Canada (Attorney General) v. Cruden

Canada (Attorney General) v. Cruden
Court (s) Database
Federal Court Decisions
Date
2013-05-21
Neutral citation
2013 FC 520
File numbers
T-1734-11
Notes
Reported Decision
Decision Content
Date: 20130521
Docket: T-1734-11
Citation: 2013 FC 520
Ottawa, Ontario, May 21, 2013
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
BRONWYN CRUDEN and THE CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Cruden, an employee of the Canadian International Development Agency [CIDA], wished to be posted to Afghanistan. CIDA refused to post her to Afghanistan partly on the basis of a medical assessment done by Health Canada [HC] that determined that because of her diabetes, she was medically unfit for that positing. Ms. Cruden filed complaints of discrimination against CIDA and HC with the Canadian Human Rights Commission.
[2] In this application, CIDA and HC are asking the Court to quash the decision of the Canadian Human Rights Tribunal [Tribunal] which found that they had discriminated against Ms. Cruden on the basis of disability, contrary to the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA]. The relevant provisions of the CHRA are attached to these reasons as Appendix A.
[3] Although the Tribunal found that because of her diabetes it would have caused CIDA undue hardship to accommodate Ms. Cruden in Afghanistan, it upheld her complaints against HC (under paragraph 7(b) of the CHRA) and CIDA (under paragraphs 7(b) and 10(a) of the CHRA) based on its finding that there were “procedural” shortcomings in the accommodation process.
[4] With respect to CIDA, the central issue in this application is whether, in their employment, employees enjoy – apart from the “substantive” right to be accommodated by their employers up to the point of undue hardship – a separate “procedural” right to accommodation that can be independently breached and attract remedies under the CHRA even when their employer cannot accommodate the disability without undue hardship.
[5] In the decision under review, the Tribunal also found that the application of a set of medical assessment guidelines led to, or significantly contributed to HC’s negative assessment of Ms. Cruden’s medical suitability to be posted to Afghanistan. The Tribunal found these medical assessment guidelines were discriminatory because they did not permit individualized assessments, notwithstanding that Ms. Cruden’s assessment under these guidelines was ultimately consistent with the substantive duty to accommodate.
[6] With respect to HC, the central issue in this application is whether Ms. Cruden can be said to have suffered adverse differentiation under paragraph 7(b) of CHRA by the application of guidelines HC developed, even though the result of the application of these guidelines to her accords with the decision of the Tribunal that she could not be accommodated in the job she sought.
[7] For the reasons that follow, with the exception of the finding that the Afghanistan Guidelines have the potential to be discriminatory on a forward-looking basis, I find that the Tribunal’s decision is unreasonable and must be set aside because having found that Ms. Cruden’s disability could not be accommodated without undue hardship, her human rights complaint had to be dismissed. The Tribunal had no residual jurisdiction to make the findings and issue the remedial actions it did.
Background
[8] CIDA manages Canada's international development assistance program. It has a corporate section and a programming section. Ms. Cruden, who has a background in communications, joined CIDA’s corporate section in 2007 in the Results and Accountability section of the Afghanistan Task Force. Ms. Cruden wished to become involved in development work in the field, which falls within CIDA’s programming section. Given her background and lack of field experience, that transition was problematic. She planned to use her experience and position in the corporate section to obtain a field posting to Afghanistan. Postings to Afghanistan were possible, even without previous experience in the field or background because it was not a sought-after posting due to the extremely difficult and war-like conditions in Afghanistan.
[9] As a result of those conditions, persons posted to Afghanistan by CIDA were given periods of leave during which others replaced them on temporary duty assignments. Ms. Cruden was on such a temporary duty assignment in Kabul, Afghanistan, from August 6, 2007, to September 7, 2007. She received no medical assessment prior to this temporary duty assignment and completed it without incident.
