T-1958-00
2003 FCT 465
Michel Tremblay (Applicant)
v.
The Attorney General of Canada, Carlo Lanetti and Daniel Plouffe (Respondents)
Indexed as: Tremblay v. Canada (Attorney General) (T.D.)
Trial Division, Kelen J.--Ottawa, April 7 and 22, 2003.
Public Service -- Selection Process -- Merit Principle -- Steps having to be taken by government department holding competition to accommodate disabled candidate without putting others at disadvantage -- Purpose of PSEA, s. 21 appeal to prevent appointment contravening merit principle, not to protect applicant's rights -- Board not precluded from considering human rights principles within merit principle analysis -- Necessity for flexibility with merit principle application -- Decisions to be made on case-by-case basis -- Rigid approach adopted herein -- Department failing to conduct analysis tailored to applicant's circumstances -- Court unable to say whether proposed accommodations would have allowed applicants to compete on equal footing or disadvantaged others -- New competition to be conducted.
Human Rights -- Applicability of human rights principles to public service selection process, merit principle -- Candidate disabled by MS seeking Transport Canada technical support position -- Stricken from list of candidates when rejecting accommodation offered -- Whether applicant failed duty to facilitate acceptable accommodation search -- S.C.C. caselaw on justification of discriminatory standards as BFOR inapplicable to case involving public service competition, merit principle -- Still, appeal board may take human rights principles into account within merit principle analysis -- Department failed to discharge duty of reasonable accommodation with adopting rigid approach to merit principle -- New competition necessary as Court unable to say whether proposed accommodation would have permitted applicant to compete on equal footing or given advantage over others.
Section 10 of the Public Service Employment Act (PSEA) requires that appointments to and from within the public service be based on merit. This application for the judicial review of the decision of an appeal board, appointed under section 21 of the act, raised the issue as to the steps that have to be taken by a government department to accommodate a disabled candidate without putting other candidates at a disadvantage.
The facts were that the applicant, who is afflicted with Multiple Sclerosis, appealed the appointments of two competitors for Technical Support Officer positions with Transport Canada. The competition involved a 3.5-hour written examination and the applicant provided a letter from his doctor explaining his vision and dexterity limitations and that he is "significantly disabled by fatigue". By way of accommodation, the Department decided to allow applicant to write the exam over a three-day period and that he be granted 50% more time. Furthermore, the time of any breaks he needed to take would not be counted and a laptop would be provided. The applicant sent an e-mail indicating that these accommodations were inadequate to meet his needs, so he would not be sitting the examination. The Department next consulted a Public Service Commission (PSC) psychologist who advised that the PSC accommodation Guidelines did not have to be followed. Rather, each case was to be individually assessed. The psychologist added that how generous the Department could be regarding the time limit depended on whether the time factor was an important element of the exam. Since the work of a Technical Support Officer involves response to a great many deadlines, the Department concluded that time was of the essence and declined to grant applicant more than 50% extra time to complete the written exam. When the applicant again refused to sit the exam, he was notified that his name would be stricken from the list of candidates. In an e-mail to the applicant, the Department indicated its failure to understand why he had failed to propose what terms would be acceptable for sitting the exam. An Appeal Board was satisfied that the Department had taken reasonable steps at accommodation and rejected the applicant's appeal. Transport Canada had not acted unreasonably in concluding that to give the applicant unlimited time would confer upon him an advantage over the other candidates, thereby contravening the merit principle. Again, the applicant had failed in his duty to facilitate the search for an acceptable accommodation, a requirement imposed by the Supreme Court of Canada in the case Central Okanagan School District No. 23 v. Renaud.
Held, the application should be allowed.
The Board's decision on the issue of law raised herein was to be reviewed according to the standard of correctness, the Appeal Board lacking of high degree of expertise in this area. One sub-issue was the extent to which the Board could apply human rights principles in determining whether the accommodations had been reasonable. The applicant relied upon the Supreme Court's judgment in Meiorin, which established a reformulation of the approach to be utilized in determining whether a prima facie discriminatory standard is justified as a bona fide occupational requirement. It was held in Meiorin that an employer had to demonstrate that it was "impossible" to accommodate an individual's disability without imposing "undue hardship" upon the employer. It was, however, argued on behalf of the Attorney General that an appeal board was not empowered by the PSEA to apply the Canadian Human Rights Act or principles applicable to human rights legislation. It was urged that an appeal board's concern was to uphold the merit principle and to consider whether accommodations were fair to other competition candidates. Indeed, in Charest, the Federal Court of Appeal made it clear that the purpose of a section 21 appeal was to prevent an appointment that would be in contravention of the merit principle and not to protect the appellant's rights.
