CSTS submission - the British Columbia Utilities Commission

Transcription

David M. Aaron
November 13, 2013
BY EMAIL
BC Utilities Commission
Sixth Floor, 900 Howe Street, Box 250
Vancouver, BC
V6Z 2N3
Attention: Erica Hamilton, Commission Secretary
Dear Sirs / Mesdames:
Re:
British Columbia Utilities Commission Order C-7-13
FortisBC Inc. Radio-Off AMI Meter Option Application
This submission is filed on behalf of the Citizens for Safe Technology Society
(“CSTS”) with respect to the merits of the above-referenced application by
FortisBC Inc. (“FBC”).
Frequency of meter reads
1. FBC acknowledges that some customers may be billed on a bi-monthly tariff reducing the number of meter reads required per year and thereby reducing the
degree to which the per-read fee aggregates in any given year.1
1
See FBC response to CSTS IR 1.3
‫א‬
Box 479, Nelson, British Columbia, Canada V1L-5R3
Tel: 250.551.6840 Fax: 866.685.7376
[email protected]
2. We submit that there is no principled basis to limit the period between meter
reads to a two-month period. We submit that per-meter reading costs can be
reduced by increasing the period between meter reads. A program of lessfrequent meter reads could be combined with a program of estimating
consumption and/or self-reporting by telephone or photograph. We rely on
monthly or quarterly self-reporting for such remittance obligations as provincial
sales tax. In the internet age, why can we not rely on a similar system with
respect to electricity consumption? We submit that it is feasible for meters to be
manually read as scarcely as once per year, as an audit of self-reporting data.
3. In its answer to BCUC IR 1.9.4, FBC cites four “security and cost issues” that
arise with an online and/or telephone reporting system (so as to reduce the
frequency of physical meter reads). These putative obstacles as cited by FBC
are:
a) The need to estimate customer bills until the manual download
occurs;
b) Theft detection benefits will be compromised;
c) There will be a less frequent availability of outage alarms, voltage
alarms, tamper alarms and temperature alarms; and
d) There will be a less frequent availability of hourly consumption data.
4. None of the obstacles cited by FBC constitute an insurmountable obstacle to the
contemplated alternatives. In particular:
a) The need to estimate customer bills until the manual download
occurs does not constitute a great evil, particularly since any
discrepancy between actual and estimated consumption will
ultimately be reconciled upon the occurrence of a manual read. If
there is any compromise that occurs by way of an estimating
program, it is made worthwhile by savings in per-read costs. Also,
the need for estimating can be tempered by the utilization of a
program of self-reporting via a web portal.
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b) The interest in theft detection is not undermined by a program of
reading less frequently. The detection of theft could be maintained
through a program of spot audits. We risk totalitarian consequences
if we hold theft detection out as an absolute principle that overrides
other values and sensibilities. If there is any compromise to theft
detection that occurs by way of an estimating or self-reporting
program, it is made worthwhile by savings in per-read costs.
Further, we assert that theft seldom occurs at the meter. Rather, it
usually happens en route. The interest in theft detection is not
entirely consistent with the implementation of radio-on meters,
which can be tampered with and made to run backwards or forwards,
without this being evident to a meter reader. The wireless aspect of
the meter makes it vulnerable to this kind of tampering.
c) We do not see how reading meters less frequently would affect the
availability of outage alarms, voltage alarms, tamper alarms or
temperature alarms. Regardless of how infrequently the meter is
being read, it will not be hooked up to the RF-mesh network and,
presumably, these alarms will not be available to opt-out customers
in any event.
d) We do not see how reading meters less frequently would affect the
availability of hourly consumption data. Regardless of how
infrequently the meter is being read, it will not be hooked up to the
RF-mesh network and, presumably, hourly consumption data will not
be available in any event. Where data is downloaded manually, the
hourly consumption data would be as much as two months old. How
valuable is it in that context? How much less valuable would it be if
it were one year old? Do opt-out customers really care what their
historical hourly consumption data was? If they did care so much,
they would presumably not be opt-out customers.
5. In its response to BCPIAC IR 1.2.1, FBC states:
Hourly interval readings are important because they assist in energy
balancing, thus helping to ensure revenue protection benefits.
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6. This is clear indication of FBC’s attempt to use the AMI project to increase its
revenues while externalizing the costs of the AMI project onto customers. In
particular, FBC seeks an opt-out fee structure that imposes on customers the
cost of bimonthly meter readings for the purpose of preserving the role of hourly
interval readings as a revenue protector.
7. FBC’s proposed approach to frequently reading radio-off meters is not a matter
of improving efficiency for the benefit of the customer, but more a way of
seeking increased revenue from the same level of service and units of electricity
sold. It should be thought of as a rate increase by stealth.
8. In its answer to BCUC IR 1.9.4, FBC cites the following four “problems” with
allowing customers to submit monthly meter reading data via photograph or
web portal:
a) this does not permit the collection of hourly interval data;
b) the photograph may be unclear or data entry may be incorrect;
c) customers may forget or refuse to do this; and
d) administrative costs are incurred in following up on those which
have not been provided.
9. None of the obstacles cited by FBC constitute an insurmountable obstacle to the
contemplated alternatives. In particular:
a) Please refer to our comments above regarding hourly interval data.
b) The risk that a photograph may be unclear or data entry may be
incorrect is certainly not an insurmountable obstacle to a program of
customer-submitted data. To the extent that errors occur, they could
be identified by audit and reconciled retroactively. Where a
photograph is blurry, a customer can be requested to re-submit it.
c) The risk that a customer may forget or refuse to make her data
submission is certainly not an insurmountable obstacle to a program
of customer-submitted data. We note that our federal and provincial
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taxation regimes succeed on the basis of self-reporting obligations
accompanied by the deterrent of administrative penalties in the event
that such obligations are not fulfilled. We submit that FBC has not
properly explored the costs and benefits of such a program in relation
to its proposal of monthly and bimonthly manual reads at the cost to
the opt-out customer.
d) Of course there would be administrative costs associated with a
program of customer-submitted data. What FBC has not done is
forecast and compare those administrative costs to the costs of
frequent manual meter reads which it is seeking to pass onto opt-out
customers.
10. We submit that radio-off customers should be able to have manual meter reads
as infrequently as once per year, will monthly billing based on either 1)
estimates on the basis of the previous years billings; or 2) self-reporting by way
of phone, photograph or web portal. FBC’s interest in hourly consumption data
does not justify the cost of bimonthly meter reads. Alternatively, the cost
associated with the frequent assimilation of hourly consumption data should not
be externalized onto the opt-out customer.
RF Range extenders: negates benefit of opt-out
11. Some opt-out customers will be making their choice out of health concerns
relating to RF exposure. The benefit these customers stand to gain from opting
out will be partially negated where their opt-out choice leads to the installation
of an RF range extender in proximity to their property. FBC refuses to commit
to a standard of installing the RF range extender a minimum distance from the
opt-out residence. We request that the BCUC, by way of separate proceedings
if necessary, exercise regulatory oversight over the practice of installing an RF
range extender (or collector) in proximity to the property of the opt out
customer. Some kind of proximity and/or power density standards must apply,
lest the benefit of opting out be rendered meaningless by the installation of
devices that are equally or more intrusive than the AMI meter itself.
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RF Range extenders: externalization of costs
12. By way of information request, CSTS asked FBC whether the cost of the RF
range extender is a cost of reading an opt-out customer’s meter. FBC avoided a
direct answer to the question.2
13. In any case, the answer is no. The cost of the RF range extender is not a cost of
reading an opt-out customer’s meter and should not be included in the set-up
fee.
14. Furthermore, the cost of the RF-range extender is not part of “the incremental
cost of opting-out of the AMI program”. Rather, it is a cost of maintaining the
RF-mesh network, which is a matter within FBC’s responsibility - a
responsibility that precedes any opt-out choice.
15. FBC admits that range extenders are already an integral component of the RFmesh AMI network.3 As stated by FBC:
The preliminary network design calls for approximately 380 range extenders
distributed as required to fill “holes” in the RF mesh throughout the service
territory. 4
16. Why should opt-out customers have to pay for range extenders when they are
already part of the AMI network? FBC argues that when an opt-out choice
creates a “hole” in the network, then the opt-out customer behind that choice is
liable for the cost of filling that hole.
17. FBC’s approach amounts to an externalization of costs that is unfair to the optout customer. As per BCUC Order C-7-13, opt-out customers will have to pay
the incremental costs of having their meters read manually. But why should
they have to pay for the maintenance of an AMI network in which they are not
participating? Since when did the FBC customer become obligated with respect
to the utility’s network communication costs?
2
3
4
6
18. Admittedly, a customer’s participation in the AMI program may alleviate some
of FBC’s burden to maintain the RF-mesh network. However, when a customer
chooses to withhold such participation, by opting out, the original responsibility
of maintaining the RF-mesh network continues to lie with FBC.
19. By allowing the installation of a radio-on smart meter, a customer is essentially
volunteering to host an essential part of the AMI RF-mesh network
infrastructure. The customer is under no obligation to make her property
available for that purpose. At the same time, there is no basis upon which to
hold an opt-out customer financially accountable for AMI RF-mesh network
infrastructure costs. It is one thing for that customer to have to pay a set-up fee
for turning off her meter as well as a per-read fee for the cost of a manual meter
read; however there is no principled basis upon which to hold that customer
accountable for filling in holes in an RF-mesh network infrastructure that she
was not obligated to pay for in the first place.
20. As such, we submit that the initial set-up fees approved by the BCUC should
exclude the cost of establishing a range extender for reason that the
externalization of such costs onto the opt-out customer is inappropriate,
unprincipled and unfair.
RF Range extenders: arbitrary cost forecast
21. In its response to BCUC IR 1.11.1, FBC describes how it arrived at the portion
of the set-up fee that is attributable to “ensuring the RF-mesh continue to
operate around the new radio-off location” (“the Hole Filling Cost”):
In the absence of knowing where, or how much additional communications
infrastructure will be required, the Company has represented this forecast
cost by extrapolating the range extender to meter ratio (0.3%) of the entire
AMI system over the forecast number of radio-off premises (695 premise x
0.3% = 2.1).
22. FBC has not provided any rationale for its extrapolation of the range extender to
meter ratio at 0.3%.
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23. We submit that FBC’s manner of forecasting the Hole Filling Cost is arbitrary
and based on conjecture. The BCUC should not allow an arbitrarily forecast
fee to constitute a component of the opt-out set-up fee, particularly since the
extent of the set-up fee may deter persons from opting out in the first place.
24. In any event, FBC should bear the cost of filling in holes in its RF-mesh
network and that cost should not be externalized onto the opt-out customer.
25. Reducing set-up fee by pre-configuring radios in “off” position
26. FBC has confirmed that it is possible for the meter manufacturer to preconfigure a specific number of radio-off meters ahead of deployment.5
27. FBC has also confirmed that the cost of installation of AMI meters at each
customer location has already been incorporated into the AMI program budget
that was put before the BCUC in the Former Proceedings.6
28. On the basis of these two confirmations of fact, we submit that the set-up fee
chargeable to the opt-out customer could and should be reduced by having the
manufacturer configure a specific number of radio-off meters within the AMI
system ahead of deployment (i.e. in the warehouse).
29. In its response to BCUC IR 1.3.5, FBC argues that the pre-configuration
practice would result in minimal efficiencies for FBC and increased costs to the
manufacturer. FBC’s response to BCUC IR 1.3.5 is as follows:
3.5 Is it possible for the manufacturer to configure a specific number of
radio-off meters within the AMI system ahead of deployment (i.e. in the
warehouse)? Please discuss why or why not.
Response:
It is technically possible for the manufacturer to pre-configure a
specific number of radio-off meter ahead of deployment. However,
FortisBC does not intend to cause this to be done since there is
5
See FBC response to BCUC IR 1.3.5
6
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minimal efficiency for FortisBC in doing so, and only increased cost
for the manufacturer. The majority of the effort in configuring a
radio-off meter is not “turning it off”, but is in associating the meter
with the correct premises and customer in the FortisBC billing
system and physically attending the property to install a new meter
or reconfigure an existing meter. These activities cannot take place at
the manufacturing facility without several weeks of lead time,
needlessly delaying installation.
30. We submit that the BCUC should reject FBC’s case that the pre-configuration
practice would result in minimal efficiencies for FBC and increased costs to the
manufacturer. FBC’s argument is based on two points. FBC has not explained
why several weeks of lead time are detrimental to the interests of FBC, the
customer or the public interest. FBC’s argument of “needlessly delaying
installation” ignores the potential benefit to the opt-out customer in reducing
set-up fees. Finally, it is not clear why FBC, in anticipation of customer optouts, cannot keep a stock of radio-off meters for installation in the regular
course of installations incidental to the roll-out of the AMI program. The radiooff installations can be incorporated into the route of radio-on installations,
avoiding the need for a duplicate service call, saving gas, labour, environmental
impacts and set-up costs.
31. In this context, we question the validity of FBC’s inclusion of travel time as a
component of the initial set-up costs. If the plan is to install AMI meters for all
customers for no extra fee, then there should be no material difference (in terms
of travel and installation costs) between the installation of a "radio-off" and
"radio-on" meter.
32. Through the proposed practice of warehouse radio-off pre-configuration, FBC
could eliminate the following set-up steps7 and the costs associated with same:
a) Driving to the premises, and, if an AMI meter has not already been
installed, exchanging the meter;
b) At the meter, plugging in a handheld tool connected to a laptop,
proceeding through a series of steps to disable the LAN radio,
7
See FBC response to BCUC IR 1.3.1
9
downloading meter information, including the initial state of the
metrology registers;
c) Driving back to the office;
33. In its answer to BCUC IR 1.3.1, FBC states:
The steps above are expected to take at least one hour. The travel time to
attend the customer premises is expected to be a significant portion of the
hour.
34. We request that the BCUC order FBC to outline a program budget for the
proposed pre-configuration practice.
Radio-off configuration simultaneous with initial installation
35. We refer to the BCUC’s IR question 1.3.2 regarding whether the configuration
of the radio-off meter within the AMI system will take place at the same time as
the initial installation of the AMI meter at the customer’s property.
36. FBC does not provide any good reason for failing to adopt the efficiencies that
would arise by way of effecting radio-off configuration at the same time as
initial installation. In answering BCUC IR 1.3.2, FBC only states that radio-off
configuration is a manual process. We submit that the initial installation is also
a manual process. If the one-hour driving time cannot be eliminated by
warehouse pre-configuration, it can be eliminated by effecting radio-off
configuration simultaneous with initial installation.
37. We submit that radio-off configuration can and should occur simultaneous with
the initial installation of the AMI meter at the customer’s property. Since this
initial installation would be without cost (for radio-on) customers, there is no
basis on which to charge the opt-out customer for an hour of travel time or, for
that matter, any time that would otherwise have been expended by FBC in the
course of the initial installation. FBC is attempting to use the set-up fee as a
means of externalizing costs onto opt-out customers and deterring them from
opting out in the first place. This practice would be punitive, inappropriate and
inimical to the concept of free choice that underlies the BCUC’s requirement
that an opt-out option be made available.
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Multiple meter premises
38. FBC’s economic case for its proposed opt-out fees is based on the assumption
that there is one meter per customer and that each customer lives at a different
physical location to all others. As this is not true, the opt-out fee proposal
appears to depart from the BCUC’s intent with respect to incremental cost
recovery.
39. With respect to both the set-up fee and the per-read fee, customers in multi-unit
dwellings, such as apartments and condominium or townhouse complexes,
appear to be penalized by the application of assumed costs that would not, in
actuality, be incurred.
40. We request that the BCUC require FBC to implement alterations and provisions
into its opt-out fee structure so as to discount per-read fees in relation to
circumstances that are analogous to the following:
a) a multi-unit dwelling where several opt-out customers share the same
address but not the same account or meter;
b) a town house complex, condominium or co-op housing complex
where a critical mass of the residents have chosen to opt out;
c) a neighbourhood block where a critical mass of the residents have
chosen to opt out; and
d) a customer who has more than one meter on her property (e.g. a
single customer who has five meters on her property).
Further charge upon a move
41. BCUC Order C-7-13 states “…in the event that the customer moves to a new
property, the opt-out choice will move with the customer.”
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42. FBC interprets the above-referenced order as allowing FBC to charge a given
customer an opt-out fee every time that customer moves to a new property and
makes an opt-out choice with respect to that new property.8
43. We disagree with FBC’s interpretation of the order. We submit that the order
requires an opt-out right to be portable, in that it moves with a customer from
one property to another.
44. If a customer can choose to opt out at any time, whether or not she had opted
out at a previous property, then what meaning can be given to the phrase “…in
the event that the customer moves to a new property, the opt-out choice will
move with the customer”?
45. In FBC’s interpretation of the order, the disputed provision of the order would
be given a meaning that is redundant in that it does not add to or detract from
the rights or obligations of FBC or the customer. Where a customer may opt out
at any time, the opt-out choice moving with her from her former property to the
next means nothing, unless it means that she does not have to pay a fresh optout fee where she had already paid it at her former property.
Does the fee apply to a successor occupier?
46. We request that the BCUC issue an order that resolves the following question:
Where a new customer moves into a premises where the previous resident
had opted out and had a radio-off meter, will FortisBC be entitled to charge
the new customer a set-up fee to maintain the radio-off status of the meter?
47. In its response to BCPSO IR 1.6.1, FBC states:
Providing that the new customer registers for the radio-off option prior to
FortisBC changing the meter to the default radio-on mode, the new customer
will not be charged the one-time setup fee for the radio-off option.
8
12
48. We submit that FBC’s proposed approach is vague. How long will the new
customer have to register for the radio-off option prior to FBC changing the
meter to radio-on mode?
49. We submit that a better approach would be for the BCUC to require FBC to
send the new customer a letter giving them the option to register for the radiooff option within 60 days (without having to pay a set-up fee), failing which
FBC will be entitled to change the meter to radio-on mode. It is only reasonable
that FBC notify the customer and give her a reasonable opportunity to maintain
the status quo.
Participation rates
50. We submit that it is reasonable to assume that there is an inverse relationship
between the degree of the opt-out fee and the number of customers who
participate in the opt-out program.
51. This inverse relationship is demonstrated at Table 3-2 on page 3-4 of the BC
Hydro meter choice application.
52. Another way of characterizing this relationship is to observe a correlation
between the affordability of the opt-out fee and the percentage of customers
who opt out. FBC alludes to this correlation in its response to BCUC IR 1.1.4:
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In FortisBC’s opinion, what is the likelihood that the Radio-off Option
participation rate could be closer to the rate experienced in Maine of 1.4
percent? Please discuss.
Response:
FortisBC does not believe such a percentage is likely, given that
Maine is the only jurisdiction in the study with that percentage.
Two factors likely contribute to the unusually high rate: 1) the
relatively low one-time opt-out fee 1 of $40 (or $20 for a radio-off
meter) and 2) the fact that a bill to eliminate opt-out fees has been 2
introduced in Maine.
53. We submit that the opt-out rate should not be set so high so as to function as a
disincentive to the exercise of the free choice to opt out. It is an unfortunate
reality that FBC has an interest in deterring customers from opting out so as to
maintain the integrity of its RF-mesh network. While maintaining this network
is a valid goal, FBC should not be allowed to inflate the opt-out fee (by way of
cost externalizations, etc.) so as to deter customer participation in the opt-out
program.
The deterrent effect
54. We submit that FBC is proposing an opt-out fee that is needlessly high so as to
deter opt-outs and maintain integrity of the RF-mesh network. While we
appreciate FBC’s need to maintain the integrity of the network, we submit that
the deterrent element is not a legitimate component of the opt-out fee. In fact, it
is punitive and antithetical to the principle of free choice that lies at the heart of
the BCUC’s decision to require an opt-out.
55. FBC is aware that the higher the set-up fees are, the more likely they will get
radio-on participation. Since there is little incremental cost between the
installation of a radio-on (no incremental cost and fee to be charged) and a
radio-off meter (only the first $60 to cover process and option explanations) the
set-up fee should not be set so high so as to act as a deterrent to opting out.
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56. The establishment of a high opt-out fee leads to a self-fulfilling and vicious
cycle in that the high fee deters participation; low participation leads to high
per-read costs requiring a high opt-out fee.
57. The inverse would be true: by establishing a low opt-out fee, participation rates
would be higher, thereby driving down per-read costs and enabling a low optout fee.
58. FBC confirms that at least one utility, the City of Ashland Electric Department,
is providing the option to opt out at no cost to the customer.9
59. FBC admits that its proposed set-up fee is based on an uncertain cost estimate. 10
It proposes to adjust fees on the basis of a filing three months after the
completion of AMI project completion.
60. We submit that, given the admitted uncertainty in costs, it would be preferable
to start with a very low opt-out fee and adjust upwards. The advantage of this
approach is that it would minimize the above-referenced deterrent effect,
maximize participation rates and keep per-premises costs down.
61. In its response to BCSEA IR 1.5.2, FBC states:
FBC is proposing to complete a Cost of Service/Rate Design Application
after it has one full year of data from the AMI system. The actual number of
customers choosing the radio-off option and actual costs would likely not be
known until after full implementation of the AMI project. As a result, if the
radio-off fees required an update, the earliest feasible time for completing
such a revision would be in the next Cost of Service/Rate Design
Application. Given that, a shorter term adjustment does not appear to be
possible.
62. We take the above-referenced statement as an admission by FBC that its present
opt-out fee proposal is based on conjecture. We submit that the preferable
approach would be for FBC to determine what percent of its customer base
9
10
FBC submission of October 30, 2013, page 2, line 22
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wishes to opt out and to develop an opt-out fee structure on the basis of a predetermined participation rate. In the interim, any opt-out out fee should be
suspended or set at a nominal level so as to ensure that no willing participant is
deterred by a fee that ultimately fails to receive final approval.
Fee increases
63. Once opt-out fees are finalized, we request that the BCUC order preclude future
opt-out fee increases by imposing a percentage cap on any future increases and
by restricting any increases to those which correspond to inflation.
Increased revenues, externalized costs & service reductions
64. The AMI program is driven primarily by FBC’s reach for increased revenues.11
The problem arises when FBC pursues such increases at costs which are
externalized onto the customer. A further problem arises when the pursuit of
those increases is accompanied by a reduction in service options (annual meter
reading) that were previously available to the customer.
65. One example of the reduction in service options is the fact that, under the
proposed radio-off regime, customers will no longer have the opportunity to
make equal payments based on their prior year's consumption, with one manual
reading per year to adjust for discrepancies.
No accommodation for financial hardship
66. FBC confirms that it will not waive the opt-out fee for customers who are under
financial hardship.
67. For the year 2006, Canada's population was 31.613 million and gross
contributions to the CPP Fund by Canadian workers was $34.499 billion. The
estimate of Canada's population in 2013 is 35.025 million. Contribution to the
CPP Fund in 2013 was $31,682 billion. The population over the eight years
increased by 4.6 % while total contributions by workers to the CPP Fund
declined 8.16%.
11
See FBC response to BCPIAC IR 1.2.1
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68. Canadians are earning less and less each year.12 This makes charges and fees all
the more onerous as electricity is obviously something people would find
difficult to try doing without.
69. FBC would be in denial if it took its monopoly status as rendering it immune to
the law of substitution. BC Ferries denied this reality for several years and later
expressed amazement at diminishing traffic volumes.
70. If FBC fees become too onerous, the market will find other ways of meeting
residential and commercial power needs. This risk should drive an attempt to
provide an opt-out option at minimal cost to the customer.
Human Rights and equality
71. FBC confirms that it will not waive the opt-out fee for customers who suffer
from a disability that prevents those customers from accessing environments
where exposure to radio-frequency emissions is ongoing and incessant. In
support of its position, FBC cites the BCUC’s AMI CPCN finding that “the
Panel is not persuaded that there is a causal link between RF emissions and the
symptoms of EHS.”13
72. Some members of CSTS will be opting out of the AMI program for reason of a
functional impairment that amounts to a disability (“the Disabled Opt-outs”).
73. We submit, in the absence of some kind of provision or qualification addressing
the need to accommodate the Disabled Opt-outs, any BCUC approval of the optout program would have a discriminatory effect and constitute a violation of
section 15 of the Canadian Charter of Rights and Freedoms.
74. We acknowledge that the BCUC has not been persuaded that there is a causal
link between RF emissions and the symptoms of EHS. However, we submit
that the determination as to the existence of a disability does not require the
finding of such a causal link.
12
Government of Canada population statistics and estimate." "The Annual Reports by Canada
Pension Plan Investment Board for the years 2006 through 2013.
13
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75. The law is clear that disability may be established without identifying the cause
of the disabling condition. The focus is on the need rather than on the disease.
[See J.M. v. SunLife Assurance 2005 PESCAD 25 at paras 18, 30; Granovsky v
Canada, 2000 SCC 28 at para 39, Brewer v Fraser Milner Casgrain, 2006
ABQB 258 at paras 27 - 29, 32]
76. As noted in Holt v. Coast Mountain Bus Company 2012 BCHRT 28 (CanLII),
an impairment that affects an individual’s ability to carry out normal functions
only under specific circumstances does constitute a disability. Similar
disabilities involving environmental sensitivities have been accepted by courts
as constituting a disability regardless of whether a named diagnosis is available
or widely accepted in the medical community, see Brewer v. Fraser Milner.
77. We submit that a conclusive causal linkage is not an applicable standard at law.
While environmental sensitivities, including sensitivity to WiFi radiation, are
not well-understood or easily tested, these conditions are identified by
correlating the experience of symptoms with exposure to environmental factors
and ruling out other possible causes.
78. As such, the BCUC’s pronounced skepticism as to whether there is a causal link
between RF emissions and the symptoms of EHS is not determinative of the
question of disability. We respectfully submit that the BCUC’s approval of the
proposed opt-out fee must take into account the equality rights of the Disabled
Opt-outs as enshrined in the Charter.
79. Further, we assert that it is not just EHS that stands to underlie a decision to opt
out for health reasons. Other health issues are reasonably likely to drive
decisions to opt out, including, cardiac or neurological issues, MS, and having a
medical device that could be interfered with, e.g. a deep brain implant or
pacemaker. There must be accommodation for those with these conditions so as
to enable them to access services ordinarily made available by FBC to the
public.
Confirmations
We note that in its responses to CSTS information requests, FBC has confirmed
that:
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a) Commercial customers will be eligible to opt out 14;
b) Customers may opt out at any time15; and
c) FBC will continue to require a manual meter reading program (and
all that entails) regardless of the proposed opt-out program;16
All of which is respectfully submitted.
Yours truly,
DAVID M. AARON
cc:
cc:
cc:
clients
Ludmila B. Herbst
Dennis Swanson
14
15
16
19
Court of Queen’s Bench of Alberta
Date: 20060407
Docket: 0503 05118
Registry: Edmonton
IN THE MATTER OF THE HUMAN RIGHTS, CITIZENSHIP
AND MULTICULTURALISM ACT, R.S.A. 2000, C. H-14
AND IN THE MATTER OF THE DECISION OF THE CHIEF
COMMISSIONER OF THE ALBERTA HUMAN RIGHTS AND
CITIZENSHIP COMMISSION MADE ON SEPTEMBER 20, 2004
CONCLUDING THAT THE RESPONDENT FRASER MILNER
CASGRAIN LLP &/or FMC SERVICES LIMITED PARTNERSHIP
DID NOT DISCRIMINATE AGAINST THE APPLICANT ON THE
GROUND OF PHYSICAL DISABILITY CONTRARY TO S. 7(1)
OF THE HUMAN RIGHTS, CITIZENSHIP AND MULTICULTURALISM ACT.
Between:
Janice Brewer
Applicant
- and Fraser Milner Casgrain LLP
&/or FMC Services Limited Partnership
and the Chief Commissioner of
the Alberta Human Rights and Citizenship Commission
Respondents
Correction: A correction was issued on April 19, 2006. In the Reasons for
Judgment issued April 7, 2006 the name Ritu Khullar was misspelled. The
error is corrected in these Reasons for Judgment.
_______________________________________________________
Reasons for Judgment
of the
Honourable Mr. Justice Brian R. Burrows
_______________________________________________________
2006 ABQB 258 (CanLII)
Citation: Brewer v. Fraser Milner Casgrain LLP, 2006 ABQB 258
[1]
Janice Brewer seeks judicial review of the decision of the Chief Commissioner of the
Alberta Human Rights and Citizenship Commission dismissing her complaint that her employer,
Fraser Milner Casgrain LLP, discriminated against her on the ground of a physical disability.
Ms. Brewer’s complaint was that Fraser Milner Casgrain failed to reasonably accommodate her
physical disability.
[2]
Ms. Brewer was employed by Fraser Milner as a legal secretary starting in 1981. In 1998
she sought medical attention for an asthma-like condition. Exposure to specific triggers in the
environment such as scents and perfumes would set off a constellation of symptoms including
dyspnea (laboured breathing), chest tightness, lightheadedness, headache, rashes, dizziness and
disorientation. Ms. Brewer’s doctor suspected Ms. Brewer had multiple chemical sensitivities
which her family doctor described as, “. . . a poorly understood and controversial diagnosis with
no known solution apart from avoidance of the offending irritants”.
[3]
Fraser Milner asked its staff to refrain from the use of perfumes and fragrances to help
Ms. Brewer avoid triggers. The lawyer to whom she was assigned altered the grooming products
he used for the same purpose. Ms. Brewer was permitted to use a washroom in the office sick
room, rather than the public washroom. Air cleaners were placed in the area in which she
worked. She was allowed to use charcoal filtered disposable air masks when necessary. Her
work hours were changed slightly so she would arrive at and leave the office later than most of
the other employees and thereby avoid contact with crowds.
[4]
It appears that these measures did not entirely resolve the problem. In 2001 Ms.
Brewer’s lawyer, Ms. Ritu Khullar, contacted a partner at Fraser Milner, Tom Wakeling, to
discuss further measures that might be taken. Mr. Wakeling suggested that a report concerning
Ms. Brewer’s condition be obtained from a respiratory specialist. He provided a list of possible
specialists who could be consulted. He expected this would assist in determining whether any
further reasonable accommodation would be required or possible.
[5]
Ms. Khullar provided letters from Ms. Brewer’s family physician, Dr. Chandler, from an
asthma specialist who had investigated her problem initially, and, from Dr. H. E. Hoffman, a
specialist in occupational and environmental medicine. The asthma specialist, Dr. Paul Man,
was one of the specialists Mr. Wakeling had suggested.
[6]
Mr. Wakeling expressed disappointment that the report from the specialist was not
current (it was more than 2 years old). Without conceding that Ms. Brewer had a “medical
illness, disease or physical disorder”, Mr. Wakeling agreed that Dr. Hoffman could visit Fraser
Milner’s offices to determine whether any changes could be made to assist Ms. Brewer. It was
agreed that the cost of Dr. Hoffman’s assessment would be shared by Ms. Brewer and Fraser
Milner.
[7]
In October 2001 Dr. Hoffman reported his findings and recommendations. He said:
Page: 2
Page: 3
[Ms. Brewer’s] symptoms can be minimized by the following actions:
2.
3.
Minimize people traffic near her
a.
Locate her desk away from high traffic areas.
b.
Locate her desk away from a boardroom or meeting room.
c.
Locate her desk away from a people traffic conduit.
Minimize chemicals in the workplace
a.
Provide a policy for all staff to use minimal scented products. This
will require some mechanism of education, reinforcement, and
reporting of breaks in policy. An occupational health program at
this workplace (as described below) could facilitate this activity.
b.
Provide several types of meeting rooms for clients near the main
reception area, so that clients are not required to go through the
whole office area.
c.
Review cleaning materials and procedures.
Control chemical exposure
a.
Engineering Controls
i.
Barriers
1.
ii.
Provide a plexiglass barrier to separate Ms.
Brewer’s workstation from the traffic flow areas.
Ventilation
1.
Maintain adequate general ventilation in floor.
2.
Optimize local ventilation over Ms. Brewer’s
workstation. Airflow directly over Ms. Brewer’s
work area could be increased. This would provide
direction of airflow to her workstation and then
away from the workstation. This would allow
chemicals and fragrances to be dispersed away from
her workstation. An example of this change in local
air intake is the photocopier room, where the
1.
airflow in the photocopier room has been
specifically increased for the operational demands
of the photocopier. Similarly, local ventilation over
Ms. Brewer’s workstation could be increased to
meet the operational demands (health requirements)
of Ms. Brewer. This balancing of the air flow
requires very little cost. Essentially, the airflow for
the floor needs to be adjusted, with no requirement
for special equipment.
iii.
b.
c.
4.
Local air cleaners, as she has been using already at her
desk.
Administrative controls
i.
Enable Ms. Brewer to work hours that minimize symptoms.
ii.
Enable Ms. Brewer to take some work home for days that
she cannot tolerate the workplace environment.
iii.
Ensure that staff assigned to work within a close physical
proximity to Ms. Brewer understand and respect her health
condition, or alternatively ensure that no staff are assigned
to work within a close physical proximity.
Respiratory protective equipment (RPE) can be used where
symptoms occur. Ms. Brewer may use a disposable charcoal mask
for RPE. The employer should supply RPE. RPE is a last resort at
protection from chemicals, as other controls are recommended.
Minimize requirement for Ms. Brewer to need to leave her work station:
a.
b.
c.
Equip her work station with more equipment:
i.
Printer
ii.
Fax
iii.
Copier
Coordinate deliveries so that she does not need to go to mail room.
Delegate large photocopying work to an office aide.
Page: 4
[8]
Dr. Hoffman acknowledged that some of these suggestions had already been
implemented in an ad hoc way, but proposed that a more systematic approach to addressing all
of the areas he had identified be undertaken. He observed, “No steps can entirely eliminate the
risk and exposures, but they can be effectively minimized and controlled”. His report also
addressed the question of the cost of the steps he proposed. He did not think the costs would be
unreasonable.
[9]
Ms. Brewer’s lawyer forwarded Dr. Hoffman’s report to Mr. Wakeling and requested that
four of his suggestions in particular be implemented:
1.
Minimizing people traffic near Ms. Brewer by the location of her desk
away from high traffic areas, boardrooms or meeting rooms, or people
traffic conduit.
2.
Provide a barrier to separate Ms. Brewer’s workstation from the traffic
flow areas.
3.
Maintaining adequate general ventilation and optimizing local ventilation
around workstations.
4.
Minimizing the requirement for Ms. Brewer to need to leave her
workstation by equipping her workstation with a printer/fax/copier
capabilities.
[10] At the time Dr. Hoffman visited Fraser Milner, Ms. Brewer’s workstation was located on
the 29th floor. The 30th floor was under renovations and when they were done Ms. Brewer’s
workstation was relocated there. She moved to her 30th floor workstation on November 12,
2001. She found that her symptoms became worse and attributed this to the paints, glues and
carpeting that had been used in the renovations. She informed Fraser Milner of this aggravation
of her condition. She left work on November 14, 2001.
[11] There was one accommodation previously provided that was not available on the 30th
floor. Ms. Brewer would have to use the public washroom. Ms. Khullar wrote Mr. Wakeling to
advise that this would have an adverse effect on Ms. Brewer and to request that the
accommodation of a separate washroom be continued.
[12] On December 11, 2001 Ms. Khullar observed in a letter to Mr. Wakeling that there had
been no reply to her requests for implementation of some of Dr. Hoffman’s recommendations, or
to her request regarding the washroom accommodation. She said that Ms. Brewer had
encountered significant difficulty in her new 30th floor work space and for that reason had left
work and applied for short term disability.
[13] On December 14, 2001, Ms. Brewer was advised that her work assignment would be
changed. She would no longer work with the lawyer with whom she had worked for 13 years
Page: 5
but would be assigned to do word processing at a work station where she would have reduced
contact with other people. She was also advised that it was not possible to continue the
washroom accommodation to her on the 30th floor because the only washroom on that floor was
the public washroom.
[14] On January 14, 2002 Ms. Khullar inquired as to Fraser Milner's intentions regarding
implementation of Dr. Hoffman’s recommendations and whether Fraser Milner was prepared to
arrange to have non-fragrant soap and non-fragrant cleaners used in the 30th floor washroom.
[15] Mr. Wakeling responded on January 25, 2002. He said that Ms. Brewer would be
assigned to a workstation in the word processing area and her ability to work in that environment
would be monitored. There was no response to Ms. Khullar’s inquiry as to Fraser Milner’s
intentions regarding Dr. Hoffman’s recommendations.
[16] Ms. Brewer did not return to work. After leaving work on November 14, 2001 she went
on short term disability. Later she applied for long term disability but her application was
unsuccessful.
[17] On October 17, 2002 she filed a complaint with the Alberta Human Rights and
Citizenship Commission. A Human Rights Officer investigated and issued an Investigation
Report on June 18, 2004. After summarizing the information he gathered in his investigation,
the Investigator considered whether Fraser Milner made reasonable attempts to accommodate
Ms. Brewer’s physical disability.
[18] He noted the steps Fraser Milner had taken prior to Dr. Hoffman’s recommendation to
accommodate Ms. Brewer’s situation. I described these in paragraph [3] above. He also
summarized the steps Fraser Milner had planned for accommodating Ms. Brewer after her move
to the renovated 30th floor. These were to assign her to a word processing workstation in a low
traffic area and to monitor her there to see if that provided adequate accommodation.
[19] He observed that in March 2001 Fraser Milner had requested that Ms. Brewer provide a
current assessment of her medical situation from one of the specialists the firm had suggested.
He said, “The Complainant did not do so even though there appeared to be a change in her health
condition since the last reports which were done in 1998 and 1999.” He noted as well that Ms.
Brewer’s family doctor had indicated in his report that he had arranged for her to see a
neurologist for an opinion regarding medications and other treatments but no report from a
neurologist had ever been provided to Fraser Milner.
[20]
The investigator concluded:
The above information appears to indicate that the respondent was willing to
accommodate Ms. Brewer’s needs. On the other hand, the Complainant did not
accept the offered position in Word Processing, nor did she provide a specialist’s
“current assessment” of her physical disability. Her reason for not doing so was
Page: 6
that the specialists’ reports had already been provided previously, referring to Dr.
Man’s reports dated November 20, 1998, December 4, 1998 and February 5,
1999. Given the construction and age of the reports, it was not unreasonable for
the respondent to request a “current assessment” of the Complainant’s condition
in order to evaluate the benefits associated with different remedial measures, and
even more so with the brand new word processing post. There is also no
indication that the Complainant’s offer to provide a report from her own
neurologist, someone not on the FMC list, was followed through by her.
The above evidence shows that the Complainant did not cooperate with the
respondent’s attempts to accommodate her when she did not provide a specialist’s
“current assessment”; and when she did not attempt to try out the word processing
transfer before deciding that the transfer would not work. In his report of October
17, 2001, Dr. Hoffman stated that some of his recommendations were already in
place. The respondent stated that not having a specialist’s report “handicaps”
their ability to evaluate the benefits associated with different remedial efforts.
This could be the reason Dr. Hoffman’s recommendations could not be
implemented in their entirety. There is no evidence to show that the respondent
refused to implement Dr. Hoffman’s recommendations, but evidence shows that
the respondent was still waiting for the Complainant’s cooperation and her return
to work. Finally the Complainant appears to have terminated the respondent’s
continuing attempts to accommodate her by going on short term disability leave
and then applying for long-term disability benefits when her short term benefits
ran out, thereby frustrating any possible attempts by the respondent to
accommodate her to the point of undue hardship. The respondent stated that “if
Ms. Brewer had reasonable basis for maintaining that she was eligible for longterm disability benefits, she would not have been fit to return to work”.
Human rights law indicates that the employee cannot expect a perfect solution
when attempts are made to accommodate the individual needing such. If a
proposal that would be reasonable in all the circumstances is turned down, the
employer’s duty is discharged. The employee also has a responsibility to
cooperate with the accommodation process. Evidence shows that the
Complainant did not provide such cooperation. Evidence shows that the
respondent had made reasonable attempts to accommodate the Complainant’s
physical disability and was prepared to continue doing so.
Recommendation
In the absence of evidence to show that the respondent failed in its duty to attempt
to reasonably accommodate the Complainant to the point of undue hardship, there
is no reasonable basis to proceed with the complaint. It is recommended that this
complaint be dismissed.
Page: 7
Page: 8
[22] Ms. Brewer applied to the Chief Commissioner for a review of the Director’s dismissal of
her complaint. On September 20, 2004, the Chief Commissioner upheld the dismissal. He said:
Although MCS is a controversial disability issue it is important to note none of
the reports submitted by Janice Brewer’s physicians actually came up with a firm
MCS diagnosis. Without such a diagnosis the respondents were in my view
justified in rejecting her contention that she had a physical disability of this
nature.
The respondents did agree Janice Brewer suffered from chest tightness, light
headaches, aches and other like problems while working for them. They however
did not agree these symptoms amounted to a “physical disability” as defined
under s. 44(1)(2) of the Act.
Janice Brewer did not co-operate fully with the human rights investigator when
she denied him direct access to her doctors. She also resisted requests made by
the respondents for a further assessment of her condition by a specialist. A
surveillance conducted in May 2002 by Manulife, the respondent’s LTD
underwriter brought into question how incapacitated and restricted she really was.
Despite the lack of proof that Janice Brewer actually had a MCS physical
disability the respondents did try over time to accommodate her based on her
requests and the recommendations of her doctor.
The steps taken by the respondent to address and alleviate Janice Brewer’s
environmental sensitivity as they understood it met their duty to accommodate.
Janice Brewer for her part elected not to return to work when her STD ended in
February 2002.
I see no reasonable basis to advance this case to the panel hearing stage and
hereby dismiss the appeal.
[23] Ms. Brewer seeks judicial review of that decision. The Alberta Court of Appeal has very
recently considered the standard of review that is be to applied on an application for judicial
review of a decision of the Chief Commissioner. In Callan v. Suncor Inc. 2006 ABCA 15,
[2006] A.J. No. 30, the Court said: (para. 15)
The parties are all in agreement that the standard of review of the decision of the
Chief Commissioner is reasonableness simpliciter. When the Chief
Commissioner decides to send or not send a complaint to a human rights panel,
the standard of review is whether his decision to do so is reasonable or not.
[21] On June 18, 2004, the Director dismissed Ms. Brewer’s complaint for the reasons given
by the Investigator.
Therefore, if the referral decision of the Chief Commissioner stands up to a
somewhat probing analysis, the reviewing court should not intervene: Law
Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247, at para. 55. If the Chief
Commissioner is faced with a complaint that is bristling with issues of credibility
and conflicts on the facts, it will in many cases be unreasonable for him not to
refer the matter to a human rights panel. However, his decision should be
assessed in light of its reasonableness, not based on any perceived distinction
between assessing evidence and adjudicating.
[24] Callan happens also to be a case where the question was whether the employer had
reasonably accommodated an employee who had a disability. On the nature of the duty to
accommodate, the Court said: (para. 21)
There is no duty of instant or perfect accommodation, only reasonable
accommodation. The reasonableness of the employer’s accommodation must be
evaluated considering the knowledge of the employer, together with the cost,
complexity and expense of any physical accommodation required, and other
similar factors.
[25] In my view the reasoning of the Chief Commissioner does not stand up to “somewhat
probing analysis”. In my view the dismissal of Ms. Brewer’s complaint at this stage was not
reasonable.
[26] The Chief Commissioner’s reasons address two issues: 1. Whether Ms. Brewer has a
physical disability; and 2. Whether Fraser Milner’s efforts to accommodate her were adequate.
Whether Ms. Brewer has a physical disability
[27] The Chief Commissioner appears to have concluded that the evidence did not support the
conclusion that Ms. Brewer has a physical disability. He said, “. . . the respondents were in my
view justified in rejecting the contention that she had a physical disability of this nature.” His
reasons were:
a)
b)
c)
d)
[28]
No physician provided a firm diagnosis of multiple chemical sensitivity.
Ms. Brewer denied the Investigator direct access to her doctors.
Ms. Brewer resisted Fraser Milner’s request for a current specialist’s assessment
of her condition.
Surveillance of Ms. Brewer conducted by the insurer to whom she had applied for
long term disability benefits brought into question how incapacitated and
restricted she really was.
The Act contains the following definition of physical disability in s. 44(1)(l):
Page: 9
“physical disability” means any degree of physical disability, infirmity,
malformation or disfigurement that is caused by bodily injury, birth defect or
illness and, without limiting the generality of the foregoing, includes epilepsy,
paralysis, amputation, lack of physical co-ordination, blindness or visual
impediment, deafness or hearing impediment, muteness or speech impediment,
and physical reliance on a guide dog, wheelchair or other remedial appliance or
device.
No firm diagnosis
[29] In my view the Chief Commissioner gave inappropriate emphasis to the fact that the
doctors who assessed Ms. Brewer’s symptoms were unable to firmly diagnose her condition. A
distinction should be drawn between the question of whether a disability exists and the question
of whether medical science has a label for it or has determined its cause.
[30] In the evidence assessed by the Investigator and the Chief Commissioner, no one, other
than the long term disability insurer, expressed doubt either that Ms. Brewer suffers from the
symptoms she described or that they are triggered by exposure to perfumes, scents and other
contaminants in the air of her office work space. Assessing the same evidence that the Chief
Commissioner assessed, the Investigator concluded, “. . . the available evidence appears to
indicate that the Complainant did suffer from symptoms of sensitivity to perfumes, fragrances
and other chemical scents (e.g. paints).
[31]
Dr. Chandler said:
On no occasion in the past have I felt Janice to be overstating her problems, nor
had cause to doubt the veracity of her claims. . . .
Other physicians asked to evaluate and treat Janice have seemed to be similarly
convinced of her legitimate complaints, and her psychiatric evaluation focussed
solely on the physical condition and symptoms arising from it, without any
indication of a primary psychiatric disorder.
[32] There may be a question as to whether Ms. Brewer’s symptoms amount to a physical
disability but the inability of doctors to put a label on the symptoms or to identify the cause of
the condition (as opposed to the triggers of the symptoms) does not answer that question. The
definition of “physical disability” in the Act does not exclude infirmities caused by illnesses
which medical science does not yet fully understand.
Direct access to doctors
[33] The Chief Commissioner observed, “Janice Brewer did not co-operate fully with the
human rights investigator when she denied him direct access to her doctors.”
Page: 10
[34] In his report, the Investigator recorded, “Ms. Brewer did not consent to this Investigator
directly contacting her physicians”. During his investigation, on September 15, 2003, the
Investigator, in a letter to Ms. Brewer’s counsel, said, “If Ms. Brewer has no objections, I would
like to talk to her doctors/specialists. Please forward letter of consent to enable me to do so.”
Ms. Brewer’s counsel provided her response on October 14, 2003, “I do not consent at this time
for HRC to contact my physicians directly. If further medical information is required, please let
me know what and I will try to arrange obtaining it for you.” The matter was not pursued
further.
[35] Ms. Brewer’s refusal to consent to the Investigator having direct contact with her
physicians can only have significance if it justifies the drawing of an inference against the
position she advances in her complaint – that she is physically disabled and requires reasonable
accommodation. The Chief Commissioner’s reasons suggest that he drew that inference.
[36] In my view the circumstances do not justify his doing so. There is a reasonable
explanation for Ms. Brewer’s denial of consent other than a wish to avoid revelation of
information contrary to her position. The Investigator was seeking Ms. Brewer’s consent to his
speaking to her physicians about her condition without her being present. While it would not be
unreasonable for the Investigator to speak directly to the physicians, it would, in my view, be
unreasonable for him to expect consent to his doing so in Ms. Brewer’s absence. If the
Investigator had questions arising from the medical reports Ms. Brewer had submitted, it was
reasonable for Ms. Brewer to want to be present herself, or to have her counsel present, when
those questions were asked and the answers given. In these circumstances it was not appropriate
to draw an adverse inference from her refusal to consent to direct exclusive access.
Request for a current specialist’s assessment
[37] The Chief Commissioner placed weight on the fact that though Fraser Milner requested a
current specialist’s report on Ms. Brewer’s condition, they were given only somewhat dated
specialists’ reports and a current report from Ms. Brewer’s family doctor. In my view this point
does not have the significance the Chief Commissioner attached to it.
[38] Fraser Milner’s request for a current specialist report was made in March 2001. Though
Mr. Wakeling expressed disappointment when the material provided by Ms. Brewer’s counsel in
August, 2001 did not include a current specialist assessment, he was nonetheless willing to
proceed to have Dr. Hoffman assess Ms. Brewer’s work space and make recommendations. Dr.
