Stringer v. Canada (Attorney General)

Stringer v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2013-07-02
Neutral citation
2013 FC 735
File numbers
T-633-11
Decision Content
Federal Court
Cour fédérale
Date: 20130702
Docket: T-633-11
Citation: 2013 FC 735
Ottawa, Ontario, July 2, 2013
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
JEFFREY STRINGER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-1657-11
AND BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
JEFFREY STRINGER
Respondent
Docket: T-1669-11
AND BETWEEN:
JEFFREY STRINGER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENTS AND JUDGMENTS
[1] These reasons for judgments and judgments are for three judicial reviews of three components of a single underlying proceeding, a decision of an adjudicator (the adjudicator) of the Public Service Labour Relations Board (PSLRB or the Board). The first judicial review (Court file T-633-11) challenges the arbitrator’s finding that Jeffrey Stringer’s (the grievor) termination was not a result of discrimination on the basis of disability. The second judicial review (Court file T-1657-11) is brought by the Attorney General of Canada (the AGC) and challenges the adjudicator’s awarding of interest on damages as part of the remedy for a failure to accommodate. The third judicial review (Court file T-1669-11) is brought by the grievor challenging the adjudicator’s failure to grant a systemic remedy for the failure to accommodate.
[2] In Court file T-633-11 (the merits or termination judicial review), the grievor seeks an order setting aside part of the adjudicator’s decision which dismissed the grievance concerning termination and the Court directing that the grievance be sustained. In the alternative, the grievor asks that the matter be returned to a different adjudicator for redetermination. Both parties seek costs.
[3] In Court file T-1657-11 (the interest judicial review), the AGC seeks an order setting aside the part of the adjudicator’s decision ordering the employer to pay interest on the sums awarded. Both parties seek costs.
[4] In Court file T-1669-11 (the systemic remedy judicial review), the grievor seeks an order setting aside the adjudicator’s decision and returning the matter to a different adjudicator of the PSLRB for redetermination consistent with the appropriate human rights principles with instructions from this Court. Both parties seek costs.
Background
[5] The grievor, who was born hearing impaired, was hired by the Department of National Defence (the employer), as a term employee. His first language is American Sign Language (ASL) and English is his second language. He is functional in written English but has difficulty understanding English terms that do not exist in ASL.
[6] The grievor has a construction engineering technician diploma and was hired on April 28, 2003, as a draftsperson at Canadian Forces Base Trenton (CFB Trenton). The employer was aware the grievor was deaf, as he was hired under employment equity. His contract was renewed eight times with no breaks in service and was set to expire on April 28, 2006. He was terminated four days before reaching the three year mark, at which point he would have been entitled to indeterminate status.
[7] The grievor’s position was classified at the DD-03 group and level, and his work at CFB Trenton involved conducting on-site inspections, taking measurements of existing buildings and facilities, developing drawings in accordance with planning criteria and design standards to suit project requirements, assisting in site surveying support services, assist staff with computer-aided design and drafting (CADD) software applications, producing sets of drawings required by clients, producing blueprints and copies on large format printers and copiers and updating existing electronic manual drawings using CADD applications.
[8] The grievor’s daily work was supervised by Evan Hendry, classified at the DD-05 group and level. Mr. Hendry reported to Frederick Lord. Mr. Hendry and Mr. Lord assessed the grievor’s performance in two reports. The first report in 2004 indicated the grievor met all the performance related factors but needed to improve his flexibility and adaptability. The second report in 2005 indicated the grievor met all performance related factors but needed to more clearly express ideas and information in writing.
[9] In January 2006, Mr. Lord decided to have the grievor’s written English skills evaluated so that he could be provided with proper training. The training never took place because the grievor was terminated on April 24, 2006.
[10] In 2008, the grievor applied for a position at Canadian Forces Base Petawawa. He was not hired in part because of negative employment references from CFB Trenton. Mr. Lord admitted the references were not consistent with the two performance review reports.
[11] The grievor made several requests for ASL interpretation through his time working for the employer. In November 2002, the grievor attended a meeting discussing the formalities of his hiring and was refused an interpreter to help him better understand the documents he was signing. The grievor requested an interpreter for discussions of both performance reviews and both requests were denied.
