Date: 20030710
Docket: T-2226-01
Citation: 2003 FC 861
BETWEEN:
LEWIS GLENN DAWE
Applicant
- and -
THE ROYAL CANADIAN MOUNTED POLICE
Respondent
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of a decision of the Canadian Human Rights Commission (the "Commission") dated November 5, 2001, dismissing the applicant's complaint made pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 as amended (the "Act"). The applicant, a former member of the Royal Canadian Mounted Police, claims he was discriminated against on the basis of a physical disability he suffered in the course of his employment. The Commission dismissed the complaint without a hearing before a tribunal.
[2] The applicant argues that the Commission acted unreasonably by relying on the March 15, 2001 report of Ms. Linda Ackroyd, a human rights investigator appointed by the Commission. It is the applicant's position that the report is flawed because the investigator:
(3) failed to consider all of the relevant evidence;
(4) breached procedural fairness by failing to provide full disclosure and a chance to respond to the applicant;
(5) failed to conduct a thorough investigation;
(6) made unreasonable findings of fact;
(7) decided issues of credibility in favour of the RCMP without a hearing by a tribunal; and,
(8) demonstrated bias.
FACTS
[3] The applicant was a member of the RCMP from October 20, 1978 to February 12, 1981, and from October 10, 1986 to April 20, 1995. During his tenure with the RCMP, the applicant suffered injuries that resulted in a permanent back injury. In 1990, while working for the RCMP's "F" Division in Milestone, Saskatchewan, the applicant was granted an educational leave without pay ("LWOP"). During his LWOP, the applicant attended university in his native Newfoundland and also in Nova Scotia.
[4] The applicant's LWOP was set to expire in 1992 and at that time he requested an inter-divisional transfer to "H" Division, the division which covers the Atlantic provinces. His request was refused due to an operational need for staff in the "F" Division and the large number of outstanding requests for transfers to the "H" Division. He was informed by the RCMP that employees who take LWOP are expected to return to work in the same division where they were posted prior to taking their leave.
[5] The applicant renewed his LWOP and continued studying for his Bachelor of Arts degree. In 1993 he obtained summer employment with an operational detachment of the RCMP in Placentia, Newfoundland. During the summer, the applicant took sick leave that lasted from June 21, 1993 until August 20, 1993. While he was on sick leave, his supervisor recommended that his assignment be terminated because he was unable to perform operational duties. The RCMP did not grant that request and instead found the applicant an office job in St. John's, Newfoundland, for the balance of the summer. The applicant later sought employment for the summer of 1995 with the RCMP in Halifax, but was informed in a letter dated March 27, 1995 that the respondent was unable to offer him a position because of his "expressed medical concerns" and his experience while on summer employment during 1993.
[6] On September 21, 1994, the applicant applied for a position with the Newfoundland Liquor Commission. As part of the hiring process, the Liquor Commission contacted the RCMP for a reference check in late October 1994. A Staff Sargent with the RCMP inappropriately released personal information regarding the applicant's health problems as part of the reference check. The applicant believed that he was not offered a position with the Liquor Commission as a result of that information and filed a complaint with the Newfoundland Human Rights Commission. A Board of Inquiry decided in his favour and that decision is now under appeal before the Newfoundland Court of Appeal. The RCMP apologized for its action and on August 26, 1997 the RCMP Public Complaints Commission concluded the respondent had properly disposed of the complaint.
[7] The LWOP could not be further extended so in January 1995 the applicant was advised that he had to return to his detachment in Milestone, Saskatchewan upon the expiration of his LWOP in May 1995. The applicant replied that because of his disability he was unfit to return to the Milestone detachment.
[8] The applicant was seen by Dr. J.A. Bessel, a designated physician with the RCMP's "B" Division, for a periodic health assessment on March 10, 1995. Dr. Bessel placed the following restrictions upon the applicant:
... no confrontation, no prolonged sitting/standing, and no lifting greater than 15 pounds.
In his report Dr. Bessel did not indicate whether the applicant was fit to fly to Saskatchewan so he met the applicant again on April 28, 1995 to explore the issue. Dr. Bessel determined that the applicant was fit to fly and
... discussed at some length with member regarding his options.
Dr. Bessel also contacted the RCMP's "H" Division to ensure that the medical facilities existed in Saskatchewan to adequately address the applicant's needs. He was informed that the needed facilities exist in Regina, which is 80 kilometres from Milestone.
