Houle v. Transports Canada

Houle v. Transports Canada
Collection
Canadian Human Rights Tribunal
Date
2024-04-19
Neutral citation
2024 CHRT 22
File number(s)
T2660/3621
Decision-maker(s)
Langlois, Marie
Decision type
Decision
Grounds
Disability
Notes
This translation will undergo a linguistic revision before its final publication on the CHRT website.
Summary:
Mr. Houle, the Complainant, who had been working in the Merchant Navy, received a diagnosis of paranoid schizophrenia in 1992. Since 1995, he has been managing his condition through continuous medication. After a few years’ break, Mr. Houle resumed work as a seafarer between 1995 and 1999 without any health issues. Between 1999 and 2001, he took on another job, and, in 2001, he wanted to return to work as a seafarer. Transport Canada initially refused to renew the required medical certificate due to his paranoid schizophrenia. Eventually, it issued it with restrictions, requiring Mr. Houle to sail in territorial waters, perform the duties of an officer of the watch, continue taking his medication and undergo medical check-ups every four months. Consequently, Mr. Houle stopped working as a seafarer. In 2012, he once again sought to return to work as a seafarer. However, from 2012 onward, Transport Canada issued him marine medical certificates with the same restrictions. Mr. Houle contested the certificates again without success. He then filed a complaint with the Canadian Human Rights Commission for discriminatory acts that Transport Canada committed starting on September 4, 2012. His complaint was subsequently sent to the Tribunal. Since 2015, Mr. Houle has resumed service at sea while adhering to the restrictions imposed in the medical certificate that Transport Canada issued. Even though he obtained a Master Mariner certificate as early as 1995, with an endorsement in 2001 and a renewal in 2015 by Transport Canada, he has never been able to work as a captain due to the restrictions.
The medical evidence shows that Mr. Houle’s condition has been stable since 1995, with no symptoms present, and that he is capable of performing any work for which he is trained. The evidence also reveals that the medical certificates with restrictions were issued without considering Mr. Houle’s particular situation. Restrictions are imposed on seafarers as soon as there is a diagnosis of paranoid schizophrenia. Transport Canada argues that the standard it applies is necessary to ensure the safety of the ship and the people on board. According to Transport Canada, this standard cannot be met if a seafarer has received such a diagnosis. Transport Canada believes that issuing a certificate with restrictions is itself a reasonable accommodation and that going beyond this would constitute an undue hardship for them.
The Tribunal confirms that schizophrenia constitutes a disability and that the issuance of the marine medical certificate constitutes a service to the public under the Canadian Human Rights Act. The Tribunal also concludes that Transport Canada had no justifiable reason to refuse the issuance of the medical certificate without restrictions. Indeed, Transport Canada had the obligation to conduct an individual assessment of Mr. Houle, taking into account his personal characteristics rather than presumed group characteristics. In this regard, Transport Canada did not establish that it would have faced undue hardship if it had not applied its standard to Mr. Houle, considering his condition and stability for the past 30 years.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation:
2024 CHRT 22
Date:
April 19, 2024
File No.:
T2660/3621
Between:
Gaétan Houle
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Transports Canada
Respondent
Decision
Member:
Marie Langlois
Table of Contents
I. DECISION 1
II. OVERVIEW 1
III. ISSUES 2
IV. ANALYSIS 3
(i) Issue 1: Has the Complainant established prima facie evidence of discrimination within the meaning of section 5 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA), because the Respondent refused to issue him a marine medical certificate without limitations? 3
a. Does the Complainant possess one or more characteristics protected by the CHRA? 4
b. In the affirmative, did he experience an adverse impact as a result of the issuance of certificates with limitations? 4
c. In the affirmative, was the protected characteristic or were the protected characteristics a factor in the Respondent’s decision regarding the issuance of the marine medical certificate with limitations? 7
