JASYN EVERETT WALSH Applicant v. ATTORNEY GENERAL OF CANADA, 2015 FC 230

Date: 20150223 Docket: T-1207-14 Citation: 2015 FC 230 Ottawa, Ontario, February 23, 2015 PRESENT: The Honourable Mr. Justice Rennie BETWEEN: JASYN EVERETT WALSH Applicant and ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS I. Overview [ 1 ] This judicial review application arises from a decision of the Canadian Human Rights Commission (the Commission) to dismiss the applicant’s complaint against Transport Canada (TC).

The applicant alleged that TC had discriminated against him on the basis of disability by first refusing to provide him with a Marine Medical Certificate (Certificate), and thereafter providing him with a restricted Certificate. For the reasons that follow the application is granted. II. Facts A.

Background to the human rights complaint [ 2 ] The applicant is Jasyn Everett Walsh, a seafarer who sought to obtain a Marine Medical Certificate in or around June, 2010. [ 3 ] Under the Marine Personnel Regulations , SOR/2007-115 ( Marine Personnel Regulations ), the Minister of Transport issues Certificates to seafarers. The Certificate confirms the holder’s physical and mental fitness. It is essential to employment as a seafarer – no one can work without a Certificate and no one can employ a seafarer without a Certificate (see Marine Personnel Regulations subsection 269(1)).

A Certificate may, however, be issued with restrictions. The Marine Personnel Regulations do not include a list of physical and/or mental disabilities that may prevent a seafarer from obtaining a Certificate; nor do they list any disabilities that would result in a seafarer obtaining a restricted Certificate. [ 4 ] In order to assess whether the applicant was fit to hold a Certificate, he was examined by TC Marine Medical Examiner Dr. L.A. Leong. After the examination, Dr. Leong had concerns about the applicant’s health. He contacted Dr. Peter Janna, a Senior Marine Medical Officer. Dr. Janna shared Dr.

Leong’s concerns regarding the applicant’s fitness for seafaring duty. Consequently, on or around August 31, 2010, TC informed the applicant that he was unfit to hold a Certificate. The decision letter cited “Alcohol Dependence, Major Depression, and a Developmental Disorder among other things” as the reasons for the denial of the Certificate. [ 5 ] The applicant appealed TC’s decision to the Transportation Appeal Tribunal of Canada (TATC).

On November 21, 2011, TATC confirmed the decision to refuse to issue a Certificate to the applicant as he had not demonstrated that he met the necessary medical requirements. [ 6 ] Subsequent to the TATC decision, on December 3, 2011, the applicant emailed Dr. Janna to ask what requirements he would have to meet to be considered for a Certificate. Dr. Janna explained that the applicant’s medical history was of concern and until the applicant’s health issues were addressed and managed, the applicant would not be deemed fit to hold a Certificate. Dr.

Janna also recommended that the applicant contact his family doctor and be referred to a specialist to address his issues. Dr. Janna concluded by stating that only after such steps were taken would the applicant be allowed to undergo another Marine Medical Examination, and only upon TC’s satisfaction that the applicant’s medical conditions no longer posed a safety risk would TC “consider the possibility of issuing” a Certificate. [ 7 ] On December 9, 2011, the applicant again wrote to Dr.

Janna to advise that his medical issues, specifically his alcoholism, were being addressed and that he hoped to be found fit to hold a Certificate in the very near future. The applicant reapplied for a Certificate, and on or around May 29, 2012, Dr. Leong again examined the applicant and found that he was fit with two limitations; no bridge watchkeeping; and the certification would be limited to three months.

