Soullière v. Canada (Blood Services)

Soullière v. Canada (Blood Services)
Court (s) Database
Federal Court Decisions
Date
2017-07-17
Neutral citation
2017 FC 689
File numbers
T-690-15
Decision Content
Date: 20170717
Docket: T-690-15
Citation: 2017 FC 689
Ottawa, Ontario, July 17, 2017
PRESENT: The Honourable Mr. Justice Diner
BETWEEN:
YVONNE SOULLIÈRE
Applicant
and
CANADIAN BLOOD SERVICES
HEALTH CANADA
Respondents
and
THE CANADIAN HUMAN RIGHTS COMMISSION
Intervener
JUDGMENT AND REASONS
I. Introduction
[1] This case is about Yanhong Dewan, a young woman of exceptional kindness and generosity. It has been estimated that just under half of Canadian adults are eligible to give blood, and of those eligible only 3-5% actually donate (see Canadian Blood Services v Freeman, 2010 ONSC 4885 at para 49 [Freeman]). Ms. Dewan is one of those exceptional individuals who wanted to donate her blood to help others in need. Regrettably, she was also one of the many found to be ineligible to donate blood.
[2] Ms. Dewan’s mother, Ms. Soullière, seeks judicial review of a March 26, 2015 decision of the Canadian Human Rights Commission (“Commission”) dismissing the complaint against Canadian Blood Services (“CBS”), pursuant to section 44(3)(b)(i) of the Canadian Human Rights Act, RSC 1985, c H-6 [Act] on the basis that further inquiry was not warranted in the circumstances (the “Decision”). Although it is regrettable that Ms. Dewan is not eligible to donate blood, I find no reviewable error in the Commission’s Decision, and therefore this judicial review is dismissed, for the reasons explained below.
[3] In an application heard concurrently (Court file No. T-691-15), Ms. Soullière also seeks judicial review of a related Commission decision dismissing her complaint against Health Canada (“HC”), also pursuant to section 44(3)(b)(i) of the Act. Due in part to the outcome of this judicial review (Court file No. T-690-15), I have also dismissed the HC judicial review. A copy of both decisions shall be placed in each of these two Court files.
II. Background
[4] The genesis of this action occurred when Ms. Yvonne Soullière (the “Applicant”) filed a December 5, 2012 human rights complaint against CBS (the “Complaint”) on behalf of her daughter, Yanhong Dewan. The Complaint alleged that Ms. Dewan was rejected as a blood donor and deemed indefinitely ineligible on the basis of her inability to understand and complete the blood donor screening questionnaire, due to her intellectual disability.
[5] Although CBS contends that the Commission properly dismissed the Complaint, CBS submits that the Commission erred by failing to dismiss the Complaint on the preliminary basis that blood collection is not a “service customarily available to the general public” under section 5 of the Act. All statutory references below are to the Act, unless otherwise specified.
A. Ms. Yanhong Dewan
[6] Ms. Dewan’s intellectual disability has not been specifically identified. However, it is not disputed that she was screened out of the blood donation process as a result of her disability.
B. Canadian Blood Services
[7] The Respondent, CBS, is a charitable organization responsible for managing the blood and blood component (“blood”) supply for all provinces and territories of Canada, except Québec. It was created in 1998 in response to the tainted blood tragedy which resulted from the Canadian Red Cross Society’s failure to limit the transmission of Human Immunodeficiency Virus (HIV) and Hepatitis C through the blood supply in the late 1970s and early 1980s. The tragedy reportedly resulted in the infection of more than 20,000 recipients of blood products, and the death of over 1,000 Canadians. As a result, the Canadian government appointed the Commission of Inquiry on the Blood System in Canada, known as the “Krever Inquiry” (Investigation Report at para 9).
[8] The Krever Inquiry recommended that Canada have a national system for the collection and delivery of blood, and that there continue to be a federal entity dedicated to its regulation. CBS was created as a result to be Canada’s national blood operator. Since Canada considers blood products to be biological products, CBS is considered a biological drug manufacturer subject to the Food and Drugs Act, RSC, 1985 c F-27 and, as such, is subject to regulation by HC.
