Judgments

[1993] 3 F.C 575

T-2419-92

Betty MacNeill (Applicant)

v.

Attorney General of Canada (Respondent)

Indexed as: MacNeill v. Canada (Attorney General) (T.D.)

Trial Division, Muldoon J.—Ottawa, April 28 and June 3, 1993.

Human rights — Application to set aside PSC Appeal Board decision upholding deputy head’s recommendation to release applicant — Applicant incapacitated by job-related injury — Board, in adjudicating appeal under Public Service Employment Act, s. 31, bound to apply employment provisions of CHRA — Human rights legislation fundamental law, must govern when in conflict with other specific legislation — Case law on adverse effect discrimination as related to BFOR reviewed — Deputy head bound to attempt bona fide to accommodate applicant in keeping job.

Public Service — Termination of employment — PSC Appeal Board confirming deputy head’s recommendation to release applicant as incapable of performing duties of position — Board, in adjudicating appeal under PSEA, s. 31, bound to apply employment provisions of Canadian Human Rights Act — Employer duty-bound to accommodate employee in maintaining employment in case of work related disability — Board declining to review employee’s treatment in light of CHRA.

This was an application to set aside a decision of a Public Service Commission Appeal Board confirming, under section 31 of the Public Service Employment Act, the deputy head’s recommendation that the applicant be released for incapacity to perform the duties of her position. The applicant was injured while performing her duties as a CR-03 (payment support clerk). Before the Appeal Board, the applicant’s position was that her employer had refused to continue to employ her because of her disability. Her argument upon the hearing of this application was that, in rejecting her submissions based on discrimination, the Board failed to take into account the employment provisions of the Canadian Human Rights Act (CHRA) and it was asked that the case be returned to the Board for reconsideration. The issue was whether the Appeal Board was bound to apply these provisions and, if it was, had it done so.

Held, the application should be allowed.

In section 31 of the Public Service Employment Act, Parliament established a process for either confirming or setting aside the deputy head’s recommendation to appoint an employee to a subordinate position or to release the employee. These alternatives are predicated upon the deputy head’s opinion that the employee is either incompetent in performing the position’s duties, or is incapable of performing them. The applicant admitted that she was incapable of performing the duties of her position. But the purpose of the CHRA, as set forth in section 2, is to extend the laws of Canada to give effect to the principle that every individual should have an equal opportunity with other individuals to live his or her own life without being hindered by practices based on certain prohibited grounds of discrimination. The Public Service Employment Act is a law of Canada so extended to accommodate the “purpose” enunciated in section 2 of the CHRA. The Supreme Court of Canada has held that human rights legislation is fundamental law, of general application, and that, when in conflict with other specific legislation, it must govern. In light of the case law as well as section 2 of the Act, the entire Public Service, unless exempted in clear statutory words, must operate consistently with the provisions of the human rights legislation. A Public Service appeal board, in adjudicating an appeal under section 31 of the PSEA, is bound to apply the employment provisions of the CHRA.

In applying section 7 of the CHRA, it had to be concluded that it was a discriminatory practice, directly or indirectly to refuse to continue to employ the applicant or, in the course of employment, to differentiate adversely in relation to the applicant on the ground of her disability. However, section 15 of the Act creates an exception whereby it is not unlawful discrimination if any exclusion or expulsion is established by an employer to be based on a bona fide occupational requirement (BFOR). The Supreme Court of Canada has accepted the concept of “adverse effect discrimination” (as opposed to direct discrimination) and defined it as existing where an employer, for genuine business reasons, adopts a rule which is on its face neutral but has a discriminatory effect, upon a prohibited ground, on one worker or group of employees. There is a duty to accommodate, notwithstanding the presence of a BFOR, in cases of adverse effect discrimination. In the present case, the physical capacity to perform the work of a CR-03 is a BFOR. Applicant being physically unable to do the work, the deputy head, in view of the CHRA, was duty-bound to attempt bona fide to accommodate the applicant in keeping a job so as to avoid running afoul of section 7 of the CHRA. Before an employee is released as a result of a work related disability, an appeal board must be satisfied that the employer has done everything reasonable in an attempt to accommodate his retention of a job. In the case at bar the Board declined to review the employer’s treatment of the applicant in focus with the CHRA.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Labour Code, R.S.C. 1970, c. L-1, ss. 82(1)(b), 84(1)(g).

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 1, 2, 3(1), 4, 7, 15(a), 66(1).

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 25 (as am. by SI-84-102, s. 2).

Indian Act, R.S.C., 1985, c. I-5, s. 67.

Public Service Employment Act, R.S.C., 1985, c. P-33, s. 31(1), (2), (3), (4), (5).

The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1.

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; (1982), 137 D.L.R. (3d) 219; [1983] 1 W.W.R. 137; 39 B.C.L.R. 145; 82 CLLC 17,014; [1992] I.L.R. 1-1555; 43 N.R. 168; Winnipeg School Division No. 1 v. Craton et al., [1985] 2 S.C.R. 150; (1985), 21 D.L.R. (4th) 1; [1985] 6 W.W.R. 166; 38 Man. R. (2d) 1; 15 Admin. L.R. 177; 8 C.C.E.L. 105; 85 CLLC 17,020; 61 N.R. 241; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; (1987), 40 D.L.R. (4th) 577; 8 C.H.R.R. D/4326; 87 CLLC 17,025; 75 N.R. 303; 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; 86 CLLC 17,002; 64 N.R. 161; 12 O.A.C. 241; Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561; (1985), 23 D.L.R. (4th) 481; 17 Admin. L.R. 111; 9 C.C.E.L. 135; 86 CLLC 17,003; 63 N.R. 185; 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; 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.

APPLIED:

Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; (1988), 53 D.L.R. (4th) 29; 23 C.C.E.L. 15; 9 C.H.R.R. D/5359; 88 CLLC 17,024; 88 N.R. 150 (C.A.).

CONSIDERED:

Canadian National Railway Company v. Canadian Human Rights Commission, [1983] 2 F.C. 531; (1983), 147 D.L.R. (3d) 312; 4 C.H.R.R. D/1404; 48 N.R. 81 (C.A.); Central Alberta Dairy Pool v. Human Rights Commission (Alta) (1986), 73 A.R. 57; 29 D.L.R. (4th) 154; [1986] 5 W.W.R. 35; 45 Alta. L.R. (2d) 325; 8 C.H.R.R. D/3639; 87 CLLC 17,001 (Q.B.); Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (1988), 56 D.L.R. (4th) 192; [1989] 1 W.W.R. 78; 62 Alta. L.R. (2d) 207 (C.A.); Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; (1988), 53 D.L.R. (4th) 609; 10 C.H.R.R. D/5515; 88 CLLC 17,031; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; (1989), 65 D.L.R. (4th) 481; [1990] 1 W.W.R. 481; 81 Sask. R. 263; C.E.B. & P.G.R. 8092; 11 C.H.R.R. D/204; 90 CLLC 17,001; 45 C.R.R. 363.

