Brunskill v. Canada Post Corporation

Brunskill v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2019-05-17
Neutral citation
2019 CHRT 22
File number(s)
T2224/4617
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Decision status
Final
Grounds
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
22
Date: May 17, 2019
File Number :
T2224/4617
Between:
Glenn Brunskill
Complainant
– and –
Canadian Human Rights Commission
Commission
– and –
Canada Post Corporation
Respondent
Decision
Member: Gabriel Gaudreault
Table of Contents
I. Background 1
II. Motion for Non-Suit Filed by the Respondent at the Hearing 1
III. Facts 6
IV. Legal Framework 15
V. Analysis 19
A. The Complainant and the Burden of Proof of His Case 19
(i) Does the Complainant have a prohibited ground of discrimination under the Act? 19
(ii) Was the Complainant directly or indirectly differentiated adversely in the course of employment? 20
(iii) Was the prohibited ground of discrimination a factor in the adverse differential treatment he suffered in the course of employment? 26
B. If the Complainant was able to meet the burden of proof of his case, was the Respondent able to meet its burden of proof concerning bona fide occupational requirements? 27
VI. Remedies 42
VII. Decision 46
I. Background
[1] Glen Brunskill is the Complainant in this case. He worked for Canada Post Corporation (“CPC”) between 1992 and January 2015, and held several positions within CPC during that time. He ultimately held the position of letter carrier. During his employment, Mr. Brunskill suffered a serious back injury. In March 2013, when he returned to work at CPC, further to a memorandum of settlement, he informed CPC of his medical situation, which would prevent him from resuming his duties as a letter carrier. He therefore made a request for accommodation. He is claiming, in part, that CPC failed to meet its duty to accommodate and that its actions forced him to take early retirement, which he in fact did in January 2015.
[2] On October 27, 2015, he filed a complaint with the Canadian Human Rights Commission (the “Commission”) under paragraph 7(b) of the Canadian Human Rights Act (“CHRA”), claiming that CPC directly or indirectly adversely differentiated him in the course of employment, because of his disability. This complaint was referred to the Tribunal on August 10, 2018, in accordance with paragraph 44(3)(a) of the CHRA.
[3] Following hearings held in Brampton, Ontario, from September 11 to 14, 2018, and based on all the evidence filed in this case, I find that Mr. Brunskill’s complaint is partially substantiated, for the following reasons.
II. Motion for Non-Suit Filed by the Respondent at the Hearing
[4] During the second day of the hearing, CPC announced its intention to file a motion for non-suit. Before filing the motion, it asked the Tribunal’s leave to be exempted from the requirement to make an election. In other words, CPC asked the Tribunal to hear its motion for non-suit, but still allow it to present its evidence in the event that the non-suit motion was dismissed. The Tribunal therefore needed to decide whether CPC would be required to make an election.
[5] After considering the parties’ submissions, the Tribunal was able to render its decision orally at the hearing. Nevertheless, I believe it is appropriate to summarize the positions of the parties in this written decision and to summarize the reasons for the decision I rendered on September 13, 2018.
[6] First, CPC argued that the clear trend in the Tribunal’s case law is that when a party files a motion for non-suit, that party is not required to elect to either bring the motion or present its evidence.
[7] At the time the motion for non-suit was brought, CPC’s position was that Mr. Brunskill had failed to prove the essential elements of his case or to present reliable evidence that would enable him to meet the burden of proof of his case. Consequently, the Respondent alleged that it should not be required to present a response.
[8] CPC filed some case law in support of its request, most notably Filgueria v. Garfield Container Transport Inc., 2005 CHRT 30, Filgueria v Garfield Container Transport Inc., 2006 FC 785, and Fahmy v. Greater Toronto Airports Authority, 2008 CHRT 12 [Fahmy]. These decisions have provided certain considerations that tribunals and courts of law have used as guidelines when dealing with matters concerning the issue of making an election. Three considerations have emerged from these decisions: costs; a response to the concern that the party which brings such a motion is able to “take the temperature”, in other words, to test the waters with the Tribunal; and lastly, the merits of the motion itself.