[9] CBS collects blood from volunteer donors, processes them into blood products, and distributes these products to hospitals across Canada. As part of CBS’ blood donation screening process, potential donors are asked to complete the “Donor Health Assessment Questionnaire” (the “DHAQ”). The DHAQ asks a series of questions to assess the potential donor’s health, potential for giving blood, and potential risk to the blood system.
C. The Complaint
[10] On February 2, 2012, Ms. Dewan attended a mobile blood donor clinic in Lasalle, Ontario, intending to donate blood. The CBS nurse screener met with Ms. Dewan alone, and attempted to explain some of the DHAQ questions in “simpler” language. However, the nurse ultimately screened Ms. Dewan out of the process and did not allow her to donate. Ms. Soullière communicated to CBS that she did not agree with this decision.
[11] On February 15, 2012, CBS learned that Ms. Dewan intended to again attempt to donate blood. Since CBS had recently determined that Ms. Dewan was “indefinitely deferred” and this would not change if she attended a different clinic, it contacted Ms. Soullière to dissuade her daughter from attending the upcoming blood donor clinic.
[12] Subsequently, there were communications between the parties. On August 17, 2012, Dr. Skeate, CBS’ Associate Medical Director, spoke to Ms. Soullière on the telephone and offered to conduct an External Medical Examination (“EME”) process for her daughter – a personalized process that CBS may offer when there are issues arising from the initial screening and DHAQ. The EME involves a customized approach including a discussion with CBS medical staff, such as Dr. Skeate. Ms. Soullière did not proceed with the EME on behalf of her daughter. There is some dispute as to what exactly was communicated and offered in terms of the EME.
[13] On December 7, 2012, Ms. Soullière filed the Complaint against CBS on behalf of her daughter. In her Complaint, Ms. Soullière alleged, among other things, that CBS discriminated against her daughter on the basis of her intellectual disability by denying her the ability to donate blood, and by barring her from doing so indefinitely.
[14] On February 8, 2013, CBS requested that the Commission dismiss the Complaint, on the basis that it was beyond the jurisdiction of the Commission, pursuant to section 41(1)(c) of the Act. Specifically, CBS argued that the Commission lacked jurisdiction because the ‘opportunity to give blood’ does not constitute a service within the meaning of section 5.
[15] After considering submissions from the parties, the Commission prepared a section 40/41 report that recommended dealing with the Complaint as it was not “plain and obvious” that CBS did not provide a service within the meaning of section 5. The parties were given this section 40/41 report and provided submissions in response to it.
[16] After reviewing the submissions, on December 18, 2013 the Commission made a final decision under section 41(1) to deal with the Complaint, finding that on the question of “service”:
The Commission should deal with the complaint because it is not frivolous. It is not plain and obvious that the activity in question is not a service. For the reasons discussed above CBS appears to provide a service when screening potential blood donors. Screening is the first step of the blood supply system. This first step cannot be artificially divorced from the other steps in the system (i.e. collecting, testing, production and distribution), which CBS admits are services customarily available to the public.
[Section 40/41 Report at para 95]
[17] As a result of this section 41 decision, the Commission began its investigation process. The Commission’s investigator (“Investigator”) compiled information received from the parties and witnesses.
[18] On December 29, 2014, the Investigator delivered the Investigation Report (“Report”), which recommended dismissing the Complaint, on the basis that further inquiry was not warranted in the circumstances. The parties were invited to – and duly provided – submissions in response to the Report. They also subsequently provided replies to one another’s submissions. Consistent with its position before this Court, CBS agreed that no further inquiry was warranted, but disagreed that the Complaint was directed to a “service” within the meaning of section 5 of the Act.
[19] The Commission ultimately dismissed the Complaint in its Decision, confirming the finding of the Report that a further inquiry was not warranted. A summary of the Decision follows.
III. The Decision Under Review
[20] The Decision simply states that after reviewing the Report and the submissions filed in response, the Commission dismisses the Complaint pursuant to section 43(3)(b)(i) of the Act, because further inquiry is not warranted, having regard to all of the circumstances.