[10] On January 20, 2008, Ms. Cruden commenced a second temporary duty assignment with the Kandahar Provincial Reconstruction Team in Kandahar, Afghanistan. Again, she did so with no prior medical assessment. It was to be a six-week assignment; however, on February 11, 2008, Ms. Cruden had a hypoglycemic incident while sleeping. A co-worker alerted a Canadian Forces medical officer who administered intravenous glucose. Ms. Cruden was given medical assistance at the Kandahar Air Field [KAF], and it was recommended by the doctors there that she be repatriated to Canada. Although Ms. Cruden informed CIDA that she disagreed with the assessment and wished to complete her assignment, CIDA ended her temporary duty assignment and returned her to Canada.
[11] Ms. Cruden had previously expressed an interest in several one-year postings that were to become available in Afghanistan later in 2008. Soon after her return to Canada, to support her desire to be posted, Ms. Cruden obtained a letter from her physician, Dr. Arnout, who wrote that she was “mentally and physically capable of continuing her work in Afghanistan.” In order to ascertain Ms. Cruden's fitness to be re-deployed to Afghanistan, CIDA requested that Ms. Cruden be medically assessed by HC.
[12] As a result of Ms. Cruden’s medical incident in Afghanistan, her need for medical intervention, and her removal to Canada, Major Robin Thurlow of the Canadian Expeditionary Force Command, on February 26, 2008, expressed his concern that no pre-deployment medical assessments were conducted for deployments to Afghanistan lasting less than one year.
[13] As a result of Ms. Cruden’s medical incident in Afghanistan, a HC medical officer wrote a new section for HC’s Occupational Health Assessment Guide [OHAG] to address postings to Afghanistan, entitled “Medical Evaluation Guidelines for Posting, Temporary Duty or Travel to Afghanistan (Hardship Post level 5 with Hostility Bonus)” [the Afghanistan Guidelines]. A first draft of the Afghanistan Guidelines was circulated on March 18, 2008. The following statement in the Afghanistan Guidelines under the heading “Absolute medical requirements” played a significant role in these proceedings:
Employees do not meet the medical requirements for assignment or posting: […] If they have a medical condition that would likely lead to a life-threatening medical emergency if access to prescribed medication and/or other treatment is interrupted for a short period of time.
[14] The same day, HC conducted a pre-deployment medical assessment of Ms. Cruden and five of its physicians unanimously agreed that Ms. Cruden was not fit to be redeployed to Afghanistan. Roughly three weeks later, HC wrote to CIDA with its recommendation that Ms. Cruden not be posted to Afghanistan. Although HC acknowledged in its letter to CIDA that Dr. Arnout submitted information indicating that Ms. Cruden’s condition was currently stable, it reasoned that because she was at risk of destabilization due to her condition, she might require sophisticated care or treatment not available at that post.
[15] On April 10, 2008, CIDA informed Ms. Cruden that she had not been selected for the position of Director of Kandahar, one of the deployments for which she had recently applied.
[16] Ms. Cruden had also applied for the position of Manager of Results and Accountability, a position in Canada which required periodic travel to Afghanistan. There was a concern within CIDA about this travel requirement because, following HC’s assessment, it would remove Ms. Cruden from the competition for this position.
[17] On April 16, 2008, CIDA informed Ms. Cruden that HC had recommended against her redeployment to Afghanistan. Ms. Cruden sought more information as to the respective roles and responsibilities of CIDA and HC and was informed by HC that while it had responsibility to provide recommendations based on its health assessments, the ultimate decision concerning her deployment to Afghanistan rested with CIDA. Ms. Cruden then asked CIDA to exercise its discretion and allow her to be deployed to Afghanistan. On May 21, 2008, CIDA decided that it would follow HC’s recommendation that Ms. Cruden was not medically fit for a deployment to Afghanistan. In order to permit Ms. Cruden to compete for the position of Manager of Results and Accountability, however, the requirement to travel to Afghanistan was removed.
[18] Ms. Cruden then asked CIDA if there had ever been a situation where it did not follow HC’s recommendation and also inquired as to whether CIDA would ask HC for an advance fitness assessment for its future overseas postings.
[19] CIDA’s response was that it followed HC’s assessments in almost all cases because its managers, not being medically trained, were not “in any position to re-evaluate [HC’s] determination.” It did confirm that it is ultimately CIDA’s managers who have the final say on posting assignments, “taking into account both the situation at the post and the medical fitness of the employee.” Lastly, CIDA declined to issue advance fitness assessment requests on Ms. Cruden’s behalf since the assessments were only valid for six months and would be of little or no use for speculative future postings.
