Houle v. Canada (Attorney General)

Houle v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2020-05-01
Neutral citation
2020 FC 578
File numbers
T-1138-18
Decision Content
Date: 20200501
Docket: T-1138-18
Citation: 2020 FC 578
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, May 1, 2020
PRESENT: The Honourable Mr. Justice LeBlanc
BETWEEN:
GAÉTAN HOULE
Applicant
and
ATTORNEY GENERAL OF CANADA,
MINISTER OF TRANSPORT OF CANADA
Respondents
JUDGMENT AND REASONS
I. Introduction
[1] This is an application for judicial review of a decision of the Canadian Human Rights Commission [the Commission] dated May 9, 2018, dismissing the complaint filed by the applicant under the Canadian Human Rights Act, RSC 1985, c H-6 [Act], on the grounds that referral of that complaint to the Canadian Human Rights Tribunal for consideration is not warranted.
[2] The applicant, who has been living with a diagnosis of residual schizophrenia for several years now and who aspires to be able to perform the duties of a master of a vessel, submits that the Department of Transport Canada [Transport Canada] engaged in a discriminatory practice against him on a prohibited ground of discrimination—disability—by placing limitations on his marine medical certificate which prevent him, in particular, from exercising such functions. These limitations, he states, are not justified since, by assiduously taking the medication that is prescribed to him and being regularly followed by his attending psychiatrist, he has been asymptomatic for more than 25 years, does not suffer from any specific work limitations and therefore poses no danger to the safety of the ships on which he is called to work.
[3] He criticizes the Commission for having carried out a stereotypical and inflexible analysis of the situation, instead of relying on an assessment taking due account of his specific situation. In doing so, he argues, the Commission erred in its application of the third branch of the test set out in British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3 [Meiorin] and British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer], which test seeks to determine, as required by paragraph 15(1)(g) and subsection 15(2) of the Act, whether the limitations accompanying the marine medical certificate issued to him are based on a bona fide justification.
II. Background
A. Diagnosis of paranoid schizophrenia
[4] After completing a diploma in marine navigation in the late 1970s, the applicant pursued a career in the merchant marine. At the very beginning of the 1990s, he was the victim of a robbery, which then triggered the paranoid schizophrenia disorder in him and required his hospitalization. He was then plagued by hallucinations: he heard voices and saw spirits. Having accepted the medication he was offered, he was discharged from the hospital and returned to work.
[5] In 1994, he stopped taking his medication and relapsed. Since then, the applicant states that he has never stopped taking said medication and specifies that he has been regularly monitored, every three or four months, by his attending psychiatrist, Dr. Claude Girard. He also claims to have obtained, in 1995, a Master Mariner certificate of competency and to have worked as second and third officer on various ships, without incident.
B. Renewal of 2002 marine medical certificate
[6] The applicant’s disputes with Transport Canada began in 2002, when he had to renew his marine medical certificate, which must be done every two years. He was then judged, on the basis of his diagnosis of paranoid schizophrenia, unfit for service at sea. The applicant unsuccessfully requested an administrative review of this decision, but in June 2005 the Appeal Board established under section 73 of the Crewing Regulations, SOR/97-390, overturned that decision, finding that the applicant was not suffering from a disability related to an active psychiatric disorder rendering him totally incapacitated or unfit for service at sea. The Appeal Board therefore reissued a marine medical certificate to the applicant, subject to three conditions: (i) the applicant could only perform the duties of watchkeeping mate for limited contiguous voyages; (ii) he had to continue to take his medication daily; and (iii) he had to continue, every four months, the follow-up with his attending psychiatrist.
[7] Being of the opinion that the initial decision declaring the applicant unfit for service at sea should have been upheld, Transport Canada applied for judicial review of the Appeal Board decision, but without success, as the Court found that the decision was reasonable (Canada (Attorney General) v Houle, 2006 FC 497 [Houle]).
