Date: 20051012
Ottawa, Ontario, October 12, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER
BETWEEN:
Applicant
and
and
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER AND ORDER
[1] Mr. Beauregard is asking the Court to set aside the decision of the Canadian Human Rights Tribunal dismissing his complaint against his employer, Canada Post, because he had not established the existence of a disability, an essential element of his complaint based on a prohibited ground of discrimination (section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 [the Act]).
BACKGROUND
[2] Since this is an application for judicial review of the Tribunal’s decision and not an appeal, there is no need to relate all the facts described in the Tribunal’s decision.
[3] We will simply summarize the general situation as follows:
[4] Mr. Beauregard began working for Canada Post in 1993 and held various positions there, including those of driver, letter carrier and clerk. In August 1997, he was assigned to the evening shift in the automated area of the letter processing plant (LPP).
[5] He was temporarily assigned to the daytime relief crew at the bulk processing plant (BPP) from September 7, 1997, until September 14, 1998, when Canada Post asked him to return to his former position at the LPP in Saint Laurent. In fact, he did not do so, because he was absent on account of illness. He returned to work for a few hours on October 7, 1998, and then took more time off, owing to illness.
[6] On October 6, 1998, Mr. Beauregard consulted Dr. Payne for a sinus problem but also, according to him, for insomnia, lack of appetite and stress. Dr. Payne gave him a medical certificate, which he submitted to his employer on October 7, 1998. He was then asked to complete the appropriate documents in order to open a claim file with the Commission de la santé et de la sécurité du travail du Québec (CSST).
[7] From October 13 to 28, 1998, Canada Post attempted to reach the applicant by letter and by telephone in order to obtain additional information about his condition for the CSST. He was also asked to meet with Dr. Guérin for a medical assessment. For various reasons related in the decision, things dragged on, and Mr. Beauregard did not show up for the initial appointment with Dr. Guérin.
[8] However, on November 3, 1998, he reported to Canada Post to complete the CSST document. On November 6, 1998, he met with Dr. Guérin.
[9] According to Dr. Guérin, the applicant was uncooperative and refused to answer his questions, and the interview had to be terminated. Dr. Guérin testified before the Tribunal that the only clear statement by the applicant was that he could not work at the “automated plants”.
[10] On November 12, 1998, Canada Post suspended the applicant based on his attitude during the medical assessment. In a subsequent meeting on November 16, Canada Post informed Mr. Beauregard that it was still unaware of exactly what he wanted in terms of assignment or what his functional limitations were. The applicant mentioned that he would be seeing his physician again on November 19 and that, at that point, he would be better informed about his illness.[1]
[11] On November 18, Mr. Beauregard saw Dr. Luc Morin, a psychiatrist to whom he was referred by Dr. Payne. Dr. Morin concluded that the applicant was not able to work in the automated plants. Accordingly, on November 20, Mr. Beauregard submitted a redeployment application stating that he was suffering from a physical disability as a result of a health problem and that his application was supported by a medical certificate issued by Dr. Payne.
[12] On November 25, 1998, another meeting was scheduled to discuss his redeployment. Canada Post offered a transfer to a full-time clerk position in Matane. Mr. Beauregard declined the offer.[2]
[13] In December 1998, Canada Post asked Dr. Guérin and Dr. Payne to meet in order to discuss Mr. Beauregard’s case. The parties were unable to reach an agreement and on December 9, Canada Post ordered the applicant to return to work. On December 16, 1998, given Mr. Beauregard’s absence, Canada Post dismissed him, effective December 17, 1998.
[14] In an extremely detailed decision some 60 pages long, the Tribunal analysed all the material led in evidence,[3] including important medical evidence that included the testimonies of not only Dr. Payne and Dr. Guérin (named as an expert witness by Canada Post) but also Dr. Jacques Gagnon (named as an expert witness by Canada Post), Dr. Gérard Cournoyer and Dr. André Gamache (filed by the Human Rights Commission and the applicant).
[15] Dr. Morin did not testify. A single note that he prepared after attending an approximately 45-minute-long meeting was filed.
[16] Dr. Berthiaume, who holds a management position with Canada Post and deals specifically with CSST applications, also testified.
[17] After summarizing the evidence, the Tribunal held at paragraph 222 of its decision that, in the fall of 1998, “there was no evidence that the Complainant had symptoms of adjustment disorder with anxio-depressive mood or any other psychiatric symptoms and as such there is no disability within the meaning of the Act”.