[20] On June 22, 2008, Ms. Cruden emailed CIDA telling it that she had spent the weekend reflecting on its strategy to address her situation “via an accommodation route,” and stated:
I am not a “blonde” – I can clearly see that the accommodation route is the most viable strategy as very few people are able to see it as discrimination. What you have to understand is that I have never allowed myself to accept that I am anything but “normal”. That strategy requires me to not only accept publicly that I am “disabled”, but that I also require someone else to accommodate me in some way in order for me to be able to function. […]
As a result, I have decided to send this over to the [Public Service Commission] and [Human Rights Commission] in case they are interested in investigating it further and spend my own efforts on finding a new path for myself.
[21] On August 26, 2008, departing from its earlier response on the issue of advance fitness requests, CIDA wrote to Ms. Cruden saying that HC had indicated a willingness to review countries where posting might be possible despite her diabetes.
[22] On September 25, 2008, Ms. Cruden met with a HC medical officer and provided the officer with a list of nineteen countries given to her by CIDA that were expected to have postings available in the near future. During this meeting, Ms. Cruden also learned from the medical officer that it was possible to request an internal review of her circumstances with HC’s Medical Advisory Committee [HC-MAC]. She was later assured by HC that it would respect the decision of the HC-MAC, whatever it might be. Accordingly, Ms. Cruden sought a review by HC-MAC.
[23] On November 8, 2008, Ms. Cruden filed her complaints with the Commission that CIDA and HC had discriminated against her in breach of the CHRA. The wording of the complaints against CIDA and HC were identical:
I have been denied an assignment because of a disability that does not affect my job performance and that requires no accommodation, and no person or Agency has been willing to offer me any assistance in light of this issue.
Note that this is now the third time in the some 27 years that I have been diabetic that I have had to face discrimination by the Government. As a result, I am charging that discrimination against diabetics is systemic in Canada and that the Human Rights Commission (HRC) should investigate the matter more broadly.
[24] The conduct complained of by Ms. Cruden was (1) that she was not being considered as an individual by the Afghanistan Guidelines, which created a blanket prohibition against type 1 diabetics; and (2) CIDA’s refusal to re-post her to Afghanistan. As relief, Ms. Cruden sought a posting to Afghanistan, an apology from certain individuals in CIDA and HC, and a ruling about “what form of discrimination against diabetics is allowable.” As for “accommodation,” although Ms. Cruden complained that at that point she had been waiting six weeks for a response from HC regarding her list of nineteen countries, she noted immediately thereafter that she was “not looking for accommodation.”
[25] On November 28, 2008, HC responded to Ms. Cruden concerning the possible nineteen countries she had provided. HC had found that five were considered suitable, five were considered unsuitable, and three were listed as missions with concerns which would require individual assessment. For the remaining six missions, it said that insufficient information had been received from the responsible regional medical officer and that an addendum would follow. It appears that neither HC or CIDA, or Ms. Cruden, followed up on the suitability of the remaining six countries.
[26] On January 16, 2009, HC-MAC rendered its recommendation that Ms. Cruden undergo a medical examination with an independent endocrinologist that would include a review of her history, clinical status, and detailed reports on medical conditions in Afghanistan. The HC-MAC further said that if the independent medical endocrinologist was of the opinion that a posting to Afghanistan would not put her or others at risk, that it would sign off on her case as meeting the medical requirements for this posting. However, if the independent endocrinologist was of the opinion that a posting to Afghanistan was medically inadvisable, HC’s recommendation would stand. On February 15, 2009, Ms. Cruden informed HC that she would be willing to go through the medical exam recommended by HC-MAC towards “midsummer” 2009. In fact, she chose not to undergo that examination until September 22, 2009, when she was examined by Dr. Hugues Beauregard, an independent endocrinologist in Montreal. HC sent Dr. Beauregard Ms. Cruden’s history and a description of the available medical facilities in Afghanistan, and identified the questions it wanted Dr. Beauregard to answer.