Hoffman reported in October, 2001. Between then and February 2002, Ms. Brewer’s counsel
attempted unsuccessfully to have Fraser Milner implement some of Dr. Hoffman’s
recommendations. The question of the adequacy of the medical assessment materials provided
in August was never again raised. If Fraser Milner thought that a current specialist’s opinion as
to Ms. Brewer’s condition would be helpful in assessing Dr. Hoffman’s recommendations, they
never said so. There was no further request for a specialist assessment.
Page: 11
[39] Further, if the lack of a current specialist’s assessment of Ms. Brewer’s condition was
significant at the time of his investigation, one might expect the Investigator to have asked for
one. He did not. He was able to conclude that Ms. Brewer suffers from symptoms which give
Fraser Milner a duty to reasonably accommodate her without any further medical evidence.
Surveillance Evidence
[40] In concluding that Ms. Brewer did not have a physical disability, the Chief
Commissioner observed, “A surveillance conducted in May 2002 by Manulife, the Respondent’s
LTD underwriter brought into question how incapacitated and restricted she really was.”
[41] The information in the record in relation to the surveillance was contained in a letter from
Manulife Financial to Ms. Brewer dated June 28, 2002, denying her long term disability claim.
Ms. Brewer’s counsel provided a copy of that letter to the Investigator in response to his inquiry
as to the reason the LTD claim had been denied. The letter said:
Furthermore, between May 21 and May 24, 2002, you were observed in
uncontrolled public places such as food stores, upholstery shop, public library,
public park, Interac Bank machine, private clinic, video store with no apparent
restrictions. Based on the information we have on file, we have determined, that
we do not have sufficient medical evidence documenting how your illness causes
restrictions or lack of ability such that you are prevented from performing the
essential duties of your own occupation in a fairly controlled environment, when
you were observed to have the ability to shop in food store and be in uncontrolled
environment without restriction. As such, your claim for Long Term Disability
and Waiver of Premium benefits is declined.
[42] The record also includes Ms. Khullar’s response to Manulife on the subject of the
surveillance. In her letter appealing the denial of LTD benefits, Ms. Khullar said:
Manulife’s quest for “objective evidence” has lead it to conduct four days of
surveillance of her activity. Please provide us with a copy of the surveillance
video and surveillance reports. To the extent the content of the surveillance is
reflected in Manulife’s letter of June 28, 2002, we note that the surveillance
evidence is consistent with what Ms. Brewer had previously advised Manulife in
the activities of daily living questionnaire that she was required to complete and
did complete on May 27th, 2002. In that questionnaire she responded “yes” to the
question “do you shop” and explained in response to the question “what kinds of
shopping do you do” that she shopped for food and clothing. In her attached
comments to the questionnaire she explained that she does “some” shopping by
telephone and catalogue services. For grocery shopping, and some personal
shopping, she attends at stores but tries to do it at non-peak hours. She states that
sometimes she gets sick when she does so but sometimes she is able to attend.
Page: 12
Your report of the surveillance video is consistent with Ms. Brewer’s selfreporting of her activities. Confirming that Ms. Brewer goes shopping on an
occasional basis through surveillance, is completely irrelevant to the issue of
whether she can work for 8 hours a day as a legal secretary.
[43] The information available to the Chief Commissioner concerning the Manulife
surveillance did not alone, or in combination with other evidence, justify the conclusion that Ms.
Brewer is not physically disabled. That information was a second hand summary of the
observations of whoever conducted the surveillance and reported on it to the author of
Manulife’s June 28 letter. The Chief Commissioner was not in a position to make his own
assessment of the significance of that evidence. The Investigator had not spoken to whoever
conducted the surveillance or the author of the summary of it. Indeed the Investigator did not
mention the surveillance in his report. In these circumstances, for the Chief Commissioner to
place significant weight on the Manulife surveillance, which his mention of it in his reasons
suggests he did, was unreasonable.
Whether Fraser Milner’s efforts to accommodate Ms. Brewer were adequate
[44] The Chief Commissioner observed that Fraser Milner tried to accommodate Ms. Brewer
“based on her requests and the recommendations of her doctor.” He concluded, “The steps taken
by the respondent to address and alleviate Janice Brewer’s environmental sensitivity as they
understood it met their duty to accommodate.” He did not set out the analysis which lead him to
that conclusion.
[45] There is no dispute that Fraser Milner did take significant steps to accommodate Ms.
Brewer prior to 2001. But it appears that despite those steps, Ms. Brewer’s symptoms continued
to be triggered in the office environment. This lead her and her counsel to propose an
assessment by Dr. Hoffman in order to determine if further reasonable steps to accommodate her
might be taken. Fraser Milner agreed to that proposal. Dr. Hoffman inspected Ms. Brewer’s
work space and made specific recommendations. Ms. Brewer requested that some of them be
implemented.
[46] Prior to any progress being made on the implementation of Dr. Hoffman’s
recommendations Ms. Brewer was moved to a newly renovated work space where her symptoms
were significantly worse. She left work after only 2 days in this new environment.
[47] Without taking any position on the reasonableness of Dr. Hoffman’s recommendations,
and without responding to Ms. Brewer’s request that some of them be implemented, and without
any further consultation with Ms. Brewer, Fraser Milner determined that her work assignment
would be changed. There was some prospect that in this new position, the triggers thought to
cause her symptoms would be reduced. However, Fraser Milner expected Ms. Brewer to return
to work to try out the environment that accompanied the new assignment without any prior
assessment being obtained as to whether the move would be a reasonable substitute for the
measures Dr. Hoffman had recommended.
Page: 13
[48] Fraser Milner appears to have abandoned the course of action to which Mr. Wakeling had
agreed in September, 2001. They had facilitated Dr. Hoffman’s inspection. Presumably they
paid for one half of its cost as they had agreed to do. But after the recommendations were
communicated to them they appear to have completely ignored them. They did not take the
position that the recommended steps were unreasonable either for being too costly or for any
other reason. They simply did not respond. Rather they directed that a different course of action
be taken in the hope that it would be sufficient. To expect Ms. Brewer to participate in this
experiment when there had been no satisfactory conclusion to the course of action previously
agreed, and no explanation as to why Fraser Milner was abandoning that course of action, was
unreasonable. So was characterizing her reaction uncooperative.
[49] In these circumstances, the conclusion that Fraser Milner reasonably accommodated Ms.
Brewer was unreasonable. I therefore grant the application and quash the decision of the Chief
Commissioner.
Heard on the 15th day of December 2005.
Dated at the City of Edmonton, Alberta this 7th day of April 2006.
Brian R. Burrows
J.C.Q.B.A.
Appearances:
John R. Carpenter
Chivers Carpenter
for the Applicant
Walter Pavlic
Parlee McLaws
for Fraser Milner Casgrain LLP
Audrey Dean
for the Alberta Human Rights & Citizenship Commission
Page: 14
Date Issued: February 15, 2012
File: 6534
Indexed as: Holt v. Coast Mountain Bus Company, 2012 BCHRT 28
2012 BCHRT 28 (CanLII)
IN THE MATTER OF THE HUMAN RIGHTS CODE
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
B E T W E E N:
Christopher Holt
COMPLAINANT
A N D:
Coast Mountain Bus Company
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Murray Geiger-Adams
On his own behalf:
Christopher Holt
Counsel for the Respondent:
Hearing Dates:
Adriana Wills
May 26-28, 2010; May 31, 2010;
June 28-29, 2010; July 14-15, 2010;
March 29-30, 2011; April 6, 2011
Introduction
Christopher Holt filed a complaint with the Tribunal on July 16, 2009, in which he
alleged that the respondent, which I will refer to as “Coast Mountain”, discriminated
against him in his employment on the basis of his physical disability, contrary to s. 13 of
the Human Rights Code.
[2]
In essence, Mr. Holt asserts that Coast Mountain discriminated against him by
failing to accommodate his neck condition by permitting him to drive a particular model
of bus which did not aggravate that condition. Coast Mountain disputes that Mr. Holt had
a relevant disability. In the alternative, it says that any adverse effect on him was not the
result of any failure on its part to accommodate him. In the further alternative, it says it is
not responsible for any wage loss he suffered.
[3]
This is my decision on the merits of the complaint.
[4]
As examined in detail below, my general impression is that Mr. Holt set out to
discredit and defeat an employer he didn’t trust, and which he thought was prepared to
see him suffer harm rather than accommodate his disability – which he considered
obvious and unquestionable. Coast Mountain set out to discredit and defeat an employee
it didn’t trust, regarded as obstructing its legitimate attempt to get complete, reliable
information, and suspected of exaggerating his symptoms and limitations in order to
preserve his choice of desirable work. Caution on both sides was understandable, and
may have been justified.
Combat, in preference to understanding one another’s
perspectives, sharing information, and being open to acting on that information, was not.
Witnesses
[5]
The following account is drawn from the testimony of the 10 witnesses who
appeared at the hearing, and from 149 documentary exhibits (one including 87 separate
tabs) identified by a witness, or entered in evidence by consent. I examine the relevant
evidence in considerable detail, because both determining the existence and nature of a
disability, and, where one is found, assessing the reasonableness of the parties’ efforts to
accommodate it, is an intensely factual endeavour.
1
[1]
[6]
The exhibits included numerous photographs, provided by both parties, of the two
styles of bus. I have used these to understand the other evidence, but have not relied on
[7]
Where facts are not in dispute, I simply present them as part of the narrative.
Where relevant facts are in dispute, I summarize the evidence about them, and explain
my findings.
As in all cases when assessing credibility, I am entitled to accept some,
none, or all of a witness’ testimony. Although I do not refer to all the evidence of every
witness, I have carefully considered it all in reaching my conclusions on the facts.
[8]
In resolving conflicts in the evidence, and determining whether to accept the
evidence of any witness, in whole or in part, I have adopted and applied the test set out in
Bradshaw v. Stenner, 2010 BCSC 1398, at para. 186:
Credibility involves an assessment of the trustworthiness of a witness’
testimony based upon the veracity or sincerity of a witness and the
accuracy of the evidence that the witness provides (Raymond v. Bosanquet
(Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of
assessment involves examination of various factors such as the ability and
opportunity to observe events, the firmness of his memory, the ability to
resist the influence of interest to modify his [or her] recollection, whether
the witness’ evidence harmonizes with independent evidence that has been
accepted, whether the witness changes his [or her] testimony during direct
and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to
lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152
(B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole
and shown to be in existence at the time (Faryna at para. 356).
[9]
The 10 witnesses who testified, in order of their first appearance, were: Mr. Holt;
Dr. Saul Pilar, Mr. Holt’s family doctor; Dr. Donald Lloyd-Smith, a specialist in sports
medicine who treated Mr. Holt; Bruce Murray, a Coast Mountain employee and steward
for CAW, Local 111 (“CAW” or “the Union”), who represented Mr. Holt in some of his
dealings with Coast Mountain; Tracey Dobbin, an occupational therapist who conducted
work simulations with Mr. Holt on two different kinds of buses in 2011; Al Buffam, a
Coast Mountain employee at its Burnaby Transit Centre (“BTC”); Jim Johnson, a retired
2
them to form any opinion of my own on any fact relevant to a determination of the case.
Coast Mountain employee; Barry Hogue, Coast Mountain’s manager of service delivery
at the BTC from September or October of 2008 forward; Dereth Campbell, an
occupational health nurse employed by Coast Mountain; and Kathy Pereira, Coast
[10]
I did not find much of the evidence of Mr. Murray, Mr. Buffam, Mr. Johnson, or
Mr. Hogue necessary to decide the issues before me. Accordingly, with very limited
exceptions, I do not refer to it in detail, or at all.
[11]
The first seven witnesses were called by Mr. Holt. After Coast Mountain gave
notice of its intention to make a no evidence motion at the conclusion of Mr. Holt’s case,
he also called Mr. Hogue, Ms. Campbell, and Ms. Pereira as his witnesses. Coast
Mountain conducted vigorous and searching cross-examinations of most of Mr. Holt’s
original witnesses, and restrained cross-examinations, which were more in the nature of
further direct examinations, of these last three.
Facts
[12]
Coast Mountain’s predecessor first employed Mr. Holt as a driver in 1985. When
he first testified in May 2010, he was 54 years old. He began driving HandiDart buses,
but for most of his career thereafter he drove New Flyer buses. Mr. Holt was assaulted
and injured at work in 1989, and again in 1998. In each case, he received Workers
Compensation benefits. I need not decide whether Mr. Holt’s work injuries in 1989 or
1998 were related to his condition in and after 1999, as the central issues before me relate
to whether, in 2008 and later, he had a disability which required that he be accommodated
by driving only New Flyer buses.
[13]
In October 1999, Mr. Holt reported to Dr. Pilar that he had experienced a spasm in
his neck. He was entirely off work with pain in his left arm and neck for approximately
seven months.
In January 2000, after reviewing the results of a CT scan, Dr. Lloyd-
Smith stated that Mr. Holt had a “cervical disc herniation with C6 radiculopathy”.
[14]
In late April, 2000, Mr. Holt began a graduated return-to-work program
recommended by Dr. Lloyd-Smith, under which he returned to full-time duties without
restrictions in approximately mid-August of 2000.
3
Mountain’s manager of corporate wellness from August 2009 forward.
[15]
After Mr. Holt’s successful return to work in 2000, he drove New Flyer buses out
of the BTC, without significant time off due to injury, and without reporting significant,
relevant neck or other physical symptoms to Dr. Pilar, until the beginning of 2008. Dr.
herniation and radiculopathy, as observed in 2000, persisted, it did not affect his ability to
perform his work in the usual way between then and 2007.
[16]
In the fall of 2007, Mr. Holt received training on, and began to drive, a new style
of bus, the Nova, as well as the New Flyer. Coast Mountain was gradually replacing the
New Flyers in its fleet with Novas.
[17]
Given Mr. Holt’s recovery and return to work without restrictions from 2000 to
2008, I find that, until he raised his difficulties with the Nova in early 2008, and provided
a medical opinion from Dr. Pilar, Coast Mountain had no knowledge of, and no reason to
inquire into whether Mr. Holt had a disability affecting his ability to perform work to
which Coast Mountain would normally assign a driver, including driving a Nova.
[18]
Mr. Holt testified at length over parts of four days. Both in his evidence and in
the documents he wrote, he emerged as a rather combative individual, determined to see
his views prevail, even if they proved unsupported or ill-advised, and intensely suspicious
of his supervisors, managers, and others at Coast Mountain, and of his Union
representatives.
That said, I find that he made a genuine effort to tell the truth as he
understood it, and properly yielded some of the points made to him in a very intense
cross-examination.
[19]
For reasons on which I elaborate below, although I do not accept Mr. Holt’s
evidence on every point, I accept it on the central factual issue that only he could speak to
from personal knowledge: that he experienced pain and discomfort in his neck after
driving the Nova, but not the New Flyer, to a degree that prevented him from driving the
former, but not the latter. The cause of that pain and discomfort is a matter of medical
opinion, which I also consider below. I also consider whether that pain and discomfort
amounted to a disability, so as to impose a duty to accommodate on Coast Mountain, and,
if so, whether it fulfilled that duty. Mr. Holt was manifestly not a malingerer at any time
4
Pilar agreed in his cross-examination that, to his knowledge, even if Mr. Holt’s disc
during his career; rather he was eager to do his job to his own exacting standards,
occasionally without regard to how Coast Mountain said it wished him to do it.
Mr. Holt put in evidence a January 21, 2008 letter from WCB to Coast
Mountain’s Corporate Safety Section regarding another driver, of Mr. Holt’s age and
size. In that case, WCB determined, on the basis of its unidentified medical adviser’s
opinion, that the driver’s neck and back strain was more likely than not caused by “the
cumulative effect of the repetitive extreme rotation and torsion of the upper body”
involved in turning his neck to check customer passes while driving the Nova. This
conclusion was reached after the medical adviser conducted a site visit to “identify
ergonomic risk factors when the worker changed from driving the old bus to the new
Nova bus,” and in spite of Coast Mountain’s objection that there was no “extraordinary
movement required to view the front door or the entry of a bus.”
[21]
This decision is far from determinative of the existence or cause of Mr. Holt’s
discomfort in similar circumstances, but it does provide some support for the opinions of
Dr. Pilar, Dr. Lloyd-Smith, and Ms. Dobbin in his case, and it does support Coast
Mountain’s obligation to entertain the possibility that, in individual cases, differences
between the New Flyer and the Nova might contribute to neck injuries or neck pain.
[22]
Dr. Pilar is a graduate in medicine from the University of Toronto, and has been
licensed to practice medicine in Canada, and has done so, since 1976. In 2008, he had
been Mr. Holt’s treating physician, including with respect to his neck, for over ten years.
[23]
I was favourably impressed by Dr. Pilar as a witness. He did not strike me as
someone who uncritically accepted whatever his patient told him, and, while obviously
concerned for Mr. Holt’s well-being, in his evidence and written communications, he did
not stray into becoming Mr. Holt’s advocate.
He was careful in his answers in both
direct and cross-examination, and confined himself to conclusions that he considered
were supported by his examinations of Mr. Holt, the medical information about Mr. Holt
available to him, what he recorded and wrote at the time, and his own medical knowledge
and experience. He readily acknowledged that he was not a specialist in musculoskeletal
conditions such as Mr. Holt’s, and that he relied to a considerable extent on what Mr.
Holt told him about his pain, and what triggered it. This last point simply highlights the
5
[20]
importance of Mr. Holt’s credibility, both in the content of his testimony, and in what he
reported to his doctors and others over time.
On February 7, 2008, after examining Mr. Holt, Dr. Pilar wrote to Coast
Mountain’s Occupational Health Group as follows:
I have been attending Chris Holt as his physician for over ten years. He
suffers from a chronic neck condition that causes pain and is aggravated by
certain movements. Chris has been operating the Nova style bus 9600
series, which Coast Mountain Bus Company has introduced to its fleet, for
over one month. The position of the driver’s seat and the passenger door is
different from the previous style buses. The Nova style bus requires Chris
to rotate his head and neck frequently and these movements have been
causing his pain to increase significantly.
It is my urgent recommendation that Chris will drive only the old style
busses on his shift due to his medical condition.
[25]
In his cross-examination, in response to a specific question, Dr. Pilar said that Mr.
Holt had shown him Drake Medox’s 2008 ergonomic risk assessment of the Nova, and
that “theoretically” Mr. Holt could perform the actions detailed in it. However, he also
made the general comment that there is a difference between being able to perform a
function at all, and being able to perform it repetitively many times during a shift.
[26]
It is clear from the subsequent course of events, and from Mr. Holt’s evidence,
that he considered that Coast Mountain had knowledge of his previous neck condition in
1999-2000, that it should have known that the “chronic neck condition” in 2008 was a
continuation of his earlier difficulties, and that Coast Mountain should have accepted and
implemented Dr. Pilar’s recommendation without challenge, and without a need for
further inquiry. I do not think the first two of these assertions were well-founded. But, as
I have found, even if they were, Mr. Holt had returned to work in 2000 without
restrictions, and had raised no issue between then and 2008. For reasons explored in
more detail below, I do not accept the third assertion. It became the focus of many of the
subsequent dealings between Mr. Holt and Coast Mountain, and of the hearing before me.
[27]
After receiving Dr. Pilar’s letter, and with a number of exceptions that Mr. Holt
identified, and Coast Mountain acknowledged and corrected, Coast Mountain
6
[24]
subsequently provided Mr. Holt with New Flyer buses to drive on the routes which he
chose, in accordance with his seniority.
I am satisfied, based on the evidence of Mr. Holt, Mr. Buffam, and Mr. Hogue,
that, with minor inconvenience, Coast Mountain could have continued to provide New
Flyers for Mr. Holt indefinitely. In fact, from February 2008 to October 2009, it did so.
Rather, the issues Coast Mountain raises were whether Mr. Holt had a disability which
prevented him from driving Novas, and, if so, whether it was obliged to accommodate
him by providing New Flyers on routes of his choice, not whether it was able to do so.
[29]
On February 15, 2008, Mr. Holt gave written consent for Dr. Pilar to provide
medical information to Ms. Campbell about his fitness to work.
[30]
Ms. Campbell has been a registered nurse since approximately 1975, and an
occupational health nurse since about 1983. She has been employed as such at Coast
Mountain since 2007. Her major focus is on assisting with return-to-work plans for ill or
injured employees, and at any given time she has approximately 100 employees on her
caseload.
[31]
In dealing with requests for accommodation, her role is to seek medical
information to determine if there is a limitation, and, if so, what the employee’s
limitations and capabilities are, and whether they are temporary or permanent. Based on
that information, she looks at whether modification to the employee’s current job or an
alternative job is appropriate. Ms. Campbell depends on Coast Mountain supervisors for
her information about the operational side of its business. When she started, she had one
opportunity to observe a driver performing duties on a New Flyer. She had never done so
on a Nova.
[32]
As a witness, Ms. Campbell was generally forthcoming, responsive, and careful.
She acknowledged gaps in her knowledge, and limitations, particularly on her medical
expertise. On occasion, as set out below, I found that she overstated her evidence, as
when she characterized Dr. Pilar’s opinions as “over the top”, or when she professed to
be “confused” by differences she detected in the views of Dr. Pilar and Dr. Lloyd-Smith,
without raising, or seeking to resolve, the confusion with them, or seeking other medical
advice. Where her evidence on medical matters questioned or conflicted with that of Dr.
7
[28]
Pilar and Dr. Lloyd-Smith, I preferred their greater expertise, and direct familiarity with
Mr. Holt’s condition.
Whether jaded by her own experience of hundreds of employees claiming
disabilities, or influenced by a general culture of suspicion of the genuineness of such
claims, Ms. Campbell seemed to have influenced Coast Mountain, in its dealings with
Mr. Holt, in the direction of suggesting that only “objective” evidence could ever
establish a disability, and questioning, second-guessing, or even disregarding considered
medical opinions from his doctors.
With those cautions, I found Ms. Campbell’s
evidence credible and helpful. I found no support in the evidence for Mr. Holt’s apparent
view that Ms. Campbell had breached his medical confidentiality in her dealings with
Coast Mountain supervisors and managers.
[34]
Ms. Campbell’s first contact with Mr. Holt’s case was when Rob James, then a
Supervisor, Service Delivery at BTC, and Mr. Holt’s immediate supervisor, called to tell
her about Dr. Pilar’s February 7 letter, which reached her a couple of days later. She said
the letter raised “red flags” for her, because usually doctors would write about a condition
limiting movement or creating some type of physical problem. In this case, the doctor
was referring to a specific kind of bus, and recommending that Mr. Holt only drive New
Flyers, which was not something a doctor would normally know. She inferred that Dr.
Pilar was “obviously obtaining information from the employee”.
Ms. Pereira later
testified, with respect to Ms. Campbell’s function, that often a doctor would only have
one side of the story, and would lack information about the workplace, such as job
descriptions. It appeared to me that Coast Mountain was prepared to be suspicious of Dr.
Pilar’s medical opinion if it lacked information about the workplace, but equally
suspicious if it contained such information.
[35]
On February 13, 2008, Ms. Campbell e-mailed Mr. James to say, without
elaboration, that Mr. Holt’s “medical file supports a chronic medical condition”. She said
she would be able to write to his doctor when she had the report from an ergonomist
attending a “Nova bus seat assessment” the day before in Vancouver. She suggested Mr.
James advise Mr. Holt that Coast Mountain was waiting for that report, which was the
Risk Factor Analysis Report referred to below.
8
[33]
[36]
On February 15, 2008, as recorded in a WorkSafe BC consultation record of that
date, Mr. Holt spoke by telephone to John Stevenson of WorkSafe. Mr. Holt outlined his
view of the relevant history to that date, including Dr. Pilar’s opinion, and his intention to
and Safety Regulation made under the Workers’ Compensation Act. Mr. Stevenson
obtained Coast Mountain’s view of the relevant history from Isabel Krueger, Coast
Mountain’s manager of corporate safety, and apparently consulted “WSBC visiting
medical specialist, neurosurgeon W. Gittens [who] advised of the need to quantify the
pain syndrome and obtain MRI and CT scan data.”
[37]
Mr. Stevenson also wrote that he reminded Mr. Holt “of his obligation to provide
timely medical information in a cooperative way, including a quantitative pain syndrome
assessment from a recognized medical expert; i.e., neurologist [or] neurosurgeon”. Mr.
Holt “advised that he had contacted his doctor to initiate this assessment”, and that
contact led him back to Dr. Lloyd-Smith. Mr. Holt never obtained, and Coast Mountain
never asked for (though it had a copy of Mr. Stevenson’s Consultation Record), the kind
of information that Dr. Gittens apparently said was necessary. And, as discussed below,
Mr. Holt soon revoked his consent for his treating doctors to provide any medical
information to Coast Mountain.
[38]
On February 19, 2008, without waiting for the Risk Factor Analysis Report, Ms.
Campbell responded to Dr. Pilar. She said that Mr. Holt’s supervisor had told her that
Coast Mountain was unable to guarantee that he would have a specific style of bus. She
enclosed a 2005 Job Demands Analysis performed on the New Flyer, and referred to the
pending report of the worksite assessment of both the Nova and the New Flyer, which she
expected to show the job demands for both buses.
[39]
Ms. Campbell asked Dr. Pilar to state his objective findings as to Mr. Holt’s neck
rotation, flexion, and extension. She asked if Mr. Holt would be able to drive a Nova
occasionally, if a New Flyer were unavailable. She asked if Mr. Holt was receiving any
treatment that would improve his neck rotation so that he could drive a Nova. She asked
whether Mr. Holt’s restrictions were temporary or permanent.
9
She provided a job
refuse work on the Nova as “unsafe”, under Regulation 3.12 of the Occupational Health
demands analysis for non-driving positions, and asked if they were suitable alternatives to
driving a Nova.
Dr. Pilar faxed his response, by way of handwritten comments on a copy of Ms.
Campbell’s letter, on April 3, 2008. He said Mr. Holt had full rotation and flexion, and
some (unspecified) restrictions in extension of his neck. He said Mr. Holt would not be
available to drive a Nova occasionally, and that treatment would not make him able to do
so. Dr. Pilar said the restrictions were permanent. In response to the questions about
non-driving positions, Dr. Pilar said that Mr. Holt was scheduled to see a specialist, but
that, “according to the patient Flyer buses are available for his work as a driver.” In his
cross-examination, Dr. Pilar repeated that Mr. Holt’s neck condition was chronic and
permanent, and that, medically, it could be expected to deteriorate somewhat over time.
[41]
Ms. Campbell testified that Dr. Pilar’s note caused her concern, because she
expected to see a limitation on rotation, but there was none. She said the normal response
to pain is to decrease movements, and guard them. Instead, Mr. Holt had full rotation in
his neck. She thought that, since Mr. Holt had full rotation, driving a Nova once, or even
occasionally, would be acceptable, yet Dr. Pilar was saying he should not do so at all.
She said it was “over the top” for Dr. Pilar to say that Mr. Holt should not, on a
permanent basis, drive the Nova.
Ms. Campbell told Mr. James about Dr. Pilar’s
comments as to Mr. Holt’s permanent restriction on driving Novas, and asked Mr. James
to let her know how he wished her to proceed. She testified that she didn’t think Mr.
James responded.
[42]
Mr. Holt did see Dr. Lloyd-Smith on April 25, 2008, and Dr. Lloyd-Smith wrote a
report to Dr. Pilar the same day. However, Coast Mountain did not become aware of Dr.
Lloyd-Smith’s report, or obtain a copy of it, until September 2008, in circumstances
described below, where I deal with its contents, and with Dr. Lloyd-Smith’s oral evidence
about it.
[43]
On May 27, 2008, Ms. Campbell wrote back to Dr. Pilar. She said that an
ergonomist hired by WCB had conducted a worksite assessment on both New Flyer and
Nova buses “to determine objective job demands, and risk factors for the Nova bus”. She
said she was not at liberty to provide a copy of the report, but quoted it as saying:
10
[40]
[44]
In her evidence, Ms. Campbell said she asked “Safety” if she could send Dr. Pilar
the whole report, but, “They said no.” She did not further explain who “Safety” was, or
whether she understood or agreed with its reasons for refusing to provide Dr. Pilar with
all the available, potentially relevant information.
[45]
The complete undated Risk Factor Analysis Report, based on a February 12, 2008
jobsite visit, prepared by Brad Marshall, a jobsite evaluator from Drake Medox Health
Solutions, was in evidence before me. In Mr. Marshall’s view, based on assumptions (the
basis for which was not stated in the report) of an average of 77 stops per hour, and an
average duration of seven seconds, the required neck rotation for Nova drivers is “well
within normal limits”, and is only performed on an “occasional” basis – defined as 33%
or less of total work time.
[46]
Mr. Holt challenged this rather idiosyncratic and perhaps misleading definition of
the word “occasional”, but I do not think anything turns on whether it was apt. I note that
the 2005 Job Demands Analysis for the New Flyer, which Ms. Campbell sent to Dr. Pilar
on February 19, 2008, using the same definitions of “occasional”, “frequent” and
“constant”, states that neck rotation, flexion, and extension were all “frequent” (defined
as 34% to 66% of a shift).
[47]
The stated purpose of Mr. Marshall’s report was to “evaluate the potential for
neck injury while driving the Nova”. Mr. Marshall says that it was “unlikely that turning
the head to the right to greet passengers will result in injury”, but does not say what his
qualifications were to conduct such an inquiry or formulate such an opinion. He was not
called as a witness, so his opinions were not subject to cross-examination.
11
Although the rotation of forward gaze exceeds the normal range of cervical
rotation alone, the combined rotation of the trunk and neck along with the
lateral shift of gaze results in neck rotation well within normal limits. The
task of right neck rotation is performed on an occasional basis and without
external force. It is therefore unlikely that turning the head to the right to
greet passengers will result in injury. Simple education regarding the
rotation of the thoracic spine during this task will likely increase driver
comfort. This thoracic rotation can be promoted by suggesting that the
driver reach across to the right side of the steering wheel with the left arm.
[48]
I do not take the report as establishing, as a matter of expert opinion, that there
was no potential for injury to individual drivers from neck rotations required to drive the
Nova, and no need to consider individual cases. In a February 12, 2008 e-mail to Ms.
Holt:
Today’s assessment is not related to a specific claim – b[u]t looking at
whether ergonomic risk factors are present. Even if it is determined that
no risk factors are present, claims may still be accepted depending on
individual medical issues. This will not impact [M]r. [H]olt’s request [not
to be assigned to drive Novas]. (emphasis added)
[49]
However, I take Mr. Marshall’s report as some support for the reasonableness of
Coast Mountain’s decision to inquire further into Mr. Holt’s medical circumstances, and
not to simply accept Dr. Pilar’s recommendation that Coast Mountain not require Mr.
Holt to drive the Nova. Coast Mountain raised a legitimate question: if the physical
requirements of driving the Nova did not put the general population of drivers at risk,
what was it about Mr. Holt that led him to report, and Dr. Pilar to accept, that he could
not drive the Nova?
[50]
I take a similar view of the WCB entitlement officer’s May 22, 2008 decision that
told Mr. Holt there was “insufficient evidence to support [he] incurred a new injury or
aggravated, enhanced or accelerated [his] pre-existing neck condition as a result of
driving a Nova bus.”
That decision was supported by an opinion from Dr. Jenny
Robinson, a WCB medical adviser, that while Mr. Holt had a “pre-existing cervical spine
condition of herniated disc at C4/6, bone spur and cervical spondylosis (degenerative
arthritis), it is less than 50% likely that looking to the right to greet passengers on the
Nova buses as described by the worker was sufficient to materially aggravate, or enhance
or accelerate pre-existing cervical spine spondylosis.” Dr. Robinson further wrote that it
was “also less than 50% likely that a neck injury such as a strain resulted from the
controlled movement”.
[51]
Both the entitlement officer and Dr. Robinson relied on Mr. Marshall’s report and
the assumptions contained in it about the frequency and duration of neck rotation required
in driving a Nova. No witness substantiated those specific assumptions. Neither Dr.
12
Campbell and others, Ms. Krueger stated a similar view, with specific reference to Mr.
Robinson nor Mr. Marshall was called as a witness. Dr. Robinson did not examine Mr.
Holt, and her recorded opinion was not put to either Dr. Pilar or Dr. Lloyd-Smith in
[52]
On September 27, 2010, the Workers’ Compensation Appeal Tribunal (“WCAT”)
upheld the Review Board decision, in turn upholding the entitlement officer’s decision,
largely because it preferred Dr. Robinson’s medical opinion to those of Dr. Pilar and Ms.
Dobbin. The parties put this decision in evidence. On October 19, 2011, Mr. Holt sent
the Tribunal, without comment, an October 13, 2011 WCAT reconsideration panel
decision, which directed a rehearing of Mr. Holt’s appeal from the Review Board
decision, on the basis that the original WCAT appeal panel failed to consider the April
25, 2008 opinion from Dr. Lloyd-Smith, discussed below.
[53]
I note that, although there is overlap between the factual issues now back before
WCAT and those before this Tribunal, I need not decide whether any disability Mr. Holt
may have had was caused or contributed to by his work, but only whether he had a
relevant disability that affected his ability to do parts of that work, and, if so, whether
Coast Mountain met its duty to accommodate him.
[54]
I also note that, unlike WCAT, I had the benefit of both written and oral evidence,
including cross-examination, from Dr. Pilar, Dr. Lloyd-Smith, and Ms. Dobbin.
A
further medical opinion from Dr. Robinson, referred to in the WCAT reconsideration
decision, was not before me. As noted, Dr. Robinson was not called as a witness, and her
opinion was not put to Dr. Pilar or Dr. Lloyd-Smith. Finally, I note that WCAT has not
made any final determination of the existence, extent, causes, or consequences for his
employment, of Mr. Holt’s neck condition.
[55]
On June 5, 2008, Ms. Campbell wrote again to Dr. Pilar, requesting his medical
opinion on Mr. Holt’s ability to drive. She again quoted from Mr. Marshall’s report (and
offered to provide a complete copy of it), emphasizing that Dr. Pilar had said Mr. Holt
had full neck rotation, and that the report said that neck rotation while driving the Nova
was well within normal limits. In light of that information, she asked Dr. Pilar whether
Mr. Holt was able to drive a Nova, and, if not, what “objective medical” supported that
opinion. She reiterated that Coast Mountain could not guarantee that a New Flyer would
13
cross-examination, though it was put to Mr. Holt.
be available on routes chosen by Mr. Holt, but stated that they were available on other
routes for which he could sign up, and that he had refused to do so. She asked whether
[56]
As explained in Mr. Holt’s evidence, he generally used his seniority to sign up for
routes which began very early in the morning and ended around noon, and which he also
regarded as safe and pleasant. He avoided routes, such as the 135, which travelled
through the downtown eastside of Vancouver, and which he regarded as unsafe and
unpleasant. Ms. Campbell was alluding to the fact that routes such as the 135 were
served entirely by New Flyer buses, albeit sometimes by 60-foot articulated New Flyers,
rather than the 40-foot variety.
[57]
Mr. Holt sought to justify his refusal to sign up for such routes, partly on the basis
that the articulated New Flyers, unlike the standard ones, caused him back problems. The
medical and other evidence did not establish that Mr. Holt ever raised this as a serious
concern, either with his doctors or with Coast Mountain. In cross-examination, Dr. Pilar,
who reviewed his progress notes for Mr. Holt, did not find any reference to low back
pain, nor did he have any specific recollection of Mr. Holt’s consulting him with respect
to such pain, and stated that Mr. Holt had never discussed with him the possibility of
driving the articulated New Flyer. Dr. Pilar said that, if he had known that there were
articulated New Flyers on routes Mr. Holt could sign for, and if the doctor considered that
the Nova was causing pain and deterioration, he might well have suggested or
recommended that Mr. Holt do so. Dr. Lloyd-Smith did not say that Mr. Holt ever raised
an issue with him about back pain, and said that Mr. Holt did not convey any information
to him about the articulated New Flyers.
[58]
I find as a fact that Mr. Holt did not suffer from a disabling back condition which
prevented him from driving the articulated New Flyers. His reasons for preferring certain
routes may have been perfectly sound, but they were not related to any disability
established in the evidence. I discuss below whether, in light of all parties’ obligations to
facilitate any required accommodation, it was reasonable for him to insist on signing up
for his preferred routes, and on being provided with New Flyers on those routes.
14
Dr. Pilar would recommend that Mr. Holt sign up for such a route.
[59]
Later in June 2008, Mr. Holt saw Dr. Pilar, who showed him Ms. Campbell’s June
5 letter. On June 27, Mr. Holt wrote to Ms. Campbell, copied to Dr. Pilar and Dr. LloydSmith, among others, challenging Ms. Campbell’s assertion that New Flyers were not
seniority-based right to choose his routes, and withdrawing his consent for his doctors to
provide Coast Mountain with any further medical information.
Mr. Holt did not
volunteer that he had seen Dr. Lloyd-Smith in April, and on June 29 he instructed Dr.
Lloyd-Smith not to give Coast Mountain any information without his permission. I
discuss below the reasonableness or otherwise of Mr. Holt’s decision to withhold medical
information, in the context his obligation to establish that he had a disability, and, if so, of
all parties’ obligation to search for a suitable accommodation.
[60]
On June 30, 2008, Brad Boswell, the Manager of BTC Service Delivery, wrote to
Mr. James and Tracy Ramlu, a labour relations adviser, with reference to Mr. Holt’s June
27, 2008 letter to Ms. Campbell, and commented, “We still need to carry on with our
intentions of removing the accommodation.” However, it appears Coast Mountain’s
intentions of removing the accommodation were at least premature, as Ms. Ramlu spoke
to Ms. Campbell on July 3, who:
agreed it would be appropriate at this point for you (Brad and Rob) to meet
with Mr. Holt and request an Independent Medical Examination to
determine exactly what his limitations are, if any. Once you have met with
the Operator, please advise Dereth and she will coordinate the IME
appointment. Should Mr. Holt refuse the IME, we would be looking at
ending the accommodation as the Company does not currently have enough
medical information to support it.
[61]
On July 2, 2008, Dr. Pilar responded to Ms. Campbell’s June 5 letter by
confirming that Mr. Holt had withdrawn his previous authorization for Dr. Pilar to
provide her with medical information about him.
[62]
On September 2, 2008, Darryl Kuzik, a service delivery supervisor at the BTC,
wrote to Mr. Holt. He summarized the events described above, from Dr. Pilar’s February
7, 2008 letter recommending that Mr. Holt not drive the Nova, to Mr. Holt’s June 27
letter withdrawing his consent to his doctors’ sharing medical information. Mr. Kuzik
quoted from Mr. Marshall’s report, to the effect that neck rotation on the Nova was well
15
necessarily available on his preferred routes, objecting to what he saw as an attack on his
within normal limits, that right neck rotation was “occasional”, and that it was unlikely
that a driver’s turning his head to greet passengers would result in injury. He stated that
Coast Mountain required answers to its questions to Dr. Pilar, “to determine if a
concluded by giving Mr. Holt until September 9 to provide Dr. Pilar’s responses, failing
which, “the temporary accommodation of your request to not drive Nova buses will come
to an end.”
[63]
On September 4, 2008, Dr. Pilar wrote to Ms. Campbell, with Mr. Holt’s
approval. Mr. Holt had not changed his view that he would decide what information
from his doctors was provided to Coast Mountain. Dr. Pilar did not directly address the
questions in Ms. Campbell’s June 5 letter. However, he said that he had personally
observed the physical demands of the job while riding on a Nova, and said it was his
opinion that Mr. Holt was not physically able to operate a Nova, as he was unable to
perform the rotation, flexion, and extension of the neck required during a working shift.
[64]
In his direct examination, Dr. Pilar elaborated that, in the interest of treating Mr.
Holt, he thought it important to evaluate any difference between the two styles of bus by
riding on them himself, and observing other drivers as they performed their work
functions. I note that this approach had the disadvantage that he was not observing Mr.
Holt as Mr. Holt performed the work, but the advantages that Dr. Pilar’s subsequent
opinions about Mr. Holt were informed by actual experience of the work environment,
and that Mr. Holt had no opportunity, during these observations, to present him with an
exaggerated demonstration of the demands of the work.
[65]
In his cross-examination, Dr. Pilar explained that he made his observations of
drivers on the New Flyer and Nova around September 2008, several times a week, while
travelling from his home in North Vancouver to his office in Vancouver. He observed
many different drivers on different routes for between a few minutes and half an hour.
Mr. Holt neither suggested nor requested him to do so, but did ask him to write the
September 4, 2008 letter to Ms. Campbell after he told Mr. Holt about his observations.
[66]
Dr. Pilar made his observations in both rush-hour and off-peak times. He did not
agree with Ms. Wills that he did not go on the buses specifically to examine the drivers’
16
continuation of your request to not drive Nova buses is still required”. Mr. Kuzik
body mechanics; rather, he said that he specifically made a point of evaluating the
function of the drivers on the two styles of bus.
Dr. Pilar observed that a driver on the Nova had to rotate his torso, as well as his
neck and head, in excess of this function on the New Flyer, and that, in driving the Nova,
he had to move his chin separately from moving his torso. He acknowledged that he was
unable to give specific information about the degree to which the Nova driver had to
rotate his chin to a point behind his shoulder, as he had performed visual observation,
rather than measurements, and that in some cases the Nova doors would have been fully,
rather than partially open, requiring greater rotation than when the back portion was
closed.
In this as in other matters, Dr. Pilar’s reluctance to go beyond his own
observations and opinions, even when prompted by Mr. Holt, enhanced his credibility as
a witness.
[68]
Dr. Pilar went on to say that he observed the Nova driver to perform “very
significant rotation or torsion”, compared to that of the New Flyer driver. In crossexamination, when asked whether the extra rotation was a specific function Mr. Holt
could not perform, Dr. Pilar said that from his observations, his knowledge of Mr. Holt,
and his medical experience, he concluded that there was a difference in the driver’s
function on the two buses. This reinforced his acceptance that Mr. Holt was correct or
truthful in what he was reporting to Dr. Pilar.
[69]
Dr. Pilar acknowledged that he had not consulted with a physiotherapist as to
whether turning his torso, as opposed to just his neck, would assist Mr. Holt, but went on
to say that, from observing the other drivers, he concluded that, when they were behaving
in a “natural way”, turning to accomplish a task or to see to the safety of the bus’
operation, they were unlikely to be able to monitor the movement of their torsos and
necks. (I note that Ms. Dobbin, who was later told about torso-turning technique by two
driver instructors from Coast Mountain, testified that she did not hear from them that it
had been scrutinized or approved by an occupational therapist or kinesiologist, and was
unable to make any recommendations with respect to it.)
[70]
On September 8, 2008, Mr. Holt replied to Mr. Kuzik’s September 2 letter. He
asserted that he had no legal obligation to allow Ms. Campbell to contact his doctors, and,
17
[67]
referring to his 1999 neck and left arm condition, that the Occupational Health Group had
“nine months of medical evidence explaining exactly what my disability is”. He said that
his supervisors had told him that Coast Mountain had a policy not to accommodate
2008 report.
[71]
I am satisfied that no one from Coast Mountain told Mr. Holt that it had a policy
of not accommodating disabilities. Its written accommodation policy, issued in 2003, and
revised in May 2008, was in evidence before me. Further, I heard evidence from a
number of witnesses of cases in which Coast Mountain had accommodated disabilities –
including Mr. Holt in 1999-2000. I find that Mr. Holt misinterpreted Coast Mountain’s
insistence on inquiring into whether he had a disability affecting his ability to drive the
Nova, and its threat to require him to drive Novas on his preferred routes, as a refusal to
accommodate anyone in any circumstances, rather than as a refusal to permanently
accommodate him, absent what Coast Mountain regarded as acceptable medical
evidence.
[72]
Mr. Kuzik responded to Mr. Holt’s September 8 letter on September 10, 2008,
saying that Ms. Campbell had not received Dr. Lloyd-Smith’s April 25 report, and asking
Mr. Holt to provide a copy, which he did on September 17.
[73]
Dr. Lloyd-Smith has been a practicing physician since 1978, and a specialist in
sports medicine since 1982.
Sports medicine has to do with the diagnosis and
management of exercise-related disease, usually in the musculoskeletal system, and its
impact on other organ systems. In spite of the term “sports medicine”, he testified in
cross-examination that the majority of patients he sees are engaged in recreational
activities, and have musculoskeletal pain patterns independent of their participation in
sports.
[74]
Coast Mountain did not challenge Dr. Lloyd-Smith’s qualifications to give expert
medical evidence in the areas in which he testified.
He impressed me as a
knowledgeable, careful witness, who, like Dr. Pilar, was concerned for his patient,
without sliding into becoming his advocate in his written opinions or in the hearing. He
was careful to explain his degree of certainty or uncertainty in his information and
18
disabilities. He referred, apparently for the first time, to Dr. Lloyd-Smith’s April 25,
opinions. He was open to questions on cross-examination that might cause him to
reconsider or revise his opinions.
In answer to a question in cross-examination about the efforts he makes to ensure
that the history he receives from a patient is accurate and complete, Dr. Lloyd-Smith
testified that the history included how long the pain has been present, where it is located,
what tends to make it worse or better, whether there is radiation of the pain from one
location to another, the different treatment plans that have been attempted with what kind
of response, and the impact that the pain pattern has on the individual’s activities of daily
living and vocation. Dr. Lloyd-Smith addressed these matters in his assessment and
treatment of Mr. Holt.
[76]
Dr. Lloyd-Smith treated Mr. Holt in 1999-2000, and explained a CT scan taken in
2000, by saying that it indicated Mr. Holt had a disc protrusion, which could have been a
herniation, but was in any event a large bulge between his 5th and 6th cervical vertebrae.
In connection with a bone spur in the same area, the protrusion significantly narrowed the
place where the nerve root exited the spine before going down the left arm. He said there
was an excellent correlation between these observations, and Mr. Holt’s symptoms at the
time. I note that Mr. Holt reported these symptoms to Dr. Pilar and Dr. Lloyd-Smith
before the 2000 CT scan, and long before there was any issue between Mr. Holt and
Coast Mountain about whether he had a disability affecting his work, which adds to my
confidence in the honesty and accuracy of Mr. Holt’s reports to his physicians.
[77]
Dr. Lloyd-Smith testified that a subsequent CT scan on January 21, 2009 no
longer showed a large disc herniation. He said it indicated there was a bone spur between
the 5th and 6th cervical vertebrae, located in a position that narrows where the C6 nerve
root exits. He said this presented a scenario that could be asymptomatic, but that it could,
on the other hand, trigger symptoms if the “right” factors were to occur. Based on the
bone spur’s presence in 2000 and 2009, he said that that structural reality would continue,
but that whether or not there were symptoms related to that bone spur would vary.
[78]
In cross-examination, Dr. Lloyd-Smith reiterated that the 2009 scan showed no
disc herniation, but continued to show the bone spur. He elaborated that it was normal
for a herniated disc to resolve through treatment, and agreed that, even in the presence of
19
[75]
an abnormal result like herniation and a bone spur, it was possible for a patient to have
full function. However, he explained that, while “active sitting” could help to minimize
the likelihood of difficulty, the fact remained that the more rotation of body position was
be a stressor on someone with a bone spur in his neck, and could cause the patient to be
symptomatic.
[79]
When asked, in cross-examination, to comment on whether an increase in the
degree of rotation (as with the Nova) would be more important than the frequency of
rotation (as with both buses) in triggering the onset of symptoms, Dr. Lloyd-Smith said it
was difficult to judge which would be more important, because, at the end of the day, it
was the accumulation of movement that would be important. Ms. Campbell testified that
Dr. Lloyd-Smith’s comment in his report about the frequency of rotation confused her,
because Dr. Pilar had referred instead to the degree of rotation. However, Ms. Campbell
did not raise any such confusion in her September 23, 2008 e-mail to Mr. Kuzik, after she
had reviewed both doctors’ reports, or thereafter, and did not seek to have Dr. LloydSmith clarify his opinion.
[80]
Dr. Lloyd-Smith testified that he preferred to have Mr. Holt minimize symptoms
by maintaining a natural position for his spine, and his preferred posture, which involved
having the shoulders back, the neck elongated, the chin tucked in, and avoiding have
rounded shoulders or the chin forward. He said deviations from the preferred posture
increased the possibility of symptoms occurring.