(ii) Issue 2: Has Transport Canada established that it had bona fide justification to refuse to issue the certificate sought by Mr. Houle? 8
a. Schizophrenia 9
b. Legal context for issuing marine medical certificates 12
c. Administrative process for issuing marine medical certificates 15
d. Step 1: (a) Did Transport Canada adopt the standard for a purpose or goal rationally connected to the function being performed in issuing the certificate and is the standard reasonably necessary? 25
e. Step 2: Did Transport Canada adopt the standard in good faith, in the belief that it was necessary for the fulfillment of the purpose or goal rationally connected to the function of issuing certificates? 26
f. Step 3: Has Transport Canada demonstrated that issuing the certificate without limitations would cause it undue hardship? 27
(iii) Issue 3: If the Respondent has not justified its decision under section 15(2) of the CHRA, what remedies are available? 31
a. Compensation for lost wages (CHRA, s. 53(2)(c)) 32
b. Pain and suffering (CHRA, s. 53(2)(e)) 36
c. Interest (CHRA, s. 53(3)) 37
d. Interest (CHRA, s. 53(4)) 38
V. ORDER 39
I. DECISION [1] The Canadian Human Rights Tribunal (the “Tribunal”) allows the complaint of discrimination based on disability (schizophrenia) of Gaétan Houle (the “Complainant”). The Tribunal finds that the Complainant has met his burden of proof and that Transport Canada (the “Respondent”) has failed to justify its discriminatory practices (refusal to issue a marine medical certificate without limitations) by demonstrating that there was a bona fide justification for them. The reasons for the decision are as follows:
II. OVERVIEW [2] Mr. Houle worked as a seafarer in the Merchant Navy from 1975 to 1990.
[3] On August 16, 1990, Mr. Houle stopped sailing due to illness. He received a diagnosis of schizophrenia and was prescribed medication. In 1994, Mr. Houle stopped taking his medication. The symptoms of schizophrenia reappeared.
[4] Mr. Houle resumed sailing on August 23, 1995, continuing until November 13, 1999. He then stopped sailing and began working at his brother’s farm.
[5] In 2001, he wished to return to sea service.
[6] In 2005, Transport Canada declared him unfit for sea service because of his diagnosis of schizophrenia. Mr. Houle is challenging that decision.
[7] The Appeal Board formed under section 73 of the Crewing Regulations ultimately overturned the decision of June 21, 2005, declaring him unfit for service at sea (appeal of a reviewed medical certificate). The Appeal Board issued a marine medical certificate with limitations, including that of performing the duties of an officer of the watch (which excludes the duties of a captain) during a local voyage (defined in the regulations as a voyage less than 200 nautical miles from the shore) and that of continuing to take his medication and following up with his physician every four months.
[8] Transport Canada sought judicial review of this decision. The Federal Court (2006 FC 497) dismissed the application for judicial review, upholding the Appeal Board’s decision.
[9] Thus, Transport Canada issued a marine medical certificate with the limitations specified by the Appeal Board. The certificate was valid as of June 21, 2005.
[10] Since 2012, Transport Canada has been issuing marine medical certificates with the same limitations attached. Mr. Houle again appealed the certificate. The limitations were upheld on review in a decision of the Transportation Appeal Tribunal of Canada on June 14, 2014 (2014 TATCF 19 and 20) and on appeal on February 18, 2016 (2016 TATCF 3).
[11] On January 29, 2013, Mr. Houle filed a complaint with the Canadian Human Rights Commission for discriminatory practices committed by Transport Canada starting on September 4, 2012; that is the matter that is presently before this Tribunal.
[12] Mr. Houle resumed sea service on February 13, 2015, in accordance with the limitations specified on the certificate issued to him by Transport Canada.
[13] In the course of his career, he has worked as a first, second and third officer on oil tankers, cargo ships, chemical tankers and other vessels, including vessels transporting dangerous goods. He has never worked as a captain.
[14] Before this Tribunal, he argues that Transport Canada’s conduct is discriminatory and that its policy of imposing limitations on marine medical certificates for people with schizophrenia is being applied to him without taking into account his personal circumstances and his own risk of recurrence of a schizophrenic episode.