[9] With respect to costs, CPC argued that the context in civil matters differs from the human rights context. Under the CHRA, costs cannot be recovered at the end of the proceedings because the Tribunal does not have the power to order costs.
[10] The Respondent also argued that as far as it was concerned, the costs were real: it would need to call a witness who lives in the Ottawa region to testify, as well as two other witnesses who live in Toronto. The Respondent added that the quasi-judicial process would not only require it to incur costs, but would also require the Complainant and the public to incur costs as well, since the Tribunal would need to take time to hear the complaint in its entirety. According to CPC, all these expenses could be avoided if the Tribunal granted the motion for non-suit.
[11] The Respondent then addressed the argument that the party bringing the motion for non-suit would be able to “take the temperature”, that is, to benefit from bringing such a motion since the decision-maker could potentially reveal his or her thinking on the case, thus putting that party at an advantage. According to CPC, the Tribunal’s role is to decide whether there is any evidence to support the Complainant’s allegations. It adds that the Tribunal member is not dealing with a situation where he or she is required to weigh the evidence or to provide any additional comments if the motion for non-suit is dismissed; the Tribunal remains in a state of suspended judgment, its neutrality intact.
[12] With respect to the merits of the motion, CPC’s view was that the motion was brought in good faith, was not frivolous and was not intended to obstruct justice. According to CPC, the motion was brought in the public interest in order to try to avoid proceedings that may not be necessary. Consequently, this could potentially avoid wasting the resources of the parties involved.
[13] After CPC made its submissions, the Tribunal gave Mr. Brunskill an opportunity to make submissions concerning this motion. He informed the Tribunal that he didn’t have any to make.
[14] For the following reasons, I dismissed CPC’s request that it be exempted from the requirement to make an election. Consequently, CPC decided not to bring its motion for non-suit and instead presented its evidence at the hearing as planned.
[15] I recognize that CPC was entirely within its rights to bring a motion for non-suit. Moreover, the Tribunal clearly has jurisdiction to hear this type of motion. However, I disagree with the Respondent’s claim that the current trend in the Tribunal’s case law is clear with respect to the issue of exempting the applicant from making an election. After consulting the Tribunal’s case law on this subject, I find that there are thorough and persuasive decisions for each option. This was also reiterated by Member Garfield in Fahmy, supra, at para. 13, as well as in Croteau v. Canadian National Railway Company, 2014 CHRT 16, at para. 14. In fact, there are indeed Tribunal decisions which require the applicant to make an election (see for example Chopra v. Canada (Department of National Health and Welfare), October 7, 1999, T492/0998, Decision No.2 [Chopra], and Khalifa v. Indian Oil and Gas Canada, 2009 CHRT 27 [Khalifa]).
[16] As pointed out by both the Federal Court and the Tribunal, a decision requiring an election to be made is a matter of procedure, and the presiding member has great latitude in requiring or not requiring an election to be made by the applicant. This will depend on the circumstances of each case.
[17] With respect to the costs to the public as well as to the Tribunal, the Tribunal had already been present for the purpose of hearing the complaint. The travel as well as the related costs had already been planned several months earlier. Moreover, the estimated time scheduled for the hearing was very reasonable. I was therefore prepared to continue the hearing and was confident that the case could be closed within the four-day time period scheduled. Given that this matter arose on the third day of the hearing, a debate concerning the motion for non-suit, if necessary, would very likely have spilled over into the fourth and final day of the hearing. Mr. Brunskill would also have needed some time to prepare his response to such a motion, since the consequences could be fatal for the case, that is, it could lead to the dismissal of his complaint. In fact, the result was exactly the same, that is, the full hearing of the case would take place over a period of four days.
[18] With respect to the consideration of costs to the parties, it is important to remember that the hearing was very short. The Complainant did not call any witnesses to testify and therefore did not incur any costs related to subpoenas. Moreover, the Complainant only intended to file very few (if any) documents. The Complainant was not represented and therefore did not incur any costs related to legal representation. For the purposes of the hearing, he only needed to invest his time and travel-related costs. Therefore, the costs incurred by the Complainant did not constitute a compelling argument.