Consequently, on June 8, 2012, the applicant was issued a three-month provisional restricted Certificate with the restriction of “no watchkeeping duties.” [ 8 ] In October, 2012, TC issued an unrestricted Certificate to the applicant. B. The applicant’s human rights complaint [ 9 ] On June 4, 2012, the applicant filed a complaint against TC with the Commission alleging that the applicant had been

discriminated against by TC on the basis of disability. The complaint was founded both on the initial refusal to issue a Certificate onAugust 31, 2010 (the Complaint) and the second provisional Certificate of May, 2012. In response to the applicant’s complaint, theCommission sent letters to TC and the applicant asking both parties to provide position statements, and both parties provided a responseto the Commission in June, 2012. [10] On January 29, 2013, a

Section 40/41 Report was issued by the Commission recommending that the Commission not dealwith the Complaint as it was vexatious pursuant to section 41(1) of the Canadian Human Rights Act, RSC 1985, c H-6 (the Act). Specifically, the

Section 40/41 Report concluded that the issues raised in the Complaint had already been dealt with before the TATCand the applicant had since been issued an unrestricted Certificate. The Commission provided both the applicant and TC with theopportunity to submit written comments on the

Section 40/41 Report. On February 14, 2013 the applicant wrote to the Commissionexplaining why he disagreed with the

Section 40/41 Report’s conclusions. In his response, the applicant also identified TC’s May 2012decision to issue the applicant a restricted “No Watchkeeping” Certificate as discriminatory. I note that it was not contested that thisrestriction had a significant impact on the applicant’s employment opportunities. [11] In response to the applicant’s comments, the Commission issued a Supplementary Report on May 13, 2013. TheSupplementary Report also recommended that the Commission not pursue the Complaint pursuant to section 41(1) of the Act on thebasis that the Complaint was vexatious.

On June 3, 2013, the applicant once again submitted written comments to the Commission inresponse to the Supplementary Report. On June 14, 2013, the Commission wrote a letter to TC, again providing an opportunity for TCto comment on the applicant’s submission. [12] On July 24, 2013, the Commission rendered a decision stating it would deal with the Complaint under subsection 41(1) of theAct.

The reasons for decision explained that the Commission was “persuaded by the submissions of the complainant, neither of whichwas responded to or challenged by the respondent, that the complaint appears to have merit and is not obviously groundless.” On August26, 2013, the Commission wrote to TC asking for TC’s position on the applicant’s allegations, and TC provided written comments onSeptember 25, 2013. The applicant was then provided with a

summary of TC’s position, and provided his comments in response to thissummary on December 3, 2013. [13] The Commission issued its Investigation Report on January 20, 2014. The Investigation Report noted that TC had imposedrequirements on the applicant’s employment by requiring that in order to obtain a Certificate a seafarer must be physically and mentallyfit. The Investigation Report noted that the fitness requirement did not take into account the applicant’s past maritime services and hisability to do the work of a seafarer, including standing watch. However, the Investigation Report ultimately recommended that theComplaint be dismissed pursuant to subparagraph 44(3)(b)(

i) of the Act. The reasons for this recommendation included:

(1) TC treatedthe applicant in an adverse differential manner by failing to accommodate his disability; (2) the respondent has a bona fide justification(BFJ) based on safety for its rules covering seafarers and alcohol dependence; and (3) the rules accommodated seafarers with a history ofalcohol dependence. C. The Commission’s decision [14] On April 15, 2014, the Commission informed the applicant and TC via letter of the Commission’s decision pursuant tosubparagraph 44(3)(b)(

i) of the Act to dismiss the Complaint. The Commission’s reasons for this decision were derivative of theInvestigation Report, specifically stating: Before rendering the decision, the Commission reviewed the report disclosed to you previously and any submission(

s) filed in responseto the report. After examining this information, the Commission decided, pursuant to subparagraph 44(3)(b)(

i) of the Canadian HumanRights Act, to dismiss the complaint because: • the evidence does not support that the respondent treated the complainant in an adverse differential manner by failing toaccommodate his disability; • the evidence supports that the respondent has a bona fide justification based on safety for its rules covering seafarers and alcoholdependence; and • the evidence supports that these rules do accommodate seafarers with a history of alcohol dependence. III. Issues [15] In his memorandum of fact and law, the applicant cites both procedural and substantive errors on the part of the Commission.