It was apparent that the Meiorin standard was inapplicable to an appeal involving the merit principle. The Board's task is not to identify discriminatory standards and determine whether they can be justified but rather to decide whether the accommodations permitted the appellant to compete on an equal footing with other candidates. That did not, however, mean that the Board was precluded from taking human rights principles into account as part of the merit principle analysis.
The necessity for flexibility in the application of the merit principle in reinforced by the PSC Guidelines which emphasize that decisions have to be made on a case-by-case basis. But in the instant case, the Department adopted a rigid approach to the merit principle, failing to discharge its duty to reasonably accommodate the applicant. It did not conduct an analysis tailored to the applicant's circumstances. Transport Canada lacked a real understanding as to what was needed to accommodate the applicant and could not have known if its proposal addressed his needs. This Court was unable to say whether the proposed accommodations would have permitted the applicant to compete on an equal footing or given him an advantage over the others. The Department's initial proposal was put forward without expert consultation; the letter from the applicant's doctor merely outlined his symptoms and did not suggest appropriate accommodations. When a departmental personnel officer suggested allowing applicant 100% more time, her colleagues disagreed, saying "stick to the time guidelines" of up to 50% additional time. This reveals that the Department relied too heavily on the PSC Guidelines. The Department did contact a government psychologist but there is no evidence that the psychologist approved of the proposed accommodations. It could not be concluded that, in this case, the necessary steps had been taken to understand the applicant's situation and the measures needed to adequately accommodate his disability.
Before the Board, the applicant had argued that the Department improperly incorporated the ability to work effectively under tight deadlines into the examination and that, his being invited to write the exam was an indication he had already satisfied that requirement. The view of the Department was that the time factor was a necessary part of the exam, successful candidates having to work under non-discretionary deadlines. The Court could not, on the incomplete evidence, conclude that the Board had erred in finding that applicant had not been assessed on the personal suitability requirement of being able to work effectively when under the pressure of tight deadlines.
The Board was not mistaken in pointing out that the applicant might have done more to assist the search for accommodations. He could have been more forthcoming regarding the arrangements at the University of Ottawa when he was working on his M.B.A. This is illustrated by an exchange between the applicant and the Board Chairperson at the hearing of his appeal: "if I would have been approached then I could have informed them that in the past, assessments have been done differently. . . . I wanted to see if the Department was going to follow the Guidelines". Even so, Renaud was authority for the proposition that it is the employer which bears the primary onus for devising and implementing accommodations. The merit principle was here not respected as a result of the Department's failure to take the necessary steps to discern the specifics of the applicant's situation and a new competition would have to be conducted.
statutes and regulations judicially
considered
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
| Human Rights Code, R.S.B.C. 1996, c. 210. |
| Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10 (as am. by S.C. 1992, c. 54, s. 10), 21 (as am. idem, s. 16). |
cases judicially considered
applied:
Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.); Buttar v. Canada (Attorney General) (2000), 186 D.L.R. (4th) 101; 254 N.R. 368 (F.C.A.); Charest v. Attorney General of Canada, [1973] F.C. 1217; (1973), 2 N.R. 288 (C.A.); Canada (Attorney General) v. Girouard (2001), 202 F.T.R. 1 (F.C.T.D.); affd [2002] 4 F.C. 538; (2002), 291 N.R. 289 (C.A.); Schut v. Canada (Attorney General), [1998] F.C.J. No. 806 (T.D.) (QL); Canada (Attorney General) v. Bates, [1997] 3 F.C. 132; (1997), 147 D.L.R. (4th) 358; 129 F.T.R. 61 (T.D.).
distinguished:
British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; (1999), 176 D.L.R. (4th) 1; [1999] 10 W.W.R. 1; 127 B.C.A.C. 161; 66 B.C.L.R. (3d) 253; 46 C.C.E.L. (2d) 206; 244 N.R. 145; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; (1990), 111 A.R. 241; 72 D.L.R. (4th) 417; [1990] 6 W.W.R. 193; 76 Alta. L.R. (2d) 97; 12 C.H.R.R. D/417; 90 CLLC 17,025; 113 N.R. 161.
considered:
Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; [1992] 6 W.W.R. 193; (1992), 71 B.C.L.R. (2d) 145; 13 B.C.A.C. 245; 141 N.R. 185.
referred to:
Tremblay v. Canada (Attorney General), 2003 FCT 466; [2002] F.C.J. No. 627 (T.D.) (QL).