[8] In addition to the procedures before the Appeal Board, the applicant filed a complaint with the Commission. After agreeing to go to mediation, the parties settled the matter under an agreement protected by a confidentiality clause.
[9] Also discouraged by the fact that his marine medical certificate remained subject to limitations, the applicant abandoned the field of navigation for a few years.
C. 2012 application for marine medical certificate
[10] In 2012, he decided to return to service and obtained a first provisional medical certificate from a “marine medical examiner”, in accordance with the Marine Personnel Regulations, SOR/2007-115 [Regulations]. This certificate had no limitations and was valid for the period from May 16 to November 16, 2012.
[11] However, a few months later, in September 2012, the Minister of Transport, through the Marine Medicine Unit of Transport Canada [MMU], objected, as permitted under paragraph 278(4)(b) of the Regulations, to the issuance of a marine medical certificate to the applicant, who was deemed unfit for service at sea because of his diagnosis of paranoid schizophrenia.
[12] The applicant did not stop there. He contacted the MMU’s Senior Marine Medical Officer, Dr. Irma-Nancy Sully, in the days following this decision and convinced her to re-evaluate his file on the basis of, among other things, a medical information supplement that he undertook to provide. On October 26, 2012, Dr. Girard sent a letter to Dr. Sully in which he informed her, in particular, of the following:
He had been providing clinical follow-up to the applicant since 1995, with meetings every three to four months.
The applicant had presented symptoms of psychotic decompensation from schizophrenia between 1991 and 1994, which had apparently required hospitalization on one or two occasions.
Since then, the applicant had never been hospitalized, nor had he experienced any periods of disability caused by his symptoms.
In his case, we were no longer speaking of a diagnosis of paranoid schizophrenia, but rather one of residual schizophrenia.
The applicant was taking his medication regularly, the same one he was prescribed in the 1990s, but on a preventive basis and at half-dose to ensure that he would not miss any in case he had to navigate.
In terms of symptoms, the applicant had no active psychotic symptoms, nor did he have any specific limitations or restrictions when working.
The psychiatric follow-up he was diligently following, was essentially a preventive measure.
The prognosis for the applicant [translation] “is very good, given the absence of relapse for more than 15 years, good self-criticism, normal functioning and regular taking of medication” (Applicant’s Complete Record, Exhibit P-4, p. 41-42).
[13] As part of the process to reconsider the decision of September 2012 deeming him unfit for work at sea, the applicant informed the MMU, at the latter’s request, of his future career plans, which consisted of taking refresher courses in order to revalidate his Master Mariner certificate.
[14] On December 20, 2012, the MMU, after re-examining the file and [translation] “in accordance with the [Houle] decision”, reversed its decision, found the applicant fit for work at sea, but issued him a marine medical certificate with limitations that were for all practical purposes identical to those imposed by the Appeal Board in June 2005, which limited the duties he could perform on a ship to those of a watchkeeping mate for limited contiguous voyages and obliged him to provide an annual report from his psychiatrist confirming both that he was complying with his pharmacological treatment and the clinical follow-ups, and that his condition was stable (Respondent’s Record, Attorney General of Canada, tab C, pp 41–42).
D. Complaint to Commission relating to December 2012 marine medical certificate with limitations
[15] On January 29, 2013, the applicant filed a complaint with the Commission. He submitted that the limitations imposed by the MMU prevented him from being a master or even first officer whereas the international standards governing medical fitness examinations for seafarers do not provide for limitations in a case like his, that is, in the case of a person who has not had a recurrence for more than 19 years. He stated that it was unreasonable to fear that he might suddenly become ill when he had not been sick during this entire period.
[16] The complaint was based on section 5 of the Act, according to which it is a discriminatory practice in the provision of services customarily available to the general public to deny any such service to any individual, or to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.
