Sketchley v. Can. (A.G.) (2005), 344 N.R. 257 (FCA)
MLB headnote and full text
Temp. Cite: [2005] N.R. TBEd. DE.063
The Attorney General of Canada (appellant) v. Diane Sketchley (respondent)
(A-480-04; 2005 FCA 404)
Indexed As: Sketchley v. Canada (Attorney General)
Federal Court of Appeal
Décary, Linden and Sexton, JJ.A.
December 9, 2005.
Summary:
Sketchley filed two complaints with the Canadian Human Rights Commission concerning her alleged forced retirement from the public service. Both complaints alleged discrimination on the ground of disability. The first complaint, against the Treasury Board of Canada (TB), alleged that the TB’s policy on leave without pay for medical reasons was discriminatory against disabled workers. The second complaint, against her employer Human Resources Development Canada (HRDC), alleged failure to accommodate her disability and discriminatory application of the TB policy in her case. The Commission dismissed the complaints pursuant to s. 44(3) of the Canadian Human Rights Act. Sketchley applied for judicial review of the Commission’s decision.
The Federal Court allowed the application (2004 FC 1151). The Attorney General of Canada appealed.
The Federal Court of Appeal dismissed the appeal. The court referred the matter back to the Commission for Sketchley’s complaints to be reviewed by a different investigator in a manner consistent with the court’s reasons.
Administrative Law – Topic 3202
Judicial review – General – Scope or standard of review – [See
Administrative Law – Topic 9102
].
Administrative Law – Topic 9102
Boards and tribunals – Judicial review – Standard of review – The Federal Court of Appeal stated that “the pragmatic and functional analysis must be undertaken anew by the reviewing court with respect to each decision of an administrative decision-maker, not merely each general type of decision of a particular decision-maker under a particular provision. The pragmatic and functional analysis does not apply, however, to allegations concerning procedural fairness, which are always reviewed as questions of law” – See paragraph 46.
Administrative Law – Topic 9105
Boards and tribunals – Judicial review – Question of law – Sketchley filed a complaint with the Canadian Human Rights Commission, alleging that the Treasury Board of Canada’s policy on leave without pay for medical reasons was discriminatory against disabled workers – The Commission dismissed the complaint pursuant to s. 44(3) of the Canadian Human Rights Act -Sketchley applied for judicial review – The application was allowed – The applications judge analyzed the Commission’s decision as hinging on a question of law, namely whether the complaint established a prima facie case of discrimination – On appeal, the Federal Court of Appeal stated that while the determination as to whether prima facie discrimination had been established would in some cases be a question of mixed fact and law, the applications judge correctly identified the question as one of law in this case – The Commission had determined that the policy in question, in the abstract, could not disclose a prima facie case of discrimination – The Commission’s analysis did not engage the particularities of Sketchley’s circumstances – See paragraphs 58 to 61.
Civil Rights – Topic 989
Discrimination – Employment – On basis of physical or mental disability – Sketchley filed a complaint with the Canadian Human Rights Commission, alleging that the Treasury Board (TB) of Canada’s policy on leave without pay for medical reasons was discriminatory against disabled workers – The Commission dismissed the complaint pursuant to s. 44(3) of the Canadian Human Rights Act – Sketchley applied for judicial review – The application was allowed – The applications judge found that the TB policy constituted prima facie discrimination as it differentiated on two bases – First, since the policy requirement to resolve leave without pay situations within two years of the leave’s commencement applied only in cases of illness and injury, the policy differentiated between those who took leave without pay because of medical disability and those who took such leave for other reasons – Second, the policy differentiated on the basis of the degree of disability, between those who could confirm their date of return to work at the two year point, and those who could not – The Crown appealed – The Federal Court of Appeal dismissed the appeal – The court agreed with the applications judge’s finding of prima facie discrimination – See paragraphs 86 to 92.
