descent, does not in itself give rise to an inference of discrimination against people having a specific cultural background. [143] Nor does the fact that an organization such as Bell does not meet the national profile for the number of managers from visible minorities at large employed at Bell. This type of information will usually be useful to prove that the working environment supports an inference, based on the prima facie test, that there was, in all probability, discrimination. [144] In any event, there is a further reason for dismissing Mr. Virk's discrimination complaint. Part of Mr. Virk's case is based on the fact that it is Mr. Weich who discriminated against him when, in January 2, 2002 he was reverted to his Resource Associate position and was not asked to continue managing the Globe and Mail project. [145] The evidence shows that it was Mr. Latino who decided to hire Mr. Makdessian as Sales Manager on the Globe and Mail project in November 2001 and to revert Mr. Virk to his former Resource Associate position. Thus, the allegation made by Mr. Virk against Mr. Weich that the latter discriminated against him because he is of South Asian descent when he was not hired or confirmed as manager on the Globe and Mail project in January 2002 lacks any evidentiary basis. [146] As stated above, a prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the complainant's favour in the absence of an answer from the respondent. [147] After having carefully reviewed the evidence, the Tribunal finds no basis for Mr. Virk's allegation that he was discriminated against when he was not confirmed as a manager or given a new acting manager assignment on the Globe and Mail project because he is of South Asian descent. [148] The Tribunal finds that the explanation provided by the respondent as to why Mr. Virk was not confirmed as a manager in January 2002 on the Globe and Mail project is not pretextual but wholly credible in view of the evidence and that it cannot reasonably be inferred from the evidence that the failure to offer Mr. Virk a management position on the Globe and Mail project in the fall of 2001 was at least in part due to the fact that Mr. Virk is of South Asian descent. [149] Hence, given the allegations found in Mr. Virk's complaint, the evidence and the criteria set out in Etobicoke and O'Malley, the explanation provided by the respondent, the Tribunal rules that Mr. Virk has not established a prima facie case of discrimination. B. THE ISSUE OF RETALIATION [150] On March 5, 2004, Mr. Virk amended his complaint to allege that Bell Canada retaliated against him by terminating his employment for having filed a human rights complaint. [151] In his amended complaint, Mr. Virk alleges that Bell brought an end in November 2003 to the Globe and Mail project to which he had been assigned and utilized this situation to disguise its retaliation against him. [152] Mr. Virk blames Bell and, more specifically, Mr. Makdessian for having misled him when, firstly, the latter did not inform him that the surplus tag on Ms. Anderson's position, the E-Contact position, had been removed, thus preventing him from exercising his displacement right at the time. Mr. Virk also blames Mr. Makdessian for having failed to inform him that he could have displaced, in addition to Ms. Anderson, other Resource Associates with less seniority in the Vendor Management Group. Mr. Virk sees these failures as negligence as well as acts of retaliation on the part of Mr. Makdessian and states that had he been informed of these facts, he would have exercised his displacement right and would still be working at Bell Canada today. [153] Mr. Makdessian strongly denies that he retaliated against Mr. Virk when he did not inform the latter of the change of status of the E-Contact position, being of the view that this information was not pertinent to the exercise of Mr. Virk's displacement right. Furthermore, repeatedly in his testimony, Mr. Makdessian stated that, given that Mr. Virk had clearly identified to him that he felt uncomfortable in bumping anyone out of a position and was very emotional and passionate about it, he did not feel that it was pertinent for him to inform Mr. Virk of that change. [154] On the whole, Bell denies having retaliated against Mr. Virk because the latter had brought a human rights complaint against it, that all the decisions that were taken in relation to the Globe and Mail project and Mr. Virk's employment at Bell were strictly business based. (i) State of the law [155] Under section 14.1 of the Act, it is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim. [156] Retaliation implies some form of willful conduct meant to harm or hurt the person who filed a human rights complaint for having filed the complaint. This view departs in part from those expressed in previous decisions of this Tribunal on the issue of retaliation (Wong v. Royal Bank of Canada, [2001] CHRT 11; Bressette v. Kettle and Stony Point First Nation Band Council, 2004 CHRT 40). [157] In Wong and Bressette, the views expressed are to the effect that a complainant does not have to prove an intention to retaliate and that if a complainant reasonably perceived the impugned conduct by the respondent to be in retaliation to the human rights complaint, this could amount to retaliation quite apart form any proven intention of the respondent. (Italics added) [158] The burden of proving retaliation rests with the complainant who must prove, on a balance of probabilities, that