[12] Interpretation was provided for some meetings and training during 2005 and 2006. It was agreed that interpretation would be provided for monthly meetings with the grievor starting in February 2006. The February meeting took place but those scheduled for March, April, May and June 2006 were cancelled. Shortly after hiring him, the employer asked the grievor to attend monthly safety meetings. In April 2003, the grievor asked for interpretation at these meetings but only received written and video material. On November 28, 2005, there was a safety meeting where the grievor asked for interpretation and left the meeting when he did not receive it.
[13] Mr. Lord testified that he was not aware of the employer’s duty to accommodate when the grievor was hired and had not read the employer’s policy on accommodation. He did not know how to hire an ASL interpreter or what it involved. No comprehensive discussions took place with the grievor regarding accommodation. The employer provided some ASL training for the grievor’s colleagues but it was very basic and they continued to communicate with each other in writing.
[14] In 2003, the employer provided a teletypewriter and a strobe light for fire alarms, as well as an identification card for the grievor to present to other employees when entering a building. In 2005, Mr. Hendry requested that he and the grievor be provided a Blackberry; Mr. Lord testified that text messaging was not available at CFB Trenton at that time, but Blackberries were ultimately provided in 2006. When the grievor asked for an interpreter to help him understand the Blackberry instruction booklet, Mr. Lord refused and told him to “read the damn [Blackberry] manual”.
[15] On January 16, 2006, the grievor asked Mr. Lord for a meeting to discuss work related topics, with an interpreter present. The meeting took place on January 31st with the grievor, Mr. Lord, a union representative, an employment equity representative, a human resources advisor and Major D. A. Scherr. Major Scherr stated that English is a requirement for the grievor’s position and that the grievor had stated that he had knowledge of the English language when he signed his first employment contract. Major Scherr suggested the grievor take English language training and that the employer would pay for it. When the grievor expressed that he occasionally needed interpretation, the employer agreed to accommodate him but felt that employment equity accommodations “should not be nit-picky”. Major Scherr informed the grievor that he would provide interpretation services for a monthly meeting, but that this measure was not meant “to be a crutch” for the grievor instead of improving his English skills.
[16] The grievor testified that he felt hurt, insulted and discriminated against by what the employer’s representative said at the January 31, 2006 meeting. His English skills had never negatively affected his work and suddenly it was becoming an issue for the employer. The grievor believed that he was not “nit-picky” as he had simply requested an interpreter and he felt that the employer was “sick of it”. When the employer referred to using interpretation as a crutch, the grievor felt that the floor had “dropped beneath” him. The grievor also testified that he felt humiliated or personally diminished when his employer refused to accommodate him during the course of his employment.
[17] The grievor testified that Mr. Lord told him he would gain indeterminate status at the end of his contract on April 28, 2006 and that he did not have to apply for a competition. This was confirmed in the minutes of the January 31, 2006 meeting.
[18] CFB Trenton was experiencing problems in its Salary and Wage Envelope (SWE) budget. Minutes from a December 2005 meeting showed a $1.2 million shortfall for the fiscal year 2005 to 2006 and a $1.6 million shortfall forecast for the fiscal year 2006 to 2007. Lieutenant-Colonel Darwin Gould made the decision to terminate the grievor’s employment contract. The employer did not have enough funds to keep all term employees and had to prioritize. Major Scherr informed Lieutenant-Colonel Gould that the grievor’s position was not a high priority for CFB Trenton. Lieutenant-Colonel Gould agreed and decided to prematurely end the grievor’s contract. He testified that this was the only reason he decided to end the grievor’s contract and that nothing else influenced his decision. He acknowledged that the contract was shortened to ensure the grievor did not become an indeterminate employee and that without the fiscal restraint, the grievor would have in fact become an indeterminate employee. After the employer made the decision that the grievor’s position was not a priority, it did not try to find him another position.
[19] The grievor brought evidence that two employees hired under employment equity were made indeterminate employees around the same time as his contract ended; one in an AS-04 position and the other in a CR-04 position.
[20] The employer brought evidence outlining its SWE shortage. Lieutenant-Colonel Gould explained that on June 2, 2005, casual and term positions were given points based on their priority. The positions were ranked from 750 points for the highest priority and 175 for the lowest. The grievor’s position was assigned 350 points. No evidence was adduced as to what happened to the incumbents of the positions that were assigned 350 points or less.
[21] The grievor adduced in evidence a list of positions that were vacant in 2006 at CFB Trenton, with the names of employees hired to fill those vacancies and the hiring dates. The list included two DD-04 positions, but does not indicate if those positions were filled or left vacant.