REFERRED TO:

Clare v. Canada (Attorney-General) (1993), 100 D.L.R. (4th) 400; 93 CLLC 14,025; 149 N.R. 303 (F.C.A.); Ahmad v. Public Service Commission, [1974] 2 F.C. 644; (1974), 51 D.L.R. (3d) 470; 6 N.R. 287 (C.A.); Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14; 82 CLLC 17,005; 40 N.R. 159; Air Canada v. Carson, [1985] 1 F.C. 209; (1985), 18 D.L.R. (4th) 72; 6 C.H.R.R. D/2848; 57 N.R. 221 (C.A.); Canada (Attorney General) v. Beaulieu, A-687-91, Marceau J.A., judgment dated 25/2/93, F.C.A., not yet reported.

AUTHORS CITED

Oxford English Dictionary, vol. VII, 2nd ed., Oxford: Clarendon Press, 1989.

Petit Larousse illustré, Paris: Librairie Larousse, 1984.

APPLICATION to set aside the decision of a Public Service Commission Appeal Board ((1992), 12 ABD 279) confirming a deputy head’s recommendation that the applicant be released as being unable to perform the duties of her position. Application allowed.

COUNSEL:

Andrew J. Raven and David Yazbeck for applicant.

Dogan D. Akman and Hélène Laurendeau for respondent.

SOLICITORS:

Raven, Jewitt & Allen, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Muldoon J.: According to counsel on each side, this is a case of first impression. The issue is whether a Public Service Appeal Board, in adjudicating an appeal pursuant to section 31 of the Public Service Employment Act, R.S.C., 1985, c. P-33 (the Act), is bound to apply the employment provisions of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (CHRA) and, if so, did the Board [(1992), 12 ABD 279] do so adequately in this case.

The simple, stark issue thus presented, generates ramifications which are not directly called into issue here, but must surely follow. That is: if such a board be so bound, then surely deputy heads of departments and the Public Service Commission, inter alia, must also be bound to apply the CHRA provisions bearing on employment practices in the federal domain, too. The Court will address issues expressed in the first paragraph hereof. The CHRA exacts consideration of the ramifications by its own imperative.

The facts of this case are not atypical, but rather are straightforward and basically agreed to be the facts of this case by the parties. The applicant (appellant before Mr. R. Vaison—who revealed only one initial, thus concealing his gender—being himself the Public Service Appeal Board) (the Board) was injured in the course of performing her duties as a payment support clerk (CR-03), of the Department of Veterans’ Affairs, Charlottetown, Prince Edward Island, in April, 1989. In her report of her injury to the provincial Workers’ Compensation Board (WCB), (respondent’s record, vol. I, tab D, page 00045) the applicant did not specify a date in April, 1989, but did assert a sprain to neck, upper back, shoulder and side. She wrote, on this form completed on September 9, 1989, that her “arm went numb on both occasions”. She reported her painful disability to her employer, the form states, in “April & August 89”.

There is no contention between the parties as to whether or not the applicant was truly incapacitated from performing the duties of her position. So, the applicant does not seek to persuade the Court to allow her appeal. In this respect, the applicant’s counsel at the hearing on April 28, 1993, pitches her request for judicial relief at a lesser but included point that was sought in the applicant’s originating notice of motion, filed on October 2, 1992. Now, the relief sought by the applicant amounts only to setting aside the decision with a direction to return the applicant’s appeal to the Board, Mr. Vaison, for reconsideration on the basis that he is bound to apply to his decision on her appeal the CHRA employment provisions which comprehensively are section 2 (disability), subsection 3(1) (disability), paragraph 7(a) (refuse … to continue to employ … on a prohibited ground of discrimination) and, of course, paragraph 15(a) (not discriminatory if expulsion from employment based on a bona fide occupational requirement) (BFOR). The said relief is more briefly stated on page 284 of volume II of the applicant’s record.

ORDER SOUGHT

34. The applicant respectfully requests that the within application be allowed, the decision of the Public Service Commission Appeal Board rendered September 1, 1992, be set aside and the matter be remitted back to the Appeal Board with the direction that the Appeal Board was obligated to consider the extent to which the release of the applicant was violative of her rights under the Canadian Human Rights Act.

More felicitously, one would add the words “if at all” after the word “rights” in the above recited passage.

It is convenient to recite the pertinent provisions of the respective statutes here. Section 31 of the Public Service Employment Act runs as follows:

31. (1) Where an employee, in the opinion of the deputy head, is incompetent in performing the duties of the position the employee occupies or is incapable of performing those duties and should be appointed to a position at a lower maximum rate of pay, or released, the deputy head may recommend to the Commission that the employee be so appointed or released, in which case the deputy head shall give notice in writing to the employee of the recommendation.

(2) Within such period after receiving a notice under subsection (1) as the Commission prescribes, the employee may appeal against the recommendation of the deputy head to a board established by the Commission to conduct an inquiry at which the employee and the deputy head, or their representatives, shall be given an opportunity to be heard.

(3) The Commission, on being notified of the decision of the board on the inquiry into a recommendation conducted pursuant to subsection (2), shall, in accordance with the decision,

(a) notify the deputy head concerned that the recommendation will not be acted on; or

(b) appoint the employee to a position at a lower maximum rate of pay, or release the employee.

(4) If no appeal is made against a recommendation of a deputy head under subsection (1), the Commission may take such action with regard to the recommendation as the Commission sees fit.

(5) The Commission may release an employee pursuant to a recommendation under this section and the employee thereupon ceases to be an employee.

It will be seen that in this Public Service statute, Parliament is concerned with a process for either confirming or setting aside the deputy head’s recommendation to appoint an employee to a subordinate position or to release the employee. These two and only alternatives are set out in subsection 31(1) and paragraphs 31(3)(a) and (b), which are predicated upon the deputy head’s opinion, acted-upon, that the employee is either incompetent in performing his or her position’s duties, or is incapable of performing those duties. The terms “incompetent” and “incapable” may possibly overlap, as the Oxford English Dictionary, 2nd ed., Clarendon Press—Oxford, 1989, and Petit Larousse Illustré, 1984, Librairie Larousse, Paris, both indicate, but fundamentally, “incompetent” seems to relate more to deficiencies of skill, knowledge and attitude than to “incapable”, which seems to relate rather to physical and/or mental handicap. That appears also to be the view of Mr. Justice Robertson, writing for the Appeal Division in Clare v. Canada (Attorney-General) (1993), 100 D.L.R. (4th) 400 (F.C.A.), at page 409. Here, as noted, the applicant admits that she is physically (one might add “neurologically”) incapable of performing the duties of her CR-03 position. From the point of view of the people who administer the Act, and the Attorney General, that admission, or finding, strictly speaking ends the matter. The applicant may be, and has been, released: any help or comfort extended by her employer to assuage her plight is strictly gratuitous, according to the respondent’s expressed view of the Act. “The public service is not a nanny, and public servants are not ninnies” quoth counsel for the respondent.