[15] Transport Canada, on the other hand, argues that granting a certificate without limitations to Mr. Houle represents too high a risk to the safety of seafarers, crew members, passengers, the vessel, its cargo and the environment. It submits that the limitations are put in place to reduce the risks that a health problem may present. Transport Canada is relying on the applicable regulations and its national and international obligations. It is of the view that the issuance of a certificate with limitations constitutes reasonable accommodation and that going beyond that would constitute undue hardship for it.
III. ISSUES [16] The issues are the following:
(i) Issue 1: Has the Complainant established prima facie evidence of discrimination within the meaning of section 5 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA), because the Respondent refused to issue him a marine medical certificate without limitations?
(a) Does the Complainant have one or more characteristics protected under the CHRA?
(b) In the affirmative, has he experienced an adverse impact as a result of the issuance of certificates with limitations?
(c) In the affirmative, was the protected characteristic or were the protected characteristics a factor in the Respondent’s decision regarding the issuance of the certificate with limitations?
(ii) Issue 2: Has Transport Canada established that it had bona fide justification to refuse to issue the certificate sought by Mr. Houle?
(a) Did Transport Canada adopt the standard for a purpose rationally connected to the issuance of the certificate and is the standard reasonably necessary?
(b) Did Transport Canada adopt the standard in an honest and good faith belief that it was necessary to the fulfilment of that certificate-related purpose?
(c) Was the standard reasonably necessary to accomplish this goal or purpose, in the sense that it was impossible for Transport Canada to issue the certificate sought by Mr. Houle without incurring undue hardship?
(iii) Issue 3: If the Respondent has not justified its decision under section 15(2) of the CHRA, what remedies are available?
IV. ANALYSIS (i) Issue 1: Has the Complainant established prima facie evidence of discrimination within the meaning of section 5 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA), because the Respondent refused to issue him a marine medical certificate without limitations? [17] Mr. Houle wrote in his statement of particulars that he had suffered discrimination within the meaning of section 7 of the CHRA, but he did not establish a relationship of employment with Transport Canada. He has never worked there or attempted to work there. Moreover, the Tribunal’s case law confirms that for the provisions of section 7 of the CHRA to apply, an employment relationship must exist between an employee and an employer (see Temate v. Public Health Agency of Canada, 2022 CHRT 31 at paras 65 and 66).
[18] In the circumstances, the Tribunal will deal only with the issue of provision of services within the meaning of section 5 of the CHRA, which reads as follows:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
[19] In response to the first issue, the Tribunal is of the opinion that Mr. Houle has established, on a balance of probabilities, prima facie evidence that he has suffered discrimination as a result of Transport Canada’s refusal to issue him a certificate without limitations. This is shown by the answers to questions (a), (b) and (c).
a. Does the Complainant possess one or more characteristics protected by the CHRA? [20] The Tribunal finds that there is no doubt that the Complainant has a disability within the meaning of section 3 of the CHRA.
[21] The evidence in the record and the testimony of Dr. Girard, Mr. Houle’s attending psychiatrist since 1995, and that of the Respondent’s expert, Dr. Jean-Robert Turcotte, Psychiatrist, establish that Mr. Houle has schizophrenia. This illness constitutes a disability within the meaning of section 3 of the CHRA. This is not disputed by Transport Canada.
[22] Therefore, the answer to question (a) is yes.
b. In the affirmative, did he experience an adverse impact as a result of the issuance of certificates with limitations? [23] The Tribunal finds that the certificates issued by Transport Canada between 2012 and 2023 with limitations, namely that of performing the duties of an officer of the watch (which excludes the duties of a captain) during a local voyage (defined in the regulations as a voyage less than 200 nautical miles from the shore) and that of continuing to take his medication and following up with his physician every four months, have had an adverse impact on Mr. Houle in that they have prevented him from working as a master mariner.
[24] The evidence shows that seafarers cannot perform the duties of a master mariner with the limitations of the medical certificate issued to Mr. Houle by Transport Canada, even if, as in Mr. Houle’s case, they possess a valid certificate of competency.