[22] The grievor also adduced in evidence two job advertisement posters from Service Canada for work with Adecco, a placement agency that regularly provided staff to CFB Trenton. The first was for a draftsperson and contained a work description similar to the grievor’s position. The second was for two surveying engineers partly comparable to the grievor’s position. The closing dates for both posters were in 2007.
[23] The grievor also adduced in evidence a job poster for a Geographic Information Systems (GIS) technologist, classified EG-03, at CFB Trenton. It had no closing date but had been updated on June 9, 2008. There were significant differences from the grievor’s job. The grievor also adduced a list of positions in civil engineering that were advertised or listed between 2001 and 2009 at the Schools of Architecture and Building Sciences of Loyalist College. The list included a draftsperson, a GIS technician and a Global Positioning System (GPS) technician at CFB Trenton.
[24] During the grievor’s employment, the employer hired two extra draftspersons from Adecco to do the same work, one from October 2005 to February 2006 and one from February 2006 to April 2006.
[25] Mr. Lord testified that nobody was hired to replace the grievor after he was terminated in April 2006. The position was left vacant. The work that was being done before 2006 never disappeared; it simply piled up. When an urgent need arose to update measurements, building plans or drawings, the work was done by other employees with the required skills.
The Merits Decision
[26] The adjudicator’s decision, cited as 2011 PSLRB 33 and dated March 14, 2011, began by noting that the grievor’s single grievance had been referred twice to an adjudicator under separate provisions of the Public Service Labour Relations Act, SC 2003, c 22, s 2 (the PSLRA), first as a violation of the no-discrimination clause of the collective agreement and second as a termination grievance under subparagraph 209(1)(c)(i) of the PSLRA. Both referrals were received by the Board on March 3, 2008. The Canadian Human Rights Commission (the CHRC) had been given notice of the matters but did not make submissions.
[27] The adjudicator summarized the evidence before him, much of which has been repeated in the section above. The adjudicator then summarized the submissions of both parties. The grievor’s position was that the employer failed to accommodate him and that discrimination was a factor in his termination. The employer’s position was that it had acted in good faith and provided several accommodations to the grievor during his employment and that the termination was due to financial constraints.
[28] The adjudicator identified the two issues to be decided as: (1) whether the employer violated the no-discrimination clause of the collective agreement by discriminating against the grievor; and (2) the legality of the termination.
[29] On the first issue, the employer had argued that adjudicators of the Board did not have jurisdiction over human rights issues from before the PSLRA’s coming into force on April 1, 2005. However, the adjudicator found that since the no-discrimination clause had existed in the previous collective agreement that governed the grievor from the day he was hired, the adjudicator had jurisdiction to determine whether it had been violated. The adjudicator also found that although the collective agreement required a grievance to be filed 25 days after the grievor became aware of the impugned action, the Canadian Human Rights Act, RSC 1985, c H-6 (the CHRA) had no such time limit and he was required to interpret the CHRA in parallel with the collective agreement.
[30] The adjudicator took judicial notice that hearing impairment is a disability under the CHRA and the collective agreement and that the employer had a duty to take reasonable steps to accommodate such work limitations short of undue hardship. The employer knew the grievor was hearing impaired and therefore in those instances where the grievor asked for accommodation and the employer refused, the employer had the onus of proving undue hardship.
[31] The adjudicator found that the employer had discriminated against the grievor. The requests for accommodation made were made in advance and were legitimate. The employer did not advance evidence that providing interpretation would have been an undue hardship and the adjudicator had no doubt the employer could have afforded the cost of $40 to $50 an hour. The grievor was prevented from fully participating in work related activities and was not treated with the dignity to which he was entitled.
[32] It was not clear to the adjudicator that the employer’s 2006 concerns were truly motivated by the grievor’s English skills or what level of English would have been acceptable to the employer. The grievor fully satisfied the requirements of his job but the employer decided to ask more of him so that he would be less of a burden to accommodate. This is basically wrong. Furthermore, the use of expressions like “should not be nit-picky” or not meant “to be a crutch” is completely unacceptable when referring to an accommodation request.
