Citation: Oak
Bay Marina Ltd. v.
BETWEEN:
OAK BAY MARINA LTD.
doing business as
Painter's Lodge
RESPONDENT
(PETITIONER)
AND:
COMMISSIONER OF INVESTIGATION
AND MEDIATION and
THE
RESPONDENTS
(RESPONDENTS)
AND:
ROBERT GORDY
APPELLANT
(RESPONDENT)
AND:
CANADIAN MENTAL HEALTH
ASSOCIATION
INTERVENOR
| Before: | The Honourable Madam Justice Newbury |
| The Honourable Mr. Justice Hall | |
| The Honourable Madam Justice Saunders |
| R.B. Farvolden | Counsel for the Appellant | |
| P.J. Pearlman, Q.C. | Counsel for the Respondent Oak Bay Marina Ltd. | |
| M. Rea | Counsel for the Respondent B.C. Human Rights Tribunal | |
| F. Kelly | Counsel for the Intervenor, Canadian Mental Health Association (B.C. Division) | |
| Place and Date of Hearing: | | |
| | ||
| Place and Date of Judgment: | | |
| | ||
Written Reasons by:
The Honourable Madam Justice Newbury
Concurring Reasons by:
The Honourable Madam Justice Saunders (P. 32, para. 31)
Concurring Reasons by:
The Honourable Mr. Justice Hall (P. 35, para. 36)
Reasons for Judgment of
the Honourable Madam Justice Newbury:
[2] After his release, Mr. Gordy had further discussions with Mr. Dreger. These were the subject of dispute between the parties: OBM claimed it had told Mr. Gordy it would not schedule him to start work immediately (its guided trips are booked a week or two ahead of time), but that he should come back later in the month. Mr. Dreger testified this was unacceptable to Mr. Gordy, who said he would not be coming back to the Lodge at all. Indeed, Mr. Dreger testified that but for Mr. Gordy's irate reaction to his suggestion that Mr. Gordy come back later in the month, he (Mr. Dreger) would have spoken to Mr. Gordy's psychiatrist, Dr. Vincent, and would have "done some more investigation" about Mr. Gordy's condition. Mr. Gordy on the other hand testified that Mr. Dreger had refused outright to hire him, and indeed that Mr. Dreger appeared to have made his mind up before their meeting in July. OBM was said to have persisted in this refusal despite the advice of Dr. Vincent, confirmed in a letter dated July 19 to Mr. Dreger, that Mr. Gordy was "doing extremely well" and that his mood was stabilized.
[3] Mr. Gordy filed a complaint with the B.C. Council of Human Rights, alleging that he had been discriminated against by reason of a physical or mental disability, contrary to what is now s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210. Section 13 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 race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. | ||||||
| (2) | An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1). | ||||||
| (3) | Subsection (1) does not apply | ||||||
| (a) | as it relates to age, to a bona fide scheme based on seniority, or | ||||||
| (b) | as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan. | ||||||
| (4) | Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. | ||||||
A member of the Tribunal heard the complaint over several days in the
spring of 1999. Before she issued
her reasons, the Supreme Court of Canada issued its judgments in British
Columbia (Public Service Employee Relations Commission) v. BCGSEU [1999]
3 S.C.R. 3 ("Meiorin") and British
Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human
Rights) [1999] 3 S.C.R. 868 ("Grismer") establishing a new "unified approach"
to the defence of bona fide occupational requirement ("BFOR") referred to in s.
13(4) of the Code. Counsel were
permitted to make further submissions regarding Meiorin and Grismer
before the Tribunal member issued her decision.
[4] At the hearing, OBM advanced two ‘threshhold’ arguments —(i) that Mr. Gordy would not have been an "employee" of OBM had he been hired; and (ii) that OBM had not refused outright to employ Mr. Gordy but had said it would consider hiring him later in the summer of 1995. OBM failed on each of these. The Tribunal member ruled that giving the Code a large and liberal interpretation, Mr. Gordy qualified as an "employee" for purposes of the Code even though he was required to provide and maintain his own gear, could seek customers from outside Painter's Lodge, and had agreed in writing with OBM that he was an independent contractor and had filed his tax returns on that basis. The member also rejected OBM's version of what had occurred between Mr. Dreger and Mr. Gordy in July 1995. At para. 98 of her Reasons, she stated her findings:
I do not accept Mr. Dreger's
evidence that the Complainant walked away from his job on July 17. I prefer the
Complainant's and Mrs. Gordy's evidence that there was a confrontational meeting
on June 6 with Mr. Dreger, shortly before the Complainant was admitted to hospital.
