Davidson v. Canada Post Corporation

Davidson v. Canada Post Corporation
Court (s) Database
Federal Court Decisions
Date
2009-07-09
Neutral citation
2009 FC 715
File numbers
T-967-08
Decision Content
Federal Court
Cour fédérale
Date: 20090709
Docket: T-967-08
Citation: 2009 FC 715
Ottawa, Ontario, July 9, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ROBYN P. DAVIDSON
Applicant
and
CANADA POST CORPORATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 18(1) of the Federal Courts Act, R.S. 1985, Chap. F-7, for judicial review of a decision of the Canadian Human Rights Commission (the Commission) dated May 20, 2008 to dismiss the applicant’s complaint of discrimination by the Canada Post Corporation upon the basis that pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, R.S.C. 1985, Chap. H-6 (the Act), the Commission was satisfied that a request by the Commission to the chairperson of the Canadian Human Rights Tribunal (the tribunal) to institute an inquiry into the complaint was not warranted.
[2] The applicant requests:
1. An order removing the impugned decision into the Court and quashing same;
2. An order directing the Commission to refer the applicant’s complaint to the chairperson of the tribunal with a request that the tribunal institute an inquiry into the complaint;
3. A declaration that (contrary to law) the Commission (including its investigation into the complaint and the investigation report, dated June 12, 2007, pursuant thereto) failed to conduct a proper investigation into the evaluation of the applicant’s complaint;
4. An order for the costs of this application in favour of the applicant as against the respondent(s);
5. Such further or other order(s) and/or relief as the applicant may request the Court consider and deem appropriate and/or just in the circumstances.
Background
[3] In March 2006, the applicant sent a resume to Canada Post Corporation in Halifax, Nova Scotia, in response to a posting for casual/temporary inside or outside workers at a Canada Post facility plant in Saint John, New Brunswick. The applicant identified herself as a woman, visible minority and a person with a disability which was identified as Asperger Syndrome. The application was placed in Canada Post’s Equity Database where applications from equity seeking candidates are identified.
[4] Asperger Syndrome is a high functioning autism spectrum disorder. A person with Asperger Syndrome typically has average or above average cognitive ability but has “extreme social deficits” such as underdeveloped social and communication skills.
[5] On May 10, 2006 the applicant received a letter from Canada Post in Saint John, New Brunswick inviting her to write the Canada Post General Aptitude Test (GAT) as part of the competition for a position on the “Temporary List” Saint John, NB (the competition) as part of the Canadian Union of Postal Workers (CUPW).
[6] The applicant’s mother, Sophia Davidson, a long time employee of Canada Post, subsequently contacted Sue Merritt of Canada Post to find out whether the competition was for inside (Group 1) or outside (Group 2) casual worker positions. The applicant was concerned that she had not been driving for the amount of time required for the outside position as well as other circumstances related to her disability that made her unsuitable for the outside position. The applicant understood from her mother that the competition was for both inside and outside workers and upon successful completion of the competition, the applicant would request to be put on the inside casual worker list.
[7] The applicant wrote the GAT on May 16, 2006 and was advised on May 18, 2006 that she had passed. The applicant requested and received from Canada Post extra time to complete the test because of challenges related to Asperger Syndrome.
[8] On May 24, 2006 the applicant received a notification from Canada Post for an oral job interview in connection with the competition. The applicant’s father, Philip Davidson, also a long term employee with Canada Post, telephoned Patsy Dallon of Canada Post, Saint John to inquire about the nature of the job interview in order to assess the applicant’s need for accommodation. The applicant’s father was provided with the information that the interview would involve situational questions. The applicant’s father did not specifically request and/or suggest any form of accommodation for the applicant during the interview but asked whether accommodation would be required for the applicant to fairly compete with the other candidates. The applicant herself, did not speak to anyone prior to the interview. The respondent stated that they would have accepted any “reasonable requests” for accommodations.
[9] On May 30, 2006, the applicant was interviewed by Sue Merritt and Patsy Dallon of Canada Post.
[10] On June 14, 2006, the applicant received a telephone call from Cathy Ollerhead from Canada Post in Halifax advising that a letter offering the applicant employment had been sent in error and the applicant had failed to meet the qualifications.
[11] On June 15, 2006 the applicant received the letter that offered her employment as a temporary casual employee.
[12] On June 16, 2006, the applicant received another letter advising the applicant that she had failed the GAT.
