Croteau v. Canadian National Railway Company

Croteau v. Canadian National Railway Company
Collection
Canadian Human Rights Tribunal
Date
2014-05-12
Neutral citation
2014 CHRT 16
File number(s)
T1623/16910
Decision-maker(s)
Garfield, Matthew D.
Decision type
Decision
Decision status
Final
Decision Content
Between:
Pierre Croteau
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian National Railway Company
Respondent
Decision
File No.: T1623/16910
Member: Matthew D. Garfield
Date: May 12, 2014
Citation: 2014 CHRT 16
Table of Contents
Page
I............. Introduction. 1
II........... Background. 1
III......... Use of Initials. 2
IV......... The Complaint 2
V........... Context to this Case: The Railway Business. 3
VI......... Motion for Non-Suit 5
A. The Election Issue. 5
B. The Law With Respect to Non-Suit Motions. 6
i. The Prima Facie Case in Non-Suit Motions. 6
C. Reasons for Ruling on the Motion for Non-Suit 8
i. Particular Allegations and Facts in this Non-Suit Motion. 9
VII....... Reasons for Decision on the Merits: Introduction. 13
VIII..... The Law.. 13
A. Harassment 14
B. Duty to Accommodate. 16
C. The Cruden Case. 17
IX......... Findings of Credibility. 20
A. The Complainant 20
B. Leslie Croteau and Cheryl Hames. 23
C. CN’s Witnesses. 23
X........... Dr. AB and His Proffered Expert Evidence. 24
XI......... The Harassment Allegations. 28
A. Allegation #1: November 19, 2003 Conversation Between KS and
the Complainant 29
B. Allegation #2: Mau investigation meeting on December 15, 2003. 32
C. Allegation #3: January 8, 2004 shoulder injury re-enactment 33
D. Allegation #4: March 10, 2004 knee injury. 34
E. Allegation #5: The Video Surveillance of Mr. Croteau and his family. 37
F. Allegation #6: May 11, 2004 investigation meeting with Kevin Mau. 40
G. Allegation #7: Tuition reimbursement denial 42
H. Allegation #8: TC improperly relied on hearsay and misinformation. 44
I. Allegation #9: Mr. Croteau being disciplined in 2006 for the
March 2004 absences. 45
XII....... Failure to Accommodate Allegation. 46
A. Mr. Croteau’s Diagnosis/Medical Condition and Restrictions. 46
B. Accommodation History and Findings. 49
C. April 2007-May 2008 Accommodation Period. 57
D. The Five RTW Attempts. 59
i. Attempt #1: Job-shadowing Rover Joe Russell 59
ii. Attempt #2: Administrative/Clerical Work with Tino and Robinson. 60
iii. Attempt #3: Shadowing Rover LG.. 60
iv. Attempt #4: Radio Inventory Clerk. 61
v. Attempt #5: Rover-shadow Position. 64
E. May 6, 2008: Mr. Croteau Placed “Out of Service” – leave without pay. 67
F. Post-May 6, 2008 Events. 68
G. May 2008-June 2013 Accommodation Efforts including the Job Search
Radius. 70
H. Why Were Mr. Croteau’s RTW Attempts Unsuccessful? Why Did
CN’s BFOR/Accommodation Defence Succeed?. 76
I. Procedural Accommodation/Best Practices Issues. 80
XIII..... Conclusion. 82
I. Introduction [1] The Complainant, Pierre Croteau started working for Canadian National Railway Company (“CN”) in 1992. He progressed his way to the position of train conductor without incident. Unfortunately, as will be discussed in these Reasons for Decision, things changed for the worse in the Fall of 2003. Due to injuries initially and the onslaught of a mental disability, Mr. Croteau has not worked in his pre-injury/illness conductor’s job since 2004. Indeed, he has been on unpaid leave since May of 2008.