[21] It is common ground between the parties that in these circumstances, the Commission’s reasons are deemed to be those provided in the Report (Canada (Attorney General) v Sketchley, 2005 FCA 404 at para 37 [Sketchley]).
[22] The Report begins by noting that the Commission does not determine whether discrimination has actually occurred, but rather whether a complaint requires further inquiry by the Canadian Human Rights Tribunal (the “Tribunal”). The Investigator, in coming to her recommendation, states that she reviewed the parties’ positions, and all of their documentary evidence presented. She also states that she conducted five telephone interviews – with Ms. Soullière and Ms. Dewan, along with three CBS representatives: Debra Freeman (the CBS Nurse/Screener who met with Ms. Dewan when she attempted to donate blood); Dr. Mindy Goldman (Medical Director of CBS’ Donor and Clinical Services); and Dr. Robert Skeate (an Associate Medical Director at CBS).
[23] As for the decision-making matrix, the Investigator describes the investigation process as constituting three steps: (1) whether there was support for the allegation of discrimination; and if so (2) whether it was bona fide justified; and (3) whether any support existed for the allegation of a failure to accommodate. The detailed Report, numbering some 138 paragraphs, comprehensively summarizes the evidence and submissions considered for each of these three questions.
A. Step 1: Whether there was support for the allegation of discrimination in the provision of a service customarily available to the general public
[24] The Report identifies the service at issue in the Complaint as being CBS’ screening of potential blood donors when determining a person’s eligibility to donate blood. The Report states that this service was customarily available to the general public and notes that CBS did not ask this Court to review the Commission’s section 41 decision to deal with the Complaint. The Report also notes that CBS provided a full defence to the investigation.
[25] The Report further notes that it was not disputed that Ms. Dewan’s disability affects her comprehension level of words and language, and that CBS acknowledges that it denied Ms. Dewan the opportunity to donate blood on the basis that she could not adequately comprehend the screening and donation process. The screener documented the reasons for determining Ms. Dewan’s ineligibility thus: “…donor has a mental disability and as per mother has intellectual ability of 3 to 5 year old child. Mother wanted to answer questions for daughter. Donor cannot read and doesn’t have an understanding of timeframes, transmissible disease – unable to understand questions even when restated in a simpler fashion…” (Report at para 22).
[26] The Report concluded, under this first step of the analysis, that CBS had denied Ms. Dewan access to the blood donation service on a basis related to her disability.
B. Step 2: Whether CBS’ standard is bona fide justified
[27] The Report identified the standard relied upon by CBS in denying Ms. Dewan access as “the ability to understand and complete the DHAQ without help (other than from a respondent screener).” CBS screens all individuals who volunteer to donate blood, requiring them to comprehend the blood donation process, including the DHAQ, without the assistance of a third party other than the CBS nurse-screener (with two exceptions which will be discussed below). The purpose of this is twofold: to ensure that giving blood will not place the donor’s health at risk, and to ensure that the donation is safe for transfusion to recipients. The question for the Investigator was therefore whether this standard could be justified.
[28] The Report accepted that CBS had adopted the standard in good faith, and for a purpose rationally connected to the general function being performed – namely following the recommendations of the Krever Inquiry in order to safeguard the safety of the blood supply. CBS required comprehension of the DHAQ without the assistance of a third party, save for two exceptions: certified American Sign Language (ASL) and foreign language translation. The rule and its two exceptions were strictly enforced, and potential donors must answer the questions accurately and appreciate the risks of blood donation – both to oneself and to others. CBS explained that it adopted the standard following the recommendations of the Krever Inquiry, consistent with HC’s regulatory requirements and with the policies and practices of other major blood operators and policy-making bodies around the world.
[29] The Investigator then turned to the question of whether the standard was reasonably necessary to achieve the purpose or goal, and noted that this issue is considered by asking whether accommodating Ms. Dewan would cause undue hardship based on health, safety, and/or cost, a question which turned on the key third step in the Commission’s matrix.
