Forster v. Canada (Attorney General)

Forster v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2006-06-20
Neutral citation
2006 FC 787
File numbers
T-722-05
Decision Content
Date: 20060620
Docket: T-722-05
Citation: 2006 FC 787
Ottawa, Ontario, June 20, 2006
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
KIM FORSTER
Applicant
and
THE ATTORNEY GENERAL OF CANADAand
CANADA REVENUE AGENCY
Respondents
REASONS FOR ORDER AND ORDER
1. Introduction
[1] Kim Forster, the Applicant in this proceeding, is a long time employee with the Canada Revenue Agency (the CRA). In May 2003, she filed a complaint with the Canadian Human Rights Commission (the Commission) against her employer, alleging that the CRA had discriminated against her on the prohibited ground of disability over a period of time spanning 1998 to February 2002.
[2] After conducting an investigation, the Commission decided on November 18, 2004, to dismiss the Applicant's complaint pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act). It is this decision that the Applicant is challenging.
[3] The Applicant was self-represented at the hearing, although she obtained legal counsel to prepare her Memorandum of Fact and Law.
2. Background
[4] The Applicant began working with the CRA in 1979 when she was 22 years of age. By all indications, her work performance was satisfactory and her career within the CRA had been advancing.
[5] Then in 1997, the Applicant started to experience health problems due to a number of personal crises, stemming from stressful family responsibilities including litigation in which she was seeking child support from her former partner. The Applicant and her former partner were both working at the Surrey Tax Centre (the STC) at the time.
[6] Over the winter months, the Applicant's mental health deteriorated. In June 1998, the Applicant was diagnosed with clinical depression and associated anxiety disorder and on her doctor's recommendation she went on disability leave.
[7] The Applicant's medical doctor approved a gradual re-entry to work in February 1999 but recommended that she not return to her previous position at the STC. The Applicant requested relocation to another work area in the STC in order to minimize contact with her former partner. That request was denied because of concerns with the Applicant's work performance. The Applicant also requested in September 1999 a "specialty workflow" more suited to her limitations with respect to multi-tasking. In November 1999 she was assigned to the System Reassessment Cancellations workflow. Although the job involved less multi-tasking, the complexity of the files presented new obstacles for the Applicant given her diminished cognitive abilities and in March 2000, the Applicant again went on disability leave.
[8] In July 2000, the Applicant's psychiatrist authorized her return to work on a gradual basis but recommended that she not return to her previous position. Because of the holiday schedules of various managers at the CRA and the CRA's request for an assessment by Health Canada of the Applicant's fitness to work, the Applicant's return to work was delayed.
[9] In October 2000, Dr. Neva Hilliard with Health Canada assessed the Applicant as fit to work with limitations. In November 2000, the Applicant, her union representative and managers with the CRA met with Dr. Hilliard and Ruth Nicholson, an occupational therapist with Health Canada, to discuss Dr. Hilliard's recommendations with respect to the Applicant's limitations. Dr. Hilliard recommended the following:
a) that the Applicant not return to her substantive position at the STC;
b) that the Applicant work in an environment where she is able to pace her work activities to avoid limited critical deadlines;
c) that the Applicant work on specific rather than general tasks which require varied and multiple activities concurrently; and
d) that the Applicant work in an environment which limits the number of disruptions, distractions and confrontational situations.
[10] At the meeting, the CRA committed to providing the Applicant a number of job descriptions for the purpose of finding a position within the agency that would satisfy the recommendations made by Dr. Hilliard. The Applicant reviewed the job descriptions with Ms. Nicholson, and a position was found for the Applicant as a Trust Compliance Officer at the Burnaby Fraser Tax Service Office (the BFTSO).
[11] The Applicant started her new assignment as a Trust Compliance Officer at the BFTSO in January 2001. Over the 13 months that followed, the Applicant occupied three different positions at the CRA.
[12] The Applicant's assignment at the BFTSO was intended to be a term position until August 2001. However, on June 21, 2001, the manager of that division, Richard Day, informed the Applicant that her placement at the BFTSO was over. The next month, the Applicant was assigned to a position in Business Returns. Again, that placement was unsuccessful and on December 13, 2001, the Applicant's position at Business Returns was ended. The Applicant was then told to report for another assignment at the Omniplex worksite.
