City of Ottawa v. Canada (Human Rights Commission)

City of Ottawa v. Canada (Human Rights Commission)
Court (s) Database
Federal Court Decisions
Date
2004-12-23
Neutral citation
2004 FC 1778
File numbers
T-144-03, T-8-03
Decision Content
Date: 20041223
Docket: T-8-03
T-144-03
Citation: 2004 FC 1778
BETWEEN:
CITY OF OTTAWA
Applicant
and
CANADA (HUMAN RIGHTS COMMISSION) and
FRANCINE DESORMEAUX
Respondents
AND:
CITY OF OTTAWA
Applicant
and
CANADA (HUMAN RIGHTS COMMISSION) and
ALAIN PARISIEN
Respondents
REASONS FOR ORDER
HENEGHAN J.
INTRODUCTION
[1] The City of Ottawa (the "Applicant") seeks judicial review of two decisions of the Canadian Human Rights Commission (the "Commission") arising from the termination of the employment of Ms. Francine Desormeaux and Mr. Alain Parisien. The decision concerning Ms. Desormeaux was released on January 14, 2003 and this application for judicial review was commenced on February 10, 2003. The decision in respect of Mr. Parisien was delivered on March 6, 2003 and this application for judicial review was filed on April 4, 2003.
BACKGROUND
i) The Parties
[2] The Applicant is the successor to the Regional Municipality of Ottawa-Carleton, pursuant to the City of Ottawa Act, 1999, S.O. 1999, c. 14, Schedule E and is legally responsible for the obligations of the Ottawa-Carleton Transportation Commission ("OC Transpo" or the "employer") formerly operated by the Regional Municipality of Ottawa-Carleton.
[3] OC Transpo operated a bus service for the City of Ottawa. The efficient operation of this public service requires regular and reliable attendance by the employees, in particular the bus operators.
[4] Mr. Ron Marcotte, a former superintendent with OC Transpo, provided some general background information about the operation of the service, including the assignment of operators to particular schedules and shifts, known as "booking periods". He also spoke about the "spare board" which is a panel of employees who are available to deal with intermittent absences. Persons assigned to the spare board will fill in for the employee who has called in sick, for example.
[5] Absenteeism was a problem, notably among the bus operators. Up to 1988, this was treated as part of performance and as a matter of discipline. A distinction was made between culpable absenteeism, that is due to causes within the control of an employee and non-culpable absenteeism, that is absenteeism arising from matters beyond an employee's control. The response to non-culpable absenteeism in the 1980's consisted of discussions, with notation to the employee's file, a letter and, in some cases, a suspension.
[6] The employer began to draw up an attendance management policy. This was called the "Attendance Management Program" (the "AMP") and was directed to the Transportation Operations Division, that is the bus operators and dispatchers. One reason for the implementation of the AMP was because the employer was not in a position to tolerate the level of absenteeism it was experiencing when the program was introduced.
[7] The Amalgamated Transport Union, Local 279 (the "Union") was also involved in developing the AMP.
[8] Mr. Marcotte also said that the AMP was directed at those employees with higher rates of absenteeism. He spoke of absenteeism rates between 10% and 25% .
[9] He acknowledged that perfect attendance, while desirable, was not an achievable objective. The employer sought regular and reliable attendance which he defined as follows:
So regular and reliable attendance would have been amount of missed time that did not trigger any action on our part, I guess, is the best way to say it, something that we can look at in the grand scheme of things and realise that this is not something we need to be necessarily concerned about.
[10] Ms. Desormeaux and Mr. Parisien were full-time bus operators for OC Transpo. Ms. Desormeaux was hired in March 1989 and dismissed on January 30, 1998, on the basis of chronic innocent absenteeism from her employment. Between the beginning of her employment and her dismissal, she missed 365 full days and 24 part days from work on the basis of a number of health related matters, including surgery. However, the main reason for her absences was attributed to migraine headaches, that is 57 full-time days and 11 part days of absence.
[11] Mr. Parisien was hired in November 1977. He was dismissed effective February 15, 1996. He had problems with attendance from the beginning of his employment and, for that reason, his probationary period was extended some months. There was a significant degree of absenteeism throughout his employment.