[2] The relationship between employer and employee quickly deteriorated beginning in 2003-04. The Complainant filed an internal harassment complaint against two supervisors, along with grievances, a complaint to the Privacy Commissioner of Canada, and “duty of fair representation” Canada Labour Code complaints against his union. Mr. Croteau also filed a complaint (“Complaint”) with the Canadian Human Rights Commission (“Commission”) alleging discrimination and harassment contrary to sections 7 and 14 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (“CHRA”) based on the prohibited ground of disability.[1]
II. Background [3] The Commission referred the Complaint to the Tribunal on December 15, 2010. Some time prior to the commencement of the hearing on January 9, 2012, a motion to limit the scope of the inquiry was filed by CN. Other than on this motion and a subsequent motion for non-suit, the Commission did not participate in the hearing. With regard to the motion to limit the scope of the inquiry, I heard the motion and dismissed it without prejudice to the Respondent’s renewing it at the conclusion of the Complainant’s case. Mediation also took place before and during the hearing.
[4] This Complaint involved 11 allegations of harassments from 2003-07 and a continuing allegation of failure to accommodate from 2004 to the end of the hearing in 2013. The hearing lasted 36 days, including a motion for non-suit at the conclusion of the Complainant’s case. There were many breaks during the hearing to accommodate the panic attacks experienced by the Complainant. This was manageable and the Complainant was able to return. There is a mountain of viva voce and documentary evidence (10 binders of exhibits) in which to analyze and consider too. And of course, there are final submissions and books of authorities filed as well.
[5] From the parties’ and the witnesses’ points of view, memories fade and giving testimony becomes more difficult – some events going back to 2003. From the Tribunal’s perspective, it made it more challenging to adjudicate.
III. Use of Initials [6] Because of the allegations made against certain individuals and/or findings I have made, I have chosen to use initials or letters to identify them rather than their full name, in order to protect privacy interests.
IV. The Complaint [7] Mr. Croteau claims that his rights under sections 7 and 14 of the CHRA were violated by CN based on the ground of disability. Section 7 reads:
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,
based on a prohibited ground of discrimination.
Subsection 14(1) reads:
It is a discriminatory practice,
… …
(c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination.
[8] The scope of the Complaint, as defined by the Statement of Particulars and further stipulations by the Complainant, through his counsel’s final submissions, is as follows:
The essential substance of Mr. Croteau’s case includes allegations of a continuous pattern of harassment and behaviour by the Respondent that started in 2003 and continues to the present. It is Mr. Croteau’s contention that he was singled out and harassed, his character falsely impugned and his and his family’s privacy invaded in violation of his privacy rights by CN because of the fact that he needed medical leave for a personal medical issue in 2003 and also due to two workplace injuries in 2004. The first injury affected his shoulder and the second his knee. Mr. Croteau further contends that the cumulative effect of the actions of CN caused him to develop anxiety disorder, post traumatic stress disorder, and adjustment disorder for which it has failed to meaningfully comply with its duty to accommodate, which has exacerbated and prolonged his conditions.
V. Context to this Case: The Railway Business [9] I wish at the beginning of my Reasons to comment on the unique context of the Respondent’s business – freight rail. This is a dangerous business when things go wrong. CN’s witnesses and the exhibits filed speak to the one issue that looms above all others at CN – SAFETY, of its employees and the public. Derrick Colasimone, the current General Manager, Michigan Division, which includes Sarnia and Windsor, who is very experienced in the railway business, including having been a conductor and locomotive engineer, was eloquent in expressing the nature of the railway business, the importance of safety and the inherent dangers of operating a railway business. This is a highly safety-conscious, regulated industry, for obvious reasons. As he put it: “Safety enables performance” is our motto. If you run a safe railway, everything else is gravy…It’s a very unforgiving industry. You don’t get hurt ‘a bit’.” As well, the freight railways often transport dangerous goods. Every rule in the Railway Rules Book is there for a reason, many of which were promulgated on spilled blood (lessons learned from fatal accidents).
[10] I heard evidence about the extensive regulation of the railway industry and oversight by Transport Canada. And of course, there are tremendous internal rules and monitoring by CN, including regular efficiency testing. Conductors (who are responsible for the overall operation of the train) and engineers (who are responsible for the operation of the locomotive) are deemed safety-critical positions (“SC”), requiring the highest fitness for duty requirements and review. There are other SC positions such as trainmasters, yardmasters, etc. Below those positions in terms of safety designation are safety-sensitive (“SS”) jobs (e.g., rover). And below those are positions that are non-SC/SS and which have no safety designation, such as clerical positions.
