Canada ( Human Rights Commission ) v. Canada
T-672-93
Cullen J.
5/4/94
22 pp.
Application for judicial review of Human Rights Tribunal's decision dismissing 26 employees' complaints on ground of age in matter related to employment -- Complainants [ho]employees of Department of Transport working in Executive Flight Service (EFS) as pilots or flight attendants -- Service operated by two separate ministries, Department of Transport (DOT) and Department of National Defence (DND) -- In 1984, responsibility for EFS transferred to DND -- EFS staffers considered too old to join military pilots as to transfer of pension benefits -- (1) Whether Tribunal erred in not addressing issue of paramountcy of Public Service Rearrangement and Transfer of Duties Act; (2) Whether Tribunal erred in ruling employees not victims of direct nor indirect discrimination; (3) Whether Tribunal erred by basing its decision on erroneous findings of facts made without regard to material before it -- (1) Tribunal did not err in expressly discussing issue of paramountcy as Tribunal, in reviewing transfer and reasons behind it, clearly had in mind requirements and regime of Act and role it plays in scrutiny of such decision -- (2) Burden of proof resting on Commission and complainants to show prima facie case and only then will evidentiary burden shift to respondent Minister to show discriminatory practice necessary because of occupational requirements and qualifications -- Age was factor in implementation of decision to transfer service from one Ministry to another; Court may interfere when satisfied Tribunal failed to have regard to material before it -- Tribunal committed errors in reviewing evidence and in apparent disregard for totality of material before it on question of age as concern in implementation of decision to transfer EFS from DOT to DND -- (3) Key components of adverse effect discrimination: (i) employment rule or standard; (ii) honestly made and neutral on its face but; (iii) having effect of discrimination on prohibited ground -- If satisfied, burden shifting to respondent employer to show it satisfied duty to accommodate affected employees up to level of undue hardship for employer -- Tribunal did err in ruling employees not victims of indirect discrimination as employer failed to show reasonable steps to accommodate -- (4) Finding of fact by Tribunal made in perverse manner or without regard to material before it on grounds of Federal Court Act, s. 18.1(4) -- Decision woefully insufficient in its review of evidence -- Tribunal has role to hear allegations and thoroughly consider and review material -- Employees entitled to know exactly what in their case was rejected and, more important, why -- Application allowed -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5) -- Public Service Arrangement and Transfer of Duties Act, R.S.C., 1985, c. P-34.