Desson v. Royal Canadian Mounted Police

Desson v. Royal Canadian Mounted Police
Collection
Canadian Human Rights Tribunal
Date
2023-01-10
Neutral citation
2023 CHRT 1
File number(s)
T2276/3118
Decision-maker(s)
Langlois, Marie
Decision type
Decision
Grounds
Disability
Summary:
This case involves a Royal Canadian Mounter Police (RCMP) constable who had a seizure. The Tribunal found that the RCMP did not discriminate against Constable Desson.
Constable Desson had a seizure. He was diagnosed with epilepsy. He started taking medications for his epilepsy. He did not have any more seizures. He did not think he was likely to have another seizure.
After his seizure, the RCMP limited Constable Desson’s work. He was not allowed to do frontline police work. He was only allowed to do desk work. The RCMP policy allowed Constable Desson to return to frontline police work after five years without a seizure.
Constable Desson said this RCMP policy was discriminatory because it did not consider that he was very unlikely to have another seizure. He said he lost overtime work because of the policy. He also said he was not promoted because of the policy. The Tribunal agreed Constable Desson lost overtime work because of his epilepsy. The Tribunal did not agree he missed promotions because of his epilepsy.
The RCMP said it needed its epilepsy policy to keep police officers and the public safe. The Tribunal agreed. The policy reduces the risk of a police officer having a seizure in a dangerous situation. Medical evidence shows the risk is very small after five years. The RCMP policy is similar to policies for other jobs with similar safety risks. The RCMP fairly considered Constable Desson’s medical history when it applied the policy. The RCMP tried to find Constable Desson meaningful desk work he could do until he could return to frontline policing.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2023 CHRT 1
Date: January 10, 2023
File No.:
T2276/3118
Between:
Michael Eric Desson
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Royal Canadian Mounted Police
Respondent
Decision
Member:
Marie Langlois
Table of Contents
I. Decision 1
II. Overview 1
III. Issues 3
IV. Legal Framework 3
V. Analysis 7
A. Does the Complainant have one or more characteristics protected under the Canadian Human Rights Act, RSC 1985, c H-6 (the Act or CHRA)? 7
B. If so, did he experience an adverse impact with respect to his employment? 9
C. Were the protected characteristic or characteristics a factor in the Respondent’s decision with respect to removing the Complainant from operational duties? 10
D. Did the Respondent justify its decision under section 15 of the Act by establishing that the standards applicable to Cst. Desson were a bona fide occupational requirement? 11
Question 1: Has the 5 Year Policy been adopted for a purpose rationally connected to the performance of the job and is the 5 Year Policy reasonably necessary? 16
Question 2: Has the 5 Year Policy been adopted in an honest and good faith belief that it was necessary to fulfill that legitimate purpose? 28
Question 3: Has the Complainant been accommodated to the point of undue hardship under the 5 Year Policy? 30
July 2010 to January 2011 31
January 14, 2011 to January 2013 43
February 2013 to May 2015 56
E. If not, what are the applicable remedies 62
F. Has the RCMP engaged in abusive and obstructive conduct by only disclosing some documents during the course of the hearing? 62
G. If so, is the Complainant entitled to financial compensation? 66
I. Decision
[1] The Tribunal dismisses the complaint of discrimination on the basis of disability of Constable Michael Eric Desson (the Complainant). The Tribunal finds that while the evidence establishes that the Complainant was treated adversely because of his disability, the RCMP justified its discriminatory actions by establishing that the standard applied to the Complainant was a bona fide occupational requirement.
[2] As for the Complainant’s request for compensation in relation to the Respondent’s alleged abusive or obstructive behaviour during the hearing, the Tribunal rejects it in the absence of a demonstration of abusive or obstructive behaviour on the part of the RCMP.
II. Overview
[3] Constable Desson was hired as a constable with the Royal Canadian Mounted Police (the Respondent) on January 28, 2008. He was posted to the Burnaby, British Columbia detachment as a constable where, after completing his training, he was able to work independently as of October 2008.