[11] I also heard evidence about the rules concerning the reporting of injuries and accidents by train crew. More than one CN witness testified about the fact that “no injury is too small” to be reported (which is mandatory, not optional) and investigated. As Mr. Colasimone pointed out, any safety rule violation has the potential to be a fatality. He used the example of “detraining”. The train crew member could fall under the train.
[12] I say the foregoing because, as will be seen in these Reasons for Decision, and contrary to the Complainant’s submission, “the safety issue” was no “red herring, smoke screen or justification to explain harassment and inability to accommodate” the Complainant on the part of CN. While there is not one CHRA for one workplace and another for the rail industry, context is important. As well, “safety” is specifically identified as a factor to consider in assessing whether proposed accommodation would impose “undue hardship” within the meaning of section 15(2) of the CHRA. It was quite clear to me after this long hearing that “safety” is an overarching and defining consideration to CN, the railway industry in general and to the government who regulates it.
VI. Motion for Non-Suit A. The Election Issue [13] At the conclusion of the Complainant’s case, counsel for the Respondent indicated he intended to bring a motion for non-suit. I received written submissions about the issue of whether CN would be put to an election not to call evidence if the motion was heard. I ruled that it would not be required to make an election.
[14] Regarding the issue of the election in a non-suit motion, I have a few comments which I first made in my Reasons for Decision in Fahmy v. GTAA, 2008 CHRT 12. First, the Tribunal has the jurisdiction to decide whether an election is required and to hear a motion for non-suit: Filgueira v. Garfield Container Transport Inc., 2006 FC 785. Hughes J. pointed out at para. 22 that the matter of requiring an election is one of procedure, not of law or natural justice: “Tribunals should be allowed reasonable latitude when it comes to procedure…” Second, there are thoughtful decisions at the Tribunal-level both requiring and not requiring an election to be made prior to hearing a motion for non-suit. In both decisions, the respective members agreed that the question should be decided in the circumstances of each case: Chopra v. Canada (Department of National Health and Welfare), [1999] C.H.R.D. No. 5 and Filgueira, 2005 CHRT 30.[2] In the civil context, most jurisdictions in Canada do not require an election.[3] While there are sound legal and policy reasons for both determinations, I am more persuaded by the arguments in favour of not requiring an election, for the reasons stated in Fahmy.
B. The Law With Respect to Non-Suit Motions [15] While a defendant’s resources and the public purse should not be burdened to pay for frivolous or vexatious claims, courts have set a high bar for non-suit motions to succeed. This is done through various means: the prima facie test requiring a presumption that a plaintiff’s evidence be believed; forcing an election to be made by a defendant (in those jurisdictions that require it); and the awarding of costs against an unsuccessful moving party. The courts have clearly determined that it should not be too easy for a defendant to knock out a lawsuit on a motion for non-suit. Perhaps there is a fear of delay to the process if unsuccessful non-suit motions became the norm. On the other hand, as Adjudicator Wildsmith stated in Gerin v. IMP Group Ltd., [1994] N.S.H.R.B.I.D. No. 4, at para. 21: “…I note that the motion for non-suit is a potential safeguard against abuse.”
i. The Prima Facie Case in Non-Suit Motions [16] The test for the moving party is as set out by Hughes J. in Filgueira, at paras. 24-25:
A motion for non-suit requires that the Court or Tribunal consider the evidence from the point of view that, if believed, does it establish at least a prima facie case. As stated by McIntyre J. of the Supreme Court of Canada in "O'Malley" (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536) at paragraph 28:
"The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. 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."
The Nova Scotia Court of Appeal in J.W. Cowie Engineering Ltd. V. Allen (1982), 26 C.P.C. 241 especially at paragraphs 12 to 17 reviewed the nature and level of evidence sufficient to satisfy the "prima facie" test. Jones JA for the majority at paragraph 14 gave a succinct statement of the law:
"It is clear that the mere fact there is some evidence, however weak, does not prevent a trial Judge from granting the motion."