[81]
When Mr. Holt asked him whether “hyper-rotation” of the neck could cause
symptoms to flare, Dr. Lloyd first illustrated his care with words and his independence
from Mr. Holt by saying that he would not use the term “hyper-rotation”, because it
suggested more than normal rotation. He also made the significant point that with a bone
spur between C5 and C6, it would not necessarily take more rotation than normal to
precipitate symptoms.
Also, the degree of rotation, time spent in rotation, and the
number of rotations were all factors that would tend to increase the likelihood of
symptoms. Continuous rotation beyond an individual’s means, and other movements of
the head, could cause neck symptoms to reappear.
20
required, the more stress there was on the neck and trunk, and that this could potentially
[82]
Invited to comment on Mr. Holt’s May 25, 2000 discharge report from CBI
Physiotherapy & Rehabilitation Centre, to which Dr. Lloyd-Smith had referred Mr. Holt,
written by a physiotherapist, a kinesiologist, and an occupational rehabilitation nurse, Dr.
management of his condition, was capable of recognizing his symptoms, and had training
in being able to recognize what would and would not cause pain. He also agreed that a
member of the CBI team had checked Mr. Holt out on a bus, and that it was appropriate
to do so on the style of bus he was driving at the time of the assessment.
[83]
Dr. Lloyd-Smith was aware that Mr. Holt experienced shoulder pain, for which he
had referred him to physiotherapy, and was also aware that the UBC Hospital had done
an ultrasound on Mr. Holt’s left shoulder, at Dr. Pilar’s request, in April 2010, and had
received a copy of the resulting radiologist’s report.
This showed that Mr. Holt’s
shoulder was structurally normal, except for a small amount of calcification in one of the
rotator cuff ends. Dr. Lloyd-Smith was not prepared to relate the amount of calcification
to the amount of pain; rather, he said that there could be a fair amount of pain with a
small amount of calcification, or even in its absence.
[84]
Although this is only one example, I draw the conclusion from the medical
evidence generally that Coast Mountain’s reluctance to believe, in the absence of
“objective” evidence of injury or damage, that Mr. Holt actually experienced disabling
pain, was misplaced. On the other hand, had Mr. Holt made his doctors’ opinions, and
the basis for them, available to Coast Mountain throughout 2008, 2009, and 2010, the
company would have been in a much better position to understand and accept his
limitations. As I discuss below, these failures of communication, understanding, and
good faith were multiple, and generally avoidable.
[85]
Dr. Lloyd-Smith’s report to Dr. Pilar said that Mr. Holt had left neck pain and
cervical spondylosis. Mr. Holt had been “pain free” between his return to work in 2000
and beginning to drive the Nova at about the end of October 2007. However, he had then
experienced “gradual increasing left-sided neck and arm pain and thumb and index finger
numbness, burning and sensation of weakness”, all of which gradually improved when he
stopped driving the Nova, which demanded a “frequent right-sided shoulder check”. Dr.
21
Lloyd-Smith agreed that, as a result of his experience there, Mr. Holt had training in the
Lloyd-Smith said that, on examination, Mr. Holt had some neck pain and tenderness, but
a full range of motion in his neck. Dr. Lloyd-Smith advised Mr. Holt to “avoid the new
buses until there is a change in the requirement of the frequent shoulder checks”. In
said that the range of motion required by the Nova was “potentially challenging”.
[86]
On September 26, 2008, Mr. Kuzik responded. He said that Dr. Lloyd-Smith’s
report provided subjective, rather than objective, medical information. He said that Coast
Mountain had decided to require Mr. Holt to attend a Functional Capacity Evaluation
(“FCE”) to “determine your capabilities on both New Flyer and Nova buses”. Mr. Kuzik
said that the Occupational Health Group would be in touch with Mr. Holt to arrange an
FCE (though Ms. Campbell testified that this never happened.) He also said that, without
the FCE, “the temporary accommodation of your request to not operate Nova buses …
will come to an end immediately.”
[87]
Neither then, nor later, did Coast Mountain explain why it did not act on the view
Ms. Campbell had expressed in July 2008: that it was appropriate to request an IME.
The confusion, both within Coast Mountain, and between it and Mr. Holt, about what it
needed to know about his alleged disability and any appropriate accommodation, how to
obtain it, and what medical or other professional, making what kind of assessment, could
provide that information, persisted throughout these events.
[88]
On October 22, 2008, Ms. Campbell e-mailed Mr. Kuzik to say that, although she
had been using “FCE” for the evaluation Coast Mountain was requiring Mr. Holt to
undergo, the assessment involved an assessment at the worksite, rather than at an
occupational therapist’s office, and so was properly characterized as an “Ergo[nomic]
Risk Assessment” (“ERA”). Notwithstanding this “clarification”, Mr. Kuzik and others
continued to refer to the assessment as an FCE, and in a November 28, 2008 letter to Mr.
Holt, Mr. Hogue asserted, contrary to Ms. Campbell’s advice, that they were the same. In
a December 12, 2008 letter to Mr. Holt, Coast Mountain’s Mr. Laverty acknowledged
that they were not the same, but “clarified”, also contrary to Ms. Campbell’s advice, that
Coast Mountain was seeking an FCE, not an ERA.
22
cross-examination, he clarified this as a reference to the range of motion required, and
[89]
In her evidence, Ms. Campbell said that she used the term “ERA” because that
was the term Progressive Rehab used to refer to an assessment in which it actually went
onto the buses. She said an FCE involved looking at the employee specifically, and
matched. She said that the terminology was “confused with different carriers”. I note
that Ms. Dobbin later distinguished an ERA from both an FCE and a site assessment. In
the circumstances, it is not surprising that Mr. Holt, like Ms. Campbell, Mr. Kuzik, and
Mr. Laverty, was confused about what kind of assessment or evaluation Coast Mountain
was seeking, or needed, in order to determine if Mr. Holt could drive the Nova.
[90]
Mr. Holt replied to Mr. Kuzik’s September 26 letter on October 23, 2008. He
said, in part:
CMBC … is in possession of the more than adequate medical information
that shows my disability is aggravated by the configuration of the Nova
buses requiring the driver’s head to rotate further than the New Flyer
buses. Due to my disability, which you have nine months’ of medical
evidence on, the Nova buses cause my symptoms to flare-up. I suggest
that your request for me to go for an FCA [as written] is unwarranted and
unreasonable. Therefore, there is no need for this testing as the specialist
and my family doctor performed the necessary testing. CMBC is well
aware of what my problem is and that I require to be accommodated with
the New Flyer buses that do not cause this excessive rotation of my neck
….
Mr. Holt concluded, “I find myself with no alternative but to file a Human Rights
complaint against you, your office, and the CMBC.” He did so, against Coast Mountain
alone, on October 30, 2008.
[91]
On November 4, 2008, Mr. Kuzik met with Mr. Holt and Mr. Murray. On
November 21, in a letter to Mr. Holt, Mr. Kuzik summarized his view of the November 4
meeting. He recorded Coast Mountain’s requirement that Mr. Holt attend an FCE,
“because the existing medical information on file was inadequate to justify the continuing
temporary assignment of New Flyer buses to your work”. He said that, because Mr. Holt
had not provided medical information to substantiate a disability, and declined to
participate in an FCE, Coast Mountain had no duty to accommodate his request not to
drive Novas, and, “effective immediately, you will be required to operate any vehicle
assigned to your route during the normal course of business.” Finally, with apparent
23
comparing their limitations to the job, as set out in a job demands analysis, to see if they
reference to routes such as the 135, served by New Flyers, he said, “it will be your
responsibility to sign work to which Nova buses are not typically assigned [as] you have
[92]
On November 24, 2008, Ms. Campbell sent an e-mail to Mr. James listing three
service providers who did “Ergonomic Risk Assessments at the work site”. She said:
Typically it is an Independent Occupational Therapist or Kinesiologist
doing the assessment. They will observe the client in the work activity,
looking for range of motion, counting timing (duration/frequency of
sustained position or movements), looking at the seat and adjustments.
The operator’s abilities and limitations are compared to the Job Demands
Analysis of the job to see if there is a match or discrepancies.
Recommendations could also be given.
[93]
Ms. Campbell listed the three providers as Medox Health Solutions, Progressive
Rehab, and Back in Motion. She did not explain in the document where the names came
from, or express a preference for one over another. She appeared to contemplate that Mr.
Holt would be given a choice among them. In her evidence, Ms. Campbell identified a
November 24, 2008 e-mail from Kari Shepard, an occupational health nurse at Great
West Life, headed “Ergo risk assessment/FCE”, in which Ms. Shepard listed Progressive
Rehab and Back in Motion, and said that “Occupational Therapist[s] generally do this”.
Ms. Campbell says that she added Drake Medox on her own. Ms. Shepard, too, appeared
to be suggesting, in error, that an ERA and an FCE were the same.
[94]
On November 28, 2008, Coast Mountain assigned Mr. Holt to a Nova bus, and a
supervisor prevented him from accepting another operator’s offer to trade her New Flyer
for his Nova. Mr. Holt then, as in February 2008, purported to invoke his right, under
Regulation 3.12 of the Occupational Health and Safety Regulation made under the
Workers’ Compensation Act, to refuse unsafe work.
[95]
Mr. Holt’s refusal triggered an investigation and a December 3, 2008 inspection
report by John Stevenson of the WCB, in which Mr. Stevenson determined that the
Regulation did not apply to Mr. Holt’s circumstances. However, Mr. Stevenson also
advised Mr. Holt to “report and avoid work where physical impairment creates undue
risk”, as per Regulation 4.19(2), and recorded Mr. Holt’s agreement to “choose from one
of four contractors providing functional capacity assessments by 2008-12-05 (memo to
24
the ability, with your seniority, to do this.”
parties on 2008-12-01 from WSBC)”. Both before and after this advice, Mr. Holt did
“report and avoid” the work he thought created undue risk because of his physical
[96]
The memo to which Mr. Stevenson referred was not placed in evidence, and he
was not called as a witness. I infer from Mr. Murray’s November 28, 2008 e-mail to Mr.
Holt, after Mr. Stevenson had attended at the BTC, that the “four contractors” Mr.
Stevenson referred to, and drew to both parties’ attention, were: Progressive, Drake
Medox, Back in Motion and Julie Veilleux. The first three were, in Mr. Murray’s words,
“in order of preference as discussed with [Mr. Stevenson’s] colleague”. Mr. Murray
added that Mr. Stevenson also recommended Julie Veilleux of Work In Progress, but that
she “could take a long time to get into see, she used to be with the board years ago but
went out on her own.” In his cross-examination, Mr. Murray reiterated that Ms. Veilleux
“was originally one of the choices given to [Mr. Holt] by the WCB rep.” In a November
29, 2008 letter to Mr. Kuzik, Mr. Holt also referred to having learned, on November 28,
“that the CMBC was giving me a choice of four companies.”
[97]
On November 28, 2008, after Mr. Stevenson had attended BTC, but before he
produced his report, Mr. Hogue wrote to Mr. Holt confirming an agreement reached that
day among Coast Mountain, the Union, and Mr. Holt, to the effect that Coast Mountain
would continue to provide Mr. Holt with “non-Nova” buses until Mr. Holt chose, by
December 5, a service provider for an FCE (which Mr. Hogue stated, contrary to Ms.
Campbell’s advice, was an ERA “which is performed at the worksite”).
[98]
Mr. Hogue listed “three providers acceptable to the Company”: Drake Medox
Health Solutions, Progressive Rehab, and Back in Motion. On a copy of the letter which
came from Coast Mountain’s files, someone (not Mr. Holt) had handwritten on the letter:
“No”, beside Back in Motion”, and added “4. Work In Progress”. I was not given an
explanation of who made these notations, when, or why. I infer from Mr. Stevenson’s
reported reference to “four contractors” in his December 1, 2008 memo to the parties,
from the fact that the notations appear on Coast Mountain’s copy of the letter, and from
the evidence of Mr. Murray and Mr. Holt, that Coast Mountain was aware that Mr.
Stevenson had included “Work in Progress” (and thus Ms. Veilleux) among his
25
impairment, and he did choose, at different times, two of the four contractors.
recommendations. In spite of Mr. Holt’s repeated inquiries as to why Ms. Veilleux was
not listed in the copy of the letter he received, or why she was not acceptable, Coast
[99]
Also on November 28, 2008, Mr. Kuzik instructed those responsible for assigning
buses to runs to “ensure that a New Flyer is assigned to the noted runs [those chosen by
Mr. Holt] until further notice”.
[100] On November 29, 2008, Mr. Holt wrote back to Mr. Kuzik, with his comments on
their November 21 meeting with Mr. Murray, and on the events of November 28. He
said he did not believe an FCE was warranted. He asserted that Coast Mountain had
exercised (and, he seemed to suggest, exhausted) its contractual right to “require an
employee to have a full medical examination by a specialist of the employee’s choice,
where circumstances so warrant”, by asking for objective medical evidence to
substantiate Dr. Pilar’s opinion, and by receiving Dr. Lloyd-Smith’s report.
[101] Mr. Holt referred to a list of eight questions which he and Mr. Murray had
provided to Mr. Kuzik on November 21. He acknowledged that he now had the means to
answer those related to the name of the company to perform the FCE, the names of the
tests involved, and the medical or educational background of the personnel involved.
However, he continued to ask what specific information Coast Mountain was looking for,
what the contractual basis was for its request, why the CT scan report showing a
herniated disc and bone spur was not “objective medical information”, how a person
performing an FCE could be seen to be providing “objective medical information”, and
why he should submit to the FCE, when Coast Mountain already had objective medical
evidence that “clearly shows why I cannot drive the Nova buses”.
[102] On December 7, 2008, Mr. Holt wrote to Mr. Hogue, in response to the latter’s
November 28 letter. He noted that the request for an FCE had now become an ERA, and
disputed that they were, as Mr. Hogue asserted, the same thing, but that they were “two
separate and distinct tests”. Mr. Holt said he had:
spoken to several of the experts that were recommended and found
acceptable to me, not only did they explain this, they also stated that these
tests were of no value for the type of problem that I suffer from and that
the doctors’ findings would supersede any of those tests.
26
Mountain never provided an answer, nor was one forthcoming in the hearing before me.
[103] Mr. Holt concluded, with reference to a pending decision from WCAT on his
appeal from the Review Board’s October 8, 2008 decision that his neck condition was not
caused or aggravated by driving the Nova, that, “I will wait to hear from WCAT on this
note that the WCAT decision in question was not issued until September 27, 2010, at
least in part because the WCAT Vice-Chair asked in March 2009 for further
investigation, and then became ill, which required a rehearing by another Vice-Chair.)
[104] On December 12, 2008, Mike Laverty, a Senior Labour Relations Advisor for
Coast Mountain, replied to Mr. Holt’s letters of November 29 to Mr. Kuzik, and
December 7 to Mr. Hogue. Mr. Laverty observed that a request for an accommodation in
employment was a three-party inquiry, involving Coast Mountain, the Union, and Mr.
Holt, and said that Mr. Holt was required to cooperate in the investigation and assessment
of his own concerns. Mr. Laverty acknowledged that Mr. Holt had provided objective
evidence of a medical condition in the form of a CT scan, and said that Coast Mountain
accepted that Mr. Holt had a medical condition. He went on:
Having established you have a medical condition, we now need to know
how your condition affects your ability to operate a bus. The information
we have is not sufficient, by itself, to support the accommodation you
seek. Rather, what the Company needs [is] specific medical information
that addresses how your particular medical condition(s) affect your ability
to operate a Nova bus, a New Flyer bus or any bus.
For this reason, we are seeking a qualitative review of how your particular
medical condition(s) affect your ability to operate a bus. The qualitative
review will be in the form of a Functional Capacity Evaluation, which will
measure your physical abilities against the physical requirements of
operating a New Flyer and a Nova bus. You are correct that there is a
difference between an Ergonomic Risk Assessment (ERA) and a
Functional Capacity Evaluation (FCE), and to clarify we are seeking a
Functional Capacity Evaluation (FCE).
[105] Mr. Laverty said that Coast Mountain was not prepared to wait for the WCAT
decision before obtaining the results of an FCE, as he said the “WCAT process is not
related to your request for accommodation”. He said Coast Mountain would answer Mr.
Holt’s questions with respect to the names of the tests to be administered, and the
qualifications of the personnel involved, after Mr. Holt had chosen a service provider,
27
matter before giving you my answer as to what company will be doing the testing.” (I
from among Drake Medox, Progressive Rehab, and Back in Motion. He did not mention
Work in Progress, or Ms. Veilleux.
same date, Mr. Holt stated that he had chosen Ms. Veilleux of Work in Progress to
“administer a ‘Site Assessment’ (SA) pertaining to my problem driving the Nova buses.”
He continued:
If you also want an “Ergonomic Risk Assessment” (ERA) as has been
stated in the letter from the Service Delivery Manager of Burnaby Transit
Center, Mr. Barry Hogue, dated November 28th, 2008, and also written into
the release form supplied by Coast Mountain Bus Company (CMBC) at
BTC, I agree to that as well.
It has been explained to me that the ERA does not require me to be present
and is the same test that was performed by Drake Medox. On the other
hand a SA includes me, while I actually perform my duties on the road and
lasts for about four hours.
[107] On December 29, 2008, Mr. Hogue responded to Mr. Holt’s December 12 letter:
We appreciate your input and suggestion of Julie V[ei]lleux of Work in
Progress, however, Work in Progress is not one of the providers we
provided you to choose from, and we would prefer to stay with the
providers which we were given from our Occupational Health Group.
We will not require an Ergonomic Risk Assessment (ERA) and apologise
for the miscommunication in our letter of November 28, 2008, we are
seeking a Functional Capacity Evaluation, as set out in our letter of
December 12, 2008, and not an Ergonomic Risk Assessment. … We also
will be happy to furnish a copy of the report to you and your treating
physician, Dr. S. Pilar.
[108] Mr. Hogue asked Mr. Holt to advise Ms. Campbell, to whom the letter was
copied, of his choice of provider for the FCE by January 5, 2009. When Mr. Holt had not
responded by January 8, 2009, Mr. Hogue sent a letter to Mr. Holt, saying that, in view of
a delay in getting his December 29, 2008 (mistakenly identified as December 28) letter
out to Mr. Holt, the deadline was extended to January 12, 2009.
[109] Except for some written requests from Mr. Holt to correct occasional failures to
provide him with a New Flyer rather than a Nova, matters appear to have rested there
until Mr. Hogue again wrote to Mr. Holt on May 14, 2009. He said he was following up
on his December 29, 2008 and January 8, 2009 letters, to which he said Mr. Holt had not
28
[106] In a December 12, 2008 letter, which may have crossed with Mr. Laverty’s of the
responded. Mr. Hogue now required Mr. Holt to respond with his choice of provider for
an FCE by May 22, 2009, failing which “we will cease the current arrangement where we
have been providing you New Flyer buses in anticipation of your cooperation in being
[W]e are prepared to work with you and the Union to assess and address
whether there is a need for an accommodation in your situation, however
you too must cooperate in this process. At this time the cooperation we are
seeking is to have you assessed through a Functional Capacity Evaluation.
[110] On May 29, 2009, under the heading, “End of Assignment of New Flyer Buses”,
Mr. Hogue again wrote to Mr. Holt. He acknowledged that Mr. Holt’s representative on
his October 30, 2008 human rights complaint had communicated with Ms. Wills, but
characterized that communication as only seeking “to delay your response further”. (That
communication between counsel is not in evidence before me.)
[111] Mr. Hogue also acknowledged that CAW had contacted Coast Mountain,
“inquiring why you could not pick your own provider for a Functional Capacity
Evaluation …”, and commented:
Your insistence in not communicating directly with me or a member of the
CMBC Occupational Health Group, makes it very difficult to clearly
identify and work towards answering your questions or concerns, or
explaining to you why we are not prepared to have one [of] your own
physicians or practitioners do the Functional Capacity Evaluation … .
I note that Mr. Holt had not asked to have one of his own physicians or practitioners do
the FCE.
Coast Mountain knew that Ms. Veilleux was neither – a fact explicitly
reinforced by his representatives on June 4 and August 7, 2009, to no avail.
[112] Mr. Hogue went on to say that Coast Mountain was “seeking an independent
opinion from a practitioner not involved in your care”. He continued:
[W]e are seeking an impartial opinion from providers with practitioners in
the field who are recognized and qualified to provide this information in
our opinion. We have selected three providers to give you options, and we
are still committed to answering the questions you put to us in your
November 29, 2008 letter once a provider is selected.
29
assessed as we have requested”. Mr. Hogue concluded:
Mr. Hogue set a deadline of June 1, 2009 for Mr. Holt to choose a provider from Coast
Mountain’s list, which, without explanation, included neither Ms. Veilleux nor Work in
[113] Mr. Holt’s human rights advocate, Lucy Pridgeon, responded to Mr. Hogue’s
letter by way of a letter to Ms. Wills on June 4, 2009. She noted that Coast Mountain had
asked Mr. Holt to attend “functional testing to ascertain whether his left neck pain and
cervical spondylosis limit his ability to drive a Nova bus”. She noted the “medical
recommendations from his family physician and his medical specialist, Dr. Lloyd-Smith,
that Coast Mountain accommodate his medical disability by allowing him to drive a New
Flyer bus only and avoid driving Nova buses.”
[114] Ms. Pridgeon then noted Mr. Holt’s willingness, in consultation with WorkSafe
BC, to consent to an assessment by Ms. Veilleux of Work in Progress, who had played no
role in Mr. Holt’s care. However, she said, since Coast Mountain had refused to utilize
Ms. Veilleux or Work in Progress, Mr. Holt would:
Consent to undergo functional testing with Progressive Rehab, as per the
three choices offered in the letter referenced above. Mr. Holt consents to
any and all aspects of the functional testing relevant to determining his
capacity and limitations with respect to driving the Nova bus.
Ms. Pridgeon also asked for information about the functional testing, a copy of the
referral letter, and a report of the findings.
[115] Unfortunately, on June 15, 2009, Coast Mountain learned that WorkSafe had
engaged Progressive Rehab to do a risk assessment in connection with Mr. Holt’s April
2009 refusal to drive a Nova. Mr. Hogue wrote to Mr. Holt on that day to inform him of
that discovery, explain that Coast Mountain did not think it appropriate to engage the
same provider to provide “an Independent Medical Evaluation in the form of a Functional
Capacity Evaluation”. He then required Mr. Holt to choose between Drake Medox and
Back in Motion by June 17, 2009.
[116] On June 16, 2009, Ms. Pridgeon responded to Ms. Wills that Coast Mountain had
not answered her requests for information about the testing, a copy of the referral letter,
and the identity of the person who would be “providing the medical opinion regarding
30
Progress.
Mr. Holt’s fitness to drive the Nova bus.” In view of her absence from the office until
June 24, she asked to delay Mr. Holt’s further response to Mr. Hogue until then. She
In the alternative, we draw your attention to the enclosed copy of an e-mail
from Bruce Murray to Chris Holt … where Mr. Murray lays out the four
(4) recommendations “from John Stevenson of WCB”. We note that Mr.
Hogue’s letter to Mr. Holt dated November 28, 2008 … only lists three (3)
of the four (4) providers listed in Mr. Murray’s e-mail. For the record, Mr.
Holt has consented previously, and continues to consent to undergo
functional testing by Julie Veilleux of Work in Progress. If this is
acceptable to the company th[e]n it will undoubtedly help to expedite the
issue of the functional testing and an appointment could be scheduled.
[117] In spite of Ms. Pridgeon’s June 16 letter to Ms. Wills, on June 18, 2009, Mr.
Hogue (to whom the letter was not copied) wrote that “we have not heard from you or
anyone on your behalf”. Accordingly, he said, “I will end the arrangement of providing
you only New Flyer buses, and you will receive your bus assignment through the normal
process, which may result in you[r] being assigned a Nova bus”.
[118] On June 4, 2009, Mr. Holt had written to Dr. Lloyd-Smith regarding Coast
Mountain’s “argument … that information from yourself and Dr. Pilar is subjective and
not objective.” continued:
I have been asked by the Human Rights Coalition to look into seeing an
Occupational Health Physician. The problem is that I have never heard of
such a doctor and neither has anyone else I have spoken to. I was
wondering if, either you or one of your associations, might be familiar with
this area of practice and if you are can you recommend the best of the
group to me.
[119] Dr. Lloyd-Smith responded, on July 6, 2009, that, “Dr. Ruth McIlrath is an
occupation health physician. You would access her via your union who would request an
accessment for you” (as written). In his cross-examination, Dr. Lloyd-Smith explained
that an occupational health physician would be more involved than others in the interface
between an individual and the workplace, on a practical and “hands-on” level. He agreed
that Dr. McIlrath could have been a resource to other doctors, and might have been able
to coach Mr. Holt on body positioning to avoid or minimize symptoms.
31
concluded:
[120] On the evidence before me, Mr. Holt never put Dr. McIlrath’s name, or the
possibility of an assessment by an occupational health physician forward to either CAW
or Coast Mountain. Apart from general references to obtaining an IME, on which Coast
[121] In July 2009, while Mr. Holt was driving his own vehicle, he was assaulted,
resulting in an injury to his left shoulder. This injury does not seem to have caused him
to lose any time from work, or to have made his neck condition any worse than it was
previously on any sustained basis. In Dr. Pilar’s clinical notes of an appointment on
August 6, 2009, the assault is noted, and on September 16, a sore shoulder is noted, but
the balance of the notes for those days were redacted as irrelevant when they were
disclosed to Coast Mountain.
[122] On July 31, 2009, Ms. Wills wrote to Mr. Holt’s newly-appointed counsel on the
human right complaint, Devyn Cousineau. She said Coast Mountain had “attempted to
accommodate Mr. Holt pending receipt of a Functional Capacity Evaluation (“FCE”) and
medical confirmation of the existence of the functional disability claimed.” She did not
explain what “medical confirmation” was required. In further response to the advocate’s
June 4 letter, she said:
There is no doubt that Mr. Holt is entitled to a copy of both the referral
request and a copy of the report. The two documents will be relevant at
any adjudication of his complaint. We agree, on behalf of our client to
provide you with both documents. Further, in the past, CMBC has assured
Mr. Holt that it will respond to any questions he has once he chooses the
FCE provider.
She did not respond to Ms. Pridgeon’s proposal that Ms. Veilleux do the assessment.
[123] Ms. Wills also enclosed a copy of Mr. Hogue’s July 31, 2009 letter to Mr. Holt.
In it, Mr. Hogue listed Drake Medox and Back in Motion as the available providers for
the FCE, and set a deadline of August 7 for a choice between them, failing which Coast
Mountain would “terminate its current effort to provide you with New Flyer coaches”.
He also said: “CMBC is not dictating to the provider or practitioner what means they use
to do the assessment. The method of assessment is left to their professional discretion”.
32
Mountain did not follow up, it never suggested such an assessment either.
[124] On August 7, 2009, Ms. Cousineau wrote to Ms. Wills. She said Mr. Holt would
not agree to Drake Medox, as it had previously been hired by WCB to produce the 2008
Risk Factor Analysis Report, which Mr. Murray had “heavily criticized”. Further, Mr.
She reiterated that Mr. Holt would agree to Ms. Veilleux, and enclosed information about
Work in Progress’ services and Ms. Veilleux’s CV. She continued:
You will note that Work in Progress specialises in functional and work
capacity assessments and that Ms. Veilleux has nearly twenty years of
experience in this field, including as a vocational evaluator for the WCB. I
confirm that Mr. Holt has never been treated or assisted by Ms. Veilleux
and as such she is qualified as an independent examiner.
[125] Mr. Holt’s counsel went on to ask Coast Mountain to reconsider its refusal to
agree to Ms. Veilleux, and, if it remained opposed, to provide reasons for its opposition
and a list of alternative providers. (In an August 10, 2009 letter to Coast Mountain’s
Director of Human Resources, Don MacLeod, the president of CAW, also asked for
reasons why Ms. Veilleux was not an acceptable choice. As noted below, Ms. Pereira did
not respond until the end of November, when she declined to address the issue.)
[126] In her evidence, Ms. Campbell acknowledged that Mr. Kuzik made her aware in
December 2008 that Mr. Holt had proposed Ms. Veilleux and Work In Progress. Neither
she, nor, to her knowledge, anyone else in the Occupational Health Group ever stated that
Ms. Veilleux was not qualified to perform an assessment on Mr. Holt. She had never
seen the outline of Work in Progress’ services or Ms. Veilleux’s CV, as provided by Mr.
Holt’s counsel, and did not know who at Coast Mountain decided that Ms. Veilleux was
not qualified.
[127] Ms. Pereira, who became Coast Mountain’s manager of corporate wellness in
August 2009, testified that it decided that Ms. Veilleux was not acceptable before she
started, that she did not know who made that decision, and that she did not know the
reason for it. She said that she questioned (to whom, she did not say) that decision when
she first read through the file, but never got an answer as to who made it. It is puzzling
that a person in Ms. Pereira’s senior position could not obtain an answer to such an
important and contentious question, in light of the fact that Ana Lopez, Coast Mountain’s
33
Holt would not agree to Back in Motion, “which has a bad reputation amongst workers”.
director of human resource services until she left in January 2010, assigned Ms. Pereira to
Mr. Holt’s file, and provided guidance to her for the first few months of Ms. Pereira’s
employment. For a considerable period, this was the issue preventing Coast Mountain
effective steps to resolve that issue.
[128] Mr. Hogue testified, in direct examination, that Mr. Stevenson from WCB
recommended Ms. Veilleux and three others in November 2008. Asked why he did not
bring Ms. Veilleux’s name to Mr. Holt’s or Mr. Murray’s attention, or put it into his
November 28, 2008 letter, Mr. Hogue said that he did not know why her name was not on
the list. He said the list of three was provided to him by the Occupational Health Group,
in conjunction with Labour Relations.
[129] From all the evidence, including the fact that Ms. Veilleux came recommended by
WorkSafe’s Mr. Stevenson in 2008; that her qualifications and the services offered by
Work in Progress appeared suited to the kinds of assessment under discussion; that she
had never dealt with Mr. Holt before; and that, even in the hearing, Coast Mountain did
not explain who made the decision, or why, that she was unqualified or unacceptable, I
infer that the main reason Coast Mountain rejected Ms. Veilleux and Work in Progress
was simply that Mr. Holt was prepared to accept them, and it was intent on forcing him to
choose from among the providers it had proposed.
[130] On September 1, 2009, Mr. Hogue wrote to Mr. Holt, following up on his June 15
and July 31, 2009 letters. In spite of the communications between Ms. Cousineau (on
which he had not been copied, but to which he referred) and Ms. Wills (on which the
“clients” were copied), Mr. Hogue asserted that Coast Mountain had still not heard from
Mr. Holt with respect to his choice of provider. He asked Mr. Holt to contact Ms. Pereira
by September 11 with his choice of providers, failing which, “we will terminate the
current arrangement of providing you New Flyer coaches”.
[131] As noted, Ms. Pereira was Coast Mountain’s manager of corporate wellness after
August 2009; she later became its manager of transit communications. She did not have
any medical background or training, but had been extensively involved while employed
at ICBC in health programs, disability management, return to work, and accommodation.
34
from obtaining the assessment and answers it said it wanted about Mr. Holt, but it took no
[132] After Mr. Hogue’s September 1 letter, there do not appear to have been further
written communications before October 9, 2009, when Coast Mountain scheduled Mr.
Holt to drive a Nova, and terminated the arrangement under which it had provided him
approximately ten months, during which he was effectively on unpaid leave.
[133] Also on October 9, 2009, Ms. Cousineau wrote to Ms. Wills, saying she had not
received a response to her August 7 letter, and asking to have the temporary
accommodation continued.
[134] Ms. Wills replied on October 23, 2009. She briefly reviewed the history from
Coast Mountain’s point of view, confirmed that it was no longer prepared to
accommodate Mr. Holt on New Flyers, and concluded:
In a final effort to attempt to resolve this matter, Coast Mountain Bus
Company is prepared to consider another provider as long as such is
acceptable to both parties. The two providers by Coast Mountain are
apparently not acceptable to Mr. Holt. Mr. Holt’s choice is not acceptable
to Coast Mountain. Can Mr. Holt provide one or more alternative
providers for Coast Mountain to consider[?] Coast Mountain will consider
alternative names provided by Mr. Holt in a final effort to resolve this
dispute and schedule a functional capacity evaluation.
[135] Between October 9 and 29, 2009, CAW filed an undated Stage 1 grievance about
Coast Mountain’s insistence that Mr. Holt choose one of Drake Medox or Back in
Motion, and its refusal to agree to, or explain its reasons for refusing to agree to, Ms.
Veilleux. On October 29, Mr. Kuzik denied the grievance. Ultimately, CAW decided
not to proceed with the grievance while the human rights complaint was outstanding.
[136] On November 24, 2009, Ms. Pereira wrote to CAW’s Mr. MacLeod, in response
to his August 10 letter requesting reasons why Coast Mountain would not agree to Ms.
Veilleux or Work in Progress. Ms. Pereira said this and all matters were being dealt with
through counsel in the human rights complaint, and “respectfully declined responding to
your letter as the issue raised forms part of the overall Human Rights complaint”.
[137] On December 14, 2009, in response to Ms. Wills’ October 23 letter, Ms.
Cousineau proposed that OT Consulting/Treatment Services Ltd. (“OT Consulting”)
perform an FCE. On January 18 and February 1, 2010 she repeated the proposal, and
35
with New Flyers since February 2008. Mr. Holt then left work, and did not return for
requested a response. When Ms. Wills did respond on February 9, 2010, she agreed to
the appointment of OT Consulting, asked whether Mr. Holt would schedule the
evaluation, and said that she would provide a draft of an instructing letter for Ms.
[138] On January 29, 2010, after examining Mr. Holt, Dr. Lloyd-Smith provided a
further report to Dr. Pilar. This time he noted left shoulder pain and a left rotator cuff
sprain (that seems to have been related to the July 2009 assault), left neck pain, cervical
spondylosis, and “component myofascial pain”.
He recorded that Mr. Holt “has
continued to be symptomatic related to his neck with repeated neck rotation [but that] [i]f
he keeps his neck in a natural position he does quite well”. Dr. Lloyd-Smith’s physical
findings were:
Neck range of motion – decreased end range extension, rotation, side
flexion. Tender paracervical muscles, left greater than right.
[139] With respect to management of Mr. Holt’s condition, Dr. Lloyd-Smith wrote:
Preferred posture. Trial of IMS, intramuscular stimulation a needling
technique helpful in the settling of myofascial pain. Continued easy
muscle strengthening.
[140] In cross-examination, Dr. Lloyd-Smith commented that Mr. Holt’s range of
motion in his neck had deteriorated since 2008. Asked to explain how this could be so,
given that Mr. Holt had not been driving since October 2009, he said that what happened
in the workplace was not the only issue. He said pain was not all about the bone spur,
and that one could have cervical spondylosis with or without symptoms. Myofascial pain
could also be due to increased muscular tension, which in turn would cause pain, which
in turn would cause further muscle tension. He said this could be either a primary or
secondary path that would result in chronic neck pain, and that myofascial pain could be
exacerbated by stress. Because Dr. Lloyd-Smith was not asked to define “myofascial
pain”, in order to understand his evidence, I obtained the following definition from
http://arthritis.about.com/od/diseasesandconditions/a/myofascial_pain.htm:
Myofascial pain is caused by abnormal stress on the muscles. It is a
chronic condition that affects the fascia (connective tissue that covers the
muscles).
36
Cousineau’s review. On the evidence before me, the draft was never provided.
[141] On February 3, 2010, physiotherapist and acupuncturist Joanne McBrinn, of the
Institute for the Study and Treatment of Pain in Vancouver, reported to Dr. Lloyd-Smith
[142] On February 16, 2010, Ms. Cousineau wrote to Ms. Wills, stating: “We have
disclosed all arguably relevant records from Dr. Lloyd-Smith and Dr. Pilar, including any
records relating to back or neck injuries not relied on by Mr. Holt with respect to this
complaint”, from which I infer that Dr. Lloyd-Smith’s January 29, 2010 consultation
report was promptly disclosed to Coast Mountain.
[143] In her February 16 letter, Ms. Cousineau also said that Mr. Holt would schedule
the evaluation with OT Consulting, but that he was then receiving physiotherapy that
required him to avoid any form of exercise. In the meantime, she suggested that Coast
Mountain provide its instructing letter, and confirm who would be interpreting the
findings. On March 19, Ms. Cousineau wrote to Ms. Wills again, saying that Mr. Holt
was now ready to schedule the FCE, and repeating her requests for a draft of the
instruction letter to O.T. Consulting, and the names of those who would interpret the
results. The evidence before me does not include a direct response to these requests.
[144] On March 15, 2010, Dr. Lloyd-Smith wrote an “opinion regarding the underlying
nature and preferred management of Mr. Holt’s neck and arm pain”. He briefly recited
his qualification as a sports medicine physician and as a clinical professor in the UBC
Faculty of Medicine, with “expertise in the diagnosis and nonoperative management of
musculoskeletal and exercise-related injuries.”
He listed the materials he reviewed,
dating back to 1999, when Dr. Pilar first consulted him about Mr. Holt, and then said:
In November 2007 Mr. Holt experienced an exacerbation of neck and arm
pain when he began driving a new style bus. He stated that the new bus
required more neck rotation that exacerbated his symptoms. When he
returned to driving his usual bus his symptoms settled by March 2008.
When Mr. Holt was assessed on January 29, 2010, his physical exam
revealed diminished neck range of motion, tenderness of his neck and
upper back muscles and normal neurological exam.
The impression at that time was that he had cervical spondylosis plus
myofascial pain. Myofascial pain is exacerbated and perpetuated by
physical and emotional stress. A contributor to his cervical spondylosis
was his prior symptomatic and documented C5-C6 disc herniation and
37
that she had assessed and treated Mr. Holt for left neck and shoulder pain.
The impression is that at present and into the future if Mr. Holt has
repeated neck rotation and frequent neck postures that are not neutral, then
Mr. Holt will experience an exacerbation of his neck and arm symptoms.
If Mr. Holt maintains preferred neck postures and movements, then he will
probably be symptom-free or experience mild exacerbations of symptoms
from his cervical spondylosis.
[145] On March 23, 2010, Ms. Cousineau wrote to “confirm that the scope of this
complaint, when it is heard by the Human Rights Tribunal, will include CMBC’s ongoing
failure to accommodate Mr. Holt, up to the date of the hearing”.
[146] Also on March 23, 2010, Ms. Wills wrote to Ms. Cousineau, in part: “In the
context of Mr. Holt’s continuing employment with Coast Mountain Bus Company, the
employer has also been attempting to obtain Mr. Holt’s participation in a functional
evaluation. In our view, Mr. Holt has frustrated that process.”
[147] In mid-April, with the hearing scheduled to start on May 26, 2010, Ms. Cousineau
withdrew as counsel for Mr. Holt, and he was self-represented thereafter, including
during the entire hearing.
[148] On April 21, 2010, Ms. Pereira wrote to Ruth Hobbs of OT Consulting,
confirming Mr. Holt’s April 22 appointment for the FCE, and stating that, “the report
produced as a result of this evaluation will be used to both determine whether Mr. Holt’s
request for accommodation is justified and, for purposes of litigation”. Ms. Pereira
summarized the relevant history from Coast Mountain’s point of view, and provided
documentation, including Dr. Pilar’s and Dr. Lloyd-Smith’s clinical records. She then
said:
We request that you examine Mr. Holt and do whatever other investigative
procedures are necessary in respect of the Nova and New Flyer buses in
order to provide us with the following information:
1. Mr. Holt’s functional capacity as it relates to his neck and shoulder
rotation, flexion and extension.
2. Please identify any functional limitation relating to operating the Nova
bus.
38
bone spur causing the C6 radiculopathy in 1999. His experience of an
increase in neck and arm pain with repeated neck rotation is consistent
with his cervical spondylosis and prior C5-6 changes.
As part of your assessment and information, please discuss and interpret
your findings having regard to Mr. Holt’s present functional capacity and
his functional capacity to drive either the New Flyer or the Nova bus.
Additionally, if there are any measures which could be taken to assist him
in driving either bus without risk of injury or of reducing the risk of injury,
we ask you to provide same.
That same day, Ms. Wills sent a copy of Ms. Pereira’s letter to Ms. Hobbs to Mr. Holt,
“for your records”.
[149] In an appendix to her letter, Ms. Pereira listed the documents provided to OT
Consulting, which included: the 2005 Jobs Demand Analysis on the New Flyer; Mr.
Marshall’s 2008 Risk Factor Analysis Report on the Nova; Dr. Pilar’s clinical records;
Dr. Lloyd-Smith’s clinical records; correspondence between Mr. Holt and Dr. LloydSmith in late 2009 and early 2010; WCB’s October 8, 2008 Review Board decision; and
Progressive Rehab’s November 27, 2009 Ergonomic Evaluation/Risk Factor Analysis,
written by Gary Worthington-White for WCB. All of these materials were also in
evidence before me.
[150] OT Consulting assigned an occupational therapist named Karen Winkler to do the
FCE. Ms. Wills discovered that Ms. Winkler was married to another lawyer in Ms.
Wills’ firm. On April 21, 2010, she advised Mr. Holt of that fact, and asked whether he
preferred to proceed with Ms. Winkler, or await the availability of another occupational
therapist. On April 23, Ms. Hobbs wrote to Ms. Pereira to advise that Tracey Dobbin
would do the evaluation.
[151] Ms. Dobbin earned a Bachelor of Science degree in psychology, and then
graduated from McMaster University with a two-year Master of Science degree in
occupational therapy in 2002, and has worked since then as an occupational therapist.
Her primary role has been to perform physical and functional capacity evaluations. She
also has experience, as part of a multi-disciplinary team (including physical therapists,
kinesiologists, physicians, and psychologists), in designing and administering return-towork plans, including gathering information about employment, ascertaining job
39
3. Please identify any functional limitation in respect of Mr. Holt
operating the New Flyer bus.
demands, creating simulated activities to increase tolerance for those demands, attending
worksites, and liaising with employers to co-ordinate returns to work.
from that of occupational therapists: the former evaluate the components of function,
specific muscle groups, and range of motion; the latter look more at observations of
behaviour.
[153] A thorough cross-examination established that there were shortcomings of both
form and completeness in Ms. Dobbin’s original May 26, 2010 report (largely addressed
in the June 11 supplementary report requested by Coast Mountain), and some limitations
on the value of her conclusions, arising both from the limited nature of her task and
methods, and from difficulties inherent in determining whether a subject’s reported pain
or physical restriction is “real”. However, I find that Ms. Dobbin was a competent
professional in her field, who diligently performed the task Coast Mountain gave her, and
answered its questions as well as the nature of that task permitted. I accept her account of
her observations and conclusions as honest, balanced, and reasonable.
[154] To the extent that Ms. Dobbin’s observations necessarily depended on what Mr.
Holt told her, I also accept that he was truthful with her, and did not attempt to
misrepresent either the physical activities required by his job, or the symptoms which
accompanied or followed those activities.
[155] That Ms. Dobbin did not testify as Mr. Holt’s advocate, or to put her professional
seal of approval on every fact he sought to establish, is exemplified by her response to his
question to her as to whether she observed him moving his neck in planes other than the
horizontal, such as when he was opening the bus doors or checking the curb. Clearly, he
was inviting her to agree, but instead she said frankly that she did not make any notes of
significant changes in plane, and was unable to comment further. She disagreed in crossexamination that, if a subject is going to be a continuing client, that relationship leads to
becoming “somewhat of an advocate”. I note that Mr. Holt was not a continuing client.
She was steadfast in saying that in all assessments, her role is to be a neutral evaluator.
40
[152] In cross-examination, Ms. Dobbin distinguished the work of physiotherapists
[156] The terms of OT Consulting’s engagement with Coast Mountain were first set out
in an April 14, 2010 letter from Ms. Hobbs to Ms. Pereira, which the latter signed on
As instructed by you, we will undertake a Functional Capacity Evaluation
of Mr. Holt and provide to you a written report outlining his functional
and/or physical limitation and/or his ability to return to work.
[157] In her evidence, Ms. Dobbin addressed the differences among an ERA, an FCE,
and the site assessment she performed. (As noted above, this was a point of frequent
confusion and contention between Mr. Holt and Coast Mountain, and within Coast
Mountain, all through the 2008 to 2010 period.)
[158] Ms. Dobbin said that an FCE takes place in a clinic. Its goal is to determine the
subject’s physical abilities and limitations in relation to functional activity. Activity is
broken into physical factors.
The evaluation measures the subject’s tolerance for
positions of sitting, standing, walking, bending, stooping, hunching, and kneeling. It
measures limb co-ordination while balancing, reaching, handling, and fingering.
measures strength in lifting, carrying, pushing, and pulling.
It
It measures activity
tolerance.
[159] An FCE is generally performed over the course of a full day of 5½ to 6 hours, and
can be as long as several days. It involves the administration of a combination of
standardized and non-standardized tests.
Findings are based on the administrator’s
observation of performance, including the range and quality of movement, movement
patterns, pace, use of compensatory strategies, and observable behaviours indicating
challenge, such as pain mannerisms. It also takes into account subjective reports of pain.
[160] In cross-examination, Ms. Dobbin said that an FCE always looks at the whole
body. For example, she said that, even if the evaluator was dealing with an ankle injury,
they would still test grip strength. The goal of an FCE is to objectively measure the
functional abilities and limitations of a worker, and an occupational therapist regards it as
an objective assessment of a worker’s capacity to meet job demands.
[161] Ms. Dobbin testified that an ERA, which she had not performed, and of which she
was not able to give as detailed a description, typically takes place at a worksite, but
41
April 19. Ms. Hobbs said, in part:
would not involve a client being present.
It examines the layout of the work
environment, as opposed to the interplay between the environment and the person.
the demands of the job are. The range of such an assessment depends on the reason for it.
For example, a site assessment can determine what the job demands are with respect to
specific required physical activities – the frequency and repetition of each, how long
postures are held, and time for recovery. A site assessment may also involve, as in Mr.
Holt’s case, observation of an individual’s performance on the job.
[163] Ms. Pereira and Ms. Dobbin spoke by telephone on April 26, 2010. Ms. Pereira
requested an evaluation of Mr. Holt’s tolerance for operating the New Flyer and the
Nova. As recorded in a June 11 letter, to which I return below, Ms. Dobbin suggested,
and Ms. Pereira apparently agreed on April 26:
that the best approach, which I believe to be the most objective and posed
the fewest biases, was to ride along with Mr. Holt as a passenger while he
operated both buses, one week apart, on the same route, while he stopped
at every bus stop along the route to simulate checking passes and greeting
passengers boarding the bus. It was agreed that I would interview Mr. Holt
and conduct a musculoskeletal review on that day and that you would
coordinate the 2 visits.
[164] Ms. Pereira testified, in her cross-examination by Ms. Wills, that Ms. Winkler had
talked to her about an FCE being a snapshot of how an individual works at a particular
time. Ms. Winkler asked if Ms. Pereira was open to a site assessment at the workplace
while Mr. Holt did the work he needed to do. Ms. Pereira said she responded that Ms.
Winkler should do whatever she needed, and that Coast Mountain was not looking for a
full FCE. She said it all sounded good to her.
[165] In contrast, Ms. Pereira said that she had a “completely different experience” with
Ms. Dobbin from that with Ms. Winkler. Ms. Dobbin’s comment during their telephone
conversation about self-report being the “gold standard” for pain made her uneasy, and
she described Ms. Dobbin as being “aggressive” in saying the only way she could assess
Mr. Holt was to ride along with him and tell her how he was feeling. As discussed
below, in my view this was not a fair characterization of the way Ms. Dobbin approached
her task.
42
[162] Ms. Dobbin testified that a site assessment is a worksite visit to determine what
[166] Ms. Pereira did not raise these concerns with Ms. Dobbin or her superiors at the
time, only after she received Ms. Dobbin’s report. From this and the other evidence, I
infer that Ms. Pereira’s concerns were largely with the fact that Ms. Dobbin’s report did
was not disabled from driving the Nova, and need not have been accommodated.
[167] Ms. Dobbin testified that, while Coast Mountain’s original request was to perform
an FCE, when the file was referred to her to avoid the potential conflict of interest for Ms.
Winkler, she reviewed it and discussed it with her director. She understood that Ms.
