Lafrenière v. Via Rail Canada Inc.

Lafrenière v. Via Rail Canada Inc.
Collection
Canadian Human Rights Tribunal
Date
2019-04-18
Neutral citation
2019 CHRT 16
File number(s)
T2162/3616
Decision-maker(s)
Perrault, Anie
Decision type
Decision
Decision status
Final
Grounds
Disability
Sexual Orientation
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
16
Date: April 18, 2019
File No.:
T2162/3616
[ENGLISH TRANSLATION]
Between:
Serge Lafrenière
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Via Rail Canada Inc.
Respondent
Decision
Member:
Anie Perrault
Table of Contents
I. INTRODUCTION / COMPLAINT / BACKGROUND 1
II. PRELIMINARY ISSUES RAISED AT THE HEARING 2
III. THE FACTS 4
A. First incident — September 24, 2011 5
B. Second incident — October 26, 2011 5
C. Third and final incident — September 14, 2012 6
IV. LEGAL ISSUES RAISED 8
V. ANALYSIS 8
A. Jurisdiction of the Tribunal 8
B. Discrimination under section 7 of the CHRA 11
(i) Legal framework 11
C. Has the Complainant established a prima facie case? 13
(i) First two incidents 13
(ii) Third incident 15
(a) Protected characteristic 15
(b) Adverse effect 17
(c) Link between protected characteristic and adverse effect 17
(d) Finding on prima facie evidence 19
D. Has the Respondent established a defence under the CHRA justifying its discriminatory practice? 19
(i) Respondent not aware of Complainant’s disability 20
(ii) Complainant failed in duty to facilitate accommodation 23
(iii) The September 14 incident constituted misconduct and the resulting penalty points and dismissal were warranted 25
VI. COMPLAINT SUBSTANTIATED 27
VII. REMEDY AND ORDER 27
A. Cease to discriminate (s. 53(2) (a)) 27
B. Reinstatement (s. 53(2) (b)) 28
C. Lost wages (s. 53(2) (c)) 28
D. Pain and suffering (s. 53(2) (e)) 31
E. Special compensation (s. 53(3)) 32
F. Interest (s. 53(4)) 33
VIII. ORDER 33
I. INTRODUCTION / COMPLAINT / BACKGROUND
[1] On November 30, 2012, Serge Lafrenière (the Complainant) filed a complaint under the Canadian Human Rights Act (CHRA) against Via Rail Canada Inc. (the Respondent).
[2] On August 22, 2016, after investigation, the Canadian Human Rights Commission (the Commission) referred the complaint to the Canadian Human Rights Tribunal (the Tribunal) for inquiry under section 7 of the CHRA.
[3] In essence, the Complainant says he was treated differently and had unfairly incurred penalty points in his disciplinary file, all of which led to his dismissal on October 5, 2012. The ground of discrimination alleged in this case, and upheld by the Tribunal, is disability (mental health impairment).
[4] Several preliminary motions were filed during case management, including a motion to strike, a motion to amend, two motions to disclose, and a motion for a medical assessment. I issued a written ruling for each motion (and written guidelines on one occasion). To understand the background of the case, it is important to read each of these rulings. [1]
[5] Lastly, following the rulings on these preliminary motions, I established that the Tribunal would review three incidents that led to penalty points in the Complainant’s disciplinary file and his ultimate dismissal.
[6] The hearing in this case lasted 13 days, spread out over a four-month period from May 28 to October 1, 2018. It was suspended a few times to rule on new motions (motion to file a medical assessment, motion to dismiss the medical expert’s report, etc.). I also had to address several objections. Lastly, we rescheduled twice because a witness was too ill to attend. The last witness in this case was finally heard on October 1, 2018.
[7] The Commission was a full participant in the hearing.
[8] After consulting the Tribunal, it was decided that the parties would make their final submissions in writing, which they did in fall 2018. On December 21, 2018, the Commission made its final arguments in response to a new point raised in the Respondent’s written submission, and the Respondent’s final comments were received on January 18, 2019.
[9] I went into deliberation on January 21, 2019.