[17] An unsuccessful motion for non-suit does not mean that the plaintiff will win the day at the conclusion of the hearing proper. It simply means this high bar for a preliminary dismissal has not been reached.
[18] It is important to note the different analytical approaches used in the non-suit and “on the merits” determination. As Member Groarke noted in another decision in Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32, at para. 12, in a motion for non-suit there is a different kind of analysis undertaken than that carried out “on the merits” at the end of a hearing. The courts have been quite clear that a trial judge or adjudicator should not do the regular weighing and assessing of evidence, including credibility, that is done in the normal course at the conclusion of a trial or hearing. The trier at the non-suit is measuring the case from a prima facie perspective – very superficially, “at first glance or sight” as the Latin term prima facie literally means. No in-depth perusing of the evidence or assessment of the credibility of the witnesses is done. Indeed, the bar is cast so high that it is only if the complainant’s case is totally unbelievable or far-fetched that it should be disbelieved.[4]
[19] The role of the trial judge in a motion for non-suit was canvassed by the Ontario Court of Appeal in FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. (2007), 85 O.R.(3d) 561. The Court held that the trial judge applied the wrong test in granting the non-suit motion “…by going beyond his limited mandate…” on the non-suit motion. Laskin J.A. wrote at paras. 35-36:
On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign “the most favourable meaning” to evidence capable of giving rise to competing inferences…
In other words, on a non-suit motion the trial judge should not determine whether the competing inferences available to the defendant on the evidence rebut the plaintiff’s prima facie case. The trial judge should make that determination at the end of the trial, not on the non-suit motion. See John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths Canada, 1999) at 139.
I assume that the Court is not suggesting the “assumption of truth” of the evidence includes evidence that is unbelievable in the extreme, or simply preposterous.
[20] I also wish to point out that there is some confusion in the case law about whether the test requires that the evidence would or could trigger liability. Courts and tribunals have taken both approaches and some avoid the issue altogether. In Filgueira, supra, Hughes J. quotes with approval at para. 6 the following passage in Sopinka, Lederman and Bryant: “The judge must conclude whether a reasonable trier of fact could find in the plaintiff’s favour if it believed the evidence given in the trial up to that point.” [My italics.] It appears clear that the Supreme Court of Canada has adopted the “could” approach, at least in the civil and criminal context, which I have followed here.[5] I see no reason to deviate from it in proceedings before the Tribunal.
C. Reasons for Ruling on the Motion for Non-Suit [21] On July 19-20, 2012, I heard argument on the motion for non-suit. On October 9, 2012, I advised the parties of the following ruling:
The motion for non-suit is granted in part; specifically, with respect to allegations #9 (notebook during rules refresher class) and #10 (non-disclosure of surveillance tapes). The motion was disposed of in accordance with the “limited inquiry” paradigm of a non-suit motion: i.e., the trier must assign the most favourable meaning to the Complainant's evidence and not apply the usual assessing and weighing of evidence and credibility that a trier does in the normal course after the close of a hearing. CN may, but is not required to, adduce evidence with respect to the remaining harassment and “failure to accommodate” allegations…
[22] One will see from my ruling above that I essentially gave no reasons. This addresses the commentary in the various cases dealing with elections and non-suits concerning whether reasons should be given, and when and to what extent, where an election is not required. Adjudicator Slotnick in Potocnik v. Thunder Bay (City), [1996] O.H.R.B.I.D. No. 16, at para. 16 cites with approval the approach taken in Tomen v. O.T.F. (No. 3), (1989) 11 C.H.R.R. D/223 not to give reasons. At para. 10, Adjudicator Slotnick states:
…where an adjudicator does not require an election and ends up rejecting the motion to dismiss the complaint, the proper procedure is to give no reasons. Otherwise, the party that is about to present its evidence would have the advantage of the adjudicator’s thoughts on the evidence of the other party.
In Filgueira, supra, Member Groarke refers to a respondent “taking the temperature” of the Tribunal. I agree that a respondent should not get an advantage from bringing an unsuccessful non-suit motion by getting to “test the waters” of a tribunal. The adjudicator should not give reasons, other than to say whether a prima facie test has been made out. That is the approach I have taken in this case.
i. Particular Allegations and Facts in this Non-Suit Motion [23] I now turn to apply the law on non-suits to the allegations and facts in issue here. CN argues that there is no evidence which, if believed, is capable of supporting a finding of liability against it on either sections 7 or 14 of the CHRA based on the prohibited ground of disability. The allegations are based on the Complainant’s “subjective beliefs” alone. The Complainant, of course, argues the opposite.