[12] Between January 1984 and February 1996, he had been absent 1,664 full days and 33 part days. He had suffered a number of stresses in both his private life and in the workplace, beginning in 1979. In May 1991, he was diagnosed as suffering from Post-Traumatic Stress Disorder ("PTSD"). Periodically, he was on disability leave and in receipt of workers' compensation benefits. In May 1994, his medical advisor said that he was ready to return to work, subject to a period of "ease back" or "work hardening" and he returned to work on June 2, 1994. However, in August 1994 he required hospitalization and was off work until he presented himself to return in February 1996.
[13] A version of the AMP dated June 6, 1995 was introduced in evidence. According to Mr. Marcotte, this document reflected the applicable principles concerning attendance management that were in effect in February 1996 at the time of Mr. Parisien's dismissal. Mr. Marcotte acknowledged that this version of the AMP was subsequently enhanced but the principles that were set out in the exhibit were those being used to address innocent absenteeism in late 1995 and early 1996. He described the purpose of the AMP as follows:
MR. BIRD
Q. If you had to boil down the entire program into a nutshell what was the overall purpose of the program with respect to employee attendance?
A. As I stated earlier, it was to reduce absenteeism, to optimize people's time at work, and to manage it in a fair process and ensure the employees' supervisors had a clear understanding of the expectations and consequences.
[14] Mr. Marcotte was not directly involved with Mr. Parisien but he was involved with maintaining his attendance records. He said that according to the records, Mr. Parisien was accommodated for his many absences by being assigned modified hours and modified duties, that is working as a shuttle bus operator. The employer sought progress for improved future attendance, based upon the information about progress that would be provided by the Occupational Health Unit.
[15] In Mr. Parisien's case, Mr. Marcotte described his rate of absenteeism as "extremely excessive atrocious, I guess would be a term with respect to just the amounts of time that were lost over the period of time for a variety of reasons." In his opinion, the only accommodation "that could have been considered was more absences." The employer relied on information received from the health services department and its own inferences drawn from the past history of absenteeism to attempt to predict future attendance. He also said that accommodating reduced hours for Mr. Parisien would amount to tolerating more absenteeism.
[16] Following her dismissal on January 30, 1998, Ms. Desormeaux followed the grievance procedure provided by the applicable Collective Agreement. That grievance ultimately led to an expedited arbitration pursuant to the Collective Agreement and the Canada Labour Code, R.S.C. 1985, c. L-2 before the Honourable George W. Adams, Q.C., on July 27, 1998. Arbitrator Adams upheld the dismissal on the grounds of innocent absenteeism and dismissed the grievance on August 5, 1998.
[17] On February 24, 1999, Ms. Desormeaux filed a complaint with the Commission, alleging that she had been discriminated against in the matter of her employment, contrary to the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act"). She framed her complaint as follows:
The Ottawa-Carleton Regional Transit Commission has discriminated against me by terminating my employment because of my disability (migraine headache, gallbladder attack, ovarian cysts, broken ankle, kidney stones, bronchitis, back injury, virus, stress) contrary to section 7 of the Canadian Human Rights Act.
[18] In April 2002, the complaint was referred to the Canadian Human Rights Tribunal (the "Tribunal") for a hearing.
[19] On February 15, 1996, Mr. Parisien was dismissed. He grieved his dismissal pursuant to the Collective Agreement and the Canada Labour Code, supra leading to an expedited arbitration before Arbitrator Adams. In a decision dated December 4, 1998, the grievance was dismissed. In the meantime, on September 20, 1996, Mr. Parisien submitted a complaint to the Commission, alleging discrimination contrary to section 7 of the Act and failure by OC Transpo to accommodate his disability.
[20] The Applicant brought a preliminary motion before the Commission, challenging its jurisdiction to entertain the two complaints. The basis of its argument was issue estoppel, specifically that the human rights complaints were exclusively within the jurisdiction of the Arbitrator, that the doctrine of res judicata barred the Tribunal from proceeding further, and finally, that cause of action estoppel applies. By decisions dated July 15, 2002 and July 19, 2002, the Tribunal dismissed the motions in the cases of Mr. Parisien and Ms. Desormeaux, respectively.
[21] The hearing of Ms. Desormeaux's complaint began on October 2, 2002. Five witnesses were called, that is Ms. Desormeaux, her family physician Dr. Anne Meehan, Mr. Paul Macdonell, former president of the Union, Ms. Lois Emburg, Manager of Human Rights and Employment Equity for the City of Ottawa, and Mr. Ron Marcotte former superintendent with OC Transpo.