[33] The adjudicator found that generally speaking, the employer also failed in its duty to accommodate by not providing any training, guidance or assistance to its managers at CFB Trenton about what needed to be done, how to do it and where to get assistance to accommodate the grievor. The adjudicator was almost certain that the grievor was not the first hearing impaired person hired by the employer. The grievor was hired through employment equity. The adjudicator noted that it was not abnormal that Mr. Lord did not know the details of how to accommodate him. However, it was abnormal that no employer experts from employment equity or human resources were assigned to train, sensitize, educate and help Mr. Lord and Major Scherr with their obligation to accommodate the grievor and with what that obligation involved and meant. That might have made a huge difference.
[34] The adjudicator turned to the issue of whether the employer’s decision to terminate the grievor was discriminatory. The adjudicator found that while he had already concluded that the employer discriminated against the grievor during his employment, the evidence adduced at the hearing led him to conclude that the decision to terminate the grievor was based solely on financial motives.
[35] The adjudicator found it was clear that the employer promised the grievor he would be rolled over to indeterminate status and that this promise was not kept. However, while that might be immoral, it is not evidence of discrimination or an illegal action.
[36] The employer knew beginning in 2005 that there was a problem with the SWE budget. In June 2005, the employer assigned points to each position and the grievor’s position received 350 points, not a high priority score. The adjudicator recited the timeline of the grievor’s termination and Lieutenant-Colonel Gould’s testimony regarding his decision. The adjudicator noted that the position was not filled after the grievor’s termination. The job posters presented by the grievor were for positions not classified DD-03 and did not encompass the grievor’s duties. The grievor alleged in his argument that Mr. Lord testified that he had been in the process of replacing the grievor, but the adjudicator did not hear Mr. Lord say that. Even if he had testified that in July 2010 he was in the process of replacing the grievor, the adjudicator would not deduce from that that the grievor’s termination was illegal. The employer’s needs and its SWE budget could have evolved over a four year period.
[37] The adjudicator concluded that the evidence adduced at the hearing led him to believe that the employer did nothing illegal by terminating the grievor’s contract. He understood why the grievor would perceive the employer’s behaviour as unfair, but did not believe discrimination had played a role in the termination decision.
[38] The adjudicator ordered that the grievance was allowed in part, that the employer had discriminated against the grievor on several occasions and that the parties had 60 days to come to an agreement on the remedy. If the parties did not agree, a hearing would take place. The part of the grievance dealing with termination was rejected.
Issues in the Merits Judicial Review
[39] The grievor, who is the applicant on this judicial review, raises the following issues:
1. What is the appropriate standard of review?
2. Did the adjudicator err in law by failing to apply the proper human rights principles to determine whether the employer terminated Mr. Stringer’s employment for discriminatory reasons?
[40] I would rephrase the issues as follows:
1. What is the appropriate standard of review?
2. Was the adjudicator’s decision on the termination unreasonable?
Grievor’s Written Submissions on the Merits Judicial Review
[41] The grievor argues that the Supreme Court has indicated that the standard of review is first to be determined by reference to existing case law and only by an analysis of relevant factors where the courts have not determined the standard applicable to the question at issue. This Court has held that the legal approach used by the Canadian Human Rights Tribunal (the CHRT) used to determine whether an employer accommodated a complainant’s disability is a question of law reviewable for correctness. Although there is a factual context, the legal component is separate. The adjudicator was required to have regard for the relevant principles of human rights law.
[42] The grievor argues that although the PSLRA has a privative clause and the underlying legislative purpose is to efficiently settle workplace disputes, the question of law at issue involves the application of quasi-constitutional human rights legislation and therefore has jurisprudential value beyond the federal labour relations regime. The fact that the PSLRA provides the CHRC with standing, presumes a lack of expertise by the adjudicator and provides public oversight. Adjudicators have only recently been given the authority to interpret and apply human rights legislation and human rights issues are outside their home statute, which deals with labour relations.
[43] The grievor argues the adjudicator failed to apply the applicable human rights principles. Direct evidence of discrimination is rare, so human rights jurisprudence has developed a legal framework for assessing evidence in the entire context.
[44] The complainant first bears the onus of establishing a prima facie case of discrimination, where the allegations made are sufficient if believed to justify a verdict in the complainant’s favour in the absence of an answer from the employer. The onus then shifts to the employer to provide a reasonable explanation. The final evidentiary burden rests with the complainant to demonstrate that the employer’s explanation was pretextual and the employer’s action had a discriminatory component.