[10] Of the three incidents that led to penalty points in the Complainant’s disciplinary file and his ultimate dismissal, I find that there was no discrimination in the first two incidents but that there was in the third.
II. PRELIMINARY ISSUES RAISED AT THE HEARING
[11] Two main objections were raised at the start of the hearing: one by the Respondent (to the filing of medical notes by the Complainant); the other by the Complainant and the Commission (to having an expert in the hearing room, and to the Respondent’s request to file an expert report after the Complainant had testified).
[12] I ruled on each objection, and it is important here to recap my rulings from the hearing’s first day.
[13] First, I dismissed the Respondent’s objection to the filing of medical notes. Such notes may be filed with the Tribunal as evidence even if the doctor who signed them does not testify. While I agree that it is best not to rely solely on such sources, the CHRA allows such notes to be admitted as evidence. However, my task will be to weigh this evidence at the proper time—i.e. when determining whether a prima facie case of disability has been made, which I will do later in this decision.
[14] I upheld the Complainant’s and the Commission’s objections to having the Respondent’s expert present during the Complainant’s testimony, and to the Respondent’s last-minute request that an expert report be provided once the Complainant’s full testimony had been heard.
[15] I suspended the hearing for two days so the Respondent could file its expert report prior to the Complainant’s testimony and ensure the rules of procedural fairness and natural justice were followed, at least in spirit. They had clearly not been followed to the letter, as such a report should have been issued before the hearing (at the case management stage) so the Complainant and the Commission could file a counter-opinion if necessary (Rule 6, CHRT Rules of Procedure). However, to ensure the Respondent had a chance to rebut the Complainant’s evidence, I gave it two days to file an expert report, which it did.
[16] The Complainant’s testimony began when the hearing resumed two days later. In the hours that followed, the Complainant and the Commission each filed a motion to dismiss the expert report (i.e. make it inadmissible). After setting a timeframe for all parties to make written submissions, and without disrupting the Complainant’s testimony, I issued a written decision on the motions a few days later. The decision is available here. In brief, I granted the motion of the Complainant and the Commission and dismissed the Respondent’s expert report, for the following reasons:
After reading the expert report served on the parties and the Tribunal by the Respondent, and after reading the emails and documents exchanged between counsel for the Respondent and the expert in question, I conclude that the expert report submitted by the Respondent does not meet the criteria defined by the Supreme Court in Mohan and White Burgess such that it is not admissible within the meaning of paragraph 50(3)(c) of the CHRA. More specifically, the Tribunal considers the report submitted by the Respondent is not relevant, necessary, impartial or independent. Moreover, the Tribunal concludes, based on a cost-benefit analysis, that the probative value of this evidence is overborne by its prejudicial effect.
The expert’s report is not based on all the documents submitted and disclosed in this case, but only on some of them, those submitted by the Respondent. The text of the document is clearly unbalanced. It is not independent and does not seem to be free from the Respondent’s influence. Moreover, without dwelling on it, it seems to me that it is not objective or unbiased, in the sense that it seems to clearly favour one party over the other. To conclude, this report does not aim to assist the Tribunal; instead, it serves the Respondent.
For these reasons, the Tribunal allows the two motions, that of the Commission and that of the Complainant, to dismiss the expert report.
[17] At this point, we were able to continue the hearing without further motions or major objections.
III. THE FACTS
[18] The Complainant started working for the Respondent on May 29, 2000, and was dismissed on October 5, 2012.
[19] The Complainant worked in various capacities for the Respondent, including telephone sales agent, ticket agent, station attendant, baggage handler, porter, and, lastly, red cap captain. All positions were unionized.
[20] From the start of his employment to September 2011, the Complainant accumulated no penalty points in his disciplinary file. He was what might be called a model employee, with a spotless, problem-free record. The Respondent confirmed at the hearing that it had had no problem with the Complainant over this long period of 11-plus years. The Complainant’s testimony included letters of commendation from clients, superiors, and even the Respondent’s president and CEO.