There is no need here to distinguish between job-related injury and incapacity, and extraneous recreational injury and incapacity, apart from the WCB’s involvement. Here, the applicant suffered a job-related injury, or injuries, and incapacity. Now she is being discarded.

What then say the pertinent provisions of the CHRA which maybe bear upon the matter at hand? Here they are, with the preamble, as they pertain to this case:

An Act to extend the laws in Canada that proscribe discrimination

SHORT TITLE

1. This Act may be cited as the Canadian Human Rights Act.

PURPOSE OF ACT

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on ….

PART 1

PROSCRIBED DISCRIMINATION

General

3. (1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.

…

4. A discriminatory practice, as described in sections 5 to 14, may be the subject of a complaint under Part III and anyone found to be engaging or to have engaged in a discriminatory practice may be made subject to an order as provided in sections 53 and 54.

…

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

…

15. It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; [Underlining added.]

Section 4 obviously does not restrict the scope of the entire block of sections 5 to 14 of the CHRA, to complaints under Part III, for that would hardly accommodate the CHRA’s purpose “to extend the laws in Canada to give effect … to the principle” [underlining added] set out in section 2 of the CHRA. Rather section 4 provides one manner of giving effect to those sections in this statute, but not the only manner.

Among the laws of Canada, the Public Service Employment Act figures authentically as one. So, therefore do section 31 and its subsections. Why then is it not subject to the CHRA, as Parliament so plainly enacted? In fact it is a law so extended in order to accommodate the “purpose” enunciated in section 2 of the CHRA. The present Chief Justice of Canada with McIntyre J. concurring came to the same conclusion eleven years ago in regard to British Columbia’s human rights statute in Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145. He is reported at pages 157-158 as follows:

The Human Rights Code of British Columbia

When the subject matter of a law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction, [compare s. 2 of the CHRA] then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.

As a result, the legal proposition generalia specialibus non derogant cannot be applied to such a code. Indeed the Human Rights Code, when in conflict with “particular and specific legislation”, is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law.

Furthermore, as it is a public and fundamental law, no one, unless clearly authorized by law to do so, may contractually agree to suspend its operation and thereby put oneself beyond the reach of its protection.

Therefore, whilst agreeing with my brother Ritchie that “the two statutory enactments under review can stand together as there is no direct conflict between them”, I should add that were there such a conflict, the Code would govern. I find nowhere in the laws of British Columbia that s. 5 of the Statutory Conditions set forth in s. 208 of the Insurance Act, R.S.B.C. 1960, c. 197, as amended, is to be given any special treatment under the Human Rights Code.

So spoke Mr. Justice McIntyre for the unanimous Supreme Court of Canada in Winnipeg School Division No. 1 v. Craton et al., [1985] 2 S.C.R. 150, at page 156:

In any event, I am in agreement with Monnin C.J.M. where he said:

Human rights legislation is public and fundamental law of general application. If there is a conflict between this fundamental law and other specific legislation, unless an exception is created, the human rights legislation must govern.

This is in accordance with the views expressed by Lamer J. in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145. Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims. In this case it cannot be said that s. 50 of the 1980 consolidation is a sufficiently express indication of a legislative intent to create an exception to the provisions of s. 6(1) of the Human Rights Act.

Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, is pertinent. La Forest J. wrote for the Supreme Court of Canada which was, in effect, unanimous. He is recorded at pages 89 and 90, citing Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145, at pages 157-158, and Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536, and there, in Robichaud, imparting the same paramountcy to the CHRA, as was earlier accorded to provincial human rights legislation:

The purpose of the Act is set forth in s. 2 as being to extend the laws of Canada to give effect to the principle that every individual should have an equal opportunity with other individuals to live his or her own life without being hindered by discriminatory practices based on certain prohibited grounds of discrimination, including discrimination on the ground of sex. As McIntyre J., speaking for this Court, recently explained in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, the Act must be so interpreted as to advance the broad policy considerations underlying it. That task should not be approached in a niggardly fashion but in a manner befitting the special nature of the legislation, which he described as “not quite constitutional”; see also Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, per Lamer J., at pp. 157-58. By this expression, it is not suggested, of course, that the Act is somehow entrenched but rather that it incorporates certain basic goals of our society. More recently still, Dickson C.J. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) (the Action Travail des Femmes case), [1987] 1 S.C.R. 1114, emphasized that the rights enunciated in the Act must be given full recognition and effect consistent with the dictates of the Interpretation Act that statutes must be given such fair, large and liberal interpretation as will best ensure the attainment of their objects.

In the Appeal Division of this Court the same theme was taken up by Mr. Justice Mahoney for the unanimous bench in Canada (Attorney General) v. Druken, [1989] 2 F.C. 24, as reported at page 31:

The rule appears to be that when human rights legislation and other legislation cannot stand together, a subsequent inconsistent enactment, unless clearly stated to create an exception to it, is not to be construed as repealing the subsisting human rights legislation. On the other hand, when the human rights legislation is the subsequent enactment, it does repeal by implication the other inconsistent legislation.

Notwithstanding, the respondent’s counsel argues that just because a human-rights point is raised, it does not mean that the Board willy-nilly has to deal with it. He stated that his point in regard to the section 31 board is that the CHRA is not relevant. With respect, it is indeed relevant, to that comprehensive extent wherein the CHRA “is binding on Her Majesty in right of Canada” (section 66), and wherein it figures in the jurisprudence earlier cited and recited above. The only exception, in fact, resides in section 67 in regard to the Indian Act [R.S.C., 1985, c. I-5], no doubt because that statute (with section 25 [as am. by SI-84-102, s. 2] of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]) purports to validate racial distinction and the segregation of people by race. It cannot be correctly asserted that the Public Service Employment Act, including the section 31 appeal board, may operate obliviously without regard for the imperatives of the CHRA.

In view of the applicant’s admission by counsel that she was, at the material time of the deputy head’s recommendation, incapable of performing the duties of her CR-03 position, the respondent’s citation of Ahmad v. Public Service Commission, [1974] 2 F.C. 644 (C.A.) especially at pages 646-647, is of no consequence in these proceedings. Thus, did the applicant’s counsel narrow the scope of the relief which she originally sought herein.

There can be no doubt, in light of the jurisprudential authorities, if not also the statutory authority of the CHRA’s section 2, that the whole Public Service apparatus of State, unless somewhere exempted in clear statutory words, must operate consistently with the principle, purpose and precise provisions of the human rights legislation. Deputy heads are not exempt from obedience to the CHRA, any more than anyone else. The root of this matter lies beyond the Board: it proceeds from the deputy head’s conduct, as reviewed by the Board. Public servants are entitled to employment treatment and conditions in compliance with the clear principle, stated purpose and precise provisions of the CHRA. The respondent’s counsel’s not inconsiderable line of argument posits inter alia that the two statutes operate on different planes, or in “watertight compartments” (the Court’s phraseology) but that premise is seen to be untenable.