[25] According to the evidence, Mr. Houle has successfully completed the training required to obtain a Master Mariner certificate. In April 1995, Transport Canada issued to the Complainant a Master Mariner, Steamship certificate. On December 18, 2001, Transport Canada issued an endorsement certifying the issuance of a Master certificate without limitations in Mr. Houle’s name. In November 2015, Transport Canada again issued a Master Mariner certificate of competency without limitations.
[26] Moreover, the testimony of Captain Cédric Baumelle establishes that the remuneration available to a master mariner is higher than that of an officer of the watch restricted to territorial waters. This point is not challenged.
[27] However, Transport Canada submits that the Complainant is not adversely affected because he holds a certificate allowing him to work as a seafarer. He may sail in territorial waters and perform the duties of an officer of the watch. Transport Canada argues that it did not, in the provision of a service, deny Mr. Houle access to that service or differentiate adversely in relation to him within the meaning of section 5 of the CHRA.
[28] Let us now consider whether this is indeed the case. As mentioned above, section 5 of the CHRA provides that it is a discriminatory practice in the provision of a service to differentiate adversely in relation to an individual on a prohibited ground of discrimination.
[29] In West v. Cold Lake First Nations, 2021 CHRT 1, the Canadian Human Rights Tribunal considers the meaning of “service” in section 5 of the CHRA. It states that in order to determine whether we are dealing with a “service”, the Tribunal must clearly describe and analyze the complained of act, action or activity. It adds that the “services” referred to in section 5 of the CHRA mean something of benefit being held out as services and offered to the public (Watkin v. Canada (Attorney General), 2008 FCA 170 [Watkin], and Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC), [1996] 1 SCR 571 [Gould]).
[30] The Tribunal must therefore determine whether the complained of act constitutes a “service” and whether this “service” is customarily available to the general public as set out in section 5 of the CHRA. In the affirmative, it must be determined whether Mr. Houle has experienced an adverse impact with respect to the provision of this service on a prohibited ground of discrimination. This is the applicable test (Moore v. British Columbia (Education), [2012] 3 SCR 360 at para 33).
[31] In this case, the Tribunal considers that the issuance by Transport Canada of a marine medical certificate authorizing a person to work as a master mariner constitutes a service within the meaning of section 5 of the CHRA in that it confers an advantage or benefit on the possessor. In the absence of such a certificate, a person may not perform the duties of a master mariner. A benefit is therefore conferred by Transport Canada when it issues the certificate sought by Mr. Houle, namely, the possibility of exercising that profession.
[32] Is this a service customarily available to the general public? In Watkin, the Federal Court of Appeal notes that the requirement in section 5 of the CHRA that the service be “customarily available to the general public” will usually be present in cases involving discrimination arising from government actions. Therefore, because Transport Canada is a government entity, this requirement is also met, so that Transport Canada’s issuance of the marine medical certificate allowing for the performance of the duties of a master mariner without limitations constitutes a service customarily available to the general public within the meaning of section 5 of the CHRA.
[33] On the other hand, Transport Canada argues that, in reality, the evidence establishes that even if a person possesses a certificate authorizing them to perform the duties of a master mariner, there is no guarantee that they will actually perform such duties. Additional conditions must also be met. It is also necessary to have a Master Mariner certificate, which recognizes that the training courses have been successfully completed. The evidence further establishes that to work as a master mariner, even with the marine medical certificate and Master Mariner certificate, a person must have sailed as a captain or first or second officer in the preceding months or years. Captain Cédric Baumelle’s testimony at the hearing establishes that a company wishing to hire a master mariner would not rely solely on the medical and competency certificates, but would require relevant and recent experience.