[21] And then three incidents occurred in just over a year (September 2011, October 2011, and September 2012), resulting in 125 penalty points in the Complainant’s disciplinary file and the end of his employment with the Respondent.
[22] The Respondent’s rules of employment (collective agreement) state that more than 60 penalty points in a disciplinary file mean automatic dismissal, which happened to the Complainant on October 5, 2012.
[23] The Tribunal reviewed the three incidents at the hearing to see if discrimination had occurred or the CHRA had been violated.
[24] At the time of each incident, did the Respondent show discrimination? Did the Complainant have a disability? If so, was it a factor?
[25] Before answering these questions, I will describe and analyze each incident.
A. First incident — September 24, 2011
[26] The first incident, which occurred on September 24, 2011 at the Complainant’s place of employment, was a physical altercation between the Complainant and another employee (in this case his former spouse, who, as a station manager, was the Complainant’s superior).
[27] After an internal investigation by the Respondent, both employees received 25 penalty points.
B. Second incident — October 26, 2011
[28] On October 26, 2011, while off duty, the Complainant went to one of the Respondent’s workplaces (phone sales office) to give a key to a colleague. He had his dog with him. As employees were not allowed to bring dogs to work, a security guard and the team leader asked him not to enter. The Complainant did not heed the instructions and consequently received 10 penalty points.
[29] In November 2011, the Complainant had accumulated 35 penalty points on his file. He was not involved in other incidents and incurred no further penalty points until September 2012, some 10 months later.
[30] Between 2010 and 2012, other workplace incidents occurred that did not result in penalty points but involved the Complainant in one way or another. Though I did not view these incidents as sources of discrimination (ruling on motion to strike, March 30, 2017), I let the Complainant describe them in his testimony to help provide some background. There was no need for evidence or rebuttal. I point this out so the parties understand that I will not explore these incidents in detail.
[31] However, I should point out that the Complainant’s doctor advised him to take more than three months off work (March to June 2012) for what seems, based on the March 2012 medical note used in evidence, to have been adjustment disorders, anxiety, depression, and emotional dependency.
C. Third and final incident — September 14, 2012
[32] On September 14, 2012, the Complainant had an incident with a customer that led to two investigations, 90 penalty points and his dismissal. Here is a detailed account:
[33] On Friday September 14, 2012, the Complainant worked at Montreal Central Station from 2:00 p.m. to 10:00 p.m. It was his last shift before testifying on Monday, September 17, 2012, in a criminal case about events at the Respondent’s premises that had included death threats. He also had to testify the day after (September 18) in a case that involved his former spouse but did not directly involve the Respondent.
[34] In the late afternoon of Friday September 14, the Complainant met with his supervisor to discuss concerns about the testimony he was to give on Monday.
[35] The Complainant testified at the hearing that he had met with his supervisor, Maryse Giguère, in three stages.
[36] First, while meeting alone with Ms. Giguère, he raised concerns about testifying on the following Monday in a case involving death threats against him. As he noted in his testimony:
[Translation] I told her that since the person who threatened me knew where I worked, I was afraid he would come after me at the station to keep me from testifying. Since I was off work for the weekend of September 15 and 16 and in court on September 17, I knew he could only get to me on September 14. I told Maryse that recent incidents with fraudsters had left me stressed and anxious and that I hadn’t slept well lately. . . .
[37] Two other people joined the phone conversation at Ms. Giguère’s suggestion—Fern Breau and Marc Tessier, Via Rail security and safety advisors. The Complainant says this was meant to reassure him that there were effective procedures for his testimony in the criminal file and that he was safe at work.
[38] The Complainant says the meetings did not reassure him. However, in a handwritten note dated September 28, 2012 and filed at the hearing, Ms. Giguère said that they had.
[39] Unfortunately, Ms. Giguère could not testify at the hearing as she was on sick leave. The hearing was suspended twice in the hope that she could, since her testimony was crucial. We thus have only the Complainant’s version of events as we could not ask Ms. Giguère direct questions about the meetings or the handwritten note.