[24] I have carefully examined the evidence, both viva voce and documentary, presented by the Complainant and his witnesses. As I indicated in my ruling, I was satisfied evidence existed which, if believed, could trigger liability on nine of the eleven allegations of harassment and the failure to accommodate allegation.[6] For two of the eleven harassment allegations, I found otherwise and dismissed them.
[25] I have done this analysis on the motion for non-suit following these legal parametres: giving the most favourable interpretation to the Complainant’s evidence and that of his witnesses; and not taking into account questions of credibility. I will focus on the two allegations that I non-suited.
[26] “I am gay” notation in Rules exercise book: Mr. Croteau alleges that Don Schenk, a supervisor, wrote the phrase “I am gay” in the Complainant’s exercise book during a Rules Refresher class on May 31, 2007. There is no dispute that the words were in the book. Terrence Gallagher, Senior Human Resources Manager, investigated and acknowledged the incident to the Complainant in his letter of June 12, 2007. He wrote that the books are normally “re-used from class to class” and inspected before redistribution. “In this case, unfortunately, the writing in the booklet went unnoticed. And we are unable to determine who had written the comment in the booklet,” he penned. “I was glad to get it [the letter],” said Mr. Croteau during his testimony. Mr. Gallagher also called him. CN would take steps to make sure that such an incident would never happen again.
[27] Mr. Croteau believes unequivocally that Mr. Schenk wrote the words. Mr. Croteau testified that there were six other employees in the class, but didn’t know them. He had reviewed the book (60-80 pages) prior to the class and didn’t see those words in it. During the break, he went to the washroom. When he returned, only Mr. Schenk was present. He then noticed the words in question. He concedes that he does not know if anyone else had come into the room when he was absent. He became visibly upset and was having a panic attack. Mr. Schenk noticed and asked him what was wrong. The Complainant refused to give him the book to inspect and repeated: “I am not gay and I am not quitting.”
[28] At the hearing, he testified that even though he was experiencing a “severe” panic attack (at a 9.5-10 level according to Mr. Croteau) during the incident, he nevertheless had a clear recollection of the event and was sure Mr. Schenk had written it. He even suggested a connection between the incident and his perceived “cut in pay” (i.e., that he should be paid a full day’s wages even if he worked for less than that). The Complainant acknowledged later that Mr Schenk was not responsible for “pay issues” nor involved in his return-to-work (“RTW”) regime, other than teaching this Rules class.
[29] Mr. Croteau also testified that because his brother passed away from AIDS 12 years before the incident, that Sarnia is a small town and everyone was aware of the cause of his brother’s death, that he drove a red VW Beetle car which he described as “not a manly car”, that he was “off and on” work due to his personal medical issue, he thought that people “assumed he was gay.” He conceded that no one at CN ever made a comment, disparaging or otherwise, about these topics, other than the book incident in May 2007.
[30] CN’s counsel argues that this harassment allegation is “preposterous” and “bizarre”, based solely on the Complainant’s subjective belief. In the alternative, even if I were to find that Mr. Schenk had written those words, Mr. Schenk is not a named respondent and CN can avail itself of the section 65 (vicarious liability) provision of the CHRA.
[31] Complainant counsel responds that CN has not met the high threshhold for successfully non-suiting this allegation and is conflating the test for non-suit with the usual post-hearing test of evaluating evidence and credibility. The Complainant has met the low hurdle of establishing a prima facie basis for this allegation.
[32] With respect to the above evidence and argument, I find that the Complainant has not established a prima facie basis for this allegation. The allegation is based solely on the Complainant’s perception and belief, without any evidence even tending to suggest that Mr. Schenk wrote those words.