Civil Rights – Topic 998
Discrimination – Employment – Exceptions – Bona fide or reasonable occupational requirement or qualification – Sketchley filed a complaint with the Canadian Human Rights Commission, alleging that the Treasury Board (TB) of Canada’s policy on leave without pay for medical reasons was discriminatory against disabled workers – The Commission dismissed the complaint pursuant to s. 44(3) of the Canadian Human Rights Act – Sketchley applied for judicial review – The application was allowed – The applications judge found that the TB policy constituted prima facie discrimination – The Crown appealed – The Federal Court of Appeal dismissed the appeal – The court agreed with the applications judge’s finding of prima facie discrimination – The court rejected the Crown’s argument that although the Commission did not consider the bona fide occupational requirement (BFOR), the Commission’s conclusion should nevertheless be upheld because the TB policy necessarily and implicity reflected a BFOR that accommodated to the point of undue hardship – The Commission had not considered the BFOR test and rendered no decision on that question – In those circumstances, the requirements of the BFOR test had not been established, and the court would not impute them – See paragraphs 93 to 95.
Civil Rights – Topic 999.7
Discrimination – Employment – Sick leave or disability benefits – [See
Civil Rights – Topic 989
].
Civil Rights – Topic 999.7
Discrimination – Employment – Sick leave or disability benefits – Sketchley filed a complaint with the Canadian Human Rights Commission, alleging that the Treasury Board (TB) of Canada’s policy on leave without pay for medical reasons was discriminatory against disabled workers – The Commission dismissed the complaint pursuant to s. 44(3) of the Canadian Human Rights Act – Sketchley applied for judicial review – The application was allowed – The applications judge found that the TB policy constituted prima facie discrimination – The Crown appealed, arguing that the applications judge erred in not following decisions of the Federal Court in Scheuneman v. Can (A.G.), which dealt with the same policy under attack in this case – Based on the Scheuneman decisions, the Crown argued that it would be nonsensical for a policy that was found to be non-discriminatory under s. 15 of the Charter to be found to be discriminatory under ss. 10 and 15 of the Act – The Federal Court of Appeal stated that while one might expect a certain degree of consistency between decisions on similar facts under s. 15 of the Charter and ss. 10 and 15 of the Act, the jurisprudence had not established that they need always be identical – However, the court stated that it need not decide the issue – There were grounds to distinguish Scheuneman – The applications judge was correct in finding that the policy was prima facie discriminatory – See paragraphs 96 to 109.
Civil Rights – Topic 7046
Federal, provincial or territorial legislation – Commissions or boards – General – Duty of fairness – Sketchley filed a complaint with the Canadian Human Rights Commission, alleging discrimination on the ground of disability by her employer Human Resources Development Canada (HRDC) – The complaint alleged failure to accommodate her disability and discriminatory application of the Treasury Board of Canada’s policy on leave without pay for medical reasons – The Commission dismissed the complaint pursuant to s. 44(3) of the Canadian Human Rights Act – Sketchley applied for judicial review – The application was allowed – The applications judge found that the investigation of the complaint lacked thoroughness and constituted a breach of the duty of fairness – The Crown appealed – The Federal Court of Appeal dismissed the appeal – The court considered the content of the duty of fairness required in this case – The court concluded that the investigative omissions identified by the applications judge were sufficient to constitute a breach of the duty of fairness and warranted quashing the Commission’s decision – See paragraphs 110 to 125.
Civil Rights – Topic 7114
Federal, provincial or territorial legislation – Practice – Investigation of complaint (incl. report) – [See
Civil Rights – Topic 7046
].
Civil Rights – Topic 7114
Federal, provincial or territorial legislation – Practice – Investigation of complaint (incl. report) – Sketchley filed two complaints of discrimination with the Canadian Human Rights Commission – The Commission dismissed the complaints pursuant to s. 44(3) of the Canadian Human Rights Act – Sketchley applied for judicial review – The application was allowed – The applications judge stated that “given the brevity of the [Commission’s] decision … its reasons must be taken to be those of the investigator’s reports, whose recommendations and reasoning are reflected in the decision” – On appeal, the Federal Court of Appeal held that the applications judge did not err in finding that the Commission’s reasoning to support its decision could be found by reference to the investigator’s reports – The court stated that “When the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons, the courts have rightly treated the investigator’s report as constituting the Commission’s reasoning for the purpose of the screening decision under s. 44(3)” – See paragraphs 18 to 39.