the person against whom he or she alleges retaliation knew of the existence of the complaint, that the person acted in an inopportune way and that the person's misbehaviour was motivated by the filing of a human rights complaint by the complainant. Retaliation being a form of discrimination under the Act, the same evidentiary burden should apply to allegations of discrimination and retaliation. [159] Thus, proof on the part of the complainant that the person who is alleged to have retaliated knew of the existence of the complaint and that he or she acted in an inopportune way may give rise to a prima facie case of retaliation requiring the alleged retaliator to come forth with a reasonable explanation as to the reasons for his actions. If the explanation given is not credible, the Tribunal should find the allegation of retaliation substantiated. (ii) Review of the evidence [160] In his testimony, Mr. Makdessian stated that he only became aware of Mr. Virk's complaint in January 2003. This statement was never proven false. The claim made by Mr. Virk that the retaliation started in 2002 must thus be dismissed. Thus remains to be examined events that took place after January 2003 which Mr. Virk considers as retaliatory measures. [161] Firstly, Mr. Virk considers as an act of retaliation the fact the Mr. Makdessian did not inform him of the removal of the surplus tag on Ms. Karen Anderson's E-Contact position. The evidence indicates that the surplus tag on the E-Contact position was removed after November 11, 2003. [162] There is undisputed evidence that Mr. Makdessian did not inform Mr. Virk of the removal of the surplus tag on the E-Contact position. Asked repeatedly why he had not convey that information to Mr. Virk, Mr. Makdessian stated that, given that Mr. Virk had clearly made it known to him previously that he felt uncomfortable in displacing a fellow employee, Mr. Makdessian saw no need to inform him of the change. Furthermore, Mr. Makdessian felt that the change of status had no bearing on Mr. Virk's right of displacement. [163] The fact that Mr. Virk was not informed that Ms. Anderson's position was not being eliminated does not by itself prove retaliation on the part of the respondent. Given that the change in status of the position had no impact on Mr. Virk's right of displacement, the Tribunal finds that this fact did not constitute pertinent information in the circumstances. Had the evidence shown otherwise, an inference could have been drawn that this inopportune behaviour constituted retaliation on the part of Mr. Makdessian. [164] Secondly, Mr. Virk considers as an act of retaliation the fact that Mr. Makdessian did not specifically advise him that he could displace four Resource Associates working in the Direct Marketing Centre, as well as Ms. Anderson. [165] The evidence shows that on November 5, 2003, the people attending the meeting called by Mr. Makdessian were clearly informed of the displacement procedure and told that if they wanted details on the procedure, they could go see their Union Representative or their Manager. [166] It however stems from the evidence that Mr. Makdessian never specifically identified to Mr. Virk the four Resource Associates within the Direct Marketing Centre that the latter could have displaced apart from Ms. Karen Anderson. Did Mr. Makdessian have to be that specific? [167] The Tribunal finds that there is nothing in the evidence that indicates that Mr. Makdessian should have identified by name the individuals Mr. Virk could have displaced and that by not doing so Mr. Makdessian acted improperly and tried to mislead Mr. Virk with respect to his different options. It was open to Mr. Virk to enquire as to whom he could displace. [168] Aware of the fact that he could lose his job, Mr. Virk should have sought from his union as well as management additional information as to the exercise of his displacement right. The fact of the matter is that Mr. Virk is blaming not only Bell Canada but also the CTEA for not having provided him with the information he felt was relevant to his decision whether to exercise his right of displacement and alleges negligence on their part. In this context, the Tribunal finds no wrongdoing on the part of Mr. Makdessian, let alone any form of retaliation. [169] Hence, the Tribunal rules that the complainant has not conclusively, on a balance of probabilities, established a prima facie case of retaliation. IV. CONCLUSION [170] The Tribunal rules that the Complainant failed to establish a prima facie case of discrimination on the ground of ethnic origin and that, in any event, the respondent provided a reasonable explanation as to why the Complainant was not confirmed as Manager on the Globe and Mail project in January 2002. [171] The Tribunal also rules that the Complainant failed to establish that he was retaliated against for having filed a human rights complaint when Mr. Makdessian failed to inform him of the change of status of the E-Contact position and of the possibility for him to displace Resource Associates other than Ms. Anderson. [172] For the foregoing reasons, the Complaint is dismissed. Signed by Pierre Deschamps OTTAWA, Ontario January 20, 2005 PARTIES OF RECORD TRIBUNAL FILE: T858/10803 STYLE OF CAUSE: Roger Virk v. Bell Canada (Ontario) DATE AND PLACE OF HEARING: April 19 to 23, 2004 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: January 20, 2005 APPEARANCES: Roger Virk On his own behalf Johanne Cavé On behalf of the Respondent