[33] In the alternative, had I not dismissed this allegation at the non-suit stage, I would have done so on a balance of probabilities at the conclusion of the hearing. There was no adversarial relationship or history between the Complainant and Mr. Schenk. He had no motive to do this. Based on the evidence, Mr. Schenk was surprised at Mr. Croteau’s discombobulation and inquired what was wrong and wanted to see the book. Mr. Schenk’s Memo to File, written a few days after the incident, showed that he was both surprised and concerned with what had happened and the impact on Mr. Croteau. After the class, he even asked the Complainant if he wanted him (Mr. Schenk) to call him a taxi to go home. I also note that it would have been very risky for him to have written those words, given that Mr. Croteau or the other employees could have walked in at any time during the break.
[34] In addition, there can be no CHRA liability here because even if Mr. Schenk did write those words in the book, the evidence establishes that CN pursuant to subsection 65(2) of the CHRA: did not “consent” to the act; “exercised all due diligence to prevent the act”; and subsequently exercised all due diligence “to mitigate or avoid the effect thereof.” CN has extensive anti-discrimination/harassment policies. Furthermore, it would go through the Rules books before they were re-used in another class. Finally, CN looked into the matter when it became aware of what had happened. Indeed, Mr. Croteau testified that he appreciated Mr. Gallagher’s investigation (unsolicited by Mr. Croteau) and response (phone call and letter).
[35] Non-disclosure of surveillance tapes: Mr. Croteau alleges that CN failed to provide him with full disclosure with regard to the private investigation surveillance tapes that he had requested. The evidence during the Complainant’s case was that CN showed him the March 2004 surveillance tapes during the investigation meeting with Trainmaster Kevin Mau on May 11, 2004. CN offered to provide him with a copy of the tapes, but Mr. Croteau would have to pay a “copy fee” to the third party production company. CN was not profitting from copies being made. Mr. Croteau stated that CN was offering to sell the tapes to “third parties” at a profit. The evidence in the Complainant’s case also showed that his wife, who also testified, was told that she could receive a copy of the tapes for a fee. Mr. Croteau testified that he was not willing to pay for the tapes, given his financial situation and “out of principle”. He thought he should have gotten copies for free. He also testified that the “surveillance issues” were part of the “workplace issues” required to be resolved for his healing in order to RTW. This implies that the copy-fee requirement prevented him from getting the tapes and resolving the “surveillance issues” which in turn prevented him from re-integrating into the workplace. I do not accept this.
[36] Reviewing the evidence in the Complainant’s case on this allegation under the limited non-suit inquiry and assigning it the most favourable interpretation short of preposterousness or absurdity, I cannot let this allegation continue beyond the non-suit motion stage. I find no nexus or link between the evidence of this allegation to a violation of harassment under section 14 of the CHRA.
VII. Reasons for Decision on the Merits: Introduction [37] Having dismissed the motion for non-suit on nine of the eleven harassment allegations and the adverse, differential treatment (failure to accommodate) allegation, I asked counsel for the Respondent if he wished to call evidence. Understandably, Mr. McFadden answered “yes” and I proceeded to hear CN’s witnesses and the brief Reply evidence of the Complainant. What follows are my Reasons for dismissing the Complaint on the merits after a full hearing, putting the witnesses and their testimony, the documentary evidence, etc. under the scrutiny that a trier normally does upon completion of the hearing – i.e., weighing and assessing evidence, including questions of credibility.
VIII. The Law [38] The initial onus of establishing a prima facie case of discrimination under the CHRA rests with a complainant or the Commission: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Limited, [1985] 2 S.C.R. 536, at para. 28. Once that is established, the burden then shifts to the respondent to establish a justification or explanation for the discriminatory practice or action: Canada (A.G.) v. Lambie, [1996] F.C.J. No. 1695, at para. 16. The respondent’s explanation should not figure in the determination of whether the complainant has made out a prima facie case of discrimination: Lincoln v. Bay Ferries Ltd., 2004 FCA 2004, at para. 22.
[39] Also relevant to the instant case is the legal principle that: “It is not necessary that discriminatory considerations be the sole reason for the actions in issue in order that the complaint may succeed. It is sufficient that the discrimination be one of the factors for the employer’s decision”: Morris v. Canada (Armed Forces) (2001), 42 C.H.R.R. D/443 (C.H.R.T.), at para. 69.