The respondent identifies the two issues as whether the Commission breached its duty of procedural fairness, and whether the decisionof the Commission was reasonable. However, in my view it is clear that this application turns on a single issue: whether theInvestigation Report failed to properly apply the duty to accommodate test as articulated by the Supreme Court of Canada in BritishColumbia (Public Service Employee Relations Commission) v BCGSEU, (SCC), [1999] 3 SCR 3 (Meiorin) and BritishColumbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), (SCC), [1999] 3 SCR868 (Grismer).

IV. Relevant legislation [16] The purpose of the Act as stated in

section 2 is to ensure individuals are free from discriminatory practices based on aprohibited ground. The Act’s prohibited grounds of discrimination include “disability”, which is defined at

section 25 as including a“previous or existing dependence on alcohol” The Act specifically prohibits discrimination based on disability in regards to a service atsection 5:

Discriminatory Practices Actes Discriminatoires5. It is a discriminatory practice in theprovision of goods, services, facilities oraccommodation customarily available to thegeneral public 5. Constitue un acte discriminatoire, s’il estfondé sur un motif de distinction illicite, lefait, pour le fournisseur de biens, de services,d’installations ou de moyens d’hébergementdestinés au public :(

a) to deny, or to deny access to, any suchgood, service, facility or accommodation toany individual, or

a) d’en priver un individu; (

b) to differentiate adversely in relation to anyindividual, on a prohibited ground of discrimination.

b) de le défavoriser à l’occasion de leurfourniture. [17] Subsection 15(1)(

g) of the Act explains that it is not a discriminatory practice if there is a BFJ for that denial or differentiation. However, subsection 15(2) clarifies that in order to have a BFJ, the service provider must accommodate the needs of the individual up tothe point of undue hardship:

(2) For any practice mentioned in paragraph(1)(

a) to be considered to be based on a bonafide occupational requirement and for anypractice mentioned in paragraph (1)(

g) to beconsidered to have a bona fide justification, itmust be established that accommodation ofthe needs of an individual or a class ofindividuals affected would impose unduehardship on the person who would have toaccommodate those needs, consideringhealth, safety and cost.

(2) Les faits prévus à l’alinéa

(1) a) sont desexigences professionnelles justifiées ou unmotif justifiable, au sens de l’alinéa (1)g), s’ilest démontré que les mesures destinées àrépondre aux besoins d’une personne oud’une catégorie de personnes viséesconstituent, pour la personne qui doit lesprendre, une contrainte excessive en matièrede coûts, de santé et de sécurité. V. Analysis A. Mootness [18] Mootness is not raised and is not in issue. The applicant contends that he was discriminated against for a specified period oftime.

While the fact that the alleged discriminatory practice was cured by the ultimate grant of an unrestricted certificate it does notextinguish the underlying factual allegation of discrimination. Put otherwise, the refusal of a bar to grant entry to a patron on the basis ofcolour is not moot simply because entry is granted on a subsequent occasion. B.

The appropriate standard of review [19] Before commencing a standard of review analysis, I note that there is no doubt that the Commission has broad discretion,pursuant to subsection 44(3)(b)(i), to dismiss complaints where it is satisfied that further inquiry is not warranted.

In Bell Canada vCommunications, Energy and Paperworkers Union of Canada, (FCA), [1999] 1 FC 113 (CA) at para 38, the FederalCourt of Appeal observed that “the Act grants the Commission a remarkable degree of latitude when it is performing its screeningfunction on receipt of an investigation report.” Parliament did not intend this Court to intervene lightly in the decisions of theCommission: Hérold v Canada (Revenue Agency), 2011 FC 544 at para 33. [20] Nevertheless, the standard of review is dependent on the nature of the question to be decided.

In this case, the determinativeissue is whether the Investigation Report, and therefore the Commission, applied the proper legal test. This issue is a question of lawreviewable on the correctness standard.