[18] The Tribunal also found no evidence that the alleged stressor (described as an essential element by the doctors) existed (paragraphs 223 to 233).
[19] The Tribunal ended by stating that it was convinced that Mr. Beauregard was unhappy at a job that he found degrading and that the “plant” was a source of frustration and job dissatisfaction for him. However, the Tribunal continued, that did not justify the conclusion of a disability within the meaning of the Act. The Tribunal therfore dismissed the complaint.
ISSUES
[20] We should state at the outset that Mr. Beauregard indicated in his notice of application that the Commission had failed in its mandate to defend him by neglecting to name Dr. Gamache and Doctor Cournoyer as expert witnesses or to advise him that the settlement offer had been withdrawn.
[21] The Commission had obtained leave to intervene on these issues.
[22] However, at the hearing, after the Court informed him that, in the context of judicial review, it had no authority to consider issues of liability of a third party such as the Commission, the applicant agreed to withdraw any claims in that respect. He indicated that, in fact, he had not dealt with those points in his memorandum of fact and law. Therefore, the Commission was not heard.
[23] In his one-page memorandum, Mr. Beauregard simply stated that the Tribunal had ignored the testimony of Dr. Berthiaume and that this was a fatal flaw that justified setting aside the decision.
[24] At the hearing, Mr. Beauregard relied on other points raised in his notice of application for judicial review, arguing that the Tribunal had also erred in its assessment of the medical evidence by failing to take into consideration that
(i) Dr. Berthiaume had admitted to amending his notes on file, which is prohibited by the Collège des médecins;
(ii) Dr. Guérin had taken 15 minutes for his examination, contrary to the standard of the Collège des médecins; and
(iii) Dr. Gamache had forgotten to note in his medical report that Mr. Beauregard’s risk of relapse was 50 per cent plus one.
[25] Mr. Beauregard also argued that the Tribunal erred in finding Dr. Gagnon credible, even though, according to the applicant, Dr. Gagnon clearly attempted to exaggerate his case by insinuating the existence of a personality disorder when, in fact, it was simply a personality trait.
[26] Finally, Mr. Beauregard offered a new argument to the effect that the Tribunal had erred in failing to consider in its credibility assessment section 85 of the Code of ethics of physicians (2002 G.O.2.7354), to the effect that a physician must refrain from issuing to any person a false certificate or any information, either verbal or written, which he knows to be erroneous.
[27] The applicant acknowledged that, although the Code of ethics of physicians had been included in the Commission’s book of authorities, no one had raised the argument before the Tribunal, nor had this aspect been discussed during testimony or on cross-examination. Thus, there was no evidence to support the allegation that the Tribunal should have considered this provision or the impact of a breach of the Code of ethics of physicians in its assessment of the evidence.
[28] Accordingly, as was indicated in the hearing, the Court cannot consider this new argument.
ANALYSIS
[29] At paragraphs 34 to 46 of Quigley v. Ocean Construction Supplies Ltd., Marine Division, [2004] F.C.J. No. 786 (T.D.) (QL), Gibson J. conducted a pragmatic and functional analysis to determine the standard of review applicable to the Tribunal’s decisions. He concluded that the patent unreasonableness standard applies to the assessment of the facts, which includes the assessment of the credibility and probative value of testimony presented before him. Gibson J. applied the same standard in International Longshore and Warehouse Union (Local 400) v. Hoster, (2002) 2 F.C. 430 (F.C.T.D.), at paragraph 22.
[30] I concur with the analysis of my colleague and shall adopt that standard, which applies essentially to all the issues raised by Mr. Beauregard.
[31] On the question of Dr. Berthiaume’s testimony, it is clear that the Tribunal did not give it any specific weight or even discuss it in the assessment of the medical evidence. In so doing, the Tribunal committed no error, in this Court’s view, as the doctor did cover Mr. Beauregard’s medical condition in his testimony, which the Court read in full.
[32] Furthermore, although it is true that Dr. Berthiaume’s notes, that is, exhibits C-37 and C-38 filed with the Tribunal by Mr. Harrington, contain some differences, there is nothing to indicate that anything was falsified. On the contrary, Canada Post filed and voluntarily disclosed these exhibits. The notes were wholly irrelevant to the Tribunal’s decision as to whether or not there was a disability. Accordingly, even if the Tribunal had erred on this issue, this would on no account have justified the Court’s intervention.