C. Step 3: Whether there is support for the Complainant’s allegation of a failure to accommodate to the point of undue hardship
[30] The bulk of the Report’s written discussion addressed the accommodation issue. The Investigator recommended dismissing the Complaint, concluding at paragraph 131:
Based on the evidence, the respondent’s reasons for being unable to accommodate Ms. Dewan by modifying the DHAQ or permitting a third party (such as the complainant) to help Ms. Dewan answer questions in the donor screening process, appear justified. The evidence supports that allowing the complainant’s requested accommodation would result in undue hardship for the respondent, as it would create undue risk to the safety of the blood supply.
[31] Moreover, the Investigator, at paragraph 130 of her Report, rejected the Complainant’s submission that CBS had breached its procedural duty to accommodate, relying on Canada (Human Rights Commission) v Canada (Attorney General), 2014 FCA 131 at para 16 [Cruden], to conclude that that there is no separate procedural duty to accommodate.
IV. Issues Raised
[32] Counsel for Ms. Soullière claims that the Commission made four reviewable errors in its Decision:
breaching procedural fairness by
relying on an inadequate investigation, and
failing to address Ms. Soullière’s submissions in response to the Report, and not addressing the entirety of Ms. Soullière’s responses;
applying the wrong legal test to determine undue hardship, and
rejecting the procedural duty to accommodate Ms. Dewan’s disability.
rendering its decision on the basis of no evidence, including by failing to consider the alternative accommodation options raised by Ms. Soullière;
exceeding its jurisdictionby adjudicating the Complaint rather than applying the threshold test to determine whether further inquiry is warranted; and
erring in law by:
[33] CBS, in addition to denying these claims, contends that it was in any case unreasonable for the Commission to have proceeded on the premise – as a foregone conclusion – that blood collection was a service within the meaning of section 5 of the Act.
[34] Given that I am writing this decision so that Ms. Dewan and Ms. Soullière understand why the judicial review is not being granted, I will proceed to address each of these claims in turn as formulated by counsel for Ms. Soullière. I will also address whether the Decision as a whole is reasonable. However, this necessarily means there will be some repetition in my reasons, given that several of the arguments overlap.
V. Standard of Review
[35] There is no dispute that the standard of review applicable to questions of procedural fairness is correctness (Mission Institution v Khela, 2014 SCC 24 at para 79). Ms. Soullière argues that the correctness standard should also apply to issues of jurisdiction and law (of central importance to the legal system that are outside of the adjudicator’s expertise) that it has raised, per Dunsmuir v New Brunswick, 2008 SCC 9 at paras 59-60 [Dunsmuir].
[36] The Commission’s discretion not to refer a complaint to the Tribunal is reviewable on the reasonableness standard (Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 at para 17 [Halifax]). Nevertheless, Ms. Soullière notes that this Court has previously held in Gravelle v Canada (Attorney General), 2006 FC 251 at para 39, that decisions dismissing complaints should be more closely scrutinized than decisions referring complaints to the Tribunal, for the reasons articulated in Larsh v Canada (Attorney General), [1999] FCJ No 508 (Fed TD) at para 36:
A dismissal is, after all, a final decision that precludes the complainant from any statutory remedy and, by its nature, cannot advance the overall purpose of the Act, namely protection of individuals from discrimination, but may, if wrong, frustrate it.
[37] Although there is general agreement between the parties on the broad parameters of standard of review, the parties disagree as to the standard on particular issues, and those instances will be addressed in turn below.
VI. Submissions and Analysis
A. Did the Commission breach procedural fairness?
[38] First, Ms. Soullière contends that the Commission erred by relying on an investigation that failed to thoroughly investigate crucial evidence and adequately address her submissions, including alternative forms of accommodations proposed by Ms. Soullière that were rejected by CBS. These proposed accommodations included the following: (1) clear language interpretation by an independent third party experienced in working with intellectually disabled individuals; (2) models of accommodation set out in the World Health Organization’s Guidelines on Assessing Donor Suitability for Blood Donation; (3) alternative forms for administering screening questionnaires used in other jurisdictions; (4) United Kingdom models of accommodation that permit communication in alternative formats; (5) models based on CBS’ own research, to modify the DHAQ; and (6) allowing disabled individuals to take the DHAQ home in order to familiarize themselves with it, before returning for blood donor screening.