E. Suspension of complaint and appeal to Transportation Appeal Tribunal
[17] Since he had an appeal against the MMU’s decision before the Transportation Appeal Tribunal of Canada [Tribunal] (formerly the Appeal Board), the Commission suspended the consideration of the applicant’s complaint as permitted by paragraph 41(1)(b) of the Act.
[18] Before the Tribunal, the applicant contested both the MMU’s decision declaring him unfit for work at sea and the one declaring him fit for this work, but with limitations. In a decision dated June 11, 2014, the Tribunal, consisting of one review member, dismissed the applicant’s request for review. He essentially found, based on the evidence before him:
that schizophrenia is a condition that cannot be cured;
that the possibility of a relapse, which can be relatively sudden, cannot be ruled out, even after years of remission;
that it is likely that a person dealing with this condition will not have access, on the high seas, to adequate and timely medical care; and
that while it is conceivable that the applicant could work on board a ship under the limitations imposed by the marine medical certificate issued by the MMU, it would be dangerous for his own safety and that of the ship, its crew and the general public to work as a master, given the critical role and the stressful and demanding nature of the function.
(Respondent’s Record, Attorney General of Canada, Tab D, pp 46–60)
[19] The applicant appealed this decision before a three-member panel of the Tribunal. He considered that a fundamental error had been made by the Tribunal’s review member, and before that by the MMU, regarding the determination of the medical standards applicable to his situation and regarding the consideration given to the relevant facts related to these standards. On February 18, 2016, the appeal was dismissed, the panel being of the opinion that the right standards—those to which the Regulations refer—were applied and that the review member’s assessment of the facts of the case in light of these standards was reasonable.
[20] Since, as we will see, the MMU, when exercising the Minister of Transport’s power to review the issuance of a provisional medical certificate, must take into account any relevant considerations relating to human rights, as set out in the Constitution Act, 1982 (UK), being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] and the Canadian Bill of Rights, SC, 1960, c 44 [Bill of Rights], the Tribunal was satisfied that the decision to issue a restricted marine medical certificate to the applicant infringed as little as possible on his rights, considering the circumstances of the case (Applicant’s Complete Record, pp 94–109).
[21] This decision of February 18, 2016, was not subject to judicial review.
F. Reactivation of complaint before Commission and investigation report
[22] On February 25, 2016, the applicant asked the Commission to reactivate his file. Being satisfied that the applicant had exhausted the procedures available to him and that the Tribunal did not have to consider the procedure before it from a human rights perspective, the Commission appointed an investigator in accordance with section 43 of the Act.
[23] On January 8, 2018, the investigator produced the report [Report]. She described the applicant’s complaint and the issue she had to resolve as follows:
[translation]
The [applicant] has been diagnosed with paranoid schizophrenia but has had no current symptoms since 1995. He alleges that [Transport Canada] discriminated against him by imposing limitations on his marine medical certificate because of his diagnosis of schizophrenia, without taking into account the current absence of symptoms or work-related limitations.
The issue in this complaint is whether [Transport Canada] discriminated against the [applicant] in the provision of services because of his disability by differentiating adversely in relation to him and by applying discriminatory guidelines.
(Respondent’s Record, Attorney General of Canada, p 10)
[24] After stating she was satisfied that the issuance of marine medical certificates constitutes a service available to the general public within the meaning of section 5 of the Act and that the applicant was the victim of adverse differentiation in the provision of this service since he can only hold a limited certificate, because of a standard which renders unfit for service at sea any person suffering from schizophrenia, the investigator considered whether this standard was justified (Respondent’s Record, Attorney General of Canada, pp 10–12).
[25] To determine whether this standard was justified, the investigator applied the following test:
Was the standard in question adopted [translation] “for a goal or objective rationally connected to the functions performed by [Transport Canada]”?
If so, was it adopted by Transport Canada [translation] “with the sincere belief that it was necessary to achieve this goal or objective”?
If so, is this standard [translation] “reasonably necessary to achieve the goal or objective”?