[34] The Tribunal does not accept the Respondent’s argument because its role is to deliver the certificate that constitutes the authorization to sail, not to guarantee employment in accordance with the certificate. The refusal to issue the marine medical certificate without limitations prevents a person from legally working as a master mariner. It is a prerequisite. The certificate in question is considered a benefit, in accordance with the interpretation of the case law on the concept of service within the meaning of section 5 of the CHRA (Watkin and Gould). The benefit conferred by a marine medical certificate without limitations is undeniable, and the lack thereof, in this case, has an adverse impact on Mr. Houle, who is seeking one.
[35] The answer to question (b) must therefore be yes.
c. In the affirmative, was the protected characteristic or were the protected characteristics a factor in the Respondent’s decision regarding the issuance of the marine medical certificate with limitations? [36] The Tribunal finds that Mr. Houle was refused a marine medical certificate authorizing him to perform the duties of a master mariner without limitations because of his disability.
[37] Both the documentary evidence and the testimony of marine medical examiners Drs. Lelièvre and Gomez, of Dr. Goulet of the Marine Medical Unit and of Mr. Najha, Executive Director of the Marine Medical Unit, confirm that it was because of Mr. Houle’s disability, namely schizophrenia, that limitations were added to the certificate.
[38] Accordingly, the Tribunal finds that Mr. Houle has established prima facie evidence of discrimination against him.
(ii) Issue 2: Has Transport Canada established that it had bona fide justification to refuse to issue the certificate sought by Mr. Houle? [39] The Tribunal notes that when the Complainant establishes prima facie evidence of discrimination, as is the case here, the burden of proof shifts to the Respondent. Transport Canada must therefore demonstrate, on a balance of probabilities, that the alleged discrimination is justified in accordance with section 15 of the CHRA.
[40] The issue is therefore whether there is a bona fide justification within the meaning of section 15 of the CHRA for the limitations on the marine medical certificate issued to Mr. Houle. The Tribunal finds that this is not the case.
[41] Section 15(1)(g) of the CHRA reads as follows:
15(1) It is not a discriminatory practice if
…
(g) in the circumstances described in section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation.
[Emphasis added.]
[42] This provision must be interpreted in light of the three-step approach set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 [Meiorin], and clarified, in a service context, in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) [Grismer]. Therefore, according to the approach established by the Supreme Court of Canada, to demonstrate the existence of a bona fide justification for the discrimination, the Respondent must prove that:
(a) it adopted the standard for a purpose or goal that is rationally connected to the function performed;
(b) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
(c) the standard is reasonably necessary to the accomplishment of its purpose or goal, i.e., it must demonstrate that it is impossible to accommodate people sharing the characteristics of the Complainant without imposing undue hardship upon it.
[43] The CHRA specifies that undue hardship can be expressed in terms of cost, health and safety. Section 15(2) reads as follows:
15 (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
[Emphasis added.]
[44] Before answering these questions, we need to consider the illness itself, then outline the legal context in which Transport Canada issues certificates, as well as the administrative process involved in the latter.
a. Schizophrenia [45] Psychiatrist Jean-Robert Turcotte testified at the hearing as a medical expert at the Respondent’s request. He also produced an expert report after examining Mr. Houle. He explained that the cause of schizophrenia is unknown. Psychiatric diagnostic categories are based on epidemiological/statistical/longitudinal observation of large populations and expert clinical opinion. Observation enables experts to identify common trends in symptoms. Some symptoms are “positive” (such as hallucinations and delusions), while others are negative, such as affect. There are also cognitive symptoms, such as the ability to concentrate, memory, attention and executive capacity. The illness also causes affective symptoms including depression and anxiety. The patient’s behaviour is often disorganized.
[46] Previously, the scientific community believed that the illness progressively worsened. Now, it is of the view that 50% of patients have a favourable prognosis. Early treatment has a positive effect on a patient’s outcome. However, drug use has a negative effect on the patient’s outcome. Longitudinal studies clearly show that the evolution of this illness is not uniform and that there is a subgroup with a very favourable prognosis. Dr. Turcotte stated that this was probably the case for Mr. Houle.