[39] Ms. Soullière, while acknowledging the Investigator made reference to some (but not all) of her proposed accommodations, contends the Investigator merely summarized her submissions without evaluating their merits. She asserts this does not meet the standard of thoroughness required for procedural fairness. Ms. Soullière states that she even drew these deficiencies to the Commission’s attention in her submissions responding to the Report, yet the Commission failed to provide any reasons regarding the proposed accommodations in its subsequent refusal. Ms. Soullière points to the following passage from Justice Martineau’s decision in Dupuis v Canada (Attorney General), 2010 FC 511 at para 16 [Dupuis]:
Moreover, where a party's submissions allege substantial and material omissions in the investigation and provide support for that assertion, the Commission must refer to those discrepancies and indicate why it is of the view that they are either not material or are not sufficient to challenge the recommendation of the investigator; otherwise one cannot but conclude that the Commission failed to consider those submissions at all.
[40] Ms. Soullière submits that the Commission’s failure to address all of the alternative forms of accommodation constitutes a breach of procedural fairness, and that the opportunity to make submissions in response to the deficiencies in an investigator’s report does not compensate for a defect in procedural fairness in the investigation where evidence has been disregarded or ignored (Herbert v Canada (Attorney General), 2008 FC 969 at para 18 [Herbert]; Slattery v Canada (Human Rights Commission), [1994] 2 FC 574 (Fed TD) [Slattery] at paras 55-57, aff’d (1996), 205 NR 383 (FCA)).
[41] Second, Ms. Soullière alleges that the Commission further breached her procedural fairness rights in failing to consider the entirety of her responding submissions to the Investigator’s two reports (for both the CBS and the HC complaints). Ms. Soullière’s responding submissions addressed both investigation reports in a single document, and for the purposes of the CBS complaint, the Commission excerpted and only considered the submissions pertaining to the CBS Report, and not the portions related to the HC investigation report. She maintains that some aspects of the submissions pertaining to the HC investigation report were relevant to both complaints.
i. Inadequate investigation and alleged failure to consider crucial evidence
[42] Justice Mosley discussed the requirements of procedural fairness in the Commission’s investigation stage in Carroll v Canada (Attorney General), 2015 FC 287 at para 67 [Carroll]:
The case law clearly establishes that an investigation which does not deal with the substance of a complaint, fails to investigate a relevant question, or fails to consider crucial evidence is unfair because it is not thorough. That unfairness carries over to any eventual dismissal decision rendered by the Commission. Whether the complainant has been able to make submissions is irrelevant. If submissions were made but disregarded, that does not increase the thoroughness of the investigation - it decreases it.
[43] Investigations carried out by the Commission must be neutral and thorough. For instance, an investigation is not thorough where an investigator fails to investigate crucial evidence (Slattery at paras 49-50; Hughes v Canada (Attorney General), 2010 FC 837 at paras 32-33 [Hughes]).
[44] With respect to the argument that the Investigator overlooked some of the alternative accommodations, I find that any alternatives not expressly referenced in the Report are all variations of those that are expressly considered in the Report. Broadly speaking, the alternative accommodations fall under themes of either having a third party clear language interpreter participate in the process, or altering the DHAQ directly to be a more plain language document. The Report extensively canvassed these alternatives and why it is not feasible for CBS to implement such alternatives without incurring undue hardship.
[45] The Commission concluded, after considering the options, that CBS could not accommodate Ms. Dewan without undue hardship. It did not have to expressly refer in detail to each and every specific one of the possible alternative accommodation measures. The Report covered the essential aspects of the alternatives, which is all that is required. Procedural fairness does not require the Commission to mention every piece of evidence (Bergeron v Canada (Attorney General), 2015 FCA 160 at para 76; Alkoka v Canada (Attorney General), 2013 FC 1102 at para 56 [Alkoka]).
[46] In Hughes at para 34, Justice Mactavish noted some of the competing considerations when assessing whether an investigation was deficient:
The requirement for thoroughness in investigations must also be considered in light of the Commission's administrative and financial realities. With this in mind, the jurisprudence has established that some defects in the investigation may be overcome by providing the parties with the right to make submissions with respect to the investigation report. As the Federal Court of Appeal observed in Sketchley, the only errors that will justify the intervention of a court on review are "investigative flaws that are so fundamental that they cannot be remedied by the parties' further responding submissions": at para. 38.