[13] From the Applicant's perspective, her difficulties in each of these three assignments were directly due to the CRA's failures in accommodating her limitations as outlined by Dr. Hilliard. The CRA, on the other hand, contends that the placements were not successful because of the Applicant's poor work performance and because the Applicant was allowing her union activities and personal affairs to distract her from her training and work.
[14] In the fall of 2001, Health Canada was again asked to conduct an assessment into the Applicant's fitness to work. Dr. Owen Garrett, an occupational psychologist, was assigned to provide a full psychological review of the Applicant. On February 20, 2002, Health Canada sent a letter to the CRA informing the agency that Dr. Garrett had determined that the Applicant was unfit for work. Dr. Garrett also stated that the Applicant was in immediate need of treatment and that her return to work would depend on her recovery and would be reviewed after 24 weeks.
[15] The CRA informed the Applicant on February 21, 2002 that she would be placed on medical leave without pay, effective immediately.
[16] Subsequently, in May 2004, the Applicant returned to work at the CRA without any limitations. The Applicant continues to be employed at the CRA.
3. The Applicant's Human Rights Complaint
[17] On May 6, 2003, the Applicant filed a complaint against the CRA alleging discrimination and harassment on the prohibited ground of disability. Specifically, the Applicant alleges that the CRA discriminated against her by failing to accommodate her and by treating her in an adverse differential manner, contrary to section 7 of the Act. The Applicant also alleges that the CRA failed to provide her with a workplace free from harassment, contrary to section 14 of the Act. Finally, the Applicant alleges that the CRA discriminated against her and other employees by implementing a policy or practice that tends to deprive mentally disabled employees appropriate accommodation, contrary to section 10 of the Act.
[18] In her complaint, the Applicant recounts events related to her employment at the CRA, specifically between June 1998, when she was diagnosed with clinical depression, and February 22, 2002, when she was found unfit to work. The Applicant also points to her requests for accommodation and the CRA's alleged failure to properly accommodate her disability.
[19] The Applicant claims that between March 1999, when she returned from disability leave, and March 2000 her supervisor continually pressured her regarding her productivity and absenteeism. As well, the Applicant states that her official request for accommodation, namely to work on a specialty workflow, was denied.
[20] The Applicant alleges that even though her psychiatrist deemed her fit to return to work in July 2000, the CRA was slow in taking the steps necessary to ensure her specific needs could be accommodated which would allow her to return to work. As a result, the Applicant did not return to work until January 2001.
[21] With respect to her position at the BFTSO, the Applicant claims that she was not accommodated in this position and was threatened with termination of her employment with the CRA. Specifically, the Applicant submits that the CRA did not accommodate her needs with respect to multi-tasking and that the CRA "excessively monitored" her job performance and her absences from work. The Applicant states that Business Returns was a chaotic workplace for her, and that she was given ambiguous or conflicting instructions and was being monitored constantly. The Applicant claims that between September and November 2001 various incidents took place at Business Returns which adversely affected her mental health. As for her assignment at the Omniplex worksite, the Applicant states that she was moved into a different work location which only exacerbated her symptoms of social anxiety.
[22] The Applicant further claims that her job placements were unsuccessful because the CRA had no procedural policy in place to assist managers in knowing how to accommodate employees with disabilities nor any procedural mechanisms to ensure expeditious job transfers necessary to meet accommodation needs. The Applicant alleges that the CRA had no mechanism to hold managers accountable for fulfilling their duty to accommodate employees nor any internal recourse for employees who did not feel properly accommodated.
[23] Finally, in her complaint, the Applicant recalls several incidents which she appears to consider as constituting harassment. One incident involved her former partner; the other three incidents involved supervisory staff or management at the CRA.
4. The Commission's Decision
[24] On November 18, 2004, the Commission wrote to the Applicant informing her that it had decided that no further inquiry into the Applicant's complaint was warranted. In its letter, the Commission stated the following:
Before rendering their decision, the members of the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because:
· the evidence shows that the complainant was accommodated in the workplace;
· the evidence shows that the complainant was not treated differently because of her disability other than for accommodation purposes; and
· the evidence does not support that the complainant was harassed in the workplace.