[40] The case law recognizes the difficulty of proving allegations of discrimination by direct evidence. Discrimination is frequently practised in a very subtle and subterranean manner. Overt discrimination is rare: Basi v. Canadian National Railway Company (No.1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.), at para. 5038. Rather, it is the Tribunal’s task to consider all of the circumstances to determine if there is what is described in the Basi case as the “subtle scent of discrimination.”
[41] The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. According to this standard, discrimination may be inferred where the evidence offered in support of the discrimination renders such an inference more probable than the other possible inferences or hypotheses: Premakumar v. Air Canada (No. 2) (2002), 42 C.H.R.R. D/63 (C.H.R.T.), at para. 81.
A. Harassment [42] Part of this Complaint involves harassment allegations. Section 14 of the CHRA provides that it is a discriminatory practice to “harass an individual on a prohibited ground of discrimination.” Although “harassment” is not defined in the CHRA, the case law of the courts and human rights tribunals have developed an accepted definition of any words or conduct that is unwelcome or ought to be known to be unwelcome (from an objective standard)[7] based on a prohibited ground. While the case law generally requires repetitious or persistent acts, courts and tribunals have also considered a single, serious event as sufficient to constitute “harassment”.[8] If the test were merely from the subjective, personal belief of complainants, it would be very difficult for respondents to mount a successful defence.
[43] Developing a working legal definition of “harassment” outside of the sexual harassment sphere is challenging, since the latter iteration of the test developed first. The vast majority of the case law deals with sexual or racial harassment. That said, there is of course a commonality. It is important to recognize when dealing with allegations of “disability harassment” that it denotes more than just being uncomfortable or offended in the sometimes difficult, sensitive discussions between management and employees. For example, an employer has the right to manage its employees and issues relevant to the operation of its business, such as making, monitoring and enforcing rules in the workplace. The key is to examine whether the conduct has violated the dignity of the employee (e.g., as a result of belittling or degrading treatment by the employer linked to the ground of disability) from an objective perspective such that it has created a hostile or poisoned work environment.[9] In Day v. Canada Post Corporation, 2007 CHRT 43, Member Jensen wrote at para. 184:
The jurisprudence on harassment is premised on the idea that the conduct in issue is, by its nature, extraneous or irrelevant to the legitimate operations and business goals of the employer. Derogatory comments or constant and unnecessary questioning about a disability which are humiliating and demeaning are examples of conduct that is extraneous to the legitimate operation of a workplace.
B. Duty to Accommodate [44] I have considered the following general legal principles and case law (this is not an exhaustive list):
(1) The duty to accommodate is a multi-party obligation and exercise involving: the employer; the employee; and if applicable, the bargaining agent. I have written in this and other Decisions that the process should resemble a dialogue, not a monologue: Jeffrey v. Dofasco Inc., 2004 HRTO 5, aff’d (2007), 230 OAC 96 (Div. Ct.). The employee may make suggestions as to his/her preferences, but must accept a reasonable solution (short of perfection) proposed by the employer addressing his/her needs. The outer limits are that of undue hardship, considering health, safety and cost,[10] or synonymously referred to as “reasonable accommodation”: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970. The duty to accommodate is neither absolute nor unlimited: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, at para. 38;
(2) Renaud also states that complainants have a duty to facilitate the accommodation process. In Hutchinson v. Canada (Minister of the Environment), 2003 FCA 133, the Federal Court of Appeal held that where the employer proposes a reasonable accommodation, the complainant cannot insist on his or her preferred alternative accommodation, even if the alternative would not create undue hardship;
(3) The goal is to address or accommodate the employee’s needs in order that s/he is able to do the essential duties of his/her job. To that end, employers should be “innovative yet practical” and creative when considering how best this may be accomplished in each case: British Columbia (Public Service Employee Relations Comm.) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), at para. 64;
(4) An employer does not have a “make-work” obligation of unproductive work of no value and doesn’t have to change the working conditions in a fundamental way. However, it “does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.”: Hydro-Quebec v. Syndicat des employe-e-s de Techniques Professionnelles et al., 2008 SCC 43, at paras 16-18;
(5) “Fairness in the accommodation process is not…limited to a fair assessment of the complainant’s fitness for duty. Rather, the notion of fairness extends to all facets of the accommodation process…to the point of undue hardship.” See Day v. Canada Post Corporation, 2007 CHRT 43, at para. 68; Meiorin, supra.