I also prefer the Complainant's evidence that he was informed by Mr. Dreger on
July 17 that he would not be rehired and that Mr. Dreger refused the Complainant's
suggestions that he talk to either Mrs. Gordy or Dr. Vincent to obtain more information
about his condition. Such a refusal is consistent with the fact that, after receiving
Dr. Vincent's letter, Mr. Dreger did nothing.
[5]
On the other hand, the member
accepted the evidence of Mr. Gordy's psychiatrists,
Dr. Vincent and Dr. Stovel, that on
. . . Dr. Stovel's oral evidence was consistent with the letters he sent to the Complainant's family physician. Furthermore, the insurer was aware that the Complainant was working and earning some income because that amount was deducted from the insurance paid to the complainant. In addition, the insurer never questioned Dr. Stovel about the disparity between his use of the number "6" in his diagnosis (which indicated the disorder was in full remission) and his written comments that the Complainant was unable to work.
On the facts as she found them, the member concluded that Mr. Gordy had established a prima facie case of discrimination — i.e., that OBM had refused to hire him because of his disability.
[6] The member then turned to the question of BFOR. She recited the three elements that must, on the new authorities, be shown by an employer in order to establish the defence:
That the employer adopted the standard for a purpose rationally connected to the performance of the job;
That the employer adopted the particular standard in a honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
That the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose in that it is impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship on the employer. [para. 148]
Counsel for Mr. Gordy had conceded that the first two requirements were met: he acknowledged that OBM's goal of establishing "a reasonable level of safety on the water" was rationally connected to OBM's "functions", and that the goal of "reasonable safety" had been adopted in good faith. In this regard, the member referred to evidence that guides hired by OBM for the summer put in very long hours and generally worked seven days a week. In her words:
Mr.
Dreger stated that, when he hired a new guide, he would spend several hours on
the water with them evaluating their skills to determine if the individual would
be a good guide. He said that "once we are really busy in the middle
of the season, there is no rotation. ... the
guides are all working and they are working full-bore." He answered
in the affirmative when asked if guides were expected to be available 7 days a
week, 3 shifts a day, during the height of the season. He said that
guides might start at
She also noted the testimony of Mr. Bassett, who fishes in the
[7] The member then turned to the third aspect of the BFOR test — whether OBM had shown it was impossible to accommodate employees sharing Mr. Gordy's characteristics, without undue hardship. It was on this aspect, on which of course the law had changed after the incidents in question, that the Tribunal member found OBM failed. She found that in mid-July, when Mr. Gordy wanted to return to work after his second period of hospitalization:
. . . [t]he only relevant information before the respondent at that time was the content of Dr. Vincent's phone call and his letter. By Mr. Dreger's own evidence, he wanted a guarantee that the Complainant would continue to take his medication and not have a relapse. [para. 161]
The member described as "irrelevant" the observations of Mr. Gordy on June 6 by Mr. Springer, the observations of other guides in early June, and those of Mr. Dreger, to the decision OBM was found to have made in mid-July not to rehire Mr. Gordy. Shortly thereafter, OBM received Dr. Vincent's letter of July 19 expressing his confidence in Mr. Gordy's ability to work safely. However, the Tribunal member said:
. . . Mr. Dreger took no steps to contact either Dr. Vincent or the complainant to discuss accommodating the complaint's return to work. There was no evidence that, in mid-July, Mr. Dreger had any accurate information about bipolar disorder or the likelihood of a relapse on which he could conclude that hiring the Complainant constituted too great a risk.
I find that the Respondent failed to engage in any procedure to assess the issue of accommodation. As in Grismer, supra, the Respondent "offered not so much as a gesture in the direction of accommodation...." I find that the Respondent's refusal to consider whether the Complainant could be accommodated without jeopardizing the Respondent's goal of reasonable safety constitutes discrimination contrary to section 13 of the Code. [paras. 163-4; emphasis added.]