[22] In its decision dated January 14, 2003, the Tribunal upheld the complaint on the basis that Ms. Desormeaux had established a prima facie case of discrimination on the basis of disability and that OC Transpo had failed to meet the third requirement of the duty of accommodation as identified by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin").
[23] The Tribunal ordered that the Applicant reinstate Ms. Desormeaux as a bus operator with the security and benefits that she would have received if her employment had not been terminated, as well as compensation for lost wages, without reduction, together with a gross-up for any tax liability resulting from that payment, special compensation in the amount of $4,000.00, and interest on all monies awarded.
[24] The hearing of Mr. Parisien's complaint began before the Tribunal on July 22, 2002. He testified as well as his attending psychiatrist Dr. Hamilton Sequeira, his attending psychologist Dr. David Erickson, Ms. Lois Emburg, Mr. Gerald Timlin, a former Director of Occupational Health, Safety and Benefits with OC Transpo, and Mr. Ron Marcotte, a former superintendent with OC Transpo.
[25] The Tribunal found that Mr. Parisien suffered from a disability, that is PTSD and that some of his other illnesses "may have been related to the PTSD." It found that the employer's decision to terminate his employment was influenced by his medical condition, and it found that the effect of these findings was discrimination in the matter of employment, contrary to section 7 of the Act.
[26] The Tribunal also found that, Mr. Parisien having established a prima facie case of discrimination, the employer had failed to meet the third part of the legal test of accommodation, as set out in Meiorin, supra. The employer had failed to show that it could not accommodate Mr. Parisien's disability without undue hardship to itself and further, expressed the view that tolerance of absenteeism could be an "acceptable type of accommodation".
[27] The Tribunal ordered that Mr. Parisien be reinstated as a bus operator, together with seniority and salary benefits of full-time employment, retroactive to the date of dismissal. It also ordered payment of damages to compensate for lost wages, adjusted for receipt of other income, statutory deductions and gross-up for the purpose of income tax liabilities. As well, the Tribunal ordered payment of $3,500.00 as special compensation for hurt feelings. Interest on these payments was also awarded.
APPLICANT'S SUBMISSIONS
i) Issue Estoppel
[28] The Applicant argues that the Tribunal, in each case, erred by failing to apply the principle of issue estoppel and, in the case of Ms. Desormeaux, ignoring the findings of fact made by Arbitrator Adams concerning the projected annual rate of absenteeism. The Applicant relies on the decisions in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, Nova Scotia (Human Rights Commission) v. Dural (2003), 234 D.L.R. (4th) 132 (N.S.C.A.) ("Kaiser"), Randhawa v. Everest & Jennings Canadian Ltd. (1996), 22 C.C.E.L. (2d) 19 (Ont. Gen. Div.), and Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267 (Ont. CA).
[29] The elements of issue estoppel, as discussed in Danyluk, supra at page 477, are as follows:
The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle, supra, at p. 254:
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[30] The Applicant submits that the question of issue estoppel challenges the jurisdiction of the Tribunal to hear these complaints. The basis for this argument is the decision made by Arbitrator Adams in the abbreviated arbitrations relating to the grievances filed by both Ms. Desormeaux and Mr. Parisien.
[31] The Applicant further argues that in the case of Ms. Desormeaux, the Tribunal committed a reviewable error by reaching a finding of fact that was different from the factual finding made by Arbitrator Adams, that is relating to the amount of time that Ms. Desormeaux would be absent during the year.
[32] The Applicant argues that conditions of issue estoppel are established. The same facts, issues and requested remedy were before the Arbitrator. He decided, on the basis of the facts and arguments before him, that the two complainants had been justly terminated from their employment on the ground of innocent absenteeism. In the case of Mr. Parisien, he found that there had been ample accommodation in the past but no improvement in the attendance rate.
[33] In the case of Ms. Desormeaux, Arbitrator Adams made the following finding on the issue of accommodation:
I am prepared to accept that migraine headaches can rise to the level of a permanent disability. However, there is insufficient evidence before me how the employer would reasonably accommodate the grievor's problem in this respect and, if accommodated, that this would bring her regular attendance up to an acceptable level.