[47] Individuals with the illness are more sensitive to external stressors, such as bereavement, financial problems, interpersonal conflict and other psychosocial stressors. Dr. Turcotte stated that the risk of decompensation could increase compared to the population not subjected to these new stressors. This medical knowledge does not allow him to determine in advance which stressors will cause a person to decompensate. Only the experience of each individual can answer this question. However, he had never seen a person with schizophrenia decompensate because of the presence of stressors.
[48] Dr. Turcotte specified that Mr. Houle’s medical file indicated that he still had minor residual symptoms until at least 2005. He wrote the following: [translation] “The furthest we can go is to say that he would probably be more fragile to external stressors than someone from the general population who has never had psychosis”.
[49] Dr. Turcotte stated that Mr. Houle had not experienced decompensation for nearly thirty years despite the stressors he has experienced. In the future, Mr. Houle could face new stressors. Accordingly, the risk of decompensation could increase. It is, however, impossible to predict the true effect of new stressors on a potential decompensation. For the future, with new stressors, the risk increases, but it cannot be said that there will be an effect on a potential decompensation.
[50] As for whether this diagnosis entails any limitations or restrictions in Mr. Houle’s life and employment, Dr. Turcotte stated that he could not give a complete answer to this. He noted that Mr. Houle had never worked as a master of a vessel and that Mr. Théorêt, a marine expert employed by Transport Canada, wrote in a letter dated May 25, 2005, that masters must be able to develop emergency plans, organize and direct the crew and also provide on-board medical care. Dr. Turcotte assumed that those skills required flexibility, fast thinking and cognitive functions without any deficits. Because of the minor residual symptoms, Dr. Turcotte stated that he was not certain that Mr. Houle could have met these requirements in the early 2000s. Mr. Houle describes himself as [translation] an “autocratic leader”, which he believes is the best type of leader in an emergency. According to Dr. Turcotte, Mr. Houle might therefore have a tendency to make decisions on his own, without much consultation, perhaps indicating a degree of rigid thinking. To know more, Dr. Turcotte added, a simple psychiatric evaluation would not be enough. For a more specific answer about Mr. Houle’s functional and cognitive abilities, a specialized occupational therapist would have to assess his functional abilities, and a neuropsychologist would have to assess his cognitive abilities.
[51] With respect to medication, Dr. Turcotte observed that Mr. Houle would be at risk of relapse if he were to stop taking his medication, even though he is progressing well.
[52] Dr. Turcotte explained the difference between “remission” and “recovery” with respect to schizophrenia. A person is in remission if they no longer have symptoms or if their symptoms are of very low intensity, to the point where their symptoms no longer influence their behaviour. Recovery occurs when the person has regained the ability to function normally in the community, both socially and professionally, and is virtually symptom-free. Generally, the term “recovery” implies better functioning than “remission”. In Mr. Houle’s case, we are talking about recovery.
[53] The illness also diminishes with age. Mr. Houle’s illness does not appear to affect him. As the person ages, the dose of medication can be reduced. The illness is always present, but it is controlled by the medication. If the patient stops taking the medication, the risk of relapse is high.
[54] Dr. Turcotte concluded that the mental examination was within normal limits. He wrote the following: [translation] “Broadly speaking, it is relatively clear that Mr. Houle has not shown any significant symptoms of his disease since the early 2000s. He notes no esoteric concerns”. Dr. Turcotte confirmed the diagnosis of paranoid schizophrenia, with a single episode, which is currently in complete remission.
[55] Dr. Turcotte was present during the testimony of Mr. Houle, who stated that, if he concentrated, he could feel the presence of extraterrestrials. According to the physician, this statement has no bearing on the fact that Mr. Houle is in full remission of the illness. In his written expert report, he mentioned that this type of concern could have no pathological consequences, but it could also be an element indicating that he still has a slight thought disorder and possibly greater fragility than a person who has never suffered from psychosis.
[56] According to the available information, the medical reports and his testimony, Dr. Turcotte is of the view that Mr. Houle functions normally in his professional and personal life and that he has a healthy capacity for self-criticism.
b. Legal context for issuing marine medical certificates [57] The issuance of marine medical certificates is governed by the Canada Shipping Act, 2001, S.C. 2001, c. 26 (CSA), and the Marine Personnel Regulations, SOR/2007-115 (MPR).