The resolution of the first issue stated in the first paragraph of these reasons is: yes, a Public Service appeal board, in adjudicating an appeal pursuant to section 31 of the Act is indeed bound to apply the employment provisions of the CHRA.

The next question is, did the Board do so adequately, or at all, in this case? In order to apply the CHRA’s provisions, the Board must follow the statute and the jurisprudence generated pursuant to it.

In terms of the statute, it is clear that the applicant’s physical/neurological incapacity or handicap from performing the duties of her CR-03 position, constitute a “disability” as that word is meant and understood in section 2 and subsection 3(1) of the CHRA. So, in applying section 7 to this case, it is a discriminatory practice, directly or indirectly to refuse to … continue to employ the applicant, or, in the course of employment to differentiate adversely in relation to the applicant on the ground of her disability. There is, of course, the exception in section 15 earlier mentioned, to the effect that it is not unlawful discrimination if any exclusion or expulsion (that is, “release”) in relation to the applicant’s employment is established by the respondent to be based on a BFOR.

Section 15, itself, has generated some interpretive jurisprudence. A bona fide occupational requirement, a BFOR, is a more complex concept than its deceptively simple expression reveals. The case of Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536, is mentioned in the earlier above recited passage of Mr. Justice La Forest in the Robichaud case. In the O’Malley case the judgment of the Supreme Court of Canada was written by Mr. Justice McIntyre and he defined “adverse effect discrimination” and related it, at least peripherally, to the BFOR. Noting that in cases of direct and wilful discrimination, motive or intent is or may be shown, McIntyre J. is reported at pages 549-550 thus:

It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create, as in Griggs v. Duke Power Co., 401 U.S. 424 (1971), injustice and discrimination by the equal treatment of those who are unequal (Dennis v. United States, 339 U.S. 162 (1950), at p. 184). Furthermore, as I have endeavoured to show, we are dealing here with consequences of conduct rather than with punishment for misbehaviour. In other words, we are considering what are essentially civil remedies. The proof of intent, a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination.

…

The idea of treating as discriminatory regulations and rules not discriminatory on their face but which have a discriminatory effect, sometimes termed adverse effect discrimination, is of American origin and is usually said to have been introduced in the Duke Power case, supra, in the Supreme Court of the United States…. There was no provision in the relevant statute, the Civil Rights Act of 1964, (Title VII, 78 Stat. 255, s. 703(a)(1)) 42 USCS § 2000e-2(a)(1), which directed such an interpretation.

In the O’Malley v. Simpsons-Sears case, McIntyre J. noted [at page 550] that although there was “no express statutory support in Ontario, Inquiry Board chairmen have introduced the concept” of the adverse effect principle despite that lack, and he cited a few instances, saying that there are also several others. On page 551 he is reported as crafting this clear explanation of adverse effect discrimination:

A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, “No Catholics or no women or no blacks employed here.” There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code I am of the opinion that this Court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.

Finally, on page 552, McIntyre J. relates adverse effect discrimination obliquely to “the bona fide occupational qualification defence.” He is reported there, thus:

Where discrimination in connection with employment on grounds of a person’s creed is found, is that person automatically entitled to remedies provided in the Ontario Human Rights Code? One of the arguments advanced in this Court and in the courts below was based on the fact that the Code, while prohibiting discrimination on the basis of creed, contains no saving or justifying clause for the protection of the employer. Such a saving provision is found in s. 4(6) for cases concerning discrimination on the basis of age, sex, and marital status—the bona fide occupational qualification defence. This omission was said to create a vacuum in the Code and was relied on for the proposition that only intentional discrimination was prohibited because without some such protection the innocent discriminator would be defenceless. While I reject that argument as support for a limitation of the Code to intentional discrimination, I do not on the other hand accept the proposition that on a showing of adverse effect discrimination on the basis of religion the right to a remedy is automatic.

Nevertheless, the Court, through the pen of McIntyre J. found a real employer’s duty to accommodate an employee short of undue hardship for the employer, despite the lack of any express statutory base for it. In the final analysis, reasonable steps by the employer may cease at the point of undue hardship, but then, what? Mr. Justice McIntyre stated for the O’Malley case at page 555 and, of course, subsequent similar cases:

Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.

The respondent’s counsel argues strongly and well that once it is found that an applicant has been unable—incompetent or incapable—to perform the duties of his or her position, that is, unable to perform those duties which constitute a BFOR, that is the end of the matter pursuant to section 15 of the CHRA, for the “exclusion, expulsion, suspension” by paragraph 15(a) is not a discriminatory practice. It is curious that the CHRA does not employ the severance word expressed in subsections 31(1) and (5) of the Act, “release”; but it is certain that the meaning of the three words in paragraph 15(a) of the CHRA do comprehend the meaning of “release” in the sense of “release from employment” in the Public Service.

On the same day as the O’Malley judgment was released, December 17, 1985, the Supreme Court of Canada also released its judgment in Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561. This time Mr. Justice McIntyre wrote for what one might term the “layered” majority, with Madam Justice Wilson and Mr. Justice Beetz adopting their own reasons and those of McIntyre J. in disposing of the appeal as suggested by him. There, the appellant, a Sikh employee of the respondent railway company, would not wear a safety helmet to displace his turban, allegedly on religious grounds, as required by the employer for all maintenance electricians in compliance with paragraph 82(1)(b) of the Canada Labour Code, R.S.C. 1970, c. L-1 and regulations made pursuant to paragraph 84(1)(g) thereof. The respondent (sometimes herein: CN) applied the hard hat requirement some four and a half years after Bhinder became an employed maintenance electrician with CN in Toronto. The Human Rights Tribunal concluded that CN had engaged in a discriminatory practice, but this Court’s Appeal Division [[1983] 2 F.C. 531] (Le Dain J. dissenting) being of the contrary view referred the matter back to the Tribunal for a disposition on the basis that CN’s requirement to wear a security helmet while at work in the coach yard was not a discriminatory practice.

The Bhinder case was considered by the Supreme Court and reported at [1985] 2 S.C.R. 561. Writing effectively for the majority (Dickson C.J. and Lamer J. dissenting) Mr. Justice McIntyre is reported at pages 589-590, thus:

The [Human Rights] Tribunal was of the opinion that a liberal interpretation should be applied to the provisions prohibiting discrimination and a narrow interpretation to the exceptions. Accepting this as correct, it is nevertheless to be observed that where s. 14(a) applies, the subsection in the clearest and most precise terms says that where the bona fide occupational requirement is established, it is not a discriminatory practice. To conclude then that an otherwise established bona fide occupational requirement could have no application to one employee, because of the special characteristics of that employee, is not to give s. 14(a) a narrow interpretation; it is simply to ignore its plain language. To apply a bona fide occupational requirement to each individual with varying results, depending on individual differences, is to rob it of its character as an occupational requirement and to render meaningless the clear provisions of s. 14(a). In my view, it was error in law for the Tribunal, having found that the bona fide occupational requirement existed, to exempt the appellant from its scope.