[34] The Arbitrator, having found the dismissal to be justified, refused the relief sought by Mr. Parisien and Ms. Desormeaux, and dismissed their grievances. Neither complainant sought judicial review of these decisions and each proceeded with complaints pursuant to the Act.
ii) Prima Facie Case of Discrimination
[35] The Applicant also argues, in the alternative, that the Tribunal in each case erred in law in finding that a prima facie case of discrimination had been established. The Applicant here relies on the decisions in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 and Wong v. Royal Bank of Canada, [2001] C.H.R.D. 11.
[36] The Applicant submits that the fact that a person suffers from a disability does not lead to a finding of a prima facie case of discrimination. Section 7 speaks to discrimination with respect to an employment practice. According to the Applicant, there is a difference between terminating employment while a person is disabled and terminating employment because of a disability; see Berry v. Farm Meats Canada Ltd., [2001] 1 W.W.R. 670 (Alta. Q.B.).
[37] Further, the Applicant relies on the decision in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 where the Supreme Court of Canada distinguished between differential treatment in relation to personal characteristics, which will generally lead to a finding of discrimination, and differential treatment on the basis of an individual's merit and capabilities, which will rarely be so characterised.
[38] In the case of Mr. Parisien, the Applicant acknowledged that he was suffering from a disability, that is PTSD. However, having regard to his entire employment history, including the high rate of absenteeism, the problem was not due to the disability but rather his ability to attend work on a regular basis. The Applicant submits that this is a case of "innocent absenteeism", not a prima facie case of discrimination.
[39] In the case of Ms. Desormeaux, the Applicant argues that there is an initial question whether she suffered from a disability and submits that there was no evidence to support a finding that she suffered from migraine headaches and if so, that "such headaches constituted a disability". It points out that the Tribunal found that the migraine headaches would lead to an absence from work of less than 8 full days per year and questions how such a low rate of absenteeism could constitute a "disability" for the purpose of the Act.
[40] The Applicant submits that the Tribunal erred in law in accepting the evidence of Dr. Meehan as expert evidence for the purpose of diagnosing migraine headaches, noting that a neurologist, Dr. H. Rabinovitch, had provided a tentative diagnosis only in 1990 about migraine headaches and he was not called as a witness. The Commission bore the burden of establishing a prima facie case of discrimination and in that regard, had first to establish that Ms. Desormeaux suffered from a disability. The Applicant submits that it failed to do so.
[41] The Applicant notes that in both cases, the attending physicians to Ms. Desormeaux and Mr. Parisien provided written opinions that their respective patients were fully capable of performing their duties as bus operators, subject to the proviso in relation to Mr. Parisien that he would require a period of "work hardening". That provision was not raised in relation to Ms. Desormeaux.
[42] The Applicant also argues, in relation to Mr. Parisien, that the Tribunal erroneously relied on evidence from Dr. Sequeira concerning a connection between the various illnesses suffered by Mr. Parisien and the PTSD. Dr. Sequeira had said that Mr. Parisien was fit to work as a bus operator but he did not say that there was a reasonable prognosis for further attendance. Neither Mr. Parisien nor his medical advisors ever suggested that he needed to perform a different job.
[43] The Applicant relies on the decision in Berry v. Farm Meats Canada Ltd., supra, in support of its argument that the Tribunal erred in finding a link between the impugned action, that is termination, and the disability. It submits that the Tribunal erred in finding a disability in either case.
iii) Accommodation
[44] Alternatively, the Applicant advances a further argument relative to the issue of accommodation. It submits that the Tribunal erred in finding that the Applicant had failed to accommodate its two employees and that toleration of absenteeism was, in the circumstances of the Applicant, a reasonable form of accommodation. The Applicant argues that this is an error of law and relies on the decision in Bonner v. Ontario (Ministry of Health) (1992), 16 C.H.R.R. D/485 (Ont. Bd. Inq.) and Scheuneman v. Canada (Attorney General) (2000), 266 N.R. 154 (F.C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 9.
[45] The Applicant also submits that tolerating absenteeism is an accommodation that the facts in these cases do not support as being reasonably necessary. The facts show that the complainants were good employees when they came to work; the problem was in having them show up for work on a reasonably regular basis.