C. The Cruden Case [45] This case is key to the matter before me. In Attorney General of Canada v. Cruden et al., 2013 FC 520 (appeal recently argued), Mr. Justice Zinn reversed a Decision of the Tribunal: Cruden v. Canadian International Development Agency and Health Canada, 2011 CHRT 13. Ms. Cruden had filed a complaint against the parties because she was refused a posting to Afghanistan partly due to a medical assessment that determined that, because of her Type I diabetes, she was medically unfit for that posting.
[46] Although the Tribunal had found that CIDA would have been caused “undue hardship” to accommodate Ms. Cruden’s needs in Afghanistan, it nevertheless upheld her complaints against CIDA and Health Canada “based on its finding that there were “procedural shortcomings” in the accommodation process.” In other words, in the Tribunal’s view, there is a separate procedural component in the duty to accommodate requirement in the CHRA that can be independently breached and attract remedies, “even when their employer cannot accommodate the disability without undue hardship.” Zinn J. disagreed with the above interpretation of the CHRA and set aside the Tribunal’s Decision.
[47] As CN’s counsel, Mr. McFadden, correctly points out, there is a divergence in approaches to this issue among the courts (Zinn J.’s Decision in the above case and the Ontario Divisional Court in ADGA Group Consultants Inc. v. Lane et al., 91 O.R. (3d) 649, by human rights tribunals (he cited several Decisions of the Human Rights Tribunal of Ontario, including Lane and one from this Tribunal pre-Cruden - Day v. Canada Post Corp., 2007 CHRT 43); and by labour arbitrators. One approach is to award compensation for “pain and suffering” or general damages for procedural breaches in the duty to accommodate even when substantively-speaking, the respondent was unable to accommodate the needs of the complainant to the point of undue hardship. The other approach, as determined by Zinn J. in Cruden, is to end the inquiry once a determination has been made that the respondent was not able to substantively accommodate the complainant without incurring undue hardship.
[48] This is a very important judgment, now on appeal to the Federal Court of Appeal, and having ramifications well beyond the matter before me. It is the present, binding statement of the law and I shall follow and apply it to the instant case.
[49] Mr. Bolter, the Complainant’s counsel, submits that Cruden stands for, among other things, the proposition that there is no separate procedural right once the Tribunal has found the respondent has met the undue hardship test. However, “procedure” is still important for a couple reasons. In para. 69, Zinn J. stated:
In paragraph 66 of Meiorin [a key Supreme Court of Canada Judgment dealing with the bona fide occupational requirement (“BFOR”)/duty to accommodate defence]…the Supreme Court is merely stating that a court or tribunal can look at the procedure employed in the accommodation process as a practical tool for deciding whether an employer has established – on an evidentiary basis – undue hardship: [he then quotes the passage from the Supreme Court’s Judgment]. [My emphasis.]
He then goes on to write at para. 70:
That is not to say that the procedure used by the employer when considering accommodation cannot have significance in any given case; indeed, in practical terms, if an employer has not engaged in any accommodation analysis or attempts at accommodation at the time a request by an employee is made, it is likely to be very difficult to satisfy a tribunal on an evidentiary level that it could not have accommodated that employee short of undue hardship...That is the very real and practical effect of the evidentiary burden to establish a BFOR resting with the employer. [My emphasis.]
In other words, and as CN’s counsel submits, an employer may do nothing and have “guessed right”. That is no doubt a dangerous legal strategy, but it is open to an employer to do, according to Cruden.
[50] The important carve-out or exception to the above regarding a separate procedural duty to accommodate was stated by Zinn J. at para. 79:
…there is no independent and separate discriminatory practice as set out in the CHRA that rests only on the accommodation process or the manner in which a policy or guideline is applied in the accommodation process, unless of course the process itself or the application of the policy or guideline is conducted in a substantively discriminatory manner. [My emphasis.]
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