[4] On July 14, 2010, on the way to work, he suffered an epileptic seizure while driving his personal vehicle, resulting in a traffic accident.
[5] He was absent from work due to illness until his gradual return to work on November 6, 2010. At that time, he was relieved of his operational duties and assigned to administrative duties.
[6] Pursuant to a policy of the Respondent (referred to as the 5 Year Policy), he can only return to operational duties five years after the last epileptic seizure, with or without taking epilepsy-related medication. In fact, he returned to operational duties just before the end of the five-year period, in May 2015, while continuing to take medication.
[7] The period between November 2010 and May 2015 was punctuated by absences due to psychiatric illness which the Complainant assumed was related to his reaction to the 5 Year Policy preventing him from returning to operational duties prior to 2015. A subsequent period of psychiatric leave between 2017 and 2021 is also allegedly related to the Complainant’s reaction to the 5 Year Policy, he argues.
[8] The Complainant considers the 5 Year Policy to be prejudicial to him and discriminatory in that it applies to him without regard to his personal characteristics and his own specific risk of a recurrence of seizures.
[9] He argues that the policy applies to any person who has had seizure episodes regardless of whether the seizure was caused by illness or by the use of certain stimulants, as he claims was the case here. According to him, having stopped taking these stimulants after the July 2010 seizure, he would have been able to resume his operational functions within a timeframe of six months, as was recommended by his physician Dr. John Diggle, a neurologist. Since he is required to take medication to control his condition for the rest of his life, he considers the original policy on this matter to be even more unfavourable to him, even though the revised policy was actually applied to him. We will come back to this.
[10] The application of this policy also deprived him of training and career advancement opportunities, which allegedly had and is still having a significant financial impact.
[11] The RCMP argues that the Complainant has not discharged his burden of proving prima facie discrimination. It questions the credibility and probative value of the Complainant’s testimony. It contends that the Complainant suffered no adverse effect as a result of the employer’s policy. The Respondent adds that the Complainant’s timeframe for returning to work is attributable to his inability to acknowledge and admit his pathological condition of epilepsy and his fear of being judged unfavourably by his peers and superiors. The Respondent also argues that the Complainant has demonstrated his perceived bias of discriminatory conduct.
[12] Alternatively, the Respondent argues that the employer’s policy was applied to the Complainant in light of his particular circumstances and that it was justified by important safety considerations for the individual himself, his co-workers and the general public in light of the highly dangerous work of an RCMP officer who performs operational duties. In sum, in the RCMP’s view, the 5 Year Policy is a bona fide occupational requirement under subsections 15(1) and 15(2) of the Act.
[13] In addition, in his written submissions, the Complainant seeks costs for abusive and obstructive behaviour on the part of the RCMP because the Respondent failed to disclose certain documents until the hearing was already underway.
III. Issues
[14] The issues are as follows:
Does the Complainant have one or more characteristics protected under the Canadian Human Rights Act, RSC 1985, c H-6 (the Act or CHRA)?
If so, did he experience an adverse impact with respect to his employment with the Respondent?
If so, were the protected characteristic or characteristics a factor in the Respondent’s decision to with respect to removing the Complainant from operational duties?
If so, has the Respondent justified its decision under section 15 of the Act?
If not, what are the applicable remedies?
Has the RCMP engaged in abusive and obstructive conduct by only disclosing some documents during the course of the hearing?
If so, is the Complainant entitled to financial compensation?
IV. Legal Framework
[15] The Complainant alleges that he was discriminated against in employment on the basis of disability contrary to sections 7 and 10 of the Act.
