Clark v. Canada (Attorney General), (2007) 305 F.T.R. 1 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: September 14, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2007), 305 F.T.R. 1 (FC);2007 FC 9

Clark v. Can. (A.G.) (2007), 305 F.T.R. 1 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. JA.033

Randal Clark (applicant) v. Attorney General of Canada (respondent)

(T-1586-05; 2007 FC 9)

Indexed As: Clark v. Canada (Attorney General)

Federal Court

Russell, J.

January 5, 2007.

Summary:

Clark complained that he was discriminated against in his place of employment because of his disability, post traumatic stress disorder. Clark alleged that he had been treated in an adverse differential manner because of his disability, that he had not been accommodated, and that he had not been provided with a harassment-free work environment. The Canadian Human Rights Commission concluded that the complaint did not meet the threshold for referral to the Canadian Human Rights Tribunal and it dismissed the complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act. Clark applied for judicial review.

The Federal Court allowed the application in part. The court held that the Commission erred in not submitting the complaint to the Tribunal on two of the three issues raised in the application and it directed the Commission to refer those matters to the Tribunal for consideration.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - [See first Civil Rights - Topic 7115 ].

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - Clark complained to the Canadian Human Rights Commission that he was discriminated against in his place of employment because of his disability, post traumatic stress disorder - The Commission dismissed the complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act - Clark applied for judicial review - Clark argued, inter alia, that the Commission erred in finding that the employer (Veterans Affairs Canada (VAC)) met its obligation to accommodate Clark with respect to providing him with a new work space - Clark had made a request on July 11, 2002, that the position of his desk be moved - He stated that his request had not been accommodated when he left work on April 1, 2003 - The Federal Court held that "On a more deferential standard of either patent unreasonableness, or even reasonableness, it is my view that the Commission did not err in deciding not to refer this aspect of the Complaint to the Tribunal. The respondent began trying to develop and build a workstation that would satisfy the applicant, at the latest, by August 2002 (the first report back from the contractors engaged to build the module was late August). The applicant was consulted and, in fact, made changes to the proposals, which by necessity delayed the process. Thus, although it took a long time to complete, VAC made reasonable efforts to complete the re-location" - See paragraphs 121 to 136.

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - Clark complained that he was discriminated against in his place of employment because of his disability, post traumatic stress disorder (PTSD) - Clark alleged, inter alia, that he had not been provided with a harassment-free work environment - The Canadian Human Rights Commission dismissed the complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act - Clark applied for judicial review - Clark argued, inter alia, that the Commission erred in determining that he had not been harassed during a mediation session at which other employees expressed their concerns about Clark and his PTSD - The Federal Court stated that "on a standard of correctness, I conclude that the Commission erred in not submitting this particular aspect of the complaint to the Tribunal for consideration. There is evidence from persons present at the mediation session that the applicant's disability was discussed repeatedly, and the evidence supports the contention that he was aggravated and disturbed by repeated attacks. There is unequivocal evidence that inappropriate comments were made by one participant to the effect that the applicant should find another job, and allusions were made to employees entering workplaces with weapons. The evidence suggests that the mediator allowed fairly free discussion of the applicant's disability in a situation where it was difficult for the applicant to speak up" - Even applying a lower standard of review of reasonableness, the court's conclusion on this issue was the same - See paragraphs 101 to 120.

Civil Rights - Topic 992

Discrimination - Employment - Adverse effect, indirect or constructive discrimination - Clark experienced a violent incident while working for Corrections Canada and he went on workers' compensation benefits for post traumatic stress disorder - He was accepted as a disability priority with the Public Service Commission and was entitled to priority placement - He was accepted for employment with Veterans Affairs Canada (VAC) on April 5, 2002, and he commenced employment on May 1, 2002 - VAC requested two extensions of a return to work program and it offered Clark a three-month term appointment - After a psychologist determined that Clark was fit to perform the job, VAC offered him an indeterminate position on September 4, 2002 - Clark complained to the Canadian Human Rights Commission alleging, inter alia, that VAC's failure to offer him immediate indeterminate status constituted adverse differential treatment on the grounds of disability - The Commission dismissed the complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act - Clark applied for judicial review - The Federal Court held that, on a standard of correctness, the Commission erred in not submitting the complaint to the Canadian Human Rights Tribunal on the issue of whether the delay in granting Clark indeterminate status constituted adverse differential treatment - There were several factors that suggested Clark was treated differently because of his disability - Given the low standard for committal, and the strict standard of review, the Commission erred on this point - Even applying a lower reasonableness standard of review, the court's conclusion was the same - See paragraphs 82 to 100.