Winkler had suggested doing a work simulation, rather than full functional testing as
typically performed, as the issue was not Mr. Holt’s capacity or function in general, but
his ability to drive the two buses. Accordingly, Ms. Dobbin obtained Ms. Pereira’s
agreement to address the latter’s specific questions by riding along with Mr. Holt on both
buses, and confirmed that a full FCE, which would have included testing Mr. Holt for all
physical tolerances for activity, limb co-ordination, and strength, was not required. She
wanted to observe Mr. Holt operate both buses to evaluate any tolerances or issue that
might present themselves with either bus.
[168] As is apparent in the documents and from Ms. Dobbin’s cross-examination, the
task Coast Mountain asked OT Consulting to perform changed over a fairly short period
of time, from an FCE, to a modified FCE, to a modified FCE and a work simulation. She
acknowledged that what she actually did, following her conversation with Ms. Pereira,
was none of these, but a work simulation, informed by a musculoskeletal review.
[169] Also on April 26, 2010, Ms. Dobbin spent an hour reviewing the file materials
supplied by Coast Mountain, and then met with Mr. Holt at OT Consulting to interview
him and conduct the musculoskeletal review. She acknowledged in cross-examination
that she assumed that Mr. Holt still had a disc herniation (the absence of which was
established by the CT scan in January 2009, and that Mr. Holt did not advise her
otherwise). However, since her opinion was based on her observations of Mr. Holt, not
on any assumptions about the underlying causes of his reported pain, this
acknowledgement does not affect my view of the relevance or credibility of her opinion.
43
not support what had become Ms. Pereira’s and Coast Mountain’s position: that Mr. Holt
[170]
In re-examination, Ms. Dobbin testified that the 2009 CT scan was not in the
materials Coast Mountain supplied to OT Consulting before she assessed Mr. Holt, and
said that whether the symptoms he reported and demonstrated to her were consistent with
she did not intentionally exclude the 2009 CT scan report from the materials sent to Ms.
Dobbin.
[171] The revised terms of OT Consulting’s engagement were set out in an unsigned
April 27, 2010 letter from Ms. Hobbs to Ms. Pereira, following their telephone
conversation the day before, which included the following:
We confirm that our therapist, Tracey Dobbin will attend the workplace on
May 11 and May 18, 2010 at a time to be determined. This appointment is
estimated to last for approximately 2 hours.
It is recommended that the worker (or an individual able to perform their
job duties), as well as the supervisor be available during the work-site visit.
Health and Safety Coordinator and/or employee representative are also
encouraged to attend.
[172] Coast Mountain did not follow Ms. Hobbs’ recommendations with respect to the
attendance of others at the appointment. In direct examination by Mr. Holt, who asked
her simply whether she contacted CAW about the recommendation, Ms. Pereira did not
answer that question, but volunteered that Coast Mountain’s non-participation was
intentional on her part, as in everything she had seen to that date, Mr. Holt mistrusted
Coast Mountain, and she wanted to avoid any suggestion that it was trying to influence
the outcome of the assessment. I comment below on Ms. Pereira’s later efforts to
influence Ms. Dobbin’s conclusions.
[173] Without being asked any other question, Ms. Pereira went on to say that, in
hindsight, she wished Coast Mountain had sent somebody, because a number of the
results were questionable. This was one of a number of occasions on which Ms. Pereira,
in giving her evidence, rather than acting even-handedly in supplying information to the
Tribunal, seemed to be trying to advance Coast Mountain’s case by giving nonresponsive answers, or taking pains to answer more than was asked, when she thought it
would harm Mr. Holt’s case. Another example was when Mr. Holt asked her whether she
had a medical background or training, and, having acknowledged that she did not, went
44
his doctors’ diagnosis in 1999 was beyond her area of expertise. Ms. Pereira testified that
on, without a further question, to detail her exposure to labour, employment, and workers
compensation law in a course taken through UBC. In a further instance, cited below, Ms.
Pereira mistakenly criticized Ms. Dobbin for using (and, impliedly, Mr. Holt for
neck movements, during Ms. Dobbin’s assessment.
[174] These tendencies on Ms. Pereira’s part affected, to some degree, both my
assessment of the reliability of her oral evidence, and also my sense of her motivations in
the actions she undertook on behalf of Coast Mountain, particularly with regard to Ms.
Dobbin’s assessment and report. There is no doubt that Mr. Holt was a partisan warrior
on his own behalf, and I have taken due account of that in assessing his evidence. I
would have benefitted from greater neutrality and care from someone in Ms. Pereira’s
position.
[175] In her May 26, 2010 report to Ms. Pereira, Ms. Dobbin recorded that, on May 11,
2010, she accompanied Mr. Holt, alone, from the BTC as he drove a Nova for just under
two hours, over a route in Burnaby and east Vancouver, while he stopped at each of 100
stops, and simulated checking passes and greeting passengers boarding. His seat was
adjusted to fit his size, and was positioned as far back as possible. The door was adjusted
so that only the front two-thirds opened, which reduces the amount of twisting required to
face towards boarding passengers. On May 18, 2010, Ms. Dobbin accompanied Mr. Holt
in a nearly identical simulation in a New Flyer, except that its doors cannot be adjusted
for partial opening.
[176] Ms. Dobbin testified that she proposed a one-week gap between the two trips,
because in her experience working with people in pain, any aggravation of their
symptoms tended to hit their maximum level on day two or three, and then subside. She
wanted to avoid pain behaviour or mannerisms related to that aggravation, rather than to
the actual activity.
[177] Ms. Dobbin testified that, on each of the two ride-alongs, she stood at the front of
the bus and made detailed notes at each stop. She observed that, of the two buses, given
the position of the driver seats in relation to the doors, of which only the front portion
45
generating) inaccurate figures about the number and duration of his stops, and resulting
was open on the Nova, the Nova required much more of a neck rotation in order to
simulate looking at the passengers getting on and off the bus.
evaluation of Mr. Holt, stated the following opinion:
Mr. Holt demonstrated functional limitations and reported aggravation of
his symptoms that would interfere with his ability to operate a Nova bus on
a full-time basis. Specifically, with successive simulated bus stops, he
became guarding of his neck movements by relying on compensatory body
movements such as deep trunk rotation combined with stooping and
significant lateral movements of the gaze and he demonstrated overt signs
of discomfort beginning approximately half way through the route. He
also reported aggravation of his neck, left shoulder and low back
symptoms within a short period of driving which peaked in intensity three
days after the evaluation. It is possible that he could drive a Nova on a
part-time basis with accommodations, such as with additional breaks and
shorter routes.
…
Mr. Holt did not demonstrate any restrictions regarding his ability to
operate the New Flyer bus and therefore I anticipate that he could work as
a bus driver operating this style of bus on a full-time basis.
[179] Ms. Pereira spoke by telephone to Irene Chappell, OT Consulting’s Clinical
Director, on June 3, 2010, to draw to her attention perceived deficiencies with Ms.
Dobbin’s report. Ms. Dobbin acknowledged some of those deficiencies in her evidence,
but stood by her opinion. In contrast to Mr. Hogue’s assurance to Mr. Holt in July 2009,
that, “CMBC is not dictating to the provider or practitioner what means they use to do the
assessment [and that the] method of assessment is left to their professional discretion”,
Ms. Pereira expressed firm ideas about the form and content of a suitable report, and,
though her observations were cast as questions, implied that, if Ms. Dobbin had properly
considered information highlighted by Ms. Pereira, she would have reached different
conclusions.
As agreed during that conversation, Ms. Pereira requested that Ms. Dobbin
respond to 12 detailed questions which Ms. Pereira regarded as outstanding. Finally, Ms.
Pereira said, “As the report is incomplete, I would expect that any responses to my
questions would be at no further cost”.
[180] In Ms. Pereira’s evidence, in which she characterized Ms. Dobbin’s report as
“questionable from the word go”, she was critical of Ms. Dobbin for basing her
46
[178] In her May 26, 2010 report, Ms. Dobbin, based on her findings from her
conclusions on her observations of Mr. Holt making an average of 100 stops, averaging
13-14 seconds per stop, when she said the “Job Demands Analysis” that Drake Medox
did included estimates of 40-53 stops per hour, averaging 7 seconds per stop. In fact,
or duration of stops. The document to which Ms. Pereira was apparently referring was
Drake Medox’s 2008 “Risk Factor Analysis Report”, and it assumed average stops per
hour of 77, not 40-53. Ms. Pereira was unable to explain where the figures in the “Job
Demands Analysis” came from. In any event, from Ms. Dobbin’s report, it is apparent
that Mr. Holt made 100 stops in total in each two-hour simulation, or an average of 50 per
hour, which is not, as Ms. Pereira believed, more than those in the 2008 report, but
considerably less.
[181] If Ms. Pereira was recalling, instead, Progressive Rehab’s 2009 Ergonomic
Evaluation/Risk Factor analysis, based on information supplied by Coast Mountain about
Mr. Holt’s routes, the figures she cited were still inaccurate or incomplete. That analysis
assumed stops of 32 to 53 per hour, and durations of 6 to 13 seconds, on the #27 and #28
routes Mr. Holt actually drove with Ms. Dobbin. Thus, Mr. Holt’s stops and durations
during the assessment were within the ranges recognized by Coast Mountain’s figures,
and not exaggerated, as Ms. Pereira sought to suggest.
[182] On June 11, 2010, Ms. Dobbin provided detailed written responses to Ms.
Pereira’s questions. Coast Mountain did not disclose the questions or the answers to Mr.
Holt. He only became aware of the existence of the June 11 document when he contacted
Charlene Wharton, the “boss” of OT Consulting, to arrange for Ms. Dobbin’s attendance
on June 29 as a witness in this hearing. I ordered disclosure of the document, and
subsequently entered it into evidence, over Ms. Wills’ objection that it was subject to
litigation privilege. I said that I would incorporate reasons for ordering disclosure and
admitting the document in my final decision. However, before Ms. Dobbin began her
testimony, I confirmed with the parties that there was no remaining issue with respect to
the materials I ordered disclosed, and Ms. Wills has since confirmed that she did not
intend to pursue her objection, so I need not deal further with that issue.
47
Drake Medox’s 2005 Job Demands Analysis does not include any figures about number
[183] Also on June 11, 2010, Ms. Chappell, who is also an occupational therapist, wrote
to Ms. Pereira that she had discussed the matter with Ms. Dobbin, reviewed her responses
to Ms. Pereira’s questions, and now “assume[d] her report and subsequent response to
contact her if she had further questions. I was given no evidence that, apart from her
evidence at the hearing, Ms. Pereira or Coast Mountain disagreed with that assumption,
or raised any further questions with Ms. Chappell or OT Consulting.
[184] Taking Ms. Dobbin’s May 26, 2010 report and June 11, 2010 letter together, she
observed Mr. Holt in each bus under conditions simulating as closely as possible the
physical demands of performing his normal duties on a full-time basis. Based on her
knowledge, experience, and observations, she was satisfied that he was not
manufacturing or exaggerating either the duration or extent of the required physical
motions, or his report of the symptoms he experienced then and later.
[185] In cross-examination, Ms. Wills took particular issue with Ms. Dobbin’s
description of self-reporting as the “gold standard” in the assessment of pain. However,
it is difficult to imagine an “objective” assessment of pain which does not depend on selfreporting. This does not mean that either the witnesses or the Tribunal are bound to
accept Mr. Holt’s reports of pain or discomfort, or should not consider whether there was
an objective basis for such reports. Nor does it mean that witnesses or the Tribunal
should not consider whether Mr. Holt accurately described the physical demands of
driving the two models of bus, or whether the different effects he described were
attributable to the differences between the Nova and the New Flyer. It does mean,
however, that a search for objective, independently-verifiable physical causes for every
physical disability involving pain, without regard for the words and actions of the person
experiencing the pain, may be misguided.
[186] In cross-examination, Ms. Dobbin responded to a question about how she would
work through a situation in which a patient reported significant pain or discomfort in
performing actions which measurement and testing showed was within their capacity or
range of motion.
She said that, if she hadn’t seen signs of difficulty, such as
compensatory movements or changes in movement patterns, but the patient was still
48
your questions fulfills the obligation of the assessment”. She invited Ms. Pereira to
reporting high levels of pain, she would scale back the activity. If education about “hurt
versus harm” was not helpful, and the pain rating remained high without objective signs
of difficulty, she would get a psychologist involved. If the patient was unable to progress
making further progress, she would refer them to a pain program.
[187] In another response to a cross-examination question, in which it was suggested to
Ms. Dobbin that she should have had a full understanding of the objective measurement
of Mr. Holt’s capacity of neck extension, flexion and rotation, so that she could “assess
whether his report of pain was exaggerated”, she said, and I agree, that she did not think
that one was related to the other. She said that her assessment was a behavioural
observation, based on watching Mr. Holt operate the two buses. The unstated premise of
the question, which, based on the evidence I heard, I do not accept, is that because Mr.
Holt had a measured ability to move his neck in certain ways without pain, he must have
been exaggerating when he reported (and, in Ms. Dobbin’s sustained observation,
demonstrated) experiencing pain when he actually drove the Nova.
[188] Ms. Dobbin also acknowledged the challenges in determining whether a subject is
making an appropriate effort during an assessment. She said that many of the objective
measures used to determine effort have been found not to be scientifically sound, and that
it comes down to the assessor’s clinical judgment in all the circumstances. As one
example, she said that the signs still used to determine grip strength had no scientific
basis for determining consistency of effort, and that the best way to make such a
determination was to administer “distraction-based” tests. If the subject’s performance
changed when distracted, or was inconsistent over time, that would be a basis for
evaluating consistency of effort. From this evidence, I infer that the length of Ms.
Dobbin’s bus trips accompanying Mr. Holt, and the need for him to attend to all the
details of his driving, had a least some of the elements of a distraction-based test, and
informed her clinical judgment about the appropriateness of his effort during the
assessment.
[189] When Ms. Wills put to Ms. Dobbin that a person could report pain or act like they
were in pain, Ms. Dobbin agreed, but when Ms. Wills suggested that both were subjective
49
due to reports of pain, she would get a physician involved. And, if the patient was not
rather than objective, Ms. Dobbin responded that when an occupational therapist looks at
function, they are looking for objective behaviours, movement patterns, and
compensatory strategies observed on the job.
Though these observations may be
“subjective”.
I infer from this and the other evidence that, while it is possible for a
subject such as Mr. Holt to exaggerate both his behaviours and his reports of pain, Ms.
Dobbin’s assessment was designed to minimize, so far as possible, the danger of this
occurring. Reinforced by my own assessment of Mr. Holt’s credibility, both in reporting
to his physicians and other assessors, and in giving his evidence on these points, I accept
Ms. Dobbin’s evidence of her observations, and her general conclusions about Mr. Holt’s
capacity to drive the Nova.
[190] In his direct evidence, Dr. Pilar, who had had a chance to review Ms. Dobbin’s
report before testifying, and who had experience in evaluating and interpreting such
reports, testified that its methodology and conclusions were consistent and in keeping
with his findings over the years in treating Mr. Holt.
[191] In his direct evidence, Dr. Lloyd-Smith, who had also had a chance to review Ms.
Dobbin’s report, said that an FCE could be of value in assessing Mr. Holt’s condition, but
that the difficulty was that it was only a snapshot at one relatively brief point in time of
the subject’s range of motion and strength, and did not take into consideration the
potential deleterious effects of movement, nor did it reflect the potential for a flare-up of
symptoms with repeated exposure to movements over time. He said that the “function”
determined by an FCE was poorly correlated with what actually occurred in an
individual’s life. He also said that a site assessment, such as that performed on Mr. Holt
by Ms. Dobbin was the preferred way to go, because it gives a real reflection of what is
occurring in the interface between the individual and the workplace.
In cross-
examination, Dr. Lloyd-Smith repeated that there could be a mismatch, with respect to
exacerbation of symptoms, between an FCE, and actual work demands over a longer
time. As he repeated in his cross-examination, “It’s all about the interface between the
person and the activity”. He agreed with Ms. Dobbin’s findings as they pertained to Mr.
Holt.
50
inaccurate as the result of exaggeration by the subject, they are not thereby rendered
[192] Ms. Dobbin also testified with respect to the limitations on her assessment. She
said that it would require a work trial to determine at what level Mr. Holt could function
on a continuous basis. She said that was not what she was testing for; rather, she was
In cross-examination, she
acknowledged that she did not take into account any possible “deconditioning” of Mr.
Holt between October 2009, when he stopped driving buses, and April 2010, when she
assessed him. (I note that Dr. Pilar had provided written medical clearance for the
assessment.) She said that her assessment was a “photograph, not a moving picture”, and
that it would be ideal if Mr. Holt had undergone conditioning first, and if she could have
assessed him over more than the parts of two days she did. In direct examination, she
said, as she had told Coast Mountain in writing, that it would take a work trial or returnto-work attempt, with appropriate modifications or accommodations, and further testing,
to determine whether Mr. Holt could drive specific routes, or required extra breaks. In
re-examination, Ms. Dobbin said that Coast Mountain had not requested that Mr. Holt
undergo work conditioning before she did her assessment.
[193] Dr. Lloyd-Smith testified in cross-examination that he did not do onsite
assessments himself, but left them to the physiotherapists or occupational therapists who
generally performed them. He acknowledged that such practitioners had no way of
assessing subjective information about a person’s reported level of pain, but had to rely
on what the subject said. However, he did comment that the assessor could (as Ms.
Dobbin did) make an objective assessment of the subject’s posture and movement pattern
during the assessment. He agreed that, in the end, the result was an observation of how
the subject manipulated their body, and what they said about the level of pain.
[194] When Mr. Holt returned to work in about September 2010, he worked at the
Richmond Transit Centre, where he was able to sign for work to which only New Flyer
buses were assigned.
In discussions between Mr. Holt and Ms. Wills during Mr.
Murray’s evidence, Mr. Holt commented that his seniority gave him the ability to move
from one property (like the BTC) to another. In his cross-examination, Mr. Murray
testified that Mr. Holt never communicated that he was prepared to sign up at another
transit centre if he could thereby avoid Novas, and that he had never seen a
communication from Coast Mountain to employees in general that there were no Novas
51
looking at his functioning at a given point in time.
in Richmond. He did agree that, if Mr. Holt had wanted to sign up to work in Richmond,
he could have done so during the consolidated sign-up in July of each year, to start that
September. In re-examination, Mr. Murray expressed the view that “of course” Coast
below the impact of the availability of this work in Richmond, with respect to issues of
accommodation.
[195] I listened carefully to Mr. Holt’s evidence, including an extremely challenging
cross-examination. I observed his behaviour and demeanour over many days of hearing.
Having considered his evidence, and in light of the opinions of Dr. Pilar, Dr. LloydSmith, and Ms. Dobbin, all of which were tested by rigorous cross-examination, and in
the absence of any contrary expert opinion tendered by Coast Mountain, I am satisfied,
on a balance of probabilities, that Mr. Holt experienced the escalating neck pain and
discomfort that he reported when he was assigned to, or tested on, a Nova bus, that he did
not experience those symptoms when he was assigned to, or tested on, a New Flyer bus,
and that the difference was attributable to the way he, individually, and given his
underlying neck condition, responded to the different physical configurations, and
corresponding physical demands, of the two buses. This finding is specific to Mr. Holt
and his specific circumstances; it is not a determination that the Nova bus poses (or does
not pose) a significant risk of causing or exacerbating injury in other drivers.
Law
[196] The parties filed written arguments, supplemented by oral arguments on the last
day of the hearing.
[197] Mr. Holt’s argument is almost entirely factual, and addresses at length what he
says is the evidence establishing that, from February 2008 forward, he had a disability
which prevented him from driving the Nova, and that Coast Mountain failed to
accommodate that disability. Although I do not refer in detail to his arguments based on
the evidence, I have considered them above in my reasons on the facts. I discuss
accommodation below.
52
Mountain should have let Mr. Holt know there were no Novas in Richmond. I discuss
[198] Mr. Holt also says that he should be compensated for lost wages, expenses, and
injury to his dignity, feelings and self-respect. I consider these submissions below.
respect to the definition of a disability, the elements a complainant must prove in order to
establish discrimination, or the principles governing the circumstances in which the
Tribunal considers making remedial orders for compensation.
[200] Coast Mountain argues, as stated in its opening, that the sole factual issue is
whether or not Mr. Holt had a relevant disability. It concedes that he had and has a
medical condition affecting his neck, but denies that his medical condition constituted a
physical disability preventing him from driving the Nova bus. I have considered Coast
Mountain’s arguments about what evidence to accept, and why, in the course of making
my factual findings. Here, I address its arguments about whether Mr. Holt’s condition
amounts to a disability, and, if so, whether it met its duty to accommodate him. I also
address its arguments about whether Mr. Holt is entitled to compensation on any of the
bases on which he seeks it.
[201] Section 13(1) of the Code prohibits discrimination regarding employment. It
provides:
13(1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any
term or condition of employment because of the ... physical …
disability ... of that person ... .
(4)
Subsections (1) and (2) do not apply with respect to a refusal,
limitation, specification or preference based on a bona fide
occupational requirement.
[202] A prima facie case of discrimination “is one which covers the allegations made
and which, if they are believed, is complete and sufficient to justify a verdict in the
complainant’s favour in the absence of an answer from the respondent-employer”:
O’Malley v. Simpson-Sears Ltd. (1985), 7 C.H.R.R. D/3102 (S.C.C.) at para. 24782.
53
[199] Mr. Holt does not refer, in his argument, to any case decided by the Tribunal with
[203] Section 2 of the Code specifies that discrimination need not be intentional; it is
sufficient if the effect of a person’s conduct is to create adverse consequences for another
[204] To establish a prima facie case that Coast Mountain discriminated against him in
this case, Mr. Holt must show that:
1. he had a physical disability;
2. the respondent’s actions had an adverse effect on his employment; and
3. it is reasonable to infer that there was a connection between his disability and
the adverse treatment.
Monsson v. Nacel Properties, 2006 BCHRT 543 (para. 25)
Williams and others v. Travelodge (No. 2), 2006 BCHRT 569 (paras. 20-21)
[205] If Mr. Holt establishes a prima facie case, the burden shifts to the respondents to
establish a bona fide occupational requirement (which is not in issue in this case), or that
it accommodated him to the point of undue hardship.
Disability
[206] The Code does not define “disability”. In Bowden v. Yellow Cab and others (No.
2), 2011 BCHRT 14, para. 260, the Tribunal accepted the following definition of a
physical disability, which is sufficient for the purposes of this decision:
In general, the Tribunal has considered, but not restricted itself, to a
consideration of the following criteria when assessing whether a
complainant has proven a physical disability:
The concept of physical disability, for human rights purposes,
generally indicates a physiological state that is involuntary, has
some degree of permanence, and impairs the person’s ability, in
some measure, to carry out the normal functions of life: Boyce v.
New Westminster (City)(1994), C.H.R.R. 24 D/441 (B.C.C.H.R.),
para.50.
[207] For the reasons given above, I am satisfied, on the evidence, that Mr. Holt had a
medical condition affecting his neck. That condition was involuntary. It was permanent,
in the sense of leaving him permanently vulnerable to pain exacerbated by the
combination of the degree, frequency, and duration of the rotation of his neck required
54
person because of their disability.
for him to drive the Nova bus. His condition impaired his ability to carry out the work
function of driving a Nova. Thus, he had a disability.
[208] I am also satisfied that Mr. Holt suffered adverse treatment, in part connected to
his disability, in at least two respects:
•
Coast Mountain refused, without adequate explanation or justification, to accept
Dr. Pilar’s and Dr. Lloyd-Smith’s medically-based recommendations that he not
drive Novas.
Beginning in October 2009, it also refused to act on those
recommendations, and insisted that Mr. Holt either drive Novas when they were
assigned to his preferred routes, or accept less-desirable work driving New Flyers.
•
Coast Mountain insisted that Mr. Holt attend an FCE, without being able or
willing to consistently explain or justify what form of evaluation or assessment of
Mr. Holt it required, why, and from whom, and without being able or willing to
explain or justify its refusal to consider an assessment by a practitioner
recommended by WCB, and proposed by Mr. Holt.
[209] As discussed below under the headings of accommodation and remedies, none of
this is meant to suggest that Mr. Holt’s disability was the only factor in this adverse
treatment.
He contributed to his own misfortune, and was a full and enthusiastic
participant in the process that turned an inquiry into disability and accommodation into a
counterproductive contest of wills.
Accommodation
[210] In McLoughlin v. B.C. (Ministry of Environment, Lands and Parks), (1999), 36
C.H.R.R. D/306 (B.C. Trib.), the Tribunal summarized the proper approach to issues of
accommodation:
The leading cases on accommodation establish that it is a search for a
pragmatic and workable solution that minimizes the adverse effect on the
rights of the complainant consistent with the rationale for the general rule.
(See generally: O’Malley v. Simpson-Sears (1985), 7 C.H.R.R. D/3102
(S.C.C.); Central Alberta Dairy Pool.)
55
Adverse treatment
The search for accommodation is a multi-party inquiry. Along with
the employer and the union, there is also a duty on the complainant
to assist in securing an appropriate accommodation. ...
To facilitate the search for an accommodation, the complainant
must do his or her part as well. Concomitant with a search for
reasonable accommodation is the duty to facilitate the search for
such an accommodation. Thus in determining whether the duty of
accommodation has been fulfilled the conduct of the complainant
must be considered.
This does not mean that, in addition to bringing to the attention of
the employer the facts relating to discrimination, the complainant
has a duty to originate a solution. While the complainant may be in
the best position to make suggestions, the employer is in the best
position to determine how the complainant can be accommodated
without undue interference to the operation of the employer’s
business. When an employer has initiated a proposal that is
reasonable and would, if implemented, fulfill the duty to
accommodate, the complainant has a duty to facilitate the
implementation of the proposal. If failure to take reasonable steps
on the part of the complainant causes the proposal to founder, the
complaint will be dismissed. The other aspect of this duty to
accommodate is the obligation to accept reasonable
accommodation. This is the aspect referred to by McIntyre J. in
O’Malley, supra. The complainant cannot expect a perfect solution.
If a proposal that would be reasonable in all the circumstances is
turned down, the employer’s duty is discharged.
To my mind, the process Sopinka J. describes in this passage is one in
which all those involved are required to work together to find a solution
that adequately balances the competing interests. The process requires the
party best placed to make a proposal to advance one. The other party or
parties must then respond with alternative suggestions and refinements as
necessary and the exchange should continue until a satisfactory resolution
is achieved or it is clear that no such resolution is possible. A spirit of
cooperation is obviously beneficial to this process.
This does not mean that the duty to accommodate falls equally on both
parties. The duty to accommodate to the point of undue hardship rests with
the respondent. However, if the respondent can show that he or she was
prevented from achieving a reasonable accommodation by the
56
In Central Okanagan School District No. 23 v. Renaud (1992), 16 CHRR
D/425 (S.C.C.), Sopinka J., writing for the Court, described the process by
which accommodation is achieved in the employment context. I have
found his comments very helpful in considering how the duty to
accommodate applies in the context of the case before me. He said (at
D/439-440):
[211] From 2008 forward, there were failures on both sides during the process of
determining whether Mr. Holt had a relevant disability, and, if so, what accommodations
might be available and suitable.
[212] It was perfectly legitimate for Coast Mountain to question, in light of the
information available to it in February 2008, how to square Dr. Pilar’s initial
recommendation, that Mr. Holt not drive a Nova, with his longstanding ability to drive a
New Flyer, and with the usual demands, for most operators, of driving the Nova. Mr.
Holt completely overreacted to Ms. Campbell’s letter to Dr. Pilar, and wrongly used it as
an excuse to deny Coast Mountain the opportunity to pursue answers to its medical
questions, and as proof that it did not attend to accommodate him under any
circumstances.
[213] Mr. Holt thought that Ms. Campbell had given inaccurate information to Dr. Pilar,
as indeed she did with respect to the availability of New Flyers. He also thought she had
misled Dr. Pilar, by referring to the Jobs Demand Analysis on the New Flyer, not the
Nova. As I have found, her focus on “objective findings” and “neck range of motion”
was at best too limited, and at worst entirely misconceived. As Dr. Lloyd-Smith testified,
the presence or absence of objective physical findings was not going to determine
whether Mr. Holt was experiencing genuine symptoms when he drove the Nova under
realistic conditions, nor was it going to determine whether he was disabled from doing so.
[214] But Mr. Holt had every opportunity to correct and supplement that information
directly with Dr. Pilar, and by responding to Ms. Campbell. He also had the opportunity
to contest Coast Mountain’s actions by way of a grievance through his Union, or, as he
eventually did in July 2009, by filing a complaint with the Tribunal. In the circumstances
disclosed in the evidence, he was not justified in asserting that, in February 2008, with
“nine months of medical evidence” (from 1999-2000), Coast Mountain had all the
57
unreasonable action or inaction of the complainant, the complaint will fail.
In other words, the respondent bears the duty to accommodate, but the
process of accommodation may require the complainant to take reasonable
steps to move the process forward, depending of the circumstances of the
case.
(paras. 75-78)
information it required to establish that he had a disability requiring his preferred
accommodation.
information, through Ms. Campbell, to Coast Mountain, and his decision to do so may
have contributed significantly to his later difficulties. For example, Mr. Holt’s decision
to withhold medical information pre-empted any possible inquiry of his doctors whether a
further specialist referral was indicated, whether the results of an FCE would be of any
assistance to them in evaluating and treating Mr. Holt’s condition, and, if not, what other
form of examination, evaluation or assessment would have been of such assistance.
[216] It is vital to the process of identifying disabilities, and any necessary
accommodation, that both parties arm a health professional asked for an opinion about an
employee’s ability to do specific work with accurate, even-handed information. It is also
important that they air and resolve disagreements about the value of the referral, the
questions to be asked, and the relevance and accuracy of the information provided, at an
early stage, rather than resort to mutual obstruction and obfuscation, as happened too
frequently in this case.
[217] Both parties missed another early opportunity in February 2008 to identify the
extent of any disability and assess any needed accommodation, when they ignored the
recommendation from WorkSafe’s consulting neurologist, Dr. Gittens, recorded in Mr.
Stevenson’s Consultation Record, that the parties seek to “quantify the pain syndrome
and obtain MRI and CT scan data”. The reference to a “pain syndrome” suggests that
Mr. Holt should have been looking beyond his insistence that the disc herniation, bone
spur, and cervical spondylosis, all of which might or might not have been causing the
symptoms he experienced, were the obvious causes of his pain. It also suggests that
Coast Mountain should have been looking beyond its insistence that, in the absence of
objective physical signs of injury, or observable restrictions on Mr. Holt’s range of neck
motion, there was no disability.
[218] Such missed opportunities continued.
In June 2008, Coast Mountain first
appeared to be planning to end the temporary accommodation without seeking an IME,
then decided, without informing Mr. Holt, to ask for one, and ended up doing neither.
58
[215] Nor was Mr. Holt justified in withdrawing his consent to provide relevant medical
Mr. Holt never brought to Coast Mountain’s attention Dr. Lloyd-Smith’s July 2009
suggestion that he might usefully consult Dr. Ruth McIlrath, an occupational medicine
specialist. Somewhat surprisingly, neither Ms. Campbell nor Ms. Pereira ever suggested
[219] By September 2008, at the latest, Coast Mountain was aware of Dr. LloydSmith’s advice to Mr. Holt, based on his knowledge of Mr. Holt’s neck condition and a
physical examination, to avoid driving the Nova. Both parties failed to inquire into, or
follow up on, Dr. Lloyd-Smith’s January 2010 reference to myofascial pain.
[220] Coast Mountain argues that Mr. Holt refused to undergo an FCE. Although Mr.
Holt did delay in agreeing to do so, and did sometimes appear to say that he would never
agree to do so, the fact is that, in June 2009, through his advocate, he specifically
consented to “any and all aspects of the functional testing relevant to determining his
capacity and limitations with respect to driving the Nova bus” by Progressive Rehab, one
of the providers from among which Coast Mountain insisted he choose. It was not Mr.
Holt’s fault that Progressive Rehab withdrew, because it was already involved in Mr.
Holt’s WCB case, arising from his April 2009 work refusal.
[221] Mr. Holt had legitimate reasons to be confused about what kind of evaluation or
assessment Coast Mountain was seeking, and to question whether an FCE alone would,
or could, answer its questions about his capacity to drive a New Flyer, but not a Nova,
without causing unacceptable pain. Coast Mountain itself was confused about what it
wanted, unclear about how the results would help to resolve its issues with Mr. Holt,
never responded effectively to Mr. Holt’s numerous requests for clarification, and never
followed through on its promise to involve him, through his counsel, in framing the
instructions to be given to the provider.
[222] There was a further failure when Coast Mountain left Ms. Veilleux and Work in
Progress off its list of acceptable providers for an FCE, even though Mr. Stevenson had
recommended her to both parties, and when it thereafter refused without explanation to
consider her.
[223] Mr. Holt rejected out of hand the possibility of managing his condition by signing
for work on which he could have driven an articulated New Flyer, because it would have
59
such a referral either.
limited his seniority rights, because it would have put him on routes he preferred not to
drive, and because, he said, it caused him back pain. For its part, Coast Mountain argues
[224] As discussed above, I do not accept that Mr. Holt was disabled from driving
articulated New Flyers. It is trite that disabled employees are not entitled to a perfect, or
even their preferred, accommodation. However, seniority rights are a valid consideration
in the search for a suitable accommodation, and, in this case, the obvious
accommodation, imposing no undue hardship on Coast Mountain, was the one that it
provided, on a temporary basis, for nearly two years, from February 2008 to October
2009: assigning New Flyer buses rather than Novas to the work Mr. Holt used his
seniority to choose. This is the accommodation that could, and should, have remained in
place while the parties resolved their differences over whether Mr. Holt had established a
disability, over what further medical or other information or assessment might be
required, and over what permanent accommodation might be appropriate.
[225] I am puzzled that neither party appears to have considered, until well into the
hearing process, the possibility that Mr. Holt could move from Burnaby to Richmond,
and there drive only New Flyers, as he eventually did. In the normal course, a move to
another transit centre with seniority intact was only available in the consolidated sign-up
in July of each year. However, as part of an accommodation, the parties could have
explored a relaxation of this requirement, to permit Mr. Holt to transfer to Richmond, at
any time.
[226] I recognize that Coast Mountain, as the employer, with superior access to
information about its operations, had the first responsibility to propose an
accommodation.
However, both parties had ready access to information about the
availability of New Flyers in Richmond.
Even after October 2009, faced with the
certainty, for the foreseeable future, of no work and no income, Mr. Holt did not turn his
mind to this alternative until he had been off work for ten months.
[227] In the end, it appears to me that both Mr. Holt and Coast Mountain became
preoccupied with winning the test of wills over his wish to be accommodated with New
Flyers at the BTC, and lost track of a possible resolution which would have rendered
60
that this was the obvious accommodation, if one were needed.
unnecessary the entire struggle over the existence of a disability, and the need for a
formal accommodation.
[228] I have determined that Mr. Holt had a disability, in the form of a neck condition
which, whatever its cause, prevented him from driving Nova buses without experiencing
unacceptable pain.
I have determined that, from September 2008 forward, Coast
Mountain treated Mr. Holt adversely by refusing to accept medical information from his
doctors substantiating his disability, and refusing to acknowledge its resulting duty to
accommodate his disability (though it did provide a temporary accommodation until
October 2009).
I have also determined that, from September 2008 forward, Coast
Mountain treated Mr. Holt adversely by attempting, without adequate justification or
explanation, to require him to participate in an FCE, and by refusing to consider his
proposal for a provider to conduct it. Finally, I have determined that, beginning in
October 2009, Coast Mountain failed to accommodate Mr. Holt’s disability to the point
of undue hardship, by providing him with New Flyer buses on his preferred routes. All
of this adverse treatment was inextricably connected with Mr. Holt’s disability.
I
therefore determine that his complaint is justified.
Remedies
[229] Where the Tribunal determines that a complaint is justified, Section 37(2) of the
Code provides for only one mandatory remedial order: that the person who contravened
the Code cease the contravention and refrain from committing the same or a similar
contravention. I make that order against Coast Mountain.
[230] The other remedies Mr. Holt seeks are all financial, and discretionary:
compensation under s. 27(2)(d)(ii) for wages lost and expenses incurred because of the
contravention, and compensation under s. 27(2)(d)(iii) for injury to his dignity, feelings
and self-respect.
[231] In the normal course, Mr. Holt would be entitled to compensation for wage losses
incurred after the accommodation driving New Flyers out of the BTC ended in October
2009. However, a complainant claiming lost wages has a duty to mitigate their losses by
61
Conclusion
accepting other suitable, available employment.
In this case, Coast Mountain has
established the availability of such employment driving articulated New Flyer buses.
Although, in the particular circumstances of this case I have determined that Mr. Holt
discriminated against him by refusing to continue the accommodation driving New Flyers
at the BTC, I find that he failed to mitigate his damages by accepting it, rather than
stopping work altogether, while awaiting determination of his human rights complaint. I
decline to award Mr. Holt any compensation for lost wages.
[232] The Tribunal has a discretion to compensate a successful complainant for
expenses incurred because of the contravention. However, it can only exercise that
discretion when provided a factual foundation upon which to do so. Mr. Holt did not
quantify or document any expenses in his evidence, but included a list of such expenses
in his final argument. In the absence of evidence that Mr. Holt incurred any of these
expenses, in the amounts claimed, or at all, I decline to exercise my discretion to award
him compensation for expenses.
[233] The Tribunal also has a discretion to compensate a successful complainant for
injury to their dignity, feelings and self-respect.
Damages under this head are to
compensate a successful complainant for injury, not to punish an unsuccessful
respondent. Here too, Mr. Holt provided scant evidence of the impact upon him of Coast
Mountain’s discrimination. In his final argument, he referred in general terms to such
impact, without citing any evidence of that impact led in the hearing. From the absence
of such evidence of impact, from the evidence of Mr. Holt’s relish for the battle with
Coast Mountain, and from the evidence that Mr. Holt contributed substantially to the
delays and difficulties that occurred throughout the events giving rise to the complaint, I
infer that there was minimal injury to his dignity, feelings and self-respect arising from
Coast Mountain’s discrimination.
Accordingly, I decline to award Mr. Holt
compensation for such injury.
Summary
[234] Mr. Holt’s complaint is justified, in that Coast Mountain discriminated against
him because of his physical disability, and denied him a suitable accommodation.
62
was not obliged to accept this work as an accommodation, and that Coast Mountain
[235] I order Coast Mountain to cease the contravention, and refrain from committing
the same or a similar contravention in future.
to Mr. Holt’s dignity, feelings or self-respect.
Murray Geiger-Adams, Tribunal Member
63
[236] I decline to make any order for compensation for lost wages, expenses, or injury
PROVINCE OF PRINCE EDWARD ISLAND
IN THE SUPREME COURT - APPEAL DIVISION
Citation: J.M. v. SunLife Assurance 2005 PESCAD 25 Date:
20050906
Docket: S1-AD-1003
Registry:
Charlottetown
BETWEEN:
J.M.
APPELLANT
AND:
SUNLIFE ASSURANCE COMPANY OF
CANADA
RESPONDENT
Before: The Honourable Chief Justice G.E. Mitchell
The Honourable Mr. Justice J.A. McQuaid
The Honourable Madam Justice L.K. Webber
Appearances:
Robert Tocchet, counsel for the Appellant
Eugene P. Rossiter, Q.C., and Janet M.R. Clark, counsel for the
Respondent
Place and Date of Hearing Charlottetown, Prince Edward
Island
November 30, 2004
Place and Date of Judgment Charlottetown, Prince Edward
Island
September 6, 2005
Written Reasons by:
The Honourable Chief Justice G.E. Mitchell
Concurred in by:
Dissented in by:
Disability Insurance - Total Disability - Continuous state of incapacity
to perform job duties - Finding of fact
Per Mitchell C.J.P.E.I. (McQuaid J.A. concurring): The majority of
the Court of Appeal dismissed the appeal because the trial judge did not
make an overriding or palpable error in finding as a fact that the
appellant was not in a continuous state of incapacity which prevented
her from her duties.
Disability Insurance - “Illness” - Commensurate occupation Evidence required
Per Webber J.A. (dissenting): The trial judge erred in finding that proof
of an illness under the insurance policy in question requires evidence of
a specific medical cause, with a named diagnosis. On the evidence,
continuous incapacity due to illness was proven with respect to the first
part of the policy. However, the appellant failed to prove that she was
unable to perform any commensurate occupation.
Authorities Cited:
By Mitchell C.J.P.E.I.:
CASES CONSIDERED: Chaplin v. Sun Life Assurance Co. of
Canada, 2001 BCSC 310 (CanLII), [2001] B.C.J. No. 350, 2001 BCSC
310; Conlon v. Mutual Life Assurance Co. of Canada 2003
CarswellOnt 521 (O.C.A.); Kay v. Blue Cross Life Assurance Co. of
Canada 1990 CanLII 2611 (NB CA), (1990), 75 D.L.R. (4th) 571
(N.B.C.A.); Johnston v. Murchison, 127 Nfld & P.E.I. R. 1 (P.E.I.C.A.)
By Webber J.A. (dissenting):
CASES CONSIDERED: Paul Revere Life Insurance Co. v.
Sucharov, 1983 CanLII 168 (SCC), [1983] 2 S.C.R. 541 (SCC); Eddie
v. Unum Life Insurance Co. of America 1999 BCCA 507 (CanLII),
(1999), 177 D.L.R. (4th) 738 (BCCA)
TEXTS REFERRED TO: McCunney, R.J.: Occupational and
Environmental Medicine, [Little, Brown and Company 1994]
Reasons for judgment:
MITCHELL, C.J.P.E.I.:
[1]
The appellant seeks an order overturning the July 18th, 2003
decision of a judge of the Trial Division, 2003 PESCTD 58 (CanLII),
2003 PESCTD 58, dismissing her claim for a declaration of entitlement
to disability benefits from the respondent pursuant to a group insurance
policy and an award of aggravated damages for breach of contract.
[2]
The appellant has also made a motion for the admission of fresh
evidence on the appeal.
[3]
I would dismiss both the motion and the appeal.
[4]
The proposed fresh evidence related to the following matters:
(1)
alleged misrepresentations by the
respondent’s medical expert, Dr.
Rosemary Marchant, pertaining to
the criteria for diagnosis of
Chronic Fatigue Syndrome; and
(2)
that Dr. Marchant had examined
the appellant in this province when
she was not licensed to practice
here.
[5]
I would dismiss the motion because the proposed evidence
would easily have been available at trial through the exercise of due
diligence. Furthermore, I am not at all satisfied that any of the proposed
evidence relates to a potentially decisive issue or that it would have
affected the outcome of the trial. I also agree with most of the
respondent’s criticism of the appellant’s affidavit in support of the
motion. Much of that affidavit was objectionable and inadmissible as
evidence.
[6]
The appellant was employed by the Government of Canada as a
file control clerk at the GST Centre with Revenue Canada at
Summerside from 1993 until April 16, 1996. On the latter date she
stopped work because she claimed to be chronically fatigued, suffering
from pain and weakness in her muscles, and experiencing debilitating
sensitivity to odours in the workplace. She has not returned to work.
[7]
The appellant applied for total disability benefits under a group
insurance policy established by contract between Her Majesty in Right
of Canada, as represented by the president of the Treasury Board, and
the respondent for the benefit of Government of Canada employees at
the Summerside GST Centre.
[8]
According to the policy, an Employee is “Totally Disabled” if he
or she is in a continuous state of incapacity due to Illness which
1.
while it continues during the
Elimination Period and the
following 24 months, prevents the
Employee from performing each
and every duty of his/her regular
occupation or Employment. ...
2.
While it continues thereafter,
prevents the Employee from
engaging in any Commensurate
Occupation for which he/she is or
becomes reasonably qualified by
education, training or experience.
[9]
The first category of “totally
disabled may be referred to as “own
occupation” coverage and the second as
“Commensurate Occupation” coverage.
The trial judge in the case under appeal
focused on the former. [see para. 8 of his
decision].
[10] “Illness” is defined in the policy as
“Bodily injury, disease, mental infirmity,
or sickness.”
[11]
“Elimination Period” as it applies
to the appellant is defined as one that:
begins with the first full day of Total Disability and
ends on the later of the days on which:
1. the Employee has completed
A.
Periods of Total
Disability due to the
same cause, which when
accumulated within a
period of twelve
consecutive months,
prevent the Employee
from being Actively At
Work for 13 weeks, or
B.
An uninterrupted period
of Total Disability of 13
weeks, and
2.
the Employee’s accumulated sick
leave credits and other paid leave
granted (other than vacation
leave) are completely exhausted.
[12]
“Employee” is defined as:
A person working on a full-time or part-time basis,
who holds an office or position in (i) the Public
Service as listed in PART 1 of Schedule 1 of the
Public Service Staff Relations Act, or (ii) with a
Participating Employer, and who:
1.
Is employed in a continuing
position during pleasure or for a
term of more than six months’
duration, or
2.
Has been continuously employed
for a period of at least six months,
or
3.
Is a seasonal employee who has
completed the required Qualifying
Period or been reinstated under
the Commencement of Insurance
section.
Employee includes, where the text of the policy
requires a former Employee who is eligible for
benefits under [the] policy.
The policy also contains some specific exclusions from the definition of
Employee but these have no application to the present case.
[13]
“Employment” is defined as: “Employment as an Employee or
Seasonal Employee by the Employer or a Participating Employer.”
[14]
“Commensurate Occupation” is defined as: “an occupation for
which the current salary or current rate of pay is not less than 66.2/3% of
the then current salary for the Employee’s own regular occupation.”
[15]
Neither the word “continuous” nor the phrase “continuous state
of incapacity” is defined. These terms considered in the context of the
policy as a whole may not require the incapacity to be completely
uninterrupted but, if not, recurrences must be frequent and from the
same cause. See: paragraph A of the definition of “Elimination Period”
set out above. However, in this case the appellant did not return to work.
Her claim is based on an uninterrupted period of incapacity commencing
on April 16, 1996.
[16]
As Doherty J.A. observed in considering a similar definition in
Conlon v. Mutual Life Assurance Co. of Canada 2003 CarswellOnt
521 (O.C.A.) at para.2, the ambit of “total disability” according to the
policy is very narrow. In order to satisfy the test the appellant had to
prove:
(1)
that she was in a continuous state
of incapacity,
(2)
due to bodily injury, disease,
mental infirmity, or sickness,
(3)
which prevented her from
performing each and every duty of
her occupation or Employment
during the elimination period and
the following 24 months and that it
has subsequently prevented her
from engaging in any
commensurate occupation.
[17] At the trial the appellant testified herself and called several other
lay witnesses in support of her claim. In addition, she brought forward
evidence in oral or documentary form from a number of medical experts.
The respondent in presenting its case put forth both expert medical and
video surveillance evidence.
[18]
The appellant claimed to suffer from fibromyalgia, chronic
fatigue syndrome and multiple chemical sensitivity. A good deal of time
was taken up at trial with evidence about whether or not the appellant fit
the medically recognized criteria for those conditions and whether the
latter of them was even recognized by the medical community. However,
as was pointed out by Holmes J. in Chaplin v. Sun Life Assurance Co.
of Canada, 2001 BCSC 310 (CanLII), [2001] B.C.J. No. 350, 2001
BCSC 310, at paras. 41-42, the issue is not whether the claimant fulfills
the technical requirements of some particular diagnosis. The issue is
whether the claimant is in a continuous state of incapacity due to bodily
injury, disease, mental infirmity, or sickness which prevents him or her
from performing the duties of their job or from engaging in a
commensurate one. It is the fact of illness that is important not its name,
cause, or explanation. It is true, as counsel for the respondent argues,
that a person is not ill just because they say so but, on the other hand, a
person may be ill even though there is little or no objective evidence to
prove it. That said, the fact that a person suffers from an illness, even a
chronic one, is not in itself sufficient to qualify for total disability
benefits under the policy. The additional requirements that the resulting
incapacity be continuous and that it be to such an extent that it renders
the employee unable to perform their ordinary duties set a very
demanding standard that is not easily satisfied.
[19]
In this case, after considering and weighing all of the evidence,
the trial judge concluded that the appellant’s capacity to function was
significantly impaired as a result of various ailments which afflicted her.