APPLICATION for judicial review of a decision of an appeal board under the Public Service Employment Act that a selection process had been conducted in accordance with the merit principle. Application allowed.
authors cited
Guidelines for Assessing Persons with Disabilities. Public Service Commission of Canada, 2003.
appearances:
Applicant on his own behalf.
Richard Casanova for respondents.
solicitors of record:
Deputy Attorney General of Canada for respondents.
The following are the reasons for order rendered in English by
[1]Kelen J.: This is an application for judicial review of a decision made by an appeal board of the Public Service Commission of Canada (the PSC) appointed pursuant to section 21 [as am. by S.C. 1992, c. 54, s. 16] of the Public Service Employment Act, R.S.C., 1985, c. P-33 (the PSEA). This case, along with the related case in docket T-1201-01 [2003 FCT 466; [2003] F.C.J. No. 627 (T.D.) (QL)], concern section 10 [as am. idem, s. 10] of the PSEA, which requires appointments to and from within the public service to be based on selection according to merit. Both dockets raise the difficult issue of what steps a government department is required to take to accommodate the needs of a disabled candidate while ensuring that other candidates involved are not placed at a disadvantage.
[2]The individual respondents did not participate in the hearing and the relevant government department was represented by the Attorney General of Canada. Therefore, references to the respondent in these reasons are to the Attorney General.
ISSUES
[3]The issue raised in this docket is whether the Appeal Board erred by finding that the Transportation Safety Board of Canada (the TSB) conducted the selection process in accordance with the merit principle. This issue can be broken down into the following subissues:
1. did the Appeal Board err by taking an incorrect view of the duty to accommodate?;
2. did the Appeal Board err by finding that Transport Canada met its obligation to provide reasonable accommodations to the applicant?;
3. did the Appeal Board err in finding that the applicant was not being assessed on his "ability to work effectively under pressure of tight deadlines" in the knowledge test?; and,
4. did the Appeal Board err by finding the applicant did not fulfill his duty to facilitate the search for reasonable accommodations?
FACTS
[4]This is an application for judicial review of a decision of Appeal Board Chairperson B. A. Monk, dated September 22, 2000. Ms. Monk was appointed pursuant to section 21 of the PSEA to hear the applicant's appeal against the appointments of Mr. Carlo Zanetti and Mr. Daniel Plouffe to two Technical Support Officer positions with Transport Canada.
[5]Transport Canada conducted a closed competition to staff two openings for Technical Support Officers (competition numbers 99-MOT-CC-OTT-024854 and 99-MOT-CC-OTT-024853). The applicant met the initial screening criteria and along with other successful candidates was invited to participate in a 3.5-hour written examination on December 15, 1999. The applicant advised the Department that he suffered from Multiple Sclerosis (MS) and would require special accommodation. In order to properly assess his needs, the applicant's examination was postponed to a later date.
[6]The applicant's treating physician, Dr. H. E. Rabinovitch wrote a letter dated December 13, 1999 to Mr. Martin Eley, Chief-Engineering, Aircraft Certification Branch of Transport Canada. Dr. Rabinovitch stated that the applicant suffered from MS, which resulted in limitations on his vision and dexterity. He also mentioned that the applicant is "significantly disabled by fatigue" and requested that the Department accommodate this difficulty.
[7]Transport Canada then began to arrange accommodations for the applicant. It appears that this task fell to Ms. Nicole Pharand, a personnel administration officer with the Department. She consulted the Public Service Commission's Guidelines for Assessing Persons with Disabilities (the PSC Guidelines), which recommend granting candidates who have a limited capacity to read and write 50% more time. In an internal e-mail to several colleagues dated January 13, 2000, Ms. Pharand proposed granting the applicant 100% more time (for total time of seven hours) and scheduling the exam over three days. The responses of three of her colleagues were placed before the Court. All recommended limiting the time increase to the 50% set out in the PSC Guidelines (for a total time of 5.25 hours).
[8]On January 19, 2000, Ms. Pharand sent an e-mail to the applicant advising him of the proposed accommodations and the new date and time for his examination. The proposal included the following four measures:
(a) the examination would be divided into three parts to be written over a three-day period (January 25-27);
(b) the time for writing the examination would be extended by 50% as allowed by the PSC Guidelines;
(c) any breaks the applicant required would not be counted toward the total time limit; and
(d) the applicant would be provided with a laptop computer and an external mouse.
[9]The applicant responded to the proposal in an e-mail to Ms. Pharand on January 24:
I will not attend the exam session because I do not agree with the proposed amendments offered. As requested (this morning) I am providing further details with reference to the proposed amendments offered. Thank you for forwarding my concerns to the appropriate individual(s).