[16] Disability is one of the prohibited grounds of discrimination enumerated in section 3 of the Act. It is defined in section 25 as follows:
Disability means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
[17] Paragraph 7(b) of the Act provides, among other things, that it is a discriminatory practice to differentiate adversely in the course of employment if the decision is based on a prohibited ground or grounds of discrimination under section 3 of the Act. Section 10 makes it a discriminatory practice to deprive an individual of employment or advancement opportunities if the decision is based on a prohibited ground of discrimination under section 3 of the Act.
[18] Before addressing the issues in this case, it should be noted that the Complainant has the burden of showing that the practice to which he was subjected was, on its face, discriminatory (prima facie case). This proof is that 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” (Ont. Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536 at para 28 (“Simpsons-Sears”).
[19] The case law recognizes the difficulty in proving allegations of discrimination by direct evidence given that discrimination is not a practice which one would expect to see displayed directly or overtly. The Tribunal’s role, therefore, is to consider all the circumstances and to determine on a balance of probabilities whether there is discrimination or whether there is, as described in Basi (Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT)), the “subtle scent of discrimination”. In short, the Tribunal can draw an inference of prima facie discrimination when the evidence before it renders such an inference more probable than the other possible inferences or hypotheses (Beatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987) at 142. See also Khiamal v. Canada (Human Rights Commission), 2009 FC 495 at para 60).
[20] Thus, to discharge his burden, the Complainant has to show, on a balance of probabilities (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39, at para 67 (“Bombardier”), that he has a characteristic protected under the Act, that he experienced an adverse impact with respect to his employment and that the protected characteristic (referred to as a “prohibited ground of discrimination” by the Act) was a factor in the adverse impact (Moore v. British Columbia (Education), 2012 SCC 61 at para 33).
[21] In making his case, the Complainant is not required to prove that the Respondent intended to discriminate against him, given that, as the Supreme Court of Canada noted in Bombardier, some discriminatory conduct involves multiple factors or is unconscious (Bombardier at paras 40, 41). Thus, the intent to discriminate should not be a governing factor. It is the result, namely the adverse effect, which is significant (Simpsons-Sears at paras 12, 14).
[22] In addition, it is not essential that the connection between the prohibited ground of discrimination and the impugned decision be an exclusive one, or a causal one, given that it will suffice if the prohibited ground played a role in the decisions or conduct complained of. In short, the evidence must establish that the prohibited ground of discrimination was a factor in the impugned decision (Bombardier at paras 45-52).
[23] Moreover, it is sufficient that the Complainant’s disability was one factor in the Respondent’s decision to remove him from operational duties for five years (A.B. v. Eazy Express Inc., 2014 CHRT 35 (CanLII) at para16).
[24] If that is the case, once this proof of prima facie discrimination is established, the employer could justify its decision by showing, also on a balance of probabilities, that it flows from a bona fide operational requirement under section 15 of the Act. The burden of proof then shifts to the employer (Peel Law Association v Pieters, 2013 ONCA 396 (CanLII) at para 67).
[25] Sections 15(1) and 15 (2) of the Act reads as follow:
15 (1) It is not discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement.
(b) (…)
(c) (…)
(d) (…)
(e) (…)
(f) (…)
(g) (…)
15 (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that 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.
[26] The Supreme Court of Canada developed a three step test to determine whether there is a bona fide occupational requirement in the sense of sections 15(1) and 15(2) of the Act. The test is set out in Meiorin [British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, para. 54 as follows:
54 Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:
(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.
[27] As stated in Air Canada Pilots Association v Kelly, 2011 FC 120, para 356 to 358 (Kelly) :
356 The first and second steps of the Meiorin test require an assessment of the legitimacy of the standard’s general purpose, and the employer’s intent in adopting it. This is to ensure that, when viewed both objectively and subjectively, the standard does not have a discriminatory foundation. The third element of the Meiorin test involves the determination of whether the standard is required to accomplish a legitimate purpose, and whether the employer can accommodate the complainant without suffering undue hardship: McGill University Health Centre v. Syndicate des employe-e-s de l’Hopital general de Montreal, 2000 (SCFP-FTQ) 2007 SCC 4, 1 S.C.R 161, at para.14.