5. The Evidence before the Commission
[25] In making its decision under section 44 of the Act, the Commission had before it the following documents:
a) a summary of the Applicant's complaint and the complaint form;
b) the Investigator's report;
c) the Applicant's submissions in response to the report and her reply to the CRA's responses;
d) the CRA's response to the Investigator's report and to the Applicant's submissions in response to the report; and
e) the chronology of the Commission's investigation of the Applicant's complaint.
Below, I will summarize the Investigator's report and the responses by the Applicant and the CRA to the report.
A. Investigator's Report
[26] In her report dated October 21, 2004, the Investigator began by providing a brief summary of the Applicant's complaint. The Investigator then dealt with the Applicant's allegations of discrimination under four headings, each centering on particular periods of the Applicant's employment with the CRA after she returned from her first disability leave. The four periods can be described as follows:
1) the Applicant's gradual re-entry into the CRA workforce beginning in February 1999 until March 2000 when she went on disability leave;
2) the period beginning October 2000 when the Applicant was assessed by Dr. Hilliard until June 2001 when her assignment at the BFTSO was ended;
3) her placement at Business Returns between July 2001 and December 2001; and
4) her transfer to Omniplex in January 2002 until she was found unfit to work in February 2002.
[27] Under each heading, the Investigator assessed the Applicant's contention that the CRA had failed to properly accommodate her. The Investigator set out the Applicant's allegations specific to the period, the CRA's response to those allegations, and the Applicant's rebuttal. The Investigator also referenced incidents of alleged harassment as they arose. The Investigator summarized the interviews she conducted relevant to the period, including interviews with the Applicant, managerial staff at the CRA involved in the decision making related to the Applicant's employment, and other material witnesses. The Investigator then provided her analysis, which consisted generally of briefly stating the Applicant's allegations and the Investigator's findings with respect to those allegations.
[28] Under the fifth heading, the Investigator addressed the Applicant's allegation that the CRA had implemented a policy that deprived employees with mental disabilities appropriate accommodation. The Investigator summarized the Applicant's complaint and the CRA's response, with specific reference to the accommodation policies followed by the CRA.
[29] In her overall analysis, the Investigator concluded that the evidence supports a finding that the Applicant was accommodated in her workplace and that the Applicant was not treated differently because of her disability other than for accommodation purposes. The Investigator also concluded that the evidence suggests that the Applicant spent more time on "other" non-related work duties instead of concentrating on her assigned accommodated work positions. Finally, the Investigator concluded that the evidence does not support that the Applicant was harassed in the workplace.
[30] The Investigator recommended to the Commission that the Applicant's complaint be dismissed pursuant to paragraph 44(3)(b) of the Act.
B. Parties' Responses to the Report
[31] The Investigator's report was disclosed to the parties who were then invited to submit written comments.
[32] The CRA provided its response to the report in a letter dated November 16, 2004. The CRA stated that it agreed with the Investigator's report in its entirety, save for a few minor corrections.
[33] After receiving an extension of time, the Applicant submitted a nine-page response on January 11, 2005, in which she again detailed her allegations of discriminatory treatment, systemic discrimination and harassment. The Applicant acknowledged that some accommodation was provided by the CRA; however, she reiterated her primary allegation which was that the CRA's accommodation efforts were insufficient because the CRA had not sought the advice of occupational experts in determining how to accommodate the Applicant. The Applicant added that the CRA had failed to accommodate her to the point of undue hardship, as required by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Services Employees Union, [1999] 3 S.C.R. 3 (Meiorin). Further, the Applicant took issue with numerous assertions made by the CRA and its representatives and with the findings of the Investigator, stating that documentary evidence she had provided to the Commission contradicted those assertions and findings.
[34] In its rebuttal dated January 20, 2005, the CRA observed that the Applicant had not raised any new facts but had merely repeated allegations and arguments already made by her. The CRA also suggested that the Applicant was trying to downplay facts that were not favourable to her, in particular that the great deal of time she spent on union activities "completely derailed" any accommodation efforts.