[27] In his report dated September 29, 2009, Dr. Beauregard noted that Ms. Cruden faced exposure to health risks slightly more elevated than non-diabetics even though she effectively managed her condition of type 1 diabetes. He was of the opinion that she was fit for deployment to Afghanistan due to the fact that the health risks could be reduced to an “acceptable level” so long as she could bring the equipment she needed, and she was fit without restrictions to work at the Kandahar Air Field.
[28] On November 5, 2009, HC asked Dr. Beauregard to clarify the content of his report taking into account the Afghanistan Guidelines. In its original request to Dr. Beauregard it had stated: “We would ask that you take the document “Medical Evaluation Guidelines for Posting, Temporary Duty, or Travel to Afghanistan” into consideration when making your decisions, as we are required to use these guidelines when making our decisions.”
[29] On November 19, 2009, Dr. Beauregard responded that the Afghanistan Guidelines would make Ms. Cruden unfit for deployment:
Ms. Cruden is a type 1 diabetic and she needs insulin to stay alive. If she goes into hypoglycaemia, she absolutely needs carbohydrate immediately to recover, and if she is deprived of insulin, she will develop ketoacidosis, go into a coma and will die after a certain number of days (number that cannot be precisely determined, but probably represents a “short period of time”).
It appears clear, considering the content of this part of the document, that Ms. Cruden do [sic] not fulfil the medical requirements stated.
Dr. Beauregard remained of the view that Ms. Cruden could manage her diabetes in the prevailing conditions in order to bring any risk within “acceptable levels:”
In my evaluation and recommendations, I focused on the fact that she had the willingness and the ability to prevent those two dramatic situations from occurring, but as in many situations, reaching a risk free environment is not possible even if she is not posted in Afghanistan. In my recommendation, I refer to the concept of “acceptable risk”: By this I mean that she is able to face the degree of risk involved in Afghanistan and to manage her diabetes in the conditions prevailing in that country.
[30] CIDA also sought further clarification from Dr. Beauregard concerning implications for travel to remote areas. On November 24, 2009, Dr. Beauregard replied that the risk of Ms. Cruden travelling was acceptable, as long as she could have extra food and insulin to carry with her, but that he could not comment on the risks inherent to the political instability of the area.
[31] On December 16, 2009, HC informed CIDA that Dr. Beauregard concluded that Ms. Cruden did not meet the requirements of the Afghanistan Guidelines, but was nevertheless fit to work and travel in Afghanistan if she (i) has access to medication, testing equipment and backup supplies at all times; (ii) lives and sleeps in a room with a person aware of her condition; and (iii) has extra food and medication for travel. It concluded by saying that the final decision whether or not to post Ms. Cruden to Afghanistan was CIDA’s.
[32] On September 24, 2009, Ms. Cruden had applied for three overseas postings for the 2010-2011 posting cycle: one in Afghanistan, one in Nepal, and one in Vietnam. On December 30, 2009, Ms. Cruden was advised that she was screened out of the Nepal competition because of her lack of experience, and from the Vietnam competition because she ranked “low relative to [the other twenty-three] candidates.” On January 11, 2010, CIDA informed Ms. Cruden that in light of the information it received from HC, no further consideration would be given to posting her to Afghanistan, unless there was a change in her medical condition.
[33] Ms. Cruden’s complaints against HC and CIDA were consolidated and heard by the Tribunal over twelve days in January 2011. It heard testimony from eleven witnesses. The Tribunal issued its decision and reasons on September 23, 2011: Cruden v Canadian International Development Agency, 2011 CHRT 13. The Tribunal divided its analysis into two parts: the complaint against HC and the complaint against CIDA. The decision concludes with various remedies ordered against both.
The Complaint Against HC
[34] The Tribunal concluded that Ms. Cruden had established a prima facie case that she “was adversely differentiated by HC’s assessment process and guidelines on the grounds of her disability according to section 7(b) of the CHRA.” The Tribunal’s reasoning in this regard can be found at paragraph 72 of its reasons. In short, it found a prima facie case was established since the Afghanistan Guidelines provided that “no one with a chronic medical condition is allowed to be posted to Afghanistan;” Ms. Cruden has a chronic medical condition, type 1 diabetes mellitus; “diabetes is encompassed by the definition of disability in the CHRA;” and Ms. Cruden was prevented from being posted to Afghanistan because of the application of the Afghanistan Guidelines to her disability.