[9] On April 24, 1995 the applicant requested sick leave stating that his doctor has classified him as "medically unfit for duty at this time". Based on the report of Dr. Bessel from his medical examination dated March 10, 1995 referred to above, the respondent sent the applicant a memorandum dated April 25, 1995 which states as follows:
After a review of your Medical Profile dated 95APR06 and discussion between the A. HSO, "F" Division and the HSO for "B" Division it has been determined that there is no medical reason preventing you from returning to "F" Division.
You are expected to report, in person, to the NCO in charge of Milestone Detachment on or before 95MAY01 in compliance with your ordered transfer. After this requirement is met you will be expected to meet with your Officer Commanding and you may also wish to meet with the "F" Division Health Services Officer.
You will not be entered on the RCMP Pay System until you have returned to this division and have complied with the conditions outlined above. Your Medical Profile reveals that while restricted, there are duties you can be expected to perform. Your profile will be re-assessed periodically by the "F" Division Health Services Officer to ensure you are tasked commensurately.
[10] The applicant's medical file, as summarized in a memorandum dated August 7, 1998, discloses that the applicant approached a family doctor on April 28, 1995 seeking a letter that he would be unable to travel to Saskatchewan. The family doctor did not comply with the applicant's wishes. Dr. Bessell met with the applicant on April 28, 1995 and reported that there was no medical reason he could not fly. The applicant also met with another general practitioner, Dr. Button, with respect to respiratory difficulties. The applicant was seen by a respiratory specialist, Dr. Duguid, who reported on April 19 and April 27, 1995 that there was no significant respiratory problem.
[11] It was obviously after not being able to obtain a medical opinion that he was unfit to fly to Saskatchewan and that he did not have a significant respiratory problem that the applicant, on April 28, 1995 wrote a memorandum stating:
Please be advised that I wish to voluntarily terminate my employment with The Royal Canadian Mounted Police, effective as of 12:00 hours 1995 April 30 ...
[12] To complete the medical evidence on file, Dr. Eustace, another R.C.M.P. physician, reported on May 2, 1995 an improvement in the applicant's condition and "suspended all treatments". Dr. Bessell, in a follow-up examination of the applicant on May 12, 1995, noted improvement in the applicant's condition and discontinued neck collar use. The applicant was instructed on a home exercise program and advised that he needed only short term physiotherapy and reduced medications.
[13] On July 4, 1997, the applicant filed a complaint with the Commission alleging discrimination by the RCMP on the basis of physical disability. The applicant alleged that the RCMP had failed to accommodate his disability and had demonstrated a pattern of discriminatory acts against him. He set out four specific incidents of discrimination based on his disability:
(9) the refusal of the RCMP to accommodate his disability leading to his constructive dismissal;
(10) the recommendation that his 1993 summer employment be terminated because he was on sick leave;
(11) the refusal to offer him summer employment in1995 due to the sick leave he had taken in the summer of 1993; and
(12) the improper release of personal information to the Liquor Commission.
[14] In a report dated August 4, 1997, Ms. Sandra Smith Muir, a Human Rights Officer with the Commission recommended that the Commission dismiss the complaint because the events in question had occurred more than one year before the receipt of the complaint. Her recommendation was not accepted by the Commission and Ms. Catherine Craig was appointed to investigate the complaint. The file was turned over to Ms. Akroyd on February 15, 2000 for completion of the investigation.
[15] On March 15, 2001, Ms. Akroyd recommended the Commission dismiss the applicant's complaint. It was her view that the evidence did not support a finding that the RCMP had failed to accommodate the applicant's disability, nor did it demonstrate the existence of a pattern of discriminatory acts against the applicant. The Commission reviewed the investigator's report, accepted further submissions from the parties and decided to dismiss the applicant's compliant pursuant to paragraph 44(3)(b) of the Act.
RELEVANT LEGISLATION
[16] Paragraph 44(3)(b) of the Act is relevant to this application for judicial review. To gain a full understanding of that paragraph it is necessary to set out a significant portion of section 44:
Report
44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
Action on receipt of report
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a
procedure provided for under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
Idem
(3) On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
Rapport
44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
Suite à donner au rapport
(2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas:
a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale.
Idem
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission:
a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue:
(i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié,
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
[...]
[Emphasis added.]
(ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
b) rejette la plainte, si elle est convaincue:
(i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié,
(ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e).
[...]