[45] A tribunal should consider all the circumstances in determining whether there exists the subtle scent of discrimination. Intent is not a necessary element in proving discrimination occurred. A finding of discrimination requires only that a discriminating factor influenced the employer’s actions. An employer’s stated basis for any particular action, even if supported by the evidence, is never a sufficient reason to deny a discrimination claim. Even though financial reasons were identified as a reason for termination, it is entirely possible that discrimination also influenced the decision. The adjudicator did not question whether there were other reasons for the termination.
[46] Mr. Lord and Major Scherr were both found to have discriminated against the grievor, but the adjudicator did not analyze the extent of their influence on Lieutenant-Colonel Gould’s decision to terminate. The fact that Lieutenant-Colonel Gould had identified financial concerns is distinct from the information used to determine whether the grievor’s position was a priority. The adjudicator relied on the financial aspect without ever inquiring into whether the priority decision was influenced by discrimination.
[47] The adjudicator found that Major Scherr made the recommendation to terminate shortly after he had engaged in and condoned discriminatory conduct toward the grievor. There was no attempt to connect these events. The grievor invited the adjudicator to draw an adverse inference from the employer’s failure to call Major Scherr as a witness. His advice to Lieutenant-Colonel Gould was the basis for the termination. His testimony would have been crucial to explaining the reasons for terminating and Lieutenant-Colonel Gould could recall few particulars. It was clear that Mr. Lord exhibited intolerant behaviour towards the grievor due to his disability, including negative comments, downgrading performance appraisals and giving an inaccurate reference after the employment ended. The arbitrator improperly only considered Lieutenant-Colonel Gould’s decision in isolation.
[48] The grievor argued that the adjudicator had to consider all the evidence to determine whether a pretextual explanation existed in his circumstances. No such analysis was conducted. It should have raised a red flag for the adjudicator that the employer maintained that the grievor had been hired for a specific project but during the hearing only tendered evidence of financial constraint.
[49] The employer promised the grievor indeterminate employment after it was aware of its financial problems. There was every indication he would not be affected by the financial problems. The employer subsequently relied on these concerns, making it a classic example of pretext. The grievor was initially hired based on employment equity considerations and other persons whose positions were of the same priority were given indeterminate status while the grievor was denied this benefit without justification.
[50] At the January 31, 2006 meeting, it was decided the grievor would have to complete English language training by the end of 2006. This is inconsistent with a cost based reason for terminating the grievor’s employment. There was no explanation why management began to take issue with the grievor’s performance after eight contract renewals. The adjudicator did not address these issues.
[51] The duties performed by the grievor continued to be necessary and were performed by others after he was terminated. The employer’s documents characterize the position as much needed, a fact inconsistent with the low priority rating. In cross-examination, Mr. Lord was reluctant to concede the full scope of the grievor’s duties. The adjudicator took note of the job openings, but failed to mention any of the other evidence that these duties continued after termination.
[52] The grievor’s submissions maintained that Mr. Lord had testified that the employer was in the process of staffing his position at the time of the hearing. While the AGC has filed an affidavit claiming otherwise, the very manner in which the adjudicator handled this evidentiary dispute illustrates the inappropriate approach to the alleged discrimination. The fact that the adjudicator held that even if the position was being filled in 2010, it did not amount to discrimination shows that the adjudicator was only looking for direct evidence instead of the subtle scent of discrimination. This flawed approach merits this Court’s intervention.
Attorney General of Canada’s Written Submissions on the Merits Judicial Review
[53] The AGC submits that reasonableness is the appropriate standard of review for two reasons. First, the Supreme Court has made clear that reasonableness is appropriate for dealing with questions of facts and questions dealing with legal issues that cannot be easily separated from the factual issues.
[54] Second, should a standard of review analysis be conducted, the result would be reasonableness. Section 223 of the PSLRA is a privative clause. The purpose of the PSLRA is to facilitate the resolution of labour disputes expeditiously, inexpensively and with relatively little formality. The resolution of public service disputes are by their nature polycentric. A finding of discrimination is a question of mixed fact and law and is not a question of true jurisdiction or of central importance to the legal system and outside the expertise of the Board. The adjudicator’s decision was predicated on his finding of fact. Labour relations are a discrete and special administrative regime in which the decision maker has expertise and Parliament has entrusted the act of determining the existence of discrimination to the Board’s adjudicators.
