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2003 CHRT 1 | CHRT | 2,003 | Communications, Energy and paperworkers union of Canada v. Bell Canada | en | 2003-01-10 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6862/index.do | 2023-12-01 | Communications, Energy and paperworkers union of Canada v. Bell Canada
Collection
Canadian Human Rights Tribunal
Date
2003-01-10
Neutral citation
2003 CHRT 1
File number(s)
T503/2098
Decision-maker(s)
Deschamps, Pierre; Sinclair, Grant, Q.C.
Decision type
Ruling
Decision Content
Canadian Human Rights Tribunal Tribunal canadien des droits de la personne
BETWEEN:
COMMUNICATIONS, ENERGY AND
PAPERWORKERS UNION OF CANADA,
FEMMES-ACTION
Complainants
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
BELL CANADA
Respondent
RULING ON DISCLOSURE AND PRODUCTION
2003 CHRT 1 2003/01/10
PANEL: J. Grant Sinclair, Chair
Pierre Deschamps, Member
[1] This ruling is in response to two motions, one brought by the Canadian Human Rights Commission and one by the Communications, Energy and Paperworkers Union of Canada. Both motions seek an order from this Tribunal that Bell Canada disclose and produce to them the documents specified in the notices of motion. The Commission and CEP argued that the specified documents are arguably relevant to the issues in this case.
[2] Bell has opposed both motions on the following grounds:
because of their scope, size and nature, the requests are unduly burdensome to Bell in terms of the time required to search for the documents and the costs involved; the Commission and CEP represented from the outset that the only documents that they would rely on to prove their case were 74 documents generated by the Joint Study and selected by the Commission and CEP from among many other documents of the Joint Study. Bell says that it relied on this representation to prepare its defense and conduct its cross-examinations. To order further disclosure at this point in the hearing, would allow the Commission and CEP to materially alter their case to Bell's detriment and they should be estopped from doing so and/or be taken to have waived their right to further disclosure; the Commission and CEP, knowing that Bell challenged the validity of the Joint Study for the purposes of section 11 of the Act, should have reasonably anticipated that more than 74 documents were necessary to make their case and their request is untimely and prejudicial to Bell.
[3] The Commission and CEP have consistently taken the position that the Joint Study was their case and they would be relying on the 74 Joint Study documents, which they had identified, to prove their case.
[4] The hearing of the complaints by this Tribunal began in January 1999. The Tribunal dealt with a number of preliminary motions brought by Bell and only began hearing the merits of the complaints on April 17, 2000. Rule 6 of the Tribunal's Interim Rules of Procedure requires each party to give written notice of all documents in its possession relevant to any matter in issue in the case. None of the parties provided such disclosure nor have any of the parties, at any time, requested that the Tribunal order such disclosure.
[5] The hearing on the merits continued until November 2, 2000, when the Federal Court, Trial Division suspended the hearing because of Tribunal institutional bias. The hearing resumed on September 10, 2001, following the reversal decision of the Federal Court of Appeal.
[6] The record shows that there have been disclosure requests by both the Commission and CEP for documents beyond the 74 Joint Study documents. On April 25, 2000, Bell provided, at the request of the Commission, General Circulars pertaining to the issue of establishment. On September 5, 2001, CEP requested from Bell documents relating to population data, documents relating to exhibit HR-76 and reports or analysis relating to the reliability of the Joint Study in Bell's possession.
[7] During the January 22, 2002 hearing week, it became apparent to the Tribunal that the issues with respect to each party's case had not yet been fully defined. At this time, Commission counsel told the Tribunal that he had no idea of the specifics of Bell's defense. Bell's counsel, for his part, stated that Bell still did not know the case of the Commission. Further, CEP counsel advised the Tribunal that there remained outstanding disclosure requests and indicated that efforts would be made to resolve them through counsel. If not so resolved, CEP might request a blanket disclosure order from the Tribunal.
[8] In an attempt to define the issues and resolve the disclosure questions, the Tribunal, with the agreement of the parties, directed that each party provide a statement of case setting out the material facts to be proved, the legal issues raised by the case, the witnesses to be called and the remedies sought. The Tribunal, again with the agreement of the parties, did not make a blanket disclosure order, but left disclosure questions to be resolved in good faith by the parties. Should any dispute arise relating to disclosure, the Tribunal would deal with it.
[9] The Commission, C.T.E.A., CEP and Femmes-Action filed their statements of case on April 2, 2002, and Bell filed on May 13, 2002. The parties continued discussions on document disclosure from that time onward but could not come to any agreement. Thus, these two motions.
[10] On the evidence and given our knowledge of the issues in this case, we have concluded that the documents requested meet the test of arguable relevance. Bell did not seriously dispute this.
[11] As to the burdensome nature of the disclosure request, evidence given on the motions indicates that the documents requested are located in six to eight filing cabinets at the Bell offices, 1000 De La Gauchetière Street, Montreal. Further, Bell's counsel advised the Tribunal that no JEWC documentation had been found at that location. In response, Commission counsel withdrew the request for disclosure of the JEWC documents unless Bell, on its own initiative, was able to locate them elsewhere. In these circumstances, Bell's counsel conceded that a search for the documents at 1000 De la Gauchetière only would not be unduly burdensome. We agree.
[12] In our view, this is sufficient to dispose of the two motions. The Commission and CEP have requested disclosure and production of the documents itemized in the two motions. We fail to see how Bell is prejudiced by disclosure. Bell is free to object to the production of the documents disclosed. Bell is free to object to the admissibility into evidence of any of the documents disclosed or produced. In our opinion, Bell's submissions on waiver, estoppel and reasonable anticipation are premature.
ORDER The motions are granted and the Tribunal orders as follows:
Bell shall, in a timely manner and using all reasonable efforts, prepare a list of all documents relating to the Joint Study that are found in the filing cabinets referred to in the evidence of Linda Benwell located at the Bell offices, 1000 De la Gauchetière, Montreal. The list shall include any documentation relating to the JEWC job evaluation process and any hard copies of electronic communications, correspondence or documentation for the period 1991-1993 prepared by Michèle Boyer, André Beaudet, Matina Bisbicos or Louise Belle-Isle. If no JEWC documentation is found at 1000 De la Gauchetière, Bell is not required to search elsewhere for such documentation. Bell is not required to search for any Joint Study related electronic communications, correspondence or documentation other than that referred to in paragraph 1. Bell shall provide the Commission and CEP with the list of documents referred to in paragraph 1 and in the event that Bell, on its own initiative, finds any JEWC documentation at some other location, then it shall provide the Commission and CEP with a list of these documents. Bell shall produce copies of any of the documents on the lists referred to in paragraph 4 requested by the Commission and CEP. Bell shall also produce to CEP copies of the documentation requested to paragraphs 3(j) and 3(k) of CEP's Notice of Motion. Any undue costs incurred by Bell for copying the documentation referred to in paragraphs 5 and 6 shall be paid for by the Commission and CEP. The hearing scheduled for the week of Monday, January 13, 2003, is adjourned to Monday, January 27, 2003. If Bell disputes the production as ordered in paragraphs 5 and 6, the Tribunal, on motion, will hear this matter commencing on Monday, January 27, 2003. If Bell does not dispute production, the hearing on the merits will resume on January 27, 2003. If Bell cannot reasonably meet the schedule for disclosure and production, Bell should so advise the Tribunal and the Tribunal will deal with this accordingly.
Original signed by
J. Grant Sinclair, Chair
Pierre Deschamps, Member
OTTAWA, Ontario
January 10, 2003
CANADIAN HUMAN RIGHTS TRIBUNAL
COUNSEL OF RECORD
TRIBUNAL FILE NO.: T503/2098
STYLE OF CAUSE: CEP et al v. Bell Canada
PLACE OF HEARING: Ottawa, Ontario
December 16-20, 2002
RULING OF THE TRIBUNAL DATED: January 10, 2003
APPEARANCES:
Peter Engelmann For the CEP
Francine Charron and Marc Pilon For Femmes-Action
Andrew Raven and Patrick O'Rourke For the Canadian Human Rights Commission
Gary Rosen, Peter Mantas and Guy Dufort For Bell Canada
| ||
2003 CHRT 10 | CHRT | 2,003 | Parisien v. Ottawa-Carleton Regional Transit | en | 2003-03-06 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6558/index.do | 2023-12-01 | Parisien v. Ottawa-Carleton Regional Transit
Collection
Canadian Human Rights Tribunal
Date
2003-03-06
Neutral citation
2003 CHRT 10
Decision-maker(s)
Hadjis, Athanasios
Decision Content
Canadian Human Rights Tribunal Tribunal canadien des droits de la personne
BETWEEN:
ALAIN PARISIEN
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
OTTAWA-CARLETON REGIONAL TRANSIT COMMISSION
Respondent
REASONS FOR DECISION
2003 CHRT 10
2003/03/06
MEMBER: Athanasios D. Hadjis
TABLE OF CONTENTS
I. FACTS
A. The Complainant's Employment History with the Respondent
B. Events in the Months Leading up to the Complainant's Dismissal
C. Events Subsequent to the Complainant's Termination
D. The Evidence of the Experts
II. LEGAL FRAMEWORK AND ANALYSIS
A. The Law
B. The Prima Facie Case
C. Meiorin Test
(i) Steps 1 & 2
(ii) Step 3
III. REMEDY
A. Reinstatement
B. Damages for Lost Income
C. Hurt Feelings
D. Policy Review
E. Interest
F. Retention of Jurisdiction
[1] The Complainant worked as a bus operator for the Respondent. Throughout the course of his employment, he was absent from work for a significant number of days, mainly on account of illness. Eighteen years after he was hired, the Respondent dismissed the Complainant due to his chronic absenteeism. As a result, the Complainant filed the present complaint in which he alleges that the Respondent discriminated against him by refusing to accommodate him and by refusing to continue to employ him because of his disability, contrary to s. 7 of the Canadian Human Rights Act (Act). The disability consists principally of post-traumatic stress disorder (also known as PTSD) and ailments related thereto.
[2] The Complainant's employer at the time of his termination in 1996 was the Ottawa-Carleton Regional Transit Commission, which operated Ottawa's public transit system (otherwise known as OC Transpo). His complaint was filed several months later and the same organization was named as the Respondent. In 2001, pursuant to s. 9 of the City of Ottawa Act, 1999, OC Transpo's operations, including all its assets and liabilities, were transferred to the amalgamated City of Ottawa.(1) Ms. Lois Emburg, a manager with the City of Ottawa, stated during her testimony that the City of Ottawa is accepting any liability to be attributed to the Respondent in the present case. In light of her representations, the Ottawa-Carleton Regional Transit Commission shall continue to be treated as the Respondent in this case. It should be noted, though, that according to the abovementioned legislative provision, the Respondent was dissolved on January 1, 2001.
I. FACTS [3] Most of the facts are not in dispute. All of the parties agree that during his employment with the Respondent (a total of about 18 years and 2 months), the Complainant was absent for about 1664 full days and 33 partial days. His absences were mostly related to illness. The Respondent does not call into question the genuineness of these illnesses.
A. The Complainant's Employment History with the Respondent [4] The Complainant was hired by the Respondent as a bus operator in November 1977. His employment was subject to an initial probationary period. The Respondent's records demonstrate that from the outset, the Respondent was concerned with the Complainant's level of absenteeism, so much so that the probationary period was extended by three months in January of 1979. In the month of September 1979, he was even suspended for several days because of his absenteeism, in accordance with the Respondent's policy in place at that time. No evidence was led as to the nature of the illnesses or other causes that resulted in the Complainant's absences during this early period. The Complainant acknowledges that he was made aware early on that excessive absenteeism within the OC Transpo workforce was an ongoing cause of concern for the employer.
[5] In his testimony, the Complainant brought up some of the events in his life that he feels may have contributed to the onset years later of post-traumatic stress disorder. In 1979, his relationship with a woman to whom he was engaged to be married suddenly ended. This break-up was devastating for him but it did not lead to his being absent from work. In October of 1980, the Complainant's mother died of cancer. He also describes this loss as devastating, noting that he had maintained a very close relationship with her. He took three days off work on bereavement leave, as permitted under the collective agreement.
[6] Only a couple of months later, in December 1980, the Complainant was the victim of a violent assault while he was driving his bus. A passenger wearing army fatigues and a balaclava over his head entered the bus and without any warning hit the Complainant on the side of his face, knocking him unconscious. The Complainant was treated at the hospital and released the same day. He did not return to his job until one week later.
[7] No evidence was led detailing the Complainant's attendance during the early 1980's other than an acknowledgement by him and the Commission that he worked on and off. However, his attendance sheets for the years 1984 and following were produced. In 1984, the Complainant was absent for the entire period from March to early September. The attendance sheet indicates that he was in receipt of worker's compensation benefits during this period but no explanation was provided at the hearing as to the nature or cause of his illness or disability. In 1985, the Complaint was absent due to illness for thirteen full days and four partial days. In 1986, he was absent for thirty full days and one partial day.
[8] In 1987, the Complainant's father suddenly died. The Complainant testified that this was also a significant and disturbing loss for him. He took the permitted bereavement leave of three days. During 1987, he was absent 42 full days and another 4 partial days, due to illness. The Complainant was on sick leave for 28 full days and seven partial days in 1988.
[9] On March 7, 1989, the Complainant was interviewed by management regarding his level of absenteeism. As luck would have it, only two weeks later, another unsettling incident occurred while he was at work. A male passenger entered his bus and began yelling at him. The passenger eventually got off the bus, but just two days later, he confronted the Complainant again. The Complainant was standing outside his bus, at the starting point of his bus route, when the individual approached him. The man had his hand in his pocket and began telling the Complainant that he was going to kill him. Two other bus operators happened to witness the incident and one called over a supervisor. The supervisor reacted by assisting the individual onto another bus, but he did not make a report nor call the police. The Complainant claims that he was genuinely scared of the passenger and that he felt very unprotected and unsafe as a result of the manner in which his employer had dealt with the threat.
[10] Although he did not miss any work at the time of these incidents, in the weeks and months that followed, the number of absences due to illness increased significantly. On July 18, 1989, the employer interviewed him regarding his absenteeism. The Complainant recalls that following the March incidents, he began getting pains in [his] stomach and was feeling quite sick. He went off work from December 1989 until February 1990, his medical certificates indicating that he was suffering primarily from gastro-intestinal problems. He returned to his job in early March 1990 but ceased working on March 21, 1990. This leave of absence ended up lasting for 199 working days. During this period, he was compensated by the Workers' Compensation Board, as his disability was deemed to be related to the trauma associated with the death threat made against him. The medical certificates issued by the Complainant's family physician during this period refer to his anxiety state, job tension and adjustment reaction.
[11] While the Complainant was on leave in 1990, OC Transpo's Occupational Health Unit (Health Unit) communicated regularly with him to follow up on his status and his expected date of return to work. According to the evidence adduced by the Respondent, the Health Unit had a mandate that included gathering information regarding the condition of employees on sick leave and advising the divisions where they worked (their employing divisions) when and if they were ready to return to work. The Health Unit would also assess whether a non-occupational disability claim was well founded, based on the medical information available. It was composed of several nurses who were employed full time as well as one medical doctor who was not an employee of the Respondent but who would be asked occasionally to provide an opinion. The Health Unit's activities were integral to the program that the Respondent had established to manage the attendance of its employees (Attendance Management Program). One of the main reasons for the existence of this separate unit was to protect the confidentiality of the employees' medical information. As such, the Health Unit never disclosed to management the details of an employee's condition. It would only provide to employing divisions general conclusions and opinions as to an employee's preparedness to return to work.
[12] On December 14, 1990, based on the medical information collected from the Complainant and his physician, the Health Unit determined that commencing January 2, 1991, he would be able to resume regular job duties, provided that he be initially assigned to work four hours per day instead of eight. This type of transitional activity was referred to as a process of work hardening. The Complainant performed these modified duties until February 25, 1991, when he went on sick leave, suffering from back pain and abdominal pain, according to the medical certificates submitted to the Respondent at the time.
[13] By April 1991, the Complainant's family physician had come to the realization that the Complainant was preoccupied with being assaulted on his job, to the point of almost paranoid feelings. The family physician apparently concluded that the Complainant was suffering from post-traumatic stress disorder. The physician therefore informed the Respondent that the Complainant could not yet return to work. He referred the Complainant to the Royal Ottawa Hospital for a psychiatric assessment. Dr. Hamilton Sequeira, M.D., a psychiatrist, examined the Complainant on May 17, 1991, and made a provisional diagnosis of post-traumatic stress disorder of longstanding with anxiety, depressive, somatic manifestations. In presenting his diagnosis, Dr. Sequiera referred in his report to the 1980 assault and the 1989 threat as well as the sudden deaths of the Complainant's parents. The Complainant's family physician issued an updated medical certificate declaring that the Complainant would be unable to return to work for an indefinite period. The Complainant received workers' compensation benefits while on this extended medical leave.
[14] Dr. Sequiera recommended a therapeutic approach for the Complainant that included medications as well as cognitive behavioural therapy to desensitize him from his trauma related negative constructs and feelings. For this latter purpose, Dr. Sequiera sought the assistance of Dr. David Erickson, PhD, R. Psych., who was at that time doing his internship to become a clinical psychologist, a recognition that he achieved in 1994. Dr. Erickson testified that cognitive behavioural therapy involves two components: the behavioural aspect encompasses the breaking down of a person's fear into small manageable steps. The cognitive aspect is conducted once some success has been achieved with respect to the behavioural element, and consists of the individual attempting to imagine in advance, doing the activities which are at the source of his anxiety.
[15] Dr. Erickson began treating the Complainant on November 4, 1991. He determined that the Complainant was a good candidate for cognitive behavioural therapy. Between November 1991 and August 1992, Dr. Erickson met the Complainant weekly. He kept the Health Unit abreast of the Complainant's progress. He states in the expert's report that accompanied his testimony in this case, that by July 1992, after eight months of cognitive behavioural therapy combined with medication, the Complainant's state was dramatically improved and ready for a graduated return to work. As part of this transition to full-time work it was agreed between the Health Unit and Drs. Sequeira and Erickson that the Complainant begin this process by driving what was known as the DERC shuttle bus. DERC is the acronym for the Disabled Employees Review Committee, made up of OC Transpo employee and management representatives. The DERC was established by the Respondent in order to assist in the reintegration of disabled employees into the workforce. The DERC shuttle bus was in fact a mini bus in which operators were driven to various locations to take over runs from other drivers. The only passengers on this bus were other OC Transpo employees.