Nevertheless, he found she fell short of meeting the requirements to
qualify for long-term disability benefits. His primary reason was that he
found she had not proven she was in a continuous state of incapacity to
an extent that prevented her from performing the duties of her “own
occupation.” It would of course follow that she was not continuously
incapacitated from performing the duties of a “Commensurate
Occupation.” As a secondary matter the trial judge also found that the
appellant had not proved that the incapacity she did have was due to an
illness. Accordingly, he dismissed her claim.
[20]
I find the secondary finding problematic because it seems to
place too much emphasis on technical definition and appears
inconsistent with his earlier conclusion that there was significant
impairment to the appellant’s capacity due to ailments which afflicted
her. However, overturning the secondary finding would have no impact
on the outcome of the case unless the primary one was also overturned.
A continuous state of incapacity which prevents the employee from
performing each and every duty of their regular occupation or
employment is an essential qualifying factor. If it is not established, the
inquiry need go no further. If the incapacity is not continuous or does
not prevent the employee from performing his or her duties its cause
does not matter as there would be no coverage in any event.
[21]
The conclusion of the trial judge that the appellant was not
continuously incapacitated to an extent which prevented her from
performing her duties as a file clerk was essentially one of fact. See:
Kay v. Blue Cross Life Assurance Co. of Canada 1990 CanLII 2611
(NB CA), (1990), 75 D.L.R. (4th) 571 (N.B.C.A.), at para. 13. That
being the case, it is trite law that, absent some palpable and overriding
error, this court must refrain from interfering. It is the role of the trial
judge to weigh the evidence and to assess the credibility of witnesses
including experts. An appellate court has no right to simply retry a case
and substitute its opinion for that of the trial judge according to what it
thinks the evidence establishes on its view of the balance of
probabilities.
[22]
The trial judge preferred the evidence of the respondent’s expert
Dr. Marchant to that of the other medical experts when there was
conflict among them. It was within his province to do so. The privileged
position of the trial judge to assess evidence extends to the evidence of
expert witnesses. An appellate court should not reconsider the evidence
of expert witnesses when the conclusions reached by the trial judge
could reasonably be supported by the evidence of the expert witnesses.
See: Johnston v. Murchison, 127 Nfld & P.E.I.R. 1 (P.E.I.C.A.) at para
13.
[23]
Dr. Marchant is an expert in occupational and environmental
medicine. She has special skill in determining people’s fitness to work.
Her qualifications were admitted by the appellant.
[24]
Dr. Marchant was hired by the respondent to determine the
appellant’s fitness to work. Unlike some of the other physician witnesses
who gave evidence in oral or written form, Dr. Marchant had the benefit
of reviewing all the appellant’s medical records, examining her in
person, viewing her activities captured on video, and knowing about her
exercise routine. Dr. Marchant was also familiar with the appellant’s
work history and the kind of work she had been doing at the Tax Centre.
She testified that, in her opinion, the appellant was fit to do such work.
[25]
The trial judge also relied heavily on the clinical notes and
evidence of Dr. Morais, the appellant’s family physician. His evidence
indicates that in August of 1996 the appellant was able to resume
working although she was hesitant about returning to the same work
environment. Dr. Morais testified that as of August 27, 1996 the
appellant was not being prevented from doing her job by a continuous
state of incapacity. He agreed with the suggestion of counsel for the
respondent that the problem was the location of the job, not the
appellant’s fitness to do it.
[26]
After viewing the activity of the appellant in the surveillance
video, the trial judge concluded from his own observations that she was
clearly not as limited as she claimed.
[27]
I cannot conclude that the trial judge’s findings of fact regarding
the continuousness of the appellant’s incapacity was unreasonable or
unsupportable by the evidence. In my view, there was medical evidence
and evidence about the appellant’s activities in the record from which
the trial judge could reasonably conclude that she was not in a
continuous state of incapacity which prevented her from performing the
duties of her occupation or employment. I do not see any palpable or
overriding error to justify this court’s intervention.
[28]
Accordingly, I would dismiss the appeal with costs to the
respondent. If the parties are unable to settle on the quantum of costs to
be paid, the court will hear submissions concerning the same on a date to
be fixed.
_____________________________________
The Honourable Chief Justice G.E. Mitchell
I AGREE: ______________________________________
WEBBER J.A. (Dissenting):
[29]
While I agree with the decision to dismiss the motion for the
admission of fresh evidence on appeal, for the reasons set out in the
decision of Mitchell, C.J.P.E.I., I am unable to agree with the majority’s
conclusion on the appeal of the July 18, 2003 decision of the trial judge
in this matter. I would allow the appeal to the extent of granting a
declaration of entitlement to disability benefits from the respondent with
respect to the Elimination Period and the following 24 months. I would
send the matter back to the trial judge to determine the issues relating to
damages.
[30]
I have several difficulties with the position taken by the trial
judge on this matter. They relate principally to:
(1)
An apparent failure to appreciate
the significance of the two-stage
element of the Sun Life policy and
the implications of this with
respect to the evidence presented.
(2)
An apparent assumption that in
order for the plaintiff to meet the
illness requirement of the policy to
suffer from a sickness or illness
she must be able to fit within some
specific medical diagnosis that
explains her symptoms.
TWO-STAGE POLICY
[31]
The textbooks and case law make it clear that policies of the
type in the instant case are in a very real sense “dual” policies. The first
part of the policy refers to a claimant’s inability to carry out each and
every aspect of his or her pre-illness employment. In the instant case a
claimant is entitled to compensation for the period of 13 weeks plus two
years if he/she is unable to carry out all of these functions.
[32]
The second aspect of the policy deals with the period following
that covered by the first part of the policy. In this period a claimant is
only entitled to compensation if he/she is ill and is unable to carry out
any commensurate occupation, which is defined as one which would pay
2/3 of the salary of the employment held at the time the claimant became
sick.
[33]
This distinction, in my view, has implications with respect to the
evidence required to prove a claim.
ILLNESS
[34]
The policy states:
An employee is Totally Disabled if he/she is in a continuous state of incapacity due to
illness which
1.
While it continues during the Elimination Period and the
following 24 months, prevents the Employee from performing
each and every duty of his/her regular occupation or
Employment. . . .
2.
While it continues thereafter, prevents the Employee from
engaging in any Commensurate Occupation for which he/she is
or becomes reasonably qualified by education, training or
experience.
‘Illness’ is ‘Bodily injury, disease, mental infirmity, or sickness.’
‘Commensurate Occupation’ is ‘An occupation for which the current salary or current
rate of pay is not less than 66 2/3% of the then current salary for the Employee’s own
regular occupation.’
[35]
The trial judge, in my view, found the appellant to be in a
continuous state of incapacity due to illness:
[7]
There is no question the plaintiff’s capacity to function is
significantly impaired. She chronicled her ailments in great
detail and described the limitations imposed on her as a result of
those ailments. Four lay witnesses, including the plaintiff’s
adult son, gave testimony supporting her description of the
impact her afflictions have had upon her life. There is no
evidence of a happy, carefree individual whose state of health
allows her to enjoy life in the manner she would like. Quite the
contrary . . .
[36]
The appellant’s family physician supported her claim and
testified as to consistent and continuous problems, at various times
described as fibromyalgia (first diagnosed in 1990 by a rheumatologist),
chronic fatigue syndrome, and environmental sensitivity. The symptoms
get better and get worse, apparently at least in part depending upon the
physical environment she is in. At one stage in July/August of 1996 she
felt ready to go back to work but feared that the work environment–
which she felt had triggered her problems again–would set her back one
more time. Her family physician agreed that going back to the same
workplace was not advisable.
[37]
An independent assessment by the employer’s occupational
health specialist at that time concluded, in a letter to the employer dated
August 30, 1996:
We have received Ms. J.M. ’ fitness for work medical of 30 July/96 and we feel she is
unfit to return to work to her previous work environment. This is expected to be
permanent.
It is possible that she may be able to work given the proper environment; however, that is
not always achievable. Also, it is not always possible to determine what the problem is in
the environment to give her these difficulties. Thus, it is difficult to advise exactly what
she needs to avoid. ...
Thus, it is possible that she could show good improvement in such an environment but
unfortunately there is no guarantee of this.
This was written by Dr. Karen MacDonald, Medical Officer-in-Charge,
Clinic Services, Occupational & Environmental Health Services Clinic,
Health Canada.
[38]
The trial judge’s position was that the appellant’s symptoms of
illness, “ . . . must be supported by the weight of medical opinion after
examining the conflicting views brought forth at trial.” (Para. 8). The
“conflicting views” relate only to exactly what caused her symptoms.
There was never any evidence that she was in any way fabricating her
symptoms.
[39]
The trial judge’s insistence on finding a medical cause for her
illness with a specific, named diagnosis, in my view, was an error of law.
The policy only requires that the appellant prove she is ill and has been
continuously ill.
[40]
The case of Eddie v. Unum Life Insurance Co. of America
1999 BCCA 507 (CanLII), (1999), 177 D.L.R. (4th) 738 (BCCA) dealt
with a claimant who stated she suffered from fibromyalgia. In that case
the insurer’s witness agreed that the claimant met the necessary criteria
for a diagnosis of fibromyalgia.
[41]
However, the majority decision in that case discussed the
insurer’s attempt to argue that a specific cause of the disability needed to
be determined before the insurance was payable, and dismissed that
argument. Prowse J.A. stated:
¶60
If the insurer were correct that disability payments can only be
triggered when a claimant is able to pinpoint the precise cause
of disability, then situations could arise in which a claimant is
clearly disabled by some kind of sickness, but is not eligible for
benefits because the exact nature of the sickness cannot be
determined.
¶61
The trial judge did not find it necessary to attach a specific label
to Ms. Eddie's condition in order to find that she suffered from a
sickness that disabled her. In my view, he correctly identified
and addressed the two issues before him: was Ms. Eddie
suffering from a sickness, and, if so, was she disabled by reason
of that sickness within the meaning of the ‘any’ and "own"
occupation requirements of the policy. After a full consideration
of the evidence, he answered ‘yes’ to both of those questions. ...
[42]
In the instant case, the trial judge’s refusal to find that an illness
had been proven was primarily based upon the evidence of one medical
expert, Dr. R. Marchant who wrote the following with respect to the
appellant, having reviewed her file and examined her once for a two to
three-hour period six years after the claim was filed:
Enclosed please find the lengthy report on a most interesting and challenging case. Ms.
J.M. has carried a heavy personal load for more than 10 years. Her symptom complaints
do not meet the accepted criteria for any diagnosis to account for her concerns. However,
she does lead a very stressful life. I trust that this report will bring some resolution.
[43]
As part of her lengthy report Dr. Marchant completed a “Life
Stress” scale. Following her numerical calculations she stated:
Note this scale does not include the serious problems of spousal alcoholism, sexual abuse
of daughter, dealing with her family history of abuse, alcoholism and potential sexual
abuse and fighting a Human Rights complaint. These would probably have significant
scores. Score of 200 or greater over 2 years is significant. Only the years 1993-95 had
lower scores. Carrying such a heavy personal load it is not surprising that she had
periods of feeling unwell, particularly fatigue. However, stress is not an illness or
disability. It is a response to, most commonly, unfortunate life events. In 1993 she was
fit to return to work. Her periods of lowest scores were the time that she was at work in
the last decade. By mid 1996 [about the time of her claim] there was evidence that
assessments determined that she was capable of doing her job with caveats about the
environment in which she does her job. This was repeated in July 1998. [Emphasis
added.]
[44]
Then Dr. Marchant quotes from the text Occupational and
Environmental Medicine, by R.J. McCunney, Little, Brown and
Company 1994:
Stress refers to not a single event or reaction but a process that begins with a stressful
event or series of events with one’s reaction to that event . . . In moderate amounts, stress
can be motivating . . . However, if the duration or intensity of the stress overloads a
person’s ability to manage the stress, it can lead to ‘distress,’ a spiral of emotional and
physical ills. [Emphasis added]
[45]
“Illness” is defined in the Sun Life Policy as “Bodily injury,
disease, mental infirmity or sickness.” There is no statement in the
policy that stress cannot be an illness. In the case law, one prominent
case from the Supreme Court of Canada, often cited as confirming the
approach to be taken to total disability, was on its facts a case solely
about stress and a finding that the claimant was totally disabled due to
sickness which sickness was stress. In that case, Paul Revere Life
Insurance Co. v. Sucharov, 1983 CanLII 168 (SCC), [1983] 2 S.C.R.
541, Laskin C.J. writing from the majority cited with approval the
following:
In Couch on Insurance (1983), 2d (Rev. Ed.) ss.53:118 there is the following relevant
paragraph:
The test of total disability is satisfied when the circumstances
are such that a reasonable man would recognize that he should
not engage in certain activity even though he literally is not
physically unable to do so. In other words, total disability does
not mean absolute physical inability to transact any kind of
business pertaining to one’s occupation, but rather that there is a
total disability if the insured’s injuries are such that common
care and prudence require him to desist from his business or
occupation in order to effectuate a cure; hence, if the condition
of the insured is such that in order to effect a cure or
prolongation of life, common care and prudence will require
that he cease all work, he is totally disabled within the meaning
of health or accident insurance policies. [Emphasis added.]
[46]
In Sucharov, the insured found running his business caused him
severe stress and this was the illness that totally disabled him. Even in
his dissent, Ritchie J. referred to the “test” with respect to total disability
as a legal test (as opposed to a medical test). On the other hand, the trial
judge in the instant case required that a medical expert find a known
medical cause/diagnosis before the policy would apply:
[38]
...Specifically, I accept Dr. Marchant’s findings that there has been no timely,
acceptable or valid diagnosis of CFS, fibromyalgia, MCS, or any other illness
within the meaning of the policy with respect to the plaintiff’s complaints.
However, there is no support in the case law for this requirement. Dr.
Marchant’s statement that stress is not an illness was a statement of her
opinion. This is not relevant to the interpretation of the contract of
insurance.
[47]
This focus on finding a diagnosable cause of the illness
resulted in the trial judge minimizing the evidence produced by the
plaintiff. Instead of focussing upon the words of the contract and
applying the legal test required, he added an evidentiary requirement –
of an agreed-upon medical diagnosis – that cannot be found in the
contract.
[48]
On the evidence in the instant case the complainant was totally
disabled from working in the work environment she had been in. Her
doctor and the employer’s occupational specialist agreed in 1996 that
common prudence dictated she not return to that workplace–although at
one point in 1998 her doctor agreed that if Sun Life wished her to try
working at the same site, it would be acceptable so long as it was closely
monitored. There is no indication Sun Life ever responded positively to
this suggestion.
CONTINUOUS STATE OF INCAPACITY
[49]
As for the trial judge’s finding that the appellant was not in a
continuous state of incapacity, his analysis appears to be flawed by a
failure to distinguish between the two aspects of the policy at issue. He
makes no distinction between the appellant perhaps being able to work
in a different setting, but not being able to return to work to her previous
work environment. The latter is all that is required to fulfill the terms of
the policy for the first 13 weeks plus 24 months of her total disability.
[50]
As well, in the instant case, at the time coverage was denied the
family physician stated the plaintiff was unable to work because of
illness and the employer’s occupational specialist took the same
position. It is therefore questionable that the insurer had any basis upon
which to deny the claim at that time. When the decision was appealed,
the insurer sought an independent medical assessment but that
assessment was inconclusive–principally because the doctor in question
[Dr. J.M. MacSween] had difficulty in diagnosing the specific illness
involved, not because he concluded the appellant was perfectly well and
could work. In his report dated April 30, 1997 Dr. MacSween stated:
I find it difficult on the basis of this interview to evaluate her ability to work . . .
Yet it was this report that resulted in Sun Life’s letter of August 5, 1997
to the appellant:
As Dr. MacSween did not come up with any objective medical evidence to justify your
ongoing symptoms, it was for this reason that your claim was re-denied.
[51]
When the appellant continued to press her claim, an independent
psychiatric assessment by Dr. G.C Gosse dated July 24, 1998
recommended a trial return to work. He stated:
I feel there are unresolved psychological issues in this claimant. Particularly the issues of
alleged early sexual abuse need to be clarified and resolved. It does not appear these
issues are, at the present time, preventing her from working, but their resolution would
undoubtedly have therapeutic value for her as an individual. Ms. J.M. would appear to be
ready for a trial return to work. In that environment, her work performance could be
monitored, and objective evidence of fatigue, if present, could be monitored, and
objective evidence of fatigue, if present, could be seen. If this were to be demonstratively
the case, than [sic] further psychological investigations could be undertaken, such as
comprehensive psychological testing, including both personality assessment and
cognitive functioning. Additionally, occupation assessment which involves monitoring
and objective assessment of work skills, indurance[sic], fatigue, and concentration could
be done. Again, these testings would be appropriate if a trial return to work was
unsucessful[sic].
For now, I would encourage the claimant to further explore the alleged childhood abuse,
for her own personal, therapeutic benefit. As regards to work, I feel a trial return to work
is reasonable at this point.
[52]
“At this point” was nearly at the end of the 13 weeks plus two
years portion of the policy coverage. The comments of Dr. Gosse do not
indicate that the appellant’s problems were fabricated or that a return to
work would necessarily be successful. There is no indication in the
evidence that, in response to this report, a return to work was suggested
to the appellant by Sun Life at that time. They simply continued to deny
her any benefits.
[53]
If one looks only at the requirements of the contract, the
appellant has clearly shown on the evidence, on a balance of
probabilities, that she was continuously suffering from an illness that
made her unable to perform the whole of her regular occupation. This
finding refers to the requirement that she work in the specific work
environment that triggered her negative symptoms. There was no
medical evidence to the contrary with respect to the coverage provided
by the first part of the policy. The first part of the policy test, covering
the first 13 weeks plus two years of the policy, has thus been proven.
COMMENSURATE EMPLOYMENT
[54]
However, different considerations apply to the second part of the
policy. The second part of the insurance policy requires proof that the
claimant is totally disabled from carrying out any commensurate
employment. Because of his findings on the first issue, this aspect of the
policy was not dealt with by the trial judge. Since I have concluded that
the claimant met the first part of the test, it is necessary to deal with the
second part.
[55]
While normally the trial judge would assess the evidence to
determine whether or not it supports the claim for long-term total
disability benefits according to the second part of the policy, this matter
has been outstanding for some time. In addition, this is not a situation
where credibility is the primary issue. The insurer is not stating that it
does not believe the claimant. Although there were video surveillance
tapes used by the insurer to argue that the appellant was not as disabled
as she claimed, the insurer’s primary argument is that the claimant has
not proven she is unable to carry out commensurate employment. The
evidence on this issue is fully before this court and in the interests of
finality it should be dealt with.
[56]
On the whole of the evidence, it cannot be said that the appellant
has shown she cannot work in commensurate employment. There is
simply no evidence that she tried and failed or that her medical advisers
recommended no such efforts. There is even no evidence that she
sought work through employment agencies and was told that positions
meeting her requirements are unavailable.
[57]
If the appellant was so environmentally sensitive that she was
essentially a prisoner in her house, then her failure to look for work
might not be an impediment to her claim. However, she does manage to
go to the gym for the exercise her doctor has urged her to take. She
manages to do volunteer work at the Sherwood Home and to care for her
granddaughter. Her testimony indicates that she can still have reactions
to the environment but some activities are acceptable. Sun Life has the
right to ask for more. If the appellant had tried various types of
employment, learned that at best she could work half time, then her
claim would be supported. However, her failure to pursue any possible
employment (outside of a couple of very minor contacts with
employment agencies that apparently were not followed up) undermines
her claim. She has not shown on a balance of probabilities that she is
totally disabled now from working at any commensurate occupation.
[58]
I would therefore allow the appeal in part. J.M. has proven she
was totally disabled, during the elimination period and the following 24
months from performing each and every duty of her regular
employment.
_______________________________________
GRANOVSKY
c.
703
CANADA
Allan Granovsky Appellant
Allan Granovsky
v.
c.
Minister of Employment and
Immigration Respondent
Ministre de l’Emploi et de
l’Immigration Intimé
and
et
Council of Canadians with
Disabilities Intervener
Conseil des Canadiens avec
déficiences Intervenant
INDEXED AS: GRANOVSKY v. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION)
RÉPERTORIÉ: GRANOVSKY c. CANADA (MINISTRE DE
L’EMPLOI ET DE L’IMMIGRATION)
Neutral citation: 2000 SCC 28.
Référence neutre: 2000 CSC 28.
File No.: 26615.
No du greffe: 26615.
1999: November 10; 2000: May 18.
1999: 10 novembre; 2000: 18 mai.
Present: L’Heureux-Dubé, Gonthier, McLachlin,
Iacobucci, Major, Bastarache and Binnie JJ.
Présents: Les juges L’Heureux-Dubé, Gonthier,
McLachlin, Iacobucci, Major, Bastarache et Binnie.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
EN APPEL DE LA COUR D’APPEL FÉDÉRALE
Constitutional law — Charter of Rights — Equality
rights — Disabled persons — Canada Pension Plan disability pension — Plan providing for accommodation
with respect to periods of minimum contribution for permanently disabled persons but not for temporarily disabled persons — Whether Plan infringing right to
equality — Canadian Charter of Rights and Freedoms,
s. 15(1) — Canada Pension Plan, R.S.C., 1985, c. C-8,
s. 44.
Droit constitutionnel — Charte des droits — Droits à
l’égalité — Déficience — Pension d’invalidité du
Régime de pensions du Canada — Accommodement
relatif aux périodes de cotisation minimale prévu par le
Régime dans les cas de déficience permanente mais non
dans les cas de déficience temporaire — Le Régime
porte-t-il atteinte au droit à l’égalité? — Charte
canadienne des droits et libertés, art. 15(1) — Régime
de pensions du Canada, L.R.C. (1985), ch. C-8, art. 44.
The appellant claimed to have suffered an intermittent
and degenerative back injury following a work-related
accident in 1980. He was assessed to be temporarily
totally disabled at that time. Prior to his accident, he had
made Canada Pension Plan (CPP) contributions in six of
the ten previous years. The appellant was profitably
employed from time to time following his accident but
maintained that his back condition continued to deteriorate and that the disability became permanent in 1993, at
which time he applied for a CPP disability pension. His
application was refused by the Minister of Employment
and Immigration and refused again by a review tribunal
in part because he had only made a CPP contribution in
one year of the relevant CPP 10-year contribution period
prior to the date of application and thus had what was
considered to be an insufficiently recent connection to
the work force. He could not bring himself within the
L’appelant a affirmé qu’il souffre de façon intermittente d’une blessure dégénérative au dos depuis qu’il a
eu un accident du travail en 1980. À l’époque, il a été
déclaré atteint d’une invalidité totale temporaire. Il avait
cotisé au Régime de pensions du Canada (RPC) pendant
six des dix années ayant précédé son accident. L’appelant a occupé certains emplois rémunérateurs après avoir
été victime de son accident, mais il a maintenu que l’état
de son dos a continué de se détériorer et que son invalidité est devenue permanente en 1993, année pendant
laquelle il a présenté une demande de pension d’invalidité du RPC. Le ministre de l’Emploi et de l’Immigration et ensuite un tribunal de révision ont refusé la
demande de l’appelant, en partie parce qu’il n’avait
cotisé au RPC que pendant une seule année de la
période cotisable de 10 ans pertinente ayant précédé sa
demande, de sorte qu’il n’avait pas ce qui était considéré
Appelant
2000 SCC 28 (CanLII)
[2000] 1 R.C.S.
GRANOVSKY
v.
“drop-out” provision (made available to applicants who
suffered from severe and permanent disabilities) under
which periods of disability are not counted in the
recency of contribution calculation. Among the issues
raised by the appellant was whether the CPP infringed
s. 15(1) of the Canadian Charter of Rights and Freedoms because the contributions requirement fails to take
into account the fact that persons with temporary disabilities may not be able to make contributions for the
minimum qualifying period in s. 44(1) because they are
physically unable to work. The appellant was unsuccessful both before the Pension Appeals Board and before
the Federal Court of Appeal.
Held: The appeal should be dismissed.
CANADA
[2000] 1 S.C.R.
comme un lien suffisamment récent avec le marché du
travail. Il ne pouvait pas relever de la disposition d’«exclusion» (dont pouvaient se prévaloir les requérants
ayant une déficience grave et permanente) en vertu de
laquelle des périodes de déficience n’entrent pas dans le
calcul des cotisations récentes. L’appelant a notamment
soulevé la question de savoir si le RPC viole le
par. 15(1) de la Charte canadienne des droits et libertés
étant donné que l’exigence en matière de cotisation ne
tient pas compte du fait que les personnes qui ont une
déficience temporaire ne sont peut-être pas en mesure de
verser des cotisations pendant la période minimale d’admissibilité prévue au par. 44(1), parce qu’en fait elles
sont physiquement incapables de travailler. L’appelant a
été débouté tant par la Commission d’appel des pensions
que par la Cour d’appel fédérale.
Arrêt: Le pourvoi est rejeté.
The true focus of the s. 15(1) disability analysis is not
on the impairment as such, nor even any associated
functional limitations, but is on the problematic
response of the state to either or both of these circumstances. It is the state action that stigmatizes the impairment, or which attributes false or exaggerated importance to the functional limitations (if any), or which fails
to take into account the “large remedial component” of
s. 15(1), and which thus creates the legally relevant
human rights dimension to what might otherwise be a
straightforward biomedical condition. Since s. 15(1) is
ultimately concerned with human rights and discriminatory treatment, and not with biomedical conditions, the
primary focus is on the inappropriate legislative or
administrative response (or lack of response) to the
claimant’s condition. A s. 15 analysis should proceed on
the basis of three broad inquiries: (1) whether there is a
differential treatment for the purpose of s. 15(1); (2)
whether this treatment was based on one or more of the
enumerated and analogous grounds; and, (3) whether the
differential treatment brings into play the purpose of
s. 15(1), i.e., does the law, in purpose or effect, perpetuate the view that persons with temporary disabilities are
less capable or less worthy of recognition or value as
human beings or as members of Canadian society?
L’analyse de la déficience, fondée sur le par. 15(1),
porte véritablement non pas sur les affections en tant
que telles, ni même sur des limitations fonctionnelles
connexes, mais plutôt sur la réaction problématique de
l’État face à l’une ou l’autre de ces situations, ou aux
deux à la fois. C’est l’action étatique qui stigmatise les
affections ou qui attribue une importance erronée ou
exagérée aux limitations fonctionnelles (s’il en est), ou
encore qui ne tient pas compte de l’«aspect réparateur
important» du par. 15(1), et qui ajoute ainsi la dimension, pertinente sur le plan juridique, des droits de la
personne à ce qui pourrait n’être autrement qu’une simple condition biomédicale. Vu que le par. 15(1) porte en
fin de compte sur les droits de la personne et le traitement discriminatoire, et non pas sur des conditions biomédicales, l’accent est mis avant tout sur la réaction
législative ou administrative inadéquate (ou l’absence
de réaction) face à l’état du demandeur. Une analyse
fondée sur l’art. 15 devrait reposer sur trois grandes
questions: Premièrement, y a-t-il différence de traitement aux fins du par. 15(1)? Deuxièmement, le traitement en cause est-il fondé sur un seul ou plusieurs des
motifs énumérés ou analogues? Et troisièmement, la différence de traitement fait-elle intervenir l’objet du
par. 15(1), c’est-à-dire l’objet et l’effet de la loi contestée perpétuent-ils l’opinion que les personnes ayant une
déficience temporaire sont moins capables, ou moins
dignes d’être reconnus ou valorisés en tant qu’êtres
humains ou que membres de la société canadienne?
The first step requires that differential treatment,
based on one or more personal characteristics, be established between the appellant and some other person or
group. The identification of the comparator group is crucial. The purpose of the drop-out provision is to facili-
La première étape exige qu’on établisse l’existence
d’une différence de traitement, fondée sur une ou plusieurs caractéristiques personnelles, entre l’appelant et
une autre personne ou un autre groupe. L’identification
du groupe de comparaison est cruciale. La disposition
704
GRANOVSKY
c.
CANADA
705
tate access of people with permanent disabilities to a
CPP disability pension. It does so by employing the
same criteria (“severe” and “prolonged”) as the criteria
used for the disability pension itself. Faithful correspondence between the benefit in issue and the purpose of
the larger plan does not necessarily avoid the claim of
discrimination, because the discrimination may lie in the
purpose or effects of the larger plan. Here, however, the
appellant does not take the position that the requirements for a disability pension itself are discriminatory
within the meaning of s. 15. The people who benefit
from the drop-out provision are those who not only
demonstrate a permanent disability at the date of application, but also who possessed the permanent disability
during the contribution period, or so much of it as they
seek to drop out of the CPP calculation. The permanently disabled are the people whose drop-out benefit
the appellant seeks to share and who therefore constitute
the proper comparator group.
d’exclusion a pour objet de faciliter l’accès des gens qui
ont une déficience permanente à une pension d’invalidité du RPC. Elle le fait au moyen des mêmes critères
(«grave» et «prolongée») que ceux qui sont utilisés pour
la pension d’invalidité elle-même. La correspondance
exacte entre l’avantage en cause et l’objet du régime
général ne permet pas nécessairement d’éviter l’allégation de discrimination, vu que la discrimination peut
résider dans l’objet ou les effets du régime général. En
l’espèce, toutefois, l’appelant ne prétend pas que les
conditions d’admissibilité à une pension d’invalidité
sont elles-mêmes discriminatoires au sens de l’art. 15.
Les gens qui bénéficient de la disposition d’exclusion
sont non seulement ceux qui démontrent l’existence
d’une déficience permanente à la date de la demande,
mais encore ceux qui avaient une déficience permanente
pendant la période cotisable, ou pendant la partie de
cette période qu’ils demandent d’exclure du calcul du
RPC. Les personnes ayant une déficience permanente
sont celles qui bénéficient de la disposition d’exclusion
dont l’appelant veut se prévaloir et qui constituent le
groupe de comparaison approprié.
At the second step, the impugned distinction was
established to be based on an enumerated ground. The
drop-out provision makes a legislative distinction
entirely on the basis of the existence and duration of the
disability that rendered the appellant unemployed.
À la deuxième étape, il a été établi que la distinction
contestée était fondée sur un motif énuméré. La disposition d’exclusion établit une distinction fondée entièrement sur l’existence et la durée de la déficience qui a
empêché l’appelant de travailler.
The appellant’s claim fails at the third step, however,
because he has not demonstrated a convincing human
rights dimension to his complaint. Assuming he can
show an impairment and significant functional limitations, he fails to show that the government’s response to
his condition through the design of the CPP or its application demeans the dignity of persons with temporary
disabilities, or casts any doubt on their worthiness as
human beings. The drop-out provision relates to the
health status of applicants in each of the 10 years prior
to the application, i.e., the relevant contribution period,
at which time the appellant enjoyed a health advantage
relative to the permanently disabled. The differential
treatment afforded by the s. 44 “drop-out” provision
ameliorates the position of those with a history of severe
and permanent disabilities. It does not assist more fortunate people such as the appellant, but in the context of a
contributory benefits plan, Parliament is inevitably
called upon to target the particular group or groups it
wishes the CPP to subsidize. Drawing lines is an unavoidable feature of the CPP and comparable schemes.
Parliament did not violate the purpose of s. 15(1) by
Cependant, l’allégation de l’appelant échoue à la troisième étape, car il n’a pas démontré de manière convaincante que sa plainte avait une dimension liée aux
droits de la personne. En supposant qu’il peut prouver
l’existence d’une affection et de limitations fonctionnelles importantes, il n’établit pas que la réaction du
gouvernement face à son état, sur les plans de la conception et de l’application du RPC, porte atteinte à la
dignité des personnes qui ont une déficience temporaire
et jette un doute sur leur valeur en tant qu’êtres
humains. La disposition d’exclusion concerne l’état de
santé des requérants au cours de chacune des 10 années
qui ont précédé leur demande et qui correspondent à la
période cotisable pendant laquelle l’appelant jouissait,
sur le plan de la santé, d’un avantage par rapport aux
personnes ayant une déficience permanente. La différence de traitement que permet la disposition d’exclusion de l’art. 44 améliore la position des personnes ayant
des antécédents de déficience grave et permanente. Elle
n’aide pas les personnes plus fortunées comme l’appelant, mais dans le contexte d’un régime de prestations
contributif, le législateur doit inévitablement cibler le ou
les groupes qu’il veut aider financièrement au moyen du
RPC. Tracer des lignes de démarcation est une caractéristique inévitable du RPC et de tout régime compara-
[2000] 1 R.C.S.
GRANOVSKY
v.
CANADA
[2000] 1 S.C.R.
seeking to benefit individuals with a history of severe
and prolonged disability.
ble. Le législateur n’a pas contrevenu à l’objet du
par. 15(1) en cherchant à avantager les personnes ayant
des antécédents de déficience grave et prolongée.
Cases Cited
Jurisprudence
Applied: Law v. Canada (Minister of Employment
and Immigration), [1999] 1 S.C.R. 497; Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143; Egan
v. Canada, [1995] 2 S.C.R. 513; distinguished: Eaton v.
Brant County Board of Education, [1997] 1 S.C.R. 241;
Eldridge v. British Columbia (Attorney General), [1997]
3 S.C.R. 624; Vriend v. Alberta, [1998] 1 S.C.R. 493;
Rodriguez v. British Columbia (Attorney General),
[1993] 3 S.C.R. 519; considered: British Columbia
(Superintendent of Motor Vehicles) v. British Columbia
(Council of Human Rights), [1999] 3 S.C.R. 868; British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; referred to:
Quebec (Commission des droits de la personne et des
droits de la jeunesse) v. Montreal (City), [2000] 1
S.C.R. 665, 2000 SCC 27; Sutton v. United Airlines,
Inc., 119 S.Ct. 2139 (1999); Battlefords and District Cooperative Ltd. v. Gibbs, [1996] 3 S.C.R. 566; Re B.C.
Motor Vehicle Act, [1985] 2 S.C.R. 486; Miron v.
Trudel, [1995] 2 S.C.R. 418; Cleburne v. Cleburne
Living Centre, Inc., 473 U.S. 432 (1985).
Arrêts appliqués: Law c. Canada (Ministre de l’Emploi et de l’Immigration), [1999] 1 R.C.S. 497; Andrews
c. Law Society of British Columbia, [1989] 1 R.C.S.
143; Egan c. Canada, [1995] 2 R.C.S. 513; distinction
d’avec les arrêts: Eaton c. Conseil scolaire du comté de
Brant, [1997] 1 R.C.S. 241; Eldridge c. ColombieBritannique (Procureur général), [1997] 3 R.C.S. 624;
Vriend c. Alberta, [1998] 1 R.C.S. 493; Rodriguez c.
Colombie-Britannique (Procureur général), [1993] 3
R.C.S. 519; arrêts examinés: Colombie-Britannique
(Superintendent of Motor Vehicles) c. ColombieBritannique (Council of Human Rights), [1999] 3 R.C.S.
868; Colombie-Britannique (Public Service Employee
Relations Commission) c. BCGSEU, [1999] 3 R.C.S. 3;
arrêts mentionnés: Québec (Commission des droits de
la personne et des droits de la jeunesse) c. Montréal
(Ville), [2000] 1 R.C.S. 665, 2000 CSC 27; Sutton c.
United Airlines, Inc., 119 S.Ct. 2139 (1999); Battlefords
and District Co-operative Ltd. c. Gibbs, [1996] 3 R.C.S.
566; Renvoi: B.C. Motor Vehicle Act, [1985] 2 R.C.S.
486; Miron c. Trudel, [1995] 2 R.C.S. 418; Cleburne c.
Cleburne Living Centre, Inc., 473 U.S. 432 (1985).
Statutes and Regulations Cited
Lois et règlements cités
Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 42(2)(a)
[rep. & sub. c. 30 (2nd Supp.), s. 12], (b) [rep. & sub.
1992, c. 1, s. 23], 44(1)(b) [rep. & sub. c. 30 (2nd
Supp.), s. 13; am. 1992, c. 2, s. 1], (2)(a) [rep. & sub.
c. 30 (2nd Supp.), s. 13], (b) [idem].
Canadian Charter of Rights and Freedoms, ss. 1, 15.
Workmen’s Compensation Act, R.S.M. 1970, c. W200.
Charte canadienne des droits et libertés, art. 1, 15.
Régime de pensions du Canada, L.R.C. (1985), ch. C-8,
art. 42(2)a) [abr. & rempl. ch. 30 (2e suppl.), art. 12],
b) [abr. & rempl. 1992, ch. 1, art. 23], 44(1)b) [abr. &
rempl. ch. 30 (2e suppl.), art. 13; mod. 1992, ch. 2,
art. 1], (2)a) [abr. & rempl. ch. 30 (2e suppl.), art. 13],
b) [idem].
Workmen’s Compensation Act, R.S.M. 1970, ch. W200.
Authors Cited
Doctrine citée
Bickenbach, Jerome E. Physical Disability and Social
Policy. Toronto: University of Toronto Press, 1993.
Lepofsky, M. David. “A Report Card on the Charter’s
Guarantee of Equality to Persons with Disabilities
after 10 Years — What Progress? What Prospects?”
(1998), 7 N.J.C.L. 263.
Minow, Martha. “When Difference Has Its Home:
Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference” (1987), 22
Harv. C.R.-C.L. L. Rev. 111.
Bickenbach, Jerome E. Physical Disability and Social
Policy. Toronto: University of Toronto Press, 1993.
Lepofsky, M. David. «A Report Card on the Charter’s
Guarantee of Equality to Persons with Disabilities
after 10 Years — What Progress? What Prospects?»
(1998), 7 N.J.C.L. 263.
Minow, Martha. «When Difference Has Its Home:
Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference» (1987),
22 Harv. C.R.-C.L. L. Rev. 111.
706
GRANOVSKY
c.
CANADA
Le juge Binnie
707
New Shorter Oxford English Dictionary on Historical
Principles, vol. 1. Oxford: Clarendon Press, 1993,
“immutable”.
Pothier, Dianne. “Miles to Go: Some Personal Reflections on the Social Construction of Disability” (1992),
14 Dalhousie L.J. 526.
Trudeau, Pierre Elliott. The Essential Trudeau. Edited
by Ron Graham. Toronto: M & S, 1998.
United Nations. United Nations Decade of Disabled
Persons, 1983-1992: World Programme of Action
concerning Disabled Persons. New York: United
Nations, 1983.
World Health Organization. International Classification
of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of
Disease. Geneva: The Organization, 1980.
Nations Unies. Décennie des Nations Unies pour les
personnes handicapées, 1983-1992: Programme
d’action mondial concernant les personnes handicapées. New York: Nations Unies, 1983.
Organisation mondiale de la santé. Classification internationale des handicaps: déficiences, incapacités et
désavantages: Un manuel de classification des conséquences des maladies. Paris: INSERM, 1988.
Pothier, Dianne. «Miles to Go: Some Personal Reflections on the Social Construction of Disability»
(1992), 14 Dalhousie L.J. 526.
Trudeau, Pierre Elliott. Trudeau: l’essentiel de sa pensée
politique. Avec la collaboration de Ron Graham.
Montréal: Le Jour, 1998.
APPEAL from a judgment of the Federal Court
of Appeal, [1998] 3 F.C. 175, 158 D.L.R. (4th)
411, 225 N.R. 2, 36 C.C.E.L. (2d) 155, 53 C.R.R.
(2d) 105, [1998] F.C.J. No. 311 (QL), dismissing
an appeal from the Pension Appeals Board. Appeal
dismissed.
POURVOI contre un arrêt de la Cour d’appel
fédérale, [1998] 3 C.F. 175, 158 D.L.R. (4th) 411,
225 N.R. 2, 36 C.C.E.L. (2d) 155, 53 C.R.R. (2d)
105, [1998] A.C.F. no 311 (QL), qui a rejeté un
appel de la Commission d’appel des pensions.
Pourvoi rejeté.
Bryan P. Schwartz and Ronald Schmalcel, for
the appellant.
Bryan P. Schwartz et Ronald Schmalcel, pour
l’appelant.
Edward R. Sojonky, Q.C., and Catharine Moore,
for the respondent.
Edward R. Sojonky, c.r., et Catharine Moore,
pour l’intimé.
John F. Rook, Q.C., and Mark A. Gelowitz, for
the intervener.
John F. Rook, c.r., et Mark A. Gelowitz, pour
l’intervenant.
The judgment of the Court was delivered by
Version française du jugement de la Cour rendu
par
BINNIE J. — On May 27, 1980, at the age of 32,
the appellant injured his back at work. Thirteen
years later, having been employed irregularly at
various jobs in the interim, he applied for a permanent disability pension under the Canada Pension
Plan, R.S.C., 1985, c. C-8 (“CPP”). The Minister
refused the application because over the relevant
10-year period prior to the application, the appellant had failed to make the required CPP contributions in any year except 1988. The appellant
argues that it was his disability that prevented him
from making all of the required CPP contributions
LE JUGE BINNIE — Le 27 mai 1980, à l’âge de
32 ans, l’appelant s’est blessé au dos dans l’exercice de ses fonctions. Treize ans plus tard, après
avoir occupé différents emplois de façon sporadique, il a présenté une demande de pension d’invalidité permanente en application du Régime de
pensions du Canada, L.R.C. (1985), ch. C-8
(«RPC»). Le Ministre a refusé la demande, car
pendant la période pertinente de 10 ans l’ayant précédée, l’appelant n’avait versé les cotisations
requises au RPC qu’en 1988. L’appelant fait valoir
que c’est l’invalidité, ou déficience, qui l’a empê-
[2000] 1 R.C.S.
1
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
in the relevant 1981-92 contribution period, and
that the failure of the CPP to take his disability
into account in considering his lack of contribution
constitutes discrimination contrary to s. 15(1) of
the Canadian Charter of Rights and Freedoms.
ché de verser au RPC toutes les cotisations requises au cours de la période cotisable pertinente de
1981 à 1992, et que l’omission du RPC de tenir
compte de cette déficience constitue de la discrimination au sens du par. 15(1) de la Charte canadienne des droits et libertés.
2
The appellant thus raises issues of considerable
importance to persons with disabilities and to governments that undertake to design and implement
social benefits legislation. The CPP is a selffunded contributory plan. In what circumstances
can the Charter alleviate against the contribution
requirements imposed by Parliament? CPP retirement benefits are universal but disability benefits
are conditional. They are designed to assist persons
with disabilities who were recently in the work
force by replacing employment income with a disability pension. The appellant does not have any
significant recent attachment to the work force;
thus he does not have recent employment income
for which a CPP disability pension can be a substitute. Nevertheless, if the time horizon is broadened, he can point to the fact that in the 27-year
period between his entry into the work force in
1967 and his application for a disability pension in
1993 he made CPP contributions in each of 10
years, mostly prior to 1980. He should not, he
says, be “branded a non-contributor”.
L’appelant soulève donc des questions d’une
importance considérable pour les personnes ayant
une déficience et pour les gouvernements qui
entreprennent de concevoir et de mettre en œuvre
des mesures législatives en matière d’avantages
sociaux. Le RPC est un régime contributif autofinancé. Dans quels cas la Charte peut-elle atténuer
les exigences en matière de cotisation imposées
par le législateur? Les prestations de retraite du
RPC sont universelles, mais les prestations d’invalidité sont conditionnelles. Ces dernières visent à
aider les personnes qui ont une déficience et qui
étaient récemment sur le marché du travail en remplaçant leur revenu d’emploi par une pension d’invalidité. L’appelant n’a aucun lien significatif
récent avec le marché du travail de sorte qu’il ne
dispose d’aucun revenu d’emploi récent susceptible d’être remplacé par une pension d’invalidité du
RPC. Néanmoins, si on remonte plus loin, il peut
invoquer le fait qu’au cours de la période de 27
années qui s’est écoulée entre son entrée sur le
marché du travail en 1967 et sa demande de pension d’invalidité en 1993, il a cotisé au RPC pendant 10 ans en tout, surtout avant 1980. Il dit qu’il
ne devrait pas être [TRADUCTION] «étiqueté comme
non-cotisant».
3
The appellant admits that Parliament may, without Charter infringement, create a particular type
of benefit (a contributory plan) targeted at a particular group of individuals (those recently in the
work force) who are disadvantaged with a particular type of disability (severe rather than superficial,
permanent rather than temporary), but that Parliament drew the line in the wrong place when it
insisted on the same level of contributions from
temporarily disabled workers as it does from ablebodied workers. In my view, for the reasons which
follow, the CPP as designed and as applied to the
appellant does not violate his equality rights. The
impugned feature of the CPP disability pension
L’appelant admet que le législateur peut, sans
contrevenir à la Charte, créer une forme particulière d’avantage (un régime contributif) destinée à
un groupe précis de personnes (celles qui étaient
récemment sur le marché du travail) qui sont défavorisées en raison d’un type donné de déficience
(grave plutôt que superficielle, permanente plutôt
que temporaire), mais il prétend que le législateur
a tracé la ligne au mauvais endroit en exigeant que
les travailleurs ayant une déficience temporaire
cotisent autant que les travailleurs physiquement
aptes. Pour les motifs qui suivent, je suis d’avis
que le RPC, tel qu’il est conçu et tel qu’il s’applique à l’appelant, ne porte pas atteinte à ses
708
GRANOVSKY
c.
CANADA
Le juge Binnie
709
(the “drop-out” provision) relaxes the contribution
requirement in the case of individuals with permanent disabilities but not individuals with temporary
disabilities. Parliament was entitled to take into
account the nature and extent of an individual’s
disability both at the time of the application for a
disability pension was made, and during the prior
10-year contribution period. While the CPP draws
a statutory distinction between individuals with
differing levels of disability during the contribution period, the distinction does not demean the
appellant. It simply recognizes that he enjoyed
greater economic strength at the relevant time than
did the permanently disadvantaged people targeted
by the special relief he now seeks to share.
droits à l’égalité. La caractéristique contestée du
régime de pension d’invalidité du RPC (la disposition d’«exclusion») assouplit l’exigence en matière
de cotisation dans les cas de déficience permanente, mais non dans les cas de déficience temporaire. Le législateur avait le droit de tenir compte
de la nature et de l’étendue de la déficience d’une
personne tant au moment de la demande de pension d’invalidité qu’au cours de la période cotisable antérieure de 10 ans. Même si le RPC établit
une distinction entre les personnes ayant différents
niveaux de déficience au cours de la période cotisable, cette distinction ne rabaisse pas l’appelant.
Elle ne fait que reconnaı̂tre qu’à l’époque pertinente il jouissait d’une force économique supérieure à celle des personnes défavorisées de façon
permanente, à qui est destinée l’aide particulière
dont il veut maintenant bénéficier.
I. Facts
I. Les faits
The appellant says he has suffered an intermittent and degenerative back injury since 1980. As a
result of a workplace accident in that year, he was
assessed to be temporarily totally disabled under
the Manitoba Workmen’s Compensation Act,
R.S.M. 1970, c. W200, and received disability
benefits under that Act until 1984. Prior to his
accident, he had made CPP contributions in six of
the ten previous years (1970-1979 inclusive). In
his factum he sets out his lifetime CPP contributions as follows:
L’appelant affirme qu’il souffre de façon intermittente, depuis 1980, d’une blessure dégénérative
au dos. À la suite d’un accident du travail survenu
cette année-là, l’appelant a été déclaré avoir une
déficience totale temporaire en application de la
Workmen’s Compensation Act du Manitoba,
R.S.M. 1970, ch. W200, et il a touché des prestations d’invalidité en vertu de cette loi jusqu’en
1984. Il avait cotisé au RPC pendant six des dix
années ayant précédé son accident (à savoir de
1970 à 1979 inclusivement). Dans son mémoire, il
énumère ainsi les cotisations qu’il a versées au
RPC au cours de sa vie:
1967:
1968:
1969:
1970:
1971:
1972:
1973:
1974:
1975:
1976:
1977:
1978:
1979:
Yes
Yes
No
No
No
No
Yes
Yes
Yes
Yes
Yes
No
Yes
1980:
1981:
1982:
1983:
1984:
1985:
1986:
1987:
1988:
1989:
1990:
1991:
1992:
1993:
No
No
Yes
No
No
No
No
No
Yes
No
No
No
No
No
1967:
1968:
1969:
1970:
1971:
1972:
1973:
1974:
1975:
1976:
1977:
1978:
1979:
Oui
Oui
Non
Non
Non
Non
Oui
Oui
Oui
Oui
Oui
Non
Oui
1980:
1981:
1982:
1983:
1984:
1985:
1986:
1987:
1988:
1989:
1990:
1991:
1992:
1993:
Non
Non
Oui
Non
Non
Non
Non
Non
Oui
Non
Non
Non
Non
Non
[2000] 1 R.C.S.