[13] In response to these letters, the applicant’s mother called Sue Merritt from Canada Post in Saint John and E. McKiggan from Canada Post in Halifax for clarification of these letters. The applicant’s mother was told that the applicant had passed the GAT but failed the oral job interview and that the letters were being corrected. The applicant and her mother subsequently met with Sue Merritt regarding the oral job interview that the applicant had failed.
[14] The applicant also contacted Lucille Bourque Lampier, Canada Post’s Human Rights Atlantic Officer on around July 13, 2006 to file an internal complaint with the respondent resulting from her failure to obtain employment as a temporary postal clerk. Ms. Lampier met with the applicant and her mother and subsequently launched an internal investigation.
[15] Ms. Lampier concluded in her investigation that (1) the applicant did not request or suggest accommodation during the oral interview, or suggest an alternative method of assessment; (2) the “competencies and suitability” portion of the oral interview was rationally connected to both the positions of postal clerk and mail carrier; (3) the applicant failed the oral interview because of her lack of work experience, not because of disability, and (4) the respondent’s recruitment process includes appropriate efforts to accommodate candidates for employment.
[16] The respondent states that the applicant succeeded in passing the GAT test but not the oral interview in which she scored 39.2% of the 60% required to pass. The interview phase of the competition involves a “standardized interview process that is designed to assess and compare a series of skills and competencies for all candidates of Canada Post’s bargaining unit positions, including the temporary positions of postal clerk that the applicant had applied for”. The oral interview involves evaluation in three areas: a) work skills; (b) map reading exercise; and (c) competencies and suitability. The “competencies and suitability” area means “the knowledge, skill, ability or behavioural attributes associated with high performance on the job”. The competencies that Canada Post states are necessary for the proper performance of bargaining unit positions, including the temporary positions of postal clerk and mail carrier are the following: (a) customer orientation; (b) commitment to excellence; (c) relationship management; (d) decision making/judgment; and (e) oral communication.
[17] After the issues regarding the hiring process had not been resolved internally, the applicant filed a complaint with the Commission on July 21, 2006 alleging that Canada Post discriminated against her in the hiring process and that the standards applied to the applicant based on her disability were in contravention of sections 7 and 10 of the Act. The applicant stated that she sought an evaluation by Canada Post based on the individual circumstances of her syndrome and based on the specific job requirements of an “inside postal clerk” for which she sought employment instead of being assessed for the requirements of both an “inside” and “outside” postal clerk.
[18] The applicant filed several subsequent additions to her complaint thereafter.
[19] The applicant also requested a copy of her interview guide from Canada Post pursuant to privacy legislation that she feels was never completely provided. The respondent states that they provided as much information as necessary to assess the complaint.
[20] In the fall of 2006, the applicant and respondent participated in the Commission’s mediation process but a resolution was not found. The matter then proceeded to the Commission’s Investigation Division.
[21] In April of 2007, the Commission sent a letter to the applicant detailing Canada Post’s response to the complaint with a request for her comments. The applicant sent a response in early May of 2007 as well as four other additional letters outlining the applicant’s comments on Canada Post’s defence.
Investigator’s Decision
[22] The Commission sent the applicant the Commission Investigation Report into the complaint in June of 2007. The investigator recommended that the Commission dismiss the complaint because “the evidence does not indicate that the respondent failed to accommodate the complainant; and the evidence indicates that the respondent’s recruitment process included appropriate efforts to accommodate applicants” (Canadian Human Rights Commission, Investigation Report).
[23] The investigator made the following findings: that the applicant required accommodation in the hiring process based on disability; that the evidence indicates that accommodation was provided for the GAT and that no accommodation request was made by the applicant for the oral interview; that the respondent has suggested other accommodations for the applicant for the interview portion but the applicant has refused these options without suggesting alternatives because the applicant believes any measure of social skill assessment is discriminatory; the respondent acknowledges that it uses situational questions during the interviews for inside and outside postal workers but they are flexible in considering other options; that the duty to accommodate is not limitless and that the evidence suggests that the respondent has made such an effort; and that the applicant must cooperate to facilitate the accommodation process.
[24] This report was referred to the Commission for review and a decision was made to refer the complaint to conciliation. In September of 2007, conciliation was attempted but the parties were unable to reach a settlement.