He provided further details about his condition and the side effects he experienced from taking medications for MS:
Specifically, I tire easily; "in Multiple Sclerosis (MS) the fatigue can be out of all proportion to the activities taking place". (http://www.ifmss.org.uk.faqs/english/fatigue.asp). My resting requirements associated with my permanent disability (MS with Epileptic seizures) are dynamic and transient; frequent breaks (pauses, rests) are required. I am taking medications: Ibuprophen, Dilantin (Phenytoin Sodium; Anticonvulsant). The later effects my level of concentration (Compendium of Pharmaceuticals and Specialities). Also, there are other medical side effects that must be taken into consideration: stress makes the symptoms of MS feel worse . . . Also, "most individuals with MS become excessively tired while performing activities, especially those that require repeated muscle contractions (such as typing)"; I type because my handwriting is illegible; I type slowly; typing time must not be inclusive in the exam time limits.
[10]Upon receiving the applicant's e-mail, the Department contacted Mr. Michel Nadeau, a psychologist at the Public Service Commission's Personal Psychology Centre (the PPC). Mr. Nadeau informed Ms. Pharand that the PSC Guidelines are not rules that need to be followed; rather, each case must be assessed individually. He recommended that Transport Canada carefully study the applicant's needs and provide him with the extra time needed and/or the appropriate conditions so that he would not be at a disadvantage or advantage. He also stated that how generous the Department could be with the time limit would depend on whether the time factor was an important element of the examination.
[11]Transport Canada considered the time factor an important part of the test because Technical Support Officers are often required to respond to a large number of non-discretionary deadlines. The applicant was again invited to sit for the examination on three consecutive days in February in an e-mail from Ms. Pharand dated February 21, 2000:
In response to your e-mail dated January 24, 2000, please be advised that we have discussed your concerns with the Public Service Commission as well as Transport Canada's Staff Relations and it was agreed that the time frames that we are allocating to you to complete the exam are sufficient . . . As previously stated, please note that the time limits include the extra 50% that is allowed by the PSC Guidelines for assessing persons with disabilities. Any breaks that you need during the exam will not be counted towards the total time limit. The portion of the exam assigned to any one day must be completed on the same day that it is started.
[12]The applicant again refused to attend the examination because he felt the accommodations offered did not give him a fair chance to demonstrate his knowledge and abilities. He was informed by Transport Canada that as a result of his refusal to attend the examination, his name would be removed from the list of potential candidates and his application would be given no further consideration. In response to an inquiry from the applicant, Mr. Eley stated in an e-mail dated February 28 that he had an operational need to proceed with the staffing action and that he was at a "loss to understand why we have not received a proposal from you for what terms would be acceptable for sitting the exam." Following the completion of the competition, Mr. Zanetti and Mr. Plouffe were appointed to the two openings.
[13]The applicant appealed the decision under section 21 of the PSEA and Appeal Board Chairperson Monk was appointed to hear the appeal. Following an oral hearing, she was satisfied that Transport Canada had taken reasonable steps to accommodate the applicant's disability and dismissed the appeal. She found that as the allocated time constraints were not arbitrary, it was "not unreasonable for the Department to conclude that giving the appellant unlimited time in the context of a selection process would place him at an advantage over other candidates, thereby defeating a selection according to merit." Moreover, in her view the applicant had not clearly communicated with the Department and failed to make known any deficiencies in the Department's proposed accommodations in his e-mail dated January 24, 2000. As such, he had failed in his duty to facilitate the search for acceptable accommodations as required by Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970.
RELEVANT LEGISLATION
[14]The fundamental principle underlying appointments to or from within the federal public service is the merit principle, which is contained in subsection 10(1) of the PSEA:
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
[15]Section 21 provides a mechanism allowing unsuccessful candidates to appeal against an appointment. The relevant portions of section 21 are reproduced here:
21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
. . .
(2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision,
(a) if the appointment has been made, confirm or revoke the appointment; or
(b) if the appointment has not been made, make or not make the appointment.
. . .
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
STANDARD OF REVIEW
[16]The issue raised in this appeal requires an assessment of the Appeal Board's approach to the duty to accommodate as it relates to section 10 of the PSEA. This is an issue of law as to the proper interpretation of the PSEA. As the Appeal Board does not have a high degree of expertise in this area, the appropriate standard of review on the first issue is correctness. The rationale for this approach was set out in Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.), at paragraph 7:
Turning to the first issue, that of the treatment accorded to the Knowledge factor by the Selection Board, we are of the view that this involves an issue of law as to the requirements of the merit principle and we therefore consider that the PSCAB's decision to confirm that process equally involved a conclusion of law. We are not persuaded that the PSCAB is a tribunal which should be considered to have such expertise in the interpretation of the Public Service Employment Act that a high degree of deference is owed to it on this issue. The Board is appointed ad hoc. We conclude in this respect that the standard of review which the Trial Division should have applied is that of correctness.