[40] However, Ms. Giguère’s supervisor, Christian Bergeron, attested to what he knew of the September 14 meeting between the Complainant and Ms. Giguère. Mr. Bergeron said the Complainant had shown no sign of fear, stress, or anxiety about his September 17 testimony but seemed only to want to know that he would be docked no pay for his absence. He testified that the Complainant had said he was reassured by the meetings and was fully capable of working his shift.
[41] The Complainant returned to work after his meetings with Ms. Giguère. Despite the mental state he claimed to be in, he did not ask his supervisor for time off.
[42] In the evening when a train had arrived from New York, the Complainant carried a customer’s luggage out to a taxi stand. He then allegedly asked for a tip, in clear breach of Via Rail’s code of conduct. When the customer replied that he had no cash, the Complainant is said to have picked the luggage back up and headed inside the station. An altercation ensued as the customer tried to take back his luggage. Videotapes of this were entered as evidence at the hearing.
[43] There is no doubt that an altercation occurred, though the two parties give widely divergent accounts of it.
[44] Though the customer did not file a complaint, two security officers (not employed by Via Rail) witnessed and reported the incident.
[45] After an investigation, the Complainant incurred 90 penalty points for the incident (tip solicitation/physical altercation with a customer). Based on total accumulated penalty points, his employment was terminated on October 5, 2012.
[46] The Complainant’s union filed grievances against the decision to add 90 penalty points to his file. Arbitrator Michel G. Picher ruled on the matter on May 20, 2014, upholding both the penalty points and the Complainant’s dismissal. Neither the union nor the Complainant appealed.
IV. LEGAL ISSUES RAISED
[47] In reviewing this case, I addressed the following legal issues:
Does the CHRT have jurisdiction to rule on this matter given that the Arbitrator made a final decision on May 20, 2014?
If so,
For each incident that resulted in penalty points in the Complainant’s file, was there discrimination as defined in the CHRA?
Did the Complainant show that he had a characteristic protected from discrimination under the CHRA (in this case, a disability) at the time of each incident?
Did the Complainant suffer adverse effects (penalty points, dismissal, etc.)?
Was the protected characteristic (disability) a factor in decisions that led to these effects?
If a prima facie case of discrimination is established by the complainant for any of the incidents, has the Respondent established a defence under the CHRA justifying its discriminatory practice?
V. ANALYSIS
A. Jurisdiction of the Tribunal
[48] In its written submission, for the first time in these proceedings, the Respondent questions the Tribunal’s jurisdiction in this matter and uses the argument of estoppel.
[49] This is an important legal issue that should have been raised at the start of proceedings. The Respondent could have filed a preliminary motion to address it, or raised it at the hearing, but did not. Its timing—raising it in its final submission— is surprising, if not doubtful.
[50] That said, I feel the Tribunal has jurisdiction to rule on issues raised in this case without undermining the arbitrator’s decision of May 20, 2014.
[51] This case does not involve re-examining grievances or reviewing legal issues raised in a labour law case, but rather determining whether there was discrimination as defined in the CHRA. I feel I have jurisdiction in this matter for the reasons below.
[52] First, the Tribunal is not a forum to appeal or review the Commission’s ruling to refer the complaint to it (s. 49, CHRA). The Respondent could have appealed by applying to the Federal Court for judicial review at the time of the Commission’s ruling (August 2016) but chose not to.
[53] The Commission’s grounds for having the Tribunal hear the complaint in August 2016 were as follows:
[Translation]
. . . There is another question: Did the Respondent know, or should the Respondent have known, whether the Complainant, who had no disciplinary record for years but accumulated multiple penalty points within a short time, had a mental illness requiring accommodation?
The Respondent’s submissions note that the arbitrator had the Complainant’s medical record before making his ruling. However, the Complainant says the arbitrator refused to read it and that the ruling makes no mention of his disability or medical record. In short, if the arbitrator’s ruling does not cite the Complainant’s disability, we cannot assume the arbitrator applied human rights principles. The Canadian Human Rights Tribunal can address this important issue.