[35] The Applicant submitted a reply to the CRA's rebuttal on February 6, 2005, in which she stated that the CRA had failed to correct a number of misunderstandings and inaccuracies in the Investigator's report. As well, the Applicant stated that the Commission erred by ignoring evidence in the "binder" submitted by the Applicant with her original complaint. Attached to her rebuttal was an excerpt of the CRA's employment equity compliance review audit conducted by the Commission pursuant to the Employment Equity Act, S.C. 1995, c. 44.
6. Issues
[36] In her Notice of Application for judicial review, the Applicant cited both procedural and substantive errors on the part of the Commission. However, in her memorandum and at the hearing, the Applicant focused her challenge on alleged errors made by the Investigator in the conduct of the investigation. In my view, it is clear that this application for judicial review turns on the adequacy of the Investigator's report.
[37] Where the Commission does not give substantial reasons for its decision and where the Commission can be taken to have adopted the Investigator's findings, it can be assumed that the Investigator's report constitutes the Commission's reasons: see Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 (SEPQA) at page 903; and Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) at paragraph 43. In such cases, the Federal Court has held that if the Investigator's report is flawed, then it must follow that the Commission's decision is equally flawed: see Canadian Broadcasting Corp. (CBC) v. Canada(Human Rights Commission) (1993), F.T.R. 214 (T.D.) (CBC) at paragraph 53.
[38] The sole issue before the Court is whether the Commission breached the principles of procedural fairness by basing its decision on an investigation report that was deficient.
7. Applicable Law
[39] The relevant statutory provisions of the Act are appended to these reasons as Schedule "A". Specific statutory provisions will be included where required for ease of reference and clarity. Below, I will briefly set out the legislative framework of the Act and the legal principles that pertain to this case.
A. Discrimination
[40] The purpose of the Act as stated in section 2 is to protect individuals from discriminatory policies or practices based on a prohibited ground, which includes "disability". Section 25 defines a disability as "any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug".
[41] The substantive grounds for the Applicant's human rights complaint are sections 7, 10 and 14 of the Act. Section 7 prohibits employers from refusing to hire or terminating an individual and from treating an individual adversely in relation to employment on a prohibited ground of discrimination. Section 10 deems a policy or practice to be discriminatory if that policy or practice "deprives or tends to deprive an individual or class of individuals of any employment opportunity on a prohibited ground of discrimination". Section 14 prohibits harassment of an individual on a prohibited ground of discrimination. In respect of each of these grounds, the onus is on the complainant to establish a prima facie case of discrimination: see Ontario(Human Rights Commission) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 at page 558.
[42] Where a prima facie case of discrimination is made out under either section 7 or section 10, the employer may nevertheless have a defence by virtue of section 15 of the Act. Paragraph 15(1)(a) provides that "any refusal, exclusion, expulsion, suspension, limitation, specification or preference" in relation to employment is not a discriminatory practice if that practice is based on a bona fide occupational requirement (BFOR). The employer has the burden of proving, on a balance of probabilities, that the practice is a BFOR. To do so, pursuant to subsection 15(2), the employer must establish that accommodating the needs of the employee affected would impose undue hardship on the employer, considering health, safety and cost.
B. The Role of the Commission
[43] The Act empowers the Commission to screen human rights complaints in order to determine whether further inquiry is warranted. To assist in making this determination, section 43 of the Act provides that the Commission may assign an investigator to investigate the complaint. Subsection 44(1) requires the investigator to submit a report of his or her findings to the Commission. The Commission must then act on the Investigator's report. If, having regard to all the circumstances of the case, the Commission determines that further inquiry is warranted then the Commission has the discretion under paragraph 44(3)(a) either to request that the Chairperson of the Canadian Human Rights Tribunal initiate an inquiry under section 49 of the Act, or to appoint a conciliator under paragraph 47(1)(b) of the Act. However, if the Commission determines that further inquiry is not warranted, the Commission has no discretion and is required under paragraph 44(3)(b) to dismiss the complaint.