357 As the Supreme Court of Canada observed in Hydro-Quebec v Syndicat des employe-e-s de techniques professionnelles et de bureau d’Hydro-Quebec, section locale 2000 (SCFP –FTQ), 2007 SCC 43, [2008] 2 S.C.R. 561, the use of the word “impossible” in connection with the third element of the Meiorin test had led to a certain amount of confusion. The Court clarified that what is required is “not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances”: at para.12.
358 As to the scope of the duty to accommodate, the Supreme Court stated that “The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work”: Hydro Quebec, at para. 16.”
[28] Further, commenting on subsection 15(2) of the CHRA, the Federal Court in Kelly stated that it should be interpreted as limiting the factors to be taken into account in an accommodation analysis to health, safety and cost.
V. Analysis
A. Does the Complainant have one or more characteristics protected under the Canadian Human Rights Act, RSC 1985, c H-6 (the Act or CHRA)?
[29] The Tribunal finds that there is no doubt that the Complainant has a disability within the meaning of section 3 of the Act.
[30] Indeed, the evidence on file and the testimony of the Complainant and his attending physician, Dr. Diggle, allow us to conclude that over the years, since 2005, the Complainant has suffered several episodes of epileptic seizures (grand mal seizures).
[31] In 2005, according to the notes from Dr. Diggle’s first consultation with him on July 27, 2010, his then wife noticed “a sudden onset, at night when the patient was sleeping, of stiffness of all 4 extremities, and then shaking, diffuse myalgia, petechial hemorrhage, and tongue biting”.
[32] At the hearing, Cst. Desson explained that in 2008, during a trip to Las Vegas for a friend’s bachelor party, he had consumed a lot of alcohol and had stayed in the sun most of the day. The friend he was sharing the hotel room with told him that he saw him having generalized convulsions, described by Dr. Singh, neurologist , in his report from February 8, 2011.
[33] Dr. Diggle indicates in his July 27, 2010 report that on May 8, 2010, another incident occurred when Cst. Desson was alone at his home. He felt “a sudden onset of anxiety, went to look out the window, and then felt “fixated” developed “tunnel vision”. His left arm started shaking, he developed ‘tunnel vision’, and he woke up, at least one hour of time has passed. He had a cut above his right eye. He did seek medical attention for stitches, but no medication were started for seizure prophylaxis.”
[34] Then came the epileptic seizure on July 14, 2010, which caused the car accident.
[35] The Tribunal’s file also contains medical certificates from Dr. Fasihy, the treating physician, after July 14, 2010 with the diagnosis of “seizures”.
[36] Paraclinical exams such as electroencephalography (EEG) were determined to be abnormal with demonstration of left anterior to mid-temporal spikes compatible with focal epilepsy. That is the diagnostic confirmed by Dr. Diggle. During the first consultation, on July 27, 2010 he wrote in his report:
IMPRESSION
Focal epilepsy, with pressured thoughts, anxiety as his aura. I suspect that the episodes of anxiety or focal seizures, and with secondary generalized tonic-clonic seizures admixed. I suspect that they are arising from the left temporal region, given the spikes on his EEG. The main differential would be a focal epilepsy from the right hemisphere, given the left arm numbness, and it is possible to have bitemporal foci, though uncommon.
[37] In light of this evidence, the Tribunal finds that the diagnosis of “focal epilepsy” constitutes a disability within the meaning of section 3 of the Act and a prohibited ground of discrimination within the meaning of sections 7 and 10 of the Act. The Complainant therefore has a protected characteristic under the Act.
[38] The answer to question A must therefore be in the affirmative. Cst. Desson has a disability under section 3 of the Act.
B. If so, did he experience an adverse impact with respect to his employment?
[39] The Tribunal is of the opinion that Cst. Desson suffered a detrimental effect in relation to his employment.