[47] The Commission retains broad discretion to determine whether further inquiry is warranted (Alkoka at para 41) and this Court has held that judicial intervention is only warranted where the Commission failed to consider “obviously crucial” evidence, not for minor omissions and defects that can be corrected by the parties’ further submissions to the Commission (Slattery at paras 56 and 57). An investigator is not required to refer to all of the evidence submitted, nor does its failure to do so necessarily indicate that it failed to take all of it into account. And as noted in Herbert at para 26, “[w]here the parties' submissions on the report take no issue with the material facts as found by the investigator but merely argue for a different conclusion, it is not inappropriate for the Commission to provide the short form letter-type response.”
[48] Ms. Soullière correctly observes that the Report only addresses the alternative accommodations expressly in the course of recounting the parties’ submissions. However, I do not find that constitutes overlooking or ignoring the evidence of alternative accommodations. Rather, the lengthy summaries, followed by brief conclusions, were simply a feature of the Investigator’s writing style. The Report extensively summarized CBS’ submissions regarding the limitations and risks of the alternative accommodations, and found these persuasive. The Report dealt with the substance of the Complaint, and there is no indication that the Investigator failed to investigate a relevant question or to consider crucial evidence. Accordingly, I find no procedural unfairness, in either the process followed by the Investigator, or ultimately – as I will address next – in the Commission adopting the Investigator’s recommendation. The Report addresses all key submissions, including the range of alternative accommodations proposed.
[49] In sum, procedural fairness does not require that the Decision expressly itemize all of the evidence submitted. There is, in my view, no basis upon which to conclude that the Investigator, or in turn the Commission, failed to consider crucial evidence. Finally, I will also address the “alternative accommodations” argument as part of the substantive review of the Decision on the reasonableness standard, below.
ii. Failure to address the entirety of Ms. Soullière’s responses
[50] I also disagree with Ms. Soullière’s second procedural fairness allegation that the Commission improperly excised portions of her responding submissions that pertained to the other complaint against HC, to which CBS is not a party. Indeed, the Commission properly decided to excise the portions of Ms. Soullière’s response regarding the HC complaint. Two complaints were levied by Ms. Soullière (consistent with the Commission’s procedure): one against CBS, and another against HC. CBS was not privy to the HC complaint, and had no opportunity to make submissions on any of the issues raised in that investigation (and vice versa).
[51] Therefore, it may have been procedurally unfair to CBS had the Commission conflated the two complaints, considering information gathered in the HC investigation when making its findings in the CBS complaint. Again, CBS was not privy to the HC complaint (and vice versa). Otherwise stated, excising the portions of Ms. Soullière’s response related to the HC complaint, as the Investigator did, was both appropriate and necessary in the circumstances.
[52] Rather, it is what Ms. Soullière advocates for that would have been procedurally unfair. Counsel for Ms. Soullière chose to file a single consolidated response to both investigation reports, each of which proceeded as a separate complaint. The fact that the Commission needed to sever the information pertaining to each complaint therefore should not have come as a surprise.
[53] To conclude, I do not agree with the allegations of unfairness raised. First, I find the investigation was thorough and neutral, and that the Commission dealt with all of the relevant issues after considering the appropriate evidence and submissions. Second, I do not find any unfairness in the severing of the Applicant’s response to the Report.
B. Did the Commission render its decision on the basis of no evidence?
[54] Ms. Soullière submits the Commission’s conclusion – that the requested accommodation would result in undue hardship to CBS by creating a risk to the safety of the blood supply – was based on no evidence, unreasonable inferences, or mere speculation.
[55] Ms. Soullière asserts that there was “no evidence before the Commission to suggest that the proposed alternative accommodation would cause undue hardship to CBS” (Applicant’s Memorandum of Fact and Law at para 50). In particular, Ms. Soullière states that there was no evidence of any evidence-based risk analysis having been conducted by CBS to support its position of undue hardship. Therefore, the Commission failed to consider whether CBS had demonstrated that it adequately engaged in a risk analysis in reaching its conclusion that the alternative accommodations pose undue risk to the safety of the blood supply.