[19] For its part, the Respondent called only three witnesses to testify: two from Toronto and one from Ottawa. Costs are clearly a factor that the Tribunal needs to take into consideration. CPC did not demonstrate that the related costs were expected to be so exorbitant that they would give rise to special circumstances, and consequently constitute a determinative factor in the analysis of the election issue.
[20] With respect to the argument concerning “taking the temperature”, I agree with the Respondent’s submissions regarding the Tribunal’s functions in dealing with a motion for non-suit. I am aware that when a presiding member makes a decision concerning a motion for non-suit, he or she is only required to weigh the evidence filed in order to determine whether it includes any elements supporting the complainant’s allegations. By applying this approach, the member remains in a state of suspended judgment, his or her neutrality intact. Even though this is one element to be taken into consideration, according to the case law filed by CPC concerning motions for non-suit, my role is to weigh all the factors that need to be taken into consideration. I therefore found that this factor was not determinative in this case.
[21] Lastly, with respect to the argument concerning the merits of the motion, there was no indication that CPC’s motion was frivolous, vexatious or made in bad faith. As mentioned earlier, I recognize that a respondent is entirely within its rights to file a motion for non-suit, which is intended to offer protection against proceedings that are frivolous, abusive, vexatious, or made in bad faith against the respondent. Nevertheless, I find that in the decision in Khalifa, Member Hadjis made some interesting comments on this subject, at paragraph 8, pointing out that it is the Commission which is best positioned to assess whether complaints are frivolous, abusive, vexatious or made in bad faith when it decides whether to refer them to the Tribunal or not:
. . . Section 41(1)(d) of the Canadian Human Rights Act provides that the Commission shall deal with a complaint unless it appears to the Commission that the complaint is trivial, frivolous, vexatious or made in bad faith. Respondents are able to make submissions to the Commission to have the complaints made against them dismissed on these grounds, and in the event that the Commission decides nonetheless to deal with a complaint and ultimately refer it to the Tribunal, respondents still have the option of seeking judicial review of the Commission’s decision. Thus, it is not in my view entirely correct to say that a respondent faced with a frivolous or vexatious complaint will have little recourse but to endure a full Tribunal hearing. Given these safeguards under the Act, it seems very unlikely that genuinely frivolous or vexatious complaints would ever make it to the Tribunal.
[Emphasis added]
[22] That said, are there any other circumstances that would justify me exempting the Respondent from making an election? I have found that the timelines involved could be another consideration, but once again, the hearing was scheduled to take place over a short period of time for a case that was being referred to the Tribunal. The hearing ran smoothly, and I was optimistic that the case could be closed within the specified timeframe. Consequently, timelines did not constitute a determinative factor in my decision.
[23] Ultimately, CPC did not persuade me that it should be exempted from making an election. It was therefore free to bring its motion for non-suit, if it so desired, but was required to elect not to call evidence should its motion be dismissed. The Respondent decided to withdraw its motion for non-suit, and the case therefore proceeded as scheduled.
III. Facts
[24] Mr. Brunskill was employed by CPC from 1992 until his retirement in January 2015. During these years of service, he held various positions within CPC notably as a postal clerk and ultimately as a letter carrier.
[25] On March 1, 2012, the Complainant was dismissed for reasons unrelated to this complaint, and he subsequently filed a grievance. A memorandum of settlement was signed on March 19, 2013, between CPC, the Complainant and his union representative, whereby he was reinstated in his former position as a letter carrier at the facility in Brampton North. He was scheduled to be reinstated in this position on March 20, 2013. When Mr. Brunskill returned to work on March 20, 2013, he informed CPC that he would not be able to perform the duties of a letter carrier, owing to a back injury he had suffered in the past.