[40] Indeed, after the epileptic seizure and the car accident of July 14, 2010, as soon as the Complainant was able to return to work in November 2010, the Respondent changed his status to non-operational. He was assigned administrative duties.
[41] The Complainant testified that he could do very little or no overtime while doing administrative duties. Had he continued to perform his operational duties, his evidence is that he would have gained a substantial amount of overtime and experience that would have been very beneficial for his career advancement.
[42] The evidence also demonstrates that his base salary did not depend on whether he was on full duties in category O2, on sick leave in the category O6 or on administrative duty in the O4 category (the category system will be explained later). During the whole period of medical leave between July 2010 and May 2015 when he was back on category O2, full operational duties, he maintained the same basic pay plus progression through pay scale increments.
[43] His testimony is corroborated by his Notices of Assessment from the CRA and the pay stubs from the periods prior to and after May 2015. It is obvious that as soon as he was allowed to perform operational duties, he started to add overtime to his normal work week, sometimes as much as 20 or 25 hours extra per week, which substantially increased his remuneration.
[44] That is sufficient to conclude that the Complainant suffered a financial prejudice. The Tribunal considers that it is not necessary to discuss the other prejudices that the complainant argued, for example the missed opportunities for promotion or the important psychological effect that the 5 Year Policy had on him.
[45] The answer for question B is therefore yes, Cst. Desson suffered a detrimental effect.
[46] The Tribunal also noticed that Cst. Desson testified of his perception of discrimination all through this period of 5 years. As examples, the cause of his motor vehicle accident on July 14, 2010, i.e. epilepsy seizure, was disclosed to his colleagues and that caused him anger and humiliation. He also mentioned that a colleague asked how his head was when he came back to work in November 2010. He perceived this as humiliating that people would know that he had had a seizure. For him, it was an embarrassing personal weakness.
[47] He explained that at the police station in Burnaby, the constables who were part of the detachment but not present at the station because they were off duty sick on long term, or other reasons, had their pictures on a wall. He considered it to be the “wall of shame” and did not want to be part of it. During his testimony, he added that Sgt. Cathy Shepherd, the Career Development and Resource Advisor, during a meeting belittled him when she told him that she had lost her husband and got back to her feet, implying he should do the same. He felt again humiliated and discriminated against. He also recounted that being considered one of Sgt. Shepherd’s seizure people was extremely disturbing.
[48] These perceptions were certainly felt by Cst. Desson and he had the impression that they were discriminatory comments. But the Tribunal finds that these comments were more likely than not compassionate comments and a reasonable person would have perceived them as so. As for the “wall of shame”, Cst. Desson’s perception might be the result of his own distorted view of colleagues that were absent from work. It is not useful at this point of the analysis to distinguish between the personal perceptions of the different people and how it affected Cst. Desson. This analysis might be relevant in the remedial stage assessing damages for pain and suffering.
C. Were the protected characteristic or characteristics a factor in the Respondent’s decision with respect to removing the Complainant from operational duties?
[49] The Tribunal is of the opinion that the fact that Cst. Desson suffered epileptic seizures and has been diagnosed with Focal Epilepsy is the cause of the application of the 5 Year Policy that restrained him from operational duties for 5 years after his last epilepsy episode.
[50] There can be no doubt, then, that the policy applied to the Complainant that removed him from his operational duties caused him significant financial harm, even though he maintained his base salary throughout the period in question. Indeed, he was not given the opportunity to work overtime and be compensated accordingly.
[51] The complainant’s disability is the reason why the Respondent removed him from operational duties, which caused a significant financial detriment to him. As such, there is a link between the disability and the adverse impact on the Complainant’s job.
[52] The answer to question C must therefore be in the affirmative, and the Complainant must be found to have made a prima facie case of discrimination on the balance of probabilities.
[53] The question remains as to whether, as the RCMP contends, the decision to keep the Complainant out of operations between July 2010 and May 2015 constitutes a bona fide occupational requirement. This will be discussed in the next section.