[46] In response to Ms. Desormeaux, the Applicant argues that the Tribunal erred in law by finding that it should have obtained more medical evidence to address her inability to show up for work. Relying on the decision in Oak Bay Marina Ltd. v. British Columbia (Human Rights Commission) (2002), 217 D.L.R. (4th) 747 (B.C.C.A.), the Applicant submits that it did not need further medical information, in light of the letter provided by Dr. Meehan on October 16, 1997. Dr. Meehan had advised that Mrs. Desormeaux was fully capable of performing the duties of her job but she gave no projections about improving attendance in the future. The Applicant argues that it was entitled to rely on the information available to it, including the complainant's past history and current medical assessment, and its own observations.
COMMISSION'S SUBMISSIONS
[47] The Commission submits that the appropriate standard of review is correctness in respect of questions of law, reasonableness simpliciter in respect of questions of mixed fact and law, and patent unreasonableness in respect of questions of fact. In this regard, it relies on the decision in International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster, [2002] 2 F.C. 430 (T.D.).
i) Issue Estoppel
[48] The Commission submits that the question of issue estoppel was properly decided by the Tribunal in its decision upon the preliminary motion brought by the Applicant. The Tribunal there decided that issue estoppel did not lie because neither the same question nor the same parties were involved in the abbreviated arbitration proceedings conducted by Arbitrator Adams. The Tribunal found that the arbitration decision was final but that met only one of the three pre-requisites discussed by the Supreme Court of Canada in Danyluk, supra.
[49] The Commission acknowledges that a tribunal has a discretion to exercise even if the three conditions are met. In this case, the Tribunal found that only one condition was met and ruled that issue estoppel, including cause of action estoppel, did not arise. The Commission argues that this decision should stand.
ii) Prima Facie Case of Discrimination
[50] The Commission describes the issue of its burden of showing a prima facie case of discrimination as a question of mixed law and fact, attracting the standard of review of reasonableness simpliciter. It relies on the decision in O'Malley, supra at 558. According to the Commission, the issue under the Act is proof of a prima facie case of a "discriminatory practice" as described in sections 3 and 7, rather than "discrimination" as addressed in section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter").
[51] Relying on Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 (F.C.A.) at D/15, the Commission argues that it is not required that discriminatory considerations be the sole reason for a complaint to succeed. It is sufficient that a complainant's disability be a factor in the decision to terminate.
[52] The Commission argues that Mr. Parisien and Ms. Desormeaux suffered differential treatment, that is loss of employment, as the result of disability.
[53] In the case of Mr. Parisien, the Commission submits that the Tribunal did not err by finding that the appropriate comparator for showing discriminatory treatment was employees who had reliable and reasonable attendance. The Commission distinguishes the test for a prima facie case, as set out in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665 ("City of Montréal") relied on by the Applicant, on the ground that that case dealt with the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12.
[54] The Commission argues that the vast majority of Mr. Parisien's absences from work were due to his disability "which included post-traumatic stress disorder and major depression". Further, the Commission argues that no comparison is required since Mr. Parisien was dismissed on the basis of absenteeism and this absenteeism was directly the result of his disability.
[55] In the event that a comparator group should be identified, the Commission submits that the comparator group should be with non-disabled employees.
[56] The Commission argues that the Tribunal did not err in finding that the employer had acted in a discriminatory manner by considering Mr. Parisien's entire work history and record of absenteeism.
[57] The Commission further argues that the Tribunal did not err in relying on expert evidence about interconnection of Mr. Parisien's illnesses when that information was not within the knowledge of the witness nor his accepted expertise.
iii) Accommodation
[58] Finally, the Commission submits that the Tribunal did not err in the manner it dealt with the duty to accommodate. It argues that the Tribunal did not consider tolerance of absenteeism to be the only form of accommodation. Further, the Tribunal found that the employer had failed to consider alternative employment for Mr. Parisien and accordingly, breached the duty of accommodation. In the case of Ms. Desormeaux, the Tribunal estimated her future absences based solely on the absences that would be migraine-related. It concluded that these absences would fall below the number of days necessary to render her attendance subject to the AMP. Accordingly, such a level would not constitute undue hardship to the employer.
SUBMISSIONS OF THE COMPLAINANTS
[59] Mr. Parisien made brief submissions, as he was entitled to do. First, he argued that the meaning of "accommodation" in cases dealing with innocent absenteeism is very different from the meaning to be given in matters arising under the Act.