[25] On May 20, 2008, the applicant was notified that her complaint would not proceed to the tribunal stage pursuant to subparagraph 44(3)(b)(i) of the Act stating that “having regard to all the circumstances, an inquiry by the tribunal was not warranted”.
Issues
[26] The applicant raised the following issues:
1. The Commission erred in law by failing to consider that the respondent did not establish that it adopted relevant standards at the hiring stage rationally connected to the particular job sought by the applicant.
2. The Commission erred in law by failing to consider that the respondent had not adopted its evaluation standards in a good faith belief that the standards were necessary to fulfill a legitimate work related purpose with respect to the position applied for by the applicant.
3. The Commission erred in law by failing to consider the respondent did not demonstrate to any point of ‘hardship’ that it could not accommodate the applicant’s disability by adopting evaluation standards more appropriate to her needs and the position applied for.
4. The Commission erred in law by failing to consider that the respondent had not established that the evaluations standards at the hiring stage were bona fide occupational requirements for the particular type of job being sought by the applicant.
5. The Commission erred in law by failing to exercise jurisdiction to obtain and consider the relevant evidence from the respondent (being an unedited copy of the interview guide of the applicant) and further, by so failing to obtain such evidence denied the applicant of the opportunity to rebut any issue relating to the interview guide with knowledge of the contents thereof.
6. The Commission erred in law by failing to consider the impact of sections 7 and 10 of the Act as had been raised in the applicant’s complaint as amended.
[27] I would rephrase the issues as follows:
1. What is the standard of review?
2. Did the Commission err in not referring the applicant’s complaint to the tribunal based on discrimination contrary to sections 7 and 10 of the Act in the respondent’s hiring practices?
3. Did the Commission err in not considering relevant evidence in its investigation of the complaint?
Applicant’s Submissions
Standard of Review
[28] In her written submissions, the applicant argues that the question before the Court is one of fact and law but because there is “no substantive issue with the facts as set out in the record, only with the application of the law to those facts”, the applicant argues that the standard of review is correctness. In support of this argument, the applicant states that Mr. Justice Harrington in Donovan v. Canada, 2008 FC 524 (CanLii) makes the following points about determining the standard of review, one, that “much depends on whether the issue is one of law, mixed fact and law, or pure fact”, two, that “generally questions of law are reviewed on a correctness standard”, three, that the existence of a privative clause is one guideline towards determining the correct standard and the Act does not have one, and four, that issues of jurisdiction and statutory interpretation warrant a correctness standard.
[29] At the hearing, the applicant based her submissions on the appropriate standard of review on the jurisprudence set forth in Dunsmuir v. New Brunswick, 2008 SCC 9.
[30] The applicant does concede, however, that there is jurisprudence indicating a reasonableness standard as in Khanna v. Canada (Attorney General), 2008 FC 576 (CanLii).
Discrimination in hiring practices
[31] The applicant argues that the respondent discriminated against her out of ignorance of what is required to accommodate someone with her disability. She points to both her own experience in the hiring process as well as a recent decision of the Canadian Human Rights Tribunal in Dawson v. Canada Post Corporation, 2008 CHRT 41 as evidence that the respondent does not fully appreciate the manner in which its policies discriminate. On October 3, 2008, Chairperson Deschamps wrote about the challenges that Canada Post’s was having with Ms. Dawson, a long time employee at Canada Post. The applicant felt that the following paragraphs were particularly important in relation to her complaint:
[240] At the end of her testimony, Ms. Daoust acknowledged that it was the first time that Canada Post had to deal with an employee who was autistic, that in all probability, Canada Post mismanaged the case but that in the end, Canada Post learned from this experience.
[241] According to Ms. Daoust, Canada Post took different measures to increase its understanding of autistic people and be better managers, such as organizing a meeting with Dr. Poirier. Canada Post had to adapt itself to Ms. Dawson's thought process. According to her, Canada Post tried to accommodate Ms. Dawson but that there are rules at Canada Post that must be followed and to try to accommodate Ms. Dawson given these rules was not always easy. Canada Post did its best, according to her, with the knowledge it had of autism.
[242] [...] An employer has a duty to ensure not only that all employees work in a safe environment but also that ill perceptions about an employee's condition due to poor or inadequate information about his disability lead other employees to have negative and ill-founded perceptions about him.
[...]