[8] The Tribunal member referred to the testimony of the medical witnesses concerning Mr. Gordy's condition and medication and found that their evidence as a whole did not support OBM's contention that Mr. Gordy "might have a relapse at any time and that such a relapse might come on very suddenly." Both doctors agreed, she said, that there was "generally a build-up to the manic phase which was noticeable to individuals who knew the patient." The fact that neither Dr. Stovel nor Mrs. Gordy had noticed signs of an approaching manic phase in March 1996 was dismissed as probably having been due to other "stressing" factors. In addition, the Tribunal member said, "Had the Complainant been working as a guide at this time, it is likely that other guides, as they did in early June 1995, would have become concerned and taken steps to ensure that the Complainant not go out on the water." (para. 172)
[9] The member next suggested various means of accommodation that could have been considered by OBM:
There were a number of ways the Respondent could have accommodated the Complainant in mid-July 1995. The first step would have been to contact Dr. Vincent and to discuss possible options with him. Dr. Vincent suggested a gradual return to work to assure the Respondent that the Complainant could do the job. Dr. Vincent may have thought it prudent to require that the Complainant not go off on his own with guests for a period of time. This would not have constituted undue hardship to the Respondent as there was evidence that guides often fished with guests in groups and, indeed, that rookie guides were not permitted to go off on their own.
Both doctors testified
that it is important that bipolar individuals are closely monitored. Dr.
Vincent mentioned in his letter to Mr. Dreger his willingness to meet frequently
with the Complainant and his wife and to conduct blood tests. There
was no evidence about the Complainant's living arrangements while he worked at
the Respondent. While Mrs. Gordy lived in
In summary, I find that none of the evidence presented undermines Dr. Vincent's opinion in his letter of July 19 that the Complainant was fit to work as a fishing guide. Dr. Vincent testified he was aware of the duties of a fishing guide and the requirement that they exercise good judgment. There was no statistical evidence that the Complainant was at a high risk of relapsing. In refusing to hire the Complainant because he could not take a chance on him, Mr. Dreger could only have been relying on impressionistic assumptions. [paras. 174-6; emphasis added.]
[10] Here I must confess to some confusion regarding the connection made by the Tribunal member, in this passage and in her Reasons generally, between the finding that there was no reason to doubt Mr. Gordy was fit to return to work on July 19 and the finding that he should have been accommodated in one or more of the ways suggested. If he was fit to work unqualifiedly, no accommodation would have been necessary. The Tribunal member may have meant that Mr. Gordy was in her opinion "fit" to return to work as a guide provided he continued to take his medication, was monitored by someone close to him, and/or worked gradually back into full-time guiding.
[11] Instead of accommodating him in one or more of these ways, OBM was found to have demanded a "guarantee of fitness" for Mr. Gordy that it did not demand from its other guides — this being a reference to the possibility that any person might have a heart attack while out on the water, and that due to their long hours, guides were often exhausted by the end of the summer. The member found that OBM had discriminated against Mr. Gordy contrary to s. 13 and ordered the employer to pay him $5,000 pursuant to s. 37(2)(d)(iii) of the Code for injury to his dignity and self-respect, plus $9,030, being the member's estimate of what Mr. Gordy would have earned, before expenses, during the summer of 1995 had he worked as a guide.
Judicial Review
[12] OBM filed a petition in the Supreme Court of British Columbia seeking to have the Tribunal's decision set aside as "incorrect or patently unreasonable." For Reasons now reported at [2000] B.C.J. No. 2504 (Q.L.), the Chambers judge granted the Petition and quashed the member's decision.
[13] The
Chambers judge began his legal analysis by referring to the applicable standard
of review. He noted the three standards of review
on the continuum described in Baker v.
Considering the foregoing authorities, I am satisfied that on a question of law the test on review is correctness. This question or error of law includes the failure to consider evidence that the law requires to be considered (Canada [(Director of Investigation and Research)] v. Southam [Inc. [1997] 1 S.C.R. 748], para. 41). On a question of mixed fact and law, that is, the applicability of law to fact, the test on review is reasonableness simpliciter. On a question of fact the test on review is patent unreasonableness, requiring that greater deference be paid to the tribunal's decision. [para. 17]
and further:
The level of deference owed to decisions of Human Rights Tribunals has been discussed in a number of authorities. Without a detailed analysis I am satisfied that the level of deference is directly related to the specialized expertise of the tribunal. In Canada v. Mossop, [1993] 1 S.C.R. 554 La Forest J. stated at p. [585] that:
... The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law ....