2005 CHRT 20

CHRT

Basudde v. Health Canada

en

2005-05-27

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7115/index.do

2023-12-01

Basudde v. Health Canada Collection Canadian Human Rights Tribunal Date 2005-05-27 Neutral citation 2005 CHRT 20 File number(s) T901/2104 Decision-maker(s) Groake, Paul Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CRIS BASUDDE - and - SHIV CHOPRA Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - HEALTH CANADA Respondent RULING MEMBER: Dr. Paul Groarke 2005 CHRT 20 2005/05/27 I. AMENDMENT OF THE COMPLAINTS 1 I. AMENDMENT OF THE COMPLAINTS [1] Counsel for the Complainants has requested that the complaints filed by Dr. Chopra be amended. The other parties have consented. I have reviewed the amendments and am satisfied that they are properly before the Tribunal. [2] The Tribunal accordingly orders that the underlined words which follow be added to the complaint dated January 12, 1999: [3] Health Canada has discriminated against me by treating me in an adverse differential manner in the course of my employment by denying me promotional opportunities based on my race, colour and national or ethnic origin (East Indian) contrary to sections 7 and 10 of the Canadian Human Rights Act, and by harassing me, contrary to section 14 of the Canadian Human Rights Act. [4] The Tribunal similarly orders that the underlined sentence which follows be added to the Additional Allegations dated June 27, 1999: [5] I allege that the department has taken actions which constitute retaliation against me because of having filed my Human Rights Complaint this year, in that I am qualified for these positions and have been bypassed because of the harassment complaint I have filed. These actions constitute retaliation under section 14.1 of the Canadian Human Rights Act, [6] I would direct the parties to enter the amendments into the record at the outset of the hearing, along with the other originating documents. Signed by Dr. Paul Groarke OTTAWA, Ontario May 27, 2005 PARTIES OF RECORD TRIBUNAL FILE: T901/2104 STYLE OF CAUSE: Cris Basudde and Shiv Chopra v. Health Canada DATE AND PLACE OF HEARING: May 10, 2005 Ottawa, Ontario RULING OF THE TRIBUNAL DATED: May 27, 2005 APPEARANCES: David Yazbeck On behalf of the Complainants Philippe Dufresne On behalf of the Canadian Human Rights Commission David Migicovsky On behalf of the Respondent