[245] Autistic people, if they want to be able to accomplish themselves in a workplace or in society, need to be reassured that everything possible short of undue hardship will be done in order to ensure that misperceptions and misconceptions about their condition are properly handled by their employer, so that co-workers have a proper understanding of their condition and are not inclined to discriminate against them or harass them.
[...]
[247] The Tribunal is of the opinion, in view of the evidence, that the Respondent needs to review its policies in relation to discrimination and harassment and put in place educational programs that will sensitize its employees as well as management to the needs of disabled individuals in the workplace, notably autistic individuals, so that individuals such as Ms. Dawson will not have to suffer from a lack of knowledge and understanding of their condition...
[32] The applicant argues that the points enunciated by Chairperson Deschamps are similar to her own experience and note that one, the issues involved human resources personnel from the same Halifax office of the respondent in both Dawson above, and in the case at bar; two, the respondent stated in Dawson above, that it was the first time they had to deal with an autistic employee; three, that Canada Post admitted that it had mismanaged the case; and four, rigid corporate rules made it difficult for the respondent to accommodate employees like Ms. Dawson and potential employees like the applicant. The applicant argues that the same obligations attach to employers when dealing with existing employees or potential employees.
[33] The applicant states that the respondent and the Commission in making its decision did not attempt to identify what might be appropriate modifications for a job applicant with the applicant’s disability. They argue that the attempts at settlement, mediation and conciliation did not involve any legitimate suggestions that actually identified the proper measures to accommodate someone with the applicant’s disability.
[34] The applicant states that there was no evidence that suggested that the respondent truly understood the applicant’s disability and how it could properly fulfill its duty to accommodate. The applicant argues that this accommodation is not only supposed to be suited to the particular disability but once that is established, it is to be fulfilled up to a standard of undue hardship.
[35] Furthermore, the applicant argues that the method of assessment is not rationally connected to the position applied for, which is part of the test that came out of the Supreme Court of Canada case in Meiorin (Public Service Employee Commission) v. B.C. Gov. And Service Employees Union [1999] 3 S.C.R. 3. The applicant contends that there were questions in the interview that were outside of the necessary aptitudes of the position she applied for as an inside worker and that this discriminates against her as a person with a disability. It is also in contravention of section 10 of the Act which prohibits discriminatory policies and practices. The applicant contends that the investigator did not consider this issue at all in her reasons.
Relevant evidence considered
[36] The applicant argues that the investigator did not consider fully the relevant facts and law in this case. There are two issues that she asserts. One, the applicant states that without the interview guide by Canada Post, the investigator was not fully equipped to evaluate the hiring process. And two, that the investigator made her decision based too heavily on the applicant’s refusal to accept a mediated solution instead of placing the weight of its decision on whether the conduct of the respondent in the hiring process was in violation of the Act.
Refusal to send to Tribunal
[37] The applicant argues that the tribunal erred in not sending the complaint to a tribunal for a hearing. The applicant suggests that the Commission must be held to the highest standard of review because of the importance of upholding human rights as well as the fact that the applicant will have no further redress if the Commission does not continue with a tribunal investigation of the complaint.
Respondent’s Submissions
Standard of Review
[38] The respondent argues that the standard of review to be applied to Commission cases based on facts and law is reasonableness. Dunsmuir above, is used to illustrate the manner in determining the standard of review to be applied. The respondent argues that jurisprudence that has already stated the standard of review in cases of similar circumstances will be determinative. If jurisprudence has not been settled on the standard of review, then a two step approach will be applied, as in Dunsmuir above.
[39] In reference to the standard of review to be applied with respect to a decision of the Commission under subsection 44(3) of the Act, the respondent states that several cases have previously considered this issue prior to Dunsmuir above. They point to the findings of several cases that apply a reasonableness standard. In Bastide v. Canada Post Corp., [2005] F.C.J. No. 1724, Mr. Justice de Montigny concludes that the Commission must apply the facts of the complaint to the legal standards in order to determine if a further review would be warranted. Post-Dunsmuir, Mr. Justice Martineau in Bateman v. Canada (Attorney General), 2008 FC 393 stated that the Commission’s task was “clearly a question of mixed fact and law”.
[40] The respondent argues that the reasonableness standard also applies to how the Commission applied sections 7 and 10 of the Act. Investigators are charged with processing complaints of discriminatory practice and decisions are part of a specialized and broad system of remedying human rights. The respondent argues that the facts of the complaint are intertwined with the legal analysis and as such, Dunsmuir above, warrants a review on the standard of reasonableness.