In adopting the correctness standard, the reviewing court “will not show deference to thedecision maker’s reasoning process; it will rather undertake its own analysis of the question”: Dunsmuir v New Brunswick, 2008 SCC 9at para 50. [21] I note parenthetically that I am conscious of the decision in Chopra v Canada (Attorney General), 2007 FCA 268, where theFederal Court of Appeal concluded that the standard of review of a human rights tribunal on questions of law will not always becorrectness and will call for deference “on those questions of law with which it is most intimately familiar”: Chopra at para 56; Brown vCanada (National Capital Commission), 2009 FCA 274.

Further, in Slattery v Canada (Human Rights Commission), (FC), [1994] 2 FC 574 (TD); aff’d [1996] FCJ No 385 (FCA), the Federal Court held that in the context of procedural fairness andCommission decisions ““[i]t should only be where unreasonable omissions are made, for example where an investigator failed toinvestigate obviously crucial evidence, that judicial review is warranted.” More recently, in Attaran v Canada, 2015 FCA 37, the Courtof Appeal stated that “the findings of fact made by the CHRC are to be reviewed on the standard of reasonableness.

If such findings arereasonable, then the question will be whether the decision to dismiss the complaint was reasonable, bearing in mind that the decisionresulted in a termination of the matter and therefore the range of possible, acceptable outcomes may be narrower.” [22] Accordingly, even if the appropriate standard of review is reasonableness, the failure to apply the controlling legal test is alsounreasonable. That is, the failure to analyze accommodation up to the point of undue hardship was both incorrect and unreasonable. C. The Commission failed to apply the Meiorin test

[23] The applicant alleges that TC discriminated against him by treating him in an adverse differential manner by failing toaccommodate his disability to the point of undue hardship. In human rights complaints, the onus is first on the complainant to establish aprima facie case of discrimination: Ontario (Human Rights Commission) v Simpson Sears Ltd., (SCC), [1985] 2 SCR536 at 558. After a prima facie case of discrimination is made out under

section 5 of the Act, the burden then shifts to the respondent toestablish on a balance of probabilities a BFJ for the discriminatory practice. The respondent must show that he or she has takenreasonable steps to accommodate the individual as are open to him or her without undue hardship, considering health, safety and cost. [24] The Investigation Report found that the applicant had established a prima facie case of discrimination under

section 5 of theAct. Specifically, the Investigation Report concluded that TC had imposed requirements or restrictions on the applicant’s employment,because in order to obtain a Certificate a seafarer must be physically and mentally fit. This fitness requirement did not take into accountthe applicant’s past maritime service, nor his ability to do the work of a seafarer, including standing watch.

The Investigation Reportalso concluded that the fitness requirement also disadvantaged the applicant since he was not able to obtain the Certificate because of hisalcohol use, and the adverse effects to the applicant were related to the ground of disability. [25] With prima facie discrimination established, the Investigation Report considered whether there was a BFJ for thediscriminatory practice. It is here where the Investigation Report proved deficient. The Investigation Report failed to fully assesswhether TC had accommodated the applicant up to the point of undue hardship.

That is, the Investigation Report failed to properly applythe third criteria of the analytical framework set out in Meiorin and Grismer. In order for a respondent to establish that a discriminatorypractice has a BFJ, the respondent must prove on a balance of probabilities that its practice satisfies three criteria:

(1) It adopted the standard for a purpose or goal that is rationally connected to the function being performed;

(2) It adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and

(3) The standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate personswith the characteristics of the claimant without incurring undue hardship: Grismer at para 20. [26] The Investigation Report properly considered criteria 1 and 2 of the Meiorin/Grismer test; however, the Investigation Reportdid not address whether TC satisfied its onus to establish criteria 3. [27] First, the Investigation Report analyzed whether TC denied the applicant required accommodation, and found that TC didaccommodate the applicant once it had evidence that his alcohol dependence was under control.