2005 CHRT 21

CHRT

Basudde v. Health Canada

en

2005-05-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7114/index.do

2023-12-01

Basudde v. Health Canada Collection Canadian Human Rights Tribunal Date 2005-05-30 Neutral citation 2005 CHRT 21 File number(s) T901/2104 Decision-maker(s) Groake, Paul Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CRIS BASUDDE - and - SHIV CHOPRA Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - HEALTH CANADA Respondent RULING MEMBER: Dr. Paul Groarke 2005 CHRT 21 2005/05/30 I. THE MOTION II. SPECIFIC ALLEGATIONS A. Allegation 1. B. Allegation 2. C. Allegation 3. D. Allegation 4. E. Allegation 5. F. Allegation 6. III. CONCLUSIONS IV. RULING I. THE MOTION [1] The Motion is based on the complaints filed by Dr. Shiv Chopra. The situation is fairly simple. As a result of the extensive litigation, the Respondent says that a number of allegations in the complaints are subject to the doctrine of issue estoppel. They have already been litigated. [2] There is a long history of litigation between Dr. Chopra and the Respondent. Dr. Chopra has been before the Tribunal in two previous cases. They have also been adversaries in the Federal Court, and before the Public Service Staff Relations Board, now the Public Service Labour Relations Board. I have not counted, but the parties have been legal contestants on numerous occasions. [3] The Respondent's primary concerns arise out of the findings of Mr. Hadjis in Chopra v. Canada (Department of National Health and Welfare) [2001] C.H.R.D. No. 20 (QL). There were also findings in National Capital Alliance on Race Relations (NCARR) v. Canada (Health and Welfare), 1997 CHRD No. 3 (QL), however, which dealt with a complaint against the same employer under section 10 of the Canadian Human Rights Act. Then there is the other litigation. [4] The Respondent's Notice of Motion asks me to strike out certain aspects of the complaint. This is problematic. The Tribunal is master of its own process and has every right to supervise the inquiry. It has no authority over the referral process, however. It is the Commission that decides what will be referred to the Tribunal. I do not see how I can strike passages from the complaints without implicitly undermining the authority of the Commission and entering into the referral process. [5] This does not prevent the Tribunal from amending the complaints or deciding what is properly before it. Amendments are one thing; deletions another. There are exceptional situations, but as a general rule I do not think that I can remove passages from documents that originate outside the process. The Respondent has other sources of redress. I see no difficulty, for example, with an application to strike out paragraphs of the Statement of Particulars. The review of pleadings comes within the normal scope of the Tribunal's functions. [6] The problem in the immediate case is that the pleadings have yet to be exchanged. I think a colloquial phrase probably says it best: the parties are getting ahead of themselves. It is too early to deal with the niceties of the case and the Motion is premature. I am nevertheless satisfied that some direction would be of assistance to the parties. II. SPECIFIC ALLEGATIONS [7] It may be helpful to comment on the specific allegations that concern the Respondent. A. Allegation 1. [8] The first is the alleged failure to appoint Dr. Chopra to the position of Director, Bureau of Veterinary Affairs in 1993. I agree with the Respondent, in saying that this issue has already been litigated. [9] The simplest observation is chronological. Dr. Chopra has already obtained a finding of discrimination for the events that took place up until 1992. The Tribunal that found in his favour, however, received evidence relating to events that took place between 1992 and 1994. That evidence was presented by the Commission, on behalf of Dr. Chopra, and clearly formed part of Dr. Chopra's case. He had the benefit of this evidence. [10] Mr. Hadjis appears to have treated this evidence as circumstantial evidence, which might bolster the Complainant's case. All I will say, at this time, however, is that the parties are bound by his findings. If either side were unhappy with his decision, their remedy lay in the Federal Court. B. Allegation 2. [11] The second allegation concerns an internal complaint that was lodged against Dr. Chopra in 1993. This was described as an attempt to discredit him. There was evidence with regard to these aspects of the matter before Mr. Hadjis, who found that the motives of the person who laid the complaint were not racial. Although it would be a mistake to go into the details of Mr. Hadjis' decision, I want to make it clear that the parties are bound by his findings. [12] Mr. Yazbeck goes further, however. He states that the Complainant wants to call evidence with respect to the Respondent's handling of the matter. This may or may not raise a new set of issues, which are properly before me. It is difficult to say, at this point in time. Any decision on the precise questions that might arise in this respect will have to be decided at the appropriate time. C. Allegation 3. [13] The third allegation relates to a document referred to as the Cuddihy memo. This document has apparently played a prominent role in the three hearings that have already taken place. It clearly played a part in Mr. Hadjis' finding of discrimination. [14] There are two aspects to the matter. The first goes to the merits of the complaint. At this point, I cannot see any reason why the Complainant would need to rely on the document, since the Tribunal is already bound by Mr. Hadjis' finding that he was discriminated against in the 1992 period. [15] These comments do not exhaust the issue. It