[35] The Tribunal reasoned that “[o]nce a prima facie case is established, the onus then shifts to the respondent to provide a reasonable explanation that demonstrates either that the conduct did not occur as alleged or was non-discriminatory.” It found that HC had neither established that the conduct complained of did not occur as alleged or was non-discriminatory: see paragraphs 73 – 89 of the Tribunal’s reasons. The Tribunal noted several procedural failings in the way HC dealt with Ms. Cruden’s case, including having raised her expectations and its delay. The Afghanistan Guidelines were found to be discriminatory because their wording and application had been “absolute” or “mandatory” and thus, reasoned the Tribunal, did not permit “individualized” assessments as is required by human rights law.
The Complaint Against CIDA
[36] The Tribunal also concluded that Ms. Cruden had established a prima facie case of discrimination against CIDA: “CIDA pursued a medical assessment practice, pursuant to HC’s policies and guidelines, which deprived [Ms. Cruden] of an employment opportunity on a prohibited ground of discrimination: her disability. Therefore, a prima facie case of discrimination has been established under section 10(a) of the CHRA.”
[37] It further found that she had “established that a distinction was made between her and her co-workers on the basis of her disability by the application of the Afghanistan Guidelines. This distinction was harmful to [Ms. Cruden’s] career because she lost the opportunity to work and gain experience in Afghanistan,” this was “adverse differentiation” under paragraph 7(b) of the CHRA and accordingly she had established a prima facie case of discrimination against CIDA under that paragraph. Accordingly, it fell to CIDA “to prove that these prima facie discriminatory practices were based on a bona fide occupational requirement” [BFOR].
[38] Section 15 of the CHRA provides that it is not a discriminatory practice “if any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to employment is based on” a BFOR, the burden of establishing which lies with the employer. For any such practice to be based on a BFOR, it must be “established that the accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.”
[39] The Tribunal examined whether CIDA’s refusal to post Ms. Cruden because of her medical condition was a BFOR using the tri-partite test articulated in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, at para 54 [Meiorin]:
1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
[40] The parties agreed that the first two elements of the Meiorin test were met. As to the third element, the Tribunal reasoned as follows:
“[103] The analysis at this [third] stage looks at "…first, the procedure […] which was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard" (Meiorin at para. 66). Therefore, I will examine, first, the procedure adopted by CIDA to assess the complainant’s condition and possible accommodation and, second, whether accommodating the complainant in Afghanistan would cause CIDA undue hardship.”
[emphasis added]
[41] The Tribunal concluded that CIDA had not met its “procedural duty” to accommodate Ms. Cruden for many reasons, including the following:
• “CIDA did not respond to [Ms. Cruden’s] initial request to exercise its discretion to allow her to go to Afghanistan;”
• “CIDA did not inform [Ms. Cruden] of, nor were the CIDA officials who testified familiar with, the procedures outlines in FSD9 [“Foreign Service Directive 9 – Medical and Dental Examinations”], HC’s medical assessment process or the OHAG;”
• “CIDA was actively implicated in the changes that were ultimately seen in the Afghanistan Guidelines;”
• “CIDA did not lead evidence that it explored all reasonable accommodation measures at the time of [Ms. Cruden’s] request. Although CIDA discussed removing the travel requirements of her job [which it did], this did not address the complainant’s need for operational field experience to advance her career. When [Ms. Cruden] asked for a list of countries to which she could be posted, it took CIDA over two months to determine that HC would take sufficient charge of this determination. It took another two months for HC to determine that insufficient information had been received with respect to six of the 19 countries, and that an addendum would follow once the information was received. HC never provided the addendum and CIDA did not make efforts to insure [sic] that an answer to this inquiry was provided;”
• “CIDA did not seek another independent medical opinion;”
• “CIDA did not attempt up to the point of undue hardship to ensure that the complainant would obtain her second or third choice for a posting overseas;” and
• “CIDA made attempts to accommodate [Ms. Cruden] but did not offer her any alternative other than applying for other postings and a position in the Afghanistan task force in Ottawa without travel requirements;”
[42] On the other hand, the Tribunal concluded that accommodating Ms. Cruden in a posting in Afghanistan would have caused CIDA “undue hardship:”
[117] There is sufficient evidence before me to find that CIDA considered the possibility of implementing these conditions and arrived at the conclusion that it was not possible. The evidence indicates significant health and safety risks for the complainant in working in Afghanistan, as well as safety risks for those fighting the war in Afghanistan should they have to assist the complainant. For the following reasons, I find that it would pose an undue hardship on CIDA to have to accommodate the complainant in Afghanistan.