(Respondent’s Record, the Attorney General of Canada, p. 11)
[26] Being of the opinion that there was nothing in the file to conclude that the first two parts of this test were not satisfied, the investigator focused on the third part of the test. In this regard, she clarified that in order to demonstrate that the standard in question is reasonably necessary to achieve the goal or objective underlying it, Transport Canada must demonstrate that [translation] “it is impossible to accommodate employees who have the same characteristics as the [applicant] without imposing undue hardship on the employer” (Respondent’s Record, Attorney General of Canada, p 13).
[27] After reviewing the evidence on the record and Transport Canada’s claims that the standard applied to the applicant was reasonably necessary, the investigator offered the following conclusions:
[translation]
32. [Transport Canada] states that the [applicant] has schizophrenia. The fact that he is in “remission” is partly due to the fact that he is taking his medication. Despite this apparent stability, experts in the field all agree that acute psychotic episodes can occur despite years of stability, and even with regular medication. This risk of recurrence (which will be present throughout the life of the [applicant]) is the most important criterion in determining the security risk posed by the diagnosis of schizophrenia, both in terms of international and Canadian regulations. An individual with schizophrenia who becomes psychotic on board a ship could undoubtedly compromise the safety of the ship’s crew, the ship and the environment. Safety must prevail over the desire of the [applicant] to work in a marine environment.
Conclusion
33. The evidence indicates that, based on the medical information provided by [the applicant’s] psychiatrist, the [Transport Canada] medical specialist is of the opinion that the [applicant] is at risk of relapse and that the risk is too great for him to be master of a vessel. This confirms that he does not meet the professional requirements [of Transport Canada].
34. The evidence shows that granting an unrestricted medical certificate to [the applicant] would constitute undue hardship for [Transport Canada]. [Transport Canada] has shown that although the [applicant] is in remission, the risk of the disease recurring is far too high. Safety might be compromised.
35. The [applicant] is, moreover, accommodated by [Transport Canada] since he has been declared fit for work since December 20, 2012, and holds a certificate with certain limitations.
(Respondent’s Record, the Attorney General of Canada, p. 15)
[28] Both parties were given an opportunity to respond to the Report. In a letter dated March 10, 2018, the applicant criticized the investigator:
for having disregarded section 15 of the Charter since claiming that schizophrenics are unfit for service at sea is discriminatory;
for having disregarded article 8 of the “Medical Examination (Seafarers) Convention, 1946” according to which Transport Canada was not allowed to declare that schizophrenics are unfit for service at sea in the absence of expert opinions from independent specialists;
for having applied the Medical Examination of Seafarers: Physician's Guide (TP 1134E) [Physician’s Guide], which declares people with schizophrenia unfit for service at sea, in lieu of the Guidelines for Conducting Pre-sea and Periodic Medical Fitness Examination for Seafarers (now the Guidelines on the medical examinations of seafarers) published by the International Labour Organization and the World Health Organization [ILO/WHO Guidelines], to which the Regulations refer, and the International Convention on Standards of Training, Certification and Watchkeeping (STCW) [STCW Convention], which do not declare seafarers unfit if they, like him, have become schizophrenic following a single episode associated with provoking factors;
for having preferred the opinion of the physicians of the MMU and of a psychiatrist with no expertise in occupational medicine—Dr. Jonathan Pullman—to the detriment of the opinion of his own attending psychiatrist, who has been following him for almost 25 years, and, above all, those of the marine medical examiners who, between 2012 and 2016, issued him provisional marine medical certificates without limitations; and
for having referred to the Tribunal’s two judgments when those judgments were not valid since his rights of representation had been violated.
(Respondent’s Record, the Attorney General of Canada, pp 17–26)
[29] In a letter addressed to the investigator on April 9, 2018, Transport Canada reacted to the applicant’s response by referring the investigator to the information produced by its representatives during the investigation and by providing her with additional details on its understanding of the standards applicable to the medical examination of seafarers (Respondent’s Record, Attorney General of Canada, pp 28–29).