4
5
6
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
In 1980-81 and again in 1982-83, the appellant
was in receipt of a temporary disability allowance
or rehabilitation allowance. In 1983, he was determined by the Neurosis (Psychiatric) Review Panel
of the Manitoba Workmen’s Compensation Board
to have a 15 percent permanent disability and in
1985 was awarded a lump sum payment of
$40,449.12 in full and final settlement. On January
24, 1985, the Workmen’s Compensation Board
determined that the appellant was capable of working. Since that time, he has made his CPP contribution in only one year, namely 1988.
L’appelant a touché des prestations d’invalidité
temporaire ou indemnité de réadaptation en 1980
et 1981 et de nouveau, en 1982 et 1983. En 1983,
le Comité d’examen des névroses (psychiatrie) de
la Commission des accidents du travail du Manitoba a décidé qu’il avait une déficience permanente de 15 pour 100, et, en 1985, il a alors obtenu
une somme forfaitaire de 40 449,12 $ à titre de
règlement complet et définitif. Le 24 janvier 1985,
la Commission des accidents du travail a jugé que
l’appelant était apte au travail. Depuis lors, il n’a
cotisé au RPC que pendant une seule année, à
savoir en 1988.
Although the appellant was profitably employed
from time to time following his workplace accident in 1980, he says that throughout this period
his back condition continued to deteriorate and the
disability became “permanent” in 1993. At that
time, claiming a severe and permanent disability,
he applied for a CPP disability pension. His application was refused by the Minister and refused
again by a Review Tribunal in part because he had
only made a CPP contribution in one year (1988)
of the relevant CPP 10-year contribution period
(1983-92) and thus had what was considered to be
an insufficiently recent connection to the work
force. The Tribunal took a dim view of his application, as is apparent from the terms of its decision
dated July 4, 1994, which refers somewhat disparagingly to his “back-ache”:
Bien que l’appelant ait occupé certains emplois
rémunérateurs après avoir été victime de son accident du travail en 1980, il dit que, pendant cette
période, l’état de son dos a continué de se détériorer et que sa déficience est devenue «permanente»
en 1993. À ce moment-là, invoquant une déficience grave et permanente, il a présenté une
demande de pension d’invalidité du RPC. Le
ministre et ensuite un tribunal de révision ont
refusé la demande de l’appelant, en partie parce
qu’il n’avait cotisé au RPC que pendant une seule
année (1988) de la période cotisable de 10 ans pertinente (de 1983 à 1992), de sorte qu’il n’avait pas
ce qui était considéré comme un lien suffisamment
récent avec le marché du travail. Comme le montre
le texte de sa décision du 4 juillet 1994, qui traite
de façon plutôt désobligeante des «maux de dos»
de l’appelant, le tribunal de révision voyait d’un
mauvais œil sa demande:
On all of the evidence, medical and otherwise, and having observed the demeanour and mental and physical
manouvers [sic] of Mr. Granovsky during the hearing,
the Tribunal is of the unanimous view that
Mr. Granovsky did not suffer from a severe and prolonged mental or physical disability within the meaning
of Subsection 42(2) in 1984 nor did he suffer from any
such disability at any time up to the present.
[TRADUCTION] Compte tenu de l’ensemble de la preuve
médicale et autre, ainsi que du comportement, des agissements et de l’attitude de M. Granovsky pendant l’audience, le tribunal estime à l’unanimité que ce dernier
n’était pas atteint en 1984 d’une invalidité physique ou
mentale grave et prolongée au sens du paragraphe 42(2),
et qu’il n’a pas été atteint d’une telle invalidité depuis
cette année-là.
Indeed Mr. Granovsky was very candid in stating to the
Tribunal that he is anxious and waiting to go out and
work if he can find work suited to his physical condition/limitation imposed by his back-ache.
En fait, M. Granovsky a avoué très franchement au tribunal qu’il était impatient de retourner travailler dès
qu’il pourrait trouver un emploi adapté à l’état ou à l’incapacité physique découlant de ses maux de dos.
Before the Pension Appeals Board on a hearing
de novo, the parties agreed to go forward only with
Lors d’une audience de novo devant la Commission d’appel des pensions, les parties ont accepté
710
GRANOVSKY
c.
CANADA
Le juge Binnie
711
the Charter argument in respect of the appellant’s
contribution history, and to leave for a later hearing, if necessary, whether or not the appellant in
fact suffered from a severe disability at the date of
his 1993 application, or otherwise. This splitting of
the issues, while intended to be helpful, has given
the appeal a somewhat abstract quality on the key
questions of the nature and extent of the injury,
and its subsequent deterioration, which is unfortunate.
de s’en tenir à l’argument fondé sur la Charte relativement à l’historique des cotisations de l’appelant et de reporter à une audience ultérieure, si
nécessaire, l’examen de la question de savoir si
l’appelant avait effectivement une déficience grave
au moment où il a présenté sa demande en 1993.
Ce fractionnement de questions, qui se voulait
utile, a malheureusement rendu le pourvoi quelque
peu abstrait en ce qui concerne les questions fondamentales de la nature et de l’étendue de la blessure, et de sa détérioration ultérieure.
In any event, the nub of the appellant’s Charter
complaint is that while the CPP relaxes the contribution requirement for applicants whose severe
disability was prolonged during all or part of the
10 years immediately preceding the application, it
does not relax the contribution for applicants such
as the appellant whose severe disability was sporadic, in the process of developing, or of short
duration. He argues that where a contributor has a
special burden (such as a temporary disability) that
goes “above and beyond the usual”, he or she is
entitled to increased flexibility in the CPP contribution requirements commensurate with the
increased burden.
De toute manière, l’appelant fait essentiellement
valoir, dans sa plainte fondée sur la Charte, que
même si le RPC assouplit les exigences en matière
de cotisation dans les cas de déficience grave et
prolongée pendant la totalité ou une partie de la
période de 10 années qui précède immédiatement
la demande, il ne le fait pas dans le cas d’un requérant qui, comme lui, a une déficience grave, mais
sporadique, progressive ou de courte durée. Il prétend que lorsqu’un cotisant porte un fardeau spécial (comme une déficience temporaire) qui [TRADUCTION] «sort du commun», il a droit à une
application plus souple des exigences en matière
de cotisation du RPC, et ce, proportionnellement à
l’accroissement du fardeau.
7
The appellant says that his equality rights as a
temporarily disabled person were violated by the
refusal of the CPP to drop out of its contribution
calculations those years in which he was unable to
work for at least six months by reason of his disability. If the drop-out provision is applied, he says,
as it is for those who suffered a permanent disability, he would qualify for a CPP disability pension
on the basis of the years in which he did make a
valid CPP contribution. The appellant thus says
that the CPP discriminated against him by insisting
on the same rules of recent contribution imposed
on more able-bodied workers, which he could not
make because of his temporary disability, and
denying him the equivalent drop-out privileges
allowed to the permanently disabled. The appellant
L’appelant affirme que ses droits à l’égalité, en
tant que personne ayant une déficience temporaire,
ont été violés par le refus du RPC d’exclure du calcul de ses cotisations les années pendant lesquelles
il a été incapable de travailler pendant au moins six
mois en raison de sa déficience. Il affirme que, si
la disposition d’exclusion était appliquée de la
même manière que dans le cas d’une personne qui
a une déficience permanente, il serait admissible à
une pension d’invalidité du RPC en raison des
années où il a effectivement versé des cotisations
valides au RPC. L’appelant prétend donc que le
RPC a fait preuve de discrimination à son égard en
insistant sur l’application des règles de cotisation
récente imposées aux travailleurs plus physiquement aptes, règles qu’il n’a pas pu respecter en raison de sa déficience temporaire, et en lui refusant
les mêmes privilèges d’exclusion dont jouissent les
personnes qui ont une déficience permanente.
L’appelant a été débouté tant par la Commission
8
[2000] 1 R.C.S.
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
was unsuccessful both before the Pension Appeals
Board and before the Federal Court of Appeal.
d’appel des pensions que par la Cour d’appel fédérale.
II. The Statutory Scheme
II. Le régime législatif
9
The CPP was designed to provide social insurance for Canadians who experience a loss of earnings owing to retirement, disability, or the death of
a wage-earning spouse or parent. It is not a social
welfare scheme. It is a contributory plan in which
Parliament has defined both the benefits and the
terms of entitlement, including the level and duration of an applicant’s financial contribution.
Le RPC est un régime d’assurance sociale destiné aux Canadiens privés de gains en raison d’une
retraite, d’une déficience ou du décès d’un conjoint
ou d’un parent salarié. Il s’agit non pas d’un
régime d’aide sociale, mais plutôt d’un régime
contributif dans lequel le législateur a défini à la
fois les avantages et les conditions d’admissibilité,
y compris l’ampleur et la durée de la contribution
financière d’un requérant.
10
The disability pension replaces income for those
contributors determined to be “disabled” within
the statutory definition. To qualify, applicants must
satisfy two legislative requirements:
La pension d’invalidité remplace le revenu du
cotisant déclaré «invalide» au sens de la Loi. Pour
y avoir droit, le requérant doit remplir deux conditions prescrites par la Loi:
(a) The contributor must suffer from a “severe
and prolonged mental or physical disability”. A
disability is deemed to be “severe” if the person
is “incapable regularly of pursuing any substantially gainful occupation”, and “prolonged” if it
is “likely to be long continued and of indefinite
duration or is likely to result in death” (CPP,
s. 42(2)(a)).
a) Le cotisant doit être atteint d’une «invalidité
physique ou mentale grave et prolongée». Une
«invalidité» est réputée «grave» si la personne
est «régulièrement incapable de détenir une
occupation véritablement rémunératrice», et elle
est réputée «prolongée» si elle doit «vraisemblablement durer pendant une période longue, continue et indéfinie ou [. . .] entraı̂ner vraisemblablement le décès» (al. 42(2)a) du RPC).
(b) Contributors must also satisfy a “recency of
contributions” test which, at the time the appellant applied for benefits, required contributions
to have been made to the CPP in five of the last
10 years or two of the last three years of the
contributory period (CPP, ss. 44(1)(b) and
44(2)(a)). The rationale is that workplace
replacement income presupposes a recent
attachment to a workplace the income from
which is to be replaced.
b) Le cotisant doit également satisfaire au critère
de la «récence des cotisations» qui, à l’époque
où l’appelant a présenté une demande de prestations, exigeait que des cotisations aient été versées au RPC pendant cinq des dix dernières
années ou deux des trois dernières années de la
période cotisable (al. 44(1)b) et 44(2)a) du
RPC). Cela est dû au fait que le remplacement
d’un revenu d’emploi présuppose l’existence
d’un lien récent avec un lieu de travail d’où provient le revenu à remplacer.
An applicant has a right to a disability pension
only if he or she satisfies both tests — permanent
medical disability and recency of contribution —
at the time of his or her application.
Le requérant n’a droit à la pension d’invalidité que
s’il satisfait aux deux critères — l’«invalidité» permanente sur le plan médical et la récence des cotisations — au moment où il présente sa demande.
The disability pension provisions of the CPP
recognize that contributors may not, for a variety
of reasons, be able to make payments consistently.
Les dispositions du RPC relatives à la pension
d’invalidité reconnaissent qu’il se peut que, pour
diverses raisons, le cotisant ne soit pas toujours en
11
712
GRANOVSKY
c.
CANADA
Le juge Binnie
713
Reasons for non-contribution could include everything from plant closures to lack of marketable
skills to (as in this case) a disability. A measure of
flexibility was created for all applicants by the fact
that contributions need only have been made in
five of the previous 10 years or two out of the previous three years. Anything less, in Parliament’s
view, falls short of the required recent attachment
to the work force.
mesure de verser régulièrement des cotisations. Le
non-versement des cotisations peut notamment
découler d’une fermeture d’usine ou de l’absence
des compétences recherchées ou encore, comme en
l’espèce, d’une déficience. Tous les requérants
bénéficient d’une certaine souplesse du fait qu’ils
doivent seulement avoir versé des cotisations pendant cinq des dix années antérieures ou deux des
trois années antérieures. Le législateur a estimé
qu’exiger moins irait à l’encontre du critère du lien
récent avec le marché du travail.
The impugned legislative measure (the drop-out
provision) was created for two classes of persons:
the permanently disabled and family allowance
recipients (CPP, s. 44(2)(b)(iii) and (iv)). The
drop-out provision permits certain months to be
excluded from the contributory period. If a person
is permanently disabled in the course of a calendar
year, the months during which that person is permanently disabled are not counted against him or
her in determining whether recency of CPP contribution requirements are satisfied.
La mesure législative contestée (la disposition
d’exclusion) vise deux catégories de personnes: les
personnes atteintes d’une «invalidité» permanente
et les bénéficiaires d’allocations familiales (sousal. 44(2)b)(iii) et (iv) du RPC). La disposition
d’exclusion permet d’exclure certains mois de la
période cotisable. Si, au cours d’une année civile,
une personne a une déficience permanente les mois
pendant lesquels elle se trouve dans cet état ne
jouent pas contre elle lorsque vient le temps de
déterminer si les exigences relatives à la récence
des cotisations au RPC ont été respectées.
12
It is clear the CPP draws a distinction between
those in the position of the appellant and other persons with disabilities. Both groups consist of people with physical or mental impairments and a
consequent degree of functional limitation that prevents them from working. The appellant agrees
that the CPP is a self-funded contributory plan, not
a form of welfare. He accepts that it is designed to
provide substitute income for those who have a
recent connection to the work force. He does not
challenge the “philosophy of the [CPP] scheme”,
and acknowledges “that there can be some reasonable ‘recency’ test. That is, a scheme aiming at
‘[earnings] replacement’ can reasonably say, as a
general matter, that a person who has been out of
the work force for a long time no longer has a
workplace income to replace”. His point is that
denying him the drop-out privileges afforded to the
permanently disabled demeans the importance and
sense of self-worth of people with temporary disabilities. The appellant’s position is that all people
suffering severe disabilities are entitled to a measure of relaxation of CPP contribution require-
Le RPC établit manifestement une distinction
entre les personnes qui se trouvent dans la situation
de l’appelant et les autres personnes qui ont une
déficience. Les deux groupes sont formés par des
gens qui sont atteints d’une affection physique ou
mentale à l’origine d’une limitation fonctionnelle
qui les empêche de travailler. L’appelant convient
que le RPC est un régime contributif autofinancé et
non pas une forme d’aide sociale. Il admet que ce
régime est destiné à fournir un revenu de remplacement aux personnes qui ont un lien récent avec
le marché du travail. Il ne conteste pas la [TRADUCTION] «philosophie» du RPC et reconnaı̂t «qu’il
peut y avoir un “critère de récence” raisonnable.
Autrement dit, un régime visant le remplacement
du revenu peut raisonnablement prévoir, de façon
générale, qu’une personne qui n’est pas sur le marché du travail depuis longtemps n’a plus de revenu
d’emploi à remplacer». Il prétend que lui refuser
les privilèges d’exclusion dont jouissent les personnes qui ont une déficience permanente diminue
l’importance et l’estime de soi des personnes dont
la déficience est temporaire. L’appelant soutient
13
[2000] 1 R.C.S.
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
ments imposed on the more able-bodied (or at least
those more consistently employed) members of the
work force.
que toutes les personnes ayant une déficience
grave ont droit à un certain assouplissement des
exigences en matière de cotisation qui sont imposées aux travailleurs plus physiquement aptes ou,
du moins, aux gens qui travaillent plus régulièrement.
14
I note at the outset that the appellant seeks an
extension of the s. 15(1) principles laid down in
the decided cases, which is understandable, but he
does so in circumstances that provide no clear
boundaries for the future. If he succeeds in having
the “permanence” requirement of the CPP test
rewritten, for example, will courts next be asked to
dilute the CPP requirement that the disability be
severe? The less severely disabled will no doubt
argue that their interests are no less worthy of protection than those whose disabilities are more
severe. Is the legislature then precluded from
targeting the permanently disabled for special programs or services (special paratransit public bus
facilities for example) without making the same
services and programs available to those whose
disabilities are temporary, and if so, how temporary would still be sufficient to qualify? The Minister responds that if line drawing is to be done, as
is inevitable in a government benefits scheme, the
question is not only where they are to be drawn,
but also who is to draw them, the courts or Parliament? The Minister says that Parliament is the
proper constitutional actor to make these policy
determinations. This is true, provided Parliament’s
line drawing does not violate the Constitution.
Je constate, au départ, que l’appelant demande
un élargissement des principes relatifs au
par. 15(1) qui ont été établis dans la jurisprudence,
ce qui est compréhensible, mais il le fait d’une
manière qui ne prévoit aucune limite claire pour
l’avenir. S’il réussit à faire modifier l’exigence de
«permanence» du critère du RPC, par exemple, vat-on ensuite demander aux tribunaux de diluer
l’exigence du RPC que la déficience soit grave?
Les personnes dont la déficience est moins grave
prétendront certainement que leurs droits ne sont
pas moins dignes de protection que ceux des personnes qui ont une déficience plus grave. Est-il
donc interdit au législateur de mettre sur pied des
programmes et des services destinés aux personnes
ayant une déficience permanente (comme, par
exemple, des services de transport adapté par autobus), sans offrir ces mêmes programmes et services aux personnes dont la déficience est temporaire, et le cas échéant, jusqu’à quel point la
déficience devrait-elle être temporaire pour qu’une
personne puisse en bénéficier? Le Ministre répond
que, s’il faut tracer la ligne, comme cela est inévitable dans un régime de prestations gouvernemental, la question est de savoir non seulement où la
tracer, mais encore qui doit le faire, les tribunaux
ou le législateur? Le Ministre affirme que le législateur est celui à qui, d’après la Constitution, il
incombe de prendre ces décisions de politique
générale. Cela est vrai à la condition que la ligne
tracée par le législateur ne viole pas la Constitution.
15
The Minister’s denial of the application was
based on his view that the “eligibility clock” continued to run even in years in which the appellant
was for most of the year unable to work and was
thus for those years a non-contributor. It is common ground that the pension was properly denied
unless the legislation infringes the appellant’s
Le Ministre a refusé la demande parce que,
selon lui, la période d’admissibilité a continué de
s’écouler même pendant les années où l’appelant
était la plupart du temps incapable de travailler et
n’était donc pas un cotisant. Les parties reconnaissent que la pension a été refusée à bon droit, sauf si
les dispositions législatives en cause portent
714
GRANOVSKY
c.
CANADA
Le juge Binnie
715
equality rights under s. 15(1) of the Charter and
cannot be saved under s. 1.
atteinte aux droits à l’égalité garantis à l’appelant
par le par. 15(1) de la Charte et que, le cas
échéant, elles ne peuvent pas être sauvegardées en
vertu de l’article premier.
III. Constitutional Provisions
III. Les dispositions constitutionnelles
Canadian Charter of Rights and Freedoms
Charte canadienne des droits et libertés
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society.
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent
être restreints que par une règle de droit, dans des
limites qui soient raisonnables et dont la justification
puisse se démontrer dans le cadre d’une société libre et
démocratique.
.
.
.
.
.
.
15. (1) Every individual is equal before and under the
law and has the right to the equal protection and equal
benefit of the law without discrimination and, in particular, without discrimination based on race, national or
ethnic origin, colour, religion, sex, age or mental or
physical disability.
15. (1) La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment
de toute discrimination, notamment des discriminations
fondées sur la race, l’origine nationale ou ethnique, la
couleur, la religion, le sexe, l’âge ou les déficiences
mentales ou physiques.
IV. Relevant Statutory Provisions
IV. Les dispositions législatives pertinentes
Canada Pension Plan, R.S.C., 1985, c. C-8
Régime de pensions du Canada, L.R.C. (1985),
ch. C-8
42. . . .
16
42. . . .
(2) For the purposes of this Act,
(2) Pour l’application de la présente loi:
(a) a person shall be considered to be disabled only if
he is determined in prescribed manner to have a
severe and prolonged mental or physical disability,
and for the purposes of this paragraph,
a) une personne n’est considérée comme invalide que
si elle est déclarée, de la manière prescrite, atteinte
d’une invalidité physique ou mentale grave et prolongée, et pour l’application du présent alinéa:
(i) a disability is severe only if by reason thereof
the person in respect of whom the determination is
made is incapable regularly of pursuing any substantially gainful occupation, and
(i) une invalidité n’est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice,
(ii) a disability is prolonged only if it is determined
in prescribed manner that the disability is likely to
be long continued and of indefinite duration or is
likely to result in death; and
(ii) une invalidité n’est prolongée que si elle est
déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraı̂ner vraisemblablement le décès;
(b) a person shall be deemed to have become or to
have ceased to be disabled at such time as is determined in the prescribed manner to be the time when
the person became or ceased to be, as the case may
be, disabled, but in no case shall a person be deemed
to have become disabled earlier than fifteen months
b) une personne est réputée être devenue ou avoir
cessé d’être invalide à la date qui est déterminée, de
la manière prescrite, être celle où elle est devenue ou
a cessé d’être, selon le cas, invalide, mais en aucun
cas une personne n’est réputée être devenue invalide à
une date antérieure de plus de quinze mois à la date
17
[2000] 1 R.C.S.
GRANOVSKY
v.
CANADA
before the time of the making of any application in
respect of which the determination is made.
.
.
.
44. (1) Subject to this Part,
.
.
.
Binnie J.
[2000] 1 S.C.R.
de la présentation d’une demande à l’égard de
laquelle la détermination a été établie.
.
.
.
44. (1) Sous réserve des autres dispositions de la présente partie:
.
.
.
(b) a disability pension shall be paid to a contributor . . . who is disabled and who
b) une pension d’invalidité doit être payée à un cotisant [. . .] qui est invalide et qui:
(i) has made contributions for not less than the
minimum qualifying period,
(i) soit a versé des cotisations pendant au moins la
période minimale d’admissibilité,
(ii) has made contributions for at least two of the
last three calendar years included either wholly or
partly within his contributory period,
(ii) soit a versé des cotisations pendant au moins
deux des trois dernières années civiles entièrement
ou partiellement comprises dans sa période cotisable,
.
.
.
(iv) is a contributor to whom a disability pension
would have been payable at the time the contributor is deemed to have become disabled had an
application for a disability pension been received
prior to the time the contributor’s application for a
disability pension was actually received;
.
.
.
.
.
.
(iv) soit est un cotisant à qui une pension d’invalidité aurait été payable au moment où il est réputé
être devenu invalide, si une demande de pension
d’invalidité avait été reçue avant le moment où elle
a effectivement été reçue;
.
.
.
(2) For the purposes of paragraphs (1)(b) . . .
(2) Pour l’application des alinéas (1)b) . . .
(a) a contributor shall be considered to have made
contributions for not less than the minimum qualifying period only if he has made contributions
a) un cotisant n’est réputé avoir versé des cotisations
pendant au moins la période minimale d’admissibilité
que s’il a versé des cotisations:
(i) for at least five of the last ten calendar years
included either wholly or partly within his contributory period. . . .
(i) soit pendant au moins cinq des dix dernières
années civiles entièrement ou partiellement comprises dans sa période cotisable,
.
.
.
.
.
.
(b) the contributory period of a contributor shall be
the period
b) la période cotisable d’un cotisant est la période qui:
(i) commencing January 1, 1966 or when he
reaches eighteen years of age, whichever is the
later, and
(i) commence le 1er janvier 1966 ou au moment où
il atteint l’âge de dix-huit ans, en choisissant celle
de ces deux dates qui est postérieure à l’autre,
(ii) ending with the month in which he is determined to have become disabled for the purpose of
paragraph (1)(b),
(ii) se termine avec le mois au cours duquel il est
déclaré invalide dans le cadre de l’alinéa (1)b),
but excluding
(iii) any month that was excluded from the contributor’s contributory period under this Act or under a
provincial pension plan by reason of disability, and
mais ne comprend pas:
(iii) un mois qui, en raison d’une invalidité, a été
exclu de la période cotisable de ce cotisant conformément à la présente loi ou à un régime provincial
de pensions,
716
GRANOVSKY
c.
(iv) in relation to any benefits payable under this
Act . . . any month for which he was a family
allowance recipient in a year for which his unadjusted pensionable earnings were equal to or less
than his basic exemption for the year.
CANADA
Le juge Binnie
(iv) en ce qui concerne une prestation payable en
application de la présente loi [. . .], un mois relativement auquel il était bénéficiaire d’une allocation
familiale dans une année à l’égard de laquelle ses
gains non ajustés ouvrant droit à pension étaient
égaux ou inférieurs à son exemption de base pour
l’année.
V. Judgments in Appeal
V. Les jugements portés en appel
A. Pension Appeals Board
A. Commission d’appel des pensions
(1) Per Cameron J.A., Rice J.A. concurring
717
(1) Le juge Cameron, avec l’appui du juge Rice
Cameron J.A. concluded that entitlement to disability benefits under the CPP is conditional on the
statutory criteria being met. Here, the legislation
did not impose a burden upon the appellant that is
not imposed on other claimants. The criteria are
the same for all groups. These criteria are not
based on stereotypical views of disabled individuals, nor can they be said to be designed to exclude
disabled people from participation, in his view.
The years of unemployment owing to disability,
combined with other years of no or little employment, resulted in the appellant not having sufficient contributions to meet the prerequisites under
the Act. Mr. Granovsky was denied a pension
because he had not made sufficient contributions.
The reason for the lack of contributions, in
Cameron J.A.’s view, is irrelevant to the CPP. The
determination of the appropriate level of contributions is a matter for Parliament. For these reasons,
she concluded that the contribution requirements
of the disability plan do not violate s. 15(1) of the
Charter.
Le juge Cameron a conclu que le droit à des
prestations d’invalidité en vertu du RPC est conditionnel au respect des critères établis par la Loi. En
l’espèce, les dispositions en cause n’imposaient
pas à l’appelant un fardeau qui n’est pas imposé à
d’autres demandeurs. Les mêmes critères s’appliquent à tous les groupes. Selon lui, ils ne reposent
pas sur une perception stéréotypée des personnes
ayant une déficience, et on ne peut pas dire non
plus qu’ils visent à empêcher des personnes ayant
une déficience de participer au régime. Les années
au cours desquelles l’appelant a cessé de travailler
en raison d’une déficience, conjuguées aux autres
années pendant lesquelles il n’a pas ou a peu travaillé, l’ont empêché de cotiser suffisamment pour
satisfaire aux exigences préalables de la Loi.
Monsieur Granovsky s’est vu refuser une pension
parce qu’il n’avait pas suffisamment cotisé. Selon
le juge Cameron, la raison de cette insuffisance des
cotisations n’est pas pertinente aux fins du RPC. Il
appartient au législateur d’établir le niveau approprié des cotisations. Pour ces motifs, elle a conclu
que les exigences en matière de cotisation du
régime de pension d’invalidité ne violent pas le
par. 15(1) de la Charte.
(2) Per the Honourable C.R. McQuaid concurring
in the result
(2) L’honorable C.R. McQuaid, souscrivant au
résultat
In concurring reasons, the Honourable C.R.
McQuaid expressed the view that exclusion from
the contributory requirements of any years that a
claimant suffered a work-related injury would discriminate against workers “who suffered from a
disabling injury not directly work-related, and that
even larger class who by reason of local economic
Dans des motifs concordants, l’honorable C.R.
McQuaid a exprimé l’avis que le fait de soustraire,
à l’application des exigences en matière de cotisation, les années pendant lesquelles une personne a
souffert d’une blessure liée au travail serait discriminatoire à l’égard des travailleurs «souffrant
d’une blessure invalidante non liée directement au
18
19
[2000] 1 R.C.S.
GRANOVSKY
v.
CANADA
21
[2000] 1 S.C.R.
conditions, or industrial downsizing, are, through
no fault of their own, not in receipt of earnings,
and thus precluded from contributing”.
travail et même pour la catégorie plus générale des
travailleurs qui, à cause des conditions économiques locales ou d’une rationalisation dans leur
secteur, ne touchent pas de revenu, sans qu’ils en
soient responsables, et sont donc empêchés de verser des cotisations».
B. Federal Court of Appeal, [1998] 3 F.C. 175
B. Cour d’appel fédérale, [1998] 3 C.F. 175
(1) Stone J.A., Isaac C.J. concurring
20
Binnie J.
(1) Le juge Stone, avec l’appui du juge en chef
Isaac
Stone J.A. concluded that the Pension Appeals
Board had erred in analysing the issue on the basis
of direct discrimination rather than indirect or
“adverse effect” discrimination. In a decision that
pre-dated this Court’s judgment in Law v. Canada
(Minister of Employment and Immigration), [1999]
1 S.C.R. 497, he concluded at para. 11 that the
contributions requirement for disability benefits in
the Canada Pension Plan was contrary to s. 15(1)
of the Charter:
Le juge Stone a conclu que la Commission d’appel des pensions avait commis une erreur en analysant la question sous l’angle de la discrimination
directe, plutôt que sous celui de la discrimination
indirecte ou «par suite d’un effet préjudiciable».
Dans une décision antérieure à l’arrêt de notre
Cour Law c. Canada (Ministre de l’Emploi et de
l’Immigration), [1999] 1 R.C.S. 497, il a conclu
que la condition relative aux cotisations que le
Régime de pensions du Canada prescrit au sujet
des prestations d’invalidité contrevenait au
par. 15(1) de la Charte (au par. 11):
While neutral on its face, the recency of contributions
criterion in subsection 44(1) creates a distinction, in its
effect, between disabled and able-bodied persons. This
requirement imposes a restrictive condition on disabled
persons which arises because of their disability, and
which is not imposed on able-bodied persons who apply
for disability benefits under the Act. Because of this distinction, disabled persons such as the applicant are
denied the “equal benefit” of the law — in this case,
equal access to a disability pension to which they have
made valid contributions. . . . Disabled persons are
thereby inhibited from participating fully in the Plan by
reason of their disability.
Bien qu’il soit neutre à première vue, le critère de la
récence des cotisations énoncé au paragraphe 44(1) crée
une distinction, dans les faits, entre les invalides et les
personnes valides. Cette condition impose une restriction aux personnes invalides du fait de leur invalidité,
condition à laquelle ne sont pas assujetties les personnes
valides qui présentent une demande de prestations d’invalidité en vertu de la Loi. En raison de cette distinction,
les personnes invalides, comme le requérant, sont privées du «même bénéfice» de la loi — en l’espèce, l’égalité d’accès à une pension d’invalidité en prévision de
laquelle ils ont dûment versé leurs cotisations. [. . .] Les
personnes invalides sont donc empêchées de participer
pleinement au Régime du fait de leur invalidité.
Stone J.A. concluded, however, that the eligibility requirements in the CPP were justified pursuant
to s. 1 of the Charter. He wrote at para. 18:
Le juge Stone a cependant décidé que les conditions d’admissibilité du RPC étaient justifiées en
vertu de l’article premier de la Charte. Il a écrit (au
par. 18):
In my view, the government has made a reasonable
attempt, given the social, economic and fiscal considerations involved, to calculate and allocate a disability benefit in the most reasonable manner. The government is
À mon avis, le gouvernement a fait une tentative raisonnable, compte tenu des considérations sociales, économiques et fiscales en cause, pour calculer et allouer
des prestations d’invalidité de la manière la plus raisonnable possible. Le gouvernement est mieux placé que
quiconque pour examiner cette question et la Cour ne
718
GRANOVSKY
c.
CANADA
Le juge Binnie
719
uniquely situated to examine this issue and this Court
should not second-guess the action it has taken.
doit pas se prononcer après coup sur les mesures qu’il a
prises.
Stone J.A. therefore concluded that although the
CPP did infringe the applicant’s rights protected
by s. 15(1) of the Charter, it was a reasonable limit
that was demonstrably justified in a free and democratic society.
Le juge Stone a donc statué que, même si le
RPC portait atteinte aux droits garantis au requérant par le par. 15(1) de la Charte, il s’agissait
d’une limite raisonnable dont la justification pouvait se démontrer dans le cadre d’une société libre
et démocratique.
(2) McDonald J.A., concurring in the result
(2) Le juge McDonald, souscrivant au résultat
McDonald J.A. agreed with the result, but for
different reasons. Unlike the majority, he was of
the view that the applicant had not made a case of
discrimination since “[t]he eligibility criteria are
imposed on all individuals equally” (para. 36). He
went on to hold that if, contrary to his view,
s. 15(1) were violated, the government had not discharged its s. 1 onus of proving that it had
impaired the applicant’s right as little as possible.
Le juge McDonald était d’accord avec le résultat, mais pour des motifs différents. Contrairement
aux juges majoritaires, il était d’avis que le requérant n’avait pas démontré l’existence de discrimination étant donné que «[l]es critères d’admissibilité sont appliqués également à tous» (par. 36). Il a
ajouté que si, contrairement à ce qu’il pensait, il y
avait eu violation du par. 15(1), le gouvernement
ne s’était pas acquitté de l’obligation, qui lui
incombait en vertu de l’article premier, de prouver
qu’il avait porté le moins possible atteinte aux
droits du requérant.
VI. Constitutional Questions
VI. Les questions constitutionnelles
On February 16, 1999, Lamer C.J. stated the following constitutional questions:
Le 16 février 1999, le juge en chef Lamer a
énoncé les questions constitutionnelles suivantes:
(1) Does the Canada Pension Plan, R.S.C., 1985,
c. C-8, discriminate against persons on the basis of
physical or mental disability by including periods of
physical or mental disability in a claimant’s contributory period, as such period is determined pursuant
to s. 44(2)(b) of that Act, in claims for a disability
pension under that Act, contrary to s. 15 of the
Canadian Charter of Rights and Freedoms, Part I of
the Constitution Act, 1982, being Schedule B of the
Canada Act 1982 (U.K.), 1982, c. 11?
(1) Le Régime de pensions du Canada, L.R.C. (1985),
ch. C-8, crée-t-il à l’égard de certaines personnes
une discrimination fondée sur les déficiences mentales ou physiques en incluant des périodes d’invalidité mentale ou physique dans la période cotisable
d’un demandeur, selon la définition de cette période
à l’al. 44(2)b) de cette loi, dans les demandes de
pension d’invalidité faites en vertu de cette loi, en
contravention de l’art. 15 de la Charte canadienne
des droits et libertés, partie I de la Loi constitutionnelle de 1982, annexe B de la Loi de 1982 sur le
Canada (R.-U.), 1982, ch. 11?
(2) If so, does the discrimination come within only such
reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society under section 1 of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B of the Canada Act 1982
(U.K.), 1982, c. 11?
(2) Dans l’affirmative, cette discrimination est-elle une
restriction prescrite par une règle de droit, dans des
limites qui sont raisonnables et dont la justification
peut se démontrer dans le cadre d’une société libre
et démocratique selon l’article premier de la Charte
canadienne des droits et libertés, partie I de la Loi
constitutionnelle de 1982, annexe B de la Loi de
1982 sur le Canada (R.-U.), 1982, ch. 11?
22
23
24
[2000] 1 R.C.S.
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
VII. Analysis
VII. Analyse
25
The appellant says he has a serious back problem that renders him unemployable. The question
is how, if at all, his medical problem becomes a
human rights issue.
L’appelant dit souffrir de graves maux de dos
qui le rendent inapte au travail. La question est de
savoir comment, le cas échéant, son problème
médical devient une question de droits de la personne.
26
The true focus of the s. 15(1) disability analysis
is not on the impairment as such, nor even any
associated functional limitations, but is on the
problematic response of the state to either or both
of these circumstances. It is the state action that
stigmatizes the impairment, or which attributes
false or exaggerated importance to the functional
limitations (if any), or which fails to take into
account the “large remedial component” (Andrews
v. Law Society of British Columbia, [1989] 1
S.C.R. 143, at p. 171) or “ameliorative purpose” of
s. 15(1) (Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, at para. 66; Eldridge v.
British Columbia (Attorney General), [1997] 3
S.C.R. 624, at para. 65; Law, supra, at para. 72),
that creates the legally relevant human rights
dimension to what might otherwise be a straightforward biomedical condition.
L’analyse de la déficience, fondée sur le
par. 15(1), porte véritablement non pas sur les
affections en tant que telles, ni même sur des limitations fonctionnelles connexes, mais plutôt sur la
réaction problématique de l’État face à l’une ou
l’autre de ces situations, ou aux deux à la fois.
C’est l’action étatique qui stigmatise les affections
ou qui attribue une importance erronée ou exagérée aux limitations fonctionnelles (s’il en est), ou
encore qui ne tient pas compte de l’«aspect réparateur important» (Andrews c. Law Society of British
Columbia, [1989] 1 R.C.S. 143, à la p. 171) ou de
l’«objet d’amélioration» du par. 15(1) (Eaton c.
Conseil scolaire du comté de Brant, [1997] 1
R.C.S. 241, au par. 66; Eldridge c. ColombieBritannique (Procureur général), [1997] 3 R.C.S.
624, au par. 65; Law, précité, au par. 72), qui
ajoute la dimension, pertinente sur le plan juridique, des droits de la personne à ce qui pourrait
n’être autrement qu’une simple condition biomédicale.
27
Some of the grounds listed in s. 15 are clearly
immutable, such as ethnic origin. A disability may
be, but is not necessarily, immutable, in the sense
of not being subject to change. As this case shows,
disabilities may be acquired in the course of life,
and may grow more severe or less severe as time
goes on. Disabilities are certainly not ‘immutable’
in the secondary sense of “[n]ot varying in different cases” (New Shorter Oxford English Dictionary
(1993), vol. 1, p. 1317). Unlike gender or ethnic
origin, which generally stamp each member of the
class with a singular characteristic, disabilities
vary in type, intensity and duration across the full
range of personal physical or mental characteristics
that, in the context of the CPP, prevent or “disable” an individual from working to earn the
annual CPP contribution. As Sopinka J. pointed
out in Eaton, supra, at para. 69, disability “means
Certains motifs énumérés à l’art. 15 sont nettement immuables, comme l’origine ethnique. Une
déficience peut être, mais n’est pas nécessairement, immuable dans le sens de ne pas être susceptible de changement. Comme le montre la présente
affaire, une déficience peut être acquise au cours
de l’existence d’une personne et s’aggraver ou
s’atténuer avec le temps. Aussi, une déficience
n’est sûrement pas «immuable» du fait qu’elle peut
varier d’un cas à l’autre. Contrairement au sexe ou
à l’origine ethnique, qui marquent généralement
chaque membre de la catégorie visée d’une seule
caractéristique, les déficiences varient en genre, en
intensité et en durée d’un bout à l’autre de toute la
gamme des caractéristiques physiques ou mentales
personnelles qui, dans le contexte du RPC, empêchent une personne de travailler et de verser les
cotisations exigibles chaque année ou la rendent
720
GRANOVSKY
c.
CANADA
Le juge Binnie
721
vastly different things depending upon the individual and the context”.
inapte à le faire. Comme l’a dit le juge Sopinka
dans l’arrêt Eaton, précité, au par. 69, lorsqu’il
s’agit de déficience, «il existe des différences
énormes selon l’individu et le contexte».
A disability, unlike, for example, race or colour,
may entail pertinent functional limitations. These
limitations have historically provided a rationale
(often unfairly) to explain and justify differential
treatment of persons with disabilities. A related
consideration is the variety of functions against
which the limitations of a person with a disability
may be measured. In the context of the CPP, the
yardstick is employability. An individual may suffer severe impairments that do not prevent him or
her from earning a living. Beethoven was deaf
when he composed some of his most enduring
works. Franklin Delano Roosevelt, limited to a
wheelchair as a result of polio, was the only President of the United States to be elected four times.
Terry Fox, who lost a leg to cancer, inspired
Canadians in his effort to complete a coast-to-coast
marathon even as he raised millions of dollars for
cancer research. Professor Stephen Hawking,
struck by amyotrophic lateral sclerosis and unable
to communicate without assistance, has nevertheless worked with well-known brilliance as a theoretical physicist. (Indeed, with perhaps bitter irony,
Professor Hawking is reported to have said that his
disabilities give him more time to think.) The fact
they have steady work does not, of course, mean
that these individuals are necessarily free of discrimination in the workplace. Nor would anyone
suggest that, measured against a yardstick other
than employment (access to medical care for
example), they are not persons with daunting disabilities.
Contrairement à la race ou à la couleur, par
exemple, une déficience peut entraı̂ner des limitations fonctionnelles pertinentes qui, par le passé,
ont permis (souvent injustement) d’expliquer et de
justifier une différence de traitement des personnes
ayant une telle déficience. Un facteur connexe est
le fait qu’il existe une panoplie de fonctions par
rapport auxquelles les limitations d’une personne
peuvent être évaluées. Dans le contexte du RPC, le
critère d’évaluation est l’aptitude au travail. Une
personne peut souffrir de graves affections qui ne
l’empêchent pas de gagner sa vie. Beethoven était
sourd lorsqu’il a composé certaines de ses plus
grandes œuvres. Franklin Delano Roosevelt, confiné à un fauteuil roulant par la polio, a été le seul
président américain à être élu quatre fois. Terry
Fox, qui avait perdu une jambe à cause du cancer,
a inspiré les Canadiens en entreprenant un marathon d’un océan à l’autre et en recueillant des millions de dollars pour la recherche sur le cancer. Le
professeur Stephen Hawking, atteint de sclérose
latérale amyotrophique et incapable de communiquer sans aide, s’est néanmoins brillamment illustré en tant que physicien théoricien. (Il aurait
même dit, peut-être avec une ironie teintée d’amertume, que ses déficiences lui donnaient plus de
temps pour réfléchir.) Il va sans dire que, même si
elles ont un emploi stable, ces personnes ne sont
pas nécessairement à l’abri de toute discrimination
dans leur milieu de travail. Nul ne prétendrait non
plus que ces personnes n’ont pas de déficience
grave, si on les évalue en fonction d’un autre critère que l’emploi (celui de l’accès aux soins de
santé par exemple).
28
The concept of disability must therefore accommodate a multiplicity of impairments, both physical and mental, overlaid on a range of functional
limitations, real or perceived, interwoven with recognition that in many important aspects of life the
so-called “disabled” individual may not be
impaired or limited in any way at all. An appreciation of the common humanity that people with dis-
La notion de déficience doit donc englober une
multitude d’affections tant physiques que mentales, superposées à une gamme de limitations
fonctionnelles, réelles ou perçues, tout en reconnaissant la possibilité que la personne dite «déficiente» ne souffre d’aucune affection ni d’aucune
limite en ce qui a trait à de nombreux aspects
importants de sa vie. La reconnaissance de l’huma-
29
[2000] 1 R.C.S.
30
31
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
abilities share with everyone else, and a belief that
the qualities and aspirations we share are more
important than our differences, are two of the driving forces of s. 15(1) equality rights.
nité que les personnes ayant une déficience ont en
commun avec toutes les autres personnes, et la
croyance que les qualités et les aspirations que
nous partageons importent davantage que nos différences, sont deux forces qui animent les droits à
l’égalité garantis par le par. 15(1).
The bedrock of the appellant’s argument is that
many of the difficulties confronting persons with
disabilities in everyday life do not flow ineluctably
from the individual’s condition at all but are
located in the problematic response of society to
that condition. A proper analysis necessitates
unbundling the impairment from the reaction of
society to the impairment, and a recognition that
much discrimination is socially constructed. See,
e.g., D. Pothier, “Miles to Go: Some Personal
Reflections on the Social Construction of Disability” (1992), 14 Dalhousie L.J. 526. Exclusion and
marginalization are generally not created by the
individual with disabilities but are created by the
economic and social environment and, unfortunately, by the state itself. Problematic responses
include, in the case of government action, legislation which discriminates in its effect against persons with disabilities, and thoughtless administrative oversight. The appellant says that his
treatment by the CPP shows the inequality that can
result when government enacts social programs
with inadequate attention, at the design stage, for
the true circumstances of people with disabilities.
L’argument de l’appelant repose sur le fait
qu’un bon nombre des problèmes auxquels les personnes ayant une déficience font face dans leur vie
quotidienne découlent non pas inévitablement de
leur état, mais plutôt de la réaction problématique
de la société face à cet état. Une analyse appropriée exige de distinguer l’affection dont souffre
une personne de la réaction de la société face à
cette affection, ainsi que de reconnaı̂tre que la discrimination résulte en bonne partie d’une construction sociale. Voir, par exemple, D. Pothier, «Miles
to Go: Some Personal Reflections on the Social
Construction of Disability» (1992), 14 Dalhousie
L.J. 526. Ce n’est généralement pas la personne
ayant une déficience qui est à l’origine de l’exclusion et de la marginalisation, mais plutôt l’environnement socioéconomique et, malheureusement,
l’État lui-même. En matière d’actes gouvernementaux, les réactions problématiques comprennent les
mesures législatives qui ont un effet discriminatoire sur les personnes ayant une déficience, ainsi
que l’inadvertance administrative. L’appelant
affirme que la façon dont le RPC le traite montre
l’inégalité qui peut résulter lorsque le gouvernement établit des programmes sociaux sans tenir
compte adéquatement, à l’étape de leur conception,
de la situation véritable des personnes qui ont une
déficience.
A. The Constitutional Aspect of Disability
A. La dimension constitutionnelle de la déficience
This case presents the first opportunity for the
Court to consider the disability ground of s. 15(1)
since rendering its decision in Law, supra. In that
decision, Iacobucci J., speaking for a unanimous
Court at para. 39, set out what he called “a synthesis” of “various articulations” of the s. 15(1) test. I
propose at the outset to highlight some of the relevant themes from the Court’s earlier Charter treatment of disability, in so far as those themes bear
on the proper resolution of the present appeal, and
then, in light of that earlier jurisprudence, to turn
Dans le présent pourvoi, la Cour a la possibilité
d’examiner pour la première fois depuis l’arrêt
Law, précité, le motif de la déficience énoncé au
par. 15(1). Dans cet arrêt, le juge Iacobucci, s’exprimant au nom de notre Cour à l’unanimité au
par. 39, a fait ce qu’il a appelé «une synthèse» des
«différentes démarches» liées au critère du
par. 15(1). Je compte, au départ, souligner certains
thèmes pertinents qui se dégagent de la jurisprudence dans laquelle notre Cour a examiné la question de la déficience sous l’angle de la Charte,
722
GRANOVSKY
c.
CANADA
Le juge Binnie
723
to the application of the guidelines summarized in
Law commencing at para. 88.
dans la mesure où ces thèmes peuvent être utiles
pour trancher le présent pourvoi, pour ensuite
aborder, à la lumière de cette jurisprudence, l’application des lignes directrices résumées à partir du
par. 88 de l’arrêt Law.
The respondent is somewhat dismissive of the
appellant’s physical impairment, suggesting disbelief that a severe backache could rise to the level of
a constitutional challenge. The respondent argues
that s. 15(1) protection
L’intimé prend quelque peu à la légère l’affection physique de l’appelant, ce qui donne à penser
qu’il ne croit pas que de graves maux de dos peuvent justifier une attaque constitutionnelle. Il fait
valoir que la protection offerte par le par. 15(1)
is for serious disabilities. . . . Human Rights Boards and
Tribunals in Canada have held that absences from work
because of temporary illnesses or injuries are not ordinarily characterized as disabilities. . . .
[TRADUCTION] vise des déficiences graves. [. . .] [L]es
commissions et tribunaux des droits de la personne au
Canada ont décidé que les absences du travail dues à des
blessures ou maladies temporaires ne sont normalement
pas considérées comme des déficiences. . .
This perspective puts too much focus on the
impairment itself and not enough focus on the government’s response to it. I therefore propose to discuss what at this stage appear to be circumstances
that signal the enumerated ground of disability
while underlining the obvious fact that the analysis
will undergo further refinement in future cases as
they arise.
Ce point de vue met trop l’accent sur l’affection
elle-même et pas assez sur la réaction du gouvernement à celle-ci. Je compte donc analyser ce qui,
à ce stade, paraı̂t être des circonstances qui indiquent l’existence du motif énuméré de la déficience, tout en soulignant qu’il est évident que
cette analyse sera perfectionnée dans d’autres
affaires au fur et à mesure qu’elles se présenteront.