[16] The Complainant drove this vehicle from mid-July to mid-September 1992, following which he was assigned to modified duties (four hours per day) driving regular OC Transpo passenger buses. According to Dr. Erickson, by mid-October 1992, the Complainant was symptom-free and back to his normal level functioning. The Health Unit accordingly recommended to the Complainant's employing division that he could return to full time regular job duties beginning October 14, 1992.
[17] Between December 7, 1992 and January 14, 1993, the Complainant booked off sick for a total of thirteen full days and two partial days, suffering from blurred vision, dizziness, insomnia and gastroenteritis. Dr. Erickson noted, after speaking with the Complainant on December 14, 1992, that his anxiety problems had returned, in part as a result of driving on some of the routes that he most feared prior to his treatment. Medication was prescribed for him by Dr. Sequeira and regular visits were scheduled with Dr. Erickson.
[18] Unfortunately, on January 15, 1993, a bus that the Complainant was driving was hit from the rear by another vehicle, as a result of which he suffered a whiplash injury (cervical neck strain). According to his family physician, the injury was such that he could not return to work until May 1993. Dr. Erickson notes in his expert's report that the Complainant experienced great frustration at being prevented from working as a result of the accident, and some gastro-intestinal problems and headaches that he suffered over this period were likely related to this distress. However, Dr. Erickson points to the absence at that time of any anxiety, mood problems or sleep disturbance that would indicate residual post-traumatic stress disorder.
[19] After being on leave due to the work-related whiplash injury for a total of 92 working days, the Complainant returned to his regular job duties at the beginning of June 1993. In August 1993, he went on sick leave for a total of six days and one partial day. According to the medical certificate that he submitted, he was suffering from acute anxiety. By October 1993, the Complainant had developed a major sleep disturbance and had to take another leave of absence that was to extend until June 1994.
[20] His sleep had been reduced to two to three hours per night. Dr. Sequeira transferred the Complainant to the care of another psychiatrist with a specialty in sleep disorders. His treatment included prescribing medication to help the Complainant sleep and to prevent the occurrence of periodic partial leg movements that were awakening him during his sleep. By May 1994, this psychiatrist deemed the sleep problems to be now under control and believed that the Complainant was ready to return to work.
[21] On May 27, 1994, the Health Unit sent a memo to the Complainant's employing division stating that his prognosis was now for regular attendance at work. The memo referred to an unnamed treating physician of the Complainant who had declared that his medical problem had been resolved and that it should not cause him any future problem. In addition, the Complainant was examined by the external medical practitioner of the Health Unit and the memo notes his observation that the Complainant's attitude was very positive, more so than in earlier assessments conducted by the same doctor in 1992 and 1993.
[22] The Complainant therefore returned to his regular job duties on June 2, 1994. Shortly after returning to work, he was confronted by several teenagers while driving his bus, in a manner that he perceived as threatening. He felt scared and vulnerable, as if someone was always out to get him. He found himself unable to sleep again so he took a higher dose of his sleep medication. This resulted in drowsiness that rendered him unable to perform his work properly. On June 5, 1994, the Superintendent of Operational Personnel, Mr. Ron Mooney, having observed the Complainant's reduced faculties, instructed him to cease operating a bus. The superintendent sent a memo several days later to the Health Unit asking that the Complainant be reassessed to determine if he was capable of returning to regular full time employment.
[23] By July, 1994, Dr. Sequeira had resumed all of the Complainant's psychiatric care. The Complainant also recommenced receiving treatment from Dr. Erickson. Within weeks, Dr. Sequeira observed that the Complainant had become so depressed, anxious and sleep-deprived that it became necessary to admit him into the Mood Disorders Unit of the Royal Ottawa Hospital. He was diagnosed with major depression, sleep disorder and generalized anxiety disorder. He was discharged from the hospital on September 20, 1994. The depression and sleep troubles were resolved by June 1995.
[24] As these problems diminished, though, the presence of post-traumatic stress disorder symptoms became apparent again. His avoidance pattern was consistent with a fear of being assaulted, combined with regular daytime flashbacks. Dr. Erickson implemented another program of cognitive behavioural therapy for the Complainant. According to Dr. Erickson, as part of the therapy, the Complainant exerted great effort, as he relived the fear of being assaulted on a daily basis. In Dr. Erickson's opinion, the therapy proved effective and by February 1996, (the month in which the Complainant was dismissed) the post-traumatic stress disorder had been vanquished.
B. Events in the Months Leading up to the Complainant's Dismissal [25] On October 26, 1995, the Health Unit interviewed the Complainant, in accordance with a policy that required such meetings periodically with employees who were in receipt of long-term disability benefits. It determined, based on the Complainant's comments as well as information obtained from his physicians, that he hoped to return to his regular occupation as a bus operator. According to a memo prepared by the Health Unit after the meeting, the Complainant was advised that his job with the Respondent was only protected for a period of 24 months following the date when he began receiving long term disability benefits. This period was to come to an end on February 2, 1996. If by that time he did not return to his own job or to some other job within OC Transpo, the Respondent would make a decision as to his continuing status and would in all likelihood [...] medically terminate him.
[26] On December 13, 1995, Dr. Sequeira filled out a form for the Ontario Ministry of Transport. The Complainant's C Class driver's licence, which permitted him to operate buses, had been downgraded because he was disabled on a long-term basis. The application for regaining the permit required that a physician report on the driver's medical condition. Dr. Sequeira stated on the form that the Complainant was ready to regain his licence as he was much improved of the symptomatology of fear-anxiety-avoidance-depression that was part of his post-traumatic stress disorder.
[27] On January 31, 1996, Dr. Sequeira and Dr. Erickson signed a letter that they had jointly prepared, addressed to the Health Unit of OC Transpo, in which they stated the following:
Alain is now in the final stages. Within a few weeks, the [cognitive behavioural therapy] regarding the post-traumatic anxiety will be sufficiently advanced to allow a safe return to work. The feared stimuli, i.e. clothing worn by his assailant, will no longer prompt incapacitating anxiety. Rather, Alain will experience only mild tremulousness.
His sleep disturbance is similarly well controlled. While he continues to have anxiety-related nightmares, they are no longer severe enough to disrupt his sleep. He does continue to have difficulty waking in the morning, however: once he has had time to gradually adjust to a structured daily routine, this problem will return to normal limits.
Finally, Alain's depressed mood is no longer an issue. In the past month, he has experienced mild dysphoria an average of 2-3 times per week, where each occasion lasts 1-2 hours. No period of severe or sustained depressed mood has occurred in the past month. Thus, Alain's mood is clearly within normal limits.
Drs. Sequiera and Erickson then went on to describe the Complainant's medications, noting that they would not interfere with his ability to operate an OC Transpo bus. It was also pointed out that the Complainant would continue to see both specialists over the following several months, just to deal with any remaining anxieties and to monitor the medications. The following conclusions were made towards the end of their letter:
During this time, Alain's health will be best served by beginning with part-time duties, and gradually building up to full-time duties. In the initial period of readjustment, extreme hours are contra-indicated because of their potential for sleep disturbance. We would greatly appreciate being consulted in preparing increases in Alain's scope of duties, as experience from his past has shown that it is possible to do too much too soon.
In sum, the prognosis is very good. Alain has worked hard to regain positive and constructive moods, such that he is now well within normal limits. The PTSD-related anxiety is much diminished, and will not interfere with his performance as an operator.
(My emphasis)
[28] The Complainant contacted the head nurse of the Health Unit to discuss his coming back to work, several days in advance of the February 2, 1996 deadline that the Respondent had set for his return. She advised him to simply show up at work on that designated day and speak to Mr. Mooney, the Superintendent of Operational Personnel. The Complainant did so, and when he met with Mr. Mooney, he explained that he was ready to work, requesting only that some adjustments be made to ease his transition back, in accordance with the recommendations of his psychiatrist and psychologist. Mr. Mooney informed the Complainant that no such work-hardening adjustments would be made available to him and, according to the Complainant, when he asked if he could be assigned to work at some other job at OC Transpo, he was told there was nothing. Instead, Mr. Mooney said that the Complainant's file was under investigation and that the Complainant would be informed of the outcome two weeks later. The Complainant's testimony regarding these meetings was not contradicted and neither the head nurse nor Mr. Mooney testified in this case.
[29] On February 6, 1996, Mr. Mooney wrote to the Health Unit asking if the Complainant's present condition, for which he had just received treatment, was the same as the condition for which there had been a prognosis of regular attendance back in May 1994. He also asked if the Health Unit was convinced, based on the medical information, that the Complainant should return to work as a bus operator when his licence was reinstated. In the Health Unit's reply, dated February 9, 1996, specific reference was made to the recently obtained opinions of Drs. Sequiera and Erickson to the effect that the Complainant could begin with part-time duties and gradually build up to full time duties. The Health Unit, however, concluded as follows:
Taking into consideration the medical information on file at present, the fact that Mr. Parisien does not hold a class C licence at present, as well as his past record of attendance, the Health Unit is not fully convinced at this time that Mr. Parisien will be able to perform his duties as a bus operator on a regular basis.
If the Transportation Division [the Complainant's employing division] is able and prepared to offer Mr. Parisien alternate employment, we will contact his medical advisors to quantify his restrictions and to obtain a more complete prognosis. Please advise us as to your decision.
(My emphasis)
[30] Mr. Mooney met with the Complainant about a week later, on February 15, 1996, and advised him that his employment was terminated. In a follow-up letter addressed to the Complainant on February 19, 1996, Mr. Mooney stated:
This letter is to confirm our meeting held on February 15, 1996 to clarify your employment status with the Commission.
Based on the information presented at our meeting we find it necessary to terminate your employment with the Commission due to chronic innocent absenteeism effective February 15, 1996.
[31] The Complainant claims that he pleaded with Mr. Mooney to allow him to return to work for OC Transpo but he was told that the decision to terminate would stand. He contends that at the time of his termination he was feeling quite good and wanted to get back right away to his ordinary duties as a bus operator. He acknowledges that he was not yet one hundred per-cent and that he could not have immediately returned to regular full-time bus driving duties. He would, however, have been able to perform modified job duties during a period of transition, as Drs. Sequiera and Erickson had recommended.
C. Events Subsequent to the Complainant's Termination [32] The Complainant filed a grievance against his dismissal several days later. The grievance passed through the required stages in the grievance process and was ultimately ruled upon through an expedited arbitration process on December 4, 1998. The labour arbitrator decided that there was just cause for the Complainant's termination and dismissed the grievance. He found that the Respondent reasonably concluded, on the evidence before it that the Complainant would not be able to perform his duties as a bus operator on a regular basis.
[33] In a preliminary motion presented to the Tribunal, prior to the hearing on the merits of the present case, the Respondent submitted that the subject matter of the Complainant's human rights complaint fell within the exclusive jurisdiction of the labour arbitrator and that the doctrines of issue estoppel and cause of action estoppel deprived the Tribunal of jurisdiction to hear the matter. The motion was dismissed by Tribunal Chairperson Anne L. Mactavish on July 15, 2002.(2) In her ruling, the Chairperson found that the issue before the arbitrator was whether the Complainant's termination was unjust and not whether he had been a victim of a discriminatory practice within the meaning of the Act.
D. The Evidence of the Experts [34] The Commission called Dr. Erickson and Dr. Sequeira to testify as experts at the hearing. They were qualified as persons who have acquired special or peculiar knowledge through study, education and experience with the Complainant, such that they could assist the Tribunal with respect to their interactions with him and their respective fields generally (psychology for Dr. Erickson and psychiatry for Dr. Sequeira).
[35] In Dr. Erickson's opinion, between 1989 and 1996 inclusively, the Complainant experienced two distinct episodes of post-traumatic stress disorder, one at the beginning of this period (from the threat to his life in 1989 until his return to work in September, 1992) and another towards the end (from June 1994 until February 1996). Between these bookends, the Complainant also passed through an episode of severe sleep, mood and generalized anxiety, from about October 1993 until June 1995, overlapping onto the final PTSD bookend. Dr. Erickson believes that this episode was likely related - in an indirect way to the Complainant's initial bout with PTSD.
[36] Dr. Erickson finds that the Complainant exhibited all of the classic elements of post-traumatic stress disorder, including:
· experiencing a traumatic event,
· intrusive daytime reliving of that event, as well as recurring nightmares,
· avoiding certain behaviours that he used to enjoy in the past, and
· being in a state of persistent hyper-arousal.
[37] For his part, Dr. Sequeira agrees that the initial diagnosis of PTSD was well-substantiated and that the PTSD had fully developed by 1989. In his opinion, the second episode, in 1994-95, was a re-emergence of the PTSD and not so much a bookend. With respect to some of the other illnesses that caused the Complainant to be absent from work, Dr. Sequeira points out that it is not uncommon for persons suffering from PTSD to also experience generalized anxiety disorder, phobia, major depression and sleep disorder. According to Dr. Sequeira, a connection may even exist between PTSD and some of the other ailments from which the Complainant suffered, including diarrhea and muscle spasms, although it is also possible that these symptoms were unrelated.
II. LEGAL FRAMEWORK AND ANALYSIS A. The Law [38] Section 7 of the Act declares that it is a discriminatory practice to refuse to continue to employ an individual, or to treat an employee in an adverse differential manner, on the basis of a prohibited ground of discrimination. Disability is included amongst the list of prohibited grounds of discrimination set out in s. 3 of the Act. According to s. 25, disability, for the purposes of the Act, means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
[39] Section 15 (a), as it was designated prior to the 1998 amendments to the Act, (3) provides that it is not a discriminatory practice if the differential treatment exercised by the employer is based on a bona fide occupational requirement (BFOR). In 1999, the Supreme Court of Canada, in what are generally referred to as the Meiorin(4) and Grismer (5) cases, had the occasion to restate the approach to be followed whenever such a defence is invoked. The Court reaffirmed that a complainant bears the initial burden of establishing that the standard or policy adopted by the employer-respondent is prima facie discriminatory.
[40] Once a prima facie case of discrimination has been established, the employer-respondent may justify the impugned standard by establishing on the balance of probabilities:
that the employer adopted the standard for a purpose rationally connected to the performance of the job; 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; that the standardis 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.(6)
B. The Prima Facie Case [41] The Commission submits that one need only look at the Respondent's Statement of Particulars, which was prepared prior to the hearing in accordance with the Tribunal's Interim Rules of Procedure, to conclude that a prima facie case has been established. Amongst the items detailed in the document are the material facts that the Respondent seeks to prove in support of its case (Interim Rule 6(1)(a)). The Respondent declares, as a material fact, that the Complainant's absences from work were the result of illnesses, some of which were diagnosed as being PTSD and chronic sleep disorder. After detailing the number of days that the Complainant was absent from work, the Respondent states that on February 15, 1996, the Complainant was dismissed due to chronic absenteeism, as there was no prospect of regular or reliable attendance at work.
[42] In a subsequent letter from Respondent counsel to the Commission, it was clarified that at the time of the dismissal, the Respondent considered the Complainant fit to return to full and regular duties as a bus operator. However, the Respondent did not accept that the medical report from Dr. Sequeira and Dr. Erickson dated January 31, 1996, provided any prognosis of regular attendance in respect of the performance of these duties, and the Complainant was consequently dismissed.
[43] Two former managers at OC Transpo, Mr. Ron Marcotte and Mr. Gerald Timlin, testified that amongst the factors considered by the Health Unit, when assessing whether an employee has any prognosis of regular attendance, is his or her previous attendance record. Unquestionably, the Complainant's attendance record was poor, but the Commission points out that this came as a result of the Complainant's illnesses, principally PTSD, a mental disability falling within the definition of disability as set out in s. 25 of the Act.
[44] Thus, it is argued, all of the elements of the prima facie case have been made out. The Complainant, who suffered from a disability, was dismissed from his employment by the Respondent, at least in part, because of his record of absenteeism. The primary cause of the absenteeism was his disability. Therefore, one of the factors in the Respondent's decision to dismiss the Complainant was his disability, which constitutes one of the proscribed grounds of discrimination under the Act. For a complaint to be substantiated, discrimination need only be one of the factors underlying a respondent's conduct. (7) Accordingly, submits the Commission, the Respondent in the present case is prima facie in breach of the Act.
[45] The Respondent disagrees, arguing that in order for a prima facie case to be established, it must be demonstrated that the Complainant has actually been discriminated against. It is not sufficient to contend that merely because a disabled person has been dismissed, discrimination has taken place. It must be shown that the individual was dismissed because of the disability. The Respondent points out that it did not disagree with the opinion of the medical experts to the effect that the Complainant was able to return to work as a bus operator. Counsel for the Respondent reiterated, in his final submissions, the position that he had adopted in his pre-hearing correspondence with the Commission: that is, when the Complainant was dismissed in February 1996, the Respondent considered him fit to return to full and regular duties as a bus operator. The Respondent argues that the decision to dismiss the Complainant, therefore, was not based on any assumption that he was disabled. In the absence of this element, the Commission cannot claim that the Complainant was subject to discriminatory treatment on the basis of a disability. The Complainant was simply let go because of the poor prognosis of his regular and reliable attendance, not his ability to perform the work whenever he would attend. The Respondent's treatment of the Complainant, pursuant to its policy on innocent absenteeism, was no different than that afforded any worker, whether disabled or not, who failed to have a good attendance record and whose predicted attendance in the future was equally unsatisfactory.
