Holmes v. Canada (Attorney General), (1997) 130 F.T.R. 251 (TD)

• Judge: Tremblay-Lamer, J.
• Court: Federal Court (Canada)
• Case Date: April 23, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 130 F.T.R. 251 (TD)

Holmes v. Can. (A.G.) (1997), 130 F.T.R. 251 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. MY.041

Betty M.E. Holmes (applicant) v. Attorney General of Canada (respondent) and Canadian Human Rights Commission (intervenor)

(T-1229-96)

Indexed As: Holmes v. Canada (Attorney General)

Federal Court of Canada

Trial Division

Tremblay-Lamer, J.

May 8, 1997.

Summary:

The Canadian Human Rights Commission dismissed Holmes' complaint that the Department of Veterans Affairs discriminated against her by releasing her from her employment due to disability. Holmes applied for judicial review of the Commission's decision.

The Federal Court of Canada, Trial Division, dismissed the application.

Administrative Law - Topic 2007

Natural justice - Tribunals not subject to rules - [See first Civil Rights - Topic 7046 ].

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See first Civil Rights - Topic 7046 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See first Civil Rights - Topic 7046 ].

Administrative Law - Topic 2402

Natural justice - Procedure - General - Duty of fairness - [See first Civil Rights - Topic 7046 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See second Civil Rights - Topic 7046 ].

Administrative Law - Topic 3202

Judicial review - General - Scope of review - [See Civil Rights - Topic 7115 ].

Civil Rights - Topic 912

Discrimination - Complaints - General - The Canadian Human Rights Commission dismissed Holmes' complaint that the Department of Veterans Affairs discriminated against her by releasing her from her employment due to disability - Holmes submitted that as a result of a misstatement of the law in a memorandum prepared for the Commission, the Commission's decision must have been based on an error of law respecting the duty to accommodate - The Federal Court of Canada, Trial Division, disagreed - The memorandum did not purport to be a statement of the law on the duty to accommodate, but was intended to provide the factual background of the complaint - Further, the Commission had the submissions of both the Department and Holmes which thoroughly addressed the proper test for adverse effect discrimination - In light of those submissions and the Commission's expertise regarding what constitutes discrimination, the court was satisfied that the Commission applied the proper legal test - See paragraph 35.

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - The Federal Court of Canada, Trial Division, stated that "[a]n employer must demonstrate that genuine efforts have been made, short of undue hardship, so as to eliminate the adverse effect discrimination suffered by one of its employees. More than a mere negligible effort is required to satisfy the duty to accommodate ... it is my opinion that the 'undue hardship' standard does not require that an employer act as a placement officer or create a new position expressly suited for the disabled employee comprising new duties that were previously nonexistent and that do not suit its needs ... The employer's obligation is to make a genuine effort to accommodate an employee, efforts that are consistent with the type of work for which the worker was hired" - See paragraph 34.

Civil Rights - Topic 992.1

Discrimination - Employment - Adverse effect discrimination - Duty of employer or union to accommodate employee - [See Civil Rights - Topic 985 ].

Civil Rights - Topic 7046

Federal or provincial legislation - Commissions or boards - General - Duty of fairness - The Federal Court of Canada, Trial Division, stated that "the [Canadian Human Rights] Commission, in dismissing a complaint, need not comply with the formal rules of natural justice. Rather, the Commission is only required to act fairly. As a result, the Commission need not hold a hearing or put every detail of the case before the parties. It is sufficient for the Commission to inform the parties of the general and broad grounds on which the complaint is based and afford a fair opportunity of answering it" - See paragraph 25.

Civil Rights - Topic 7046

Federal or provincial legislation - Commissions or boards - General - Duty of fairness - The Canadian Human Rights Commission dismissed Holmes' complaint that the Department of Veterans Affairs discriminated against her by releasing her from her employment due to disability - Holmes submitted that the Commission breached its duty of procedural fairness because the Department's submissions were never cross-disclosed to Holmes - The Federal Court of Canada, Trial Division, held that the Commission was only required to cross-disclose submissions when they contained facts which differed from those set out in the investigation report and the memorandums, if any, on the basis of which the submissions were prepared - In this case the submissions did not contain factual allegations different from those set out in the investigation report and/or memorandum and the Commission did not breach its duty of procedural fairness in not disclosing them - See paragraphs 26 to 28.