The Charter is not a magic wand that can eliminate physical or mental impairments, nor is it
expected to create the illusion of doing so. Nor can
it alleviate or eliminate the functional limitations
truly created by the impairment. What s. 15 of the
Charter can do, and it is a role of immense importance, is address the way in which the state
responds to people with disabilities. Section 15(1)
ensures that governments may not, intentionally or
through a failure of appropriate accommodation,
stigmatize the underlying physical or mental
impairment, or attribute functional limitations to
the individual that the underlying physical or
mental impairment does not entail, or fail to recognize the added burdens which persons with disabilities may encounter in achieving self-fulfilment in
a world relentlessly oriented to the able-bodied.
La Charte n’est pas une baguette magique qui
permet de supprimer toute affection physique ou
mentale, et on ne s’attend pas non plus à ce qu’elle
donne l’illusion de le faire. Elle ne permet pas non
plus d’atténuer ou de supprimer les limitations
fonctionnelles qui découlent véritablement de l’affection. Toutefois, l’art. 15 de la Charte peut jouer
un rôle très important en permettant d’aborder la
manière dont l’État réagit aux gens ayant une déficience. Le paragraphe 15(1) garantit que les gouvernements ne puissent pas, intentionnellement ou
en omettant de prendre les mesures d’accommodement appropriées, stigmatiser l’affection physique
ou mentale sous-jacente ou attribuer à une personne des limitations fonctionnelles que cette
affection physique ou mentale sous-jacente n’entraı̂ne pas, ou encore omettre de reconnaı̂tre les
difficultés supplémentaires que les personnes ayant
une déficience peuvent éprouver à s’épanouir dans
une société implacablement conçue pour répondre
aux besoins des personnes physiquement aptes.
32
33
[2000] 1 R.C.S.
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
34
It is therefore useful to keep distinct the component of disability that may be said to be located in
an individual, namely the aspects of physical or
mental impairment, and functional limitation, and
on the other hand the other component, namely,
the socially constructed handicap that is not
located in the individual at all but in the society in
which the individual is obliged to go about his or
her everyday tasks. This manner of differentiating
among the different aspects of disabilities is elaborated upon in the medical context by the World
Health Organization in the International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the
Consequences of Disease (1980); restated in:
United Nations Decade of Disabled Persons,
1983-1992: World Programme of Action concerning Disabled Persons (1983), at pp. 2-3, and in the
human rights area by Professor J. E. Bickenbach,
Physical Disability and Social Policy (1993), and
Professor M. Minow, “When Difference Has Its
Home; Group Homes for the Mentally Retarded,
Equal Protection and Legal Treatment of Difference” (1987), 22 Harv. C.R.-C.L. L. Rev. 111, at
p. 124. (While the WHO, in the medical context,
uses the word “disability” to refer to functional
limitation (the second aspect), I prefer to use the
expression “functional limitation” to emphasize
that in legal terms it is all three aspects considered
together that constitute the disability.)
Il est donc utile de maintenir une distinction
entre, d’une part, la composante de la déficience
qui, peut-on dire, se retrouve chez la personne ellemême, à savoir les facettes de l’affection physique
ou mentale et de la limitation fonctionnelle, et
d’autre part, l’autre composante qui est celle du
handicap ou désavantage qui résulte d’une construction sociale et qui ne se retrouve nullement
chez la personne elle-même, mais résulte plutôt de
la société dans laquelle cette personne doit effectuer ses tâches quotidiennes. Cette façon de différencier les différentes facettes de la déficience est
approfondie dans le contexte médical par l’Organisation mondiale de la santé dans Classification
internationale des handicaps: déficiences, incapacités et désavantages: Un manuel de classification
des conséquences des maladies (1988) (version
originale anglaise publiée en 1980); repris dans
Décennie des Nations Unies pour les personnes
handicapées, 1983-1992: Programme d’action
mondial concernant les personnes handicapées
(1983), à la p. 3, et dans le domaine des droits de
la personne, par le professeur J. E. Bickenbach
dans Physical Disability and Social Policy (1993),
et la professeure M. Minow dans «When
Difference Has Its Home; Group Homes for the
Mentally Retarded, Equal Protection and Legal
Treatment of Difference» (1987), 22 Harv. C.R.C.L. L. Rev. 111, à la p. 124. (Bien que l’OMS utilise dans le contexte médical, le mot «déficience»
lorsqu’elle parle de l’affection (la première
facette), je préfère utiliser le mot «affection» pour
faire ressortir le fait que, sur le plan juridique, ce
sont les trois facettes qui constituent la déficience.)
35
I have no desire to burden with further nuances
the already complicated world of equality rights,
but I think that appropriate attention to the distinctions suggested by the WHO helps to bring into
sharper focus the disability ground within the
larger s. 15(1) framework set out in Law, supra.
Je n’ai pas l’intention d’ajouter des nuances au
domaine déjà compliqué des droits à l’égalité, mais
j’estime que le fait de prêter suffisamment attention aux distinctions proposées par l’OMS contribue à clarifier le motif de la déficience à l’intérieur
du cadre général du par. 15(1) exposé dans l’arrêt
Law, précité.
36
Not all physical or mental impairments (first
aspect) give rise to functional limitations (second
aspect). This Court recently addressed a number of
related employment complaints under s. 10 of the
Quebec Charter of Human Rights and Freedoms,
including an instance where an employer quite
Les affections physiques ou mentales (la première facette) n’engendrent pas toutes des limitations fonctionnelles (la deuxième facette). Notre
Cour a récemment examiné un certain nombre de
plaintes connexes en matière d’emploi qui avaient
été déposées en vertu de l’art. 10 de la Charte des
724
GRANOVSKY
c.
CANADA
Le juge Binnie
725
erroneously attributed to an applicant for a job
as gardener-horticulturalist functional limitations
which did not in fact arise from her physical condition, though the employer subsequently resiled
from this position: Quebec (Commission des droits
de la personne et des droits de la jeunesse) v.
Montreal (City), [2000] 1 S.C.R. 665, 2000 SCC
27. Where functional limitations do exist, they
may be so minor as to be immaterial. An individual who is slightly colour blind, for example, may
not notice any functional limitations, unless he or
she chooses to undertake employment where an
ability to differentiate colours precisely is important, a home decorator for example, or a commercial airline pilot. In other cases, technology has
eliminated any functional limitation that would
otherwise exist, as in the case of the short-sighted
individual who wears corrective eyeglasses. Does
a person whose physical impairment continues but
whose functional limitations have been eliminated
continue to be a person with disabilities? The
United States Supreme Court takes the view that
such individuals cease to be disabled for the purpose of the Americans with Disabilities Act; see
Sutton v. United Airlines, Inc., 119 S.Ct. 2139
(1999). The same result would not necessarily follow under our jurisprudence, as discussed below.
droits et libertés de la personne du Québec. Il était
question notamment d’une affaire où un employeur
avait eu complètement tort d’attribuer à une candidate à un emploi de jardinière horticultrice des
limitations fonctionnelles que son état physique
n’engendrait pas en fait, quoique l’employeur ait
changé d’idée par la suite: Québec (Commission
des droits de la personne et des droits de la jeunesse) c. Montréal (Ville), [2000] 1 R.C.S. 665,
2000 CSC 27. Lorsque des limitations fonctionnelles existent vraiment, elles peuvent être
mineures au point de n’avoir aucune importance.
Par exemple, il se peut qu’une personne légèrement daltonienne n’éprouve aucune limitation
fonctionnelle dans la mesure où elle ne choisit pas
un emploi pour lequel l’aptitude à distinguer exactement les couleurs est importante, comme celui de
décorateur d’intérieur ou de pilote de ligne commerciale. Dans d’autres cas comme celui des personnes myopes qui portent des verres correcteurs,
la technologie a supprimé toute limitation fonctionnelle qui existerait par ailleurs. Une personne
dont l’affection physique persiste mais dont les
limitations fonctionnelles ont été éliminées continue-t-elle d’être une personne ayant une déficience? La Cour suprême des États-Unis est d’avis
que ces personnes cessent d’avoir une déficience
au sens de l’Americans with Disabilities Act; voir
Sutton c. United Airlines, Inc., 119 S.Ct. 2139
(1999). Notre jurisprudence ne permettrait pas
nécessairement d’arriver au même résultat, comme
nous le verrons plus loin.
Equally, the third aspect (the socially constructed handicap) may wrongly attribute exaggerated or unjustified consequences to whatever functional limitations in fact exist. A government
inclination to write people off because of their
impairment justifies scrutiny even if the impairment has resulted in very real functional limitations. The consequences the government attaches
to such functional limitations may overshoot (or
undershoot) the mark. The officials at the Brant
Board of Education who undertook the difficult
task of evaluating the learning potential of 12year-old Emily Eaton, as described in Eaton,
supra, must have been all too aware that another
individual, similarly wheelchair bound with
De même, la troisième facette (le handicap ou
désavantage résultant d’une construction sociale)
peut attribuer à tort des conséquences exagérées ou
injustifiées à toute limitation fonctionnelle réelle.
Le fait qu’un gouvernement soit enclin à exclure
des personnes en raison de l’affection dont elles
souffrent justifie un examen même dans le cas où
cette affection entraı̂ne une limitation fonctionnelle
bien réelle. Les conséquences que le gouvernement
associe à une telle limitation fonctionnelle peuvent
être exagérées (ou encore sous-estimées). Les
membres du Conseil scolaire du comté de Brant
qui, comme le décrit l’arrêt Eaton, précité, ont
entrepris la tâche difficile d’évaluer la capacité
d’apprentissage d’une enfant de 12 ans, Emily
[2000] 1 R.C.S.
37
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
reduced communication capacity, turned out to be
Professor Stephen Hawking. To say that the state
has an obligation not to exaggerate the functional
limitations caused by serious disabilities is not to
underestimate the difficulty of making the assessment.
Eaton, ne devaient pas ignorer qu’une autre personne, qui utilisait également un fauteuil roulant et
éprouvait des difficultés à communiquer, s’est
révélée être le professeur Stephen Hawking. Affirmer que l’État ne doit pas exagérer les limitations
fonctionnelles découlant d’une déficience grave ne
revient pas à sous-estimer la difficulté de procéder
à l’évaluation.
38
Equally problematically, there are instances
where society passes directly from the first aspect
(physical or mental impairment) to the third aspect
(imposition of a disadvantage or handicap) without
going through the intermediate consideration of
evaluating the true functional limitations, if any.
An individual with a serious facial disfigurement,
for example, or a person who is diagnosed with
leprosy, may not have, and may never have, any
relevant functional limitations, but may nevertheless suffer discrimination on account of the condition.
Il y a le cas tout aussi problématique où la
société passe directement de la première facette
(l’affection physique ou mentale) à la troisième
(l’imposition d’un désavantage ou handicap) sans
prendre le temps d’évaluer la véritable limitation
fonctionnelle, s’il en est. Par exemple, il se peut
qu’une personne gravement défigurée ou atteinte
de la lèpre ne souffre jamais d’une limitation fonctionnelle pertinente, mais qu’elle soit néanmoins
victime de discrimination en raison de son état.
39
In summary, while the notions of impairment
and functional limitation (real or perceived) are
important considerations in the disability analysis,
the primary focus is on the inappropriate legislative or administrative response (or lack thereof) of
the state. Section 15(1) is ultimately concerned
with human rights and discriminatory treatment,
not with biomedical conditions.
En résumé, bien que les notions d’affection et de
limitation fonctionnelle (réelle ou perçue) soient
des facteurs importants dans l’analyse de la déficience, l’accent est mis avant tout sur la réaction
législative ou administrative inadéquate (ou l’absence de réaction) de l’État. Le paragraphe 15(1)
porte en fin de compte sur les droits de la personne
et le traitement discriminatoire, et non pas sur des
conditions biomédicales.
40
The different elements or aspects of the disability analysis are relevant to human rights legislation
as well as to Charter scrutiny. In fact, two recent
employment cases before this Court further illustrate these relationships. In British Columbia
(Superintendent of Motor Vehicles) v. British
Columbia (Council of Human Rights), [1999] 3
S.C.R. 868 (referred to as “Grismer Estate”), the
appellant, whose eyesight was impaired by a
stroke, was assumed by the provincial Superintendent of Motor Vehicles, without individual testing,
to have a sufficient level of functional limitation to
disqualify him from holding a driver’s licence. The
Court held him to be entitled to an individual test
to determine whether the attributed limitation did
in fact exist. On the other hand, in British Columbia (Public Service Employee Relations Commis-
Les différentes composantes ou facettes de
l’analyse de la déficience sont pertinentes tant aux
fins d’un examen fondé sur une loi relative aux
droits de la personne qu’aux fins d’un examen
fondé sur la Charte. En fait, deux pourvois en
matière d’emploi dont notre Cour a été saisie
récemment illustrent davantage ces liens. Dans
l’arrêt Colombie-Britannique (Superintendent of
Motor Vehicles) c. Colombie-Britannique (Council
of Human Rights), [1999] 3 R.C.S. 868 (appelé
l’affaire de la «succession Grismer»), le surintendant des véhicules automobiles avait présumé, sans
procéder à une évaluation individuelle, que l’appelant, dont la vision s’était détériorée à la suite d’un
accident cérébrovasculaire, souffrait d’une limitation fonctionnelle suffisante pour qu’il lui soit
interdit de détenir un permis de conduire. La Cour
726
GRANOVSKY
c.
CANADA
Le juge Binnie
727
sion) v. BCGSEU, [1999] 3 S.C.R. 3, a woman
firefighter named Tawney Meiorin failed a series
of strenuous physical endurance tests, thus exhibiting a physical limitation broadly related to her gender, but succeeded in her complaint by showing
that the standards themselves had never actually
been related to the demands of firefighting. The
standards merely tracked the aerobic performance
of male firefighters. While not a case of disability
as such, the Meiorin case illustrates a situation
where a personal characteristic enumerated in s. 15
(gender) is shown to be related to a more limited
aerobic capacity (functional limitation) but this is
then wrongly converted into a state-imposed job
handicap which was no less objectionable because
it was misconceived rather than intentionally discriminatory. The “problem” did not lie with the
female applicant, but with the state’s substitution
of a male norm in place of what the appellant was
entitled to, namely a fair-minded gender-neutral
job analysis. A parallel view would be urged in
cases where the functional limitation is related to a
disability.
a conclu que l’appelant avait droit à une évaluation
individuelle visant à déterminer si la limitation
qu’on lui prêtait était réelle. Par ailleurs, dans
l’arrêt Colombie-Britannique (Public Service
Employee Relations Commission) c. BCGSEU,
[1999] 3 R.C.S. 3, une pompière s’appelant
Tawney Meiorin, qui avait échoué à une série de
tests intenses d’endurance physique et ainsi
démontré une limitation physique largement liée à
son sexe, a eu gain de cause en démontrant que les
normes applicables n’avaient jamais vraiment été
liées aux exigences de la lutte contre les incendies.
Ces normes ne servaient qu’à évaluer la capacité
aérobique des hommes exerçant la fonction de
pompier. Même s’il ne s’agit pas d’un cas de déficience, l’affaire Meiorin fournit un exemple de
situation où il est démontré qu’une caractéristique
personnelle énumérée à l’art. 15 (le sexe) est associée à une capacité aérobique moindre (limitation
fonctionnelle), et est ensuite transformée erronément par l’État en un handicap relatif à l’emploi.
Cette entrave créée par l’État n’est pas moins
répréhensible du fait qu’elle est mal conçue plutôt
qu’intentionnellement discriminatoire. Ce n’était
pas la candidate qui causait un «problème», mais
l’application par l’État d’une norme masculine au
lieu de ce à quoi l’appelante avait droit, à savoir
une analyse d’emploi équitable qui n’établit
aucune distinction fondée sur le sexe. L’adoption
d’un point de vue analogue est préconisée dans les
affaires où la limitation fonctionnelle est liée à une
déficience.
B. The Guidelines Developed in Law v. Canada
B. Les lignes directrices établies dans l’arrêt Law
c. Canada
In Law, supra, the Court suggested that a s. 15
analysis proceed on the basis of “three broad
inquiries” as follows (at para. 39):
Dans l’arrêt Law, précité, notre Cour a indiqué
que l’analyse fondée sur l’art. 15 reposait sur les
«trois grandes questions» suivantes (au par. 39):
First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one
or more personal characteristics, or (b) fail to take into
account the claimant’s already disadvantaged position
within Canadian society resulting in substantively differential treatment between the claimant and others on
the basis of one or more personal characteristics? If so,
there is differential treatment for the purpose of s. 15(1).
Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and
Premièrement, la loi contestée a) établit-elle une distinction formelle entre le demandeur et d’autres personnes
en raison d’une ou de plusieurs caractéristiques personnelles, ou b) omet-elle de tenir compte de la situation
défavorisée dans laquelle le demandeur se trouve déjà
dans la société canadienne, créant ainsi une différence
de traitement réelle entre celui-ci et d’autres personnes
en raison d’une ou de plusieurs caractéristiques personnelles? Si tel est le cas, il y a différence de traitement
aux fins du par. 15(1). Deuxièmement, le demandeur
[2000] 1 R.C.S.
41
42
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
analogous grounds? And third, does the differential
treatment discriminate in a substantive sense, bringing
into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical
disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by
s. 15(1). [Emphasis in original.]
a-t-il subi un traitement différent en raison d’un ou de
plusieurs des motifs énumérés ou des motifs analogues?
Et, troisièmement, la différence de traitement était-elle
réellement discriminatoire, faisant ainsi intervenir l’objet du par. 15(1) de la Charte pour remédier à des fléaux
comme les préjugés, les stéréotypes et le désavantage
historique? Les deuxième et troisième questions servent
à déterminer si la différence de traitement constitue de
la discrimination réelle au sens du par. 15(1). [Souligné
dans l’original.]
I therefore proceed to make these three broad
inquiries into the disability claim presented by the
appellant.
Je me pose donc ces trois grandes questions
relativement à l’allégation de déficience de l’appelant.
(1) Differential Treatment
(1) La différence de traitement
43
The first step is to determine whether the CPP
disability provision draws a distinction, based on
one or more personal characteristics, between the
appellant and some other person or group to whom
he may properly be compared, resulting in unequal
treatment. The Pension Appeals Board concluded
that the CPP set out objective criteria which
applied equally and without distinction to every
applicant. This is true in the sense that the same set
of criteria was applied to all contributors. Such criteria, however, drew an explicit distinction
between people with permanent disabilities and all
other contributors, and subjected the groups to different treatment. Moreover, the effects were very
different depending on the status of a person’s disabilities during the contribution period. As Stone
J.A. pointed out in the Federal Court of Appeal,
“[w]hat the recency of contributions requirement
fails to take into account is that disabled persons
may not be able to make contributions for the minimum qualifying period in subsection 44(1),
because they are physically unable to work” (para.
11). The CPP contribution requirements, which on
their face applied the same set of rules to all contributors, operated unequally in their effect on persons who want to work but whose disabilities prevent them from working.
La première étape consiste à déterminer si la
disposition du RPC relative à la déficience crée
une inégalité de traitement en établissant une distinction, fondée sur une ou plusieurs caractéristiques personnelles, entre l’appelant et une autre
personne ou un autre groupe à qui on peut le comparer à juste titre. La Commission d’appel des pensions a conclu que le RPC établissait des critères
objectifs qui s’appliquaient uniformément et sans
distinction à chaque requérant. Cela est vrai en ce
sens que les mêmes critères étaient appliqués à
tous les cotisants. Toutefois, ces critères établissaient expressément une distinction entre les gens
ayant une déficience permanente et les autres cotisants, et traitaient ces groupes différemment. De
plus, leurs effets variaient énormément selon le
degré de déficience des personnes au cours de la
période cotisable. Comme le juge Stone de la Cour
d’appel fédérale l’a fait remarquer, «[l]a condition
relative à la récence des cotisations ne tient pas
compte du fait que les personnes invalides ne sont
peut-être pas en mesure de verser des cotisations
pendant la période minimale d’admissibilité prévue au paragraphe 44(1), parce qu’en fait elles sont
physiquement incapables de travailler» (par. 11).
Les exigences en matière de cotisation du RPC,
qui, à première vue, appliquaient les mêmes règles
à tous les cotisants, avaient un effet différent sur
les personnes qui veulent travailler mais qui ne
peuvent pas le faire en raison d’une déficience.
44
Parliament has recognized this problem in two
ways: in part by dropping out the years of perma-
Le législateur a reconnu l’existence de ce problème de deux manières: d’une part, en excluant
728
GRANOVSKY
c.
nent disability in its assessment of an applicant’s
contribution history, and in part by relaxing the
contribution requirement to five years out of 10 (or
two years out of three), thus recognizing that an
individual may not have an uninterrupted contribution record for reasons outside their control,
including temporary disability. The appellant
argues that the 5/10 year or the 2/3 year rules are
irrelevant because they apply to everybody,
whereas his particular reason for non-contribution
is the object of Charter protection. He says that
because of his severe back problems he too, just as
much as the permanently disabled, could not maintain the contribution level expected from ablebodied workers. In short, the CPP both in its
design and in its effect creates a distinction, based
on disability, between the appellant and more ablebodied members of the work force. Moreover, the
CPP draws a further distinction between people
like the appellant who were temporarily disabled
from participating in the work force during the
contribution period and persons with permanent
disabilities who were excluded from the work
force altogether during all or a part of that period
of time.
(a) The Comparative Approach
CANADA
Le juge Binnie
729
de son évaluation de l’historique des cotisations
d’un requérant les années pendant lesquelles il
avait eu une déficience permanente, et d’autre part,
en réduisant l’exigence de cotisation à cinq ans sur
dix (ou à deux ans sur trois) et en reconnaissant
ainsi qu’il se peut qu’une personne n’ait pas cotisé
de façon ininterrompue pour des raisons indépendantes de sa volonté, dont la déficience temporaire.
L’appelant prétend que les règles du cinq ans sur
dix et du deux ans sur trois ne sont pas pertinentes
car elles s’appliquent à tous, tandis que la raison de
sa propre omission de verser des cotisations fait
l’objet d’une protection offerte par la Charte. Il dit
qu’à l’instar des personnes ayant une déficience
permanente, il n’avait pas pu, en raison de ses
graves maux de dos, maintenir le niveau de cotisations prévu pour les travailleurs physiquement
aptes. Bref, tant sur le plan de sa conception que
sur celui de son effet, le RPC établit une distinction fondée sur une déficience entre l’appelant et
les personnes plus physiquement aptes qui sont sur
le marché du travail. De plus, le RPC établit une
autre distinction entre les gens qui, comme l’appelant, ont été tenus à l’écart du marché du travail
pendant la période cotisable par une déficience
temporaire, et les gens qui ont été tenus complètement à l’écart du marché du travail pendant une
partie ou l’ensemble de cette période par une déficience permanente.
[2000] 1 R.C.S.
a) La méthode comparative
The identification of the group in relation to
which the appellant can properly claim “unequal
treatment” is crucial. The Court established at the
outset of its equality jurisprudence in Andrews,
supra, that claims of distinction and discrimination
could only be evaluated “by comparison with the
conditions of others in the social and political setting in which the question arises” (p. 164). See
also Law, supra, at para. 24:
L’identification du groupe auquel l’appelant
peut se comparer pour alléguer qu’il y a eu «inégalité de traitement» est cruciale. Dès l’arrêt
Andrews, précité, qui est le premier qu’elle a rendu
en matière d’égalité, la Cour a statué que les allégations de distinction et de discrimination ne pouvaient être évaluées que «par comparaison avec la
situation des autres dans le contexte sociopolitique où la question est soulevée» (p. 164).
Voir également l’arrêt Law, précité, au par. 24:
This comparison determines whether the s. 15(1) claimant may be said to experience differential treatment,
which is the first step in determining whether there is
discriminatory inequality for the purpose of s. 15(1).
Cette comparaison permet de déterminer si la personne
qui invoque le par. 15(1) subit une différence de traitement, ce qui constitue la première étape de la détermination de la présence d’inégalité discriminatoire aux fins
de ce paragraphe.
45
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
46
The appellant contends that he ought to be compared to an ordinary member of the work force
who was able-bodied during the contribution
period because the appellant was being required to
satisfy the level of contribution expected of an
ordinary member of the work force with insufficient regard for periods of temporary disability.
However, while a s. 15 complainant is given considerable scope to identify the appropriate group
for comparison, “the claimant’s characterization of
the comparison may not always be sufficient. It
may be that the differential treatment is not
between the groups identified by the claimant, but
rather between other groups” (Law, supra, at para.
58).
L’appelant prétend que sa situation devrait être
comparée à celle d’un travailleur ordinaire qui était
physiquement apte pendant la période cotisable, du
fait qu’il était tenu de verser les mêmes cotisations
sans qu’il ne soit suffisamment tenu compte des
périodes de déficience temporaire. Toutefois, bien
que l’auteur d’une plainte fondée sur l’art. 15
jouisse d’une latitude considérable pour identifier
le groupe de comparaison approprié, «il se peut
que la qualification de la comparaison par le
demandeur ne soit pas suffisante. La différence de
traitement peut ne pas s’effectuer entre les groupes
cernés par le demandeur, mais plutôt entre d’autres
groupes» (Law, précité, au par. 58).
47
Such identification has to bear an appropriate
relationship between the group selected for comparison and the benefit that constitutes the subject
matter of the complaint. As was pointed out in
Law, supra, at para. 57:
Une telle identification requiert un lien adéquat
entre le groupe de comparaison choisi et l’avantage qui constitue l’objet de la plainte. Comme il a
été souligné dans l’arrêt Law, précité, au par. 57:
Both the purpose and the effect of the legislation must
be considered in determining the appropriate comparison group or groups.
Il faut examiner à la fois l’objet et l’effet des dispositions pour faire ressortir le groupe ou les groupes de
comparaison appropriés.
48
The purpose of the drop-out provision is to facilitate access of people with permanent disabilities
to a CPP disability pension. It does so by employing the same criteria (“severe” and “prolonged”) as
the criteria used for the disability pension itself. I
do not suggest that faithful correspondence
between the benefit in issue and the purpose of the
larger plan necessarily avoids the claim of discrimination, because the discrimination may lie in the
purpose or effects of the larger plan, as discussed
by McLachlin J., as she then was, in Battlefords
and District Co-operative Ltd. v. Gibbs, [1996] 3
S.C.R. 566, at para. 46 et seq. Here, however, the
appellant does not take the position that the disability pension itself is discriminatory within the
meaning of s. 15.
La disposition d’exclusion a pour objet de faciliter l’accès de personnes ayant une déficience permanente à une pension d’invalidité du RPC. Elle le
fait au moyen des mêmes critères («grave» et «prolongée») que ceux qui sont utilisés pour la pension
d’invalidité elle-même. Je ne laisse pas entendre
que la correspondance exacte entre l’avantage en
cause et l’objet du régime général permet nécessairement d’éviter l’allégation de discrimination, vu
que la discrimination peut résider dans l’objet ou
les effets du régime général, comme l’a fait remarquer le juge McLachlin (maintenant Juge en chef),
dans l’arrêt Battlefords and District Co-operative
Ltd. c. Gibbs, [1996] 3 R.C.S. 566, aux par. 46 et
suiv. En l’espèce, toutefois, l’appelant ne prétend
pas que la pension d’invalidité est elle-même discriminatoire au sens de l’art. 15.
49
An able-bodied worker who makes more or less
regular CPP contributions then suffers a permanent
disability will be a paid-up CPP contributor within
the 5/10 year or 2/3 year rule and thus will have no
need (by reason of the disability) to resort to the
Un travailleur physiquement apte qui cotise plus
ou moins régulièrement au RPC et qui est atteint
par la suite d’une déficience permanente sera considéré comme quelqu’un qui a versé toutes ses
cotisations en vertu de la règle du cinq ans sur dix
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drop-out provision. He or she neither comes within
the purpose of the drop-out provision, nor is disadvantaged by its effects.
ou du deux ans sur trois, et n’aura donc pas besoin
(en raison de sa déficience) de recourir à la disposition d’exclusion. Il n’est pas visé par la disposition d’exclusion et n’est pas non plus défavorisé
par les effets de cette disposition.
The people who do benefit from the drop-out
provision are those who not only demonstrate a
permanent disability at the date of application, but
also who possessed the permanent disability during the contribution period, or so much of it as
they seek to drop out of the CPP calculation. Thus
the permanently disabled are the people whose
drop-out benefit the appellant seeks to share, and
who in my view constitute the proper comparator
group.
Les gens qui bénéficient de la disposition d’exclusion sont non seulement ceux qui démontrent
l’existence d’une déficience permanente à la date
de la demande, mais encore ceux qui avaient une
déficience permanente pendant la période cotisable, ou pendant la partie de cette période qu’ils
demandent d’exclure du calcul du RPC. Les gens
qui ont une déficience permanente sont donc ceux
qui bénéficient de la disposition d’exclusion dont
l’appelant veut se prévaloir et qui, à mon avis,
constituent le groupe de comparaison approprié.
50
The intervener, the Council of Canadians with
Disabilities says that because in 1993 the appellant
was suffering a severe and permanent disability,
the better Charter argument is that Parliament
improperly drew a line at the date of the application within the same group of people all of whom
at that time suffered the same level of disadvantage. The drop-out provision, however, relates to
the health status in each of the 10 years prior to the
1993 application, which was the relevant contribution period, at which time the appellant enjoyed a
health advantage.
L’intervenant, le Conseil des Canadiens avec
déficiences, dit qu’étant donné que l’appelant avait
une déficience grave et permanente en 1993, le
meilleur argument fondé sur la Charte est que le
législateur a eu tort de tracer une ligne à la date de
la demande au sein du groupe de personnes qui
subissaient le même désavantage à cette époque.
Or, la disposition d’exclusion concerne l’état de
santé au cours de chacune des 10 années qui ont
précédé la demande faite en 1993 et qui correspondent à la période cotisable pendant laquelle l’appelant jouissait d’un avantage sur le plan de la santé.
51
I therefore conclude that the appellant has established a denial of equal benefit of the law under the
first step of the equality analysis. He was denied a
disability pension because he could not bring himself within the drop-out provision made available
to applicants who suffered from severe and permanent disabilities during the contribution years in
question. The CPP failed to recognize the barrier
posed by his temporary disability. His objection,
basically, is that the drop-out provision is underinclusive. However, the relevant group with which
he can claim “unequal treatment” is the body of
CPP contributors who suffered a severe and permanent disability in the years of their respective
contribution histories and who therefore did benefit from the drop-out provision to which the
Je conclus donc que l’appelant a démontré
qu’on lui a refusé le même bénéfice de la loi, dans
le cadre de la première étape de l’analyse de l’égalité. On lui a refusé une pension d’invalidité parce
qu’il ne pouvait pas relever de la disposition d’exclusion dont pouvaient se prévaloir les requérants
qui avaient une déficience grave et permanente
pendant les années cotisables en cause. Le RPC
n’a pas reconnu l’obstacle que constituait la déficience temporaire de l’appelant. L’appelant prétend essentiellement que la disposition d’exclusion
a une portée trop restreinte. Cependant, le groupe
pertinent auquel il peut se comparer pour alléguer
qu’il y a eu «inégalité de traitement» est celui des
cotisants au RPC qui avaient une déficience grave
et permanente au cours des années comprises dans
leurs historiques des cotisations respectifs et qui
ont donc bénéficié de la disposition d’exclusion
52
[2000] 1 R.C.S.
53
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CANADA
Binnie J.
[2000] 1 S.C.R.
appellant claims entitlement on the basis of his
equality rights.
dont l’appelant prétend pouvoir se prévaloir en raison de ses droits à l’égalité.
(2) Is the Impugned Distinction Based on an
Enumerated or Analogous Ground?
(2) La distinction contestée est-elle fondée sur
un motif énuméré ou analogue?
The drop-out provision makes a legislative distinction entirely on the basis of the existence and
duration of the disability that rendered the applicant unemployed. Classification on the basis of
disability is subject to scrutiny, and the appellant
thus satisfies the “second broad inquiry” identified
in Law, supra. I should add that even though temporary disability is not, by definition, immutable
in the sense of unchangeable, it is clearly a characteristic that is unchangeable for its duration, and
entirely outside the control of the individual thus
burdened.
La disposition d’exclusion établit une distinction
fondée entièrement sur l’existence et la durée de la
déficience qui a empêché le requérant de travailler.
La classification fondée sur la déficience est susceptible d’examen, de sorte que l’appelant satisfait
au critère de la «deuxième grande question» décrit
dans l’arrêt Law, précité. Je dois ajouter que même
si, par définition, la déficience temporaire n’est
pas immuable au sens de ne pas pouvoir changer,
elle constitue manifestement une caractéristique
dont la durée ne peut pas être changée et qui est
totalement indépendante de la volonté de la personne qui en souffre.
(3) Does the Financial Disadvantage Suffered
by the Appellant Under Section 44(2)(b)(iii)
of the CPP Amount to Discrimination Under
Section 15 of the Charter?
(3) Le désavantage financier subi par l’appelant
en raison de l’application du sous-alinéa
44(2)b)(iii) du RPC constitue-t-il de la discrimination au sens de l’article 15 de la
Charte?
Classification on the basis of disability is not
necessarily disadvantageous. Here, for those who
qualify, it results in a CPP disability pension. The
appellant’s application was refused but this denial,
even on grounds related to disability, is not enough
to produce a s. 15(1) infringement. The appellant
must also show that the failure of the CPP to take
into account that his contribution history was at
least in part the product of his temporary disability
engages the purpose of s. 15(1) of the Charter. The
appellant must go beyond a “formalistic or
mechanical approach” (Law, supra, para. 88), and
address the ultimate issue which, citing Law at
para. 99, may be formulated as follows:
La classification fondée sur la déficience n’est
pas nécessairement désavantageuse. En l’espèce,
ceux qui y sont admissibles ont droit à une pension
d’invalidité du RPC. La demande de l’appelant a
été refusée, mais, même s’il repose sur des motifs
liés à la déficience, ce refus n’est pas suffisant
pour qu’il y ait violation du par. 15(1). L’appelant
doit également démontrer que l’omission du RPC
de tenir compte du fait que son historique de cotisations s’expliquait, du moins en partie, par sa
déficience temporaire met en cause l’objet du
par. 15(1) de la Charte. L’appelant doit aller audelà d’une «démarche formaliste ou automatique»
(Law, précité, au par. 88), et aborder la question
fondamentale qui, pour citer l’arrêt Law, au
par. 99, peut être formulée comme suit:
Does the law, in purpose or effect, conform to a society
in which all persons enjoy equal recognition as human
beings or as members of Canadian society, equally
capable and equally deserving of concern, respect, and
consideration? Does the law, in purpose or effect, perpetuate the view that [persons with temporary disabilities] are less capable or less worthy of recognition or
L’objet et l’effet de la loi sont-ils compatibles avec une
société dans laquelle tous sont également reconnus en
tant qu’être humains ou que membres de la société canadienne, tous aussi capables, et méritant le même intérêt,
le même respect et la même considération? L’objet et
l’effet de la loi perpétuent-ils l’opinion que [les gens qui
ont une déficience temporaire] sont moins capables, ou
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733
value as human beings or as members of Canadian
society?
moins dignes d’être reconnus ou valorisés en tant
qu’êtres humains ou que membres de la société
canadienne?
In this connection, the appellant particularly
invokes the “ameliorative purpose” of s. 15, calling in aid the need for accommodation emphasized
in Eaton, supra, at para. 67:
À cet égard, l’appelant invoque notamment
l’«objet d’amélioration» de l’art. 15, tout en s’appuyant sur le besoin d’accommodement souligné
dans l’arrêt Eaton, précité, au par. 67:
. . . it is the failure to make reasonable accommodation,
to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of
disabled persons from participation, which results in
discrimination against them. . . . It is recognition of the
actual characteristics, and reasonable accommodation of
these characteristics which is the central purpose of
s. 15(1) in relation to disability.
C’est [. . .] l’omission de fournir des moyens raisonnables et d’apporter à la société les modifications qui
feront en sorte que ses structures et les actions prises
n’entraı̂nent pas la relégation et la non-participation des
personnes handicapées qui engendre une discrimination
à leur égard. [. . .] C’est la reconnaissance des caractéristiques réelles, et l’adaptation raisonnable à celles-ci,
qui constitue l’objectif principal du par. 15(1) en ce qui
a trait à la déficience.
The concept of “human dignity” has been present in s. 15 since the beginning, as is chronicled
by Iacobucci J. in Law, supra, at paras. 40 to 65.
Indeed it was emphasized by the then Prime Minister Trudeau in his advocacy of an entrenched
Charter, when he wrote:
La notion de «dignité humaine» sous-tend
l’art. 15 depuis le début, comme l’a relaté le juge
Iacobucci dans l’arrêt Law, précité, aux par. 40 à
65. En fait, l’ancien premier ministre Trudeau a
insisté sur ce point dans son plaidoyer en faveur de
l’adoption d’une charte constitutionnelle:
The very adoption of a constitutional charter is in keeping with the purest liberalism, according to which all
members of a civil society enjoy certain fundamental,
inalienable rights and cannot be deprived of them by
any collectivity (state or government) or on behalf of
any collectivity (nation, ethnic group, religious group,
or other). To use Maritain’s phrase, they are “human
personalities,” they are beings of a moral order — that
is, free and equal among themselves, each having absolute dignity and infinite value. As such, they transcend
the accidents of place and time, and partake in the
essence of universal Humanity. They are therefore not
coercible by any ancestral tradition, being vassals
neither of their race, nor to their religion, nor to their
condition of birth, nor to their collective history. [Italics
in original; underlining added.]
L’adoption même d’une charte constitutionnelle
s’inscrit dans la ligne la plus pure de l’humanisme libéral: tous les membres de la société civile jouissent de
certains droits fondamentaux inaliénables, et ils ne peuvent en être privés par aucune collectivité (État, Gouvernement) ni au nom d’aucune collectivité (nation, ethnie,
religion ou autre). Ce sont des «humaines personnalités»
(Maritain), des êtres qui relèvent de l’ordre moral, c’està-dire libres et égaux entre eux, chacun ayant une
dignité absolue et une valeur infinie. En tant que tels ils
transcendent les accidents de lieu et de temps et rejoignent en quelque sorte l’humanité universelle. Ils ne
sont donc contraignables par aucune tradition ancestrale,
n’étant esclaves ni de leur race, ni de leur religion, ni de
leur condition de naissance, ni de leur histoire collective. [En italique dans l’original; je souligne.]
(Ron Graham, ed., The Essential Trudeau (1998),
at p. 80.)
(P. E. Trudeau avec la collaboration de Ron
Graham, Trudeau: l’essentiel de sa pensée politique (1998), à la p. 90.)
I underline the words “free and equal among
themselves, each having absolute dignity and infinite value”. While the Court has made it clear that
it is not bound by the various interpretations of
Charter provisions offered by individuals
Je souligne les mots «libres et égaux entre eux,
chacun ayant une dignité absolue et une valeur
infinie». Bien que notre Cour ait indiqué clairement qu’elle n’est pas liée par les différentes interprétations de la Charte que des gens, «si distingués
55
56
57
[2000] 1 R.C.S.
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Binnie J.
[2000] 1 S.C.R.
“however distinguished” in the drafting process
(see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R.
486, at p. 508), nevertheless it is worth noting that
with the decision in Law, supra, which
endeavoured to unify the strands of almost 15
years of judicial interpretation, the concept of
human dignity has been confirmed to have the centrality in the interpretation of s. 15 that the framers
intended. Iacobucci J. stated in Law, supra, at para.
51 that
soient-ils», ont proposées au cours du processus de
rédaction (voir Renvoi: B.C. Motor Vehicle Act,
[1985] 2 R.C.S. 486, à la p. 508), il est néanmoins
utile de souligner qu’avec l’arrêt Law, précité,
dans lequel on s’est efforcé d’unifier les résultats
de près de 15 années d’interprétation judiciaire, le
caractère central que les rédacteurs voulaient que
la notion de dignité humaine ait en matière d’interprétation de l’art. 15 a été confirmé. Dans l’arrêt
Law, précité, au par. 51, le juge Iacobucci a
affirmé que
differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not
violate the human dignity or freedom of a person or
group in this way . . . .
une différence de traitement ne constituera vraisemblablement pas de la discrimination au sens du par. 15(1) si
elle ne viole pas la dignité humaine ou la liberté d’une
personne ou d’un groupe de cette façon . . .
and stated again, at para. 42 where he cited with
approval the test advanced by McIntyre J. in
Andrews, supra, at p. 171, that:
de même qu’au par. 42, où il a cité avec approbation le critère proposé par le juge McIntyre dans
Andrews, précité, à la p. 171, selon lequel:
The promotion of equality entails the promotion of a
society in which all are secure in the knowledge that
they are recognized at law as human beings, equally
deserving of concern, respect and consideration.
Favoriser l’égalité emporte favoriser l’existence d’une
société où tous ont la certitude que la loi les reconnaı̂t
comme des êtres humains qui méritent le même respect,
la même déférence et la même considération.
L’Heureux-Dubé J. restated the test in Egan v.
Canada, [1995] 2 S.C.R. 513, at para. 39, as follows:
Le juge L’Heureux-Dubé a reformulé ce critère de
la façon suivante, dans Egan c. Canada, [1995] 2
R.C.S. 513, au par. 39:
A person or group of persons has been discriminated
against within the meaning of s. 15 of the Charter when
members of that group have been made to feel, by virtue
of the impugned legislative distinction, that they are less
capable, or less worthy of recognition or value as
human beings or as members of Canadian society,
equally deserving of concern, respect, and consideration.
Une personne ou un groupe de personnes est victime de
discrimination au sens de l’art. 15 de la Charte si, du
fait de la distinction législative contestée, les membres
de ce groupe ont l’impression d’être moins capables ou
de moins mériter d’être reconnus ou valorisés en tant
qu’êtres humains ou en tant que membres de la société
canadienne qui méritent le même intérêt, le même respect et la même considération.
The question therefore is not just whether the
appellant has suffered the deprivation of a financial benefit, which he has, but whether the deprivation promotes the view that persons with temporary disabilities are “less capable, or less worthy of
recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration” (emphasis
added). In Miron v. Trudel, [1995] 2 S.C.R. 418,
McLachlin J. noted, at para. 132, that “distinctions
made on enumerated or analogous grounds may
La question n’est donc pas seulement de savoir
si l’appelant a été privé d’un avantage financier, ce
qui est le cas, mais plutôt de savoir si cette privation favorise l’opinion que les individus souffrant
d’une déficience temporaire sont «moins capables
ou [. . .] moins [dignes] d’être reconnus ou valorisés en tant qu’êtres humains ou en tant que
membres de la société canadienne qui méritent le
même intérêt, le même respect et la même considération» (je souligne). Dans l’arrêt Miron c. Trudel,
[1995] 2 R.C.S. 418, le juge McLachlin a souligné,
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CANADA
Le juge Binnie
735
au par. 132, que «des distinctions fondées sur des
motifs énumérés ou des motifs analogues peuvent,
à l’examen, se révéler non discriminatoires».
(a) The Contextual Factors
a) Les facteurs contextuels
(i) Pre-existing Disadvantage
(i) Le désavantage préexistant
In Law, supra, Iacobucci J. emphasized the
importance of approaching the third stage of the
s. 15 analysis by considering a range of contextual
factors. (Although Law also dealt with the CPP,
the benefit at issue in that case was a widow’s survivor pension, which raises a quite different context than the disability pension provisions at issue
here.) Context is important. As Marshall J. said,
dissenting in part, in Cleburne v. Cleburne Living
Centre, Inc., 473 U.S. 432 (1985), at pp. 468-69,
“[a] sign that says ‘men only’ looks very different
on a bathroom door than a courthouse door”.
Dans l’arrêt Law, précité, le juge Iacobucci a
souligné l’importance d’aborder la troisième étape
de l’analyse fondée sur l’art. 15 en examinant une
gamme de facteurs contextuels. (Même si l’arrêt
Law portait également sur le RPC, l’avantage en
cause dans cette affaire était une pension de conjoint survivant et le contexte y était fort différent
de celui qui entoure les dispositions relatives à la
pension d’invalidité qui sont en cause en l’espèce.)
Le contexte est important. Comme le juge
Marshall, dissident en partie, l’a dit dans Cleburne
c. Cleburne Living Centre, Inc., 473 U.S. 432
(1985), aux pp. 468 et 469, [TRADUCTION] «[l]’effet d’une affiche indiquant “Hommes seulement”
diffère considérablement selon qu’elle se trouve
sur la porte d’une salle de toilettes ou sur celle
d’un palais de justice».
59
Relevant contextual factors include any preexisting disadvantage, stereotyping or vulnerability of the claimant. These factors, though not determinative, do not favour the appellant. While no
one who has suffered back pain would be dismissive of the appellant’s condition, most of the population can probably be qualified as having experienced some form of “temporary” disability in the
course of their work at one time or other. The
ranks of the temporarily disabled may have little in
common except some degree of impairment or
physical limitation of shorter or longer duration,
and unless more precisely circumscribed, the
group is really not comparable to others that have
attracted s. 15 protection. Nor does the appellant
complain about stereotyping. His objection is that
while the CPP may be based on a true assessment
of the “individual’s merits and capacities”
(Andrews, supra, at p. 175), the provision is “too
stinting” to pass muster under the Charter.
Les facteurs contextuels pertinents comprennent
tout désavantage préexistant et toute vulnérabilité
du demandeur, ainsi que tout stéréotype dont il
peut être victime. Bien qu’ils ne soient pas déterminants, ces facteurs ne favorisent pas l’appelant.
Même si aucune personne ayant souffert de maux
de dos ne prendrait à la légère l’état de l’appelant,
la plupart des gens peuvent probablement être considérés comme ayant déjà souffert d’une certaine
forme de déficience «temporaire» dans l’exercice
de leurs fonctions. Il se peut que les personnes
ayant une déficience temporaire aient peu de choses en commun, si ce n’est certaines affections ou
limitations fonctionnelles d’une durée plus ou
moins longue et, à moins que ce groupe ne soit
mieux circonscrit, il ne peut pas vraiment être
comparé aux autres groupes qui bénéficient de la
protection de l’art. 15. L’appelant ne se plaint pas
non plus d’être victime de stéréotypes. Il prétend
que, même si le RPC est fondé sur une évaluation
véritable des «mérites et capacités d’un individu»
(Andrews, précité, à la p. 175), la disposition en
cause est [TRADUCTION] «trop restrictive» pour
résister à l’examen fondé sur la Charte.
60
[2000] 1 R.C.S.
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Binnie J.
[2000] 1 S.C.R.
(ii) Relationship Between Grounds and the
Claimant’s Characteristics or Circumstances
(ii) Les rapports entre les motifs de discrimination et les caractéristiques ou la situation
personnelle du demandeur
A second contextual issue is the relationship
between the ground (i.e., disability) and the nature
of the differential treatment. Iacobucci J., in Law,
supra, at para. 69, refers to Eaton, supra, and
Eldridge, supra, as establishing that “avoidance of
discrimination will frequently require that distinctions be made to take into account the actual personal characteristics of disabled persons”. The
mere fact that the legislation does not completely
ignore the circumstances of the claimant is not a
complete answer to the claim, as pointed out in
Law, at para. 70:
La deuxième question contextuelle est le rapport
entre le motif de discrimination (c’est-à-dire, la
déficience) et la nature de la différence de traitement. Dans l’arrêt Law, précité, au par. 69, le juge
Iacobucci mentionne que les arrêts Eaton et
Eldridge, précités, établissent que «pour éviter la
discrimination fondée sur ce motif, il faudra souvent établir des distinctions en fonction des caractéristiques personnelles de chaque personne handicapée». Le simple fait que la mesure législative en
cause ne fait pas totalement abstraction de la situation personnelle du demandeur ne répond pas
entièrement à l’allégation, comme il a été souligné
dans l’arrêt Law, au par. 70:
This is not to say that the mere fact of impugned legislation’s having to some degree taken into account the
actual situation of persons like the claimant will be sufficient to defeat a s. 15(1) claim. The focus must always
remain upon the central question of whether, viewed
from the perspective of the claimant, the differential
treatment imposed by the legislation has the effect of
violating human dignity. The fact that the impugned legislation may achieve a valid social purpose for one
group of individuals cannot function to deny an equality
claim where the effects of the legislation upon another
person or group conflict with the purpose of the s. 15(1)
guarantee.