[44] The Commission's role is to decide whether the evidence establishes a reasonable basis that would justify the complaint being pursued further: see SEPQA, above at page 902; and Cooper v. Canada(Human Rights Commission), [1996] 3 S.C.R. 854 at 891 (also indexed as Bell v. Canada(Human Rights Commission)).
C. Procedural Fairness
[45] The jurisprudence establishes, as a general rule, that administrative agencies are masters of their own procedures as long as those procedures respect the principles of procedural fairness: see Tahmourpour v. Canada (Solicitor General), 2005 FCA 113. Regarding questions of procedural fairness, no "standard of review" is applicable. If the Commission violates the principles of procedural fairness in conducting an investigation into a human rights complaint, then its decision must be set aside. As the Federal Court of Appeal stated in Sketchley v. Canada(Attorney General), 2005 FCA 404 at paragraph 53:
CUPE [Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539] directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act or omission relevant to procedural fairness (at para. 100). This procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.
[46] In Sketchley, the Federal Court of Appeal considered the factors for determining the content of procedural fairness set out by the Supreme Court of Canada in Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, to the context of the screening exercise conducted by the Commission. The Court of Appeal concluded that the duty of fairness owed by the Commission in conducting an investigation was appropriately described by the Federal Court Trial Division in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C 574 (T.D.); aff'd (1996), 205 N.R. 383 (F.C.A.).
[47] At page 598 of Slattery, Justice Marc Nadon stated that the underlying requirement of procedural fairness is that the Commission has "an adequate and fair basis on which to evaluate whether there is sufficient evidence to warrant appointment of a tribunal". He further stated that ensuring an adequate and fair basis requires that the investigation into the complaint be both neutral and thorough.
[48] In the present case, although the Applicant alleges that the investigation was not neutral, nothing in the evidence indicates that the Investigator was partial. Ultimately, at the heart of the Applicant's allegations in this application for judicial review is that the Investigator's conduct of the investigation and her report were not thorough.
[49] In expanding on the requirement that the Commission's investigation be thorough in order to satisfy the duty of procedural fairness, Justice Nadon in Slattery stated the following at page 600:
In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant's and respondent's interests in procedural fairness and the CHRC's interests in maintaining a workable and administratively effective system. ...
Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. (My emphasis.)
Essentially, Justice Nadon concluded that, given the latitude Parliament accorded to the Commission in screening human rights complaints, the Court should only intervene where the Commission's investigation is clearly deficient. Such a case includes, as Justice Marc Noël held in CBC, above at paragraph 51, where the investigation report does not reflect "a fair and unbiased presentation of all the relevant facts".
[50] Justice Nadon went on to say that where parties are given an opportunity to respond to the investigation report, the Court should not intervene unless it finds that the parties' responses could not overcome the prejudice caused by the omissions in the investigation report.
In contexts where parties have the legal right to make submissions in response to an investigator's report, such as in the case at bar, parties may be able to compensate for more minor omissions by bringing such omissions to the attention of the decision-maker. Therefore, it should be only where complainants are unable to rectify such omissions that judicial review would be warranted. Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.
8. Analysis
[51] I will first deal with the argument raised by the Respondents as to what evidence is properly before the Court in this application for judicial review. Secondly, I will discuss the Applicant's claim that the investigation into her section 10 and section 14 allegations was not thorough. Finally, I will consider the Applicant's claim that the investigation into her section 7 complaint was flawed.
A. Evidence before the Court
[52] In support of her Notice of Application, the Applicant swore an affidavit on May 26, 2005, which was accompanied by 35 exhibits. In her affidavit, the Applicant sets out the allegations forming the basis of her human rights complaints, referring to the attached exhibits. Among the exhibits is the "binder" of documents submitted by the Applicant with her complaint, which includes her 36-page "unofficial" complaint as well as emails, file notes and meeting minutes related to the relevant period of the Applicant's employment at the CRA. The remainder of the exhibits attached to the Applicant's affidavit consists mainly of documents generated during the course of the investigation, including the Investigator's notes of some of the interviews she conducted. All of the documents attached as exhibits were obtained by the Applicant through requests under the Access to Information Act, R.S.C. 1983, c. A-1. None of these documents were before the Commission when it made its decision to dismiss the Applicant's complaint, but they were before the Investigator.