[26] The Complainant had suffered a workplace injury in the past, while he was working as a letter carrier. He explained that he had been carrying a heavy double bag for the purpose of transporting and delivering the mail. He fell down with the bag and suffered a significant shock to his spine which prevented him from continuing his work. After this fall, he had to see a doctor, and his duties needed to be modified. At the Complainant’s request, CPC therefore found him a temporary position with modified duties, that of a Decentralized Redirection System clerk ( “DRS Clerk”), at the facility in Malton. This was one of the most sedentary positions that could be offered within CPC.
[27] CPC is not responsible for confirming and establishing an employee’s medical limitations: this responsibility is assumed by an external company, Great-West/Morneau Sheppell (“GW/MS”). Without claiming to understand all the subtleties of claims processing at GW/MS, it is the Tribunal’s understanding that an employee’s claim is forwarded to GW/MS, where a disability case manager assumes responsibility for the file. A medical team then reviews the employee’s medical situation. Finally the company informs CPC of any medical restrictions that apply to the employee and, where applicable, whether these restrictions are temporary or permanent. The company may also submit recommendations for accommodation measures to CPC.
[28] When CPC modified the Complainant’s duties in March 2013, it did so without first obtaining information on the Complainant’s medical restrictions. This was a temporary accommodation measure that was implemented while the Complainant’s medical restrictions were being confirmed and established by GW/MS. At the time, CPC had also determined that the duties related to this position could be performed safely by the Complainant.
[29] It was in this context that Mr. Brunskill held the position of DRS Clerk at the facility in Malton, on a full-time basis, from March 20, 2013, to September 13, 2013. The evidence shows that even though the Respondent did not receive information concerning Mr. Brunskill’s medical restrictions until much later, during the summer, the modified duties of this position constituted an accommodation measure which worked well under the circumstances. Both CPC and the Complainant were satisfied with this arrangement.
[30] On August 21, 2013, CPC received a letter from GW/MS, which confirmed and listed the Complainant’s medical restrictions. Without getting into the details, these restrictions included limitations on how long the Complainant could walk, the maximum weight that he could carry, the maximum amount of time he should remain standing or sitting, and limitations related to pulling and pushing objects.
[31] Following CPC’s receipt of the medical restrictions on August 21, 2013, the Complainant continued to work as a DRS Clerk at the facility in Malton. The evidence shows that the accommodation measures that had been put in place on March 20, 2013, were compatible with the Complainant’s medical restrictions.
[32] On September 13, 2013, the Malton facility was closed due to a restructuring of CPC’s services, and the position that had been held by Mr. Brunskill was eliminated. For several months, the Respondent had been fully aware that this facility was going to be affected by restructuring activities, but as far as it was concerned, the DRS Clerk position at that facility was clearly a temporary accommodation.
[33] After this position was eliminated, CPC was unable to find another position for the Complainant where his duties would be compatible with his limitations. Consequently, the Complainant was invited to claim short-term disability benefits (“STD benefits”), which he did. It is the Tribunal’s understanding that this is the usual practice at CPC; that is, when an employee cannot be accommodated because of his or her medical situation, the employee is invited to file a claim for STD benefits.
[34] Since, at that point, the Complainant was not assigned to any given position, CPC conducted a job search in order to identify another appropriate accommodation. On September 25, 2013, CPC informed Mr. Brunskill that it had identified another position with modified duties that were compatible with his medical restrictions. It involved working as a Video Encoding System Clerk (“VES Clerk”). However, the Complainant was required to successfully complete training before being assigned to this position. The training started on September 30, 2013. It is the Tribunal’s understanding that the Complainant was paid while he participated in this training.
[35] As requested, Mr. Brunskill participated in the first part of the training in order to improve his keyboarding skills. However, he was not able to achieve the necessary objectives required to successfully complete this part of the training and move on to the next steps in the training process. CPC therefore offered the Complainant additional training so that he could further improve his keyboarding skills. Despite this, the Respondent determined that the Complainant’s chances of successfully completing this training were poor, a fact which is not contested by the Complainant. Mr. Brunskill’s training therefore ended on October 10, 2013, and he had to wait for the Respondent to find him another position that would offer appropriate accommodation. CPC therefore started looking for a position with modified duties that would be compatible with the Complainant’s medical restrictions.