Cela ne veut pas dire que le simple fait que la mesure
législative contestée prend en compte dans une certaine
mesure la situation véritable de personnes telles que le
demandeur sera suffisant pour faire échouer une
demande présentée en vertu du par. 15(1). L’accent doit
toujours être mis sur la question centrale de savoir si,
dans la perspective du demandeur, la différence de traitement imposée par la mesure a pour effet de violer la
dignité humaine. Le fait que la mesure contestée est susceptible de contribuer à la réalisation d’un but social
valide pour un groupe de personnes ne peut pas être utilisé pour rejeter une demande fondée sur le droit à l’égalité lorsque les effets de la mesure sur une autre personne ou un autre groupe entrent en conflit avec l’objet
de la garantie prévue au par. 15(1).
Here the CPP is preoccupied with the plight of the
CPP contributors who suffer a “severe and prolonged mental or physical disability”. The drop-out
provision is framed to be consistent with the entitlement to the disability pension itself and focuses
on the “actual personal characteristics of disabled
persons” (Law, supra, at para. 69). Both the pension entitlement and the drop-out provision target a
specific group of CPP contributors whose needs
and circumstances correspond precisely to the purpose of the legislation. There is no such exact fit
(or correspondence) between the drop-out provision and the appellant who experienced only bouts
of temporary disability from time to time during
the contribution period.
En l’espèce, le RPC se préoccupe de la situation
des cotisants au RPC qui sont atteints d’une «invalidité physique ou mentale grave et prolongée». La
disposition d’exclusion est conçue de manière à
respecter le droit à la pension d’invalidité ellemême et met l’accent sur les «caractéristiques personnelles de chaque personne handicapée» (Law,
précité, au par. 69). Le droit à la pension et la disposition d’exclusion visent tous les deux un groupe
particulier de cotisants au RPC dont les besoins et
la situation correspondent exactement à l’objet de
la mesure législative. Cette concordance (ou correspondance) exacte n’existe pas entre la disposition d’exclusion et l’appelant qui n’a connu que
des périodes de déficience temporaire sporadiques
pendant la période cotisable.
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737
La concordance de la disposition d’exclusion
avec l’objet de la pension d’invalidité du RPC distingue la présente affaire de la situation qui existait
dans Vriend c. Alberta, [1998] 1 R.C.S. 493. Dans
ce dernier cas, la réalisation de l’objet d’amélioration de l’Individual’s Rights Protection Act n’était
pas favorisée par l’exclusion de l’orientation
sexuelle. En fait, l’exclusion allait à l’encontre de
certaines facettes de l’objet explicite d’un code
complet des droits de la personne visant à promouvoir une société «où [. . .] chacun, homme ou
femme, pourra affirmer son autonomie et être
reconnu en tant qu’individu et non en tant que
membre d’une catégorie particulière» (le juge
Cory, au par. 2, citant le Hansard de l’Alberta). En
l’espèce, il n’y a pas de telle contradiction entre la
disposition contestée et l’objet louable de la loi en
cause.
62
In the relevant years prior to 1993, the appellant
was not permanently disabled, and the CPP
targeted the drop-out provision at those who were,
i.e., whose greater need at the time corresponded
to the purpose of creating the statutory benefit in
the first place. Moreover, the CPP took into
account the “actual personal characteristics” of
temporary non-contributors, including the temporarily disabled, by permitting a sporadic contribution history under the 5/10 years or 2/3 years rule.
The fact this accommodation applied to individuals
who failed to make their CPP contributions for reasons (e.g., plant closures) totally unrelated to the
Charter, as well as to people like the appellant
with Charter arguments, does not diminish the fact
that an accommodation was made.
Au cours des années pertinentes ayant précédé
1993, l’appelant n’avait pas de déficience permanente et le RPC limitait l’application de la disposition d’exclusion à ceux qui avaient une déficience
permanente, c’est-à-dire à ceux dont les besoins
plus grands à l’époque concordaient avec l’objet
même de la création de l’avantage prévu par la
Loi. De plus, le RPC tenait compte des «caractéristiques personnelles» des non-cotisants temporaires,
y compris des personnes qui avaient une déficience
temporaire, en permettant un historique de cotisations sporadiques selon les règles du cinq ans sur
dix et du deux ans sur trois. Le fait que cet accommodement s’appliquait aux personnes qui
n’avaient pas cotisé au RPC pour des raisons qui
n’avaient absolument rien à voir avec la Charte
(par exemple, la fermeture d’une usine), de même
qu’aux gens qui, comme l’appelant, disposaient
d’arguments fondés sur la Charte, n’enlève rien au
fait qu’un accommodement était consenti.
63
The appellant’s argument depends upon the correctness of his choice of able-bodied workers as
the comparator group. He says, “The appellant
Granovsky wishes to make it clear that his submission is that he is relying on a comparison between
temporary disabled persons and able-bodied persons. The fact that some adjustment has been made
for ‘permanently disabled’ persons is not the gra-
La validité de l’argument de l’appelant dépend
de la justesse de son choix des travailleurs physiquement aptes en tant que groupe de comparaison.
Il dit: [TRADUCTION] «L’appelant Granovsky souhaite indiquer clairement que son argument repose
sur une comparaison entre les personnes qui ont
une déficience temporaire et celles qui sont physiquement aptes. Le fait que des ajustements aient
64
The alignment of the drop-out exception with
the legislative purpose of the CPP disability pension distinguishes this case from the situation in
Vriend v. Alberta, [1998] 1 S.C.R. 493. In that
case, the ameliorative purpose of the Individual’s
Rights Protection Act was not advanced by the
exclusion of sexual orientation. Indeed, the exclusion defeated aspects of the stated legislative purpose of a comprehensive human rights code to promote a society “where each and every man and
woman will be able to stand on his own two feet
and be recognized as an individual and not as a
member of a particular class” (Cory J., at para. 2,
quoting the Alberta Hansard). Here there is no
such contradiction between the impugned measure
and the laudable legislative purpose.
GRANOVSKY
v.
CANADA
vamen of Mr. Granovsky’s complaint.” If, as I
believe, he has picked the wrong comparator
group, the rest of his analysis collapses under the
weight of an erroneous premise.
(iii) Ameliorative Purpose or Effect
65
Binnie J.
[2000] 1 S.C.R.
été effectués pour les personnes qui ont une “déficience permanente” n’est pas l’élément essentiel
de la plainte de M. Granovsky.» Si, comme je le
crois, il a choisi le mauvais groupe de comparaison, le reste de son analyse s’effondre sous le
poids d’une prémisse erronée.
(iii) L’objet ou l’effet d’amélioration
A third related contextual factor is the ameliorative purpose or effect of the impugned law on
other groups in society. As M. D. Lepofsky has
justly observed:
Un troisième facteur contextuel connexe est
l’objet ou l’effet d’amélioration de la mesure législative contestée en ce qui concerne d’autres
groupes sociaux. Comme l’a fait remarquer à juste
titre M. D. Lepofsky:
Most of our mainstream institutions, laws, organizations, buildings, telecommunication systems, schools
and universities, public policy initiatives, job descriptions, transit services and other facilities are designed
and operated on the unarticulated, erroneous and unfair
premise that only persons without disabilities could,
would or should participate in or use them.
[TRADUCTION] De par leur conception et leur fonctionnement, la plupart des institutions, des lois, des organisations, des édifices, des systèmes de télécommunication,
des écoles et des universités, des institutions d’intérêt
public, des énoncés de fonctions, des services de transport en commun et des autres installations et services
mis à la disposition de l’ensemble des citoyens partent
de l’hypothèse tacite, erronée et injuste que seules les
personnes qui n’ont aucune déficience pourront, vont ou
devront y participer ou les utiliser, selon le cas.
(“A Report Card on the Charter’s Guarantee of
Equality to Persons with Disabilities after 10 Years
— What Progress? What Prospects?” (1998), 7
N.J.C.L. 263, at p. 270.)
(«A Report Card on the Charter’s Guarantee of
Equality to Persons with Disabilities after 10 Years
— What Progress? What Prospects?» (1998), 7
N.J.C.L. 263, à la p. 270.)
66
In this sense, s. 15(1) recognizes the legitimate
desire of persons with disabilities to join in the
everyday world taken for granted by the rest of the
population. Equality has to do with “similarities
that transcend as well as differences that endure”:
Minow, supra, at p. 124.
En ce sens, le par. 15(1) reconnaı̂t la volonté
légitime des personnes qui ont une déficience de
participer à la vie quotidienne qui va de soi pour le
reste de la population. L’égalité concerne [TRADUCTION] «les similitudes qui transcendent et les
différences qui restent»: Minow, loc. cit., à la
p. 124.
67
In this case, however, the group whose situation
Parliament sought to ameliorate is the more disadvantaged group of the permanently disabled. As
the Court held in Law, in terms applicable to the
present appeal, at para. 72:
En l’espèce, toutefois, le groupe dont le législateur a voulu améliorer la situation est celui, plus
défavorisé, des personnes ayant une déficience
permanente. Comme notre Cour l’a conclu, en des
termes applicables en l’espèce, au par. 72 de l’arrêt
Law:
An ameliorative purpose or effect which accords with
the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals
where the exclusion of these more advantaged individuals largely corresponds to the greater need or the differ-
Un objet ou un effet apportant une amélioration qui est
compatible avec l’objet du par. 15(1) de la Charte ne
violera vraisemblablement pas la dignité humaine de
personnes plus favorisées si l’exclusion de ces personnes concorde largement avec les besoins plus grands
738
GRANOVSKY
c.
CANADA
Le juge Binnie
739
ent circumstances experienced by the disadvantaged
group being targeted by the legislation. [Emphasis
added.]
ou la situation différente du groupe défavorisé visé par
les dispositions législatives. [Je souligne.]
I do not suggest that s. 15 claims can properly be
decided by pitting groups of disadvantaged people
against each other to determine who is more disadvantaged. The fact the CPP drop-out provision
“corresponds to the greater need or the different
circumstances” of the permanently disabled is,
however, a relevant contextual factor.
Je ne laisse pas entendre qu’une allégation fondée
sur l’art. 15 peut être tranchée adéquatement en
opposant des groupes de personnes défavorisées
les uns aux autres pour déterminer lequel est plus
défavorisé. Le fait que la disposition d’exclusion
du RPC «concorde [. . .] avec les besoins plus
grands ou la situation différente» des personnes
ayant une déficience permanente constitue cependant un facteur contextuel pertinent.
(iv) Nature of the Interest Affected
[2000] 1 R.C.S.
(iv) La nature de l’intérêt touché
A further contextual factor is the nature and
scope of the interest represented by the impugned
law. Persons with disabilities have been the target
of a variety of legislative responses through the
years. In an earlier era, laws were imposed to protect society against the presumed impact of impairments. Thus people with mental disabilities were
classified as “lunatics” and precluded from exercising a number of civil rights, including voting. A
later generation of laws tried to ameliorate the
financial effect of a disabled person’s functional
limitations with the solace of financial benefits, as
in the comprehensive legislation passed to assist
disabled war veterans. The more recent wave of
legislative activity, including the provincial human
rights legislation, seeks to improve the legal position of individuals with disabilities to counteract
socially constructed handicaps, as La Forest J.
noted in Eldridge, supra, at para. 56:
Un autre facteur contextuel est la nature et la
portée de l’intérêt représenté par la mesure législative contestée. Les personnes ayant une déficience
ont fait l’objet de diverses mesures législatives au
fil des ans. À une autre époque, des lois protégeaient la société contre l’effet présumé des déficiences. Ainsi, les gens souffrant d’une déficience
mentale étaient considérés comme des «aliénés» et
ne pouvaient pas exercer bon nombre de droits
civils, dont le droit de vote. Une génération ultérieure de mesures législatives a tenté d’atténuer
l’effet sur le plan financier des limitations fonctionnelles des personnes ayant une déficience en
leur conférant des avantages pécuniaires, comme
l’illustre la mesure législative complète adoptée
pour aider les anciens combattants invalides. La
vague plus récente de mesures législatives, dont les
lois provinciales en matière de droits de la personne, vise à améliorer la situation juridique des
personnes ayant une déficience afin de remédier
aux handicaps résultant d’une construction sociale,
comme le juge La Forest l’a souligné dans l’arrêt
Eldridge, précité, au par. 56:
. . . disabled persons have not generally been afforded
the “equal concern, respect and consideration” that
s. 15(1) of the Charter demands. Instead, they have been
subjected to paternalistic attitudes of pity and charity,
and their entrance into the social mainstream has been
conditional upon their emulation of able-bodied norms.
. . . les personnes handicapées n’ont généralement pas
obtenu [TRADUCTION] «l’égalité de respect, de déférence
et de considération» que commande le par. 15(1) de la
Charte. Au lieu de cela, elles ont fait l’objet d’attitudes
paternalistes inspirées par la pitié et la charité, et leur
intégration à l’ensemble de la société a été assujettie à
leur émulation des normes applicables aux personnes
physiquement aptes.
Here the “interest” represented by the impugned
law is the drop-out provision which, if applied,
En l’espèce, l’«intérêt» représenté par la mesure
législative contestée est la disposition d’exclusion
68
69
70
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
might open the door to a disability pension. The
appellant is entitled to have taken into consideration the actual impact on him of the denial of that
financial benefit. (He says he will be thrown onto
the welfare rolls.) While Parliament was not
required to create the CPP benefit scheme in the
first place, having decided to do so, it must not
confer benefits in a discriminatory manner contrary to s. 15(1). Thus, in Vriend, supra, when the
Alberta legislature set out to create a comprehensive human rights code, its decision to exclude
sexual orientation from the prohibited grounds of
discrimination was held to be unconstitutionally
underinclusive. Here, in contrast, the design of the
CPP contribution rules, and in particular Parliament’s delineation of the drop-out provision, are
directed to a narrow class of persons seeking a narrowly restricted benefit. In Vriend, the underinclusion was designed to reinforce the rejection of
gays and lesbians as individuals equally deserving
of respect. No such lack of respect or loss of dignity is manifested in the CPP drop-out provision,
which is simply tailored to correspond to the
requirements of the pension benefit itself, none of
which are challenged by the appellant. In these circumstances, in my opinion, the appellant fails to
show that viewed from the perspective of the
hypothetical “reasonable” individual who shares
the appellant’s attributes and who is dispassionate
and fully apprised of the relevant circumstances
(Egan, supra, at para. 56; Law, supra, at para. 60),
his dignity or legitimate aspirations to human selffulfilment have been engaged.
qui, si elle était appliquée, pourrait ouvrir droit à
une pension d’invalidité. L’appelant a droit à ce
qu’on tienne compte de l’effet réel sur lui du refus
de lui accorder cet avantage pécuniaire. (Il dit qu’il
en sera réduit à l’aide sociale.) Même si le législateur n’était pas tenu de créer le régime d’avantages
du RPC, étant donné qu’il a décidé de le faire, il ne
doit pas conférer des avantages d’une manière discriminatoire, contrairement au par. 15(1). Ainsi,
dans l’arrêt Vriend, précité, lorsque la législature
de l’Alberta avait entrepris d’adopter un code complet des droits de la personne, on a jugé que sa
décision d’exclure l’orientation sexuelle des motifs
de discrimination illicites avait une portée trop
limitative contraire à la Constitution. Par contre, la
façon dont les règles de cotisation au RPC ont été
conçues en l’espèce et, en particulier, la délimitation par le législateur de la disposition d’exclusion
visent une catégorie limitée de personnes qui sollicitent un avantage très restreint. Dans l’arrêt
Vriend, la portée trop limitative visait à renforcer
le rejet des gais et lesbiennes en tant que personnes
également dignes de respect. Un tel manque de
respect ou une telle perte de dignité ne se dégage
pas de la disposition d’exclusion, qui est conçue
simplement de manière à concorder avec les exigences de la prestation de retraite elle-même, dont
aucune n’est contestée par l’appelant. Dans ces circonstances, j’estime que l’appelant n’a pas
démontré que, du point de vue de la personne «raisonnable» hypothétique qui est dotée d’attributs
semblables à ceux de l’appelant et qui est objective
et bien informée des circonstances pertinentes
(Egan, précité, au par. 56; Law, précité, au
par. 60), sa dignité ou ses aspirations légitimes à
un l’épanouissement personnel étaient en cause.
In other words, the appellant has not demonstrated a convincing human rights dimension to his
complaint. Assuming he can show an impairment
and significant functional limitations, he fails to
show that the government’s response through the
design of the CPP or its application demeans persons with temporary disabilities, or casts any doubt
on their worthiness as human beings.
En d’autres termes, l’appelant n’a pas démontré
de manière convaincante que sa plainte avait une
dimension liée aux droits de la personne. En supposant qu’il peut prouver l’existence d’une affection et de limitations fonctionnelles importantes, il
n’établit pas que la réaction du gouvernement, sur
les plans de la conception et de l’application du
RPC, rabaisse les personnes qui ont une déficience
temporaire et jette un doute sur leur valeur en tant
qu’êtres humains.
740
GRANOVSKY
c.
(b) Disability Jurisprudence
CANADA
Le juge Binnie
741
b) La jurisprudence en matière de déficience
The appellant contends that his claim is fully
consistent with the principles laid down in this
Court’s jurisprudence and refers in his factum to
Eldridge, supra (factum paras. 27, 37, 38 and 94),
and to Eaton, supra (factum paras. 38 and 94). He
also cites Gibbs, supra (factum para. 42), and the
dissenting judgment of Lamer C.J. in Rodriguez v.
British Columbia (Attorney General), [1993] 3
S.C.R. 519 (factum paras. 35 and 37), on all of
which he relies. While the prior case law is rightly
presented as supportive of people with disabilities,
I think with respect that the prior decisions do not
support this particular claim, for reasons that I will
endeavour to outline briefly.
L’appelant prétend que sa demande est entièrement compatible avec les principes établis dans la
jurisprudence de notre Cour et renvoie, dans son
mémoire, à l’arrêt Eldridge, précité (par. 27, 37, 38
et 94 du mémoire), et à l’arrêt Eaton, précité
(par. 38 et 94 du mémoire). Il cite également, en
les invoquant, l’arrêt Gibbs, précité (par. 42 du
mémoire), et les motifs dissidents du juge en chef
Lamer dans Rodriguez c. Colombie-Britannique
(Procureur général), [1993] 3 R.C.S. 519 (par. 35
et 37 du mémoire). Bien que la jurisprudence soit
présentée à juste titre comme étant favorable aux
personnes qui ont une déficience, je crois, en toute
déférence, qu’elle n’appuie pas la présente
demande, pour les motifs que je vais tenter d’exposer brièvement.
(i) Eaton v. Brant County Board of Education,
[1997] 1 S.C.R. 241
(i) Eaton c. Conseil scolaire du comté de Brant,
[1997] 1 R.C.S. 241
The Eaton case involved the disputed school
placement of a 12-year-old girl with cerebral palsy.
The Board of Education had placed Emily in a
“special education class”. Emily’s parents wanted
her to remain in the ordinary education stream.
There is no doubt that Emily suffered severe
impairment. The cerebral palsy had caused considerable brain damage (the impairment) resulting in
an inability to communicate except in the most
basic terms, her lack of control over her body
which required that she use a wheelchair, and a
number of loosely identified learning disabilities
(the functional limitation). In terms of the third
aspect (the handicap), Emily argued that the
School Board’s response exacerbated her isolation,
undermined her progress toward integration and
self-fulfilment, and thus attacked the core purpose
of her s. 15(1) equality rights. It was established
that her classroom behaviour — “the increasing
incidents of crying, sleeping and vocalization”
(Sopinka J., at para. 19) — undoubtedly created
some disruption for the “mainstream” children
around her and raised a serious potential issue as to
whether the special educational placement was for
Emily’s benefit or for the presumed benefit of her
mainstream classmates. The Court therefore
examined whether the criteria (which on their face
Dans l’affaire Eaton, on contestait le placement
en milieu scolaire d’une fillette de 12 ans atteinte
de paralysie cérébrale. Le conseil scolaire avait
placé Émily dans une «classe pour élèves en difficulté». Les parents de la fillette voulaient qu’elle
demeure dans une classe ordinaire. Il n’y a aucun
doute qu’Emily souffrait d’une affection grave. La
paralysie cérébrale lui avait causé des dommages
considérables au cerveau (l’affection), ce qui avait
entraı̂né une incapacité de communiquer sauf de
façon très rudimentaire, la non-maı̂trise de son
corps qui la confinait à un fauteuil roulant ainsi
qu’un certain nombre de difficultés d’apprentissage vaguement identifiées (la limitation fonctionnelle). En ce qui a trait à la troisième facette (le
handicap), Emily a fait valoir que la mesure prise
par le conseil scolaire accentuait son isolement,
compromettait son intégration et son épanouissement personnel et portait donc atteinte à l’objet
même de ses droits à l’égalité garantis par le
par. 15(1). Il a été établi que son comportement en
classe — «ses pleurs, ses périodes de sommeil et
de cris de plus en plus fréquents» (le juge Sopinka,
au par. 19) — dérangeait manifestement ses camarades de classe «ordinaire», de sorte qu’on pouvait
sérieusement se demander si le placement dans une
classe pour élèves en difficulté était à l’avantage
71
[2000] 1 R.C.S.
72
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
were directed solicitously to her education needs)
were in fact discriminatory in that they exaggerated the benefits of segregation and minimized the
benefits to Emily that would flow from her inclusion in the educational mainstream.
d’Emily ou à l’avantage présumé de ses camarades
de classe ordinaire. La Cour s’est donc demandé si
les critères (visant de prime abord à répondre avec
sollicitude aux besoins d’Émily en matière d’éducation) étaient, en réalité, discriminatoires du fait
qu’ils accentuaient les avantages de la ségrégation
et minimisaient les avantages que tirerait Emily de
son intégration à une classe ordinaire.
73
While this Court refused to read into s. 15 a presumption in favour of inclusion in the mainstream
(on the basis that inclusion might be contrary to
the best interest of a person with severe disabilities
because the application of the presumption might
compel a bad placement in some cases), Sopinka J.
nevertheless clearly stated that, viewed in human
rights terms, “[i]ntegration [of Emily in the mainstream environment] was the preferred accommodation” (para. 68). Reference might be made here
to the similar sentiment of Marshall J., dissenting
in part, in Cleburne, supra, at p. 461, that exclusion “deprives the [disabled] of much of what
makes for human freedom and fulfillment — the
ability to form bonds and take part in the life of a
community”.
Bien que notre Cour ait refusé de considérer que
l’art. 15 établit une présomption en faveur de l’intégration à une classe ordinaire (parce que l’intégration pourrait être contraire à l’intérêt d’une personne qui a une déficience grave, étant donné que
l’application de la présomption pourrait mener
dans certains cas à un mauvais placement), le juge
Sopinka a néanmoins affirmé clairement que, du
point de vue des droits de la personne, «[l]’intégration [d’Emily dans le milieu scolaire normal] est le
moyen qui a été privilégié» (par. 68). On pourrait
également se reporter ici au fait que le juge
Marshall, dissident en partie, dans Cleburne, précité, à la p. 461, avait le sentiment similaire que
l’exclusion [TRADUCTION] «prive la [personne
ayant une déficience] d’une grande partie de ce qui
contribue à la liberté de l’être humain et à son épanouissement, à savoir la possibilité d’établir des
liens et de prendre part à la vie collective».
74
Emily’s claim of discrimination was defeated on
the facts. The Board’s local placement committee,
in a decision upheld after a 21-day hearing by the
province’s Special Education Tribunal, had fairly
(in the Court’s view) determined that integration
had had “the counterproductive effect of isolating
her, of segregating her in the theoretically integrated setting” (para. 72 (emphasis added)). Walls
do not a prison make and inclusion in a mainstream classroom is not necessarily a liberating or
self-fulfilling experience. The Court could find no
evidence that the School Board had adopted an
insensitive or self-serving response to Emily’s
condition, or that the criteria used in placing Emily
in a special education program failed to take into
account the desirability of integrating disabled students into mainstream education. On the contrary,
the process had put the focus on substantive equality, not merely formal equality. McIntyre J. in
L’allégation de discrimination d’Emily a été
rejetée à la lumière des faits. Dans une décision
confirmée après 21 jours d’audience devant le tribunal de l’enfance en difficulté de la province, le
comité local de placement du conseil scolaire a
conclu à juste titre (selon la Cour) que l’intégration
avait eu [TRADUCTION] «l’effet contraire de l’isoler, de la mettre à part dans le cadre en principe
intégré» (par. 72 (les italiques sont de moi)). Les
murs ne font pas la prison, et l’intégration à une
classe ordinaire n’a pas nécessairement un effet
libérateur ou épanouissant. La Cour n’a constaté
aucune preuve que le conseil scolaire avait pris la
mesure dans son propre intérêt ou sans tenir
compte de la situation d’Emily, ou que les critères
appliqués pour placer Emily dans une classe pour
élèves en difficulté faisaient fi du caractère souhaitable de l’intégration des élèves ayant une déficience aux classes ordinaires. Au contraire, l’ac-
742
GRANOVSKY
c.
CANADA
Le juge Binnie
743
Andrews, supra, counselled, at p. 169: “[the]
accommodation of differences . . . is the essence of
true equality” (quoted by Sopinka J. at para. 66). A
reading of the decision as a whole makes it clear, I
think, that Emily’s claim might have succeeded if
the appellant Board had wrongly attributed to
Emily functional limitations which she did not in
fact possess, or if the Court had been persuaded
that the Board’s response to the challenge posed by
Emily’s placement had itself violated Emily’s dignity as a human being equally deserving of consideration, or placed discriminatory obstacles in the
way of her self-fulfilment. In short, Emily Eaton’s
claim failed for some of the same principled reasons that, in my view, require rejection of the
appellant’s s. 15(1) claims in this case.
cent avait été mis sur l’égalité réelle et non
simplement sur l’égalité formelle. Comme l’a
recommandé le juge McIntyre dans Andrews, précité, à la p. 169: «le respect des différences [. . .]
est l’essence d’une véritable égalité» (cité par le
juge Sopinka, au par. 66). À mon avis, il ressort de
l’ensemble de la décision qu’Emily aurait pu avoir
gain de cause si le conseil scolaire appelant lui
avait attribué à tort des limitations fonctionnelles
dont elle ne souffrait pas ou si la Cour avait été
convaincue que la réaction du conseil scolaire au
défi que posait le placement d’Emily avait ellemême porté atteinte à la dignité d’Emily en tant
qu’être humain également digne de considération,
ou avait érigé des obstacles discriminatoires à son
épanouissement personnel. Bref, l’allégation
d’Emily Eaton a échoué pour certaines des mêmes
raisons de principe qui, à mon avis, commandent le
rejet, en l’espèce, des allégations de l’appelant fondées sur le par. 15(1).
(ii) Rodriguez v. British Columbia (Attorney
General), [1993] 3 S.C.R. 519
(ii) Rodriguez c. Colombie-Britannique (Procureur général), [1993] 3 R.C.S. 519
The appellant relies on the dissenting reasons of
Lamer C.J. In that case, the appellant had established a physical impairment (amyotrophic lateral
sclerosis (ALS), widely known as Lou Gehrig’s
disease) which produced such severe loss of muscular control (functional limitation) that she
expected to be unable to commit suicide without
assistance when her life inevitably deteriorated to
the point of utter intolerability. She claimed that
criminalizing the act of assisting her suicide
imposed an indignity related entirely to her physical disability and thereby violated her s. 15 rights
(the state-imposed handicap). Whereas people
without disabilities could, if they wished, commit
suicide unassisted, she because of her disability
could not do so, and was thus differentially
impacted by the legal prohibition on suicide assistance. Lamer C.J. recognized that the legal handicap was not the inevitable product of the disease,
but a consequence imposed by society through
s. 241(b) of the Criminal Code. Leaving aside the
fact that the other members of the Court declined
to characterize the issue raised by Sue Rodriguez
as a s. 15(1) issue, the analysis of the Chief Justice
is of no help to the appellant because Sue
L’appelant invoque les motifs dissidents du juge
en chef Lamer. Dans cette affaire, l’appelante avait
démontré l’existence d’une affection physique (la
sclérose latérale amyotrophique (SLA), généralement connue sous le nom de maladie de Lou
Gehrig) qui entraı̂nait une perte de contrôle musculaire (limitation fonctionnelle) si grave qu’elle s’attendait à être incapable de mettre fin à ses jours
sans assistance lorsque sa qualité de vie serait détériorée au point d’être totalement insupportable.
Elle a prétendu que la criminalisation de l’acte
consistant à l’aider à se suicider constituait un
affront lié entièrement à sa déficience physique et
portait donc atteinte aux droits que lui garantissait
l’art. 15 (le handicap imposé par l’État). Une différence de traitement découlait de l’interdiction
légale de l’aide au suicide, car une personne ne
souffrant d’aucune déficience était en mesure, si
elle le souhaitait, de mettre fin à ses jours sans
assistance, alors que l’appelante n’était pas en
mesure de le faire en raison de sa déficience. Le
juge en chef Lamer a reconnu que le handicap
légal était non pas une conséquence inéluctable de
la maladie, mais une conséquence imposée par la
société au moyen de l’al. 241b) du Code criminel.
[2000] 1 R.C.S.
75
76
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
Rodriguez, like Emily Eaton, was comparing her
situation to that of able-bodied people, and a
breach of s. 15(1) was found by the Chief Justice
on that basis. In this case, as stated, the proper
comparator is the class of persons who suffer from
severe and permanent disabilities.
Outre le fait que les autres juges de la Cour ont
refusé de qualifier de question relative au
par. 15(1) la question soulevée par Sue Rodriguez,
l’analyse du Juge en chef n’est d’aucune utilité à
l’appelant, car Sue Rodriguez, à l’instar d’Emily
Eaton, comparait sa situation à celle d’une personne physiquement apte, et le Juge en chef a conclu à une violation du par. 15(1) sur ce fondement.
Comme nous l’avons vu, le groupe de comparaison
approprié en l’espèce est la catégorie des personnes ayant une déficience grave et permanente.
(iii) Battlefords and District Co-operative Ltd.
v. Gibbs, [1996] 3 S.C.R. 566
(iii) Battlefords and District Co-operative Ltd.
c. Gibbs, [1996] 3 R.C.S. 566
The Gibbs case, like the present appeal,
involved a claim of discriminatory exclusion from
disability benefits. Unlike the present appeal,
Gibbs was not a Charter case. It did, however, proceed on a comparable analysis. An employer provided a medical insurance plan under which any
employee unable to work by reason of physical or
mental disability received replacement income.
The benefit terminated after two years in the case
of persons suffering a mental disability (unless the
applicant was institutionalized), whereas persons
suffering a physical disability continued to receive
the income benefit indefinitely. The Court held
that this income replacement benefit discriminated
against persons with a mental disability. The
appeal turned on whether the employer’s health
plan, which on the face of it made the same insurance available to all employees without discrimination, was nevertheless discriminatory in its
design. Scrutiny of the design was required
because otherwise, the employer (or, in the present
appeal, the state) could escape the charge of discrimination by pointing out that the plaintiff, for
whatever reason, simply fell outside the targeted
group. Sopinka J., for the majority, recognized this
danger, and upheld the complaint on the basis that
persons with mental disabilities were treated in
comparable circumstances less favourably than
persons with other health disabilities. The proper
comparison was not between the respondents and
Tout comme en l’espèce, il était allégué, dans
l’affaire Gibbs, que l’inadmissibilité à des prestations d’«invalidité» était discriminatoire. À la différence du présent pourvoi, la Charte n’était pas
invoquée dans cette affaire. La Cour y a toutefois
procédé à une analyse comparable. Suivant le
régime d’assurance de soins médicaux offert par
l’employeur, l’employé incapable de travailler en
raison d’une déficience physique ou mentale touchait une indemnité de remplacement du revenu.
Celle-ci cessait d’être versée au bout de deux ans
dans les cas de déficience mentale (sauf si la personne était internée), tandis qu’une personne ayant
une déficience physique continuait de toucher l’indemnité indéfiniment. La Cour a conclu que cette
indemnité de remplacement du revenu était discriminatoire envers les personnes qui avaient une
déficience mentale. Il s’agissait de savoir si le
régime de soins médicaux de l’employeur, qui, à
première vue, offrait la même police d’assurance à
tous les employés sans distinction, était néanmoins
discriminatoire sur le plan de sa conception. L’examen de la façon dont le régime était conçu s’imposait, sinon l’employeur (ou, en l’espèce, l’État)
pouvait échapper à une accusation de discrimination en faisant valoir que le demandeur, pour une
raison ou une autre, n’appartenait tout simplement
pas au groupe ciblé. S’exprimant au nom de la
majorité, le juge Sopinka a reconnu ce danger et a
fait droit à la plainte pour le motif que les personnes ayant une déficience mentale étaient traitées, dans des circonstances comparables, moins
favorablement que les personnes ayant une autre
forme de déficience. La comparaison devait être
744
GRANOVSKY
c.
CANADA
Le juge Binnie
745
the able-bodied employees, but between two classes of disabled persons.
établie, non pas entre l’intimée et un employé physiquement apte, mais bien entre deux catégories de
personnes ayant une déficience.
The appellant relies on the Gibbs analysis for his
proposition that here, as in Gibbs, a distinction has
wrongly been made between different disabilities.
The difference, however, is that in Gibbs the health
plan stigmatized people with mental disabilities as
being less worthy of benefits than those with physical handicaps, whereas here, there is no stigma in
being treated as “better off” where in fact that is
the reality of the appellant’s medical history.
L’appelant invoque l’analyse de l’arrêt Gibbs à
l’appui de sa proposition qu’en l’espèce, tout
comme dans l’affaire Gibbs, une distinction a été
établie à tort entre diverses déficiences. La différence réside toutefois dans le fait que, dans l’affaire Gibbs, le régime de soins médicaux stigmatisait les personnes ayant une déficience mentale
comme étant moins dignes de toucher des prestations que les personnes ayant une déficience physique, tandis qu’en l’espèce aucune stigmatisation
ne résulte du fait d’être considéré comme étant
dans une meilleure situation lorsque, dans les faits,
c’est ce qui ressort du dossier médical de l’appelant.
(iv) Eldridge v. British Columbia (Attorney
General), [1997] 3 S.C.R. 624
(iv) Eldridge c. Colombie-Britannique (Procureur général), [1997] 3 R.C.S. 624
In the Eldridge case, the three appellants were
born deaf, and their hearing impairment led to the
functional limitation that without sign language
interpreters they could not communicate effectively with their doctors and other health care
providers. Lack of effective communication diminished the health care benefits and increased the risk
of misdiagnosis and ineffective treatment. As in
Eaton, supra, therefore, the physical impairment
was established, as was the consequent functional
limitation. Unlike Eaton, the government’s
response could not be portrayed as being in the
best interest of the deaf appellants. Nevertheless,
the government contended that deafness is a condition of the user that really has nothing to do with
the health scheme, and that in refusing sign language interpreters the health plan treated the deaf
and non-deaf on an equal footing. The majority
opinion in the British Columbia Court of Appeal
drew a distinction between the adverse effects to
the complainant attributable to the legislation and
those that exist independently of the impugned legislation (i.e., the deafness). In this Court, La Forest
J. rejected as too broad the general proposition that
“government is not obliged to ameliorate disadvantage that it has not helped to create or exacerbate” (para. 66). Adequate communication, he
Dans l’affaire Eldridge, les trois appelants
étaient sourds de naissance et leur affection auditive leur causait une limitation fonctionnelle en ce
sens qu’en l’absence d’un interprète gestuel ils ne
pouvaient communiquer efficacement avec leurs
médecins et d’autres professionnels de la santé.
L’absence de communication efficace avait pour
effet de réduire les avantages en matière de soins
de santé et d’accroı̂tre le risque de diagnostic
erroné et de traitement inefficace. Par conséquent,
comme dans l’affaire Eaton, précitée, l’affection
physique était établie, tout comme la limitation
fonctionnelle qui en découlait. Contrairement à
l’affaire Eaton, on ne pouvait pas dire que la réaction du gouvernement était dans le meilleur intérêt
des appelants sourds. Le gouvernement a néanmoins soutenu que la surdité est une condition du
bénéficiaire lui-même et n’a vraiment rien à voir
avec le régime de soins de santé, et qu’en refusant
d’offrir des services d’interprétation gestuelle le
régime traitait sur un pied d’égalité les bénéficiaires sourds et ceux qui ne l’étaient pas. Les
juges majoritaires de la Cour d’appel de la
Colombie-Britannique ont établi une distinction
entre les effets préjudiciables causés au plaignant
par la loi et ceux qui existent indépendamment de
la loi contestée (c’est-à-dire la surdité). Le juge
77
78
[2000] 1 R.C.S.
79
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
held, was “an integral part of the provision of medical services” (para. 69). The failure to provide
sign language interpreters created a second class
group of health plan users who were denied the
full benefits of the health scheme available to the
non-deaf. The government was not required to provide “extra” services. It was required to provide
the medical services its Commission had already
recognized as “necessary” in a way that was
understandable and usable to the deaf. The government had looked at its health scheme only from the
perspective of a more able-bodied user. It was,
from the deaf user’s perspective, the differentiated
delivery of a theoretically undifferentiated medical
service that infringed s. 15(1) and failed to support
a s. 1 justification.
La Forest, de notre Cour, a rejeté, pour le motif
qu’elle avait une portée trop large, la proposition
générale selon laquelle «[le gouvernement] n’est
pas obligé d’atténuer les désavantages qu’il n’a pas
contribué à créer ou à exacerber» (par. 66). Il a
conclu que les communications adéquates étaient
«une partie intégrante de la prestation des services
médicaux» (par. 69). L’omission d’offrir des services d’interprétation gestuelle avait pour effet de
créer une catégorie de bénéficiaires de second rang
qui n’avaient pas accès à l’ensemble des avantages
que le régime de soins de santé offrait aux personnes qui n’étaient pas sourdes. Le gouvernement
n’était pas tenu d’offrir des services «supplémentaires». Il devait fournir les services médicaux que
sa commission avait déjà jugés «nécessaires» de
façon à ce que les personnes sourdes puissent les
comprendre et en bénéficier. Le gouvernement
n’avait considéré son régime de soins de santé que
sous l’angle d’un bénéficiaire plus physiquement
apte. Du point de vue des bénéficiaires sourds,
c’était la prestation différente de services médicaux en principe uniformes qui contrevenait au
par. 15(1) et qui n’était pas justifiable en vertu de
l’article premier.
(4) The Drop-Out Provision Does Not Infringe
the Charter
(4) La disposition d’exclusion ne contrevient
pas à la Charte
I return to the observation of Sopinka J. in
Eaton, supra, at para. 66, that “the purpose of
s. 15(1) of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the
position of groups within Canadian society who
have suffered disadvantage by exclusion from
mainstream society as has been the case with disabled persons”. The differential treatment afforded
by the s. 44 drop-out provision ameliorates the
position of those with a history of severe and permanent disabilities. It does not assist more fortunate people such as the appellant, but in the context of a contributory benefits plan, Parliament is
inevitably called upon to target the particular
group or groups it wishes the CPP to subsidize.
Drawing lines is an unavoidable feature of the CPP
and comparable schemes. Parliament did not violate the purpose of s. 15(1) by seeking to benefit
individuals with a history of severe and prolonged
Je reviens à l’observation du juge Sopinka dans
l’arrêt Eaton, précité, au par. 66, que «le par. 15(1)
de la Charte a non seulement pour objet d’empêcher la discrimination par l’attribution de caractéristiques stéréotypées à des particuliers, mais également d’améliorer la position de groupes qui, dans
la société canadienne, ont subi un désavantage en
étant exclus de l’ensemble de la société ordinaire
comme ce fut le cas pour les personnes handicapées». La différence de traitement que permet la
disposition d’exclusion de l’art. 44 améliore la
position des personnes ayant des antécédents de
déficience grave et permanente. Elle n’aide pas les
personnes plus fortunées comme l’appelant, mais
dans le contexte d’un régime de prestations contributif, le législateur doit inévitablement cibler le ou
les groupes qu’il veut aider financièrement au
moyen du RPC. Tracer des lignes de démarcation
est une caractéristique inévitable du RPC et de tout
régime comparable. Le législateur n’a pas contre-
746
[2000] 1 R.C.S.
GRANOVSKY
c.
CANADA
Le juge Binnie
747
venu à l’objet du par. 15(1) en cherchant à avantager les personnes ayant des antécédents de déficience grave et prolongée. (En fait, l’appelant veut
bénéficier d’un traitement plus avantageux que
celui accordé à la personne qui a une déficience
permanente. À l’heure actuelle, le RPC prévoit
l’exclusion de l’exigence de cotisation à raison
d’un mois à la fois lorsque les conditions établies
par la Loi sont respectées. Par contre, suivant le
régime préconisé par l’appelant, une déficience
d’une durée de sept mois «exclurait» 12 mois du
calcul du RPC plutôt que seulement sept mois.)
The “purposive” interpretation of s. 15 puts the
focus squarely on the third aspect of disabilities,
namely on the state’s response to an individual’s
physical or mental impairment. If the state’s
response were, intentionally or through effects produced by oversight, to stigmatize the underlying
physical or mental impairment, or to attribute
functional limitations to the appellant that his
underlying physical or mental impairment did not
warrant, or to fail to recognize the added burdens
which persons with temporary disabilities may
encounter in achieving self-fulfilment, or otherwise to misuse the impairment or its consequences
in a discriminatory fashion that engages the purpose of s. 15, an infringement of equality rights
would be established. But neither Parliament in the
design of the CPP, nor the Minister in his administration of the CPP in relation to the appellant, did
any of these things, in my opinion.
L’interprétation «fondée sur l’objet visé» de
l’art. 15 met carrément l’accent sur la troisième
facette de la déficience, à savoir sur la réaction de
l’État face à l’affection physique ou mentale d’une
personne. Il y aurait atteinte aux droits à l’égalité si
la réaction de l’État avait pour but ou pour effet
causé par inadvertance de stigmatiser l’affection
physique ou mentale sous-jacente, d’attribuer à
l’appelant des limitations fonctionnelles que son
affection physique ou mentale sous-jacente n’entraı̂ne pas, de ne pas reconnaı̂tre les difficultés supplémentaires que les personnes ayant une déficience temporaire peuvent éprouver à s’épanouir,
ou, par ailleurs, de traiter l’affection ou ses conséquences d’une manière discriminatoire qui met en
cause l’objet de l’art. 15. Toutefois, je suis d’avis
que le législateur, en concevant le RPC, et le
ministre, en appliquant le RPC à l’appelant, n’ont
rien fait de tout cela.
80
While I have every sympathy for the appellant’s
injured back and the problematic employment history to which it may have contributed, I do not
believe that a reasonably objective person, standing in his shoes and taking into account the context
of the CPP and its method of financing through
contributions, would consider that the greater
allowance made for persons with greater disabilities in terms of CPP contributions “marginalized”
or “stigmatized” him or demeaned his sense of
worth and dignity as a human being.
Bien que je compatisse avec l’appelant en ce qui
concerne sa blessure au dos et l’historique d’emploi problématique auquel cette blessure a pu contribuer, je ne crois pas qu’une personne raisonnablement objective, qui se trouverait dans la même
situation et qui tiendrait compte du contexte du
RPC et de sa méthode de financement au moyen
de cotisations, considérerait que le fait de prendre
davantage en considération le cas de personnes
ayant des déficiences plus graves, au chapitre des
cotisations au RPC, a pour effet de «marginaliser»
l’appelant ou de le «stigmatiser», ou encore, de
miner son estime de soi ou sa dignité en tant
qu’être humain.
81
disability. (In fact, the appellant wants more
advantageous treatment than is given to the permanently disabled. The CPP at present drops out the
contribution requirement at the rate of one month
at a time when the statutory conditions are satisfied. Under the appellant’s scheme, by contrast,
seven months’ disability would “drop” 12 months
out of the CPP calculation instead of only seven
months.)
82
83
84
GRANOVSKY
v.
CANADA
Binnie J.
[2000] 1 S.C.R.
In these circumstances, my opinion is that the
CPP drop-out provision does not engage the larger
human rights purpose of s. 15(1) of the Charter,
and the appellant’s claim that s. 15 has been
infringed must therefore be rejected.
Dans ces circonstances, je suis d’avis que la disposition d’exclusion du RPC ne met pas en cause
l’objectif général en matière de droits de la personne que vise le par. 15(1) de la Charte, et que
l’allégation de l’appelant que l’on a contrevenu à
l’art. 15 doit donc être rejetée.
C. Section 1 of the Charter
C. L’article premier de la Charte
As there is no violation of s. 15(1), it is not necessary to turn to s. 1. It is thus unnecessary to deal
with the appellant’s argument that the government
has failed “to show why it is reasonable to deny a
modest adjustment which would do justice to
Mr. Granovsky and people like Mr. Granovsky”.
As the appellant has failed to show a violation of
his s. 15(1) rights, the issue of justification does
not arise.
Comme il n’y a aucune violation du par. 15(1),
il n’est pas nécessaire de passer à l’article premier.
Il est donc inutile d’examiner l’argument de l’appelant que le gouvernement n’a pas [TRADUCTION]
«démontré pourquoi il est raisonnable de refuser
un ajustement mineur qui ne serait que juste pour
M. Granovsky et les personnes qui se trouvent
dans la même situation que lui». Comme l’appelant n’a pas démontré l’existence d’une violation
des droits que lui garantit le par. 15(1), la question
de la justification ne se pose pas.
VIII. Disposition
VIII. Dispositif
I would dismiss the appeal. The respondent has
not requested costs and none are awarded. The
constitutional questions should be answered as follows:
Je suis d’avis de rejeter le pourvoi. Aucuns
dépens ne sont accordés vu l’absence d’une
demande de l’intimé en ce sens. Il y a lieu de
répondre aux questions constitutionnelles de la
façon suivante:
(1) Does the Canada Pension Plan, R.S.C., 1985, c. C-
(1) Le Régime de pensions du Canada, L.R.C. (1985),
8, discriminate against persons on the basis of
physical or mental disability by including periods
of physical or mental disability in a claimant’s contributory period, as such period is determined pursuant to s. 44(2)(b) of that Act, in claims for a disability pension under that Act, contrary to s. 15 of
the Canadian Charter of Rights and Freedoms, Part
I of the Constitution Act, 1982, being Schedule B of
the Canada Act 1982 (U.K.), 1982, c. 11?
ch. C-8, crée-t-il à l’égard de certaines personnes
une discrimination fondée sur les déficiences mentales ou physiques en incluant des périodes d’invalidité mentale ou physique dans la période cotisable
d’un demandeur, selon la définition de cette période
à l’al. 44(2)b) de cette loi, dans les demandes de
pension d’invalidité faites en vertu de cette loi, en
contravention de l’art. 15 de la Charte canadienne
des droits et libertés, partie I de la Loi constitutionnelle de 1982, annexe B de la Loi de 1982 sur le
Canada (R.-U.), 1982, ch. 11?
Answer: No.
Réponse: Non.
(2) If so, does the discrimination come within only
(2) Dans l’affirmative, cette discrimination est-elle une
such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society under section 1 of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B of the Canada Act 1982
(U.K.), 1982, c. 11?
restriction prescrite par une règle de droit, dans des
limites qui sont raisonnables et dont la justification
peut se démontrer dans le cadre d’une société libre
et démocratique selon l’article premier de la Charte
canadienne des droits et libertés, partie I de la Loi
constitutionnelle de 1982, annexe B de la Loi de
1982 sur le Canada (R.-U.), 1982, ch. 11?
748
GRANOVSKY
c.
Answer: The second constitutional question need
not be answered.
Appeal dismissed.
CANADA
Le juge Binnie
749
Réponse: Il n’y a pas lieu de répondre à la
seconde question constitutionnelle.
Pourvoi rejeté.
Solicitors for the appellant: Booth, Dennehy,
Ernst & Kelsch, Winnipeg.
Procureurs de l’appelant: Booth, Dennehy,
Ernst & Kelsch, Winnipeg.
Solicitor for the respondent: The Deputy Attorney General of Canada, Ottawa.
Procureur de l’intimé: Le sous-procureur
général du Canada, Ottawa.
Solicitors for the intervener: Osler, Hoskin &
Harcourt, Toronto.
Procureurs de l’intervenant: Osler, Hoskin &
Harcourt, Toronto.
[2000] 1 R.C.S.

CSTS submission - the British Columbia Utilities Commission

Transcription

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