G. Commission’s decision
[30] As indicated at the outset, the Commission found that examination of the applicant’s complaint by the Canadian Human Rights Tribunal was not justified and that the complaint should therefore be dismissed. More specifically, it expressed the view that the imposition of limitations on the applicant’s marine medical certificate was reasonable [translation] “having regard, on the one hand, to [Transport Canada’s] domestic and international obligations regarding the attribution of this type of medical certificate and, on the other hand, the information provided by the psychiatrist of the [applicant]” (Applicant’s Complete Record, p 19).
[31] As such, it noted that Canada is a signatory to a number of international conventions governing work at sea, including the STCW Convention and the Maritime Labour Convention, 2006 [MLC], and that Canada has committed to giving them effect. In particular, it stated, Canada, in doing so, has explicitly incorporated into domestic law, via subsection 270(1) of the Regulations, the ILO/WHO Guidelines, which aim to harmonize the conditions for granting marine medical certificates around the world (Applicant’s Complete Record, p. 19).
[32] Referring more particularly to Appendix E to the ILO/WHO Guidelines, which provides medical practitioners with the criteria for determining fitness for service at sea for common medical conditions, and acknowledging that these criteria were designed “to allow some flexibility”, the Commission noted that for mental and behavioural disorders, the criteria, which are listed under diagnostic code F-20-31 in that Appendix, and more specifically for a disorder characterized by “more than one episode with or without provoking factors”, it was appropriate, according to these criteria, to make a “[c]ase-by-case assessment to exclude likelihood of recurrence at least five years since end of episode, if no further episodes; no residual symptoms; and no medication needed during last two years” (Applicant’s Complete Record, p. 20).
[33] The Commission was satisfied, based on the evidence in the file, which shows that the applicant has residual schizophrenia and must continue to take medication to control his symptoms, that the limitations imposed by Transport Canada on the applicant’s marine medical certificate were in compliance with the ILO/WHO Guidelines, taking into account the applicant’s current state of health. It also stated that the opinion of the applicant’s attending psychiatrist, according to which the applicant suffered from no limitations or restrictions [translation] “on a psychological level”, had little weight since nothing in the file demonstrated that he [translation] “is a qualified marine doctor, or has assessed the [applicant] in light of the law applicable to the issuance of marine medical certificates” (Applicant’s Complete Record, p. 21).
[34] The Commission also expressed satisfaction that an individual assessment of the applicant’s situation had been carried out by the MMU, as evidenced by the reconsideration of the decision on September 4, 2012, declaring the applicant unfit for work at sea, which led to the issuance of the certificate of December 2012 declaring him fit for this kind of work, subject to certain limitations (Applicant’s Complete Record, p. 21).
[35] Finally, it expressed the view that it was [translation] “reasonable and even necessary for [Transport Canada] to adopt courses of action respecting Canada’s international obligations regarding safety at sea”. It concluded that [translation] “to require [Transport Canada] to contravene these obligations in order to grant the [applicant] an unrestricted marine medical certificate would constitute undue hardship” (Applicant’s Complete Record, p. 21).
H. Applicant’s complaints against Commission’s decision
[36] The applicant submits that the Commission made four errors justifying Court intervention.
[37] First, the applicant submits that the Commission erred in its application of the third branch of the test set out in Meorin and Grismer. In particular, he criticizes it for having failed to analyze whether Transport Canada had met his needs to the point where it would have resulted in undue hardship, not only by disregarding the opinion of his attending psychiatrist for the past 25 years, but also by not even taking note of the opinion of the medical marine examiners who issued him provisional medical certificates without limitations between 2012 and 2016.