The Federal Court of Appeal has since confirmed this as the applicable standard in Buttar v. Canada (Attorney General) (2000), 186 D.L.R. (4th) 101 (F.C.A.), at page 107.
ANALYSIS
[17]Whether the Appeal Board erred by finding that the TSB conducted the selection process in accordance with the merit principle can be broken down into the following subissues.
| 1. Did the Appeal Board err by taking an incorrect view of the duty to accommodate? |
[18]One of the disputes between the parties is the extent to which a PSC appeal board can apply human rights principles in deciding whether the accommodations provided to the applicant were reasonable. The applicant contends the Appeal Board erred in law by taking "an impoverished and incorrect view of the duty to accommodate." The Appeal Board should have required Transport Canada to demonstrate it was impossible to accommodate him without undue hardship. Concrete evidence to that effect was not provided.
[19]In support of his position, the applicant has referred the Court to the Supreme Court of Canada's decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (hereinafter Meiorin), which dealt with application of British Columbia's Human Rights Code, R.S.B.C. 1996, c. 210 to a public service provider. In cases concerning a complaint under provincial or federal human rights legislation, the Supreme Court has repeatedly stated that an employer is responsible for providing reasonable accommodation for an employee's disability short of undue hardship, see Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; and Renaud, supra. In Meiorin the Court undertook a reformulation of the approach used to determine whether a prima facie discriminatory standard is a bona fide occupational requirement (BFOR). The applicant refers specifically to step three of the new approach (see paragraph 54 of Meiorin), where the Court stated that an employer must demonstrate it is "impossible" to accommodate individual's disability without imposing "undue hardship" upon the employer.
[20]The respondent argues the PSEA does not empower a PSC appeal board to apply the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the CHRA) or principles applicable to human rights legislation. Legal issues such as the limits of accommodation and undue hardship are outside of the jurisdiction of a PSC appeal board and have been entrusted by Parliament to the Canadian Human Rights Commission. An appeal board only deals with the issue of reasonable accommodation from the perspective of its impact on the merit principle. In addition, an appeal board must also consider whether the accommodations are fair to the other candidates involved in the competition.
[21]The right of appeal in section 21 exists to prevent appointments that are contrary to the merit principle. An appeal board is charged with determining whether a particular selection process was conducted in accordance with the merit principle. See Charest v. Attorney General of Canada, [1973] F.C. 1217 (C.A.), at page 1221, where the Court stated that the purpose of a right of appeal under section 21 is not to protect the appellant's rights, but to prevent an appointment being made contrary to the merit principle.
[22]The applicability of human rights principles to the competitive staffing process arose in Canada (Attorney General) v. Girouard (2001), 202 F.T.R. 1 (F.C.T.D.), affd [2002] 4 F.C. 538 (C.A.). In Girouard, at paragraph 35, McKeown J. found that an appeal board erred by not addressing the question of whether reasonable accommodation was provided in light of the requirements of the merit principle.
[23]Based on the decision in Girouard, it is apparent that the standard from Meiorin, supra is not an appropriate yardstick for an appeal based on the merit principle. The purpose of an appeal under section 21 of the PSEA is not to identify discriminatory standards and determine whether they can be justified. Rather, its function is to ensure that the selection board made an appointment based on the merit principle. It is an appeal board's task to determine whether the accommodations provided to an individual allowed him or her to compete on an equal footing with the other candidates. The accommodations must be fair not only to the individual in question, but also to the other candidates.
[24]Having said that, human rights principles need not be placed in a separate watertight compartment from the merit principle as they may have limited applicability in a section 21 appeal. The Appeal Board in Girouard erred by focussing strictly on human rights principles and ignoring the merit principle, see Girouard (F.C.T.D.), at paragraph 32. However, there is nothing wrong with drawing upon human rights principles, as Cullen J. did in Schut v. Canada (Attorney General), [1998] F.C.J. No. 806 (T.D.) (QL), at paragraph 14, as long as they are utilized as part of an appropriate analysis under the merit principle. Human rights cases may provide a rich source of jurisprudence for an appeal board or a court to draw upon when determining whether an individual has been provided with reasonable accommodations in light of the merit principle.