STANDARD OF REVIEW
[17] In order to resolve the issues involving the Commission's findings of fact and credibility, it is necessary to select an appropriate standard of review. Strayer J.A. recently discussed the selection of the appropriate standard of review appropriate to be applied when the Commission dismisses a complaint under s. 44(3)(b) of the Act in Gee v. M.N.R., 2002 FCA 4 at para.13:
[T]his Court in Zundel v. Attorney General of Canada et al ((2000), 267 N.R. 92 at para. 5) endorsed a Trial Division decision ([1999] 4 F.C. 289, at paras. 46-49) that the standard of judicial review of a decision of the Commission under section 44, to refer a matter after investigation to a tribunal, should be that of a determination as to whether there was a rational basis for the decision. In Bradley v. Attorney General of Canada ((1999), 238 N.R. 76) this Court held that the standard of review of a decision taken by the Commission under subsection 44(3) of the Act to dismiss a complaint instead of appointing a conciliator was that of reasonableness. I respectfully concur with my colleagues in this respect and accept that the standard of review for the exercise of the discretion provided in subparagraph 44(3)(b)(i) to dismiss a complaint is that of reasonableness.
[18] Both parties agreed that Strayer J.A.'s comments in Gee are applicable to the case at bar. Therefore, the standard of reasonableness will be used to review the Commission's findings of fact and credibility.
ANALYSIS
1. Failure to Consider Relevant Evidence
[19] The applicant submits the investigator's conclusion that the respondent would have accommodated the applicant upon his arrival in Milestone is contrary to the evidence that was before her. He argues that the respondent's position in 1995 was that he did not have disability and was capable of performing operational policing duty and only later did it the change its position and state that it would have accommodated the applicant if he had accepted the assignment.
[20] In support of his argument the applicant relies upon the following statements contained in a letter dated August 18, 1998 from Mr. Dieter Schachhuber, OIC Official Languages & Diversity Management Branch of the RCMP, to Ms. Craig:
The RCMP takes exception to the statement made by Ex-Cst. Dawe that the RCMP refused to continue to employ him. This is not true. Prior to his return to full duties he was contacted and offered a posting to Milestone Detachment. The medical aspect which was raised by Dawe was explored and as a result the RCMP was satisfied that Dawe was medically fit to return to operational duties and reaffirmed the original assignment. One must remember that it was Ex-Cst. Dawe who made the decision to voluntarily resign from the RCMP.
[...]
In your letter of 98-06-30 the issue of reasonably accommodating Ex-Cst. Dawe into an administrative/instructional position which would be more suitable to his medical restrictions than operational duties was identified. I wish to repeat that as far as operational as the RCMP was concerned was not restricted from performing operational duties and was posted to Milestone Detachment. Please be advised that at the time Ex-Cst. Dawe was scheduled to return to active duties on 95-05-01 and there was a priority requirement to staff the 40 operational vacancies which existed in that division.
[Italics added, bolding and underlining in original.]
[21] The applicant argues that discrepancies between opinions from the RCMP's Medical Advisor, dated August 7, 1998 and April 12, 2000 respectively, demonstrate the RCMP's change in tactics. The applicant interprets the first opinion as stating that the applicant is fit for operational duties, while the second acknowledges that he would have been required to perform only "restricted duties."
[22] The respondent contends that a full and proper review of the RCMP's written responses demonstrates that the RCMP was aware of the applicant's medical restrictions in April 1995, but was of the opinion that they were not sufficient to preclude him from reporting for duty in Milestone and assuming the duties he was capable of performing. The memorandum to the applicant dated April 25, 1995 from the respondent is the best evidence. It is the material and most probative evidence of the respondent's position with respect to the applicant's medical condition. As stated above, it reads in part:
You are expected to report, in person, to the NCO in charge of Milestone Detachment on or before 95MAY01 in compliance with your ordered transfer. After this requirement is met you will be expected to meet with your Officer Commanding and you may also wish to meet with the "F" Division Health Services Officer.
You will not be entered on the RCMP Pay System until you have returned to this division and have complied with the conditions outlined above. Your Medical Profile reveals that while restricted, there are duties you can be expected to perform. Your profile will be re-assessed periodically by the "F" Division Health Services Officer to ensure you are tasked commensurately.
[Underlining added.]