As to whether the respondent knew of the Complainant’s disability, witness credibility is also an issue. The Complainant says Ms. Giguère was aware but the respondent says she was not. As this is a credibility matter that the Commission cannot resolve, the Canadian Human Rights Tribunal (CHRT) can hear the evidence under oath and make its own findings.
[54] While the arbitration process likely adhered to the collective agreement, it seems clear from the ruling that the arbitrator gave no thought to the issue of human rights or compliance with the CHRA.
[55] No witnesses were heard at the arbitrator’s hearing and the Complainant said he refused to read his medical record, though he may have while preparing his ruling. That said, I have heard no evidence to dispute the Complainant’s statements on the matter. I would note that the Respondent chose to raise this point only in its final submission, giving the Tribunal no opportunity to hear or question the Complainant or other witnesses on the issue.
[56] Having reviewed the ruling of May 20, 2014, by Arbitrator Michel Picher, I agree with the Commission that he did not bother to determine whether there was discrimination or whether the CHRA was violated.
[57] The Commission was right to let the Tribunal address this important human rights issue, and I feel I have the jurisdiction and mandate under CHRA to review the incidents that occurred in 2011 and 2012.
[58] In my view, the doctrine of estoppel raised by the Respondent does not apply in this case. I see no indication that the arbitrator considered the issues of discrimination raised by the Complainant and the Commission. To invoke the doctrine here would be unfair and deny justice to the Complainant.
[59] The Supreme Court noted this in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 SCR 125):
[39] Broadly speaking, the factors identified in the jurisprudence illustrate that unfairness may arise in two main ways which overlap and are not mutually exclusive. First, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim. (Emphasis added.)
. . .
[42] The second way in which the operation of issue estoppel may be unfair is not so much concerned with the fairness of the prior proceedings but with the fairness of using their results to preclude the subsequent proceedings. Fairness, in this second sense, is a much more nuanced enquiry. (Emphasis added.)
[60] For issue estoppel to apply, the issue must already have been decided. However, let us continue:
[45] Thus, where the purposes of the two proceedings diverge significantly, applying issue estoppel may be unfair even though the prior proceeding was conducted with scrupulous fairness, having regard to the purposes of the legislative scheme that governs the prior proceeding. For example, where little is at stake for a litigant in the prior proceeding, there may be little incentive to participate in it with full vigour . . . (Emphasis added.)
[61] In this case, it is my view that the arbitrator failed to consider the issue of human rights under the CHRA. It was not a key part of discussions about the grievances in question.
[62] Even if it had been, as the Respondent claims (and nothing has indicated or shown this), I feel the use of estoppel would be unfair to the Complainant.
[63] The arbitrator did not consider the issue of discrimination or think it important. The Respondent did not seem to find it important either, though it is a key part of the Tribunal’s mandate. The Commission referred this case to me and I am duty bound to review it.
B. Discrimination under section 7 of the CHRA
(i) Legal framework
[64] Section 7 of the CHRA states that it is a discriminatory practice to refuse to employ or continue to employ any individual, or, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Disability (mental health impairment) is a prohibited ground of discrimination under section 3 of the same act.
[65] Many tribunals, this one in particular, have ruled that complainants must establish a prima facie case of discrimination. In Ont. Human Rights Comm. v. Simpson-Sears, 1985 CanLII 18 (SCC), para. 28, the Supreme Court of Canada said “[A] prima facie case in this context is one which covers the allegations made and which, 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-employer.”
[66] For this complaint, the Complainant must show, on the balance of probabilities, that: (1) he had a characteristic protected against discrimination at the time of each incident; (2) the Respondent adversely affected him (penalty points) or ceased to continue employing him; and (3) the protected characteristic (mental health impairment) was a factor in his penalty points and ultimate dismissal (Moore v. British Columbia [Education], 2012 SCC 61, para. 33 [Moore]; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. [Bombardier Aerospace Training Centre], 2015 SCC 39, paras. 56 and 64 [Bombardier]).
[67] The Supreme Court justices expressed themselves as follows in Bombardier (above):
[63] Finally, in Moore, a more recent case, Abella J. wrote the following for the Court:
. . . to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. [Emphasis added; para. 33.]