[25]The Appeal Board Chairperson Monk examined the reasonableness of the accommodations provided to the applicant in light of the merit principle as required. In doing so, she did not err by relying upon an "impoverished and incorrect view of the duty to accommodate" as alleged by the applicant. The standard laid out here will also be used by this Court to evaluate whether Transport Canada satisfied the obligation to provide reasonable accommodations to the applicant.
| 2. Did the Appeal Board err by finding that Transport Canada met its obligation to provide reasonable accommodations to the applicant? |
[26]The applicant submits that Appeal Board Chairperson Monk improperly "glossed over" the positive duty upon Transport Canada to provide reasonable accommodations. The Department relied too heavily upon the PSC Guidelines and did not adequately tailor the accommodations to his specific needs.
[27]The respondent argues the Appeal Board was correct in finding that the Department took reasonable steps to accommodate the applicant's disability. The accommodations offered by Transport Canada were reasonable as they were consistent with the advice received from the applicant's physician, the recommendations of the PPC and the PSC Guidelines. Allowing the applicant an open-ended time frame was not feasible because the time factor was a relevant feature of the job. Moreover, the Department had a responsibility to ensure that the accommodations did not bestow upon the applicant an advantage over the other candidates.
[28]A critical characteristic of the merit principle is its flexibility, as this allows for the equitable assessment of candidates with differing needs. In order for the merit principle to operate effectively, the department in question must be responsive to the particular needs of individual candidates. As Campbell J. stated in Canada (Attorney General) v. Bates, [1997] 3 F.C. 132 (T.D), at paragraph 40:
. . . the merit principle must be cognizant of, and where necessary responsive to, the critical reality of the history of the case and the life situation of the individuals involved.
[29]The need for flexibility when applying the merit principle is reinforced by the PSC Guidelines. The second section of the PSC Guidelines sets out a number of general guidelines to aid departments when making decisions about accommodations. Those guidelines emphasize that decisions must be made on a case-by-case basis, as shown by guidelines 3 and 4:
3. USE A CASE-BY-CASE APPROACH
Given the wide variation in the nature, severity and age of onset of a disability, accommodations to the regular test or testing conditions must be made on a case-by-case basis in order to ensure that the assessment is appropriately adapted for the candidates.
4. CONFER WITH THE CANDIDATE BEFORE TESTING
Before deciding what accommodations are required or arranging for the testing session, obtain as much information as necessary on the candidate's disability in a professional and sensitive manner; the best sources of information is generally the candidate. For example, find out from the candidate about any modifications or adjustments that were made in any previous testing situation.
[30]In the case at bar, Transport Canada adopted a rigid approach to the merit principle and failed to fulfill its duty to provide reasonable accommodations to the applicant. The Court acknowledges that Transport Canada made an effort to accommodate the applicant and does not take issue with the substance of the Department's proposal. Rather, the Court is concerned with the Department's failure to conduct an analysis that was tailored to the circumstances of the applicant. By failing to do so, Transport Canada did not have a real understanding of what was necessary to accommodate the applicant and could not have known if its proposal actually addressed his needs. For the same reason, it is impossible for the Court to now determine whether the proposed accommodations would have allowed him to compete on an equal basis or given him an advantage over the other candidates.
[31]Transport Canada's failure to conduct a case-by-case analysis becomes evident when the following facts are highlighted. First, there is no evidence that Transport Canada consulted with the PPC or an outside expert before making its first proposed set of accommodations on January 19, 2000. At that time, the only expert opinion that Transport Canada had about the applicant's situation was the letter from Dr. Rabinovitch. That letter only provided information on the symptoms suffered by the applicant as a result of MS and did not include information on how the Department might accommodate the applicant.
[32]Second, the Department relied too heavily upon the PSC Guidelines. The Department's internal e-mail communications from early January 2000 demonstrate that the Department improperly treated the PSC Guidelines as a boundary on what accommodations could be provided. When Ms. Pharand proposed the applicant be granted 100% more time, the responses included statements like "stick to the time guidelines" and references to the PSC Guidelines as allowing a "maximum" of 50% more time. The response of Mr. Hugh O'Connor provides a good example:
Mt. [sic] Tremblay's certificate stating that he is significantly disable [sic] by fatigue could have implications in terms of being able to accomplish the job.
The PSC suggestion to provide the candidate with 50% more time, where the capacity to read and write are limited may not help in this case. However, in the absence of details I support your proposal, provided the time increase is limited to that in the PSC guidelines, i.e. a maximum of 50%.