Discrimination in hiring practices
[41] The respondent states that the proper beginning to an analysis on whether or not the Commission’s decision to dismiss the applicant’s complaint was unreasonable begins with a review of the general principles of subsection 44(3) of the Act. The respondent points to Syndicat des employes de production du Quebec et de l’Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 and Cooper v. Canada (Canadian Human Rights Commission, [1996] 3 S.C.R. 854 for the proposition that before a complaint goes to a tribunal, the investigation is analogous to that of a judge at a preliminary hearing and as such, it is not the function of the Commission to determine if the complaint has been made out. Rather, the cases state that the Commission’s duty is to determine if an inquiry is warranted, giving consideration to all facts, and to assess the sufficiency of the evidence.
[42] Additionally, the respondent argues that a review of the jurisprudence suggests that the Court owes the Commission deference as a result of its expertise and the fact that it is afforded a considerable degree of discretion in making decisions under section 44 as in Owen v. Canada (Attorney General), [1995] F.C.J. No. 1661; Wang v. Canada (Minister of Public Safety and Emergency Preparedness), [2005] FC 654; and Bastide above. The respondent argues that the mandate of the Commission is not to give an opinion on the merits of a complaint or to determine if it is justified but to give an opinion on whether there is sufficient evidence to proceed. It is this basis of the decision where the respondent argues that the reasonableness standard applies.
[43] The respondent points out that the decision of the investigator is by extension a decision of the Commission. This relationship between the Commission’s decision and the investigator’s report was addressed in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392.
[44] The respondent argues that the investigator’s decision not to refer the applicant’s complaint to the tribunal was reasonable. The material given to the investigator by the respondent made many points clear, making it reasonable to conclude that the respondent did not fail to accommodate the applicant that the evaluation standards were not discriminatory as they were rationally connected to the job and that they were adopted in good faith.
(a) the oral interview phase of the competition for a temporary position is intended to assess an applicant’s ability to perform the duties of a postal clerk and that of a mail carrier;
(b) The strict rules surrounding the filling of permanent positions on the basis of seniority means that the oral interview is critical in ensuring that any new hire is capable of meeting the basic requirements of any job in the C.U.P.W. bargaining unit, external or internal;
(c) The required competencies for the positions of postal clerk and mail carrier and the very low level of proficiency required for the same are reasonably necessary for the proper performance of these positions;
(d) The applicant requested and received accommodation during the GAT portion of the evaluation; and
(e) The respondent did not refuse to accommodate the applicant during the oral interview phase of the evaluation. At no time prior to her participation in the oral interview did the applicant, nor anyone else on her behalf, suggest or request accommodation and/or alternative method of assessment for the applicant.
[45] The respondent also argues that the conduct and positions of the parties after the complaint was filed provides sufficient evidence for the investigator to conclude that the respondent took all reasonable steps to accommodate the applicant. The respondent submitted that the investigator’s decision was reasonable in particular because:
(a) on two occasions they offered to re-interview the applicant in an alternate format and to allow her additional time to prepare her responses;
(b) the respondent displayed a willingness to consider other accommodations options, including alternate interview adjustments, so that the applicant would not be disadvantaged during the recruitment process because of her disability;
(c) the applicant refused the respondent’s accommodations offers and further refused to be re-interviewed by the respondent in any alternative format; and
(d) the applicant stopped cooperating in the accommodation process; her only position was that she wanted to be hired for her desired position of postal clerk and compensated for any and all lost benefits/privileges.
[46] The respondent argues that the investigation report establishes that the investigator turned her mind to all of the issues related to discriminatory practices in hiring. The respondent argues that the issue of whether the evaluation standards were adopted in good faith, were rationally connected to the position applied for, and whether the accommodations by the respondent were up to the point of undue hardship were all reviewed by the investigator with a conclusion in the respondent’s favour.
[47] Additionally, the respondent disputes the applicant’s allegations that the investigator did not consider both sections 7 and 10 of the Act in its evaluation of the hiring practices of the respondent. The respondent states that an analysis was undertaken in respect of the evaluation standards alleged to be discriminatory under section 10 of the Act and the impact of those standards on the applicant pursuant to section 7 of the Act.