It follows from the above that I disagree with the majority of the Court of Appeal in their finding that the Canadian Human Rights Act extends only to intentional discrimination. I am of the view for the reasons expressed above that the Act also comprehends unintentional and adverse effect discrimination. I am, however, in agreement with the majority of the Court of Appeal that there was error in law in the Board’s determination of the bona fide occupational requirement question and the application of s. 14(a). I therefore dismiss the appeal and send the matter back to the Tribunal for resolution in accordance with these reasons.

I cannot, however, leave this case, without further reference to the case of O’Malley. On facts for all purposes identical to those at bar, Mrs. O’Malley has received protection from the religious discrimination against which she complained and Bhinder has not. The difference in the two cases results from the difference in the two statutes. The Ontario Human Rights Code in force in the O’Malley case prohibited religious discrimination but contained no bona fide occupational requirement for the employer. The Canadian Human Rights Act contains a similar prohibition, but in s. 14(a) is set out in the clearest terms the bona fide occupational requirement defence. As I have already said, no exercise in construction can get around the intractable words of s. 14a) and Bhinder’s appeal must accordingly fail. It follows as well from the foregoing that there cannot be any consideration in this case of the duty to accommodate referred to in O’Malley and contended for by the appellants. The duty to accommodate will arise in such a case as O’Malley, where there is adverse effect discrimination on the basis of religion and where there is no bona fide occupational requirement defence. The duty to accommodate is a duty imposed on the employer to take reasonable steps short of undue hardship to accommodate the religious practices of the employee when the employee has suffered or will suffer discrimination from a working rule or condition. The bona fide occupational requirement defence set out in s. 14(a) leaves no room for any such duty for, by its clear terms where the bona fide occupational requirement exists, no discriminatory practice has occurred. As framed in the Canadian Human Rights Act, the bona fide occupational requirement defence when established forecloses any duty to accommodate.

The Bhinder case seemed to provide a clear and simple, even literal interpretation of the CHRA, but within 5 years thereafter a slim majority (4 to 3) of the Supreme Court of Canada began to have second, more complex thoughts about the subject-matter, including the meaning of BFOR. The case is Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489. The issue is concisely described in the recorded words, at page 494, of Madam Justice Wilson for the majority:

The principal question raised in this appeal is whether a particular attendance rule imposed by the respondent employer on an employee is a bona fide occupational qualification (“FBOQ”) under the Alberta Individual’s Rights Protection Act, R.S.A. 1980, c. I-2 (“the Act”). In the event that this Court answers the question in the negative, we are further called upon by the parties to consider whether the respondent might defend itself from a charge of religious discrimination by proving that it accommodated the employee up to the point of undue hardship.

The above cited case concerned the complainant’s religious holy days which occurred on very busy working days in the employer’s dairy. Having found that attendance in compliance with the employer’s work schedule was a BFOQ (same as a BFOR), the Queen’s Bench Judge [(1986), 73 A.R. 57] (citing the reasons of McIntyre J., in Bhinder) concluded that the employer had no duty to accommodate, and in fact, that the employer had reasonably accommodated the employee’s religious exigencies. The employee, however, had failed, according to the Queen’s Bench Judge, to accommodate the employer’s reasonable needs in that he [at page 60] “did not make diligent and complete inquiries of his Church representative to determine whether satisfactory solutions could be found.” The Judge relied on evidence from another member of the same church who testified that [at page 60] “if the requirement to work on holy days is an ongoing situation, a person has the responsibility to seek over time, other employment which will allow observance of holy days.” Such, he said, was the complainant’s circumstance. The foregoing, taking account of the different disability in the present case, is the Attorney General’s posture in the present case at bar. In the Dairy Pool case, the Alberta Court of Appeal [(1988), 56 D.L.R. (4th) 192] virtually adopted and ratified the Queen’s Bench’s decision in the matter.

Noting that [at page 502] “a review of the relevant authorities suggests that they may not be completely compatible”, Madam Justice Wilson, in the Alberta Dairy Pool case, went on to analyse Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202, O’Malley (earlier above cited) and Bhinder (also above cited). In the latter case, she closely considered the dissent of Dickson, then C.J., and Lamer, now C.J. She is reported at page 509 thus:

Dickson C.J., in effect, focussed upon the bona fide aspect of the BFOR and found that an occupational requirement could not be imposed bona fide unless the employer had exercised its duty to accommodate those on whom the requirement would have an adverse impact. The purpose of the Canadian Human Rights Act, S.C. 1976-77, c. 33, he stressed, was to prevent discrimination, and discrimination resulting from adverse impact could only be prevented by importing into the BFOR a duty to accommodate. Quoting from his judgment at p. 571:

The words “occupational requirement” mean that the requirement must be manifestly related to the occupation in which the individual complainant is engaged. Once it is established that a requirement is “occupational”, however, it must further be established that it is “bona fide”. A requirement which is prima facie discriminatory against an individual, even if it is in fact “occupational”, is not bona fide for the purpose of s. 14(a) if its application to the individual is not reasonably necessary in the sense that undue hardship on the part of the employer would result if an exception or substitution for the requirement were allowed in the case of the individual. In short, while it is true the words “occupational requirement” refer to a requirement manifest to the occupation as a whole, the qualifying words “bona fide” require an employer to justify the imposition of an occupational requirement on a particular individual when such imposition has discriminatory effects on the individual.

Dickson C.J. saw no conflict between his interpretation of a BFOR in this case and the judgment of this Court in Etobicoke. He refers to the passage from the Court’s judgment in Etobicoke (quoted supra) in which McIntyre J. describes a BFOQ as being objectively related to and “reasonably necessary” for the performance of the job.

So, Madam Justice Wilson, in the Dairy Pool case, went on to observe, at pages 512-513:

It seems to me in retrospect that the majority of this Court may indeed have erred in concluding that the hard hat rule was a BFOR. I say that not because I disagree with the test set out in Etobicoke nor because I accept the proposition advanced by those in dissent that accommodation is a necessary component of a BFOR, but for two other reasons.

First, the rule was not, to use the terminology of Etobicoke, “reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public”. The Tribunal found as a fact that the failure of Mr. Bhinder to wear a hard hat would not affect his ability to work as a maintenance electrician or pose any threat to the safety of his co-workers or to the public at large. The Tribunal did find that not wearing a hard hat would increase the risk to Mr. Bhinder himself, but only marginally. In light of the findings of fact by the Tribunal, I think it is difficult to support the conclusion of the majority of the Court that the hard hat rule was reasonably necessary for the safety of Mr. Bhinder, his fellow employees and the general public.