[55] A labour arbitration board’s interpretation of outside legislation will warrant deference where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently. The CHRA is closely related to the mandate and function conferred to the Board under the PSLRA. The question at issue, discrimination, is one which the adjudicator is intimately familiar with and one that falls within his specialized expertise. The CHRC’s standing does not indicate a lack of expertise, as that means that the Public Service Staffing Tribunal would not have expertise in employment matters given that the Public Service Commission has standing at adjudication.
[56] The AGC argues that the adjudicator considered all the evidence, both direct and indirect. The grievor had not presented persuasive evidence that the explanation for the termination was a mere pretext for discrimination. The adjudicator applied the correct legal test and relevant legal principles correctly, even though he did not agree with the grievor’s characterization of the evidence.
[57] Lieutenant-Colonel Gould gave extensive evidence on the financial constraints at CFB Trenton. They had to demonstrate credibility to the higher authority that they were mitigating their deficit. Many other positions than the grievor’s were not renewed as a result of mitigation and prioritization. He knew they had to prevent rollovers of term positions to indeterminate status due to the significant deficit. The adjudicator reasonably concluded that the termination decision was not tainted by discrimination.
[58] The grievor’s position was not essential. The grievor was not replaced as the position was deleted and no longer exists. The work the grievor had been performing before 2006 was simply allocated to other employees to perform when the need arose. The adjudicator concluded that none of the job postings adduced by the grievor were classified as DD-03 or to perform the grievor’s duties. The funds for the Adecco casual positions came from the operating financial account and not the SWE. The adjudicator disagreed with the grievor’s assertion that Mr. Lord had been in the process of replacing the grievor and noted even if this were true, it would not imply the termination was illegal.
[59] The AGC rejects the grievor’s argument that the adjudicator did not properly consider other possible explanations that would demonstrate a taint of discrimination. The adjudicator specifically considered the promise of indeterminate status. The grievor made submissions on other possible explanations at the hearing and the fact that the adjudicator did not address them in his written decision does not mean he failed to consider them. When the adjudicator’s reasons are read in their entirety, it is clear that he was fully aware of the question in dispute and that he rendered a decision that was within a range of possible acceptable outcomes defensible in respect of the facts and law.
[60] The AGC disagrees with the grievor’s suggestion that if judicial review is granted that the matter be submitted to a different adjudicator. There has been no suggestion of bias and there is a presumption of integrity and impartiality in decision makers. It is therefore the AGC’s position that if judicial review is granted, the matter should be returned to the same adjudicator.
Analysis of the Merits Judicial Review
[61] Issue 1
What is the appropriate standard of review?
Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 SCR 190).
[62] The applicant relies on decisions of this Court and our Court of Appeal suggesting that correctness may be appropriate in reviewing the legal approach used in human rights decisions. I believe that jurisprudence has now been overtaken by the Supreme Court’s decision in Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471 (Mowat).
[63] In that decision, Mr. Justice Louis LeBel and Mr. Justice Thomas Cromwell acknowledged that historically, courts had reviewed human rights tribunals’ interpretations of law on a correctness standard, as argued by the applicant in this case (at paragraph 19):
… reviewing courts have not shown deference to human rights tribunals in respect of their decisions on legal questions. In the courts’ view, the tribunals’ level of comparative expertise remained weak and the regimes that they administered were not particularly complex.
[64] The Court went on to acknowledge the tension between this past approach and its instruction in Dunsmuir above, that deference is owed to administrative tribunals, even in respect of many questions of law (at paragraph 21). Ultimately, the court concluded that reasonableness was the appropriate standard of review for analyzing the question of law of whether the CHRT could award costs at paragraphs 24, 25 and 27:
24. … In substance, if the issue relates to the interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference.
25. The question of costs is one of law located within the core function and expertise of the Tribunal relating to the interpretation and the application of its enabling statute. ... The inquiry of what costs were incurred by the complainant as a result of a discriminatory practice is inextricably intertwined with the Tribunal’s mandate and expertise to make factual findings relating to discrimination. … It cannot be said that a decision on whether to grant legal costs as an element of that compensation and about their amount would subvert the legal system, even if a reviewing court found it to be in error.
…
27. In summary, the issue of whether legal costs may be included in the Tribunal’s compensation order is neither a question of jurisdiction, nor a question of law of central importance to the legal system as a whole and outside the Tribunal’s area of expertise within the meaning of Dunsmuir. As such, the Tribunal’s decision to award legal costs to the successful complainant is reviewable on a standard of reasonableness.