[emphasis added]
[43] The numerous reasons cited by the Tribunal in support of this conclusion included:
• If she “needed evacuation,” “[Ms. Cruden] would be in greater risk;”
• “[I]t was a challenge to have [Ms. Cruden] work inside the wire without any travelling requirement because that meant other employees had to travel more to compensate, which increased their exposure to the dangers in the area;”
• “[Ms. Cruden] would [be exposed] to increased stress, infections, and risks of injury that require more medical attention for a person with type 1 diabetes;”
• “Dr. Dupré [“an endocrinologist expert on behalf of the Respondents”] … did not see any possibility for accommodation. He wrote in his report concerning the risk of a severe hypoglycaemic event, that it was inevitable for [Ms. Cruden];”
• The credible evidence of a Colonel (surgeon) and Major in the Canadian Forces with operational experience in Afghanistan was that “the medical facilities in Afghanistan are limited and are operating at full capacity. […] and [a] commander may curtail military operations if he is made aware that a facility is [operating at or near full capacity] and would be unable to treat casualties;”
• “There are no Canadian medical facilities at the Canadian embassy in Kabul. Moreover, there is no ambulance or 911 services [sic]. In any emergency situation, a patient would require transportation by armoured car. The journey may also be delayed due to conflict. Afghan hospitals are considered too dangerous for western nationals;”
• “[I]f a person with type 1 diabetes gets shot there are additional risks to their health. Risks of being injured or shot, even in the PRT [Provincial Reconstruction Team compound], were said to be "real not slim" […] [and] civilian employees posted in Afghanistan are under constant threat of attack;”
• “KAF gets shelled fairly regularly […] [and] during [a nine month period] there were 70 rocket attacks on the KAF. At the time of the hearing of this case, Major Thurlow testified that the KAF had recently suffered a rocket attack that landed in the dining facilities, injuring several people and killing one person;”
• “The PRT compound is also under threat of attack. […] "[F]irefights occur 300 to 400m away from the walls of the PRT, requiring employees to stay in bunkers". […] [I]n 2009, everyone at the PRT was evacuated because of a threat of a major attack;”
• “The constant threat of attack also impacts on medical evacuations. Medical evacuations can be done either by armoured vehicle or by helicopter. Given the dangers of travelling by vehicle, most medical evacuations are done by helicopter. […] Each [helicopter] mission requires two helicopters to be flown […]. One helicopter will land while the other provides protection. According to Major Thurlow: […]"Interdiction is common – not unexpected. These helicopters are shot at – all helicopters are shot at. If they are flying around, they are shot at. It’s a dangerous job";” and
• “Major Thurlow added that Improvised Explosive Devices (IED) constitute another danger faced by soldiers performing medical evacuations. On one occasion, while making their way back to the helicopter after placing a casualty on a stretcher, two stretcher bearers became amputees when they stepped on an IED;
[44] The Tribunal continued with twenty additional, safety-related paragraphs on its way to concluding that accommodating Ms. Cruden in Afghanistan would have caused not only CIDA, but also Canadian Forces personnel “undue hardship” in the circumstances. Nevertheless, the Tribunal held that:
CIDA has breached its procedural duty to explore all reasonable accommodation measures for [Ms. Cruden] and, as a result, a violation of sections 7 and 10 of the CHRA has been made out against CIDA. For its part, HC developed the Afghanistan Guidelines, which do not reflect equality between all members of society. In the course of employment, [Ms. Cruden] suffered adverse differentiation on the basis of her disability by the application of the Afghanistan Guidelines. On this basis, HC has violated section 7(b) of the CHRA. Therefore, both complaints are substantiated and the Tribunal will consider appropriate remedial action to eliminate these discriminatory practices.
