Digests

Scheuneman v. Canada (Attorney General)

T-90-02, T-91-02

2004 FC 1157, Simpson J.

20/8/04

15 pp.

Judicial review of CHRC decision dismissing complaints against Treasury Board (TB), Natural Resources Canada (NRC)--Applicant complaining termination by NRC, TB's termination policy discriminatory--Four years after began working at NRC as Senior Technical Analyst, applicant diagnosed with myalgic encephalomyelitis, which causes profound fatigue--Worked from home--Given leave without pay--Later provided doctor's letter unable to return to work for many years--Refused medical retirement because involved benefits reduction--Eventually terminated for cause (unable to discharge duties)--Termination letter cited Financial Administration Act, s. 11(2)(g) (now Public Service Employment Act, s. 31), failure to attend scheduled medical appointment to determine when able to return to work-- Applicant grieved to PSSRB alleging victim of discrimination as terminated due to illness--Grievance denied, Board not satisfied Canadian Human Rights Act (CHRA), Charter violated--Cullen J. denied application for judicial review of Board decision (Scheuneman v. Canada (Treasury Board), [2000] 2 F.C. 365 (T.D.)), finding impugned policy flexible enough to accommodate even those whose illness prevents them from returning to work for many years-- According to Cullen J., applicant terminated because too stubborn to accept that leave was, by its nature, temporary measure--No prima facie discrimination, contrary to Charter, s. 15(1)--Appeal to F.C.A. dismissed, Court pointing out basic requirement of employment relationship that temporarily disabled employee be able to return to work within reasonable period of time-- Court added that employer to whom Charter applies not obliged by s. 15 to comply with best employment practices-- S.C.C. denied leave to appeal and later rejected application to reconsider denial of leave--Applicant persevered, unsuccessfully seeking judicial review by Federal Court of S.C.C. decision not to reconsider leave application-- Applicant also filed complaints with CHRC, based on CHRA, ss. 7, 10--Investigator recommended dismissal of complaints --After Court cases decided, CHRC issued decision dismissing complaints--CHRC found respondent had attempted to accommodate complainant and termination policy not based on enumerated ground of discrimination-- Applicant's position: Board policy discriminates against disabled, does not provide for sufficient accommodation of individual differences, violates CHRA, s. 10--Argues issue not decided at grievance proceedings, there being differences between Charter, s. 15 and CHRA, ss. 7, 10--Court's view: differences arise after prima facie case demonstrated--Under CHRA, once prima facie discrimination is shown, accommodation becomes the issue and this involves a narrow inquiry into specific situation of employer, employee--Prior Court decisions herein have finally determined prima facie case not made out--Issue of prima facie case specifically addressed by Cullen J., F.C.A.; latter decision was binding authority--Another issue was whether CHRC breached procedural fairness rules by deciding case without reviewing certain documents applicant had provided to investigator-- Not alleged investigator failed to consider these documents-- Binding authority is F.C.A. decision in Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.), holding Commission not required to consider documents before investigator in preparing report--Investigator performed independent analysis, did not just rely on decision of Cullen J.--Applicant argued bona fide occupational requirement exception inapplicable as designed for situations where person can actually work at job--Unnecessary to decide issue in view of applicant's failure to demonstrate prima facie case of discrimination but, had it been shown, CHRA, s. 15 exception would have applied--Commission's decision was reasonable--Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10 (as am. by S.C. 1998, c. 9, s. 13), 15 (as am. idem, ss. 10, 15)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] s. 15--Financial Administration Act, R.S.C., 1985, c. F-11, s. 11(2)(g) (as am. by S.C. 1992, c. 54, s. 81)-- Public Service Employment Act, R.S.C., 1985, c. P-33, s. 31 (as am. by S.C. 1995, c. 17, s. 9).