Government departments do not simply fulfill their obligations by following the recommendations made in the PSC Guidelines. Allowing that to be the case would undercut the purpose underlying guidelines 3 and 4. Assessment must be conducted on a case-by-case basis, something which Transport Canada failed to do.
[33]Third, there is insufficient evidence for the Court to conclude that the proposed recommendations received approval from the PPC. In his oral testimony at the Appeal Board hearing, Mr. Eley stated the Department had asked the PPC if its proposals were reasonable and they replied that they were (see page 31 of the transcript). The only evidence of the PPC's opinion on the matter is Mr. Nadeau's e-mail to Ms. Pharand dated February 25, 2000, and nowhere in that e-mail does Mr. Nadeau give his approval to the proposed accommodations. His recommendations did not address the personal circumstances of the applicant or the particulars of the Department's proposal. To the contrary, he emphasized the need for the Department to undertake an individualized assessment of the applicant's situation:
[translation] Consequently, the department has to study carefully the case of a handicapped applicant and provide him/her the extra time needed and/or the appropriate conditions so that he/she would not be at a disadvantage (or advantage). Furthermore, the existing guidelines are not per se rules to follow; each case must be assessed individually. Before taking your decision, you must identify if the time factor is an important element and if it is an indication of the work to be done. If so, we could not be as generous af [sic] if the time factor does not have an impact on the knowledges [sic] demonstrated.
[34]There is no evidence the Department ever followed Mr. Nadeau's advice. This is particularly critical because, as outlined above, no expert consultation was sought when the proposed accommodations were initially drawn up. This means that no expert was involved in formulating the accommodations and at no time did an expert ever approve of those accommodations. This case can be contrasted with the related case in docket T-1201-01, where the relevant government department consulted with the PPC and a neuropsychologist when devising its accommodations. A government department or selection board need not consult an outside expert in every case where a disabled candidate is involved. In some cases, reliance on the PSC Guidelines or consultation with the PPC will suffice. The critical point is that a selection board must take the necessary steps to understand a candidate's situation and what measures are needed to adequately accommodate his or her disability. I am not satisfied that Transport Canada did that in this case.
| 3. Did the Appeal Board err in finding that the applicant was not being assessed on his "ability to work effectively under pressure of tight deadlines" in the knowledge test? |
[35]Before the Appeal Board, the applicant argued that Transport Canada improperly incorporated the requirement that a candidate be able to work to effectively under tight deadlines into the examination. He contended that his invitation to write the written examination meant he had already satisfied this criteria and that the examination was designed to assess the knowledge component of the Statement of Qualifications. The applicant's allegation was based on comments made by Mr. Eley in an e-mail to the applicant dated February 28, 2000:
In closing I would like to draw your attention to the Statement of Qualifications where "Ability to work effectively under pressure of tight deadlines" is a rated requirement. This is an important consideration for us because of the operational nature of our work and the large number of non-discretionary deadlines that we have to meet.
[36]In response, Transport Canada argued that it could not have allowed the applicant unlimited time and that its proposal was reasonable when the need for a candidate who could work effectively under tight deadlines was taken into account. The Department considered the time factor a necessary part of the examination because the successful candidate would have to work under many non-discretionary deadlines.
[37]The Appeal Board was of the opinion that the written examination was designed to assess the knowledge component of the candidate's qualifications and that his "ability to work effectively under pressure of tight deadlines" would be assessed at a later stage. Accordingly, the Appeal Board found that the applicant had not been rejected on this basis because this qualification had not yet been assessed. The relevant portion of the Appeal Board's decision is paragraph 32:
The appellant's remaining allegation, allegation 7, deals with the "ability to work effectively under pressure of tight deadlines", a personal suitability requirement listed in the statement of qualifications for both positions. It appears from the wording of his allegation that the appellant wrongly assumed that meeting the educational and experience criteria was sufficient to establish that he satisfied this criterion. However, the appellant was never assessed on this requirement. In my opinion, Mr. Eley made an inappropriate comment in his 28 February 2000 e-mail to the appellant when he raised the question of this requirement. Had the appellant passed the written examination, the Selection Board would have been obliged to assess the appellant on that criterion just as it was required to do for all other candidates. Since the appellant was not assessed on this requirement, there is no basis to presume he would or would not have satisfied it. There is no foundation for this allegation and it too is dismissed.
[38]There is not a sufficient evidentiary basis for finding that the Appeal Board erred in this respect. The evidence before the Court on this point was incomplete on this point and I cannot say with precision at what stage this qualification was to be assessed. The Court defers to the finding of the Appeal Board on this point.