[46] I find that the facts do not support this argument. The Respondent's decision to dismiss the Complainant was clearly influenced by the Complainant's medical condition, as appears from the evidence of Mr. Timlin, who was then Director of Occupational Health, Safety and Benefits at OC Transpo. He participated in the management process that led to the decision to dismiss the Complainant. Mr. Timlin testified that in deciding to fire the Complainant, OC Transpo relied heavily on the opinion of its Health Unit. The memo that the Health Unit sent to management regarding the Complainant's prognosis could not have been any more clear, stating that its finding took into consideration the medical information on file and the Complainant's past record of attendance. The Respondent cannot now suggest that the Complainant's medical condition was not at least one of the factors that lead to its conclusion to dismiss him. As I indicated earlier, it is not necessary for a proscribed ground to be the only factor underlying a respondent's conduct for there to be a finding of discrimination. I would also add that Mr. Timlin testified that OC Transpo's decision to terminate the Complainant was not influenced at all by the other consideration stated in the Health Unit's memo, that of his lacking a Class C driver's licence. Mr. Timlin explained that the Respondent regularly assists employees, whose permits have been downgraded while on leave, to reacquire the required certification.
[47] As an indication that the decision to dismiss the Complainant was not influenced by his medical condition, the Respondent refers to the Complainant's poor overall attendance record, dating back to the 1970's, and well before his affliction with PTSD. It is therefore suggested that the Complainant was simply someone who could not maintain regular and reliable attendance. An employer that suffers the consequences of an employee's failure to fulfill his work obligations should be justified at some point to consider the employment contract as having come to an end. But this argument does not truly reflect the facts of this case either. As I have already stated, the Health Unit's memo, upon which the Respondent's decision to dismiss was based, unquestionably concerned the Complainant's medical condition. Furthermore, although some of the Complainant's absences were not related to PTSD, the largest portion of them was, and, moreover, I accept the evidence of the Commission's experts that some of his other illnesses may have been related to the PTSD. In any event, even if the absenteeism prior to the PTSD was the only factor in his dismissal, why was the Complainant not dismissed before the onset of the disability? It is noteworthy that in the period leading up to his dismissal, the Complainant's longest continuous absence from work occurred while he was recovering from PTSD and other illnesses that may be related to this disorder.
[48] I do not accept the Respondent's further submission that the treatment of the Complainant should only be compared to that of other OC Transpo employees with poor non-culpable absenteeism records. The Complainant's attendance record was inextricably linked to his disability. The Respondent concedes that as of the date of the Complainant's dismissal, he was considered fit to return to work. Yet the employer expected him to produce medical or other evidence to demonstrate that he would be able to maintain regular and reliable attendance in the long term, defined by Mr. Timlin to mean as many as twenty years into the future. Other OC Transpo employees who were healthier than the Complainant were able to maintain good attendance records in the past because they lacked his distinguishing characteristic, a disability. It was not suggested that those employees were expected to provide evidence demonstrating a 20-year prognosis of regular and reliable attendance. In this sense, the Complainant, a person who had suffered from a disability, was treated differently than employees who were not disabled.
[49] I find that the Respondent's prediction that the Complainant's attendance in the future would be poor was based on the likelihood that he would suffer some form of relapse. When Mr. Mooney, the Superintendent of Operational Personnel, sought the Health Unit's opinion prior to dismissing the Complainant, he was interested in knowing whether the Complainant's condition, at that time, was any different from that for which there had been a prognosis of regular attendance, in 1994, after the Complainant's recovery from the sleep disorder. According to Mr. Timlin's testimony, the employer was in effect seeking some additional guarantee that the Complainant's attendance would improve.
[50] I am convinced that underlying the Respondent's decision to dismiss the Complainant was an assumption that he would likely suffer from some sort of recurrence of prior illnesses, which would in turn result in additional absences from work. Conduct that is based on an actual or perceived possibility that an individual may develop a disability in the future constitutes discrimination on the basis of disability, according to the Supreme Court of Canada, in Quebec (C.D.P.D.J.) v. Montreal (City) (Montreal). (8) Although that case dealt with the Quebec Charter of Human Rights and Freedoms,(9) which prohibits discrimination based on a person's handicap, as opposed to his disability, the Court stressed that the objectives of human rights statutes throughout Canada do not vary because of such differences in terminology. (10)
[51] The Respondent argues that its motive at all times was to manage the attendance within its workforce. Labour relations law recognizes the right of an employer to dismiss an employee due to excessive innocent absenteeism, provided the employer satisfies the test of demonstrating that the employee has a record of undue absenteeism in the past and that he or she is incapable of regular attendance in the future.(11) However, any discussion relating to the Respondent's motives is irrelevant to the issue before this Tribunal. It is trite law that an intention to discriminate is not a necessary element to proving discrimination under Canadian human rights legislation. (12) If the application of a labour relations policy has as an unintended effect, the adverse differential treatment of an individual based on a proscribed ground of discrimination, there may still be a finding of discrimination against the employer who is implementing the policy.
[52] The Respondent is concerned that if this approach is followed, the logical outcome will be that an employer will never be permitted to dismiss an employee whose level of disability-related absenteeism is unacceptably high. In effect, the employer will be compelled to keep an employee who is unable to fulfill his end of the employment bargain, that is, the performance of his work. Counsel for the Respondent directed me to the labour arbitration decision in Re: Air B.C. Ltd. and Canadian Airline Dispatchers Assn., (13) wherein the arbitrator rejected such a suggestion and noted that the existence of human rights legislation does not result in the eradication of the labour relations doctrine of non-culpable absenteeism.
[53] The conclusions of the labour arbitrator in that case, though, serve to demonstrate that the Respondent's concerns are, in fact, unwarranted. As is pointed out in the decision, there are two issues to be considered in such cases: first, did the employer meet the tests set out in labour relations jurisprudence to establish a case of non-culpable absenteeism, and then, second, whether the employer's conduct contravenes the applicable human rights legislation. This latter issue is resolved by conducting a BFOR analysis, the approach for which was most recently set out in Meiorin. It is the third step of the Meiorin test that maintains an employer's right to dismiss an employee in such cases, provided the employer demonstrates that it cannot accommodate the employee without imposing undue hardship on itself. Where an employer is able to establish these elements, its decision to dismiss an employee due to his or her non-culpable absenteeism will be justified.
[54] When measured against the labour relations test, there is no doubt that the Complainant's record of innocent absenteeism was very high. There is some issue as to what the prognosis for regular attendance was. The medical experts' letter of January 31, 1996 stated that his prognosis was very good, yet in their respective testimonies, they were both forthright in their explanations that this prediction was limited to the short term. It would have been irresponsible of them to have attempted to foretell the state of the Complainant's health to any greater extent. Counsel for the Respondent suggests that I am in some way bound by the findings of fact of the labour arbitrator who, in his ruling regarding the Complainant's grievance, stated that the prognosis for his regular attendance was indeed poor. However, I do not see the necessity to follow this course, considering that the medical evidence of the Commission's experts does not contradict the position of the Respondent that at the time of the dismissal, the prognosis beyond the short term was at the very least uncertain.
[55] The point to be made here is that even if the Respondent was correct in its assessment of the Complainant's condition and its decision satisfied the non-culpable absenteeism test formulated in labour relations law jurisprudence, the matter before this human rights tribunal remains undecided. One must still proceed through the BFOR analysis articulated by the Supreme Court of Canada in Meiorin.
[56] To summarize on this point, I find that a prima facie case of discrimination has been established. The decision by the Respondent to dismiss the Complainant, in furtherance of its program to manage and improve attendance within its workforce, was based, at least in part, on the Complainant's disability. It is therefore now incumbent upon the Respondent to demonstrate that its decision was based on a bona fide occupational requirement.
C. Meiorin Test (i) Steps 1 & 2 [57] The first element of the Meiorin test requires the employer to demonstrate that the standard in issue was adopted for a purpose rationally connected to the performance of the job. A document describing OC Transpo's Attendance Management Program was entered into evidence. Mr. Marcotte testified that the principles set out therein reflect the policy that was in place when the Complainant was dismissed in 1996, although the document itself may have been drafted some months thereafter. According to this text, the stated purpose of the Attendance Management Program was as follows:
[...] to reduce the high cost of absenteeism in a way that is consistent and fair to all employees. Employees have an obligation to maintain regular attendance; OC Transpo has a responsibility to; [sic] create working conditions conducive to good attendance, monitor attendance, and to work with employees who are experiencing extraordinary levels of absenteeism.
As the Canadian Human Rights Tribunal concluded in Eyerley v. Seaspan International Ltd.,(14) there is an obvious rational connection between a rule designed to maintain reasonable levels of attendance on the job and the requirements of that job. In any event, the Commission did not argue that Step 1 was not satisfied in the present case.
[58] It is similarly not in dispute that the Respondent adopted the Attendance Management Program in an honest and good faith belief that it was necessary for the fulfilment of this stated purpose.
(ii) Step 3 [59] In order for the Respondent to show that its program regarding innocent absenteeism was reasonably necessary for the accomplishment of its stated purpose of maintaining reasonable levels of attendance, it must be demonstrated that it was impossible to accommodate the Complainant or other employees sharing his characteristics, without imposing undue hardship upon the Respondent. When the Act was amended in 1998, Section 15(2) was added to provide that health, safety and cost are the factors to be considered in determining whether accommodating a person's needs would impose undue hardship on an employer. However, the facts giving rise to the present complaint occurred prior to the passage of this amendment, and, as was pointed out in Desormeaux v. Ottawa Carleton Regional Transit Commission (15), my consideration of the accommodation issue is therefore governed by the principles articulated by the Supreme Court in Central Dairy Pool v. Alberta (Human Rights Commission) (16) and several subsequent cases. Some of these principles have been summarized in Eyerley:(17)
In Central Okanagan School District No. 23 v. Renaud (18), Sopinka, J. noted that undue implies that some hardship is acceptable; it is only undue hardship that satisfies this test. In Central Dairy Pool v. Alberta (Human Rights Commission) (19), other relevant factors considered by the Supreme Court include, financial cost, interchangeability of the workforce and facilities, the provisions of the collective agreement, substantial interference with the rights and morale of other employees, and employee safety. Excessive cost may justify a refusal to accommodate those with disabilities, but there must not be too low a value put on accommodating disability. Otherwise it would be too easy to use increased cost as a reason for refusing to accord the disabled equal treatment (20). The provisions of a collective agreement cannot absolve the employer of its duty to accommodate, although substantial departure from its terms is a factor to be considered for undue hardship. (21)
[61] The Respondent contends that in cases involving innocent absenteeism releases, the accommodation aspect of the analysis may not be necessary. When assessing an employee's prognosis for regular and reliable attendance, an employer implicitly takes into consideration whether that employee could be accommodated to the point of undue hardship. As Counsel for the Respondent noted, there is nothing incompatible with innocent absenteeism releases and human rights considerations flowing through each other. In such cases, therefore, there no longer remains any need to proceed through the third step in the Meiorin analysis.
[62] I respectfully disagree. As the arbitral decision in Air B.C. illustrates, there are two stages involved in reviewing innocent absenteeism dismissals. The first is conducted in accordance with labour relations law and the second in accordance with human rights law. I fail to see how one can assume that once an employer properly concludes that an employee's prognosis for attendance is poor, the employer's duty to accommodate under human rights law is satisfied. A review of the labour arbitration ruling regarding the Complainant's grievance supports this point. OC Transpo's decision to dismiss the Complainant was held to be just, even though the arbitrator did not examine whether the employer had accommodated the employee to the point of undue hardship, in accordance with the human rights principles referred to above. The Arbitrator's comments on the issue were limited to a blanket statement that the Complainant had been amply accommodated in the past to no avail and that therefore, it was not a case where the employer has failed to accommodate a disability. The notion of undue hardship was never even discussed.
[63] The Respondent goes on, however, to provide a second reason for not proceeding through an accommodation analysis. Based on the medical opinion of Drs. Sequeira and Erickson, OC Transpo viewed the Complainant as being fit to work as a bus operator at the time of his dismissal. Consequently, there remained no disability for the employer to accommodate. Having come to the conclusion that the Complainant's prognosis for regular and reliable attendance in the long term was poor, the only possible form of accommodation would have been for OC Transpo to tolerate the Complainant's predicted high level of absenteeism. This, argues the Respondent, is not an acceptable form of accommodation.
[64] Counsel for the Respondent directed me to the 1992 case of the Ontario Board of Inquiry in Bonner v. Ontario (Minister of Health), (22) which related to a complainant who suffered from periodic bouts of depression. The Board mentioned in its ruling that a person who by reason of handicap cannot work competently on a regular basis is incapable of satisfying the requirements of the position regardless of how he or she might perform when unaffected by that handicap.(23) The Board went on to reject the premise that someone with such a disability should be accommodated in the sense of being tolerated.
[65] I find this decision of limited relevance to the present case. First of all, these references constitute obiter dicta, as the principal finding of the Board was that the complainant in that case would not have performed satisfactorily, irrespective of his handicap. Furthermore, the Board did not consider differential treatment of someone who may possibly develop a disability in the future, as being a form of discrimination. This finding is incompatible with the subsequent judgment of the Supreme Court in the Montreal case. Overall, the Board took a narrow view regarding accommodation and undue hardship. The Board asserted that the principle of undue hardship does not require an employer to hire or retain employees who, because of a handicap, are always or occasionally incapable of doing the work, simply because the employer has the resources to tolerate actually deficient work.(24) The law has moved well beyond such an interpretation, as evidenced by the statement of the Supreme Court of Canada, in Meiorin, that the employer bears the burden, under the third step of the analysis, of demonstrating that it is impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship on the employer. (25)
[66] Besides, I fail to see how tolerating absenteeism cannot constitute an acceptable type of accommodation. Certainly, all employers must be prepared to accept some level of absenteeism from all employees as it is inevitable that they will be unable to attend their work, from time to time. The issue to be decided is whether this tolerance of a certain level of absenteeism would impose undue hardship on the employer, taking into consideration all the appropriate factors. In the recent Alberta Court of Queen's Bench case of UNA v. Calgary Health Authority,(26) one of the issues to be decided was whether the employer is obliged to hire a qualified woman who is pregnant, for a term position, if it is known from the outset that she cannot complete the entire term due to the impending birth of her child. The Court found that it would be erroneous to assume that accommodating this sort of availability issue would inevitably result in undue hardship. The Court saw no distinction between the duty to accommodate such absenteeism from the duty in cases such as Central Alberta Dairy Pool and Simpsons-Sears, (27) where the employers were obliged to accommodate employees who would be absent on a regular basis, to the point of undue hardship. I do not, therefore, accept the Respondent's suggestion that the third step in the Meiorin analysis has no application in this case.
[67] One of the reasons why the Respondent considered that the only form of accommodation available would be to tolerate absenteeism was because it assumed that the Complainant could only and would only work as a bus operator. Yet, the evidence shows otherwise. To begin with, the Health Unit memo, which OC Transpo management relied upon in deciding to terminate the Complainant's employment, suggested in its second paragraph that the Health Unit was willing to contact his medical advisors regarding alternate employment, if his employing division was able and prepared to offer the Complainant such employment. The Health Unit, therefore, had not rejected the possibility of his being able to perform satisfactorily in another job.
[68] In addition, the Complainant testified that when he was told that he would not be allowed to return to his job, he asked Mr. Mooney to let him take on some other duties within OC Transpo. Mr. Mooney refused and informed him that no form of rehabilitation would be provided. I found the Complainant's entire testimony forthright and credible and no evidence was led to contradict his recollection of this conversation. Even if the OC Transpo managers who decided to dismiss the Complainant (including Mr. Mooney and Mr. Timlin) thought that the only employment option available in his case was to keep him as a bus operator, the information before them clearly suggested that other options should have been examined.
[69] This raises another important failure on the part of the Respondent in dealing with the Complainant. In Meiorin, the Court alluded to the practical usefulness, in conducting the accommodation analysis, of considering separately:
the appropriateness of the procedure that the employer adopted to assess the issue of accommodation, and the substantive content of the accommodating standard that was offered to the employee, if any.(28)
The Commission submits that, with respect to the Complainant's disability, the Respondent failed to even observe the policies outlined in its own Attendance Management Program, and, as such, neglected to accommodate him procedurally. For instance, the Attendance Management Program provided that all reasonable efforts must be taken to try to rehabilitate or accommodate an employee who is found to be innocently absent from work because of a disability, if this can be done without undue hardship. These accommodation mechanisms included the options offered by the DERC, such as the shuttle bus to which the Complainant had been assigned in 1992.
[70] The Attendance Management Program goes on to declare that an employee can only be medically terminated once every reasonable effort has been made to accommodate the employee within the work place. The Commission argues that the Complainant was terminated before any such effort was made. Indeed, I find that the Respondent, on whom rests the burden to demonstrate that the employee could not be accommodated, did not present evidence that any such attempts were made. To the contrary, it appears that the Respondent, having concluded that the Complainant was already fit, proceeded with the dismissal without considering any other options. Yet, as I have already explained, OC Transpo's decision was tainted with an assumption that the Complainant would not be able to regularly attend work, on account of a possible occurrence of illness in the future.
[71] There was some suggestion in the medical experts' letter of a process of work hardening that would assist in the Complainant's readjustment. In addition, the Complainant's past experience demonstrated that his recoveries were undermined when confronted with stressful situations, such as driving on routes on which he had been attacked in the past. Ensuring that the Complainant avoided such circumstances may have assisted in preventing any recurrence of his disabilities. The Respondent argues that the Complainant's medical advisors never suggested that he needed to do another job, but that he was ready to return to his duties as a bus driver. I do not find this argument convincing. There is no evidence that any question about alternate employment was ever asked of the experts. Dr. Sequeira and Dr. Erickson certainly were prepared, as indicated in their January 31, 1996 letter, to be consulted by the employer regarding the assignment of duties, presumably as a bus driver. Considering the Respondent's concern that the Complainant would be unable to maintain regular attendance as a bus operator, nothing prevented the Respondent, at this point, from requesting that the Complainant's experts provide their opinion regarding alternate employment. There is no evidence that any such request was made.
[72] Do employers have the obligation to make such an enquiry? The Respondent suggests not, citing as authority for its position the recent judgment of the British Columbia Court of Appeal in Oak Bay Marina Ltd. (c.o.b. Painter's Lodge) v. British Columbia (Human Rights Commission) (Oak Bay).(29) The Court found that the employer in that case was entitled to rely on its own experience with the complainant in assessing his ability to perform the job, and was not required to investigate any further into his mental disability by, for instance, obtaining additional expert opinions. However, the findings in this decision are clearly fact-specific. The job in question was that of a guide working on small fishing boats travelling over what were described as among the deadliest waters in British Columbia. The lives of the employer's clients rested in the hands of the guide and it is evident that the Court believed that in the interests of their safety, the employer was entitled to rely on its own empirical knowledge regarding the complainant's capacity to function under these circumstances. In the present case, the Respondent does not question the Complainant's ability to perform his duties well, when he is working. The issue for the Respondent is the Complainant's level of absenteeism.