[48] The respondent also argues that the applicant’s refusal to accept the accommodation offers of the respondent made the investigator’s report all the more reasonable. The respondent states that jurisprudence supports the notion that an applicant has a duty to accept reasonable offers. In Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, Mr. Justice Sopinka of the Supreme Court of Canada spoke of the duty of a complainant to assist in securing appropriate accommodations and that another:
...aspect of this duty is the obligation to accept reasonable accommodation...The Complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.
As well, the respondent argues that the accommodation process fails when the employee does not cooperate with attempts to accommodate as in McGill University Health Care (Montreal General Hospital) v. Syndicat des employes de l’Hopital general de Montreal, [2007] S.C.J. No. 4. And an even greater onus on the applicant arises from cases such as Hutchinson v. Canada (Minister of Environment), [2003] 4 F.C. 580 where a further inquiry was found not to be warranted by the Commission when a reasonable alternate accommodation was not accepted by an employee that preferred another arrangement.
Relevant evidence considered
[49] The respondent argues that the explanation offered by them regarding the content and rationale of their evaluation standards, including the interview guide was thorough and did not contribute to any deficit of information in making a decision on the substantive issues in the complaint.
Refusal to send to Tribunal
[50] The respondent points to Besner v. Canada (Attorney General), [2007] FC No. 1076 where the Commission decision to dismiss the complaint was upheld on the basis that the investigation properly focused on the substance of the applicant’s complaint and not on the employer’s alleged failure to accurately and fully describe actual job requirements.
[51] As well, the respondent points to Hutchinson above, for the proposition that the purpose of the investigation report is not to “delve into the minutiae” of a complaint but rather focus on the substance of the complaint.
Analysis and Decision
[52] Issue 1
What is the standard of review?
I am of the view that the standard of review to apply is reasonableness save for the question of whether the applicant was afforded procedural fairness in regards to the disclosure of the Canada Post interview questions.
[53] In order to establish the standard of review, the Court must determine whether the degree of deference to be accorded to the type of question in issue has already been identified by the jurisprudence in Dunsmuir above. If this has been done, it is not necessary to carry out a complete standard of review analysis. If jurisprudence has not established the standard to be applied, then, a reviewing court must go through a two-stage analysis in order to ascertain which of these standards should apply in a given case as in Dunsmuir above.
[54] Soon after the Dunsmuir above decision, it was established that the standard of review with respect to questions of fact or mixed fact and law considered by the Canadian Human Rights Commission were reviewable on the standard of reasonableness (see A.J. v. Canada (Attorney General), 2008 FC 591 (CanLII); Bateman v. Canada (Attorney General), 2008 FC 393 (CanLII)).
[55] However, the pre-Dunsmuir atmosphere of standard of review analysis in Commission decisions was anything but straightforward. Bateman above, recognized at paragraph 19 that there had been “contradictory jurisprudence from this Court and the Federal Court of Appeal regarding the standard of review applicable to a decision of the Commission to remit or not remit a complaint to the Tribunal for consideration”. In Mr. Justice Martineau’s opinion in Bateman above, the cases turned on whether the issue in question was either one of fact or law, or mixed fact and law. The Federal Court of Appeal in Sketchley above, also emphasized that a pragmatic and functional analysis should be undertaken with respect to each decision under review, regardless of whether the same or similar issue has been decided in a previous case.” Notwithstanding these cases, Dunsmuir above, streamlined the analysis to one of reasonableness.
[56] This is not to suggest however, that the applicant’s submission on the “high purpose behind the Act” is disputed. These “high purposes” as enunciated in the objectives of the Act are considered when evaluating the reasonableness of a decision including the: “justification, transparency and intelligibility of the decision-making process….within a range of possible acceptable outcomes which are defensible in light of the facts and law” (see Dunsmuir above at paragraph 47).
[57] The final issue to be determined is whether the Commission considered all relevant evidence in its investigation and final decision to dismiss the complaint. In Egan v. Canada (Attorney General), 2008 FC 649 (CanLII), the issue to be determined by the Federal Court was whether the Commission had been thorough in its investigation. Mr. Justice Hughes found this to be an issue of procedural fairness warranting a correctness standard, as was the case pre-Dunsmuir above. At issue was whether the Commission had been warranted in not referring the complaint to the tribunal under subsection 44(3) of the Act. Further, A.J. above, noted that the Federal Court of Appeal observed in Sketchley above, at paragraphs 52 and 53, the pragmatic and functional analysis (since replaced by the standard of review analysis) does not apply where judicial review is sought based upon an alleged denial of procedural fairness in a Commission investigation. Rather, the task for the Court is to determine whether the process followed by the Commission satisfied the level of fairness required in all of the circumstances also in Sanderson v. Canada (Attorney General), 2006 FC 447.