[33] As for the defects raised by Mr. Beauregard in respect of the assessment of Dr. Guérin’s testimony, this Court notes that the Tribunal stated at paragraph 105 of the decision that the interview with the doctor lasted no longer than 15 or 20 minutes, and at paragraph 117 that Dr. Guérin concluded that the brief examination did not allow him to arrive at a psychiatric diagnosis. The Court is satisfied that the Tribunal did not disregard the evidence and considered the duration of the interview in its assessment.
[34] With regard to Dr. Gagnon’s testimony, the Tribunal noted at paragraph 183 that, while the doctor did not detect major personality disorder during his examination, he did make some observations about the complainant’s personality: coldness, rigidity in his thinking and distrust. The Tribunal subsequently noted at paragraph 186 that the witness used the expression “probably” when he stated that the applicant had a personality disorder, because he did not have all the information at hand for deciding the matter. The Tribunal noted: “He said that by personality problem, he was referring to a conflict that was still unresolved. However, he indicated that he did not mean a personality disorder when he spoke of a personality problem”.
[35] Finally, at paragraph 187, the Tribunal stated that Dr. Gagnon concluded that, although Mr. Beauregard could be experiencing minor adjustment difficulties, they did not constitute an illness.
[36] The Court is satisfied that the Tribunal did not commit a reviewable error in its assessment of that witness’ testimony on this question.
[37] Finally, after reviewing the transcript of Dr. Gamache’s testimony, while it is true that he indicated in response to a question from the Tribunal Chairperson that the risk of relapse was 50 per cent plus one, he was never asked and never agreed to include that detail in his report.
[38] At paragraph 136 of the decision, the Tribunal specifically refers to the risk of relapse mentioned by Dr. Gamache. The Court is satisfied that the Tribunal did not disregard any evidence in this respect.
[39] In his reply, Mr. Beauregard acknowledged that any other errors pointed out in his notice of application for judicial review could be called [TRANSLATION] “challenges to the probative value given to certain witnesses by the Tribunal”.
[40] The Court closely examined each and every exhibit filed by the applicant and is not persuaded that the Tribunal’s decision is unreasonable. It is certainly not patently unreasonable.
[41] As I explained at the hearing, the Court cannot substitute its own assessment of the testimony for that of the Tribunal. The applicable standard of review imposes a heavy burden that Mr. Beauregard could not discharge.
[42] Under the circumstances, the application for judicial review must be dismissed.
[43] Canada Post asked the Court to allow its costs. The respondent submitted a draft bill of costs for a total of $2,831.18. After having considered the circumstances as a whole and exercising my discretion under section 400 of the Federal Courts Rules, the Court sets costs at $950 overall (including disbursements).
ORDER
THE COURT ORDERS that:
1. The application for judicial review be dismissed with costs.
2. The respondent’s costs are set at a total amount of $950.
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-386-04
STYLE OF CAUSE:
MICHEL BEAUREGARD
-and-
CANADA POST
-and-
CANADIAN HUMAN RIGHTS COMMISSION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 15, 2005
REASONS FOR ORDER: THE HONOURABLE MADAM JUSTICE GAUTHIER
APPEARANCES:
Michel Beauregard FOR THE APPLICANT(S)
6080 Goncourt Street
Anjou, Quebec H1K 3X4
Marc Santerre FOR THE RESPONDENT(S)
Philippe Dufresne
SOLICITORS OF RECORD:
None FOR THE APPLICANT(S)
Jodoin Santerre FOR THE RESPONDENT(S)
Room 352
1000 De la Gauchetière Street West
Montréal, Quebec H3B 5B7
Canadian Human Rights Commission
Canada Building
344 Slater Street, 9th floor
Ottawa, Ontario K1A 1E1
[1] The facts show that, after October 6, 1998, the applicant saw his general practitioner, Dr. Payne, on October 13 and 20 and on November 3 and 19. Dr. Payne found that the applicant was suffering from reactive depression.
[2]It appears from the decision that Mr. Beauregard had applied for a transfer on several previous occasions. However, all the applications entered into evidence before the Tribunal, other than the one dated November 20, were dated May 16, 1997, that is, over a year before the meeting of November 25, 1998. The Tribunal was not asked to deal with the November 20 transfer application directly. The Tribunal also indicates that a grievance was filed based on the application.
[3] Note that the Tribunal commented in general terms on Mr. Beauregard’s credibility as a witness. At paragraph 194 of its decision, it stated that, without challenging his honesty in other respects, Mr. Beauregard did not seem to be a credible witness at the hearing. The Tribunal offered several examples in support of this conclusion.