[39]The Appeal Board's finding also raises an interesting side issue that was discussed at the oral hearing of this application. The logical extension of the Appeal Board's reasoning is that if the applicant's "ability to work effectively under pressure of tight deadlines" was not being tested by the written examination, then it was not a legitimate basis upon which Transport Canada could limit the time available to the applicant. This is not to say that the written examination could not have been used to assess this qualification, but rather that it was not designed for that purpose in this competition. It is also important to point out that Transport Canada was entitled to limit the time available to the applicant for other reasons, such as ensuring fairness to other candidates.
| 4. Did the Appeal Board err by finding the applicant did not fulfill his duty to facilitate the search for reasonable accommodations? |
[40]The Appeal Board also found the applicant had failed to fulfill his duty to facilitate the search for acceptable accommodations as required by Renaud, supra. The duty upon an individual was described by Sopinka J. in the following terms at pages 994-995:
To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.
[41]The Appeal Board was correct in finding the applicant could have done more to facilitate the search for accommodations. While the applicant did place before Transport Canada the facts relating to his disability and a general idea of what accommodations would be necessary, he did not take advantage of the opportunity to make suggestions about what type of accommodations would satisfy his needs when presented with the Department's initial proposals. The bulk of his e-mail of January 24, 2000 was a reiteration of the symptoms he suffered from due to MS. The only concrete suggestions made by the applicant were for frequent breaks and that typing time not be inclusive in any time limits. The applicant could have been more explicit in making known to the Department why he felt its proposal was deficient and suggest possible remedies for any shortcomings.
[42] One of the ways in which the applicant could have aided the search for accommodation was by being more forthcoming about the arrangements made by the University of Ottawa to accommodate him while he was studying for his MBA. This is illustrated by an exchange between Appeal Board Chairperson Monk and the applicant concerning his allegation that Transport Canada did not find out about any modifications or adjustments that were made in previous testing situations (at page 12 of the transcript):
Monk: Could you give me some information about that.
Tremblay: No consultation. It goes back to a case-by-case basis; if I would have been approached then I could have informed them that in the past assessments have been done differently; the University of Ottawa during my graduate studies; this information that would come out in a case-by-case analysis I was never approached by the department.
Monk: Why did you not share that information with them? For example, that while I was a graduate student at the University of Ottawa I was evaluated by, or how, method X. Why didn't you share that information with the department?
Tremblay: Because that is part if the case-by-case analysis. If I was approached by the department I would be able [to] present how assessments and accommodations had been made in the past. I wanted to see if the department was going to follow the Guidelines.
Monk: And you decided not to initiate that?
Tremblay: I did initiate it.
Monk: Not to volunteer that information without them asking.
Tremblay: I was not aware that I was withholding information.
Monk: No I am not saying you were withholding it, but you didn't volunteer it; I mean, how do I: I'm getting the message from what I'm understanding at this point is that you did not say to; no; I mean I read your e-mails I don't see anything in there that say, for example, that I have been accommodated in other situations such as during my graduate studies by the following methods which may be appropriate in this situation.
Tremblay: That's correct.
Monk: And did you not think it was incumbent upon you yo give that information unless they came to you to assess you individually?
Tremblay: That's what the Guidelines tell them to do.
Monk: So it comes back to failing to follow the Guidelines.
Tremblay: That's correct.
Monk: But I mean if the issue is how is a person with a disability accommodated so that they are fairly assessed then, I guess, I have to ask myself whose job is it; does it all rest with the department or is there also some responsibility of the person being examined to advise the department of I need the following or what you're doing is not appropriate. So I have to think about that.
Tremblay: Yes. That is correct. I continuously prompted the department.
[43] The applicant's testimony leaves the impression that he felt it was solely the Department's responsibility to come to him and get the needed information. Ideally, the search for accommodation should be a co-operative process. The applicant could have facilitated the co-operative process by openly sharing information with the Department.
[44] Nonetheless, in Renaud, supra the Supreme Court placed the primary onus for devising and implementing accommodations on the employer. The search for accommodations in the case at bar foundered primarily because Transport Canada did not take the necessary steps to discern specifics about the applicant's situation. As a result, the merit principle was not respected and a new competition for these positions is required.
DISPOSITION
[45] This application for judicial review is allowed and the decision of Appeal Board Chairperson Monk is set aside. The matter is referred to the PSC so that it may establish a new selection board to conduct a new competition for competition numbers 99-MOT-CC-OTT-024854 and 99-MOT-CC-OTT-024853. In view of the divided success between dockets T-1958-00 and T-1201-01, there will be no order as to costs.