[58] Issue 2
Did the Commission err in not referring the applicant’s complaint to the tribunal based on discrimination contrary to sections 7 and 10 of the Act in the respondent’s hiring practices?
As summarized above, the decision of the Commission was based on the following central findings:
1. That the applicant required accommodation in the hiring process based on disability; 2. That the evidence indicates that accommodation was provided for the GAT but no accommodation request was made by the applicant for the oral interview;
3. That the respondent has suggested other accommodations for the applicant for the interview portion but the applicant has refused these options without suggesting alternatives because the applicant believes any measure of social skill assessment is discriminatory;
4. The respondent acknowledges that it uses situational questions during the interviews for inside and outside postal workers but they are flexible in considering other options; and
5. That the duty to accommodate is not limitless and that the evidence suggests that the respondent has made such an effort; and that the applicant must cooperate to facilitate the accommodation process.
[59] As a preliminary matter, I consider the investigator's report as constituting the Commission's reasoning as in Sketchley above. At paragraph 37 the Federal Court of Appeal stated:
The investigator’s Report is prepared for the Commission, and hence for the purposes of the investigation, the investigator is considered to be an extension of the Commission (SEPQA, [Syndicat des employes de production du Quebec et de L’Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879.
[60] I also note the obligations of the Canadian Human Rights Commission in investigating complaints as explained by the Supreme Court of Canada in Cooper v. Canada (Human Rights Commission), [1996] S.C.J. No. 115 at paragraph 53, in part:
The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it.
[61] The discretion afforded the Commission in determining whether an inquiry is warranted “having regard to all of the circumstances” is broad (see Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3) but must be fair (see Sanderson above).
[62] It is the issue of whether the Commission truly had regard to all of the circumstances in this complaint that I find worrisome and ultimately unreasonable.
[63] I am not satisfied that the applicant was afforded an investigation that considered the problems inherent in the applicant ever getting hired at Canada Post given her disability for the following reasons.
[64] As stated, the Commission concluded that the applicant did require accommodation in the hiring process. Providing accommodations without providing an analysis on the interrelationship between the disability and the hiring practices is not true equity seeking, however. In my opinion, in order to be alive to the discriminatory aspects of the hiring practices, it was necessary for the investigator to show that she understood the perspective of each of the parties, and in particular the unique challenges and personalized circumstances of the applicant’s Asperger Syndrome. It is only when the investigator has a full understanding of the applicant’s disabilities that a determination could be made about whether a further inquiry was warranted. To demonstrate sensitivity, the investigator should have been able to clearly articulate the applicant’s individual challenges apart from just a rote generalized paragraph about Asperger Syndrome and autism, which was what was provided. This flaw in the approach by the investigator was prevalent in the various findings that led the Commission to conclude that a tribunal hearing was unwarranted.
[65] The second finding was that the evidence indicated that accommodation was provided for the GAT but no accommodation request was made by the applicant for the oral interview.
[66] I am not satisfied that the investigator’s conclusions were reasonable in this respect. I do not agree that the applicant did not ask for any accommodations from Canada Post for the interview portion of the hiring process.
[67] As stated above, the applicant’s father telephoned Patsy Dallon of Canada Post, Saint John to inquire about the nature of the job interview in order to assess the applicant’s need for accommodation. The applicant’s father was provided with the information that the interview would involve situational questions. The applicant’s father did not specifically request and/or suggest any form of accommodation for the applicant during the interview but asked whether accommodation would be required for the applicant to fairly compete with the other candidates. The applicant herself, did not speak to anyone prior to the interview. The respondent stated that they would have accepted any “reasonable requests” for accommodations.
[68] I acknowledge that the applicant has a duty to be involved in deciding what kind of accommodations might have been appropriate for her. In my mind, she was doing just that. However, her father’s inquiry was not met with a dialogue but simply that the applicant would be asked “situational questions”. The respondent was really in the position at that point to offer other methods of assessment. And, it was only after failing the interview and filing a human rights complaint that the respondent seemed to be open to discussing accommodations.
[69] In Renaud above, which involved a person seeking accommodation for their religious beli