[23] The investigator accepted that the respondent's position that it would have accommodated the applicant once he arrived in Saskatchewan. This was a finding of fact. I have not been persuaded that it was unreasonable or that in coming to this finding the investigator ignored relevant evidence. There was a great deal of evidence and correspondence between the investigator and the parties in this case and she could not be expected to refer to each piece of evidence in her decision. As Nadon J. stated in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 at para. 48 (T.D.), aff'd (1996), 205 N.R. 383 (F.C.A.):
Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
[24] Nadon J. continued this line of reasoning at paragraph 59:
I also find support for the above approach in the holding of the Supreme Court of Canada in Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471.. . In his reasons for decision, Lamer C.J. stressed that the arbitrator did not necessarily violate the principles of natural justice by erroneously excluding relevant evidence; however where such evidence is significant to the outcome of the case (i.e. in this sense it is fundamental), review would be warranted. In the words of the Chief Justice (at page 491):
A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.
[25] The 1998 letter of Mr. Schachhuber does not fall within the category of "obviously crucial evidence" identified by Nadon J. Nor can it be said that the letter is of such importance that its consideration would have significantly changed the outcome of the case. At issue was the treatment accorded to the applicant in 1995. Mr. Schachhuber's interpretation of the events three years later was merely one source of evidence that the investigator had to rely upon, and it was obviously mistaken. It was reasonable for the investigator to place greater weight on the RCMP memorandum of April 25, 1995, which the investigator specifically referred to at page 5 of her decision, as it represented a contemporaneous account of the RCMP's position.
[26] The Schachhuber letter dated August 18, 1998 to the Canadian Human Rights Commission investigator was clearly wrong in stating that the applicant was not restricted from performing operational duties. This was not the position of the R.C.M.P. in 1995 as set out by the R.C.M.P. in its memorandum to the applicant in 1995. The opposite was the case. The R.C.M.P. recognized that the applicant was restricted from performing regular duties; i.e. no confrontation, no sitting or standing for long periods of time, and no lifting. This obviously meant that the applicant could not operate on patrol in a police car, and could not be expected to confront any person. Obviously the applicant would be given administrative assignments in an office and not expected to lift any weight over 15 pounds.
[27] Further, the medical opinions of August 7, 1998 and April 12, 2000 do not vary significantly in substance. When read as a whole, it can be seen that the alleged inconsistencies between the opinions are minor. In any event, these opinions were reviews of the applicant's file conducted several years after the incidents in question occurred. Ms. Akroyd had access to the medical reports that the RCMP's Medical Advisors relied upon when conducting their reviews and referred to them throughout her reasons. I am satisfied that she considered the relevant, best, and most probative evidence regarding the applicant's medical condition and did not err by not mentioning the alleged inconsistency on the file created three years after the material time, i.e. April, 1995.
2. Procedural Fairness
[28] The respondent provided a written response to the applicant's human rights complaint on August 18, 1998. On November 5, 1998, Ms. Craig wrote to the applicant and advised him of the respondent's submissions. Rather than provide the applicant with a copy of the respondent's written response, she made a list of the points raised the respondent and asked the applicant to respond. Included in the respondent's written response was the medical opinion of the RCMP's Medical Advisor dated August 7, 1998. The applicant did not obtain a copy of this opinion until the summer of 2002 when he made an access to information request. The applicant alleges that his right to procedural fairness was beached because he was not aware of the respondent's initial opinion that he was medically fit for duty or the conflicting medical reports.
[29] The jurisprudence establishes that before it makes a decision to deny a complaint, the Commission must provide the complainant with the substance of the evidence obtained by the investigator: Radulesco v. Canada (Canadian Human Rights Commission), [1984] 2 S.C.R. 407; and Syndicat des émployés de production du Quebec et de l'Acadie v. Canada (C.H.R.C.), [1989] 2 S.C.R. 879. The scope of this disclosure obligation was recently explored by Pelletier J.A. in Hutchinson v. Canada (Minister of the Environment), 2003 FCA 133. The complainant in Hutchinson argued that her right to procedural fairness was breached because she was not provided with a copy of a response letter written by her employer to the investigator. Consequently, she was not able to respond to or answer the points raised in this letter. Pelletier J.A. rejected this argument and stated at paragraph 49:
It is clear from [Madsen v. Canada (Attorney General), [1996] F.C.J. 99 (T.D.) (QL)] and [Mercier v. Canada (Canadian Human Rights Commission), [1994] 3 F.C. 3 (C.A.)], that the obligation to disclose submissions arose in the context where those submissions were to be placed before the Commission. The underlying principle was established ten years earlier in Radulesco. There is nothing in any of these cases which would support the proposition that every exchange between an investigator and an interested party must be disclosed to the other party. The right to know the case to be met and to respond to it arises in connection with material which will be put before the decision maker, not with respect to material which passes through an investigator's hands in the course of the investigation.