Civil Rights - Topic 7115

Federal or provincial legislation - Practice - Judicial review - The Federal Court of Canada, Trial Division, referred to the standard of review to be applied to decisions of a Human Rights Commission - The court stated that "[t]he determination of the appropriate legal test for adverse effect discrimination is a question of law which will be reviewable on a standard of correctness ... On the other hand, decisions of the Commission on questions of fact will only be reviewable on a standard of reasonableness ... the Commission's finding that no adverse effect discrimination occurred is just such a finding impregnated with facts and which ought not be disturbed unless it can be characterized as unreasonable" - See paragraphs 29 to 32.

Cases Noticed:

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne, [1989] 2 S.C.R. 879; 100 N.R. 241, appld. [para. 24, footnote 36].

Garnhum v. Canada (Attorney General) et al. (1996), 120 F.T.R. 1 (T.D.), refd to. [para. 25, footnote 38].

Slattery v. Canadian Human Rights Commission (1994), 73 F.T.R. 161 (T.D.), affd. (1996), 205 N.R. 383 (F.C.A.), refd to. [para. 25, footnote 38].

Boahene-Agbo v. Canadian Human Rights Commission et al. (1994), 86 F.T.R. 101 (T.D.), refd to. [para. 25, footnote 38].

Jennings v. Canada (Minister of National Health and Welfare) (1995), 97 F.T.R. 23 (T.D.), affd. (1997), 211 N.R. 136 (F.C.A.), refd to. [para. 25, footnote 38].

Robinson v. Canadian Human Rights Commission et al. (1995), 90 F.T.R. 43 (T.D.), refd to. [para. 25, footnote 38].

Tan v. Canada Post Corp. et al. (1995), 97 F.T.R. 1 (T.D.), refd to. [para. 25, footnote 38].

Mercier v. Commission canadienne des droits de la personne, [1994] 3 F.C. 3; 167 N.R. 241 (F.C.A.), refd to. [para. 26, footnote 39].

Madsen v. Canada (Attorney General) (1996), 106 F.T.R. 181 (T.D.), refd to. [para. 27, footnote 41].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, appld. [para. 29, footnote 44].

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, refd to. [para. 30, footnote 46].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 30, footnote 47].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Human Rights Commission (Ont.) and O'Malley v. Simpson Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321; 9 C.C.E.L. 185; 17 Admin. L.R. 89; 86 C.L.L.C. 17,002, appld. [para. 33, footnote 50].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 33, footnote 51].

Richmond et al. v. Canada (Attorney General) (1997), 211 N.R. 161 (F.C.A.), refd to. [para. 33, footnote 52].

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. 34, footnote 53].

Owen v. Canada (Attorney General) (1995), 105 F.T.R. 22 (T.D.), refd to. [para. 39, footnote 57].

Beznochuk v. Spruceland Terminals Ltd. et al. (1995), 16 C.C.E.L.(2d) 114 (B.C.S.C.), affd. (1996), 84 B.C.A.C. 230; 137 W.A.C. 230 (C.A.), refd to. [para. 40, footnote 58].

MacNeill v. Canada (Attorney General), [1994] 3 F.C. 261; 169 N.R. 368 (F.C.A.), refd to. [para. 41, footnote 59].

Counsel:

Andrew Raven, for the applicant;

Brian Saunders, for the respondent;

Patricia Lawrence and William Pentney, for the intervenor.

Solicitors of Record:

Raven, Jewitt & Allen, Ottawa, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent;

Canadian Human Rights Commission Legal Services, Ottawa, Ontario, for the intervenor.

This application was heard on April 23, 1997, at Ottawa, Ontario, before Tremblay-Lamer, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on May 8, 1997.