[36] On October 30, 2013, GW/MS approved the Complainant’s short-term disability due to his medical situation, retroactive to September 16, 2013. Mr. Brunskill therefore received STD benefits during his absence from work in September 2013 as well as after his training ended in October 2013. Short-term disability was approved until December 31, 2013. On December 31, 2013, GW/MS confirmed that Mr. Brunskill was still approved for short-term disability for the period between January 1 and February 23, 2014. Subsequently, GW/MS again approved short-term disability for the period from February 24, 2014, to April 13, 2014. This period represented Mr. Brunskill’s final eligibility period for STD benefits from GW/MS. Consequently, Mr. Brunskill stopped receiving STD benefits as of April 13, 2014.
[37] Other than the potential VES Clerk position for which the Complainant was unable to successfully complete training, CPC was not able to identify any accommodation measure that would be compatible with the Complainant’s medical restrictions for a period of 30 weeks, stretching from September 16, 2013 to April 13, 2014. During this time, Mr. Brunskill received STD benefits. In fact, his benefits amounted to the equivalent of 100% of his salary. Without going into all the details, employees of CPC could receive STD benefits amounting to 70% of their salary. However, it was also possible to make up for the remaining 30% by using top-up credits, which are notably obtained by converting accumulated sick leave credits into said top-up credits. Given Mr. Brunskill’s seniority and the credits accumulated during his numerous years of service, the amounts that he received totalled 100% of his salary.
[38] Around the 22nd week of the short-term disability period, CPC’s usual practice is to invite employees who are still disabled and absent from work to complete a package for the purpose of claiming long-term disability benefits (“LTD benefits”). One other notable fact is that responsibility for LTD benefits is not assumed by GW/MS, but by SunLife Financial. On February 12, 2014, CPC sent this package to Mr. Brunskill, who unfortunately never received it. On April 13, 2013, the Complainant’s STD benefits ended, and as a result, the Complainant was left without income as of April 14, 2013.
[39] On April 29, 2014, CPC learned that Mr. Brunskill had never received the package. It therefore sent a second package that the Complainant must have completed, since SunLife Financial denied his claim for LTD benefits on May 26, 2014. During this time period, the Complainant was still not receiving any income and was waiting for CPC to identify a position that was compatible with his medical restrictions.
[40] After SunLife Financial denied his claim for LTD benefits, the Complainant was once again referred to a disability case manager at GW/MS so that his medical situation could be updated. He was required to provide updated information on his medical condition by June 20, 2014, at the latest, but the company did not receive the requested information. On June 25, 2014, the company contacted the Complainant in order to clarify the situation. Dr. Matthew, Mr. Brunskill’s attending physician, was away from his office and was not scheduled to return until mid-August 2014. Mr. Brunskill was therefore granted an extension requiring him to provide the requested information by July 3, 2014. As of July 9, 2014, GW/MS was still waiting to receive the necessary information. According to the disability case manager’s notes, the Complainant’s attending physician was apparently refusing to complete the documents required by the company. Mr. Brunskill also testified that his doctor was exasperated by all the requests he was receiving from GW/MS and CPC asking him to complete documents for the purpose of updating Mr. Brunskill’s file.
[41] Dr. Matthew was not called to testify as a witness at the hearing. The only information available to the Tribunal concerning these specific circumstances was obtained from the notes of Andrew Rivers, the disability case manager, and Mr. Brunskill’s testimony. Mr. Rivers was also not called to testify at the hearing. For the Tribunal, the circumstances surrounding the doctor’s refusal to complete the requested paperwork is somewhat vague. It is the Tribunal’s understanding that Dr. Matthew was away from his office until mid-August 2014. That said, even if Dr. Matthew had refused to provide the requested information, this would not have changed the fact that as of July 9, 2014, GW/MS was still waiting to receive the relevant information required to update Mr. Brunskill’s file.