[73] The Court also suggested that the scope of the duty to investigate could vary depending on the nature and size of the employer. The Court distinguished the small business of the employer in that case from, as an example, the operations of a government with entire departments and volumes of information available to it.(30) OC Transpo certainly is more reflective of the latter example. Finally, regarding this question of the duty to investigate, I am guided yet again by the findings in Meiorin. The Court identifies some of the important questions to be asked in the course of the Step 3 analysis, including whether the employer investigated alternative approaches that do not have a discriminatory effect. Implicit in this finding is the duty upon an employer to conduct such an investigation. Without question, there also exists a duty upon the employee to cooperate with the employer in such a process but, as I discussed earlier, I am convinced that the Complainant and his medical advisors were willing and prepared to cooperate in finding a way to rehabilitate him and assure his full reintegration back into the OC Transpo workforce.
[74] Assuming the only available accommodation, as suggested by the Respondent, was to tolerate the Complainant's absenteeism in the future, what evidence was presented to demonstrate that this would impose undue hardship on the employer?
[75] The work schedule for bus operators was typically established on the basis of four or five booking periods per year. In advance of each period, drivers were permitted to select their routes and dates of work, based on their seniority. One of the options available to them was to work on the spare board. The spare board consisted of a number of drivers (the evidence suggests between 30 and 50 persons) who were available to replace absent workers, as the need arose. These absences were typically unexpected in nature, such as when an operator overslept, was snowed in or fell sick. Spare board drivers received their full salary, whether they were assigned to replace another operator or not.
[76] In the event that the number of absentees exceeded the number of drivers on the spare board, OC Transpo was obliged to ask other drivers to fill in, who were then paid on an overtime basis. On occasion, enough overtime operators could not be found, in which case buses did not go out and service to the public was affected. Dissatisfied transit users were known to complain about service interruptions to their local politicians who in turn conveyed these concerns to the OC Transpo management.
[77] Mr. Marcotte has served as Manager of Staff Relations and Employee Relations at OC Transpo. He testified as to the complexity associated with attempting to predict how many individuals would be absent on a given day and accordingly, estimating the number of operators to put on the spare board.
[78] In the case of longer term absences, where it was known in advance of a booking period that an employee would be unavailable for the entire term, the operator was not permitted to book any shifts. It is my understanding, based on the somewhat sketchy evidence on this issue, that because such absentees had no scheduled shifts, they were not replaced with drivers on the spare board. On the other hand, if it was uncertain whether the duration of the absence would cover an entire booking period, the employee was permitted to book work dates. If he or she was ultimately unable to come in on those days, a spare board driver would have to fill in.
[79] To summarize, the hardship that the Complainant's potential future absenteeism may have imposed is the following:
· a spare driver, who would receive a salary whether the driver was assigned to a bus route or not, would have to replace him;
· between 30 and 50 drivers were assigned to the spare board on any given day. If an insufficient number of spare drivers were available, another operator would have to be paid overtime wages to fill in;
· if an overtime employee could not be found, the bus service on that run would be interrupted;
· affected transit users could complain to their local politicians who would pass on the complaints to OC Transpo management.
[80] I do not find that this evidence demonstrates that accommodating the Complainant's possible absenteeism would impose undue hardship on the Respondent.
[81] To begin with, this evidence, introduced through the testimonies of Mr. Timlin and Mr. Marcotte, was basically anecdotal in nature. Mr. Timlin prefaced some of his comments with a warning that his expertise related to the payment of employee benefits, not the work scheduling process. Neither he nor Mr. Marcotte provided any details whatsoever as to the actual financial cost of running the spare board or paying the overtime wages when the spare board was depleted, particularly in comparison to OC Transpo's overall expenditures. No evidence was led as to how frequently the spare board was depleted nor how often transit service to the public was interrupted due to absenteeism.
[82] The Complainant had received disability benefits during many of his absences. No evidence was led by the Respondent to indicate the related costs, if any, and the level of hardship to the Respondent arising therefrom.
[83] Mr. Marcotte confirmed that a bus operator's absence did not put anyone's health at risk. He also acknowledged that it would be a stretch to contend that excess overtime imposed so much stress on the replacing employees that safety concerns were raised. In fact, the Respondent did not demonstrate what hardship would be imposed on the workforce at large. Most of the alleged hardship relates to the spare board process. Yet the evidence regarding the Complainant shows that during many of these absences, especially while he was being treated for PTSD, he was placed on long-term disability leave. Thus, over a period of nine months in 1992 and for the last eleven months leading up to his dismissal, the Complainant had not booked any shifts. Spare board employees should therefore not have been called upon to replace him in these periods. If the Complainant was likely to be innocently absent in the future, as the Respondent had predicted, it is certainly possible that these absences would have resembled the past incidents and resulted in his being disabled over a long term. The spare board would consequently have been unaffected.
[84] Respondent counsel referred me to the recent judgment of the Ontario Divisional Court in Ontario (Human Rights Commission) v. Roosma, (31) which affirmed a decision of the Ontario Board of Inquiry. The case concerned two employees at the Ford automobile plant in Oakville who for religious reasons could not work from sunset on Friday until sunset on Saturday. They sought to be permanently excused from working Friday evenings. The Ontario Human Rights Commission led evidence that the cost to Ford of replacing the employees on those shifts was negligible. The Board of Inquiry disagreed with this assessment by extending the notion of cost to include the real cost of resulting declines in both quality and production, which while difficult to measure were nonetheless deemed real. The Board concluded that accommodating these employees, by arranging for the swapping of shifts or the hiring of part-time or student workers, would impose undue hardship on Ford.
[85] The circumstances regarding the Roosma case differ significantly from those of the present case. First of all, the Court did not necessarily adopt the reasons of the Board of Inquiry; it simply concluded that the board's findings met the reasonableness standard of judicial review. The Court noted that the Board was presented with extensive detailed and uncontradicted evidence from Ford, regarding the consequences of accommodating the complainants. Moreover, amongst the factors that influenced the Board's findings was not only the financial cost to Ford but also the interchangeability of its operations, the importance of having the regular operator on each job, the impact of the collective agreement, safety considerations and the substantial effect of accommodation on other workers. (32) [86] As I have already indicated, I have no evidence before me of the actual financial cost regarding the Respondent's measures for accommodating or tolerating absenteeism. Safety issues do not arise and evidence was not introduced regarding the impact of the collective agreement. Aside from the mention of the possible, though unlikely, additional stress on overtime employees, I was not provided with any insight as to how accommodating the Complainant's potential future absenteeism would affect other employees. In addition, contrary to the evidence raised in Roosma with respect to Ford's automobile assembly line workers, the evidence before me suggests that the functions of a bus operator are highly interchangeable. I thus find that Roosma can be distinguished from the present case.
[87] The Respondent has failed to establish that accommodating the potential innocent absenteeism of the Complainant after his return to work in February 1996 would have imposed undue hardship on OC Transpo.
[88] The complaint is therefore substantiated.
III. REMEDY A. Reinstatement [89] In human rights cases, where a complaint of discrimination is found to be substantiated, it is the duty of the Tribunal to attempt to restore a complainant to the position that he or she would have been in, but for the discrimination. (33) The Commission accordingly submits that the Complainant should be reinstated to the position of bus operator or such other suitable occupation as the Tribunal may determine.
[90] Respondent counsel argued that reinstatement is inappropriate in the present circumstances. In the seven years since his dismissal, the prognosis for the Complainant's attendance has remained unchanged. Once he is reinstated, and provided the employer's predictions hold true, the parties will again find themselves in the difficult situation of having to deal with the Complainant's excessive absenteeism. This argument appears to me to be predicated on an assumption that is itself related to the Complainant's disability. I have already held that such an assumption is discriminatory and it can therefore play no role in the fashioning of the remedy.
[91] I am satisfied that the appropriate remedy would be for the Complainant to be reinstated as a bus operator. I therefore order the Respondent to reinstate the Complainant to the position of bus operator, together with the commensurate seniority and benefits of a full-time permanent employee, the whole with retroactive effect to the date of his dismissal.
[92] According to the evidence, the Respondent ordinarily assists employees returning from extended leave in their reintegration into the workforce. This assistance includes the provision of training as well as aid in the reacquisition of any necessary driving permits from the appropriate authorities. The Respondent must provide this assistance to the Complainant.
B. Damages for Lost Income [93] The Respondent is ordered to pay to the Complainant damages for his lost wages from February 2, 1996, until the date of his return to full time employment, taking into account other income, statutory deductions and gross-up for the purposes of the Income Tax Act. All of his benefits should also be adjusted accordingly.
[94] I do not accept the Respondent's suggestion that the damages for lost wages should only run from the date of the labour arbitrator's decision that the Complainant was justly terminated. The Respondent's liability flows from its decision to end the Complainant's employment, based in part on a discriminatory ground, irrespective of whether the labour arbitrator deemed the dismissal just.
[95] Instead of presenting evidence or submissions at the hearing with respect to the calculation of these damages, the parties agreed to work together to determine these amounts. As I explain below, I will retain jurisdiction in case these discussions do not prove fruitful.
C. Hurt Feelings [96] The facts giving rise to the complaint precede the 1998 amendments to the Act. Section 53(3) stated, at that time, that the Tribunal could order a respondent to pay up to $5,000 in compensation to a victim of discrimination who had suffered in respect of feelings or self-respect. I am in agreement with the findings of the Tribunal, in Premakumar v. Air Canada (34) and Desormeaux (35), that the $5,000 maximum award must be reserved for the very worst cases that fall within the range of cases in which such awards are warranted.
[97] The Complainant testified as to the effect that the termination had on his life. He felt a loss of dignity and feared for his family's economic well-being. The financial impact was so great that it became difficult for him to purchase appropriate food for his family. The evidence does suggest, though, the dismissal did not lead to a recurrence of PTSD and that to the contrary, Dr. Erickson having noted that the Complainant was taking it extremely well".
[98] Taking into account these and all of the other circumstances in this case, I order the Respondent to pay to the Complainant the sum of $3,500 as special compensation.
D. Policy Review [99] The Commission seeks an order that the Respondent's policy regarding the accommodation of employees with disabilities be reviewed and revised. Over seven years have passed since the Complainant was dismissed. The evidence is that since that time, the employer has changed (to the City of Ottawa) and the accommodation policies and attendance management programs have gone through several modifications and updates. The newest attendance management program that is now being implemented extends to all the employees of the City of Ottawa, not just those working within OC Transpo. Furthermore, the liability in the present case stems in part from the Respondent's failure to apply the program that was in place at the time of the Complainant's dismissal, and was not necessarily the result of a particular defect in the program itself. The Commission's request is consequently denied.
E. Interest [100] Interest is payable regarding all of the monetary awards made pursuant to this decision. The interest shall be simple interest calculated on a yearly basis, at a rate equivalent to the Bank Rate (Monthly Series) set by the Bank of Canada. With respect to compensation for hurt feelings, the interest shall accrue from the date of dismissal until the final payment of the award. Interest on the lost wages shall also run from the date of dismissal until the final payment of the award, but shall be calculated as the wages would have become payable to the Complainant.
F. Retention of Jurisdiction [102] In the event that any difficulties arise in the implementation of these remedies, including a failure by the parties to reach an agreement regarding the damages for lost wages, I retain jurisdiction to receive evidence, hear further submissions and make further orders.
"Original signed by"
Athanasios D. Hadjis
OTTAWA, Ontario
March 6, 2003
CANADIAN HUMAN RIGHTS TRIBUNAL
COUNSEL OF RECORD
TRIBUNAL FILE NO.: T699/0402
STYLE OF CAUSE: Alain Parisien v. Ottawa-Carleton Regional Transit Commission
PLACE OF HEARING: Ottawa, Ontario
(July 22-24, 2002; September 4-5, 2002; November 15, 2002)
DECISION OF THE TRIBUNAL DATED: March 6, 2003
APPEARANCES:
Alain Parisien On his own behalf (Complainant)
Patrick O'Rourke For the Canadian Human Rights Commission
Stephen Bird For the Respondent
1.1 S.O. 1999, c. 14.
2.2 Parisien v. Ottawa Carleton Regional Transit Commission, [2002] C.H.R.D. No. 23 (C.H.R.T.)(QL).
3.3 This provision is now designated as S. 15 (1)(a). See An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, S.C. 1998, c.9, s. 10.
4.4 British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (Meiorin).
5.5 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (Grismer).
6.6 Supra, note 4 3 at 32-33.
7.7 Singh v. Canada (Statistics Canada) (1998), 34 C.H.R.R. D/203 (C.H.R.T.) at para. 174, aff'd Canada (A.G.) v. Singh (April 14, 2000) T-2116-98 (F.C.T.D.); McAvinn v. Strait Crossing Bridge Ltd., [2001] C.H.R.D. No. 36 (C.H.R.T.)(QL) at para. 102; Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 (F.C.A.) at para. 7; Pitawanakwat v. Canada (Secretary of State) (1992), 19 C.H.R.R. D/10 (C.H.R.T.) at para. 85.
8.8 [2000] 1 S.C.R. 665 at 700.
9.9 R.S.Q., c. C-12.
10.10 Supra, note 78 at 689.
11.11See Re: Air B.C. Ltd. aAnd Canadian Airline Dispatchers Assn. (1995), 50 L.A.C. (4th) 93.
12.12 Ontario (Human Rights Commission) v. Simpson-Sears Ltd. [1985] 2 S.C.R. 536 at 547; Robichaud v. Canada (Treasury Board) [1987] 2 S.C.R. 84 at para. 10.
13.13 Supra, note 110.
14.14[2001] C.H.R.D. No. 45 (C.H.R.T.)(QL) at para. 139.
15.15 2003 CHRT 2
16.16 [1990] 2 S.C.R. 489 at 520-21
17.17 Supra, note 14 at para. 141.
18.18 [1992] 2 S.C.R. 970 at 984.
19.19 [1990] 2 S.C.R. 489 at 520-21.
20.20 Grismer, supra, note 34 at para. 41; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at paras. 87-94.
21.21 Renaud, supra, note 1816 at 587.
22.22 (1992), 16 (C.H.R.R.) D/485 (Ont.Bd.Inq.)
23.23 Ibid. at para. 82.
24.24 Ibid. at para. 83.
25.25 Supra, note 4 at 40.
26.26 2002 ABQB 859.
27.27 Supra, note 12.
28.28 Supra, note 4 at 37.
29.29 2002 BCCA 495.
30.30 Ibid. at para 26.
31.31 [2002] O.J. No. 3688 (Ont.S.C.J.-Div.Ct.)(QL)
32.32 Ibid. at para. 158.
33. 33 McAvinn, supra, note 7 at para. 189; Canada v. Morgan, [1992] 2 F.C. 401 at 414-15 (C.A.).
34. 34 (2002), 42 CHRR D/63 at para. 107.
35.35 Supra note 15 at para 128.
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2003 CHRT 11 | CHRT | 2,003 | Hodgins v. Transport North American Express Inc. | en | 2003-03-06 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6880/index.do | 2023-12-01 | Hodgins v. Transport North American Express Inc.
Collection
Canadian Human Rights Tribunal
Date
2003-03-06
Neutral citation
2003 CHRT 11
File number(s)
T745/5002, T746/5102, T747/5202
Decision-maker(s)
Mactavish, Anne L.
Decision type
Ruling
Decision Content
Canadian Human Rights Tribunal Tribunal canadien des droits de la personne
BETWEEN:
TARA HODGINS
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
TRANSPORT NORTH AMERICAN EXPRESS INC.
KEN DRAGOSISTS
KAREN DRAGOSISTS
Respondents
RULING ON MOTION TO DISMISS COMPLAINT
2003 CHRT 11
2003/03/06
MEMBER: Anne Mactavish
[1] Tara Hodgins filed a complaint against her former employer, Transport North American Express Inc. (TNA), alleging that the company failed to provide her with a harassment-free workplace, in breach of its obligations under the Canadian Human Rights Act. She also alleges that her employer treated her in an adverse differential fashion and terminated her employment because of her pregnancy. Ms. Hodgins subsequently filed additional complaints against the former owners of the company, Ken and Karen Dragosists, alleging that both Mr. and Ms. Dragosists sexually harassed her in the course of her employment with TNA.
[2] In preparation for the hearing of Ms. Hodgins' complaints, the Tribunal Registry sent pre-hearing questionnaires to each of the parties. Neither Mr. Dragosists nor Ms. Dragosists have responded, or given any indication to date that they intend to participate in the hearing. TNA returned its completed questionnaire. At the same time, David Bazar, one of the current owners of TNA, asked that The Commission consider removing TNA as a respondent in this matter since it seems to me that there can be no useful purpose served by TNA being a respondent. Given that the request was sent to the Canadian Human Rights Tribunal, I understand TNA to be seeking an order from the Tribunal dismissing the complaint against TNA, and have treated Mr. Bazar's correspondence as a motion for such relief.
[3] TNA's submissions are very brief. Although Mr. Bazar was afforded the opportunity to file more complete submissions in support of the company's request, he elected not to do so. I must therefore address the company's request based upon the limited information before me.
[4] Mr. Bazar indicates that he and his wife acquired control of Transport North American Express Inc. subsequent to the events described in Ms. Hodgins' complaint. As a consequence, neither Mr. Bazar nor his wife have any knowledge of the facts surrounding Ms. Hodgins' allegations. According to Mr. Bazar, the assets of TNA were seized last July, following a demand for repayment by the Bank of Montreal, which was evidently a secured creditor of the company. Mr. Bazar states that TNA's assets were subsequently sold by a Trustee. The company currently has no assets or employees, and is no longer generating any revenue.
[5] The Commission's submissions are predicated upon the assumption that TNA has gone through formal bankruptcy proceedings. Mr. Bazar does not, however, assert that TNA was ever in bankruptcy. As a result, I do not need to consider the effects that such a bankruptcy might have had on these proceedings. It may well be that the Trustee referred to in Mr. Bazar's correspondence was appointed under the Bank's security agreement, for the purposes of realizing on the Bank's security.