[68] In response to a complaint, a respondent may submit evidence showing that its actions were not discriminatory or avail itself of a defence under the CHRA to justify the discrimination (s. 15, CHRA).
[69] Where the respondent refutes the allegation, its explanation must be reasonable. It cannot be a pretext to conceal discrimination. (Dixon v. Sandy Lake First Nation, 2018 CHRT 18, para. 28).
[70] In this case, the Respondent tried to show it could not have discriminated against the Complainant because the Complainant was not disabled at the time of the incident and had failed to show he had a disability; or, if there was a disability, the Respondent had been unaware of it.
[71] The Respondent cited two other defences in its written submission: (1) the Complainant had failed to meet his duty to disclose; and (2) the measures taken were justified. We will consider these defences below.
[72] We should add that since it is rarely possible to show direct evidence of discrimination or intent to discriminate, direct evidence is not needed to establish discrimination under the CHRA (see Bombardier, paras. 40-41). The Tribunal’s task is thus “. . . to consider all the circumstances and evidence to determine if there exists the “subtle scent of discrimination” (see Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT); Tabor v. Millbrook First Nation, 2015 CHRT 9, para. 14).
[73] Also, as noted by the Federal Court of Appeal in Holden v. Canadian National Railway Company, (1991) 14 CHRR D/12 (FCA), para. 7, for a complaint to be substantiated, discrimination does not need to be the sole ground for the actions at issue. It is enough for a prohibited ground of discrimination to have been a contributing factor in the employer’s decision (see Bombardier, paras. 44-52).
C. Has the Complainant established a prima facie case?
(i) First two incidents
[74] The Complainant says he showed that he had a mental health disability at the time the incidents occurred and the penalty points were acquired, but that the Respondent discriminated against him by not considering it.
[75] The Tribunal is of the view that the Complainant failed to provide prima facie evidence that he had a disability as defined in the CHRA at the time of the first two incidents (September 24, 2011 and October 26, 2011).
[76] When questioned by Commission counsel during his testimony, the Complainant admitted he had no disability and that the first two incidents were not disability-related:
[Translation]
Mr. Poulin: Okay, had you ever told Mr. Cyr that you had a disability?
Mr. Lafrenière: Well, just at the end, just at the last investigation. Before that, it didn’t concern him, and then, honestly, I never claimed that my disability was related. My disability had nothing to do with the fact that Stéphane Hamelin and Guylaine Piché had undermined my work, the first incident. When Stéphane Hamelin physically attacked me for the second time in September 2011, it wasn’t related to my disability either. When I went to the phone sales office with my little dog, it had nothing to do with my disability either. I didn’t bring the dog because of my disability. I wasn’t going to work; I was taking a key to an old roommate. So that’s everything. So no, I didn’t talk about it.
But in the other incident, the last one with the customer, my disability was clearly involved . . . (pp. 203-204, first transcript book).
[77] In view of the facts detailed by the Complainant, the Tribunal concedes that the work environment was challenging and seemed to have serious labour relations issues. However, these alone do not prove that the Complainant was disabled at the time of the first two incidents. Though the work environment may have played a part in the Complainant’s mental health problems, I was shown no evidence of this. At any rate, it is neither my job nor the Tribunal’s role to assess the cause of the Complainant’s mental health problems. That is a labour law issue an arbitrator could have addressed.
[78] My mandate and duty is to determine whether the Complainant had a disability at the time of the incidents in question.
[79] Was there an unhealthy environment in some work teams, especially the Complainant’s team? Was there harassment? Did the Respondent fulfill its duty as employer to provide a healthy, harassment-free workplace? Did the arbitrator understand the incidents that led the Respondent to take disciplinary action? Did he take the work environment into account? While these are legitimate questions, they do not fall within my mandate and I will not rule on them.
[80] The Complainant and his union did not appeal Arbitrator Picher’s ruling on these otherwise legitimate issues.
[81] My mandate is to determine whether the Respondent discriminated in imposing disciplinary measures for these events, not to determine whether it violated labour laws.