D. Did the Respondent justify its decision under section 15 of the Act by establishing that the standards applicable to Cst. Desson were a bona fide occupational requirement?
[54] Although Cst. Desson’s inability to perform operational duties is prima facie discriminatory, as determined in the previous section, it is not a discriminatory practice if RCMP establishes, on a balance of probabilities, that the 5 Year Policy restricting him from operational duties is a bona fide requirement (BFOR) within the meaning of section 15(1) and 15(2) of the CHRA. In order to determine if the Respondent has met its burden of proof, the Tribunal has to answer the following questions:
Question 1: Has the 5 Year Policy been adopted for a purpose rationally connected to the performance of the job and is the policy reasonably necessary?
Question 2: Has the 5 Year Policy been adopted in honest and good faith belief that it was necessary to fulfill that legitimate purpose?
Question 3: Has the Complainant been accommodated to the point of undue hardship under the 5 Year Policy?
[55] Before answering the first two questions, the Tribunal deems necessary to summarize the tasks of a General Duty Constable and the Medical Profile System with the grading of the Occupational limitations.
(a) The tasks of a General Duty Constable
[56] As a constable, Cst. Desson’s tasks are described in the Integrated Task Bank for General Duty Constable outlined in a document called APP II-1-6 . They include the following:
a. Pursue fleeing suspect on foot or by appropriate vehicle (task 2.11);
b. Apprehend/restrain fleeing or resistant suspects, violent or deranged persons (chase, tackle or grapple with them, handcuff them, use deadly force and draw on physical ability, vision and hearing, training, knowledge of legal limitations in use of force as well as personal judgment to apprehend the suspect by using only as much force as necessary (task 2.12);
c. Carry out enforcement patrols in problem areas (task 3.3);
d. Respond to a call by radio, telephone or in person, requesting assistance for a sick, injured or drowning person (task 4.1);
e. Respond to radio calls or citizens requesting assistance to locate a lost child, lost hunter, skier, hiker, confused or elderly person who wandered away from residence, or runaway youth (task 4.2);
f. Respond to general requests for assistance made in person or received by radio, e.g. drive intoxicated persons home, rescue stranded motorists, drawing upon knowledge for community, personal discretion and positive concern in order to provide general assistance to the community (task 5.1);
g. Enhance highway Safety by stopping or giving pursuit in a police vehicle (task 7.2);
h. Act on one’s initiative or on information from dispatch and undertake to stop a motor vehicle and the vehicle fails to stop (task 7.3) ;
i. Pursue vehicle at speeds up to 240 km/hour (task 7.4);
j. If dispatch informs officer of warrant, suspension, or outstanding fine, approach driver/occupant explaining the situation, arrest, towing if driver is suspended (task 7.7)
(b) The Medical Profile System
[57] The Medical Profile System of the employer is described in the documents as :
The medical profile system describes the member’s occupational fitness or limitations in relation to his/her ability to perform the tasks that define his/her duties, in a manner that does not compromise the safety of coworkers, the public or the member.
[58] Five aspects are evaluated : Visual capacity (V); Color Vision (CV); Hearing (H); Geographic availability of health care (G); and Occupational Restrictions (O).
[59] The Occupational factor (O) describes a member’s occupational capacity based on the tasks analysis for a General Duty Constable.
[60] The grading for the Occupational Restrictions is described as follow:
· 01: The member is capable of performing all the tasks of a general duty Cst. [Constable] defined in APP II-1-6 [Task Analysis for General Duty Constable] and is also capable of performing specific tasks beyond his level. (…)
· 02: (Recruit Minimum): This is the entry level for a Cst. An applicant or member must perform all the tasks of the general duty CsT outlined in App. II-1-6 in a manner that does not jeopardize his/her safety, or that of coworkers and the public.
1. An RM [Regular Member] who is 02 must be able to participate fully in an operational call out and must not suffer from any condition that carries an increased risk of sudden incapacitation.