[56] By contrast, Ms. Soullière points to CBS’ deferral policy for males who have sex with males. Ms. Soullière argues in that instance, CBS engaged in a thorough evidence-based risk assessment to determine whether the deferral policy could be changed without causing undue risk to the blood supply.
[57] Further, Ms. Soullière states that in a 2009 pilot project, CBS tried having multi-skilled clinic employees - instead of nurses - perform all clinic functions, found that the change did not compromise safety, and changed the blood donation process as a result. Ms. Soullière asserts that in both of these examples, CBS gathered data to determine actual risk to the safety of the blood supply, but failed to do so in this case.
[58] Ms. Soullière submits that the facts before the Commission demonstrated that the alternative forms of accommodation she proposed may meet the screening requirements established by CBS, yet the Commission failed to explore the accommodation options analogous to ASL and foreign language interpretation, such as “plain language” translation. Therefore, the Commission arbitrarily made its decision on the basis of no evidence regarding the actual risks posed by the alternative forms of accommodation.
[59] This is one of the issues, mentioned above, where the parties fundamentally differ on the applicable standard of review. Ms. Soullière contends that findings based on no evidence, unreasonable inferences, or mere speculation, constitute errors of law subject to the correctness standard of review, as they are elevated to “jurisdictional errors”. Ms. Soullière relies on Fashoranti v College of Physicians and Surgeons of Nova Scotia, 2015 NSCA 25 at para 21 [Fashoranti], where the Nova Scotia Court of Appeal relied on its earlier decision in Fadelle v Nova Scotia College of Pharmacists, 2013 NSCA 26 [Fadelle] at paras 12-17. Fadelle states at paragraph 15 that a finding based on no evidence is an arbitrary finding, and an error of law.
[60] For its part, CBS contends that the applicable standard of review is reasonableness.
i. Analysis
[61] In terms of standard of review, determinations on questions of fact are entitled to deference (Dunsmuir at para 53), and so is the Commission’s discretionary decision to dismiss a complaint (Halifax at para 17).
[62] In Fadelle, the Nova Scotia Court of Appeal was dealing with a statute that provided for an appeal on “any point of law”, and was faced with the question of when an error in an administrative tribunal’s fact finding process may constitute an appealable error of law – an entirely different context than this judicial review. As noted in Fashoranti at para 23, and in Fadelle at para 12, before applying the administrative law standard of review, a court must isolate any ground of appeal permitted by statute (in that case, on any “point of law”). There is no statutory ground of appeal in this case.
[63] Furthermore, nothing in Fadelle held that fundamentally unreasonable inferences can be an error of law, or that a finding of an essential fact based on no evidence rises to an error of jurisdiction, in relation to a standard of review analysis. Rather, the Court of Appeal simply observed that the factual grounds being challenged were “beyond the Court’s appellate jurisdiction, that is confined to errors of law” (Fadelle at para 17; emphasis added). This is an entirely different proposition than the one raised by Ms. Soullière.
[64] Moreover, even if one puts aside the different context of Fadelle, and accepts that the Tribunal’s factual findings in this case were properly considered a question of law, they could well now be subject to the reasonableness standard of review under modern administrative law principles. There is simply no indication that any of the categories that rebut the presumption of reasonableness are present here (see generally Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at paras 22-24 [Edmonton East]; Keith v Canada (Correctional Service), 2012 FCA 117 at para 48 [Keith]).
[65] Finally, the applicable standard of review would make no difference in this case. If an important finding, such as whether alternative accommodations would require undue hardship, was indeed based on no evidence, it is hard to imagine circumstances where such a decision would not be unreasonable.
[66] In any case, I do not find that there is any foundation to the argument that the Decision was based on no evidence. At best, the Applicant’s argument in this case might be that the Decision was based on insufficient evidence.