[82] Based on the testimony and evidence, I feel the Complainant did not make a prima facie case that he had a disability at the time of the first two events.
[83] I thus find that the Respondent did not discriminate in imposing penalty points for the first two incidents, after which the Complainant had 35 points in his disciplinary file.
[84] This was not the case for the third incident.
(ii) Third incident
[85] We will now take a closer look at the third incident (September 14, 2012), which led to the Complainant’s dismissal.
[86] Did the Complainant show that he had a characteristic protected under the CHRA (in this case, a disability related to his mental health) at the time of the incident?
[87] I agree that he did so.
(a) Protected characteristic
[88] While there is no direct evidence of a mental health disability, the facts and circumstances lead me to believe the Complainant had a protected characteristic under the CHRA at the time of the incident.
[89] First, the Complainant’s testimony made it clear that on the afternoon of September 14, 2012, a few hours before the incident, he was very stressed and anxious.
[90] The Complainant met with his immediate supervisor, Maryse Giguère, regarding the testimony he was to give on Monday, September 17, in a work-related criminal case. The prospect had made him very anxious. In addressing the Tribunal, the Complainant gave a clear and credible account of the fear and stress he had felt. He said he had been concerned for his safety and wanted his employer’s support.
[91] Stress and anxiety alone are not proof of disability, and such feelings are normal in these circumstances.
[92] However, the Complainant also showed medical notes to the Tribunal, including one for his time off in the months before incident number three. The note, dated March 2012, said he had adjustment disorders and depression. Based on this note, the Complainant stayed away from work until early June 2012, a few months before the September 14, 2012 incident. The Respondent did not challenge the Complainant’s absence or the March 2012 medical note, either at the hearing or during said absence.
[93] Mental health disabilities, though not always major, permanent, or ongoing, are also entitled to protection from discrimination.
[94] Despite the Respondent’s claims, the Complainant’s return to work in June 2012 did not prove his disability had disappeared.
[95] The Complainant filed another medical note dated September 21, 2012 (one week after the September 14 incident).
[96] Since the doctor who signed the notes could not come to testify and answer questions, the notes are considered hearsay evidence, but they still constitute evidence that I must assess.
[97] I found the March 2012 note (which the Respondent did not challenge) quite helpful in that it supported the Complainant’s testimony and put his last months of work with the Respondent into context.
[98] Despite what the Complainant says, the medical note from September 21, 2012, does not in itself prove that he had a disability.
[99] However, the Respondent cannot now complain that it could not question the doctor who signed the note, since it seemed to have no intention of seeking a second opinion at the time of the events in 2012.
[100] The Respondent twice tried to enter a medical expert’s report as evidence, and on both occasions I refused to admit the report.
[101] I do not feel current medical expertise at the hearing would have shed light on the matters at issue, which date back to 2012 and before.
[102] That said, it makes no sense to argue that the Tribunal should ignore the medical notes because the doctor who signed them did not testify and could thus not be questioned.
[103] The Respondent should have asked to contact the doctor when the Complainant submitted the medical note on September 21, 2012. It could then have discussed the note’s content at the time of the incidents and considered it when reviewing events from the evening of September 14, 2012. Specifically, it could have factored it in when determining the Complainant’s penalty points.
[104] The Respondent cannot now complain about its own negligence.
[105] Based on the Complainant’s testimony, on events preceding the incident of September 14, 2012, on the Complainant’s meeting with his supervisor the afternoon of the incident, and on his time off work in the months before the incident (justified by an undisputed medical note citing depression), it is my view that at the time of the incidents of September 14, 2012, the Complainant had a protected characteristic under the CHRA.
(b) Adverse effect
[106] The Complainant was adversely affected and received 90 penalty points after the incident of September 14, 2012, which led to his dismissal. This is not disputed by the parties.
(c) Link between protected characteristic and adverse effect
[107] Lastly, was the protected characteristic a factor in the events of September 14, 2012?
[108] On the balance of probabilities, I believe the Complainant’s mental health impairment was a factor in the incident of September 14, 2012, and the resulting penalty points that led to his dismissal.