2. For a CM [Civil Member], O2 requires that the applicant or CM not suffer from any condition that might interfere with the ability to do the job for which he/she is hired without compromising his/her safety, that of coworkers or the public.
· 03: This applies to a member or applicant for RM status who suffers from a condition that may interfere with the performance of policing duties but does not jeopardize safety
1 The individual’s limitations and restrictions must be clearly stated.
2 The individual must not suffer from a condition that carries an increased risk of sudden incapacitation.
3 The individual will be subject to operational call out where the defined occupational limitations and restrictions will apply.
4 For a CM, the 03 profile describes an individual with a condition that affects ability to do the job for which he/she is hired but does not prevent him/her from doing the job and does not compromise safety.
· 04: This applies to a member or applicant for RM status who suffers from a condition incompatible with the safe performance of police work as outlined in APP II-1-6
1 The 04 factor will be assigned to an individual at increased risk of sudden incapacitation.
2 This factor applies to an individual who suffers from a condition which may result in an occurrence that threatens his/her safety or that of a coworker or the public. Limitations and restrictions must be clearly stated so that no such threat to safety occurs.
3 An 04 individual is not subject to operational call out.
4 This factor applies to a CM who suffers from a condition which prevents the safe performance of the tasks for which he/she was engaged
· O5: This applies to an individual capable of performing only sedentary duties
· O6: This applies to an individual not considered employable by the RCMP in any capacity because of physical or mental condition.
(c) The 5 Year Policy
[61] The policy in litigation in the present case is the RCMP profile assignment for general constable who has been diagnosed as having epilepsy or who has had two or more seizures. The original 5 Year Policy states that this person will be assigned profile O4 i.e. non-operational. If the person requires medication to control the seizures, he will remain O4 for the rest of his career. If a person is off medication and seizure free for five years, profile O2 i.e. unrestricted duties may be appropriate. Therefore, according to the original written policy, a person like Cst. Desson who would require medication indefinitely (as we will see later) would have to stay on profile O4, i.e. non-operational duties, for the rest of his career.
[62] According to the testimony of Dr. Ross, Dr. Johnson, Dr. Fieschi, and Dr. Beaulieu, that will be described in more details later, a change of that original policy was discussed in 2010 and finally applied to Cst. Desson. This change permitted him to return to operational duties within the 5 year period even if he was taking medication for his epilepsy condition indefinitely. The written policy has yet to be modified accordingly.
[63] The complainant’s focus and some of his actions may have been motivated by the written 1995 policy, but what applied to him was the revised policy i.e. the return to operational duties after 5 years even if the person is still taking medication.
[64] As there was never a time when Cst. Desson was barred from operational duties under the original policy but would have been able to work under the revised policy, the Tribunal will therefore concentrate most of its analysis on the revised policy
Question 1: Has the 5 Year Policy been adopted for a purpose rationally connected to the performance of the job and is the 5 Year Policy reasonably necessary?
[65] The Tribunal is of the opinion that the original and the revised 5 Year Policy has been adopted for a purpose rationally connected to the performance of the job. Further, the 5 Year Policy is reasonably necessary.
[66] In order to analyse the question, the Tribunal took into consideration the general purpose of the 5 Year Policy, the legitimacy of the general purpose or, in other words, what is it designed to achieve? The Tribunal also considered whether there was any indication that these objectives could be accomplished some other means.
(a) The Facts
[67] The employer’s 5 Year Policy is a specific Policy of maintaining a police officer on administrative duties for five years in the case of an individual with epilepsy. The applicable profile is the Profile App. II-1-5 that is specific to medical conditions of the Central nervous system. That is the profile that was applied to Cst. Desson. The rationale for the profile is explained in the document as follows:
In assigning the appropriate profiles for a neurological condition, it is necessary to determine whether the condition presents a safety risk to the member, coworkers or the public. If the condition may cause sudden incapacitation, assigning the factor is not difficult. The effect of uncontrolled affective disorders on judgment is obvious, as is the effect of paralysis. The effect of extreme cognitive impairment is apparent, but for mild impairment, the line between medical disability and performance inadequacy may be difficult.