My second reason for questioning the correctness of Bhinder concerns the assumption that underlies both the majority and minority judgments, namely that a BFOR defence applies to cases of adverse effect discrimination. Upon reflection, I think we may have erred in failing to critically examine this assumption. As McIntyre J. notes in O’Malley, the BFOQ test in Etobicoke was formulated in the context of a case of direct discrimination on the basis of age. The essence of direct discrimination in employment is the making of a rule that generalizes about a person’s ability to perform a job based on membership in a group sharing a common personal attribute such as age, sex, religion, etc. The ideal of human rights legislation is that each person be accorded equal treatment as an individual taking into account those attributes. Thus, justification of a rule manifesting a group stereotype depends on the validity of the generalization and/or the impossibility of making individualized assessments.

Then, on pages 516-517, Madam Justice Wilson, is reported, thus:

For these reasons, I am of the view that Bhinder is correct in so far as it states that accommodation is not a component of the BFOR test and that once a BFOR is proven the employer has no duty to accommodate. It is incorrect, however, in so far as it applied that principle to a case of adverse effect discrimination. The end result is that where a rule discriminates directly it can only be justified by a statutory equivalent of a BFOQ, i.e. a defence that considers the rule in its totality. (I note in passing that all human rights codes in Canada contain some form of BFOQ provision.) However, where a rule has an adverse discriminatory effect, the appropriate response is to uphold the rule in its general application and consider whether the employer could have accommodated the employee adversely affected without undue hardship.

These criteria seem to be so formulated as to guarantee an unceasing flow of litigation, for, in each case, some adjudication appears to be needed to identify a BFOR, whether the complaint alleges adverse effect discrimination, whether accommodation has been effected and whether it be effected to the always debatable point of “undue” hardship. The Supreme Court has promulgated a much more complex, but perhaps more just, regime than Parliament, as interpreted by McIntyre J. in Bhinder promulgated. As if to confirm the verity of the above observation, Madam Justice Wilson in the Alberta Dairy Pool case, is further reported, starting at page 517, to have considered the Quebec case of Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279. That case dealt with the municipality’s anti-nepotism hiring policy disqualifying spouses and relatives of full-time employees and councillors from employment with the town, as distinct from the Quebec Charter’s [Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12] prohibition of discrimination on the basis of “civil status”. In Brossard, Mr. Justice Beetz held that the employer’s anti-nepotism rule was cast too broadly, and Madam Justice Wilson agreed that the rule was not a BFOQ because less drastic, more reasonable alternatives to the total ban were logically available to be undertaken. She said that such an approach was endorsed and applied by the Supreme Court in Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297 (called the Saskatoon Fire Fighters case).

The Saskatoon Fire Fighters case dealt with the mandatory retirement age provided for in the collective agreement between the City and the Union and incorporated into the City’s by-law. Chief Craig complained to the provincial Human Rights Commission that his forced retirement at 60 contravened the Code’s [The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1] prohibition against discrimination on the basis of age and that it could not be justified as a “reasonable occupational qualification and requirement (roqr) as mentioned in the Code’s subsection 16(7).” There, the question was related to the probability of physical disability to perform a fire fighter’s role at an age older than 60, and whether tests could be devised and applied to make such a determination. Here, the applicant’s counsel has admitted that Ms. MacNeill does indeed suffer a physical disability—or literally, is incapable—in regard to the performance of her duties. Indeed, she surely has undergone individualized testing which by contrast was one of the contentious issues in the Saskatoon Fire Fighters case, wherein Air Canada v. Carson, [1985] 1 F.C. 209 (C.A.) (in which Mr. Justice Mahoney’s practical observation about an individual basis, over a blanket refusal), is favourably cited, as pointing “the way to the proper approach”.

No doubt “the way” was certainly made more manifest in the Supreme Court’s judgment, written by Mr. Justice Sopinka, in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970. This last cited judgment, like O’Malley, Bhinder and Alberta Dairy Pool featured complaints based on the employee’s religion, in Renaud, Seventh-day Adventism. In the opening paragraph of Renaud, Sopinka J. is reported, at pages 975-976 thus:

The issue raised in this appeal is the scope and content of the duty of an employer to accommodate the religious beliefs of employees and whether and to what extent that duty is shared by a trade union. While this duty has been recognized and discussed as it relates generally to employers (Ontario Human Rights Commission) and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at pp. 552-56, and Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp. 520-29), little judicial consideration has been given to the question raised by the involvement of a collective agreement and a certified trade union. Is a trade union liable for discrimination if it refuses to relax the provisions of a collective agreement and thereby blocks the employer’s attempt to accommodate? Must the employer act unilaterally in these circumstances? These are issues that have serious implications for the unionized workplace.

In regard to the present case at bar, the importance of Renaud resides in the Supreme Court’s confirmed acceptance of a duty to accommodate notwithstanding the presence of a bona fide occupational requirement, in cases of adverse effect discrimination. The employer’s duty to accommodate the employee’s religion’s exigencies, exacts of the employer reasonable measures, short of undue hardship. Here the Court held that the notions of “reasonable” and “undue hardship” are simply alternate ways of expressing the same concept.

Mr. Renaud’s complaint resulted in an adjudication by “the member designate”, appointed by the British Columbia Council of Human Rights to investigate the complaint of being required to work on Friday nights according to the collective agreement then and there in place. For purposes of the case at bar, Mr. Justice Sopinka’s more notable passages, reported at pages 981-982, are these:

The respondents [CUPE, Local 523 and others] succeeded in the courts below in proceedings by way of certiorari based on alleged errors of law apparent on the face of the record. Accordingly, the appeal must succeed if the courts below were wrong that the member designate erred in law. The first ground upon which leave was granted was the basis for the decisions in the courts below. Both Dohm J. and the Court of Appeal decided that the member designate erred in finding a duty to accommodate in the face of a BFOR, which finding was contrary to Bhinder. Those decisions were made without the benefit of the reasons of this Court in Central Alberta Dairy Pool, supra, in which both the majority and the minority judgments held that there is a duty to accommodate notwithstanding the presence of a BFOR in cases of adverse effect discrimination. The majority put it this way at p. 517:

… where a rule has an adverse discriminatory effect, the appropriate response is to uphold the rule in its general application and consider whether the employer could have accommodated the employee adversely affected without undue hardship.

In my minority judgment I indicated at p. 528 that:

An employer who wishes to avail himself of a general rule having a discriminatory effect on the basis of religion must show that the impact on the religious practices of those subject to the rule was considered, and that there was no reasonable alternative short of causing undue hardship to the employer.

The respondent employer conceded in this Court that notwithstanding the presence of a BFOR the employer had a duty to accommodate.

By reason of the foregoing, only the issues relating to the second ground are before us for determination.