Remedies
Overtime, Bonuses, etc.
[45] Ms. Cruden claimed considerable compensation for overtime, bonuses, and allowances that she says she would have earned had she been posted to Afghanistan. The Tribunal did not allow these expenses in light of its finding that posting Ms. Cruden to Afghanistan would have caused CIDA undue hardship.
[46] On the other hand, the Tribunal found that “were it not for the adverse differential treatment that [Ms. Cruden] received during the whole medical assessment and posting process,” she “would have obtained a position in another country” and it was “reasonable to assume that she would have been at a PM-06 level.” Although the Tribunal did “not have sufficient material before [it] to quantify [the amount she would have earned],” it decided to “remain seized of the matter” until the parties could make submissions as to the appropriate quantum.
Pain and Suffering
[47] Ms. Cruden claimed the maximum allowable amount for pain and suffering – $20,000. The Tribunal awarded her $5,000 from each respondent because “of the way [Ms. Cruden’s] situation was handled by both respondents.”
Wilful and Reckless Discrimination
[48] Ms. Cruden claimed the maximum allowable amount for wilful and reckless discrimination – $20,000. The Tribunal conceded that Ms. Cruden cited no case law nor made extensive submissions to support her claim; nevertheless it awarded Ms. Cruden $5,000 from each respondent because:
• “HC told [Ms. Cruden] they would accept the independent medical opinion whatever it may be. They were aware of what they said and modified their approach when the opinion was not what they expected;”
• “[HC] also worded the "Absolute Medical Requirements" and admitted at the hearing that it was a poor choice of words and could mislead someone doing an assessment;”
• HC did not try to correct the wording of the guidelines when they submitted the information to Dr. Beauregard, nor did they give him section one of the OHAG, which says that the guidelines are instructive not mandatory;”
• “HC knew what they were doing;”
• “On its part, CIDA refused to respond to [Ms. Cruden’s] email requesting it to exercise its discretionary power to post her to Afghanistan;” and
• “CIDA cannot ignore the fact that no additional information was given to [Ms. Cruden] on other overseas postings.”
Sick Leave Credits
[49] The Tribunal ordered the reinstatement of 55 days sick leave credit to reimburse Ms. Cruden for the sick leave she took in the summer of June 2009 because of the discrimination of which she complained.
Vacation Day Credits
[50] Ms. Cruden sought reinstatement of “vacation time credits totalling 15 days taken in order to prepare for and attend proceedings related to her complaint. Pursuant to paragraph 53(2)(c) of the CHRA, [the Tribunal] order[ed] the reinstatement of the 15 vacation day credits.”
Appointment and Deployment
[51] Ms. Cruden was “seeking an appointment to a position at the EX-01 level within CIDA, pursuant to paragraph 53(2)(b) of the CHRA [and also] deployment to an operational position within CIDA’s Geographic Programs Branch (GPB), pursuant to paragraph 53(2)(b) of the CHRA and requests to be posted to a family-friendly country of her choice.”
[52] The Tribunal concluded that “if it were not for her disability she would have obtained a posting to Afghanistan or elsewhere because of her abilities to perform the duties required,” and therefore it ordered that Ms. Cruden be deployed “in the GPB at the PM-06 level” and that CIDA “work with Ms. Cruden to post her in a friendly country within her top three choices where there are appropriate medical facilities and no medical restrictions that she will face.”
Personnel File
[53] Ms. Cruden asked that any reprimand related to the pursuit of her claim be removed from her file. The Tribunal declined because the behaviour and comments she made about CIDA management which let to the reprimand were not “done within appropriate boundaries.”
Legal Fees
[54] Ms. Cruden sought compensation for legal fees in the amount of $2,712.68. Citing Canada (Attorney General) v Mowat, 2009 FCA 309, wherein the Federal Court of Appeal held that the Tribunal did not have the authority to make an award of costs under the provisions of the CHRA, the Tribunal declined to award legal costs.
