Digests

Sketchley v. Canada (Attorney General)

T-125-03

2004 FC 1151, Beaudry J.

20/8/04

28 pp.

Judicial review of CHRC decision dismissing complaint Treasury Board (TB) (employer) discriminated on basis of disability--Applicant says TB declined to accommodate her disability, forced her retirement from public service-- Challenges TB policy disabled employees on leave without pay must, within two years return to work, retire or face dismissal for cause--Issues: (1) whether CHRC erred in concluding termination of disabled employee unable to indicate definite return-to-work date not prima facie discrimination; (2) whether CHRC breached natural justice, procedural fairness principles by failing to thoroughly investigate discrimination allegations--Applicant, Immigration Examination Officer, diagnosed with Chronic Fatigue Syndrome in 1987--After seven weeks on sick leave, returned to work part-time until 1990, then full-time-- Reassignment sought in 1993 due to deteriorating health, granted in 1994--Same year diagnosed with fibromyalgia and began working part-time--Doctor recommended full-time leave in January, 1997; in March respondent recommended medical retirement but applicant refused--In May, 1999 TB put applicant to election: return to work or take medical retirement--When TB denied request to let her remain on leave without pay, applicant grieved--After denial of personal needs leave, applicant took medical retirement, filed complaints with CHRC--In denying complaints, CHRC noted her physician certified she was incapable of occupying any gainful employment on regular basis--As for TB policy, CHRC held it did accommodate those with disabilities and difference between disabled employees able to provide return date, those unable to do so, was not based on enumerated ground of discrimination--Investigator's report indicated evidence failed to support allegation TB policy was here applied in discriminatory fashion--1996 agreement between TB, Sun Life requires departments to enforce policy within two years of start of leave without pay--Report cited Sheuneman v. Canada (Attorney General), [2000] 2 F.C. 365 (T.D.), affirmed by F.C.A., in support of conclusion policy not in itself discriminatory--Report explained purpose of leave without pay to provide temporary respite, allow worker to maintain employment continuity--Applicable review standard is reasonableness simpliciter: Chopra v. Canada (Attorney General) (2002), 222 F.T.R. 236 (F.C.T.D.)--Under TB's leave without pay policy, managers under obligation to "resolve . . . leave without pay situations within two years of the leave's commencement" but this applies only in case of illness or injury--This differentiation is essence of discrimination: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143--In failing to recognize prima facie discrimination, report did not represent proper analysis-- Attorney General's submission, that bona fide occupational requirement analysis was "implicit", rejected; such analysis was entirely absent--Report's statement, that the policy did not treat disabled employees on leave without pay differently than employees on leave without pay for other reasons, was patently false--Statement difference between disabled employees able or not able to indicate return date not based on an enumerated ground of discrimination not in accordance with case law--Difference based on degree of disability, a prohibited ground of discrimination--Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566 authority for proposition that establishing categories within prohibited ground can lead to discrimination--Fact employer's policy provides for accommodation not per se negating fact of prima facie discrimination--While accommodation may be a defence, does not negate existence of discrimination: Canada (Human Rights Commission) v. Toronto-Dominion Bank, [1998] 4 F.C. 205 (C.A.)--Legal effect of defence, if established, is to place discriminatory practice outside prohibited category--While Attorney General conceded CHRC erred in not finding prima facie discrimination, argued Commission's conclusion not unreasonable: Syndicat national des employés municipaux de Pointe-Claire v. Pointe-Claire (Ville), [2000] J.Q. No. 988 (C.S.) (QL), but case distinguishable--Also distinguishable was Scheuneman, in which Cullen J. failed to address policy as such in finding Scheuneman had been reasonably accommodated--Judge looked at implementation of policy, not content--CHRC decision herein fatally flawed by error in law (finding that no prima facie discrimination in TB leave without pay policy)--Turning to natural justice, procedural fairness issue, while CHRC, as administrative, screening body, accorded considerable latitude in deciding whether case move to inquiry stage, finality of decision mandates careful review and failure to address substance of complaint will lead to conclusion investigation flawed for lack of thoroughness--Here, investigator failed to address at all substance of complaint: once leave without pay granted, accommodation not further discussed--No evidence alternatives to forced retirement, predicting return-to-work date, considered--Despite two-year window, policy does allow for leave extension, taking into account worker's special recovery needs: "the period of such leave without pay must be flexible enough to allow managers to accommodate the needs of employees with special recovery problems, including their retraining"--Could be said applicant had "special recovery problems" needing accommodation-- No evidence investigator verified how policy enforced in respect of others similarly situated, obvious starting point in determining whether applicant discrimination victim-- Accommodation after leave without pay granted never dealt with--Decision fatally flawed due to investigator's insufficient thoroughness--On several issues, investigator accepted respondent's viewpoint, perfunctorily rejecting applicant's serious allegations--CHRC decision failed to explain why lack of accommodation offered not in itself discriminatory, how it defined undue hardship--Applicant never asked to be retained indefinitely, just sought extra time to recover, consider options--Denial of this request never justified by respondent, explored by CHRC--Impugned decision set aside, complaint to be reviewed by different investigator.