may still be necessary to provide the Tribunal with a certain amount of evidence to establish the context in which the later events took place. These kinds of issues should be vetted when the material allegations in the case have been clarified, either in the pleadings or during the course of testimony. D. Allegation 4. [16] The fourth allegation is that the Respondent failed to comply with the order of the Tribunal in National Capital Alliance on Race Relations (NCARR) v. Canada (Health and Welfare). The Respondent says that the Complainant was not a party to the hearing and has no standing in the matter. It has also provided the Tribunal with a letter from the Chief Commissioner, stating that the Respondent has complied with the order. I agree with the Respondent than any question of compliance must be dealt with in the Federal Court, as contemplated by the Act. [17] The matter goes further. Mr. Yazbeck stated that Dr. Chopra discussed the question of compliance with his superiors. I cannot say whether these conversations go to the substance of the more recent allegations or have a bearing on the present inquiry. The relevance of this kind of evidence needs to be decided in the course of the hearing, when circumstances permit a proper evaluation of the interests at stake. E. Allegation 5. [18] There is also a dispute over a ruling by the Public Service Staff Relations Board with respect to a five day suspension. There was debate as to the exact significance of the Board's ruling. This is not the time or place to deal with technical legal questions. At this point, it is enough to say that it is not the role of the Canadian Human Rights Tribunal to review the findings and decisions made by another adjudicative body within the proper scope of its responsibilities. It follows that the parties are not entitled to re-litigate the issue that went before the Staff Relations Board. F. Allegation 6. [19] Finally, there are allegations relating to Dr. Chopra's failure to obtain the Director's position in the Bureau of Veterinary Affairs during the period of 1997 to 1998. This was long after the period of time covered by the previous complaints, but before Mr. Hadjis dealt with the question of remedy. [20] I cannot see that it matters. These allegations come squarely within the four corners of the present complaints. They were never before Mr. Hadjis. I do not see how it can be said that the factual and legal issues arising out of these allegations have been litigated. Issue estoppel does not apply. III. CONCLUSIONS [21] I have already stated that the present motion is premature. The issues that it raises have not been properly defined by the parties. The Tribunal has held on many occasions that rulings on evidentiary or procedural matters should be dealt with when the relevant interests have properly materialized before the Tribunal. It is a mistake to rule on these matters too early, before the repercussions of any ruling have become apparent. [22] The Canadian Human Rights Act guarantees all of the parties a full and ample opportunity to present their cases. I agree with the Commission that the Tribunal's procedural mandate, in the process leading up to the hearing, is governed by a principle of caution. The Tribunal should be careful not to deprive a complainant of the opportunity to put its full case before the member hearing the matter. It is far too early in the process to determine the exact parameters of the inquiry. [23] I should probably add that, in my view, the scope of the present inquiry is relatively broad. The Complainant has had an opportunity to tell his story to the Tribunal, roughly until 1994. The story does not end there, however. There is a sequel. As I understand it, he now intends to take up the narrative and continue it, until the date of his termination. He is entitled to do so. [24] I think the parties agree that it would be a mistake to contemplate other hearings in the future. One of the purposes of inquiries is to provide some finality to these kinds of disputes. I accordingly think the Complainant should be given the latitude he needs to present any allegations of discrimination that continue into the present. This will hopefully resolve the issues between the two sides, once and for all. IV. RULING [25] All I can say, on the Motion, is that the parties are bound by the findings of the Tribunal in previous cases. They are not entitled to re-litigate issues that have already been decided. It is for the Tribunal to decide, as a matter of judgement, whether allegations or evidence cross into the same territory that was the subject of a finding by a previous Tribunal. Specific objections should be dealt with when they arise. [26] It may still be necessary to make some reference to the events that form the subject of earlier findings, simply for the purpose of providing the present Tribunal with some history of the relations between the parties. This is a necessary part of the inquiry. It is well recognized that contextual evidence is of particular assistance in the human rights process. [27] I have already directed the Complainants to file their Statement of Particulars by June 17 th, 2005. If the Respondent feels that the particulars go beyond the legitimate scope of the complaints, it should raise the matter as expeditiously as possible. Signed by Dr. Paul Groarke OTTAWA, Ontario May 30, 2005 PARTIES OF RECORD TRIBUNAL FILE: T901/2104 STYLE OF CAUSE: Cris Basudde and Shiv Chopra v. Health Canada DATE AND PLACE OF HEARING: May 10, 2005 Ottawa, Ontario RULING OF THE TRIBUNAL DATED: May 30, 2005 APPEARANCES: David Yazbeck On behalf of the Complainants Philippe Dufresne On behalf of the Canadian Human Rights Commission David Migicovsky On behalf of the Respondent