Consequently, on questions of law alone, in my opinion, the Human Rights Tribunal is not accorded deference. As to questions of mixed law and fact, in the case at bar, it is difficult to understand how the Human Rights Tribunal would have a greater expertise than a trial court who addresses similar law and fact issues on virtually a daily basis. There is little, if any, distinction between a finding of discrimination pursuant to s. 13 of the Code and the finding of wrongful dismissal in a civil suit, in the case at bar. However, as decisions of the Human Rights Tribunal are considered to be remedial in societal terms, the courts continue to defer. [paras. 18-19]
[14] Applying this to the case before him, the Chambers judge concluded that the Tribunal had erred in law in its assumption that OBM had had "no accurate information" about bipolar disorder or the likelihood of relapse on which it could have concluded that employing Mr. Gordy constituted too great a risk. In the Chambers judge's analysis:
In my opinion, the Tribunal
member erred in law by failing to consider the totality of the information or
evidence that
At para. 40, he added that the earlier events known to OBM were "logically probative of the fact in issue, namely the risk analysis that the employer was required to make."
[15] The Chambers judge also referred to Grismer, which he said had decided only the narrow question of whether the Council had erred in holding that a blanket refusal on the part of the Superintendent of Motor Vehicles "without the possibility of individual assessment" constituted discrimination. In the case at bar, in contrast, the Court found that no blanket refusal or policy had been shown and that Mr. Gordy had been individually assessed. Here the issue was a different one — whether the employer had a duty to inquire further or whether it was entitled, "in assessing the significant risk of employing an individual for activity as described in the case at bar, [to] do so on the totality of information it has if the employer's decision is bona fide." On this question, the Chambers judge observed:
Fishing guide activity in Discovery Passage is a hazardous occupation. The treacherous waters involve a considerable hazard to the guide and his or her guests. In the case at bar, the petitioner's decision was directed at an individual who had been assessed in terms of the risk. The employer did not accept the medical assessment and decided not to employ on other, not challenged, evidence of past activity during May and June of 1995. The employer's value judgment may have been incorrect by placing too much emphasis on the events and observations of May and June 1995 in the context of guide activities in respect of the risk element. [para. 30]
[16] At
para. 31 of his Reasons, the Chambers judge noted that in Grismer,
the Court had stated that once the plaintiff's established standard is prima
facie discriminatory, the onus shifts to the employer to prove on a balance
of probabilities "that the discriminatory standard is a bona fide occupational
requirement." In his analysis, Mr. Gordy had failed
to establish that OBM's standard was prima facie discriminatory because it had been conceded that
the standard was rationally connected to OBM's functions
and was imposed bona fide. Thus, the Chambers judge said, the standard
could not be discriminatory within the meaning of s. 13. After re-emphasizing the ratio of
Grismer, he concluded:
Here, the complainant Mr. Gordy had the right to be assessed and was assessed. There was no refusal to permit Gordy to demonstrate that his situation could be accommodated. The discrimination in Grismer was the refusal to permit Grismer to demonstrate his situation could be accommodated. In my opinion, the distinction is significant. Mr. Gordy's individual assessment was not accepted by the employer due to the employer's concern over the risk that existed. The risk was to Mr. Gordy and to the employer's guests. The risk analysis by the employer, based on the totality of the information the employer had, may have been incorrect but in my opinion, it was not discriminatory.
I am satisfied that the Tribunal member erred in law in concluding that the only relevant information before the employer was the content of the doctor's phone call and letter, and erred in law by imposing upon the employer an obligation to further assess Gordy after receipt of Dr. Vincent's letter. In addition, I am satisfied that the Tribunal member's decision was unreasonable in the conclusion that the employer's actions amounted to discrimination within the meaning of s. 13(1). [paras. 36-7]
[17] With respect to the Tribunal's conclusion that OBM had wrongly sought a "guarantee" that Mr. Gordy would not have a relapse and the member's observation that no guide was required to provide a "guarantee" that he would not experience a medical condition such as a heart attack, the Court observed that the member's hypothetical analysis failed to take into consideration the fact OBM knew of the condition which created the risk in this case and took steps to reduce or eliminate it.