Sopinka J. is further reported at page 989 of Renaud, thus:

The duty to accommodate developed as a means of limiting the liability of an employer who was found to have discriminated by the bona fide adoption of a work rule without any intention to discriminate. It enabled the employer to justify adverse effect discrimination and thus avoid absolute liability for consequences that were not intended. Section 8 of the Act, like many other human rights codes, prohibits discrimination against a person with respect to employment or any term or condition of employment without differentiating between direct and adverse effect discrimination. Both are prohibited. Moreover, any person who discriminates is subject to the sanctions which the Act provides. By definition (s. 1) [of the British Columbia Human Rights Act, S.B.C. 1984, c. 22] a union is a person. Accordingly, a union which causes or contributes to the discriminatory effect incurs liability. In order to avoid imposing absolute liability, a union must have the same right as an employer to justify the discrimination. In order to do so it must discharge its duty to accommodate.

Earlier in his reasons (at page 982) Sopinka J. had related the duty to accommodate to employees’ religious beliefs and practices, as was the case in O’Malley and also there in Renaud, but when he recited at page 981 the majority and minority expressions in Central Alberta Dairy Pool, above, it can be seen that the majority’s judgment does not restrict the duty to accommodate only to matters of the employees’ religious beliefs and practices. The majority view of the duty is seen to be broader so as to encompass employees’ retirement age, as in Etobicoke for example.

In the case at bar the applicant’s difficulty arises from neither age nor religion, but physical incapacity. The respondent’s counsel makes rather compelling arguments to the effect that alleged age incapacity can be accommodated by individual testing, and religious holy days can be accommodated by revising work-force duty schedules, but that this applicant has been physically tested and now admits that she cannot do the job of CR-03 at all. Citing Canada (Attorney General) v. Beaulieu (A-687-91) February 25, 1993 [not yet reported], a judgment written by Mr. Justice Marceau for a unanimous Appeal Division, the respondent’s counsel urges that the applicant has reached the end of her road in the Public Service. The Board, whose decision she seeks herein to set aside, had no jurisdiction, according to earlier jurisprudence, to vary her deputy head’s recommendation to release her by substituting a recommendation that she be appointed to a position at a lower maximum rate of pay, pursuant to subsection 31(1) of the Act. The two kinds of recommendation open to the deputy head certainly suggest the flexibility of accommodation promulgated by the recent judgments, above cited, of the Supreme Court of Canada.

What seems to have been forgotten is that by its own Part IV—in subsection 66(1)”the CHRA “is binding on Her Majesty in right of Canada”. It is therefore binding upon Her Majesty’s servants, employees and deputy heads, in the common realm of employment rights and responsibilities, treated by both the Public Service Employment Act and the Canadian Human Rights Act.

This Court finds that the physical capacities to do a job—for example, a hydro line maintenance worker’s ability to climb a hydro pole, and to withstand vertigo—constitute a BFOR. That is plain common sense. So also the physical capacity to perform the work of a CR-03 employee is a BFOR, and this applicant cannot physically perform that work. Is her employer duty-bound to accommodate her? According to the Supreme Court’s interpretation of the CHRA, which is binding on the applicant’s employer, the said employer is bound to accommodate Ms. MacNeill. Since this case of human rights does not arise under the Indian Act [R.S.C., 1985, c. I-5], since there is no element of racism here, the way is clear for accommodation as suggested by subsection 31(1) of the Act relating to Public Service employment.

Now, since the deputy head is constantly bound to apply the CHRA, it follows that, according to the Supreme Court, the deputy head is duty-bound to attempt bona fide to accommodate the applicant in keeping a job so as to avoid running afoul of section 7 of the CHRA. Further, because the CHRA is binding upon all those who wield employment powers under the Act—including the power of adjudication conferred on “a board established by the [Public Service] Commission to conduct an inquiry at which the employee and the deputy head, or their representatives, shall be given an opportunity to be heard”, according to subsection 31(2) of the Act, section 7 of the CHRA governs those activities of those Crown servants. They might also be absolved from any duty to accommodate by section 15’s BFOR, had the Supreme Court not developed the law’s interpretation beyond the literal clarity of the Bhinder judgment.

Now, because the employment imperatives of section 7 of the CHRA bind the deputy head, and the BFOR of section 15 thereof does not, according to high judicial interpretation, absolve the deputy head from attempting at least the accommodation provided in subsection 31(1) of the Act, here is a ground of “appeal against the recommendation of the deputy head” (subsection 31(2)) to release the employee, unless the deputy head has been found to have complied with duty imposed by the CHRA. The employee’s statutory right to appeal against the deputy head’s recommendation to release the employee, comprehends the right to appeal the deputy head’s breach of the employment provisions of the CHRA as interpreted by the Supreme Court. Those CHRA provisions are officially binding on the deputy head, a servant of Her Majesty. Such a breach would be a valid ground for allowing an appeal.

The Public Service Appeal Board in this instance would not accept any duty to hear the applicant’s appeal on the ground that the deputy head did—nay!—could act unlawfully in avoidance of duty under the CHRA. Although the Board recounted and reviewed the history of the applicant’s case, the Board only came close to, but did not review the employer’s treatment of the applicant in focus with the CHRA. The employer made gestures which resembled accommodation but the Board would not accept any adjudicatory role in regard to the CHRA.

One Mike MacDonald of the Public Service Alliance of Canada represented the applicant before the Public Service Appeal Board on July 21, 1992 [(1992), 12 ABD 279], and he is mentioned in the following passages in which the Board expressed its purported alienation from the provisions of the CHRA. The Board’s 35-page decision [22 in ABD] is reproduced by each side. On page 12, under case for the appellant the Board wrote [at pages 287-292]:

On many occasions, the appellant [applicant herein] has requested to be transferred to another position, the duties of which she would be capable of doing and the duties of which would be less physically demanding than the one she currently occupies. Instead of accommodating the appellant, Mr. MacDonald contended that the Department has simply refused to continue to employ her precisely and only because of her physical disability. With this in mind, the appellant’s representative put forward two interrelated lines of argument in support of Miss MacNeill’s appeal.

Firstly, it was contended that the Department had discriminated against the appellant on the basis of physical disability, a discrimination which was clearly prohibited under the Canadian Human Rights Act. Secondly, the recommendation to release the appellant was made in bad faith, and in so doing the Department has failed to properly apply legal direction provided both by the Canadian Human Rights Act and numerous tribunal and court decisions issued under the auspices of this statute. The remainder of the case on behalf of the appellant took the form of evidence in support of these two contentions.