[67] Either way, I find that the Commission reasonably concluded, based on the evidence, that the proposed accommodations would result in undue hardship because all donors must understand the risks and responsibilities of blood donation, and the proposals would undermine CBS’ ability to assess that understanding. Briefly, at this stage I would note the evidence of the tainted blood tragedy and that, as the Ontario Superior Court of Justice warned in Canadian Blood Services v Freeman, 2010 ONSC 4885 at paras 28-30 [Freeman], blood recipients are also vulnerable and “[i]t is these same groups who would once again suffer devastating consequences if any reduction of standards led to increased transmission of pathogens.”
[68] Given that, in my view, the proper standard of review for this issue is reasonableness, I will more fully address the evidence supporting the Commission’s Decision under the next section.
C. Was the Commission’s Decision reasonable?
[69] Ms. Soullière makes similar arguments above, in contending that the Commission’s Decision was procedurally unfair. Specifically, Ms. Soullière alleges that the Commission did not properly consider all of the alternative accommodations, such as clear language interpretation, and that the finding of undue hardship was unsupported by any evidence-based risk analysis.
[70] CBS takes the position that it cannot modify the DHAQ or permit a third party to assist Ms. Dewan in answering questions in the donor screening process.
[71] As discussed above, the Report canvassed the positions of the parties in detail and addressed the essential evidence and issues. The Commission concurred with CBS’ position that the various accommodations proposed for Ms. Dewan would require undue hardship in the form of undue risk to the safety of the blood supply. This conclusion was well supported by the evidence detailed in the Report, and while I do not propose to repeat those details in full, I will highlight some of the evidence in support of why waiving or deviating from the established safeguards would result in undue hardship.
[72] There was substantial evidence of positive actions taken by CBS to accommodate individuals like Ms. Dewan, to the extent possible. It is clear to me that CBS takes a proactive approach to inclusion, actively seeking to accommodate differences. There was evidence that in designing the full donor screening process, of which the DHAQ is one part, CBS has actively sought to use plain, accessible language, including in collaboration with groups such as Community Living, an organization dedicated to supporting and advancing the inclusion of people with intellectual disabilities (Report at paras 40-43). Moreover, CBS closely follows industry standards internationally, and considers screening questionnaires and processes used in other countries.
[73] That said, the screening process is designed to be thorough and to effectively elicit reliable information about risk factors – risk to both the potential donor and potential blood recipients. Therefore, while CBS has strived to replace medical terminology with plain language, some of the questions are necessarily complex, as the information required is complex.
[74] In short, there was evidence that the DHAQ, and the full screening process, was already designed to be as simple as safety permitted. CBS’ overarching objective is to collect as much safe blood as possible to support Canada’s healthcare system; as a result, it is in CBS’ interest to find ways to accommodate potential donors in order to be able to screen them ‘in’, rather than exclude them. The fact that CBS takes the results of the Krever Inquiry seriously, and considers the safety of the blood supply paramount, does not mean that it discriminates whenever it comes to the limits of possible accommodations.
[75] The screening process is individualized. CBS requires that a potential donor understand the process, their responsibilities as a donor, and the questions, as well as be able to accurately answer those questions and follow through on the responsibilities. The fact that a potential donor has an intellectual disability does not render him or her ineligible; blood donations from some individuals with intellectual disabilities are accepted, but it is on a case-by-case basis depending on demonstrated comprehension of the process. Moreover, in addition to the individualized assessment conducted in the normal screening process, CBS may engage the EME process to consult physicians and external experts, if necessary.
[76] CBS generally prohibits any third party (other than its own screeners) from assisting potential donors. One particular point of contention was CBS’ policy making an exception for accredited translation services for ASL and foreign languages, but not allowing for the proposed accommodation of clear language interpretation. CBS requires that ASL and foreign language interpreters must be at arm’s-length from the potential donor. Furthermore, all aspects of the screening process must be translated “verbatim” and not modified in any way, minimizing the risk of misinterpretation.
[77] These excepted types of interpreters are regulated, in that they must be accredited for their translation services. There was no evidence, on the other hand, that clear language interpretation is currently a regulated and accredited service. Moreover, as summarized above, there was evidence that the DHAQ is already as clear and accessible as possible. Translation services do not alte