[6] TNA was Ms. Hodgins' employer. Section 65 (1) of the Canadian Human Rights Act makes employers liable for harassment in the workplace, where the harassment involves one or more of the proscribed grounds enumerated in Section 3 of the Act, unless the employer can satisfy the elements of the due diligence defense described in Section 65 (2) of the Act. The fact that control of TNA may have changed in the period between Ms. Hodgins' departure from the company and the present time does not, by itself, operate to relieve the company of liability for any discriminatory conduct that might have occurred in the workplace prior to the change in control.
[7] Mr. Bazar asserts that Mr. and Ms. Dragosists are no longer associated with the company, and that the company is currently in litigation with the Dragosists. As a result, Mr. Bazar says, the company is unable to call any witnesses in its defense. There is no suggestion, however, that the Dragosists are unavailable to testify. It is open to TNA to subpoena the Dragosists if it deems their testimony to be necessary for its defense.
[8] Accordingly, TNA's motion for dismissal of the complaint against the company is dismissed. Given the limited information provided to the Tribunal regarding the circumstances surrounding the change in ownership of TNA, however, I am dismissing the motion without prejudice to TNA's right to renew its request at the hearing of this matter, provided that such request is supported by a more complete evidentiary foundation.
[9] Given Mr. Bazar's assertion that TNA has no assets, and generates no income, Ms. Hodgins and the Commission may wish to consider whether there is any useful purpose to be served in pursuing the complaint against TNA. That is, however, a decision for the Commission and Ms. Hodgins, and not for this Tribunal.
Original signed by
Anne Mactavish
OTTAWA, Ontario
March 6, 2003
CANADIAN HUMAN RIGHTS TRIBUNAL
COUNSEL OF RECORD
TRIBUNAL FILE NO.: T745/5002, T746/5102 and T747/5202
STYLE OF CAUSE: Tara Hodgins v. Transport North American Express Inc. and Ken Dragosists and Karen Dragosists
RULING OF THE TRIBUNAL DATED: March 6, 2003
APPEARANCES:
Dan Pagowski For the Canadian Human Rights Commission
David Bazar For Transport North American Express Inc.
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2003 CHRT 12 | CHRT | 2,003 | Day v. Department of National Defence and Michael Hortie | en | 2003-03-07 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6882/index.do | 2023-12-01 | Day v. Department of National Defence and Michael Hortie
Collection
Canadian Human Rights Tribunal
Date
2003-03-07
Neutral citation
2003 CHRT 12
File number(s)
T627/1501, T628/1601
Decision type
Ruling
Decision status
Interim
Decision Content
Between:
Amanda Day
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Department Of National Defence and Michael Hortie
Respondents
Ruling
Member: Dr. Paul Groarke Date: March 7, 2003 Citation: 2003 CHRT 12
I. Introduction [1] At the opening of the hearing, the Respondents asked for an order closing the hearing to the public. In the alternative, they requested a ban on publication. The Complainant opposed both requests. After receiving the submissions of all the parties, I rejected the application to close the hearing and issued a ban on publication. I advised the parties that I would provide written reasons at a later date.
[2] The matter is governed by section 52(1) of the Canadian Human Rights Act, which gives the Tribunal the authority to:
52.(1) . . . take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the inquiry if the member or panel is satisfied, during the inquiry or as a result of the inquiry being conducted in public, that . . .
(b) there is a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public;
(c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public;
(d) there is a serious possibility that the life, liberty or security of a person will be endangered.
The Respondents acknowledged that they have the onus of establishing that an order protecting the confidentiality of the inquiry is necessary and that it is a high onus. They have also accepted that such an order should not be granted where there are other means of protecting the parties and the witnesses.
[3] There are a variety of interests that arise in the application before me. The first set of interests that favours publication seems to lie in the public domain. The common law is based on an independent, impartial and public process. There are also Charter considerations. I was referred to the guarantee of freedom of the press in section 2(b) of the Charter of Rights, which generally requires that the process of adjudication be conducted in public. Section 2(b) may go further, however, since it protects freedom of opinion and expression, which is not possible without access to the information that permits that expression.
[4] The second set of interests that favours publication lies in the private realm. Section 11 of the Charter, for example, gives an accused in a criminal case a right to a trial in public. There may be a similar right in the human rights process, which gives either the Complainant or the Respondent the right to ask for a public hearing. Section 7 of the Charter might include some right to a public hearing, if it has a bearing on the psychological integrity of the participants. In Blencoe v. British Columbia (Human Rights Commission) [2002] 2 S.C.R. 307, the Supreme Court has held that there is nothing to prevent the operation of section 7 in the human rights process, where the appropriate circumstances exist.
[5] In the immediate case, most of the concerns on the other side relate to the privacy of the person. It is interesting that section 7 may also arise in this context, since it protects the psychological integrity of the person, which could be undermined by an open process. This is borne out by the wording of section 52(1)(d) of the Canadian Human Rights Act, which uses the same language as section 7. I have also been referred to section 8 of the Charter, which has been interpreted in a manner that protects the privacy of the individual person.
[6] The question of fairness seems to arise on both sides of the issue, since the idea of public hearings seems to have originated in the belief that public proceedings are open to scrutiny and are therefore inherently more fair than proceedings held in camera. The star chamber looms large in our legal history. The Respondents have argued on the other side that a public process, which destroys the reputation of innocent parties, is fundamentally invasive and unfair. They have submitted that a hearing that permits the publication of extravagant and unjustified allegations is unfair, even if it gives all of the parties a full and ample opportunity to present their cases. I think it is apparent that the concept of fairness in section 52(1)(b) of the Canadian Human Rights Act goes beyond mere procedural concerns.
II. The Basic Rule [7] In spite of the wide variety of interests that come into play in the present application, the basic rule seems abundantly clear. Hearings must generally be conducted in public. This is as much a matter of accountability as anything else. The process must not be hidden. I believe this is the right place to begin. The mandate of fact-finding bodies like the Tribunal is to publicly establish what occurred in a given set of circumstances. I think this requires an open process, in which the competing positions are open to public scrutiny.
[8] This principle holds, whether the allegations are substantiated or not. The public’s right to know is not restricted to the findings of a Tribunal and generally includes the allegations that have been made, however offensive they may be. There are additional concerns in the context of human rights, since one of the purposes of the human rights process is to educate the public. These kinds of considerations apply in all cases and are not limited to cases where a complaint is made out. The educational purposes of the human rights process are still served by public hearings in situations where the complaints do not succeed.
[9] The question is accordingly whether the circumstances before me are sufficient to justify a departure from the general rule. It is enough, in making such a determination, to consult the criteria set out in section 52(1) of the Canadian Human Rights Act, while remaining sensitive to any Charter considerations.
III. Closing the Hearing [10] I do not see any need to go beyond general principles in dealing with the request to close the hearing. The public has some right to know what happens at hearings. There are many cases that raise offensive allegations and something more is needed, to justify an in camera proceeding. The human rights process should be open to the public in all but the most compelling circumstances. I think the integrity and reputation of the process would be jeopardized if hearings were closed merely because they deal with sensitive personal matters. One of the effects of closing the hearing would be to seal the entire transcript, a course of proceeding that effectively deletes the hearing from the public record. This goes much too far.
[11] In Bouvier v. Métro Express (1992) 17 C.H.R.R. 313, at para. 6, this Tribunal considered a similar application to move in camera, under an earlier and more austere section of the Act, apparently on the basis that it would injure the reputation of the corporate Respondent. The Tribunal refused to close the hearing:
In view of how important it is that the judicial process in our society be public, and particularly in the area of human rights where the educational aspect of the process plays a leading role, and in view of the decisions in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175 and Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326, we refused the request by Loomis that the hearing be held in camera.
I believe that there is a public right of inspection, which gives ordinary citizens the right to attend legal proceedings and observe how the system operates.
[12] This cannot be done behind closed doors, and it would be a mistake to pretend, in effect, that the hearing has not taken place. If the Respondents are entirely blameless, and beyond reproach, that does not change the fact that these allegations were made. I am not convinced that any blame accrues to the Respondents in airing such a fact before the public, which can be interpreted in a variety of ways. I think we have to rely on the ability of the public to distinguish mere allegations from statements of fact. The Respondents would have the usual civil remedies, if a member of the public was to confuse the two.
[13] The Complainant has openly expressed her lack of faith in a closed hearing and insisted on her right to confront the Respondents in public. She has also provided written submissions, in which she argues that it would be a mistake to conceal the hearing from the public. I think there is merit in her submissions. The fact that these kinds of allegations are made in the course of the human rights process should not be hidden from the public. This line of reasoning extends beyond the hearing and encompasses the transcript of the proceedings, which should be open to inspection. This serves the societal interest mentioned in section 52, along with the legal and historical purposes of hearings.
[14] I should make it clear, before dealing with the application for a ban on publication, that I raised the possibility of briefly closing the hearing, if particular allegations met the requirements of section 52(1) of the Canadian Human Rights Act. I was informed, however, that this was not a practical alternative, given the number of allegations, and would require constant interruptions in the process. It would also require that portions of the transcript be sealed and removed from the public record. I am not comfortable with such a method of proceeding in the present case, and feel that it is preferable to give the public access to the transcript, which would still be subject to any ban on publication. I believe this goes as far as possible, in protecting the privacy interests of the parties and the public’s right to know.
IV. THE BAN ON PUBLICATION [15] Publication seems to be a separate matter. The Respondent has referred me to Dagenais v. Canadian Broadcasting Corp., [1994] S.C.J. No. 104 (QL), which dealt with an order restraining the CBC from broadcasting a television program dealing with the subject matter of a criminal indictment. Although the facts of the case have no real bearing on the case before me, the decision of the majority sets out the general test in such an application. A ban on publication should only be issued if:
it is necessary to protect the fairness of the trial or hearing; and the salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.
The Respondents have argued that this sets the fundamental parameters in any application for a ban on publication.
[16] The same kinds of concerns arise under section 52(1)(b) and (c) of the Canadian Human Rights Act, which nevertheless uses somewhat different language. The section states that a confidentiality order may be granted if the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public. The section recognizes that such a need may arise if there is a real and substantial risk to the fairness of the inquiry”, or a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved. Although the same kinds of concerns might arise under subsection (d), I think it is sufficient to focus on these considerations.
[17] It will be apparent that Dagenais and many other cases deal with the freedom of the press. I do not believe that it would be prudent to comment on this aspect of the matter in the absence of submissions from an interested party, who can advance the necessary arguments on behalf of the press. Since Dagenais is a criminal case, it also focuses on the interests of the accused. This brings in the presumption of innocence, which is guaranteed in section 11 of the Charter. The major decision relied upon by the Respondents in this regard is A. v. C. [1994] B.C.J. No. 488 9 (B.C.S.C.) (QL), which dealt with an action for defamation arising out of extravagant complaints made to the police and the College of Physicians regarding allegations of sexual abuse. The court had ordered that pseudonyms be used. The case was cited before me for the proposition that the presumption of innocence protects parties in civil proceedings.
[18] I cannot deal with the case at length. At paragraph 23, the B.C. Supreme Court nevertheless adopts the view expressed in Hirt v. College of Physicians and Surgeons of British Columbia [1985] 3 W.W.R. 350, at p. 364, where McFarlane J.A. says:
Public accessibility to the courts and to the records of the courts is needed so that society can be assured that justice has been done. Secrecy raises doubts in the public mind. But reasonable limitations upon the principle that justice must be done in the open have been recognized for many years in free and democratic societies. True justice must have respect for the rights or reputations of innocent persons.
Although the case discusses a number of other issues, this is the essential proposition that was put before me.
[19] Counsel for Respondents rested most of their submissions on the reputation and innocence of individuals who the Complainant accuses of gross misconduct and lurid sexual improprieties. The Respondents argued that the presumption of innocence that applies in a criminal context applies to unsavoury allegations that have been made in other proceedings. It was brought to my attention, for example, that two of the witnesses were the subject of separate complaints to the Human Rights Commission. These complaints were not pursued by the Commission and were never referred to the Tribunal. It was suggested to me that their witnesses are now being dragged back in to the process, against their will.
[20] This kind of argument seems more compelling in a case of harassment, where the law of human rights occasionally enters into the area of some of the allegations normally dealt with in the criminal courts. There are allegations of rape and forced sodomy, for example, before me. The real issue seems to be the sexual allegations: it was suggested that these kinds of allegations carry a particular stigma in our society, which attracts the cloak of confidentiality more readily than other allegations. Mr. Houston has stated on the record that horrendous allegations will arise during the course of the examination of witnesses, which may include allegations of child abuse.
[21] The Complainant may have competing interests. The Tribunal in Bouvier, supra, at paragraph 7, quotes from Madam Justice Wilson in Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326, at p. 1361, where she recognizes that an open process may serve more personal interests:
But in addition to the interest of the public at large in an open court process there may be compelling arguments in its favour related to the interests of litigants generally. Many may feel vindicated by the public airing of the injustices they feel they have suffered alone and without any support in the community. Indeed, this may be the first time that a spouse is able to speak openly about events that have taken place in the privacy of the home. They may welcome the public endorsement for what they have suffered in private ignominy. (p. 1361)
The Respondents have essentially argued that this must not be taken too far. A Complainant should not be allowed to publicly punish a Respondent or innocent third parties, when the complaints are not made out. Nor is the hearing a therapeutic process. There is a concern in at least some of the cases with the use of the adjudicative process for improper or collateral purposes.
[22] The French version of subsection 52(1)(c) would seem to support such an argument. There must be a balancing. I am nevertheless of the view that at least some of the interests outlined by Madam Justice Wilson can be met by allowing the Complainant to make her allegations in public, with or without a ban on publication. Litigants are entitled to their day in court. The comments of Justice Wilson did not prevent the Tribunal in Bouvier from granting a partial ban on publication in far less compelling circumstances than the circumstances before me. The Respondent took the position that this was not a feasible manner of proceeding in the case before me, given the extent of the allegations and the notoriety of the case in the local community. I have already indicated that I would rather issue a ban on publication than repeatedly close the hearing for portions of the testimony.
[23] There is another aspect to this, however, which requires serious consideration. The Complainant has opposed the application for a confidentiality order. There are nonetheless good reasons, as the Respondents have suggested, to protect her privacy in this matter. The Respondents have taken the position throughout the present process that the Complainant is psychologically ill and suffers from delusions. I have been advised that she will be cross-examined on the minute details of her personal life and psychological history, which raises the most serious privacy concerns. I recognize the position that the Complainant has taken: she has nonetheless objected on a number of occasions to the disclosure of the details of her medical and psychological record. It seems to me that a confidentiality order would offer her some protection in this regard.
[24] I cannot comment on the merits of the case before me. There is nevertheless no doubt in my mind that many innocent people have suffered enormous personal and public damage as a result of sexual allegations, which our society finds opprobrious. The shame and humiliation that such people suffer should not be underestimated. The system should not victimize them. I believe that the interests of the public and perhaps the Complainant can be protected by reviewing the matter at the end of the hearing, at which time any ban on publication can be lifted. I should note in passing that counsel for the Respondents expressed an additional concern for the language employed by the Complainant in making these allegations, and a concern about less offensive accusations like theft. I do not find these concerns sufficient to justify a ban on publication.
V. Order [25] I am accordingly prohibiting the publication of any of the evidence or matters that arise in the course of the present hearing. I believe this is in the interests of all of the parties, including the Complainant, and that publication would undermine the fairness of the inquiry and cause undue hardship to the persons involved. In the circumstances of the case, I am satisfied that this outweighs the normal rules in favour of a public hearing.
[26] I should make it clear that this ban is revocable and can be revisited if other parties wish to address the question, or the circumstances of the hearing warrant it. It does not extend to any of my rulings or the final decision in the case.
Signed by
Dr. Paul Groake Tribunal Member
Ottawa, Ontario March 7, 2003
Canadian Human Rights Tribunal
Parties of Record
Tribunal File: T627/1501 and T628/1601
Style of Cause: Amanda Day v. Department of National Defence and Michael Hortie
Ruling of the Tribunal Dated: March 7, 2003
Appearances:
Amanda Day, for herself
Joyce Thayer, for the Respondent
J. David Houston, for Michael Hortie
| ||
2003 CHRT 13 | CHRT | 2,003 | Day v. Canada (Department of National Defence) | en | 2003-03-12 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6878/index.do | 2023-12-01 | Day v. Canada (Department of National Defence)
Collection
Canadian Human Rights Tribunal
Date
2003-03-12
Neutral citation
2003 CHRT 13
File number(s)
T627/1501, T628/1601
Decision-maker(s)
Groake, Paul Dr.
Decision type
Decision
Decision Content
Canadian Human Rights Tribunal Canada Tribunal canadien des droits de la personne
BETWEEN:
AMANDA DAY
Complainant
- and -
DEPARTMENT OF NATIONAL DEFENCE
AND MICHAEL HORTIE
Respondents
RULING ON CAPACITY
2003 CHRT 13 2003/03/12
MEMBER: Dr. Paul Groarke
I. THE APPLICATION BEFORE ME [1] The following are my reasons on the application of the Respondents for a ruling that the Complainant is not competent to testify in these proceedings. I prefer to phrase this as a question of capacity, and avoid the pejorative associations of the word featured in the caselaw. There is a second question that has arisen in this context, which is whether the Complainant is capable of representing herself. In the circumstances of the case, I do not believe that it would be in the interests of the parties to interrupt the process in order to prepare extensive reasons. I nevertheless feel obliged to issue written reasons before proceeding further.
[2] Before dealing with the background to the application, I would comment that the second question might seem to require a higher degree of capacity, since a party who is competent to proceed must be capable of participating in the conduct of the process. This would normally appear to present a higher standard than the capacity to give probative evidence, which need only be sufficient to assist the trier of fact. The usual logic of the situation seems to be reversed, however, in the circumstances before me. That is because the Complainant’s primary difficulty, as Ms. Thayer submitted, is in reciting the sexual allegations at the core of the complaint. This is undoubtedly the most difficult aspect of the matter from a legal perspective.