[60] Consequently, the Tribunal correctly decided that issue estoppel did not apply since the analysis of accommodation in relation to innocent absenteeism, which is a disability, is radically different from the accommodation analysis required pursuant to human rights legislation and, in particular, the Act.
[61] Ms. Desormeaux did not present any independent submissions.
DISCUSSION
[62] These applications for judicial review relate to the prohibitions in the Act against adverse discrimination in relation to employment. Sections 3, 7 and 25 of the Act are relevant and provide as follows:
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
(2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex.
3. (1) Pour l'application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience.
(2) Une distinction fondée sur la grossesse ou l'accouchement est réputée être fondée sur le sexe.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_:
a) de refuser d'employer ou de continuer d'employer un individu;
b) de le défavoriser en cours d'emploi.
enfants;
25. In this Act,
...
"disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug;
...
25. Les définitions qui suivent s'appliquent à la présente loi.
« déficience » Déficience physique ou mentale, qu'elle soit présente ou passée, y compris le défigurement ainsi que la dépendance, présente ou passée, envers l'alcool ou la drogue.
...
[63] The decisions of the Tribunal here under review raise questions about the applicability of the principle of issue estoppel, as well as whether a prima facie case of discrimination was established and whether the test of accommodation was met by the Applicant.
[64] Both parties made submissions about the applicable standard of review for these different issues. The applicable standard in respect of decisions made under the Act are as stated by Justice Gibson in Oster, supra at page 445:
Applying the guidance provided by the Supreme Court in Pushpanathan, and more recently in Baker v. Canada (Minister of Citizenship and Immigration), I am satisfied that the standard of review of decisions of the Tribunal in this matter is correctness in respect of questions of law, reasonableness simpliciter in respect of questions of mixed law and fact, and patent unreasonableness in respect of "fact-finding and adjudication in a human rights context". On the facts of this matter, I find the standard of review of questions of law and questions of fact-finding and adjudication in a human rights context by the Tribunal not to have been modified by recent decisions of the Supreme Court of Canada or of the Federal Court Trial Division regarding the pragmatic and functional approach to the determination of standard of review.
i) Issue Estoppel
[65] The applicability of the doctrine of issue estoppel is reviewable as a matter of law, that is on a standard of correctness.
[66] The Applicant argues that the Tribunal erred by concluding that issue estoppel did not apply to the adjudication of these two complaints, in light of the decisions made by Arbitrator Adams in arbitration proceedings before him. In the application for judicial review filed in respect of Ms. Desormeaux, the Applicant seeks judicial review of the two decisions, as follows:
1. The applicant, the City of Ottawa, seeks judicial review in respect of the Canadian Human Rights Tribunal (the "Tribunal") decision dated January 14, 2003 and decision on a preliminary motion dated July 19, 2002.
[67] I see difficulty with this request. Generally, only one decision may be the subject of an application for judicial review, pursuant to section 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. As well, such application is to be commenced within thirty days of the decision in question. Section 18.1(2) provides as follows:
18.1 ...
(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
18.1 ...
(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Cour fédérale peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.
[68] Although the Federal Courts Act, supra does not say that an application for judicial review is available only in respect of final decisions, that is the general rule. In that regard, I refer to Cannon v. Canada (Assistant Commissioner, RCMP), [1998] 2 F.C. 104 (T.D.). However, when an interlocutory decision may be potentially dispositive of the matter, the time for seeking judicial review is thirty days after the decision; see Citizens' Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment) et al. (1999), 163 F.T.R. 36 (T.D.).
[69] In the present case, the ruling on issue estoppel was made in July 2002 and the Applicant did not seek judicial review but carried on with the hearing of the complaints on the merits. The Applicant is now advancing arguments why the doctrine of issue estoppel should apply and is seeking, effectively, review of the Tribunal's decision on the preliminary motion. In my opinion, it is too late now to challenge that decision and I will not address those arguments.
ii) Prima Facie Case of Discrimination
[70] With regard to the standards of review applicable to decisions of the Tribunal under the Act, as adopted by Gibson J. in Oster, supra, I am satisfied that the issue of prima facie discrimination is a question of mixed fact and law and subject to review on the standard of reasonableness simpliciter.
[71] The precise meaning of that standard was addressed by the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at page 270:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
[72] The Applicant submits that the Tribunal erred, in each case, by finding that a prima facie case had been established. The decision in O'Malley, supra provides guidance for what is required of a complainant to establish a prima facie case of discrimination under the Act at page 558:
... The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer. ...