[38] Second, the applicant criticizes the Commission for failing to apply the test in R v Oakes, [1986] 1 SCR 103 [Oakes], in its analysis. In particular, it had to ask itself, according to the applicant, whether it was arbitrary, unfair or irrational to deprive him of a right when he has been asymptomatic for 25 years, which it did not do. It also had to make sure that the limitations on his marine medical certificate infringed his rights as little as possible, which it did not do either. Finally, he argued, it had to ensure that the standards set out in diagnostic code F-20-31 of Appendix E to the ILO/WHO Guidelines were not themselves arbitrary, unfair or based on irrational considerations.
[39] Third, the applicant considers that the Commission should have concluded that Transport Canada had not shown all the flexibility required in applying the criteria for determining fitness for service at sea contained in Appendix E to the ILO/WHO Guidelines in connection with diagnostic code F-20-31. This stems, he insists, from the fact that he had been classified in the more restrictive category of victims of a single episode of schizophrenia without provoking factors or more than one episode with or without provoking factors, rather than in the non-limiting category, supported more by the medical evidence on the record, of victims of a single episode of schizophrenia associated with provoking factors, which category would make him “[a]ble to perform all duties worldwide within designated department”.
[40] Finally, the applicant argues that the Commission failed to carry out an individual assessment of his situation. This is evidenced by the Commission’s failure to consider the opinion of his attending psychiatrist that, since his relapse in 1994, he has had no active psychotic symptoms or any particular limitations or restrictions when working, or to even mention the opinions of the marine medical examiners who granted him provisional marine medical certificates without limitations. His evidence also points to the fact that the Commission ultimately relied on the opinion of doctors who never met him.
III. Issue and standard of review
[41] In my view, this case raises only one issue, and that is whether, in concluding as it did in applying the third branch of the test set out in Meiorin and Grismer, the Commission erred so as to justify the intervention of the Court within the parameters set by section 18.1 of the Federal Courts Act, RSC 1985, c F‑7.
[42] At the time the parties produced their respective memorandums for the Court’s file, there was no doubt, in the absence of complaints based on the principles of procedural fairness, that the standard of review applicable to this issue, as I had the opportunity to say in Walsh v Canada (Attorney General), 2017 FC 451 [Walsh], to which the applicant has referred extensively, was that of reasonableness (Walsh at paras 22–23; Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), [2012] 1 SCR 364 at paras 21 and 25 [Halifax Regional]; Bell Canada v Communications, Energy and Paperworkers Union of Canada, [1999] 1 FC 113 (CA) at para 38 [Bell Canada]).
[43] This meant that the Court would not normally interfere with the decisions of the Commission unless “unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence” (Walsh at para 23; Tutty v Canada (Attorney General), 2011 FC 57, at para 14; Keith v Canada (Correctional Service), 2012 FCA 117, at para 43; Sketchley v Canada (Attorney General), 2005 FCA 404 at para 47; Dunsmuir v New Brunswick, 2008 SCC 9, at para 47).
[44] When the present case was argued, however, the Supreme Court of Canada had just rendered its judgment in Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], a case which provided the Supreme Court with an “opportunity to re-examine its approach to judicial review of administrative decisions” (Vavilov at para 1) and to which the applicant has also made extensive reference.
[45] However, in my opinion, that judgment does not change anything with regard to the standard of review applicable to the examination of the issue in this case. Indeed, for the purpose of clarifying and simplifying the applicable law with regard to determining the standard of review applicable in a given case, the Supreme Court has adopted an “analysis begin[ning] with a presumption that reasonableness is the applicable standard in all cases” (Vavilov at paras 10 and 25). This analytical framework takes for granted, as the conceptual basis for this presumption, the expertise of the administrative decision maker, considered inherent in its specialized functions (Vavilov at paras 26–28).
[46] According to Vavilov, this presumption can be rebutted in only two types of situations. The first concerns cases where the legislature has clearly indicated that it intends a different standard from the reasonableness standard to apply. This is the case when the legislature explicitly prescribes the applicable standard of review or has provided a statutory appeal mechanism from an administrative decision to a court. In that case, it is a matter of complying with the legislature’s intent.