[42] The Complainant informed the case manager that he would take the necessary measures to provide the requested information, and he did in fact do so. On July 14, 2014, he provided a medical note from Dr. Simarjot Grewal, Dr. Matthew’s colleague. I believe that it is appropriate to reproduce Dr. Grewal’s letter in its entirety:
To Whom it May Concern,
Dr. Matthew is on temporary leave until mid-August 2014. He will be able to provide an updated medical assessment for Mr. Glenn Brunskill upon is [sic] return.
Until this time, Mr. Brunskill may return to work at his former position of DRS Clerk or MSC Driver.
[43] This letter is important because, as Mr. Brunskill explained to the Tribunal, he believed that he had fulfilled the request made by GW/MS and CPC. According to him, this letter provided an update of his medical situation and confirmed that he could work as a DRS Clerk or as a Mail Service Courier Driver (“MSC Driver”). As far as CPC was concerned, this letter did not provide an update of the Complainant’s medical situation. According to CPC, the Doctor’s letter explicitly stated that an update of the Complainant’s medical situation would be forwarded by Dr. Matthew, his attending physician, upon his return from a leave of absence.
[44] That said, and even though the Complainant and the Respondent do not agree on the nature and scope of the letter, the evidence shows that CPC still endeavoured to evaluate the options listed therein. There was no available position for a DRS Clerk. With respect to the position of an MSC Driver, the Respondent determined that the Complainant would not be able to perform this type of work, based on his known medical restrictions. An evaluation of each of the positions available at CPC had been conducted by an outside firm. Part of this evaluation covered the physical requirements for a given position. CPC refers to these evaluations when it is required to determine whether an employee is able to perform the tasks related to a particular position, considering his or her medical restrictions.
[45] CPC decided that, owing to Mr. Brunskill’s known medical restrictions, it was not appropriate to assign him to work as an MSC Driver. A number of union representatives, including some who had either worked or were currently working as MSC Drivers, also believed that this position was not compatible with the Complainant’s medical limitations.
[46] On August 26, 2014, Dr. Matthew provided an update of the Complainant’s medical restrictions as requested. GW/MS sent a letter to the Respondent to inform CPC that Mr. Brunskill’s medical restrictions remained unchanged. In that letter, Michael Sarazin, Disability Case Manager, confirmed that he had had a discussion with the Complainant’s attending physician and again listed the Complainant’s medical restrictions.
[47] Even though the Disability Case Manager informed CPC that the restrictions had not changed, a reading of these same restrictions reveals that certain differences did in fact exist. Indeed, the medical restrictions dated August 26, 2014, were more restrictive than those dated August 21, 2013. For example, and without restating all the restrictions in detail, while the restrictions dated August 21, 2013, authorized the Complainant to lift objects weighing a maximum of 20 pounds between the waist and the shoulders, that latitude was no longer authorized in the new restrictions dated August 26, 2014. Moreover, the Complainant had previously been authorized to frequently lift objects weighing a maximum of 5 pounds from the floor to waist level and from waist level to shoulder level, but in the new restrictions, for the same movements, he could still lift a maximum of 5 pounds but could only do so rarely or infrequently. Lastly, the maximum length of time he could consecutively spend walking was reduced from 15 minutes to 5 minutes.
[48] When the Respondent received the Complainant’s updated medical restrictions, dated August 26, 2014, it once again conducted a job search in order to find him modified duties in a position that would be compatible with his new limitations. A vacant position was identified; specifically, a position working as a Postal Clerk for the return to sender service in Port Credit, starting on September 10, 2014. This position was very similar to the position of DRS Clerk that the Complainant had held from March to September 2013, in Malton. However, it was a part-time position, requiring him to work 4 hours a day. The Complainant also had the help of an assistant who could move heavier packages when necessary. With the help of this person, Mr. Brunskill was able to perform most of the duties related to this position while still respecting his medical limitations.