[73] More recently, the Supreme Court of Canada in City of Montréal, supra clarified the content of the claimant's burden in establishing a prima facie case of discrimination at page 701 as follows:
... in most cases, the applicants will have the burden of proving (1) the existence of a distinction, exclusion or preference, in this case the dismissal and the refusal to hire; (2) that the distinction, exclusion or preference is based on a ground enumerated in s. 10, in this case handicap, and (3) that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal exercise of human rights and freedoms. ...
[74] The starting point in assessing whether prima facie discrimination has been established is therefore a consideration of the presence of differential treatment. Accordingly, whether the dismissals constituted differential treatment requires that the appropriate comparator group be defined; see Andrews, supra at page 164.
[75] In my opinion there are problems with the comparator group identified by the Tribunal. In each case, the Tribunal found the comparator group to be all employees. People with attendance problems are to be compared, in the Tribunal's opinion, with those employees who had no attendance problems.
[76] The Applicant agrees that the comparator group should be those persons, able-bodied as well as those with disabilities, who are subject to the AMP because of problems with regular attendance.
[77] On this point, Mr. Parisien made independent submissions and argued that the comparator group should be only those employees with disabilities and who have attendance problems.
[78] In the case of Ms. Desormeaux, the Applicant and the Commission adopted the positions set forth above.
[79] In my opinion, the Tribunal erred in its identification of the employee class without attendance problems as the comparator group. If attendance is the issue and absenteeism itself has not been identified as a disability, then the comparator group should reflect similarly situated individuals. In my opinion, the Tribunal erred in choosing the entire group of employees as constituting the comparator group. This was not a reasonable choice. Obviously, the only persons affected by a program to monitor attendance are those persons having attendance problems. Such a program would be irrelevant for employees who do not manifest attendance problems.
[80] In my view, the choice of all disabled persons subject to the AMP is also inappropriate. That would mean creating a different standard for disabled persons for no purpose except to monitor attendance. That would be tantamount to distinguishing an entire group on the basis of disability.
[81] I agree with the Applicant that the Tribunal did not identify the correct comparator group and the appropriate comparator group should have been those with attendance problems, both able-bodied and disabled. That is an impersonal factor and according to the Tribunal, the requirement for regular attendance is a rational legitimate component of the employer's employment policy.
[82] However, having regard to the applicable standard of review, that is reasonableness simpliciter, I am not persuaded that there is a basis for judicial intervention on this issue. I now turn to a consideration of whether such differential treatment, in this case the dismissal of Mr. Parisien and Ms. Desormeaux, was based on an enumerated ground, that is a disability.
[83] In the case of Ms. Desormeaux, the Applicant says that the Tribunal erred in finding that the complainant suffered from migraine headaches, in the absence of evidence from a qualified witness and further, that Ms. Desormeaux had failed to show that the employer knew or ought to have known that she was suffering from a disability that required accommodation.
[84] In respect of Mr. Parisien, their argument is that the Tribunal erred in accepting the evidence of Dr. Sequeira as opinion, expert evidence in the matter of an interrelationship between the diagnosed condition of PTSD and the other ailments suffered by Mr. Parisien over the years.
[85] I agree with the Applicant's submissions regarding Ms. Desormeaux. The Tribunal accepted the evidence of Dr. Meehan as the basis for finding that she suffered from migraine headaches to the extent of constituting a disability. Dr. Meehan, a family practice physician was qualified as an expert for the limited purpose of addressing the state of Ms. Desormeaux's health. According to the transcript of the proceedings before the Tribunal, Dr. Meehan was initially tendered as Ms. Desormeaux's treating physician, however upon completion of her testimony before the Tribunal, the question arose as to whether she should be qualified as an expert. On consent, Dr. Meehan was qualified as an expert in family medicine with the proviso that she is not a neurologist.
[86] The evidence shows that Ms. Desormeaux had consulted a neurologist in the early 1990's and Dr. Rabinovitch made a tentative diagnosis of migraine headaches. However, he was not a witness and his report, dated 1990, does not support the opinions expressed by Dr. Meehan. In my opinion, it is unreasonable to find that the opinion of Dr. Meehan would carry more weight than the opinion o