[47] The second situation in which the presumption of the reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case with questions of a constitutional nature, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies (Vavilov at para 17).
[48] In my opinion, the present case does not have any of the characteristics allowing for a departure from the presumption that reasonableness is the applicable standard, and I did not understand, during the representations by the applicant’s counsel at the hearing, that he continued to argue, as he did in his memorandum, that the questions of whether the Commission had correctly applied the third branch of the test set out in Meiorin and Grismer and whether it should have conducted, in this case, an analysis based on Oakes, should have been reviewed by this Court according to the standard of correctness.
[49] As to the content of the reasonableness standard, it will suffice for me to add, for the purposes of this case, as noted by the Supreme Court of Canada, that “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem”. The Court will consider only “whether the decision made by the administrative decision maker—including both the rationale for the decision and the outcome to which it led—was unreasonable” (Vavilov at para 83).
IV. Analysis
A. Preliminary objections
[50] Before embarking on the analysis of the question in dispute, I must address two preliminary objections raised by the Attorney General.
[51] The first objection relates to the style of cause, the Attorney General being of the opinion that he should be the only one named as a respondent. In my view, having two respondents in this case is redundant, but not necessarily improper. In fact, the Minister of Transport—the other respondent—clearly has a direct interest in the outcome of this litigation since, ultimately, he is the one who issues marine medical certificates. He is not, moreover, the administrative decision maker whose decision is being reviewed by the Court. It would have been otherwise had the applicant designated the Commission or the Department of Transport as respondents, in which case those designations would have been improper (Forest Ethics Advocacy Association v Canada (National Energy Board), 2013 FCA 236 at paras 16–21; Drew v Canada (Attorney General), 2018 FC 553 at para 12; Gravel v Canada (Attorney General), 2011 FC 832 at paras 5–6) [emphasis added]. However, he failed to do so.
[52] The designation of the Minister of Transport as the respondent in the proceedings will therefore be maintained.
[53] The second objection raised by the Attorney General relates to some of the evidence presented by the applicant before this Court. These are exhibits P-3, P-5 and P-12 appended to the affidavit he signed in support of his application for judicial review and paragraphs 1, 3, 7, 9, 20, 21 and 22 of that affidavit.
[54] The Attorney General submits that this evidence constitutes new evidence, that is, evidence that was not before the Commission when it rendered its decision. Accordingly, he argues, this evidence should not, according to the principles laid down by the Federal Court of Appeal in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright], be considered by the Court.
[55] In principle, an application for judicial review must be assessed on the basis of the record that was before the administrative decision maker, such that evidence that was not there should be considered inadmissible before the reviewing court (Access Copyright at para 19). However, this rule does tolerate certain exceptions, including one permitting the production, on judicial review, of general information that may assist the Court in understanding the issues relevant to the dispute, even if the decision maker has not had access to it,. This type of information is admissible provided that “[c]are [is] taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider” (Access Copyright at para 20).
[56] Exhibit P-3 essentially contains, in a bundle, the provisional medical certificates issued to the applicant, every two years, between 2012 and 2018. Aside from the 2018 certificate and the preceding medical note, issued only a few weeks before the Commission made its decision, these certificates are mentioned in the file that was before the Commission. In particular, it is mentioned in the letter the applicant sent it in March 2018, in response to the Report (Respondent’s Record, Attorney General of Canada, p 23). I therefore see no reason to exclude the certificates of 2012, 2014 and 2016, especially since they consist only of simple half-page forms which add no substantial information to what the file that was before the investigator and the Commission already contained. Paragraph 22 of the applicant’s affidavit, which only repeats this information, does not have to be struck out either, except, of course, the reference to the 2018 provisional certificate.