[49] The evidence shows that the Complainant was not particularly well informed about the conditions of his employment. He did not receive any documentation or official letter of assignment. He only received a telephone call from an unknown woman, asking him to report to work on September 10, 2014, which he did. It was only after he started working in that position that Mr. Brunskill realized that the position in question was a part-time position. This angered the Complainant, who believed that the Respondent was trying to demote him in violation of his collective agreement. He explained that he subsequently continued to perform the duties offered for a certain period of time in order to ensure that he had a “foothold within CPC”. That way, he could consult the various positions available within CPC, particularly those posted on the jobs board. For the Complainant, this particular accommodation measure was the last straw. It was what prompted him to take measures that he felt appropriate. The Complainant filed certain emails demonstrating that in September and October 2014, he had in fact contacted certain individuals, most notably within the union, in order to try to change things. For the Tribunal, the Complainant’s messages clearly convey the fact that he did not understand his situation. They also clearly convey his distress about it.
[50] Mr. Brunskill was not amenable to working part-time in Port Credit. He maintained that CPC was required to find him modified duties in a full-time position. He informed the Tribunal that the income paid for work performed on a part-time basis was insufficient and that despite working a number of hours in that position in September and October 2014, he had later received paycheques from CPC in the amount of $0.
[51] On that point, the evidence filed during the hearing, more specifically the payment notifications sent to Mr. Brunskill and filed by the Respondent, instead demonstrate that Mr. Brunskill received a salary of $1,513.09 for work performed between September 14 and 27, 2014. Between September 28 and October 11, 2014, he received a salary of $1,026.16. However, between October 12 and 25, 2014, the evidence shows that Mr. Brunskill owed the employer the amount of $124.59. After carefully reviewing this payment notification, the Tribunal notes that there was a recovery of an overpayment. The amount concerned was a significant amount and resulted in the Complainant’s pay actually falling into a negative amount. Lastly, for the pay period from October 26 to November 8, 2014, Mr. Brunskill’s pay was relatively minimal, $177.54. Once again, an overpayment had been recovered.
[52] Mr. Brunskill stopped working at Port Credit on October 24, 2014, and therefore did not receive any salary after that date. On November 12, 2014, CPC sent a letter to Mr. Brunskill explaining that he would be paid an additional amount of $1,000 as a salary advance for the period from October 26 to November 8, 2014. This letter also explained the terms and conditions for recovering the amount paid in advance.
[53] Finally, Mr. Brunskill alleged that the Respondent gave him no alternative but to liquidate all leave available to him, including personal days, pre-retirement leave, annual leave and top-up credits, and ultimately to retire. He therefore claims that he was subjected to constructive dismissal. That said, the evidence reveals that Mr. Brunskill did in fact liquidate all his leave as of October 24, 2014 (Exhibit C-6). According to him, if he had taken all his leave in the proper order, he could have retired on January 31, 2015. The evidence reveals that he in fact submitted his notice of retirement on January 26, 2015.
[54] For its part, CPC denied that it intended to demote Mr. Brunskill. It maintained that when it received the updated medical restrictions from GW/MS on August 26, 2014, it conducted a job search in order to identify positions that would be compatible with these restrictions. The evidence reveals that the search was successful and that an available position was identified for Mr. Brunskill. This position, in Port Credit, was adapted to ensure that it was compatible with the Complainant’s restrictions, for example, by providing him with an assistant to move heavy packages. This work was part-time work, starting on September 10, 2014. The evidence also reveals that even though Mr. Brunskill held a part-time position, he was nevertheless considered to be a full-time employee in CPC.
[55] CPC added that if the Complainant decided to use all his leave and then retire, it was on his own initiative, and that this is not a constructive dismissal. Indeed, the evidence reveals that CPC did not ask Mr. Brunskill to take retirement. In fact, Mr. Brunskill presented CPC with a fait accompli. This issue, whether the Complainant was forced to take retirement, will be addressed further on.
IV. Legal Framework
[56] Mr. Brunskill is required to meet the burden of proof for his case. This is traditionally referred to as establishing a prima facie case of discrimination.