Civil Rights - Topic 7048

Federal, provincial or territorial legislation - Commissions or boards - General - Appointment of tribunal - The Federal Court stated that the threshold for referring a complaint to a tribunal under s. 44 of the Canadian Human Rights Act appeared to be fairly low: having regard to all the circumstances, was there a reasonable basis on the evidence for proceeding to the next stage - See paragraph 81.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - The Canadian Human Rights Commission dismissed Clark's discrimination complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act - Clark applied for judicial review - Clark filed an affidavit to which he attached exhibits that he had submitted to the Investigator, but which the respondent stated were not before the Commission - The Federal Court held that the record before it rightly included exhibits that were before the Investigator and that were referred to by Clark when he made his submissions to the Commission on the Investigation Report - The court considered that the Commission's decision contained little in the way of reasons and it obviously relied upon the reasons in the Investigation Report for not accepting Clark's response to that report - The reality was that Clark was attacking the findings, conclusions and reasons in the Investigator's Report that were accepted by the Commission - See paragraphs 21 to 40.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - The Canadian Human Rights Commission dismissed Clark's discrimination complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act - Clark applied for judicial review - The Federal Court stated that "my role as a reviewing judge requires the following approach in the present case: 1. I must undertake a pragmatic and functional analysis to determine the appropriate standard of review applicable to this particular decision, and I should not rely upon some general notion of the kind of decision that has been made; 2. In undertaking a pragmatic and functional analysis I must clearly identify the particular question at issue in the decision under review; 3. In conducting the analysis I should not assume that the same standard of review will necessarily apply to all aspects of the Commission's decision, because the applicant has made multiple complaints and it is the particulars of the decision at issue that govern the standard of review I should apply" - The court stated that "on the facts of the present case, this requires that I undertake a pragmatic and functional analysis for each separate ground of review raised by the applicant" - See paragraphs 53 to 54.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - Clark complained that he was discriminated against in his place of employment because of his disability, post traumatic stress disorder - Clark alleged, inter alia, that he had not been provided with a harassment-free work environment - The Canadian Human Rights Commission dismissed the complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act - Clark applied for judicial review - Clark argued, inter alia, that the Commission erred in determining that he had not been harassed during a mediation session with other employees - The Federal Court, applying the pragmatic and functional analysis, held that the standard of correctness should be applied to this aspect of the Commission's decision - See paragraphs 72 to 73.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - Clark complained that he was discriminated against in his place of employment because of his disability, post traumatic stress disorder - Clark alleged, inter alia, that he had not been accommodated - The Canadian Human Rights Commission dismissed the complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act - Clark applied for judicial review - Clark argued, inter alia, that the Commission erred in finding that the employer met its obligations to accommodate Clark with respect to providing him with a new work space - The Federal Court stated that "My review of this aspect of the decision suggests to me that the focus of the applicant's attack is principally fact-intensive. Consequently, in my view, a pragmatic and functional analysis as applied to this particular aspect of the decision suggests that the applicable standard of review should be patent unreasonableness" - See paragraph 75.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - Clark experienced a violent incident while working for Corrections Canada and he went on workers' compensation benefits for post traumatic stress disorder - He subsequently commenced employment with Veterans Affairs Canada (VAC) - Clark complained to the Canadian Human Rights Commission that he was discriminated against in his place of employment because of his disability - Clark alleged, inter alia, that VAC's delay in offering him indeterminate status constituted adverse differential treatment on the grounds of disability - The Commission dismissed Clark's complaint pursuant to s. 44(3)(b) of the Canadian Human Rights Act - Clark applied for judicial review - The Federal Court stated that "with respect to the Commission's decision that a delay in granting indeterminate status did not constitute adverse differential treatment, the court is faced with a final, dispositive decision within which the basic exercise was to determine whether established facts (and conclusions drawn from those facts) qualified legally as adverse differential treatment. For this aspect of the decision, the court's expertise is no less than the Commission's. In my view, this places this particular issue at the law-intensive end of the spectrum and, taking all factors of the pragmatic and functional analysis together, requires a standard of correctness in this case" - See paragraph 71.