Consequently, the learned applications judge erred when he held that the October 22, 1997 letter ought to have been passed on to the respondent so as to allow her to respond. To the extent that the Investigation Report disclosed information contained in the letter, the respondent amply exercised her right of response. To the extent that information in the letter was not contained in the Investigation Report, and was not otherwise before the Commission, the right to respond did not arise.
[Underlining added.]
[30] The facts in the case at bar are strikingly similar to those in Hutchinson and it is apparent from Pelletier J.A.'s comments that the applicant's argument on this point be rejected. Moreover, I note this alleged breach was ultimately immaterial. In her report to the Commission, Ms. Akroyd accepted that the applicant was injured and restricted. If the RCMP was arguing that the applicant was medically fit for operational duties, it is clear that this argument was not accepted by the investigator or put before the Commission as part of her report. As Pelletier J.A. stated, "[t]o the extent that information in the letter was not contained in the Investigation Report, and was not otherwise before the Commission, the right to respond did not arise."
3. Thoroughness
[31] An investigator's report must be thorough so that the Commission can properly evaluate whether a tribunal should be appointed. The applicant argues the investigator's report fails to meet the required standard of thoroughness. Nadon J. noted at paragraph 56 of Slattery, supra that deference must be given to investigators to assess the probative value of evidence and decide when to investigate further. Judicial review is appropriate only when an applicant's submissions cannot compensate for the omissions from the investigator's report. Nadon J. stated at paragraph 57:
Although this is by no means an exhaustive list, it would seem to me that circumstances where further submissions cannot compensate for an investigator's omissions would include: (1) where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omission cannot compensate for it; or (2) where fundamental evidence is inaccessible to the decision-maker by virtue of the protected nature of the information or where the decision-maker explicitly disregards it.
[32] It is submitted by the applicant that this cases falls within the first category outlined in Slattery. He argues the investigator relied heavily on the RCMP for crucial evidence and did not thoroughly investigate the matters put before her. The applicant has identified three specific concerns regarding the thoroughness of the investigator.
[33] The first involved the RCMP's claim that it required lengthy manual searches to identify other disabled employees who were not required to return to the same division following an educational leave. I agree with the respondent that this point is not fundamental to the applicant's case. Statistical information of this nature would not have significantly impacted upon the validity of the applicant's complaint.
[34] The second is the failure of the investigator to inquire whether the applicant was able to make 80 kilometres trips from Regina to Milestone for work so he could live in Regina and be closer to needed medical facilities. The investigator thoroughly explored this matter. She questioned the applicant on his ability to make long automobile trips and noted that he had traveled by car while living in the Maritimes on LWOP.
[35] Finally, the applicant submits the investigator did not sufficiently examine the RCMP's claims that it could accommodate him in Milestone. No weight can be given to this submission. The investigator examined the issue. She gave consideration to both sides and reasonably concluded that the RCMP's accommodation plan was never put to the test because the applicant resigned before reporting for duty in Saskatchewan. The key evidence from 1995 overwhelmingly demonstrates that the RCMP recognized the applicant's medical restrictions, and would accommodate him.
4. Findings of Fact by the Commission
[36] Another reason submitted by the applicant for allowing this application is that the Commission acted unreasonably by relying on the Investigator's report because it contains a number of factual errors. The applicant had an opportunity to express his concerns about the alleged errors of fact made by the Investigator in his responding letter to the Commission. Many of the same assertions have been raised before this Court. There is no indication the Commission failed to consider the applicant's letter when making its decision. As his allegations are not supported by the evidence, I conclude the Commission acted reasonably by relying on the findings of fact set out by the Investigator.
5. Issues of Credibility
[37] The applicant submits the Commission erred by deciding matters of credibility in favour of the RCMP. Nadon J. in Slattery, supra at paragraph 55 quoted the words of Mr. Justice Tarnopolsky in his treatise Discrimination and the Law (Don Mills; De Boo, 1985) at page 131 where he stated that the "Commission should not be assessing credibility" when determining whether a matter is to be referred to a tribunal. The applicant argues that he raised the credibility of the RCMP as an issue in his responding letter to the Commission by disagreeing with the contents of the investigator's report.