[57] For its part, Exhibit P-5 consists of a series of documents aimed at establishing the training and technical skills acquired by the applicant in the maritime domain as well as his experience at sea. Nothing in this case really hinges on such matters. In my opinion, this exhibit helps to lay out the general context of the present dispute, nothing more. It is therefore admitted, since the applicant has referred to it in a general way in the representations he submitted to the investigator. The same is true of paragraphs 1, 3, 7, 9, 20 and 21 of the applicant’s affidavit, which, once again, merely repeat this general contextual information.
[58] Exhibit P-12, for its part, is made up of extracts from testimony heard by the Tribunal’s review counsellor, that of Dr. Sully, Dr. Pullman and Cédric Baumelle, an expert in marine safety. I cannot understand this objection to the admissibility of these extracts from testimony since, in a letter dated April 10, 2017, which purported to be Transport Canada’s response to the applicant’s complaint, counsel from this department’s legal services, responsible for issuing that response, submitted to the investigator, via the Commission’s Investigation Division, what appears to be a complete copy of the transcript of that testimony (Respondent’s Record, Attorney General of Canada, Tab F, p 70). At first glance, therefore, the transcript of these testimonies, of which Exhibit P-12 reproduces extracts, was before the investigator.
[59] The applicant was, therefore, fully entitled to file them in the Court record since these extracts were, in all likelihood, part of the record that was before the decision maker, even if they were not reproduced in the Certified Tribunal Record transmitted to the Registry of the Court by the Commission under rule 318 of the Federal Courts Rules, SOR/98-106, which, as seems to be the case most of the time with records from the Commission, can be summed up to the bare minimum (François-Jumelle v Canada Post Corporation, 2019 FC 1601, at paras 36–39). I was not persuaded, nor did anyone even try to persuade me, that the situation was different in this case.
[60] This second preliminary objection is therefore also rejected.
B. Commission’s decision unreasonable
(1) Role of Commission
[61] We should begin by clearly defining the role that the Commission is called upon to play in terms of the powers conferred on it by section 44 of the Act. It is not its job to determine if the complaint is made out; rather, its duty is to decide if an inquiry by the Canadian Human Rights Tribunal is warranted having regard to all the facts of the case (Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854 [Cooper] at para 53).
[62] In that sense, the Commission is not an adjudicative body; that role belongs to the Tribunal under the Act. Its primary mandate, at this stage, is more analogous to that of a judge at a preliminary inquiry. In other words, it is tasked with carrying out a “screening analysis” of the matter (Cooper at paras 52–53; Syndicat des employés de production du Québec et de l’Acadie v Canada (Canadian Human Rights Commission), [1989] 2 SCR 879 at pp 898-99; Herbert v Canada (Attorney General), 2008 FC 969 at para 16). In exercising this mandate, the Commission has broad discretion (Halifax Regional at paras 21 and 25).
[63] However, despite all of the Commission’s discretion and deference to the Court, its decisions to dismiss a complaint or refer it to the Canadian Human Rights Tribunal for consideration must nevertheless meet the requirements of reasonableness, that is, they “must be based on an internally coherent and rational chain of analysis and [be] justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85).
[64] As will be seen, though, this is not the case here.
(2) Legal framework
[65] It is useful, as a first step, to outline the normative framework applicable to the granting of marine medical certificates in Canada.
[66] This framework essentially stems from the Regulations, adopted under the Canada Shipping Act, 2001, SC 2001, c 26 [CSA], which aims, in particular, to (i) protect the health and well-being of individuals, including the crews of vessels, who participate in marine transportation and commerce; (ii) promote safety in marine transportation and recreational boating; (iii) ensure that Canada can meet its international obligations under bilateral and multilateral agreements with respect to navigation and shipping; and (iv) encourage the harmonization of maritime practices.
[67] The ILO/WHO Guidelines, by virtue of subsections 1(7) and 270(1) of the Regulations, form part of the body of medical standards intended to guide the issuing of such certificates. They are intended to provide “complementary advice to competent authorities” aimed at harmonizing the standards of physical fitness applicable to seafarers enacted under the Medical Examination (Seafarers) Convention, 1946, later incorporat