[58] The Minister of Transport is responsible for the issuance of all marine documents, including certificates (CSA, ss. 2 and 16).
[59] A marine employer must not hire a seafarer who does not hold a valid medical certificate attesting to the seafarer’s ability to perform the duties for which they are to be employed and to complete the voyage to be engaged on by the vessel (MPR, s. 269).
[60] The Minister of Transport designates marine medical examiners to carry out periodic medical fitness examinations of seafarers (MPR, s. 268). These physicians are responsible for issuing provisional medical certificates attesting to fitness for sea service (physical and mental fitness) with or without limitations.
[61] When assessing fitness for sea service, marine medical examiners must take into account the medical standards set out in the International Labour Organization and World Health Organization publication entitled Guidelines for Conducting Pre-sea and Periodic Medical Fitness Examination for Seafarers, which has been replaced by the Guidelines on the Medical Examinations of Seafarers (the “Guidelines”). They must also take into account the standards set out in the MPR, including the fact that the seafarer must possess the physical and mental fitness to meet the occupational and operational requirements of the position that they occupy or seek to occupy (MPR, s. 270).
[62] The Guidelines apply to seafarers in accordance with the standards of the Maritime Labor Convention, 2006 (MLC, 2006) and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW), as amended. According to the Respondent, the purpose of the Guidelines is to provide marine administrators with a set of internationally recognized criteria that can serve as a reference for competent authorities. These criteria can be used either as they stand or as a basis for developing national medical examination standards compatible with the international requirements (MPR, s. 270).
[63] The Guidelines are incorporated by reference into the MPR. Furthermore, Transport Canada developed a guide for marine medical examiners to standardize medical examination (the “Canadian Guide”); it was approved in March 2013.
[64] After completing the medical examination, the marine medical examiner must provide the Minister of Transport with a provisional medical certificate either with or without limitations (MPR, s. 275).
[65] The seafarer may request from the Minister a reconsideration of that decision (MPR, s. 278). In that situation, if the Minister is of the view that the provisional certificate is incomplete or erroneous, the Minister may direct that medical examinations or tests be carried out, consult an expert or name a medical reconsideration committee (MPR, s. 278(3)), which was not done between 2012 and 2023 in Mr. Houle’s case.
[66] Then, after having taken into consideration the provisional medical certificate and the seafarer’s health, the Minister issues the medical certificate declaring the seafarer fit for sea service with or without limitations, as specified in the certificate if applicable (MPR, s. 278(4))
[67] In short, for a certificate to be issued by Transport Canada, a seafarer must provide the assessment report of the marine medical examiner who issued the provisional medical certificate and a report from their own physician.
[68] To render a decision about a medical certificate, the Minister takes into account the occupational and operational requirements of the position the seafarer occupies or seeks to occupy and the level of risk involved in the position with regard to the seafarer, other seafarers, the passengers, the vessel and the health and safety of the general public (MPR, ss. 278(5)(a) and (b)). The MPR also provides that the Minister must take into account any relevant consideration linked to human rights as set out in the Canadian Charter of Human Rights and Freedoms and the Canadian Bill of Rights (MPR, s. 278(5)(c)). Dr. Goulet, of Transport Canada’s Marine Medical Unit, testified at the hearing and stated that this obligation means that the person has a right to work.
[69] According to Transport Canada, the medical standard that is applied by the marine medical examiner and by the Minister is set out in the Canadian Guide and in the Guidelines.
[70] The Canadian Guide states that a seafarer diagnosed with schizophrenia is automatically deemed unfit to receive a certificate, while the Guidelines allow for the issuance of a certificate, which may be subject to limitations. Recall that the Guidelines are incorporated into the MPR.