The Investigation Report then outlinedthe unwritten and written rules and practices relied on by TC, including the written rule in the Marine Personnel Regulations that aseafarer must be physically and mentally fit to work in a safety critical occupation, and the unwritten practice that an alcohol dependentapplicant, not in verifiable sobriety and treatment, is ineligible for a Certificate.

There is also an unwritten practice that an alcoholdependent applicant, who can provide verifiable evidence of sobriety and treatment, may be eligible for a restricted Certificate. [28] Further, the applicant argued that TC discriminates against alcohol dependent seafarers by imposing strict No Watchkeepingrestrictions compared to seafarers with other disabilities. For example, seafarers with other medical limitations, such as a cerebralaneurysm, have fewer restrictions associated with them than alcohol dependence.

The Investigation Report did not address theapplicant’s arguments in this regard. [29] The Investigation Report then considered step 1 of the Meiorin test: whether these written and unwritten rules and practiceswere adopted for a purpose that was rationally connected to the service. The Investigation Report concluded that the rules and practiceswere adopted to ensure marine safety, and specifically to ensure that those working in safety critical positions as seafarers withWatchkeeping are fit to perform their duties. [30] Step 2 of the Meiorin test was then considered.

At paragraph 42 of the Investigation Report, the Commission concluded thatthere is “no reason to doubt” that TC adopted the rules in a good faith belief that they contribute to marine safety. [31] Finally, the Investigation Report went on to consider the first half of step 3 of the Meiorin test. The Investigation Reportquestioned whether TC had a “[BFJ] for its rules, considering health, safety and cost.” However, the Investigation Report did notanalyze, as was required, whether TC had accommodated persons with the characteristics of the applicant without incurring unduehardship.

Specifically, under the controlling jurisprudence of the Supreme Court of Canada the Investigation Report was required toanalyze undue hardship in terms of both the initial refusal by TC to issue a Certificate on August 31, 2010, as well as undue hardship inthe context of the Certificate issued on June 8, 2012, with the restriction of No Watchkeeping. [32] The lack of an undue hardship analysis in the context of the June 8, 2012 restricted Certificate is problematic, given that at thetime the restricted Certificate was issued the applicant had commenced sobriety and treatment.

The Investigation Report failed toconsider ways in which TC may have accommodated the applicant, such as imposing a No Lone Watchkeeping restriction. [33] In my view, the failure to analyze whether TC could accommodate persons with the characteristics of the applicant withoutincurring undue hardship was incorrect and determinative of this application. D. The remaining issues [34] In light of the above, it is not necessary to consider the applicant’s procedural fairness arguments regarding documentdisclosure, adequacy of reasons, and the right to be heard. VI.

Conclusion [35] Much of the Investigation Report is unassailable, and indeed, two of the three Meiorin steps were fully applied. The failure to

consider and apply the third component of the test in its entirety, namely whether TC had accommodated the applicant up to the point of undue hardship, was incorrect and unreasonable. The matter is therefore remitted to the Commissioner for re-determination of the third step in the Meiorin test. [ 36 ] In reaching this conclusion I am mindful of the obligation of a court to read the decision under review with a view to upholding it ( Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 ), and to draw inferences or bridge gaps in the reasoning where appropriate.

Here, however, each of the steps in the Meiorin test is critical, and the Investigation Report, even when given the most generous reading, does not demonstrate that the question of accommodation to the point of hardship was considered, explicitly or otherwise. JUDGMENT THIS COURT’S JUDGMENT is that : 1. The application for judicial review is granted, with costs. 2. The matter is remitted to the Commission for reconsideration in accordance with these reasons. "Donald J.

Rennie" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1207-14 STYLE OF CAUSE: JASYN EVERETT WALSH v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: October 29, 2014 JUDGMENT AND REASONS: RENNIE J. DATED: February 23, 2015 APPEARANCES : Jasyn Everett Walsh Applicant Malcolm Palmer For The Respondent SOLICITORS OF RECORD : William F. Pentney Deputy Attorney General of Canada Vancouver, British Columbia For The Respondent