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review (incl. standard of review) – The Federal Court of Appeal stated that since different decisions called for different levels of deference, it was not unsurprising that the court had applied various standards of review to various decisions taken under s. 44(3) of the Canadian Human Rights Act regarding whether to refer a complaint for inquiry – The court stated that “what would be surprising would be unanimity on the appropriate standard of review. Such a consensus might indicate slavish deference to precedent, as opposed to careful and nuanced applications of the pragmatic and functional approach on a case-by-case basis. Indeed, regardless of the standard adopted in these proceedings, future courts reviewing subsection 44(3) decisions must apply the pragmatic and functional approach anew” – See paragraph 45.
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review (incl. standard of review) – Sketchley filed two complaints with the Canadian Human Rights Commission, alleging discrimination on the ground of disability – The first complaint, against the Treasury Board of Canada (TB), alleged that the TB’s policy on leave without pay for medical reasons was discriminatory against disabled workers – The second complaint, against her employer Human Resources Development Canada, alleged failure to accommodate her disability and discriminatory application of the TB policy in her case – The Commission dismissed the complaints pursuant to s. 44(3) of the Canadian Human Rights Act – Sketchley applied for judicial review – The application was allowed – The Crown appealed – The Federal Court of Appeal stated that although the standard of review enunciated by the applications judge at the beginning of his analysis (reasonableness simpliciter) was not the appropriate one, he applied the correct standard of review in his reasons where he appeared to have ultimately applied the standard of correctness – See paragraphs 40 to 43.
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review (incl. standard of review) – The Federal Court of Appeal stated that “Typically, a screening decision of the [Canadian Human Rights] Commission under section 44(3) of the [Canadian Human Rights] Act involves a determination of a question of fact or of mixed fact and law. In such cases, the heavily fact-specific nature of the decision at issue creates little precedential value. The standard of review of patent unreasonableness or reasonableness simpliciter will, all else being equal, likely be the appropriate outcome of the pragmatic and functional analysis in such cases. However, if as in this case, the screening decision of the Commission engages a question of law with general precedential value, and/or raises an issue of procedural fairness, the appropriate standard of review might be correctness” – See paragraph 47.
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review (incl. standard of review) – Sketchley filed a complaint with the Canadian Human Rights Commission, alleging discrimination on the ground of disability by the Treasury Board of Canada (TB) – The complaint alleged that the TB’s policy on leave without pay for medical reasons was discriminatory against disabled workers – The Commission dismissed the complaint pursuant to s. 44(3) of the Canadian Human Rights Act – Sketchley applied for judicial review – The application was allowed – The Crown appealed – The Federal Court of Appeal stated that the question at issue in reviewing the Commission’s decision had been identified as the legal question of whether the TB policy was prima facie discriminatory – The court applied the pragmatic and functional analysis and determined that the standard of review applicable to the Commission’s decision was correctness – See paragraphs 58 to 81.
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review (incl. standard of review) – Sketchley filed a complaint with the Canadian Human Rights Commission, alleging discrimination on the ground of disability by her employer, Human Resources Development Canada – The complaint alleged a failure to accommodate her disability and discriminatory application of a Treasury Board policy on leave without pay for medical reasons – The Commission dismissed the complaint pursuant to s. 44(3) of the Canadian Human Rights Act -Sketchley applied for judicial review – The application was allowed – The Crown appealed – The Federal Court of Appeal stated that since Sketchley’s challenge to the Commission’s decision concerned the manner in which the Commission arrived at its decision, namely the thoroughness of the Commission’s investigation, the Commission’s decision was to be reviewed as a matter of procedural fairness to which the pragmatic and functional analysis did not apply – See paragraphs 82 to 84.
Cases Noticed:
Scheuneman v. Canada (Attorney General), [2000] 2 F.C. 365; 176 F.T.R. 59 (T.D.), affd. (2000), 266 N.R. 154 (F.C.A.), consd. [para. 21].
Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), refd to. [para. 37].
Syndicat des employés de production du Québec et de l’Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 37].
Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al., [1999] 1 F.C. 113; 233 N.R. 87; 167 D.L.R.(4th) 432 (F.C.A.), refd to. [para. 37].
Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47; 2001 FCA 93, refd to. [para. 37].
Slattery v. Canadian Human Rights Commission, [1994] 2 F.C. 574; 73 F.T.R. 161 (T.D.), affd. (1996), 205 N.R. 383 (F.C.A.), refd to. [para. 38].
Connolly v. Canada Post Corp., [2002] F.T.R. Uned. 408; 2002 FCT 185, affd. [2003] N.R. Uned. 14; 2003 FCA 47, refd to. [para. 38].
Bradley v. Canada (Attorney General) (1999), 238 N.R. 76 (F.C.A.), refd to. [para. 44].
Gee v. Minister of National Revenue (2002), 284 N.R. 321; 2002 FCA 4, refd to. [para. 44].
Singh (S.K.) v. Canada (Attorney General) (2002), 291 N.R. 365; 2002 FCA 247, refd to. [para. 44].
Tahmourpour v. Canada (Solicitor General) (2005), 332 N.R. 60; 2005 FCA 113, refd to. [para. 44].
Gardner v. Canada (Attorney General) (2005), 339 N.R. 91; 2005 FCA 284, refd to. [para. 44].
St-Onge v. Canada, [2000] N.R. Uned. 169 (F.C.A.), refd to. [para. 44].
Murray v. Canadian Human Rights Commission, [2003] N.R. Uned. 96; 2003 FCA 222, refd to. [para. 44].
Elkayam v. Canada (Attorney General) (2005), 349 N.R. 305; 2005 FCA 101, refd to. [para. 44].
Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 48].
Dr. Q. v. College of Physicians and Surgeons (B.C.) – see Dr. Q., Re.
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, addendum [1998] 1 S.C.R. 1222, refd to. [para. 50].
Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 50].
Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 52].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 54].
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 54].
Bourgeois v. Canadian Imperial Bank of Commerce et al., [2000] N.R. Uned. 223 (F.C.A.), refd to. [para. 55].
Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 56].
Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 59].
Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 65].
Syndicat national des employés de la Commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 65].
Union des employés de service, local 298 v. Bibeault – see Syndicat national des employés de la Commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).
Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 65].
Pezim v. British Columbia (Superintendent of Brokers) – see Pezim v. British Columbia Securities Commission et al.
Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l’Immigration) (2005), 335 N.R. 229; 2005 SCC 40, refd to. [para. 66].
Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 72].
Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 72].
Ross v. New Brunswick School District No. 15 – see Attis v. Board of Education of District No. 15 et al.
Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 79].
Zündel v. Canada (Attorney General) et al. (2000), 267 N.R. 92 (F.C.A.), refd to. [para. 79].
Latif v. Canadian Human Rights Commission and Fairweather, [1980] 1 F.C. 687; 28 N.R. 494 (F.C.A.), refd to. [para. 80].
Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 86].
Meiorin – see Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees’ Union.
Human Rights Commission (Ont.) and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 86].
Canadian Human Rights Commission v. Toronto-Dominion Bank et al., [1998] 4 F.C. 205; 229 N.R. 135 (F.C.A.), refd to. [para. 87].
Scheuneman v. Canada (Attorney General) (2004), 268 F.T.R. 1; 2004 FC 1157, consd. [para. 96].
Fetherston v. Canadian Food Inspection Agency (2005), 332 N.R. 113; 2005 FCA 111, leave to appeal refused (2005), 348 N.R. 196 (S.C.C.), refd to. [para. 113].
Canada (Attorney General) v. Fetherston – see Fetherston v. Canadian Food Inspection Agency.
Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407; 55 N.R. 384, refd to. [para. 114].
Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 117].
Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 125].
Gale v. Canada (Treasury Board) (2004), 316 N.R. 395; 2004 FCA 13, refd to. [para. 125].
Statutes Noticed:
Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 44(3) [para. 62].
Counsel:
Jan Brongers, for the appellant;
Andrew Raven, for the respondent.
Solicitors of Record
:
John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;
Raven Allen, Vancouver, British Columbia, for the respondent.
This appeal was heard on September 15, 2005, at Vancouver, British Columbia, before Décary, Linden and Sexton, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Linden, J.A., on December 9, 2005.