2005 CHRT 22

CHRT

Smith v. Canadian National Railway

en

2005-06-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7117/index.do

2023-12-01

Smith v. Canadian National Railway Collection Canadian Human Rights Tribunal Date 2005-06-15 Neutral citation 2005 CHRT 22 File number(s) T939/5904 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JIM SMITH Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN NATIONAL RAILWAY Respondent RULING ON ISSUE ESTOPPEL MEMBER: Karen A. Jensen 2005 CHRT 22 2005/06/15 [1] On February 28, 2002, Jim Smith filed a complaint with the Canadian Human Rights Commission alleging that Canadian National Railway (CN) has been discriminating against him in employment on the basis of his disability. [2] On May 19, 2004, the Canadian Human Rights Commission (Commission) referred the complaint to the Tribunal for further inquiry. CN is now requesting an order indicating that the Tribunal does not have jurisdiction to hear the complaint because the matter has already been decided in another forum. I. BACKGROUND [3] Mr. Smith began working for CN in April, 1979. In November, 1997, Mr. Smith hurt his back while working. The Workers' Compensation Board provided him with compensation benefits. A number of efforts were made to return Mr. Smith to his job as a train engineer. These efforts ultimately failed. [4] In June, 2002, Mr. Smith's union advanced a grievance on his behalf alleging that the Company had contravened the Collective Agreement by failing to accommodate Mr. Smith's disability. The grievance was heard before Arbitrator Michel Picher. [5] Arbitrator Picher rendered a decision on July 14, 2003 in which he dismissed the grievance. In his decision, Arbitrator Picher held that CN had fulfilled its responsibilities under the Collective Agreement and the Canadian Human Rights Act to accommodate Mr. Smith. [6] On December 3, 2003, Mr. Smith and his union filed an application for judicial review of the arbitrator's decision. On August 5, 2004, prior to a hearing on the merits, the application for judicial review was discontinued. [7] In June and July of 2003, Mr. Smith was given an opportunity to train for a new position as a Traffic Coordinator in Prince George, British Columbia. If he successfully completed the training program, Mr. Smith was to be offered the Traffic Coordinator position. However, CN decided to terminate the program before Mr. Smith had completed it. [8] Shortly after the training program was aborted, the WCB terminated the vocational rehabilitation assistance it had been providing to Mr. Smith. [9] Mr. Smith appealed the decision to terminate the WCB assistance he had been receiving. The decision was subsequently upheld by a Workers' Compensation Review Officer on July 12, 2004. [10] On July 29, 2003, CN wrote to the Canadian Human Rights Commission to request that the human rights complaint that Mr. Smith had filed in February, 2002, be dismissed on the grounds that the issues in the complaint had already been fully resolved by Arbitrator Picher in his decision of July 14, 2003. [11] On May 19, 2004, the Canadian Human Rights Commission referred the complaint to the Tribunal for further inquiry. II. ANALYSIS A. The Commission's Decision to Refer the Complaint to the Tribunal [12] Mr. Smith argues that the Commission's decision to refer the complaint for further inquiry cannot now be reviewed by this Tribunal. However, in my view, the present motion does not involve a review of the Commission's decision. [13] Rather, it involves an examination of the Tribunal's jurisdiction and a decision as to whether, under the circumstances of the present case, the doctrine of issue estoppel applies to oust the Tribunal's jurisdiction over the complaint (Desormeaux v. Ottawa-Carleton Regional Transit Commission, [2002] C.H.R.D. No. 22 at paragraphs 13 and 14). B. Application of the Doctrine of Issue Estoppel [14] There comes a point in time when battles must be declared at end. The doctrine of issue estoppel is one of the devices that have been developed by the courts to determine the appropriate end to litigation. The doctrine has been extended, with some necessary modification, to administrative tribunals and officers. [15] In Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R 460, the Supreme Court of Canada set out a two-staged approach to the application of the doctrine in the context of administrative tribunals. The first stage involves a three-part test. If all of the elements of the test are met, then one passes to the second stage, which involves an exercise of the Tribunal's discretion. [16] The three requirements which must be met in the first stage of the application of the doctrine of issue estoppel are as follows: the same question is being decided in both proceedings; the judicial decision which is said to create the estoppel is a final decision; and the parties or their privies to the two proceedings are the same (Danyluk, supra, at paragraph 25). [17] According to CN all three requirements are met in the present case. [18] I do not agree. In my view, only one of the three requirements for the application of issue estoppel is met and therefore, the doctrine does not apply to oust the Tribunal's jurisdiction over Mr. Smith's complaint. (i) The Same Questions Being Decided [19] CN argues that the issues before the arbitrator were virtually identical to the issues currently before the Tribunal. [20] Mr. Smith, on the other hand, argues that Arbitrator Picher's decision is limited to the issue of whether CN had a duty to accommodate Mr. Smith in his hometown of Terrace, B.C. In contrast, he argues, the complaint before the Tribunal extends to allegations regarding CN's conduct with respect to the accommodation efforts as a whole, as well as with respect to Mr. Smith's workers' compensation claim, and the decision to terminate the training program in Prince George. [21] In my view, it is clear that Arbitrator Picher's decision did, in fact, deal with more than just the accommodation of Mr. Smith in Terrace. He noted that once it became evident to the Company that Mr. Smith was willing to consider employment at a location other than Terrace, it identified the Traffic Coordinator's position in Prince George as a possibility. Arbitrator Picher stated that CN's efforts with respect to the Prince George position, as well as its efforts to bring him back as a train engineer in Terrace, constituted reasonable accommodation of Mr. Smith's disability. [22] Thus, in my view, Arbitrator Picher's decision did, in fact, deal with more than just the accommodation of Mr. Smith in Terrace. [23] However, in my view, Arbitrator Picher's decision