[3] Although I have focussed more directly on the first question, which relates to the Complainant’s ability to testify, the reality is that there is a general concern for her psychological condition that goes to all aspects of the case. I want to reassure the Complainant that, in my view, the other parties have acted out of respect for the integrity of the process and with a keen concern for the Complainant’s well-being. There is nothing improper in the application: on the contrary, I think it would have been inappropriate to proceed without canvassing these issues. This holds true, whatever my ruling on the application.
II. GENERAL BACKGROUND OF THE CASE [4] I should state at the outset that the present case seems to have a troubled history. There is no escaping the fact that the psychological history of the Complainant is relevant to the present proceedings. The medical record, which has not been independently proven, indicates that she has been committed in the past. There is no point in hiding this fact: it does not necessarily speak to the Complainant’s present circumstances and as far as I am aware, there is no suggestion from counsel that she is incompetent in the larger legal sense. This merely provides the background to the present application and illustrates, along with the rest of the medical and psychological record, that there are reasons for concern.
[5] Although I am not privy to the events that may have transpired before the hearing, the Complainant has indicated on a number of occasions that the Human Rights Commission and the other parties sought an order declaring her incompetent. I am not exaggerating when I say that she feels that there was something like a conspiracy to have her committed. I do not know the full details of the matter, but there is enough on the Tribunal file to suggest that there are reasons for the Complainant’s suspicions. This is not intended as a criticism: this has been a difficult matter for everyone involved with it, and I merely feel obliged to set out the larger set of circumstances behind the present application.
[6] The Complainant inevitably feels that any earlier efforts to have her declared incompetent were merely a convenient way of disposing of the present inquiry. It follows that she is extremely suspicious of the present attempt by the other parties to question her capacity to participate in the hearing. She believes that it is beneficial to her psychological well-being to continue and there is at least some medical evidence that supports such a contention. This raises issues that go beyond the scope of my authority, however, and the Complainant’s legal position is that she has a right to proceed. This includes the right to testify and present her account of what occurred. I have warned her that she will be subject to a full and searching cross-examination, which will undoubtedly raise painful memories and prove emotionally difficult. This does not dissuade her.
III. BACKGROUND OF THE PRESENT APPLICATION [7] There is no question that the application has been properly and responsibly made. The Complainant displayed erratic behaviour in giving her evidence in chief. This consisted of contorted facial expressions, inappropriate pauses, a pronounced shaking of her head, a raising of her arms and the adoption of various postures, all of which presented a departure from the normal presentation of viva voce evidence. I mention these attributes of her testimony because they are not apparent on the face of the record. The Complainant also used expletives, began sobbing, would occasionally raise her voice or adopt a theatrical and mocking tone, and was unable to continue on a number of occasions. The most difficult aspect of her evidence, from the perspective of managing the case, is that she found it difficult, even impossible, to confine herself to the narrative of events that led to the present complaint. She constantly went into other matters, occasionally in a manner that seems strange and even bizarre, to anyone with a developed sense of relevance.
[8] I accept, as counsel has submitted, that the Complainant’s behaviour deteriorated as she gave evidence and eventually culminated in what I have described on the record as a screaming fit, which happened when she found herself unable to describe one of the alleged incidents of sexual harassment. I think this can best be described as formless screaming: there were no words, as far as I could determine, and to a lay person, at least, the Complainant cried inconsolably, like an infant. The Tribunal officer immediately called for order and I left the hearing room, though it is clear that she fell to the floor, writhing, in the words of counsel and remained there until after the room was cleared. Dr. Kaplan, a psychologist for the Respondents, advised the Tribunal Officer to phone 911, a suggestion that was carried out. This should not be interpreted as a comment on the nature of what occurred, which became a source of controversy between the parties.
[9] One of the security officers, Ms. Dennis, remained in the hearing room and later testified as to what occurred. Her testimony was measured and careful evidence, and I accept her account of events. The only point that I feel obliged to clarify is that the hearing was not resumed in the absence of the Complainant. This was never a consideration, though the situation might have transpired differently if Ms. Day had been hospitalized. In my view, the matter was handled with the right degree of concern for the well-being of the Complainant and the need to protect the propriety of the process. After the Complainant had recovered, the hearing was briefly resumed, and the Complainant indicated that she wished to continue with her evidence. The other parties understandably requested a recess. The Complainant became visibly angry in response to the submissions of counsel, and I felt it was best to adjourn until the following day, at which time the Respondents brought the present application.
[10] I want to be fair. There is a sense in which this puts the matter in the worst light. I should make it clear that the Complainant is an intelligent person who often speaks lucidly and has a real appreciation of the nature and purpose of the present proceedings. She has given coherent testimony that would support the complaints. One of the problems is that she is not familiar with the practices in formal legal proceedings, and like many lay people, does not distinguish between a formal and informal venue. As a result, her manner and language is often inappropriate. She is unrepresented, which has added to her difficulties, and often seems overwhelmed by the minutiae of the evidence. Having said that, and made allowances for her lack of familiarity with legal proceedings, her psychological frailty, and her many interruptions, she appears to understand the process and has some rough ability to conduct her case and present evidence. There is no doubt that this has placed enormous demands on the patience of counsel, and myself, but that is another matter, which goes more to the issue of accommodation.
[11] After the application was made, I entered into a voir dire for the purpose of deciding the question of competence. The Respondents called Dr. Kaplan, a clinical psychologist, who was in attendance during the hearing. Dr. Kaplan was qualified as an expert and expressed serious reservations about proceeding. He was of the opinion that the Complainant suffers from a paranoid personality disorder, which makes her perception of events inherently unreliable. He also testified that, in his view, the Complainant had gone into a psychotic state while testifying. Dr. Kaplan also prepared a written report, which has been entered as an exhibit in the voir dire. Ms. Thayer placed considerable reliance on his view that the Complainant was having psychotic episodes at the time that she was experiencing the alleged sexual harassment. The cases suggest that this is a major consideration, but this goes to the merits of the case, and the evidence is far from clear at this point in time.
[12] The Complainant called Ms. Dennis in reply, along with two experts, who were duly qualified. Her therapist also appeared at the hearing, though she did not testify. The evidence of Dr. Hunter, a medical doctor with expertise in Post Traumatic Stress Disorder, was essentially that Ms. Day’s behaviour was consistent with such a diagnosis. The other expert witness, Dr. Malcolm, a clinical psychologist, adopted much the same position. Dr. Malcolm has treated the Complainant in the past and was consulted by the Complainant prior to the beginning of the proceedings. Mr. Houston objected vigorously to the fact that Dr. Hunter and Dr. Malcolm believed that it would be an injustice to deprive the Complainant of her right to proceed. These opinions were well intentioned and reflected their view that it would be better for the Complainant to proceed, psychologically. The question of justice is entirely within the keeping of the Tribunal, however, and well outside the scope of expert evidence.
[13] The Respondents also attacked the reliability of the testimony of Dr. Hunter and Dr. Malcolm, on the basis that they were poorly apprised of the circumstances before me. They also argued, understandably, that Dr. Kaplan was in a better position to provide an informed opinion as to the Complainant’s behaviour on the witness stand. I think there is some merit to these submissions, which may affect the weight of the testimony but does not negate it. I think it is important, in this context, to appreciate that the Respondents have the burden of satisfying me that the Complainant is incapable of testifying. There is no obligation on the Complainant to prove any positive assertion of fact. The evidence that she called on the voir dire was only called to offset the evidence of the Respondents and the experts were not tendered to prove her competence.
[14] I am left with a disagreement between the experts as to the exact nature of the situation that confronts me. I do not propose to enter into the details of this disagreement, though there was a more specific dispute as to what occurred when she began screaming. Dr. Kaplan was of the view that the Complainant was rapidly decompensating. This terminology was the subject of some discussion. The experts on the other side were more inclined to believe that she had experienced a flashback or abreaction, in which she was reliving the traumatic events in question. There was also a suggestion that she was dissociating. I do not propose to settle the dispute: whatever view is adopted, it is evident that the Complainant was not functioning rationally for the duration of the episode.
[15] I cannot make a medical or psychological diagnosis, but there are many reasons to believe that she suffers from paranoia in some general sense. I was advised by Dr. Hunter and Dr. Malcolm that this could be a manifestation of the hypervigilance associated with Post Traumatic Stress Disorder. I accept that that she is liable to dissociate on the witness stand and may be in danger of losing contact with reality. She does not trust counsel, has difficulty restraining her emotions, and often loses her way on the witness stand. Some of this must be attributed to the fact that the allegations before me are extremely personal and would be difficult for any litigant. Dr. Hunter testified that Ms. Day had an underlying vulnerability that makes them all the more trying for someone in her position. All of this presents a challenge for the conduct of the inquiry.
IV. THE LEGAL BASIS OF THE APPLICATION [16] The cases hold that it is the business of a judge to decide whether a witness is capable of testifying. It is the business of the jury to weigh the evidence. See: R. Harbuz [1979] 2 W.W.R. 105 and Steinberg v. The King (1931) 56 C.C.C. 9 (S.C.C.). As a result, the question should be dealt with at the earliest possible opportunity, in order to avoid the possibility of a mistrial. These concerns do not arise in the situation before me. The caselaw recognizes, moreover, that the question can be considered at a later point, if concerns arise during the course of a witness’ testimony.
[17] The law operates on the presumption that a witness has the capacity to testify. This does not require advanced abilities. The same observation can be applied to the question whether a party is capable of conducting its case, which only requires an ability to make basic personal decisions. The Respondents have accepted that they have an obligation to demonstrate, presumably on a balance of probabilities, that the Complainant is incapable of testifying. They rely principally on R. v. Hawke (1975) 7 O.R. (2d) 145 (Ont. C.A.), which is instructive on the general issue. They have also referred me to Sopinka’s Law of Evidence in Canada (2d), at §13.10 et. seq., which provides a very brief account of the law.
[18] The court in Hawke uses the antique and now unsettling language of Wigmore, at §i492, in holding that a witness is only disqualified from testifying if the derangement or defect is such as to undermine the witness’ ability to give trustworthy evidence on the specific subject of the testimony. The fact that the Complainant may have a psychological condition or paranoid personality disorder, or may be suffering from Post Traumatic Stress Disorder, does not prevent her from testifying. I do not know if a test has been enunciated in the caselaw, but the question is whether a trier of fact can properly and safely consider the evidence, in making a determination of the facts. The use of the word trustworthy is easily misinterpreted and the issue is not whether her testimony should be believed. It is whether it is capable of being believed.
[19] I feel obliged to add that my primary duty is to protect the integrity of the legal process. Although witnesses may occasionally break down, emotionally, there is a certain level of probity that is necessary to conduct a fair hearing. The legal and evidentiary process calls for a relatively calm and dispassionate assessment of the facts in a given case, and the purpose of the hearing must be respected. I have a fundamental obligation to maintain the level of decorum in the hearing that is necessary to maintain the integrity of the process. This is an indispensable attribute of the legal system and guarantees the justice and fairness of the proceeding.
[20] The trier of fact must also be able to follow and evaluate the testimony. It must be open to intelligent inspection. The evidence must be presented in some kind of logical and coherent manner, which is capable of rational construction. There may be additional concerns in the immediate case, which relate to the obligation of a tribunal to intervene when the process endangers the psychological well-being of the Complainant. This goes directly to the capacity of the Complainant to present her case, however, and is a secondary concern.
V. THE COMPLAINANT’S ABILITY TO TESTIFY [21] The parties have come a considerable distance in discharging their burden to establish the Complainant is incapable of testifying. I have real misgivings about continuing, and doubts about whether the Complainant can participate in the hearing in a meaningful and informed manner. I am particularly concerned about whether she can deal with the rigours of cross-examination, which will have to be faced. I have allowed the Complainant considerable latitude in putting in her evidence-in-chief, but the Respondents are entitled to confront her with the details of the case in cross-examination and I see no way of sparing her from such an exercise.
[22] Ms. Thayer submitted that Ms. Day exhibited a lack of understanding of the proceedings and made inaccurate statements of fact from the beginning of the hearing. She gave clear examples, in her estimation, of delusional thinking. There is no doubt that the Complainant’s ability to recall events accurately and testify has already been brought into question. Ms. Thayer submitted that there are two major issues that have repeatedly initiated inappropriate behaviour and breaks with reality. The first is the alleged harassment. The second is her mental well-being. The Respondents accept that Ms. Day can give accurate and even compelling evidence. But that ability deteriorates rapidly when she has to deal with the events at the heart of the case. As a result, her evidence becomes untrustworthy when she deals with the essential allegations of fact.
[23] I share the concerns of counsel. It is manifest that the Complainant’s previous breakdown was triggered by her recounting of the details of her allegations. In spite of this, I am unwilling to stop the testimony at this point. It has not been established that she cannot provide a meaningful narrative of the events that led to the filing of the complaints. One of the features of the case is that it is the demands of the process that has created the conditions that led to the Complainant’s breakdown. The situation is not static and the real concern is that the process of testifying may precipitate a more pronounced and prolonged breakdown. I realize that the situation is perilous for the Complainant and that counsel are not happy with the possibility that she may have a more serious episode under the strain of their questioning. This is a matter of speculation, however, and I am not satisfied that we have reached the point where I can find that she is unable to testify.
[24] The question of capacity only arises when the cognitive abilities of the witness are fundamentally impaired. The psychiatric testimony in Hawke, for example, established that the witness in question was hallucinating on the stand. She was also accompanied, in her mind, by a little girl called Delores. This companion was, in the words of the witness, at p. 160, supra, in my head telling me to say things that would put me in jail and get tommy off. I have evidence before me that the present complainant has at least been dissociating on the stand, and that she may be moving in and out of reality. There is evidence of psychotic episodes in the past. But there is nothing of these proportions in the situation that comes before me.
[25] As I have indicated, the Respondents have also submitted that the Complainant’s psychological condition at the time when she was allegedly harassed renders her incapable of providing evidence that meets the necessary probative standard. This submission is premature, however, and relies upon a variety of factors, such as the diagnosis of her condition. Although the Complainant’s testimony comes with many imperfections, the Respondents have not established the evidentiary basis for such a finding. The evidence of Dr. Kaplan was contested by the other psychological witnesses and is at least open to argument. There may be reasons to be concerned with this aspect of the testimony, but the more immediate concern is with the Complainant’s present condition.
[26] It became apparent during the voir dire that the experts have a different view as to the merits of the case. The experts for Ms. Day seem to believe that she was sexually harassed and feel that it is the sexual harassment that provided the traumatic event in the Post Traumatic Stress Disorder that her experts diagnosed. The position on the other side is equally stark, however: it is that Ms. Day suffered from a paranoid personality disorder and merely believed that she was being harassed. Her perceptions have no connection to reality, on this view, and were the product of a psychological disorder. If the latter view is adopted, and the test of the courts is adopted, her evidence is so inherently unreliable that it would be dangerous to put it before a jury. The problem is that this asks me to rule on the merits of the case, in deciding the questions put before me on the voir dire.
[27] Although I do not believe that we have reached the point where I can intervene, I believe that the present situation needs to be monitored. If the testimony of the Complainant continues to deteriorate, or it becomes impossible to conduct a proper hearing, it may be necessary to return to the question of capacity.
V. THE COMPLAINANT’S ABILITY TO PRESENT HER CASE [28] I have not been able to review the law with regard to the question whether the Complainant is capable of representing herself. The test may be whether she is capable of instructing counsel. This is not a decisive issue at this time, however, and I merely wish to address the concerns that the Respondents have raised with respect to the well-being of the Complainant. The experts who testified on the voir dire disagreed as to the long-term effect of Ms. Day’s participation in the hearing. Dr. Hunter and Dr. Malcolm felt that it was essential, psychologically, that Ms. Day have an opportunity to see the matter through to its logical end. This may be incidental to the purpose of a hearing. I nonetheless feel that Ms. Day has a fundamental right to present her case and that the therapeutic effect of doing so is a valid consideration, in examining the rights of a complainant.
[29] I am not as convinced as Dr. Hunter and Dr. Malcolm as to the benefit of the Complainant’s participation in the hearing, and I share some of the concerns expressed by Dr. Kaplan. I do not believe, however, that it would be appropriate to intervene in the interests of the Complainant unless we reach a position where she becomes incompetent in the larger sense and cannot make decisions for herself. Up until that point, the Complainant is the only one who can decide what is in her best interests. She may make choices that run demonstrably against her interests. But that is true of anyone in society and it would be quite wrong, in my view, to treat her as a dependent. This goes directly to the legal question of dignity, which requires that tribunals and courts allow litigants to make their own decisions, however discomfiting that may be.
[30] This is a matter of general policy. When I asked Ms. Day whether she was capable of proceeding, she was unequivocal. She feels that she can continue and advise me that she knows how to ask for help. As far as I can determine, she understands her obligations as a witness, is capable of communicating her thoughts and is generally grounded in reality. She also recognizes the need to ascertain whether her perceptions are accurate and well founded. She agreed, on my questioning, that she should not swear in the hearing room and that she is obliged to respect the other participants in the hearing. Whether she can live up to this is another matter.
[31] The Complainant is a party to these proceedings and a finding of incapacity will probably deprive her of her right to have the complaint heard by the Tribunal. At this point, at least, I am not prepared to deprive her of that opportunity. The law of human rights is based on the dignity of the person, which requires that a tribunal respect the personal autonomy of those who come before it. This is a fundamental aspect of being a person and guarantees our freedoms. There are hazards in proceeding, and at some point, it may be necessary to intervene. But at this point, the Complainant has the ultimate responsibility for deciding whether she wishes to proceed. We have not reached the point where I can interfere with that decision.
VI. RULING [32] I am accordingly of the view that the Complainant is capable of testifying at this point in time and can represent herself. I nevertheless have real concerns about whether she will be able to complete her case. In the circumstances, I think it is premature to rule on the application. It seems more appropriate to close the voir dire and return to the hearing, on the clear understanding that the matter may be reopened on application by the parties.
[33] My reading of the law, such as it is, suggests that the evidence on the voir dire may be relevant on issues like credibility and should be applied to the hearing as a whole. I would, however, invite submissions from the parties on the matter. There is also an issue of accommodation that requires consideration.
