Holmes v. Canada ( Attorney General )
T-1229-96
Tremblay-Lamer J.
8/5/97
21 pp.
Application for judicial review of Canadian Human Rights Commission's (CHRC) decision dismissing applicant's complaint-Applicant alleging discrimination on part of Department of Veteran Affairs by releasing her from employment due to disability contrary to Canadian Human Rights Act, s. 7-Applicant commenced employment as Payment Support Clerk in Department on December 30, 1985-In April of 1989, began experiencing numbness, pain in right shoulder at base of neck-Assigned to special project to facilitate recovery-Left workplace until December 17, 1990-Unable to perform duties of job-On May 4, 1992, applicant advised by Department it would recommend she be released under Public Service Employment Act, s. 31 because of incapacity to perform duties-Department proceeding with applicant's release on September 23, 1992-Appeal Board allowing applicant's appeal on basis Department failed to accommodate her-F.C.A. holding powers of Appeal Board limited to those set out in enabling statute, Appeal Board not having authority to apply provisions of Canadian Human Rights Act-CHRC examined complaint and found no further proceedings warranted-Decision attacked herein-Canadian Human Rights Act, ss. 43, 44, 47 relevant herein-CHRC's decision to dismiss complaint administrative one-Incumbent upon courts to determine content of procedural protections to be offered by board, tribunal by reference to all circumstances under which board, tribunal operates-CHRC, in dismissing complaint, need not comply with formal rules of natural justice-Only required to act fairly-CHRC only required to cross-disclose submissions containing facts which differ from those set out in investigation report, memoranda on basis of which said submissions prepared-Submissions herein mainly consisting in legal submissions on appropriate test for adverse effect discrimination-CHRC not breaching duty of procedural fairness in deciding not to cross-disclose them-Proper standard of review of decisions of CHRC on questions of law one of correctness-Determination of appropriate legal test for adverse effect discrimination question of law reviewable on standard of correctness-Decisions of CHRC on questions of fact only reviewable on standard of reasonableness-Where adverse effect discrimination occurs, duty on employer to take reasonable steps to accommodate complainant, short of undue hardship-Employer must demonstrate genuine efforts have been made, short of "undue hardship", to eliminate adverse effect discrimination suffered by one of employees-Employer's obligation to make genuine effort to accommodate employee, efforts consistent with type of work for which worker hired-CHRC applying appropriate legal test-Evidence upon which Commission could come to conclusion no further inquiry warranted-Documents before CHRC extensively described numerous efforts made by Department to accommodate applicant-CHRC's finding not unreasonable-Reasonable for investigator, CHRC to conclude no reasonable steps could be taken by Department to accommodate applicant short of undue hardship-Application dismissed-Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 43, 44, 47-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 31.