Cases Noticed:

Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 49; 24 Imm. L.R.(2d) 95 (T.D.), refd to. [para. 25].

Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47; 2001 FCA 93, refd to. [para. 25].

Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), leave to appeal refused (1995), 198 N.R. 237 (S.C.C.), consd. [para. 33].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 33].

Slattery v. Canadian Human Rights Commission, [1994] 2 F.C. 574; 73 F.T.R. 161 (T.D.), affd. (1996), 205 N.R. 383 (F.C.A.), consd. [para. 35].

Hutchinson v. Canada (Minister of the Environment), [2003] 4 F.C. 580; 302 N.R. 66; 2003 FCA 133, refd to. [para. 36].

Niaki v. Canada (Attorney General) (2006), 297 F.T.R. 262; 2006 FC 1104, refd to. [para. 36].

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al., [1999] 1 F.C. 113; 233 N.R. 87 (F.C.A.), refd to. [para. 45].

Larsh v. Canada (Attorney General) (1999), 166 F.T.R. 101; 49 Imm. L.R.(2d) 1 (T.D.), refd to. [para. 46].

Public Service Alliance of Canada v. Canada (Treasury Board), [2006] 3 F.C.R. 283; 279 F.T.R. 242; 2005 FC 1297, refd to. [para. 46].

Tahmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60; 2005 FCA 113, refd to. [para. 46].

Bastide et al. v. Canada Post, [2005] F.T.R. Uned. B87; [2006] 2 F.C.R. 637; 2005 FC 1410, refd to. [para. 48].

Bastide v. Canada Post, 2005 FC 1414, refd to. [para. 48].

MacLean v. Marine Atlantic - see MacLean v. Canadian Human Rights Commission et al.

MacLean v. Canadian Human Rights Commission et al. (2003), 243 F.T.R. 219; 2003 FC 1459, refd to. [para. 49].

Horn et al. v. Canada (Attorney General) (2005), 274 F.T.R. 254; 2005 FC 726, refd to. [para. 51].

Pezzente v. Rogers Communications Inc. et al., [2005] F.T.R. Uned. A43; 2005 FC 953, refd to. [para. 51].

McConnell v. Canadian Human Rights Commission et al., [2004] F.T.R. Uned. 667; 2004 FC 817, affd. [2005] N.R. Uned. 188; 2005 FCA 389, refd to. [para. 51].

SEPQA - see Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al.

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 76].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 78].

Wang v. Canada (Minister of Public Safety and Emergency Preparedness) (2005), 272 F.T.R. 208; 2005 FC 654, refd to. [para. 80].

Chopra, Re - see Canadian Human Rights Commission et al. v. Canada (Minister of National Health and Welfare).

Canadian Human Rights Commission et al. v. Canada (Minister of National Health and Welfare) (1998), 146 F.T.R. 106 (T.D.), affd. (1999), 235 N.R. 195 (F.C.A.), refd to. [para. 96].

Canadian Human Rights Commission v. Canadian Armed Forces et al., [1999] 3 F.C. 653; 167 F.T.R. 216 (T.D.), refd to. [para. 115].

Chuba v. Canadian Human Rights Commission - see Kotyk v. Canada Employment and Immigration Commission.

Kotyk v. Canada Employment and Immigration Commission (1983), 4 C.H.R.R. D/1416 (Can. Trib.), affd. (1983), 5 C.H.R.R. D/1985 (Can. Rev. Trib.), affd. (1985), 6 C.H.R.R. D/2929 (F.C.A.), refd to. [para. 116].

Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303, refd to. [para. 116].

Bourgeois v. Canadian Imperial Bank of Commerce et al., [2000] N.R. Uned. 223 (F.C.A.), refd to. [para. 119].

Meiorin Grievance - see Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union.

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 131].

Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245; 24 W.A.C. 245, refd to. [para. 132].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 132].

Ivison v. Bodner (1994), 26 C.H.R.R. D/505 (B.C.C.H.R.), refd to. [para. 133].

Counsel:

Catherine Boies-Parker, for the applicant;

Ward Bansley, for the respondent.

Solicitors of Record:

Underhill, Faulkner, Boies-Parker, Victoria, British Columbia, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on September 14, 2006, at Victoria, British Columbia, before Russell, J., of the Federal Court, who delivered the following decision on January 5, 2007.