[38] While the applicant did make a number of objections to the investigator's report, he provided scant evidence to substantiate his claims. He questioned the credibility of the RCMP based on newspaper articles that have no apparent connection to his case. For example, his submissions included articles about the RCMP's conduct at the Quebec City Summit. I am not satisfied that this evidence was sufficient to make the credibility of the RCMP a genuine issue. The Commission was entitled to weigh the evidence in order to make findings of fact and did not err simply because it accepted the evidence of RCMP over that of the applicant.
6. Bias
[39] In addition to being thorough, an investigation must be neutral in order for the Commission to properly evaluate whether a tribunal should be appointed:Slattery, supra at paras. 49-50. A decision of the Commission is flawed if it adopts an investigator's conclusions that were made in a biased manner: Canadian Broadcasting Corp. (CBC) v. Canada (Canadian Human Rights Commission) (1993), 71 F.T.R. 214. The applicant submits the investigator demonstrated bias by misconstruing the facts in the manner she presented her findings.
[40] The applicant has identified three comments in the report that demonstrate bias. The first comment identified by the applicant is found at page 18 of the record:
With respect to the issue of educational leave, the complainant has indicated that he did not in fact complete his Bachelor of Arts degree, because of his disability. He states that he stayed in university until April 1993, and did not return after that due to his health. Nonetheless, he continued on educational LWOP for a further two years.
[41] The applicant does not contest the accuracy of this statement, but submits these comments imply the applicant was somehow abusing his educational leave. I do not agree with the applicant. A plain reading of the statement does not imply the applicant was abusing his educational leave. The investigator stated the fact in a straightforward manner that does not indicate bias.
[42] The second statement by the investigator that the applicant alleges demonstrates bias is found at page 18 of the record:
The respondent notes that the complainant applied twice previously for interdivisional transfers back to Newfoundland or elsewhere in the east. Documentary evidence confirms that in 1980, after just over two years of service, he applied for an interdivisional transfer from Nova Scotia to Newfoundland, citing the medical and financial situation of his parents, who resided in Newfoundland. After this request was denied, he resigned.
The applicant argues the investigator implied the applicant was doing something wrong by applying for leave after just two years of service. The applicant selectively edited this statement
in his written submissions before this Court, changing "after just over two years service" to "just two years of service," and deleting the sentence referring to the medical and financial situation of the applicant's parents. Edited in this manner, the applicant's claim that it demonstrates bias is plausible. But when the full statement is read in the context of the report, it does not demonstrate bias.
[43] The third statement identified by the applicant is found at page 16 of the record:
Overall, the series of events outlined above indicates that the respondent was never actually put to the test of having to accommodate the complainant's restrictions, as he did not report for duty in Saskatchewan.
The applicant submits the view of the investigator outlined in this statement was incorrect and misleading. This issue was thoroughly explored earlier in these reasons and there is no need to examine the matter further.
COSTS
[44] The evidence from the material time, i.e. 1995, overwhelmingly demonstrates that the R.C.M.P. was fully cognizant of the applicant's medical condition and restrictions. In the memorandum to the applicant dated April 25, 1995 the R.C.M.P. stated:
Your Medical Profile reveals that while restricted, there are duties you can be expected to perform. Your profile will be reassessed periodically ... to ensure you are tasked commensurately.
Page: 25
Accordingly, the R.C.M.P. was advising the applicant that he had to report back for work and that his tasks would be designed to ensure that they recognized his medical restrictions. There is no evidence that the R.C.M.P. was discriminating against the applicant. The opposite is the case. For this reason, this Federal Court action is completely without merit. The fact that an R.C.M.P. administrator, three years after the event, wrote a memorandum inconsistent with the April 25, 1995 R.C.M.P. memorandum to the applicant does not support this Court application. Accordingly, costs will follow the event and will be awarded to the respondent.
DISPOSITION
[45] For these reasons, this application for judicial review is dismissed with costs.
"Michael A. Kelen" ________________________________
J.F.C.C.
OTTAWA, Ontario
July 10, 2003
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2226-01
STYLE OF CAUSE: LEWIS GLENN DAWE
Applicant
and
THE ROYAL CANADIAN MOUNTED POLICE
Respondent
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: July 3, 2003
REASONS FOR ORDER: The Honourable Mr. Justice Kelen
APPEARANCES:
Jane O'Neill
For the Applicant
Leanne Wrathall
For the Respondent
SOLICITORS OF RECORD:
McInnes Cooper
Halifax, N.S.
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030710
Docket: T-2226-01
BETWEEN:
LEWIS GLENN DAWE
Applicant
- and -
THE ROYAL CANADIAN MOUNTED POLICE
Respondent
REASONS FOR ORDER