Dr. Paul Groarke
OTTAWA, Ontario
March 12, 2003
CANADIAN HUMAN RIGHTS TRIBUNAL
COUNSEL OF RECORD
TRIBUNAL FILE NOS.: T627/1501 and T628/1601
STYLE OF CAUSE: Amanda Day v. Department of National Defence and Michael Hortie
RULING OF THE TRIBUNAL DATED: March 12, 2003
APPEARANCES:
Amanda Day On her own behalf
Joyce Thayer For Department of National Defence
J. David Houston For Michael Hortie
| ||
2003 CHRT 14 | CHRT | 2,003 | Chopra v. Canada (Department of National Health and Welfare) | en | 2003-03-17 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6879/index.do | 2023-12-01 | Chopra v. Canada (Department of National Health and Welfare)
Collection
Canadian Human Rights Tribunal
Date
2003-03-17
Neutral citation
2003 CHRT 14
File number(s)
T492/0998
Decision-maker(s)
Hadjis, Athanasios
Decision type
Ruling
Decision Content
Canadian Human Rights Tribunal
CANADA
Tribunal canadien des droits de la personne
BETWEEN:
SHIV CHOPRA
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
DEPARTMENT OF NATIONAL HEALTH AND WELFARE
Respondent
RULING ON DISCLOSURE
2003 CHRT 14
MEMBER: Athanasios Hadjis
2003/03/17
[1] Upon request from the Complainant and the Commission for an Order regarding the production of certain information;
[2] And upon noting the consent of the Respondent, Health Canada, to the production of certain information on the condition that it is included in an order of the Tribunal with certain stipulations, the Tribunal orders as follows:
The Respondent, Health Canada, shall immediately produce to counsel for the Complainant and the Commission, the names of the individuals who have been identified at Tab 1 of Health Canada’s Disclosure Documents. The names may only be disclosed to the parties and the parties’ expert(s) and may only be used for the purposes of this hearing. The parties, their counsel, and their expert witnesses shall not use these names to contact the individuals. Furthermore, the parties, their counsel and their expert witnesses shall not disclose these names to any other individuals. The expert report of the Complainant or Commission shall be served on the parties no later than March 1, 2003, or five days after the production of the names, whichever is later. The expert report in reply of the Respondent, if any, shall be served on the parties 30 days after receipt of the expert report of the Complainant and Commission, subject to the right of the Respondent to request a further extension if necessary. In the event that there are any difficulties arising out of this Order, the parties may contact the Tribunal to make further submissions.
Athanasios Hadjis
OTTAWA, Ontario
March 17, 2003
CANADIAN HUMAN RIGHTS TRIBUNAL
COUNSEL OF RECORD
TRIBUNAL FILE NO.: T492/0998
STYLE OF CAUSE: Shiv Chopra v. Department of National Health and Welfare
PLACE OF HEARING: Ottawa, Ontario
ORDER OF THE TRIBUNAL DATED: March 17, 2003
APPEARANCES:
David Yazbeck For the Complainant
Peter Engelmann For the Canadian Human Rights Commission
David Migicovsky For the Respondent
| ||
2003 CHRT 15 | CHRT | 2,003 | Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec inc. v. Barbe | en | 2003-04-02 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6887/index.do | 2023-12-01 | Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec inc. v. Barbe
Collection
Canadian Human Rights Tribunal
Date
2003-04-02
Neutral citation
2003 CHRT 15
Decision-maker(s)
Mactavish, Anne L.
Decision type
Ruling
Decision Content
Canadian Human Rights Tribunal
CANADA
Tribunal canadien des droits de la personne
BETWEEN:
GROUPE D’AIDE ET D’INFORMATION SUR LE
HARCÈLEMENT SEXUEL AU TRAVAIL DE LA
PROVINCE DE QUÉBEC INC.
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
JEAN BARBE
Respondent
RULING ON THE DISCLOSURE OF THE SETTLEMENT
AGREEMENT AND ADDITION OF MME DES ROSIERS AS A PARTY
2003 CHRT 15
MEMBER: Anne L. Mactavish
2003/04/02
[1] The Groupe d’aide et d’information sur le harcèlement sexuel au travail de la province de Québec inc. (Groupe d’aide) filed a complaint alleging that Jean Barbe harassed Mireille Des Rosiers in the course of her employment with Société Radio-Canada. It is alleged that this harassment was based upon Mme Des Rosiers’ sex, her race and her national or ethnic origin. Groupe d’aide evidently filed a second complaint on Mme Des Rosiers’ behalf, this complaint against her employer, Société Radio-Canada. The complaint against Société Radio-Canada was settled while the matter was before the Canadian Human Rights Commission. The complaint against M. Barbe has now been referred to the Canadian Human Rights Tribunal for hearing.
[2] M. Barbe seeks production of the Minutes of Settlement documenting the settlement between Groupe d’aide and Société Radio-Canada. Groupe d’aide, Radio-Canada and the Commission object to the disclosure of the settlement agreement, submitting that the agreement is privileged, and in any event, is not relevant to any of the matters in issue in the complaint against M. Barbe.
[3] The Commission has also asked that Mme Des Rosiers be added as a complainant in this proceeding.
[4] In a pre-hearing conference call, the Tribunal member assigned to hear this case offered the parties the option of having these motions determined by a different Tribunal member. I assume that this offer was made on the assumption that it could become necessary to review the contents of the settlement agreement. The Commission and Radio-Canada have both asked that the motions be heard by someone other than the member assigned to hear the case. M. Barbe says that this would be acceptable to him if the agreement is to be divulged in order to determine its relevance.
[5] In the circumstances, the motions have been assigned to a different Tribunal member.
I. M. BARBE’S REQUEST FOR PRODUCTION OF THE SETTLEMENT AGREEMENT [6] M. Barbe’s request raises two issues. The first is whether the settlement agreement involving Radio-Canada is relevant to this proceeding. The second is whether the agreement is subject to privilege. I will deal first with the issue of relevance, as if I were to conclude that the agreement is not relevant to this proceeding, it would be unnecessary to deal with the question of privilege.
A. Is the Settlement Agreement Arguably Relevant to the Case Against M. Barbe? [7] M. Barbe contends that the settlement agreement between Groupe d’aide and Radio-Canada is relevant to issues of both liability and damages. Insofar as liability is concerned, M. Barbe says that both the complaint against Radio-Canada and the complaint against him arise out of the same factual situation in the workplace. M. Barbe was acting in the course of his employment in his dealings with Mme Des Rosiers. M. Barbe believes that the settlement agreement contemplated the withdrawal of the complaint against Radio-Canada and the complaint against M. Barbe. The basis for this belief has not, however, been disclosed to the Tribunal.
[8] Having forfeited her rights as against Radio-Canada and M. Barbe, M. Barbe says, Mme Des Rosiers no longer has the right to pursue him in this case. It follows that Groupe d’aide cannot pursue the case on Mme Des Rosiers’ behalf, depriving the Tribunal of jurisdiction in relation to this complaint. Any confidentiality provision in the settlement agreement cannot operate to prevent disclosure when disclosure is required to determine if the Tribunal has jurisdiction to hear the case.
[9] Insofar as the question of damages is concerned, M. Barbe says that any monies received by Mme Des Rosiers from Radio-Canada would have to be taken into account by the Tribunal in its assessment of damages against M. Barbe, so as to prevent any double recovery by Mme Des Rosiers.
[10] The Canadian Human Rights Commission submits that the complaint against M. Barbe is separate from the complaint against Radio-Canada. The remedies sought against M. Barbe are distinct from those for which Radio-Canada could be liable. As a result, the settlement with Radio‑Canada has no relevance to the case against M. Barbe. The Commission further contends that it does not accord with common sense and fairness that a settlement between Groupe d’aide and Radio-Canada could allow M. Barbe to avoid responsibility.
[11] With respect to the question of damages, the Commission says that the only damages to which Mme Des Rosiers could be entitled are those for which she has not already received compensation. The Commission submits that there is no issue of double recovery in relation to non‑pecuniary damages, citing the decision of the Ontario Board of Inquiry in Ghosh v. Domglas Inc. (No. 2), as authority for the proposition that separate awards for non-pecuniary damages may be made against different respondents.
[12] Radio-Canada submits that M. Barbe has failed to show how the agreement is relevant to the issues in this case. According to Radio-Canada, the settlement goes beyond the human rights complaint filed against it, but also resolves litigation involving Mme Des Rosiers, Radio-Canada and Mme Des Rosiers’ union.
[13] Questions relating to damages will only arise later in the proceedings, Radio-Canada says, and then only if the complaint against M. Barbe is substantiated. As a result, Radio-Canada submits that the issue of disclosure should be deferred until damages are being addressed.
[14] Groupe d’aide states that the agreement in issue is between Mme Des Rosiers and Radio‑Canada. According to Groupe d’aide, separate causes of action have been asserted against Radio-Canada and M. Barbe. As Mme Des Rosiers’ employer, Radio-Canada’s liability is for acts of harassment taking place in the workplace, whereas M. Barbe is liable for his own conduct.
[15] Groupe d’aide says that M. Barbe should not be able to rely on the settlement between Mme Des Rosiers and Radio-Canada to let him off the hook. Rather, M. Barbe has to take responsibility for his actions and accept the consequences.
II. ANALYSIS [16] I am satisfied that the settlement agreement is arguably relevant to issues of both liability and damages. With respect to the issue of liability, the scope of any release that may have been granted by either Groupe d’aide or Mme Des Rosiers seems to me to be potentially relevant to the issue of M. Barbe’s liability. Specifically, the question is whether employees, agents or servants of Radio-Canada were released by or on behalf of Mme Des Rosiers or by Groupe d’aide.
[17] Insofar as the question of damages is concerned, I am satisfied that the settlement with Radio-Canada creates the potential for double recovery by Mme Des Rosiers. In both its questionnaire and in its pre-hearing disclosure, the Commission indicates that it may be seeking to recover wages that Mme Des Rosiers may have lost as a consequence of M. Barbe’s alleged actions. Clearly, any monies that Mme Des Rosiers may have already received from Radio-Canada on account of lost wages would have to be taken into account in fashioning a remedy against M. Barbe, so as to prevent double recovery.
[18] With respect to the claim for non-pecuniary damages, the question of whether an award of non-pecuniary damages paid by one respondent should be taken into account in granting a similar remedy against a different respondent has arisen in several recent cases. In contrast to the position taken by Commission counsel in this case, the Tribunal’s decision in Woiden et al. v. Lynn indicates that counsel for the Commission took the opposite position in that case. In Woiden, the Commission submitted that any payment on account of non-pecuniary damages by an employer would have to be factored into an award against the harasser himself. The Tribunal’s assessment of damages proceeded on this basis. Similarly, in Bushey v. Sharma , the Tribunal noted that such a payment by an employer could be relevant in certain circumstances. As was previously noted, in Ghosh, the Ontario Board of Inquiry held that separate awards for non-pecuniary damages may be made against different respondents.
[19] I do not have to determine whether an award of non-pecuniary damages paid by one respondent should be taken into account in granting a similar remedy against a different respondent at this stage in the proceedings. Suffice it to say that I am satisfied that the quantum of any payment made by Radio-Canada to Mme Des Rosiers for her non-pecuniary losses is arguably relevant to the assessment of the claim for non-pecuniary damages being asserted against M. Barbe.
[20] Having concluded that aspects of the settlement agreement relating to the complaint against Radio-Canada are arguably relevant to the claim being asserted against M. Barbe, the issue is then whether the agreement is privileged, and thus protected from disclosure.
A. Is the Settlement Agreement Privileged? [21] The Commission contends that the settlement was arrived at through the Commission’s conciliation process, and is thus privileged. According to the Commission, privilege attaches not just to settlement negotiations, but to the settlement agreement itself. The agreement further contains a confidentiality clause, reflecting the parties’ expectation that the agreement would remain private.
[22] The Commission states that the agreement in this case does not fall within one of the recognized exceptions to the settlement privilege. According to the Commission, questions relating to the interpretation of the agreement can only arise as between the parties to the agreement itself, and not in relation to a stranger to the agreement, such as M. Barbe. Further, the hearing of the complaint against M. Barbe does not raise issues relating to the interpretation of the agreement, and does not, therefore, create an exceptional situation.
[23] The Commission further notes that the settlement agreements in issue in Woiden and Bushey were not arrived at in the course of the Commission’s conciliation process, and that these decisions are therefore distinguishable.
[24] Radio-Canada submits that the parties expected that the agreement would remain confidential, primarily to protect the interests of Radio-Canada. If the agreement were disclosed, Radio-Canada says, its rights would be affected. Radio-Canada does not elaborate on what the effect of disclosure would be insofar as Radio-Canada’s rights are concerned.
[25] Groupe d’aide has not made any submissions on the issue of privilege.
[26] M. Barbe states that the opposing parties have not satisfied the burden on them to establish that the settlement agreement is indeed privileged. Even if the agreement is privileged, M. Barbe says that the privilege attaching to settlements has its limits, citing the exceptions referred to in Sopinka. He cites the Tribunal’s decision in Bushey as authority for the proposition that the privilege relates to settlement negotiations, and not to the settlement agreement. While acknowledging the public policy underlying the principle that settlement negotiations be kept confidential, M. Barbe argues that a party should not be able to rely on a confidentiality provision in a settlement agreement to allow it to pursue a third party, in violation of the terms of the agreement.
[27] M. Barbe submits that the jurisprudence establishes that the privilege can be set aside where it can be shown that the document is arguably relevant to a party’s case. He has not, however, cited any authority in support of this contention.
[28] Finally, M. Barbe states that the prejudice to him if the agreement is not disclosed outweighs that which will be suffered by the other parties if the agreement is not kept confidential.
B. Analysis [29] M. Barbe’s request requires me to balance two important and competing policy considerations: that is, the public interest in promoting the settlement of human rights disputes and the fairness requirement that parties to human rights litigation have a full opportunity to advance their positions.
[30] There are two provisions of the Canadian Human Rights Act that must be considered in determining how these competing interests are to be resolved. Subsection 47(3) provides that:
Any information received by a conciliator in the course of attempting to reach a settlement of a complaint is confidential and may not be disclosed except with the consent of the person who gave the information.
Subsection 50 (4) states:
The member or panel may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
[31] I propose to consider first the more general question of whether a settlement agreement is privileged as against a third party in circumstances such as those that arise here. I will then consider the effect of subsection 47(3) of the Act, as it relates to settlement agreements arrived at through the Commission conciliation process.
[32] Insofar as the general issue of settlement privilege is concerned, the law is clear that settlement negotiations are subject to privilege, and may only be disclosed in limited circumstances. There is a compelling public policy basis for this rule: parties should be encouraged to try to resolve their differences through negotiation, and should not be inhibited in their efforts by fear that admissions or concessions made in the course of negotiations could be used against them, in the event that the negotiations do not result in the resolution of the dispute.
[33] While the law relating to the privileged nature of settlement negotiations is relatively clear, the law relating to concluded settlement agreements is less clear. Much of the discussion in the jurisprudence centres around the question of whether settlement negotiations lose their privileged character when they result in an agreement. Sopinka suggests that where settlement negotiations result in an agreement, evidence with respect to these negotiations may be tendered in proof of the settlement, where the existence or interpretation of the agreement is in issue. As my colleague noted in Bushey, the exceptions cited by Sopinka relate to the disclosure of settlement negotiations in specific situations. No explicit reference is made to the issue of the discoverability of settlement agreements, nor does Sopinka suggest that settlement agreements may only be disclosed in exceptional circumstances.
[34] There is no unanimity in the jurisprudence on this point. In Derco Industries Ltd. v. A.R. Grimwood Ltd., the British Columbia Supreme Court allowed the disclosure to a plaintiff of settlement documents (including documents relating to the negotiations, as well as the settlement agreement itself) where an agreement had been entered into by several defendants in a construction dispute. In ordering that the documents be disclosed, the Court noted that the balancing of competing interests may differ when the request for disclosure comes from a stranger to the negotiations, whose interests may be affected by the settlement. This decision was subsequently affirmed by the British Columbia Court of Appeal. However, the Court of Appeal expressly declined to offer an opinion on whether a stranger to the negotiations is in a different position to the parties themselves.
[35] The British Columbia Court of Appeal revisited this issue in Middelkamp v. Fraser Valley Real Estate Board. At issue in Middelkamp was the production of documents exchanged during settlement negotiations that had resulted in a consent order being made. In finding that the documents were privileged, and thus not subject to production, the Court reiterated that without prejudice documents communicated in the course of settlement negotiations were subject to a class privilege, whether or not an agreement was reached. In coming to this conclusion, the Court held that Derco was wrongly decided. It should be noted, however, that the issue in Middelkamp was the discoverability of documents exchanged during settlement negotiations. The discoverability of the settlement agreement itself was not before the Court.
[36] This distinction was noted by the Alberta Court of Queen’s Bench in Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co., which considered whether a stranger to unsuccessful settlement negotiations could obtain information regarding the negotiations during examinations for discovery. In concluding that a stranger to the negotiations was not entitled to disclosure of the contents of the failed negotiations, the Court distinguished Derco on the basis that in Derco, there was a concluded settlement.
[37] The British Columbia Court of Appeal recently had cause to consider the issue of the discoverability of a settlement agreement in British Columbia Children’s Hospital v. Air Products Canada Ltd., a case involving a settlement between a plaintiff and some of the defendants in a multi-party law suit. The Court concluded that its earlier decision in Middelkamp was binding authority for the proposition that settlement agreements were privileged, and thus immune from disclosure. Notwithstanding this conclusion, however, it appears that the Court did not consider this privilege to be absolute, as the Court went on to affirm the portion of the Motions Judge’s ruling requiring disclosure of any provision in the settlement agreement that could be construed as a release, on the basis that it was potentially relevant to the matters still in issue in the litigation. Thus it appears that disclosure can be ordered in situations where the settlement agreement is potentially relevant to issues still alive in ongoing litigation.
[38] It should be recalled that it is the provisions in the settlement agreement between Groupe D’aide and Radio-Canada that could be construed as a release of M. Barbe that I have found to be arguably relevant to the issue of liability in this case.