[53] The Respondents object to the Court considering the Applicant's affidavit and the attached exhibits. The Respondents submit that in conducting a review of the Commission's decision, the only evidence that is admissible is that which was before the Commission. The Respondents argue that the Court cannot consider new evidence, such as the Applicant's affidavit or the documentary materials which were before the Investigator but not assessed by the Commission when it made its decision. In any event, the Respondents submit that the majority of the Applicant's affidavit is inadmissible because it contains hearsay, argument, speculation and conjecture.
[54] I agree with the Respondents that it is generally well-established that on judicial review, the Court can only consider evidence that was before the federal board, commission or other tribunal whose decision is being reviewed: see for example Lemieche v. Canada(Minister of Citizenship and Immigration) (1993), 72 F.T.R. 49; Franz v. Canada(Minister of Citizenship and Immigration) (1994) 80 F.T.R. 79; and Via Rail v. Canada (Human Rights Commission), [1998] 1 F.C. 376 (T.D.). However, as the Respondents acknowledge, an exception exists where it is alleged that the federal board, commission or other tribunal breached the principles of procedural fairness: see Ontario Association of Architects v. Association of Architectural Technologists of Ontario, [2003] 1 F.C. 331. In summary, in a judicial review, the Court cannot consider new or fresh evidence in determining whether the federal commission's decision can stand on its merits, but the Court can consider such evidence in determining whether the commission breached the principles of procedural fairness in arriving at that decision. As the issue to be determined in this application for judicial review is one of procedural fairness, it is open to the Court to consider the documentary evidence that was before the Investigator but which was not before the Commission.
B. Section 10 and Section 14 Complaints
[55] The Applicant contends that the Investigator gave "short shrift" to her allegation that the CRA's policies and procedures deprive employees with mental disabilities appropriate accommodation contrary to section 10 of the Act by merely summarizing the CRA's submissions. Section 10 states the following:
10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
...
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
10. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite et s'il est susceptible d'annihiler les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus, le fait, pour l'employeur, l'association patronale ou l'organisation syndicale :
a) de fixer ou d'appliquer des lignes de conduite;
[...]
[56] In my view, the Applicant's contention that the investigation into her section 10 allegation was deficient is without merit. As the Respondents note, the Applicant does not point to any policy or practice implemented by the CRA in relation to employees with mental disabilities that would contravene section 10. Rather, in essence, the Applicant is arguing that the "lack" of policies and practices constitutes a prima facie violation of section 10. I do not accept that the absence of policies or practices falls within the scope of section 10, in particular because the provision speaks to the establishment or the pursuit of a policy or practice by the employer. Moreover, the Applicant has not pointed to any relevant facts overlooked by the Investigator. The onus is on the Applicant to make out a prima facie case of discrimination and I see nothing in the record that indicates that the Investigator did not conduct a thorough investigation based on the evidence that was before her in relation to the Applicant's section 10 allegation.
[57] Further, the Applicant submits that the Commission erred because it did not make a finding in its November 18, 2004 decision concerning her section 10 complaint. In my view, the Commission did not commit a reviewable error by not explicitly stating a conclusion with respect to the Applicant's allegations on this ground. As the Commission dismissed the Applicant's entire human rights complaint as recommended by the Investigator, the Commission can be taken to have accepted the reasons given by the Investigator who had found there to be no basis for further inquiry into the Applicant's section 10 complaint.
[58] The Applicant also argues that the investigation into her section 14 complaint was not thorough because the Investigator did not provide any analysis of "five specific incidents" of harassment. In reply, the Respondents submit that while the Investigator may not have explicitly referenced each specific allegation, there is no evidence that she failed to investigate the fundamental aspects of the Applicant's harassment complaint. The Respondents state that the Investigator is not required to investigate "every minute allegation of discrimination" nor is the Investigator required to make reference to, or provide analysis of, "every minutiae" in her report.