Some guidance in this area can be obtained from the Canadian Medical Association guide for driver examination, since driving is such an integral part of police work. Driving a police vehicle requires a class 4 license. This is not the only issue where public safety is threatened by sudden incapacitation but serves as a useful guide. A history of febrile convulsions limited to early childhood can be ignored, as can seizures attributable to a toxic illness from which the person has completely recovered. A person who has spontaneous seizures should undergo neurological investigation. If no epileptiform focus is found, the person must be seizure free, and on no drug for one year before returning to unrestricted duties. In the interim, the person will be assigned profile G2 to G4, O4.
A person who has been diagnosed as having epilepsy or who had two or more seizures will be assigned profile O4. A person who requires medication to control seizures will remain O4. If a person is off medication and seizure free for five years, profile 02 may be appropriate. A person who has seizures only during sleep or immediately on waking for at least five years and who has at least two normal waking EEGs may be assigned profile O2 or O3. A person who has undergone surgery to prevent seizures must be seizure free and on no medication for at least five years before duty restrictions are removed.
Unexplained and recurrent syncopal episodes are treated in a manner analogous to seizure disorders.
(emphasis added)
[68] The 5 Year Policy (profile App. II-1 5) specifies the relation to tasks for General- Diseases of the Central Nervous System as follow:
Diseases of the central nervous system impact on police work in a number of ways: epilepsy carries a risk of sudden incapacitation; Alzheimer’s ……… The impact of the disease on police work will depend on the results of the condition.
For the first Seizure Epileptiform Type:
Epilepsy is impossible to detect if the epileptic event is not witnessed or the person denies the condition. Nevertheless, it is associated with sudden incapacitation. The occurrence of a seizure while pursuit driving or engaged in a task critical to the public safety could be disastrous and a person with an increased probability of such an occurrence must have duties restricted in a manner that will ensure public safety. Relevant tasks include: 2.11, 2,12, 3.3, 4.1, 4.2, 5.1, 7.2, 7.4 and 7.7 [A description is at paragraph 56 of this decision]. It is important to consider not only the potential ill effects of a seizure while performing a task, but also the consequences of the person’s sudden absence.
[69] For the second Seizure-Epileptiform Type:
Once a person has had two spontaneous seizures, the person can be considered epileptic and must not be employed where sudden incapacitation can adversely impact public safety. If the seizure is due to some other pathology, then the permanence of the duty restrictions are determined by the curability and sequelae of the other pathology.
[70] In summary, the reason expressed in the written policy is the safety risk to the member, coworkers and the public because of the risk of sudden incapacitation associated with the disorder. The 5 Year Policy is partly inspired from the Canadian Medical Association Guide for driver examination, since driving is such an integral part of police work.
[71] The evidence also includes a document from the Canadian Council of Motor Transport Administrator (CCMTA) that includes the medical standards for drivers with different health conditions, notably seizures and epilepsy (Chapter 17).
[72] The Complainant argues that the section of the CCMTA document on commercial driving, is not relevant as the RCMP does not require a commercial driver license (taxis, limousines, ambulances) (Class 4 in British Columbia) from their constables. It requires only a non-commercial driver license (Class 5 in British Columbia).
[73] The Tribunal is of the opinion that the section on commercial driving of the CCMTA is highly relevant. Even if the RCMP does not require a Class 4 driver’s license, the risk associated with the kind of driving a police officer does on a Code 3 appears closer to the risk or even higher than a commercial driver and more comparable to an ambulance driver. Indeed, the evidence shows that a police officer on a Code 3 driving task may have to pursue a fleeing suspect in a vehicle while in contact with the dispatch and trying to read a license plate or check for a criminal record meanwhile not losing th