[71] The Guidelines include a table to help determine how common medical conditions affect fitness. The table includes a section on mental, cognitive and behavioural disorders (Diagnostic Code F00-99), including a subsection entitled, “Psychosis (acute) – whether organic, schizophrenic or other category listed in the ICD [International Classification of Diseases]. Bipolar (manic depressive disorders)” (Diagnostic Code F20-31).
[72] The third column of the table provides for temporary incompatibility (3 months) with duties at sea in the case of a single episode with provoking factors. For a single episode without provoking factors, the incompatibility is expected to be permanent.
[73] The fourth column provides for fitness that is limited in time and restricted to near coastal waters, and a limitation not to work as master in charge of a vessel or without close supervision and continuing medical monitoring. This limited fitness is conditional on the seafarer having insight into their state, being compliant with treatment and having no adverse effects from medication.
[74] The fifth column provides for fitness to perform all duties worldwide. In that case, the assessment must be performed on a case-by-case basis at least one year after the episode, provided that provoking factors can and will always be avoided.
[75] According to the documentation in the file, Dr. Sully first classified Mr. Houle in the third column (permanent incompatibility) and then in the fourth column (limited fitness excluding the duties of a master).
c. Administrative process for issuing marine medical certificates [76] As seen above, Mr. Houle was diagnosed with schizophrenia in 1990. He was hospitalized for closed therapy in 1992. He takes medication but ceased doing so for a brief period in 1994. The symptoms reappeared. Next, after he resumed taking his medication, Dr. Girard, his attending psychiatrist, confirmed the diagnosis of residual schizophrenia. Mr. Houle’s state stabilized. He has not experienced a relapse since 1994.
[77] As early as 2002, Dr. Girard specified that Mr. Houle had been in complete remission of his symptoms for several years. He stated that it was unlikely that periods of stress experienced at sea would cause his symptoms to reappear if he were to continue taking his medication.
[78] In 2005, Dr. Gauthier, psychiatrist, assessed Mr. Houle at Transport Canada’s request. He concluded that Mr. Houle was unfit for sea service and produced a marine medical examination to that effect. Transport Canada then refused to issue a certificate. Mr. Houle challenged that decision, which was set aside by the Appeal Board. The Appeal Board declared that Mr. Houle was fit for sea service with limitations and issued him a marine medical certificate with limitations (officer of the watch on a local voyage, taking of medication and follow-up with his specialist every four months). Transport Canada sought judicial review of that decision. In 2006, the Federal Court (Canada (Attorney General) v. Houle, 2006 FC 497 (CanLII)) dismissed the application for judicial review, upholding the Appeal Board’s decision to issue the medical certificate with limitations.
[79] On February 4, 2010, Dr. Girard wrote in a letter that he had been monitoring Mr. Houle since 1995 and that he met with him every three to four months. He wrote the following:
[translation] “Mr. Houle is functioning normally, including at work. He continues to take medication preventively, namely, Stelazine and Kemadrin. He has always attended all his appointments. He has never been hospitalized since 1995.
In recent years, I have maintained his diagnosis of residual schizophrenia. Mr. Houle’s functioning demonstrates that he is capable of working, and that he has no particular psychiatric limitations or restrictions, except that I recommend that he continue his long-term medication. He continues to benefit from follow-up appointments with me every three to four months.”
[80] Dr. Girard testified that he has been in contact with Transport Canada every year or two for over 20 years. He has been treating Mr. Houle for almost 30 years. He has found no active psychotic symptoms. He explained that the medication he prescribes to Mr. Houle is taken to prevent relapses. Mr. Houle takes his medication and has not experienced a relapse. He cannot be cured of this illness, but he is stable and in his normal state with the preventive medication. As for the esoteric concerns, they are neither delusions nor an indication of illness. Several people have such concerns.
[81] On May 16, 2012, Dr. Louis Robert, Marine Medical Examiner, performed a medical examination of Mr. Houle and completed a provisional marine medical examination declaring him fit. The physician added no limitations to the provisional certificate.
[82] On September 4, 2012, after receiving Dr. Girard’s report of February 7, 2010, and Dr. Robert’s