[59] I am not persuaded that the investigation was flawed in respect to the Applicant's section 14 complaint. Although the Investigator did not include a separate heading in her report dealing specifically with the Applicant's allegations of harassment, there is no indication that the Investigator made any fundamental omissions related to the Applicant's harassment claims. The Investigator acknowledged in her report allegations of harassment asserted by the Applicant; she also interviewed persons named by the Applicant as the perpetrators of the harassment and put the Applicant's allegations to them. Further, aside from asserting that the Investigator did not deal with specific incidents of harassment, the Applicant fails to indicate what "obviously crucial evidence" was ignored by the Investigator and in the investigation report. In the result, the Applicant has not established a violation of the principles of procedural fairness in respect to her harassment complaint.
[60] In summary, I find that the Investigator was thorough in investigating the Applicant's allegations made under sections 10 and 14 of the Act. As a result, the Commission did not err in relying on the Investigator's report in respect of these two grounds of the Applicant's complaint.
C. Section 7 Complaint
[61] The Applicant alleges that the CRA discriminated against her by treating her in an adverse differential manner contrary to section 7 of the Act and by failing to accommodate her to the point of undue hardship. Section 7 states the following:
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.
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d'employer ou de continuer d'employer un individu;
b) de le défavoriser en cours d'emploi.
As noted above, the onus is on the Applicant to establish a prima facie case of discrimination under section 7. If the Applicant does so, then the burden shifts to the CRA to establish any defence to the discriminatory practice. One such justification is found under paragraph 15(1)(a), which stipulates that a policy or practice is not discriminatory if it falls within the exception of a bona fide occupational requirement. In order to qualify as a BFOR, the employer must establish that accommodating the needs of the employee would impose undue hardship on the employer: see subsection 15(2).
[62] In her memorandum, the Applicant put forward the following proposition with respect to the establishing a prima facie case under section 7:
Once an employee has established a prima facie case that she has a mental or physical disability that requires employment accommodation, the onus shifts to the employer to demonstrate that it has accommodated the employee's disability to the point of undue hardship.
At the hearing, the Applicant essentially adopted the position that when Dr. Hilliard found that the Applicant had limitations because of her disability which needed to be "accommodated" if the Applicant were to be able to return to work, a prima facie case of discrimination was established. According to the Applicant, it was then incumbent on the CRA to provide the Applicant with the "accommodations" indicated by Dr. Hilliard unless it could prove that doing so would cause the CRA undue hardship.
[63] With this as her starting point, the Applicant submits that the investigation into her section 7 complaint was deficient because the Investigator did not analyse whether the CRA's "prima facie discriminatory practice" met the exigencies of undue hardship under subsection 15(2). The Applicant contends that the Investigator was obligated to assess whether the CRA satisfied its onus of proof by applying the analytical framework set out in Meiorin, above. In Meiorin, the Supreme Court of Canada held that in order for an employer to establish that a discriminatory standard is a BFOR, the employer must prove on a balance of probabilities that its policy or practice satisfies the following three criteria:
1) that the employer adopted the standard for a purpose or goal that is rationally connected to the function being performed;
2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose, with no intention of discriminating against the claimant; and
3) that the impugned standard is reasonably necessary for the employer to accomplish its purpose. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship.
The Applicant says that, by failing to conduct an investigation into whether the CRA's accommodation efforts reached the point of undue hardship, the Investigator breached the principles of procedural fairness.
[64] While I agree with the Applicant that Meiorin is the applicable test for determining whether an employer has established that a discriminatory standard is a BFOR, in my view, the Applicant's contention that the Investigator in this case violated her duty of procedural fairness by not applying that legal test cannot stand. The Meiorin test begins from the premise that the complainant has established a prima facie case of discrimination. In Meiorin, the complainant had discharged her burden of establishing that the impugned aerobics standard operated to deny women employment opportunities. By contrast, in this case, the Investigator essentially concluded that any differential treatment of the Applicant by the CRA was undertaken in an effort to facilitate her return to work, and that any adverse treatment the Applicant may have experienced was due to her own behaviour - that is, in performing her job poorly and in focusing on her union activities to the detriment of her training and work. As a result, the Investigator was not satisfied that the evidence established a reasonable basis for a prima facie case of discrimination, and therefore she did not go on to consider whether the CRA had accommodated the Applicant to the point of undue hardship.
[65] The Applicant's section 7 complaint revolves around a course