…

In summation, Mr. MacDonald contended that the only course of action open to this Appeal Board was to hold against sustaining the recommendation for release put forward with respect to Miss MacNeill. [p. 292]

…

Reply by the Department

There was certainly no element of discrimination in the Department’s decision to recommend the appellant for release on the grounds of her incapacity to carry out the duties of her position. The decision itself was based directly and solely upon the (undisputed) fact that Miss MacNeill is and continues to remain unable to carry out the full range of duties of her Payment Support Clerk job. [p. 292]

The parties’ respective submissions were thoroughly canvassed [at pages 300-301]:

A cornerstone of the edifice the appellant’s representative sought to construct was his assertion that pertinent sections of the Canadian Human Rights Act must be construed as either intruding upon or in some sense superseding the provisions of the Public Service Employment Act and in particular section 31 of the latter statute. After reflection on the argument, I find myself unable to acquiesce in this contention.

I note, first of all, that none of the judgments cited in this connection addressed section 31 (or any other provision) of the Public Service Employment Act. When the courts have had opportunity to pronounce on this section (and most of the relevant judgments have been cited by one party or the other), those judgments contain nothing which would incline me to find sympathy for Mr. MacDonald’s line of reasoning. While I think there can be no doubt that the Canadian Human Rights Act is of a nature such as to give it status beyond that of ordinary legislation, that in itself does not lead me to the conclusion that I must temper my inherited understanding of section 31 of the Public Service Employment Act in the manner suggested to me.

Furthermore, and in any event, I am unable to find in the extensive evidence before me basis for holding that the Department has acted either in bad faith or in such a manner as to discriminate against the appellant (as discrimination would be understood within the context of the Canadian Human Rights Act) in arriving at its conclusion that Miss MacNeill is incapable of carrying out the duties of her position, and has been for some time and indeed continues to be. It seems to me that no charge of discrimination—with respect to the recommendation for release itself—can withstand scrutiny because both the appellant herself and her representative were in agreement that the fact of the matter was that Miss MacNeill is certainly unable to carry out the duties of the position to which she was earlier appointed and from which her release on the grounds of such incapacity was now being recommended.

I cannot then see the present recommendation as open to the characterization of discriminatory given the option available to the Department per section 31. It seems to me that a recommendation under this section cannot be perceived as discriminatory when all parties are in clear agreement that Miss MacNeill is unable to carry out the duties involved, particularly when it is borne in mind that the pervasive tenor of the Public Service Employment Act is appointment and promotion based upon merit. [p. 300]

…

This leads me to the second thread of argument interwoven by Mr. MacDonald into his case fabric. Whether or not Miss MacNeill has been discriminated against as that discrimination would be understood under the auspices of the Canadian Human Rights Act is something not within my jurisdiction to consider. It may be, as Mr. MacDonald seems earnestly to believe, that the appellant has been—in some significant sense of the term—discriminated against by one or other of the Department’s actions. Whether that has in fact occurred is something for someone else to adjudge in another arena. An avenue might be that apparently travelled in the Boucher decision of a Canadian Human Rights Tribunal that Mr. MacDonald drew to my attention. I cannot, of course, presume to predict what such a tribunal might say faced with some or all of the present evidence, but I mention the matter simply to suggest that further avenues of redress may well be available to the appellant.

From the foregoing it is apparent that I cannot agree with Mr. MacDonald’s contention that an Appeal Board must intervene against what he would want me to perceive as discrimination in the application of section 31 of the Public Service Employment Act. While it may well be accurate to characterize the Canadian Human Rights Act as other than ordinary legislation, such characterization fails in my respectful opinion to lead me to the view that a recommendation brought under section 31”and one for which all parties involved would appear to agree with the underlying substantive rationale—must be rejected simply because aspects of the department’s behaviour might conceivably be tarred with the brush of discrimination as that might be understood in an action brought under the provisions of the Canadian Human Rights Act. [p. 301]

The function of the Board on appeal is to review the deputy head’s conduct leading to, and in, the recommendation to release the applicant, to determine whether it be lawful conduct in formulating a lawful proper recommendation. Had the Board member only assessed the evidence of what appears to be some effort by the deputy head to accommodate the physically incapable applicant pursuant to the CHRA’s requirements, then this Court would probably be dismissing this application. Instead, the Board rejected the applicant’s proper invitation to do that. In such rejection resides a reviewable error.

It seems that the respondent’s view is that the Act and the CHRA exist and operate in two hermetically sealed, water-tight compartments, as if two solitudes. What clearly connects their existence and operation are the fact that those who carry out the administration and functions of the Public Service Employment Act are bound, like their royal patron by the provisions—especially the employment provisions—of the Canadian Human Rights Act . So, the deputy head’s conduct is to be reviewed by the Board in light of the employment provisions and the judicially interpreted imperatives of the CHRA. There do not need to be two separate enquiries. The law leans against multiplicity of proceedings, for they frequently generate confusion, extra expense and extra time-consuming litigious efforts.

An applicant who received an appropriate deputy head’s decision subject to the duties and observances, indeed, subject to simultaneous compliance with the CHRA’s employment provisions would have little scope for a successful appeal to a board pursuant to section 31 of the Act. In the first instance, it is the deputy head’s compliance with the employment provisions of the CHRA—binding on Her Majesty—binding on the deputy head—which is the salient factor. It is an inescapable and important subject for review by the appeal board. It may well be that this function is one which appeal boards prefer to avoid in order to keep their adjudications simple, convenient and “neat”, but they cannot escape the Crown-binding force of subsection 66(1) of the CHRA. So, before an employee is released as a result of a work related disability, an appeal board must be satisfied that her employer did everything reasonable to try to accommodate her retention of a job. The applicant’s counsel is content with the Board as constituted.

The conundrum presented in the present case has its roots in Bhinder (above) and in Alberta Dairy Pool (above). Those of a minority religion and those over 60 years of age are not necessarily thereby incapacitated from doing their jobs. They can comply with their job descriptions when schedules are re-arranged, or physical tests prove positive. Here, the applicant Ms. MacNeill cannot do her job. But the imposition on her of the non-patently-discriminatory job description or its essential physical activities must surely be seen to be a BFOR, while equally and simultaneously constituting adverse effect discrimination as defined. So, this is not a case of finding adverse effect discrimination where there is a BFOR. Here, the very BFOR is itself the adverse effect discrimination as defined by the Supreme Court of Canada. In light of this conundrum, this Court will extend the Act and the CHRA to accommodate the applicant’s right to an adjudication by the Public Service Appeal Board pursuant to the CHRA’s application to her deputy head as interpreted by the Supreme Court of Canada.

For all the foregoing reasons, and despite this Court’s unease at enforcing wholly judge-made imperatives never included in the CHRA by Parliament, the Board’s decision herein, rendered September 1, 1992, is set aside and referred back to the same Board for reconsideration and disposition in a manner consistent with these reasons and with the Supreme Court’s requirements to assess accommodation efforts by the employer in regard to the employment provisions of the Canadian Human Rights Act. The Board is directed to consider the extent, if any, to which the deputy head’s recommended release of the applicant was violative, if at all, of her rights under the CHRA, and to adjudicate justly in accordance with the facts found and conclusions drawn thereon.

The Court appreciates the quality of the advocacy evinced by each side’s counsel.