[39] The House of Lords considered the discoverability of correspondence leading up to a concluded settlement agreement in Rush & Tompkins Ltd. v. Greater London Council and Another. The Court concluded that without prejudice correspondence sent in the course of settlement negotiations remain privileged, even if an agreement is concluded. The correspondence was thus inadmissible in subsequent litigation involving the same subject matter, whether it involved the same or different parties. In arriving at this conclusion, the Court noted that allowing admissions made in an effort to effect a compromise to be used in subsequent litigation would serve to discourage efforts to settle. As a result, the Court concluded that settlement negotiations should not be disclosed, whether or not the negotiations subsequently led to an agreement. Once again, however, the Court was concerned with the production of correspondence leading up to the settlement, as opposed to the settlement agreement itself.
[40] The English Court of Appeal subsequently had occasion to consider the application of the House of Lords’ decision in Rush & Tompkins to a case where a settlement agreement had been concluded. In Gnitrow Ltd. v. Cape PLC., the Court stayed a claim against a defendant, until such time as the plaintiff disclosed the terms of an agreement entered into between the plaintiff and other parties. Disclosure was required on the grounds that there was a relationship between what the plaintiff was claiming from the defendant, and the monies that the plaintiff had been required to pay to the other parties. In making this order, the Court indicated that each case where access to a settlement agreement was being sought should be considered in light of the specific circumstances in issue.
[41] In this case, I have found that there is a potential relationship between the monies that the complainant or Mme Des Rosiers have received from Radio-Canada and the damages claimed against M. Barbe.
[42] In determining whether a settlement agreement is privileged, and thus exempt from disclosure, it is helpful to keep in mind the public policy reason underlying the recognition of a settlement privilege. As Sopinka noted, in considering the privilege attached to settlement negotiations, ... the exclusionary role (sic) was meant to conceal an offer of settlement only if an attempt was made to establish it as evidence of liability or a weak cause of action, not when it is used for other purposes.
[43] Keeping this principle in mind, it seems that while settlement negotiations are privileged, whether or not an agreement is ultimately reached, the settlement agreement itself is not absolutely privileged, and may be disclosed when it relates to live issues in ongoing litigation. As long as the agreement has potential relevance, other than as an admission against interest, and is not being used simply to establish one party’s liability or the weakness of that party’s position, the privilege does not bar production.
[44] Having concluded that the settlement agreement is not subject to an absolute privilege, and may be disclosed when it relates to live issues in ongoing litigation, subsection 50(4) of the Canadian Human Rights Act is no longer relevant. What remains to be determined is whether the fact that the agreement was arrived at through the auspices of the Commission’s conciliation process affects the discoverability of the agreement.
[45] The only jurisprudence of which I am aware that considers this provision in the legislation is the decision of the Federal Court of Appeal in Paul. At issue in Paul was the propriety of information relating to failed attempts at conciliation, including an offer of settlement, being provided to the Commissioners of the Canadian Human Rights Commission, for consideration by the Commissioners in deciding how to dispose of the case.
[46] The Court concluded that subsection 47(3) contained an absolute prohibition against the disclosure of any information received by the conciliator. The Court noted that such a prohibition was consistent with the common law settlement privilege relating to settlement negotiations, and was all the more necessary in light of the mandatory nature of Commission conciliation.
[47] As previously noted, Paul deals with disclosure of settlement negotiations. The Court was not called upon to determine whether a settlement agreement negotiated through the conciliation process could be disclosed. The Court did note, in passing, that Section 48 of the Act requires Commission approval of settlements reached prior to the commencement of hearings. In the Court’s view, a request for Commission approval is the consent to disclosure of the terms of the settlement. This obiter statement could be interpreted to mean that subsection 47(3) requires that consent be provided for the disclosure of conciliated settlement agreements.
[48] However, regard must be had to the wording of subsection 47(3) itself. The French version of the subsection states that Les renseignements recueillis par le conciliateur sont confidentiels ..., whereas the English version refers to information received by the conciliator ... in the course of attempting to reach a settlement .... Thus the English version arguably relates only to communications made during negotiations leading up to a settlement, and not to the settlement agreement itself. Such an interpretation would be consistent with the policy considerations discussed earlier in this ruling, in that any concessions or admissions made by a party to a conciliation could not be used against them, once a settlement was concluded.
[49] For these reasons I am of the view that the settlement agreement is not protected by either a statutory or common law privilege.
C. Should the Agreement be Produced in its Entirety? [50] Even though I have concluded that the settlement agreement is not protected by either a statutory or common law privilege, it is not disputed that the agreement was entered into by the parties in the expectation that it would remain confidential. In these circumstances, I am of the view that the agreement should not be disclosed beyond what is necessary to ensure M. Barbe the opportunity to mount a full answer and defense to the complaint against him. As a result, I am imposing certain terms on the disclosure.
[51] In order to ensure that the confidentiality of the agreement is not breached more than is absolutely necessary to provide a fair hearing, I am directing the Commission and Groupe d’aide to deliver a copy of the agreement to the Tribunal Registry within five days of this decision, in order that I may review it, and ensure that only the arguably relevant provisions are disclosed to M. Barbe.
[52] What may be arguably relevant at this point will depend on whether the issues of liability and damages are dealt with at the same time. Based upon the information before me, it appears that only a portion of the agreement will likely relate to the issue of liability. Other provisions could be relevant to the assessment of damages. At this point, the issues of liability and damages have not been bifurcated. I propose to review the document, and release to M. Barbe those portions that are arguably relevant to issues of both liability and damages, unless a request is received from any of the parties for a bifurcation of the hearing. Any such request must be received by the Tribunal within seven days of this decision.
[53] If a request for bifurcation is received, only those provisions of the agreement that are arguably relevant to the issue of liability will be disclosed, pending a determination of the request for bifurcation. In the event that the member assigned to hear this case decides to bifurcate the hearing, provisions of the agreement that are arguably relevant only to the assessment of damages will not be disclosed at this time.
[54] In the event that the complaint against M. Barbe is substantiated, I will review the agreement and direct that those provisions that are arguably relevant to the issue of damages be disclosed.
[55] Any provisions of the settlement agreement disclosed to M. Barbe are disclosed upon the following additional terms:
The agreement shall only be used by M. Barbe and his counsel for the purposes of the hearing into the complaint against M. Barbe; and No copies are to be made of any of the provisions of the settlement agreement that are disclosed. Within thirty days of the conclusion of the hearing, counsel for M. Barbe shall return any settlement documentation received by him to the Commission, unless an application for judicial review of the Tribunal’s decision has been filed.
[56] It should be noted that this decision relates only to the question of the production of the settlement agreement. Its ultimate admissibility will have to be determined by the member hearing the case.
[57] Counsel for Radio-Canada asked that I indicate to the parties that no mention will be made of the terms of the settlement in the Tribunal’s decision. It is not up to me to commit the member who will be hearing the merits of this case to say, or not say, something in his decision. Indeed, it would be highly inappropriate for me to do so. If the parties have any concerns in this regard, they may raise these concerns with the member hearing the case. Similarly, any concerns with respect to sealing the record should be addressed in the course of the hearing.
III. THE ADDITION OF MME DES ROSIERS AS A COMPLAINANT [58] The Commission has asked that the style of cause in this proceeding be amended to add Mme. Des Rosiers as a complainant. According to the Commission, Mme. Des Rosiers is the person directly aggrieved in this case, and the party to whose benefit any remedies should accrue. The addition of Mme. Des Rosiers as a complainant would avoid any ambiguity in the proceeding, the Commission says, and would not result in any prejudice to the respondent.
[59] M. Barbe objects to the request, submitting that Mme. Des Rosiers no longer has any interest in the case.
[60] I assume that M. Barbe’s submission is based upon what he believes is contained in the settlement agreement between Mme. Des Rosiers and Radio-Canada. At this point, however, there is no evidence before me to suggest that Mme. Des Rosiers no longer has an interest in the case.
[61] I am not prepared to grant the Commission’s request at this point. This case is somewhat unusual, in that the complaint was filed by an organization on behalf of the individual directly implicated in the case. There is no information before me as to why Mme. Des Rosiers did not file the complaint herself in the first place, and I am thus unable to determine whether it would be appropriate to allow her to join the case at this late date.
[62] The Commission’s request also presumes that the Tribunal has the jurisdiction to add a complainant after the case has gone through the Commission process, in such circumstances.
[63] Accordingly, I am adjourning the Commission’s request to add Mme. Des Rosiers as a complainant, to be dealt with by the member assigned to hear this case, upon the filing of a more complete evidentiary record.
Anne L. Mactavish
OTTAWA, Ontario
April 2, 2003
CANADIAN HUMAN RIGHTS TRIBUNAL
COUNSEL OF RECORD
TRIBUNAL FILE NO.: T736/4102
STYLE OF CAUSE: Groupe d’aide et d’information sur le harcèlement
sexuel au travail de la province de Québec inc. v.
Jean Barbe
RULING OF THE TRIBUNAL DATED: April 2, 2003
APPEARANCES:
Linda Smith For Groupe d’aide et d’information sur le
harcèlement sexuel au travail de la province de
Québec inc. and Mireille Des Rosiers
Giacomo Vigna For the Canadian Human Rights Commission
Katty Duranleau For Jean Barbe
Thierry Bériault For Société Radio-Canada
(1992), 17 C.H.R.R. D/216
It should be noted that in an earlier case conference, the Commission indicated that the agreement was entered into by Mme. Des Rosiers, Radio-Canada and Groupe d’aide.
(2002) 43 C.H.R.R. D/296
2003 CHRT 5
Sopinka, Lederman and Bryant, The Law of Evidence in Canada, (2d Ed.) at para. 14.220
Ibid.
Subsection 50 (1), Canadian Human Rights Act
Sopinka, at paras. 14.201-14.224
Canadian Broadcasting Corporation v. Paul, [2001] F.C.J. No. 542, at para. 26 (C.A.)
[1984] B.C.J. No. 1979
(1992) 71 B.C.L.R. (2d) 276
[1990] A.J. No. 232. Aff’d [1990] A.J. No. 573, [1990] 5 W.W.R. 377
[2003] B.C.J. No. 591
[1988] 3 All E.R. 737
The Federal Court of Appeal came to a similar conclusion in Bertram v. Her Majesty the Queen, [1996] 1 F.C. 756 (C.A.), stating that there is no doubt that an exclusionary rule or privilege applies to protect evidence being given of negotiations leading to settlement. Once again, however, the Court’s comments related to the negotiations, and not the settlement agreement. The Trial Division of the Federal Court came to a similar conclusion in Almecon Industries Ltd. v. Anchortek Ltd., [2000] F.C.J. No. 2008, which dealt with the discoverability of draft minutes of settlement.
[2000] 1 W.L.R. 2327
Sopinka, supra., at para. 14.220
Mueller Canada Inc. v. State Contractors Inc., (1989), 71 O.R. (2d) 397. See also Hudson Bay Mining and Smelting Co. v. Fluor Daniel Wright, [1997] M.J. No. 398 (Man. Q.B.), at para. 37, and Western Canadian Place Ltd. v. Con-Force Products Ltd., [1998] A.J. No. 1295 (Alta. Q.B.)
In resolving this ambiguity, reference should be had to the admonition of the Supreme Court of Canada in Ocean Port Hotel Ltd. v. British Columbia, (2001) 204 D.L.R. (4th) 33, that when confronted with ambiguous legislation, it should be inferred that Parliament’s intent was to conform with principles of natural justice (at para. 21).
| ||
2003 CHRT 16 | CHRT | 2,003 | Day v. Canada (Department of National Defence) | en | 2003-04-04 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6618/index.do | 2023-12-01 | "Day v. Canada (Department of National Defence)\nCollection\nCanadian Human Rights Tribunal\nDate\n2(...TRUNCATED) | ||
2003 CHRT 17 | CHRT | 2,003 | Brine v. Halifax Port Authority | en | 2003-04-29 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6886/index.do | 2023-12-01 | "Brine v. Halifax Port Authority\nCollection\nCanadian Human Rights Tribunal\nDate\n2003-04-29\nNeut(...TRUNCATED) | ||
2003 CHRT 18 | CHRT | 2,003 | Warman v. Kyburz | en | 2003-05-09 | https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6543/index.do | 2023-12-01 | "Warman v. Kyburz\nCollection\nCanadian Human Rights Tribunal\nDate\n2003-05-09\nNeutral citation\n2(...TRUNCATED) |
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Refugee Law Lab: Canadian Legal Data
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The Refugee Law Lab supports bulk open-access to Canadian legal data to facilitate research and advocacy. Bulk open-access helps avoid asymmetrical access-to-justice and amplification of marginalization that results when commercial actors leverage proprietary legal datasets for profit -- a particular concern in the border control setting.
The Canadian Legal Data dataset includes the unofficial full text of thousands of court and tribunal decisions at the federal level. It can be used for legal analytics (i.e. identifying patterns in legal decision-making), to test ML and NLP tools on a bilingual dataset of Canadian legal materials, and to pretrain language models for various tasks.
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Data Fields
citation (string): Legal citation for the document (neutral citation where available)
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name (string): Name of the document, typically the style of cause of a case
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Many documents are available in both English and French. Some are only available in one of the two languages.
Data Splits
The data has not been split, so all files are in the train split. If splitting for training/validation, some thought should be given to whether it is necessary to limit to one language or to ensure that both English and French versions of the same documents (where available) are put into the same split.
Data Loading
To load all data instances:
from datasets import load_dataset
dataset = load_dataset("refugee-law-lab/canadian-legal-data", split="train")
To load only a specific data instance, for example only the SCC data instance:
from datasets import load_dataset
dataset = load_dataset("refugee-law-lab/canadian-legal-data", split="train", data_dir="SCC")
Dataset Creation
Curation Rationale
The dataset includes all the Bulk Legal Data made publicly available by the Refugee Law Lab. The Lab has focused on federal courts (e.g. Supreme Court of Canada, Federal Court of Appeal, Federal Court) as well as federal administrative tribunals (e.g. Immigration and Refugee Board) because immigration and refugee law, which is the main area of interest of the Lab, operates mostly at the federal level.
Source Data
Initial Data Collection and Normalization
Details (including links to github repos with code) are available via links on the Refugee Law Lab's Bulk Legal Data page.
Personal and Sensitive Information
Documents may include personal and sensitive information. All documents have been published online or otherwise released publicly by the relevant court or tribunal. While the open court principle mandates that court (and some tribunal) materials be made available to the public, there are privacy risks when these materials become easily and widely available. These privacy risks are particularly acute for marginalized groups, including refugees and other non-citizens whose personal and sensitive information is included in some of the documents in this dataset. For example, imagine a repressive government working with private data aggregators to collect information that is used to target families of political opponents who have sought asylum abroad. One mechanism used to try to achieve a balance between the open court principle and privacy is that in publishing the documents in this dataset, the relevant courts and tribunals prohibit search engines from indexing the documents. Users of this data are required to do the same.
Non-Official Versions
Documents included in this dataset are unofficial copies. For official versions published by the Government of Canada, please see the source URLs.
Non-Affiliation / Endorsement
The reproduction of documents in this dataset was not done in affiliation with, or with the endorsement of the Government of Canada.
Considerations for Using the Data
Social Impact of Dataset
The Refugee Law Lab recognizes that this dataset -- and further research using the dataset -- raises challenging questions about how to balance protecting privacy, enhancing government transparency, addressing information asymmetries, and building technologies that leverage data to advance the rights and interests of refugees and other displaced people, as well as assisting those working with them (rather than technologies that enhance the power of states to control the movement of people across borders).
More broadly, the Refugee Law Lab also recognizes that considerations around privacy and data protection are complex and evolving. When working on migration, refugee law, data, technology and surveillance, we strive to foreground intersectional understandings of the systemic harms perpetuated against groups historically made marginalized. We encourage other users to do the same.
We also encourage users to try to avoid participating in building technologies that harm refugees and other marginalized groups, as well as to connect with community organizations working in this space, and to listen directly and learn from people who are affected by new technologies.
We will review the use these datasets periodically to examine whether continuing to publicly release these datasets achieves the Refugee Law Lab's goals of advancing the rights and interests of refugees and other marginalized groups without creating disproportionate risks and harms, including risks related to privacy and human rights.
Discussion of Biases
The dataset reflects many biases present in legal decision-making, including biases based on race, immigration status, gender, sexual orientation, religion, disability, socio-economic class, and other intersecting categories of discrimination.
Other Known Limitations
Publicly available court and tribunal decisions are not a representative sample of legal decision-making -- and in some cases may reflect significantly skewed samples. To give one example, the vast majority of Federal Court judicial reviews of refugee determinations involve negative first instance decisions even thought most first instance decisions are positive (this occurs because the government seldom applies for judicial reviews of positive first instance decisions whereas claimants frequently apply for judicial review of negative decisions). As such, generative models built partly on this dataset risk amplifying negative refugee decision-making (rather than more common positive refugee decision-making). Due to the ways that legal datasets may be skewed, users of this dataset are encouraged to collaborate with or consult domain experts.
Additional Information
Licensing Information
Attribution-NonCommercial 4.0 International (CC BY-NC 4.0)
NOTE: Users must also comply with upstream licensing for the SCC, FCA & FC data instances, as well as requests on source urls not to allow indexing of the documents by search engines to protect privacy. As a result, users must not make the data available in formats or locations that can be indexed by search engines.
Warranties / Representations
We make no warranties or representations that the data included in this dataset is complete or accurate. Data were obtained through academic research projects, including projects that use automated processes. While we try to make the data as accurate as possible, our methodologies may result in inaccurate or outdated data. As such, data should be viewed as preliminary information aimed to prompt further research and discussion, rather than as definitive information.
Dataset Curators
Sean Rehaag, Osgoode Hall Law School Professor & Director of the Refugee Law Lab
Citation Information
Sean Rehaag, "Refugee Law Lab: Canadian Legal Data" (2023) online: Hugging Face: https://huggingface.co/datasets/refugee-law-lab/canadian-legal-data (updated 2024).
Acknowledgements
This project draws on research supported by the Social Sciences and Humanities Research Council and the Law Foundation of Ontario.
The project was inspired in part by the excellent prior work by pile-of-law (Peter Henderson et al, "Pile of Law: Learning Responsible Data Filtering from the Law and a 256GB Open-Source Legal Dataset" (2022), online: arXiv: https://arxiv.org/abs/2207.00220).
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