[57] Before continuing the analysis, I wish to adopt the comments made by my colleague, Susheel Gupta, in Emmett v. Canada Revenue Agency, 2018 CHRT 23 [Emmett], which most notably reiterates the analysis of Member Cousineau in the decision rendered in Vik v. Finamore (No. 2), 2018 BCHRT 9. Without restating all of their comments, the use of the phrase “a prima facie case of discrimination”, when considering the burden that rests on the complainant’s shoulders in order to prove his or her case, is not helpful. It is a source of confusion and may lead to an erroneous interpretation of the analysis applicable in the human rights context. It may also give complainants the impression that it is the same as a finding of discrimination, when the CHRA provides, for example, that an employer can provide justification for the discrimination; if the discrimination is justified, there is simply no discrimination (see section 15 CHRA) Conversely, from the point of view of respondents, this phrase may give the impression of having discriminated even before they have had an opportunity to justify their actions or conduct.
[58] Similarly, I believe that Latin maxims put distance between the Tribunal and the public that it serves, which often includes people who have never had any legal training. They do nothing to promote an understanding of the Tribunal’s process and the applicable analysis. However, this does not mean that the analysis must change. The point here is that plain language should be favoured.
[59] As noted in Ontario Human Rights Commission v. Simpson-Sears, [1985] 2 SCR 536, at para. 28 [Simpson-Sears], in order for a complainant to meet the burden of proof for his or her case, the complainant must “show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent‑employer”.
[60] Under paragraph 7(b) of the CHRA, Mr. Brunskill must therefore demonstrate the following three aspects:
(1) that he has a characteristic protected by a prohibited ground of discrimination under the CHRA (in this case, disability);
(2) that he was subjected to adverse differential treatment in the course of employment (under subsection 7(b) CHRA);
(3) that the prohibited ground of discrimination (disability) was a factor in the adverse differential treatment suffered in the course of employment;
(see for example Moore v. British Columbia (Education), [2012] SCR 61, at para. 33 [Moore])
[61] As stated in Commission des droits de la personne et de la jeunesse v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 and 44 to 52 [Bombardier], the applicable standard is that of proof on a balance of probabilities, and it is not necessary to demonstrate that the prohibited ground of discrimination under the CHRA was the sole factor in the manifestation of the adverse impacts suffered by the complainant.
[62] Discrimination is not usually direct or intentional. As indicated in Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT) [Basi], direct proof of discrimination is not necessary, nor is it necessary to demonstrate an intention to discriminate (see also Bombardier, supra, at paras. 40 and 41). It is the Tribunal’s role to analyze the circumstances of the complaint to determine whether there is any subtle scent of discrimination.
[63] When the Tribunal analyzes circumstantial evidence, discrimination may be inferred when the evidence presented in support of the allegations of discrimination make such an inference more probable than other possible inferences or hypotheses (see Basi, supra; Chopra v. Canada (Department of National Health and Welfare), 2001 CanLII 8492 (CHRT)). Evidence of discrimination, even if circumstantial, must nevertheless be tangibly linked to the respondent’s impugned decision or conduct (see Bombardier, at para. 88).
[64] When the Tribunal must decide whether a complainant has met the burden of proof for his or her case, it must consider the evidence in its entirety. This also includes the evidence filed by the Respondent. In other words, evidence presented before the Tribunal by the Complainant and the Respondent should not be analyzed in silos. Consequently, the Tribunal may decide that Mr. Brunskill failed to meet the burden of proof for his case if (1) in the absence of a response from the Respondent, he fails to present sufficient evidence that meets the burden of proof for his case; or (2) the Respondent was able to present evidence that refutes the Complainant’s allegations and, consequently, prevents the latter from meeting the burden of proof for his case.
[65] Lastly, if the Complainant is able to meet the burden of proof for his case, in spite of any evidence that may have been presented by the Respondent to refute the allegations (which, in fact, constitutes the first part of the analysis), the Respondent subsequently has an opportunity to justify the discriminatory practice (or practices) by availing itself of a defence provided under the CHRA, more specifically, in section 15. If there is a justification, there is simply no discrimination.
[66] Paragraph 15(1)(a) of the CHRA provides that it is not a discriminatory practice if “any refusal, exclusion,