Systemic Remedies
[55] The Tribunal reasoned that the Afghanistan Guidelines “must be clarified to ensure that their interpretation does not lead doctors in excluding every person with a chronic condition. […] [and that] [t]he wording of the "Absolute medical requirements" should be changed to reflect a high medical standard for posting to Afghanistan, while not instituting a complete ban.” Accordingly, the Tribunal ordered:
(a) That HC amend the OHAG to remove any references in the Afghanistan Guidelines to "Absolute medical requirements", and instead adopt an approach that simply lists factors that are to be considered as part of an overall individualized assessment, with an express recognition that no single factor will necessarily be determinative;
(b) That HC amend its policies, or create a new policy, requiring that in cases where a treating specialist physician provides an opinion on employee fitness that differs from the initial opinion of the OHMO, and HC does not agree with the specialist, HC will:
(i) consult with the treating specialist to explore the bases for the different opinions;
(ii) if still not in agreement, promptly offer to send the employee for an independent medical examination by a specialist in the appropriate field;
(iii) if dissatisfied with the independent specialist, consult with the independent specialist to explore the bases for the different opinions; and
(iv) ultimately, if no resolution has been reached, place before the employing department full, objective and impartial descriptions of all the recommendations as to fitness rendered by the various physicians who were consulted during the process;
(c) That HC and CIDA amend their policies, or create a new policy, to clearly state that the CHRA and the “duty to accommodate to the point of undue hardship” must be considered and applied whenever recommendations or decisions are being made with respect to the medical fitness of civilian employees for postings, regardless of where those postings might be;
(d) That CIDA amend its policies, or create a new policy, so as to put a mechanism in place to ensure that all employees who apply for postings (and for temporary duty assignments, in the case of Afghanistan) are first made aware:
(i) that all successful candidates will be required to undergo a pre-deployment medical assessment by HC, or by another provider if CIDA deems appropriate;
(ii) that if they receive a negative assessment, they will have the right under FSD9 to submit a written opinion from a treating physician to HC which will then provide a reassessment to CIDA, possibly after offering the employee an opportunity to undergo an independent medical examination;
(iii) that if HC does not request an independent medical opinion, CIDA may itself offer the employee an opportunity to undergo an independent medical examination, the results of which will be provided to HC for further assessment; and
(iv) ultimately, the final decision about whether to put a candidate forward for head of mission concurrence lies with CIDA, and not with HC or any other department.
(e) That HC provide training to all managers and OHMOs involved in conducting pre-deployment medical assessments on:
(i) The application of the FSD9 to their work; and
(ii) The application of the CHRA to their work, including insofar as it relates to legal principles relating to the assessment of health and safety risks as a possible form of undue hardship;
(f) That CIDA provide training to all managers and staff involved in making decisions about postings and temporary duty assignments on:
(i) The application of the FSD9 to their work; and
(ii) The application of the CHRA to their work, including insofar as it relates to the assessment of health and safety risks as a possible form of undue hardship.”
The steps outlined in paragraph (a) to (f) were to be completed within one year of the decision. The Tribunal remained seized until the parties confirmed that the terms of its order, or further orders, had been implemented.
[56] Although not part of the application before the Court, it is noted that clarification was requested with regards to the implementation of the order that CIDA deploy Ms. Cruden to a post in a friendly country within her top three choices. That clarification was rendered by decision dated March 1, 2012. It does not impact the issues before the Court.
Issues
[57] CIDA and HC identified the following eight issues in their memorandum:
i) What is the applicable standard of review?
ii) Was it reasonable for the Tribunal to find a breach of the CHRA on the basis of a failure to comply with a “procedural duty” to accommodate?
iii) Was it reasonable for the Tribunal to find that the Afghanistan Guidelines were discriminatorily applied to the Respondent?
iv) Was it reasonable to order that the complainant be deployed to a PM-6 position in the Geographic Programs Branch within CIDA and be posted to a country of her choice?
v) Was it reasonable to order prescriptive remedies against Health