[109] First, in more than 11 years of employment, the Complainant was a good worker with no problems, grievances, or penalty points. The Respondent does not dispute that. This fact alone should have raised questions about the sudden behavioural change.
[110] Second, when the incident of September 14, 2012, was under investigation, Ms. Giguère’s e-mail to her supervisor, Mr. Bergeron, dated September 28, 2012, suggests she knew or at least suspected that the Complainant had mental health problems:
[Translation]
Hello Christian,
The last line in the policy notes that Via Rail’s Employee Assistance Program will help employees exposed to workplace violence. When I suggested this to Serge, he said he was aware of the program, had already tried it, had its contact information, and knew the procedure for using the service. He said more than once that he had concerns, though the conference calls seem to have reassured him.
I’m his manager, not a doctor who can assess his state of mind. However, he’s said more than once that he’s worried about testifying in court. So I’ve validated the legal procedure, promoted Via’s role in safety and security, and recommended the program to help employees deal with emotional issues. . . . (Emphasis added.)
[111] In the memo to her supervisor, Mr. Bergeron, Ms. Giguère says she referred the Complainant to the Employee Assistance Program. She says he may have had mental health problems at the time of their meeting but that she is not qualified to assess that. We should again note that the meeting took place before the incident of September 14, 2012, that caused the Complainant to receive multiple penalty points.
[112] Ms. Giguère not only suspected that the Complainant had mental health problems but informed her supervisor, Mr. Bergeron, whom the Respondent says made the final decision about the Complainant’s penalty points. Mr. Bergeron was thus aware of the Complainant’s situation yet rejected the medical note a few days after the incident without question or regard and while ignoring all mental health indicators.
[113] I thus find that there is a link between the Complainant’s disability, the events of September 14, 2012, and the adverse effects he experienced (i.e. incurring multiple penalty points in his file).
(d) Finding on prima facie evidence
[114] I do not need to assess whether the Complainant’s entire hearing testimony is true or his description of the work environment is wholly accurate. However, I do need to determine if he had a disability or perceived disability at the time of the incident, if the incident led to his disciplinary action and dismissal, and if the disability was a factor.
[115] Whether the Complainant had a condition or disability at the time of the incident is a question of fact for me to determine. Based on the hearing testimony and evidence, I find that the Complainant had a mental health disability at the time of the incident of September 14, 2012, that the Respondent should have known the Complainant had a disability as defined in section 25 of the CHRA, and that the disability was a factor in the September 14 events that led to his disciplinary action, penalty points and dismissal.
[116] However, it is my view that discrimination was just a small factor in the Complainant’s job loss. He already had 35 penalty points before the third incident (September 14, 2012), which means he was 25 points short of dismissal. While 90 points for the third incident may have been excessive, even 25 would have cost him his job.
D. Has the Respondent established a defence under the CHRA justifying its discriminatory practice?
[117] The Respondent’s written submission makes the following arguments:
(A) The employee did not have a disability, and that even if he did, the Respondent was not aware of it.
(B) The employee failed in his duty to facilitate accommodation (e.g., request accommodation, inform employer of his needs, etc.).
(C) The incident of September 14, 2012, was so serious that 90 penalty points were warranted.
(i) Respondent not aware of Complainant’s disability
[118] In its testimony, to defend and justify its conduct, the Respondent (represented by Christian Bergeron) told the Tribunal it had been unaware of the Complainant’s situation and state of mental health. Based on all the evidence and testimony, the Tribunal does not accept this defence.
[119] First, Mr. Bergeron said the only concern the Complainant raised when meeting with his supervisor, Ms. Giguère, was about his pay.
[120] Since the Respondent could not bring in Ms. Giguère to tell her version of the meeting with the Complainant, her supervisor, Mr. Christian Bergeron, testified that the meeting between the Complainant and Ms. Giguère had concerned only a pay issue and at no time discussed the Complainant’s safety.
[121] The Tribunal does not believe the Respondent on this issue. If the meeting had only concerned