did not deal with all of the issues raised in Mr. Smith's human rights complaint. Of necessity, his decision was limited to the events that took place up to the date of the hearing. The complaint, however, covers allegations of discrimination dating from March 26, 2001 and ongoing. Therefore, the complaint encompasses allegations based on circumstances arising after the arbitration hearing, such as the termination of the training program in Prince George and the alleged retaliation by CN (see Smith v. Canadian National Railway, Ruling on the Motion to Add a Party and Amend the Complaint 2005 CHRT 23). [24] Furthermore, there is some indication on the file that Mr. Smith may not have been able to put all of the issues and evidence regarding the accommodation options in Terrace before the arbitrator as a result of the decision of union counsel not to call him as a witness. [25] For these reasons, I find that the issues in the complaint proceedings are different from the issues that were addressed by the arbitrator. (ii) The Finality of the Decision [26] The Canada Labour Code provides that a decision of an arbitrator is final and binding on the parties, subject only to judicial review for jurisdictional error. Although, in the present case, judicial review proceedings were commenced, they were subsequently discontinued. Therefore, I find that the arbitrator's decision was final and this requirement of the test has been met. (iii) The Parties or their Privies are the Same [27] For the third requirement to be met, the parties or their privies must be the same. It is clear that in the present case, the parties in the two proceedings are not the same. Are their privies the same? [28] In order to be a privy, there must be a sufficient degree of mutual interest between the parties to make it fair to bind the parties to the second proceeding to the decision of the first (Danyluk, supra, at paragraph 60). Determinations about whether there is a sufficient degree of mutual interest such that the parties may be said to be privies of one and other must be made on a case-by-case basis (J. Sopinka, S.N. Lederman and A.W. Bryant, eds, The Law of Evidence in Canada (2nd ed., 1999 at p. 1088)). (iv) The Union and Mr. Smith as Privies [29] CN argues that because the collective bargaining regime supplants the relationship between the individual and the employer, Mr. Smith's interests can only be advanced through the grievance procedure, including arbitration. In addition, the union has a duty, under s. 37 of the Canada Labour Code, to fairly represent employees in the bargaining unit in the handling of their grievances. [30] As a result, CN argues, in the arbitration context, the interests of Mr. Smith and the union are identical. [31] CN states that support for its arguments may be found in previous decisions of this Tribunal in which the union and the grievor have been found to be privies for the purposes of issue estoppel (Thompson v. Rivtow Marine Ltd., [2001] C.H.R.D. No. 47; Parisien v. Ottawa-Carleton Regional Transit Commission, [2002] C.H.R.D. No. 23; and Desormeaux, supra). [32] I have examined the Tribunal decisions cited by CN and find that there is nothing in those decisions to suggest that in every case, there will be a privity of interest between the union and the grievor/complainant. Rather, my reading of those decisions leads me to the conclusion that, in the particular circumstances of those cases, the Tribunal was prepared to accept that the union and the complainant were privies. As has been noted, this is a determination that must be made on a case-by-case basis. [33] Although the unionized employee's interests are advanced by and through the union, this does not necessarily mean that the interests of the union and the employee are always one and the same. Conflicts do arise between the interests of an employee and the bargaining unit with respect to the handling of a grievance (Re McRaeJackson [2004] C.I.R.B.D. No. 31). [34] The union is not required to respond to the interests of an employee in every case where to do so might be detrimental to the interests of the bargaining unit. The duty of fair representation requires only that the union make its decisions about the handling of a grievance in a fair and reasonable manner (Canadian Merchant Service Guild v. Gagnon, [1984] 1.S.C.R. 509). [35] Therefore, in my view, it is not possible to say that in all cases, there is a privity of interest between the union and the complainant. Each fact situation must be examined on a case-by-case basis to determine the extent to which a mutuality of interest exists. [36] In the present case, a review of the file suggests that although, generally speaking, the union and Mr. Smith shared common interests in the resolution of the grievance, there were several points of difference which, in my opinion, are significant enough to find that, in this particular case, the union and Mr. Smith are not privies. They are as follows: (1) In his affidavit, Mr. Smith deposes that his grievance hearing lasted two hours and that no witnesses were called. During a break, he asked that he be allowed to give evidence to counter CN's allegations. This request was refused by counsel for the union who said that he preferred the keep it simple principle. [37] Specifically, Mr. Smith alleges that he had relevant evidence relating to alternative employment possibilities within the company that went to the heart of the matter being decided by the arbitrator. He alleges that he was prevented from providing this important testimony. [38] CN does not take issue with Mr. Smith's assertions regarding his lack of testimony. However, it counters that Mr. Smith's affidavit evidence establishes that although he did not testify, he was given an opportunity to provide suggestions to counsel as to how to proceed with the presentation of his case. CN further suggests that Mr. Smith had a choice as to whether to follow union counsel's advice not to testify. [39] In my view, it is not clear that Mr. Smith did, in fact, have that choice. While the Memorandum of Agreement between CN and the union creating the arbitration procedure provides each party with the right to examine all witnesses and to give evidence at the hearing, it is the union and CN that are the parties to the dispute, not Mr. Smith (Memorandum of Agreement between CN and the Union creating the Canadian Railway Office of Arbitration, dated September 1, 1971, paragraph 11). Moreover, it is the union that has carriage of the grievance, not the grievor (Re McRaeJackson, supra, at para. 40). [40] In my view, the fact that Mr. Smith was not able to testify during the