[65] In my view, this analysis applies equally to this case. The question of whether the grievor’s termination was discriminatory is an application of human rights law to a particular factual matrix. It is not a true question of jurisdiction, nor a question of law of central importance to the legal system as a whole, nor is it outside the arbitrator’s expertise. The standard of review is therefore reasonableness.
[66] The grievor argues that the CHRA is not the arbitrator’s home statute as a reason for discrimination lying outside his area of expertise. However, as the grievor emphasizes in his arguments on remedial jurisdiction, below, Parliament has seen fit to task PSLRA adjudicators with applying the CHRA to labour grievances. Discrimination is therefore clearly within their area of expertise. I would also note that the Supreme Court held in Dunsmuir above, that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (at paragraph 54, emphasis added). The CHRA is closely connected to the function of the Board’s adjudicator as they are empowered to apply it in grievance proceedings.
[67] In reviewing the adjudicator’s decision on the standard of reasonableness, the Court should not intervene unless the adjudicator came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47 and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59, [2009] 1 SCR 339). As the Supreme Court held in Khosa above, it is not up to a reviewing court to substitute its own view of a preferable outcome, nor is it the function of the reviewing court to reweigh the evidence (at paragraph 59).
[68] Issue 2
Was the adjudicator’s decision on the termination unreasonable?
I agree with the grievor that the adjudicator’s findings that the employer’s financial constraints, no matter how clear, do not provide a complete answer to the charge of a discriminatory termination. Such constraints may be the legitimate rationale for terminations in general, but they are not an explanation for the particular termination of the grievor. The specific decision to give low priority to the grievor must be analyzed for discriminatory intent; otherwise, a legitimate need for terminations could serve as a smokescreen for a particular illegitimate one.
[69] In this case, the grievor argued before the adjudicator that his priority within the context of fiscal constraint was determined in part by Mr. Lord and Major Scherr, both of whom had played a role in the failure to accommodate the grievor and who made discriminatory comments. The grievor also argued that while he was terminated, other employees in non-priority positions were given indeterminate status for employment equity considerations, differential treatment that went unexplained by the employer.
[70] In the six paragraphs dealing with the allegation of discriminatory termination, the adjudicator addressed neither of these allegations. The adjudicator indicated he believed Lieutenant-Colonel Gould’s testimony that the only reason for terminating the grievor was that the grievor’s position was not a high priority for CFB Trenton.
[71] This ignores the fact that the low priority of the grievor’s position was not determined solely by Lieutenant-Colonel Gould. The adjudicator elsewhere described the process as Major Scherr informing Lieutenant-Colonel Gould that the grievor’s position was not a high priority and Lieutenant-Colonel Gould agreeing (merits decision at paragraph 40). Therefore, the adjudicator’s belief in Lieutenant-Colonel Gould’s non-discriminatory intent does not address whether the information he relied on in making that decision was tainted with discrimination by his subordinate, who was complicit in the previous discriminatory treatment of the grievor and who did not testify in this proceeding.
[72] I appreciate that the adjudicator was faced with a lengthy record in this matter and that tribunals are not expected to address every argument raised by the parties, but the process leading to the termination of the grievor is the central factual dispute at issue in this portion of the grievance. The failure to analyze the grievor’s allegations on this point is an omission that rises to the level of unreasonableness. Even given the appropriate deference, the adjudicator erred by making his decision solely on the basis of the financial constraints and without making any determination on why the grievor in particular fell victim to those constraints.
[73] I would therefore allow the application for judicial review in Court file T-633-11. This is not a case where it is appropriate for the Court to order a particular outcome, given the complicated record and viva voce testimony before the adjudicator. I would therefore return the matter of the termination for redetermination. I agree with the AGC there is no reason to require it be redetermined by a different adjudicator. I would also leave the adjudicator’s finding on the failure to accommodate intact, as neither party has suggested the adjudicator’s decision must stand or fall in one piece.
The Remedy Decision
[74] The adjudicator released a decision on the remedy in this matter on September 9, 2011, cited as 2011 PSLRB 110. The adjudicator explained that the parties had not come to an agreement on the remedy, so an oral hearing had been held on August 10, 2011. The adjudicator summarized his findings in the merits decision.
[75] The adjudicator then summarized the parties’ submissions on remedy. The grievor asked for $17,500 in general damages for pain and suffering and $17,500 for special comp