arbitration hearing despite his wish to do so, is an important factor in determining whether there was a privity of interest between the union and Mr. Smith. (2) The second issue which militates against a finding of privity between Mr. Smith and the union concerns the application for judicial review of the arbitrator's decision. [41] On December 3, 2003, the union and Mr. Smith filed an application for judicial review of the arbitrator's decision. On August 5, 2004, the application was discontinued. The Notice of Discontinuance was signed on behalf of Mr. Smith and the union by counsel for the union. [42] Although he was a party to the application, Mr. Smith deposes that he was not asked to consent to the discontinuance and that, had he been asked, he would have refused to consent. Mr. Smith states that when he was advised in May, 2004 that the union's lawyer had recommended discontinuing the application for judicial review, he wrote to union counsel expressing his concerns and objections. Notwithstanding Mr. Smith's objections, the decision was made to discontinue the judicial review application. [43] In my view, the two circumstances listed above demonstrate that there was an insufficient degree of mutual interest to consider the union and Mr. Smith privies in the present case. (v) The Commission and Mr. Smith as Privies [44] CN argues that the Tribunal's decisions in which it has held that the Commission is not a privy of the complainant are incorrect (see, for example: Rivtow Marine, supra; Parisien, supra; Desormeaux, supra; and Tweten v. RTL Robinson Enterprises Ltd. 2004 CHRT 8). [45] CN asserts that the Commission's status with respect to a complaint before the Tribunal, where the Commission is not the complainant, is merely derivative in nature. Therefore, the interests between the complainant and the Commission are so inextricably linked that the doctrine of issue estoppel should apply to bind the Commission to the previous decision. [46] I disagree with CN on this point. In my view, the submissions of the Canadian Human Rights Commission on this motion are apposite. [47] The Commission argues that to suggest that it is a privy of the complainant constitutes a fundamental misunderstanding of the legislative scheme that Parliament has established for the adjudication of human rights in Canada. Section 51 of the Act clearly sets out the role of the Commission as being distinct from that of the complainant. [48] The Commission represents the public interest before the Tribunal. In so doing, it must have regard to the nature of the complaint, but this does not preclude the Commission from taking a different position from that of the complainant if the public interest warrants this. [49] As the Tribunal stated in Desormeaux v. Ottawa-Carleton Regional Transit Commission, supra, a finding that the Commission is a privy of a complainant would be contrary to the policy considerations underlying the Act. Such a conclusion would result in binding the Commission to proceedings to which it was not a party and would, therefore, prevent it from taking positions before this Tribunal that it believes are in the public interest. [50] Moreover, this is not a situation like the one in the recent ruling of this Tribunal on a motion in Paulette Toth v. Kitchener Aero Avionics 2005 CHRT 19. There, the Commission had chosen not to participate as a party for the purpose of determining whether the doctrine of issue estoppel applied. Here, the Commission has fully participated in the motion on this issue. [51] In support of its argument that the Commission should be considered a privy of the complainant, CN relies on the case of Re Bouten and Mynarski Park School District No. 5012 (1982), 139 D.L.R. (3d) 651 (Alta. Q.B.). In that case, the Alberta Court of Queen's Bench found that the Alberta Human Rights Commission was a privy to the complainant. [52] Mr. Bouten was employed as teacher. When his employment was terminated, he launched an appeal to the Minister of Education alleging that the termination was discriminatory. He was unsuccessful in that forum and subsequently made a complaint to the Alberta Human Rights Commission. Before embarking on a hearing on the merits, the Board of Inquiry asked the Court to determine whether the doctrine of res judicata applied to oust the Board's jurisdiction over the complaint. The Court held that, in the circumstances of the case, the doctrine applied. [53] In my view, the reasoning in the Re Bouten case does not apply to the present case. While the Court of Queen's Bench found that the Alberta Human Rights Commission and the complainant shared the same interests in the resolution of the complaint, this Tribunal has noted that the interests of the Canadian Human Rights Commission and the complainant are distinct. The Commission does not represent the complainant; rather, the responsibility of the Commission is to represent the public interest (see for example: Desormeaux, supra, at para. 31). [54] Furthermore, it must be noted that in the Re Bouten case, Mr. Bouten, unlike Mr. Smith, was a party to the first proceeding in which discrimination in the termination of employment was alleged. In addition, Mr. Bouten was represented by his own counsel and testified in the first proceeding before a board of reference. [55] Such is not the case here. The union was a party to the arbitration, not Mr. Smith. Thus, in order to be consistent with the Re Bouten decision, CN would have had to argue that the union and the Commission are privies. This, it has not done. For these reasons, I am of the view that Re Bouten is not applicable to the present case. [56] Thus, I find that neither the parties nor their privies were the same in the two proceedings. As a result, the third component of the test for issue estoppel has not been met in the present case. (vi) Second Part of the Danyluk Test [57] Having found that two out of three of the requirements for the application of issue estoppel have not been met, I am of the view that there is no obligation for me to proceed to the second part of the Danyluk test. III. CONCLUSION AND ORDER [58] I find that the doctrine of issue estoppel has no application in the present case and therefore, the Tribunal's jurisdiction over the complaint is not ousted. [59] Accordingly, CN's motion is dismissed. Signed by Karen A. Jensen OTTAWA, Ontario June 15, 2005 PARTIES OF RECORD TRIBUNAL FILE: T939/5904 STYLE OF CAUSE: Jim Smith v. Canadian National Railway RULING OF THE TRIBUNAL DATED: June 15, 2005 APPEARANCES: Jim Sayre For Jim Smith Daniel Pagowski For the Canadian Human Rights Commission Joseph H. Hunder For Canadian National Railway