On Appeal
[18] In
this court, counsel for the Tribunal filed extensive submissions concerning the
appropriate "standard of review" applicable by the Chambers judge to the Tribunal's
findings. In her submission, the court below erred
in failing to engage expressly in the lengthy analysis indicated by cases such
as Pushpanathan, supra, in which the Supreme Court of Canada
provided a comprehensive description of the factors to be considered in determining
the appropriate standard, or Ross v.
Applying a similar analysis to the present case, I find that s. 21(1) of the Act imports limited privative effect only. The driving considerations for such a determination are the purpose of human rights tribunals and their relative expertise. As I noted in Mossop, the purpose of human rights commissions is multifaceted, in that they serve a general educational role to the government, the public and the courts on matters of human rights, provide for investigation and settlement of human rights complaints and act in an adjudicative capacity to settle particular disputes. The expertise of the tribunals appointed under their aegis is limited to fact-finding and adjudication in human rights matters. In the process of performing its adjudicative function, a human rights tribunal will be called on to apply general legal reasoning and statutory interpretation, matters which are ultimately within the province of the judiciary.
That having been said, I do not think the fact-finding expertise of human rights tribunals should be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make. Here, inquiry into the appropriate standard of review is largely governed by the fact that the administrative law issue raised calls upon this Court to consider whether the finding of discrimination by the Board of Inquiry was beyond its jurisdiction. A finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate. The Board heard considerable evidence relating to the allegation of discrimination and was required to assess the credibility of the witnesses' evidence and draw inferences from the factual evidence presented to it in making a determination as to the existence of discrimination. Given the complexity of the evidentiary inferences made on the basis of the facts before the Board, it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the Board's superior expertise in fact-finding, a conclusion supported by the existence of words importing a limited privative effect into the constituent legislation. [paras. 28-9; emphasis added.]
[19] The Tribunal argued before us that since Ross was decided, Canadian courts may be moving to an even more deferential standard towards human rights tribunals. Thus although counsel for the Tribunal had argued in the court below that the finding of discrimination was subject to a review on a standard of reasonableness simpliciter, she suggested that greater deference may now be appropriate "in human rights matters where the tribunal applies the law to the facts, which in this case is the finding of discrimination." (In this regard, see the decision of this court in Canadian Union of Postal Workers v. Canada Post Corp. (2001) 87 B.C.L.R. (3d) 341, at paras. 13-14; but cf. United Steelworkers of America, Local 7884 v. Fording Coal Ltd. (1999) 179 D.L.R. (4th) 284 (B.C.C.A.), at paras. 43-5.)
[20] It is true the Chambers judge did not engage in the lengthy analysis that now seems to be required in judicial review applications, and that he may have over-simplified the connection between the applicable standard of review and the nature of the question (i.e., whether it is one of fact, or law or mixed fact and law) being addressed by the tribunal in question. However, the law at present seems clear: a human rights body such as the Tribunal must be accorded some deference in its fact-finding role as it relates to determinations of discrimination, even though in this case (unlike Ross) the legislation provides no privative clause. On questions necessitating general legal reasoning and statutory interpretation, on the other hand, on which such tribunals have no particular expertise, the standard is correctness or something approaching it. (See also Canada (Attorney-General) v. Mossop [1993] 1 S.C.R. 554 at 577-8, per Lamer C.J.C. and at 583-5, per LaForest J.)
[21] Counsel
for Mr. Gordy and for the Tribunal also made extensive submissions concerning
the Chambers judge's reasoning concerning "prima facie discrimination". Technically, he was in error. Grismer and Meiorin have made it clear that once Mr. Gordy
proved he had been denied employment because of his mental disability, "prima
facie discrimination" had been shown.
The onus then shifted to OBM to prove that the "standard" (reasonable safety
on the water) imposed by it was a bona fide occupational requirement.
But little, if anything, turns on onus in the circumstances of this case,
and the Chambers judge correctly placed the onus to prove BFOR on the employer. The real question arising on this appeal
is whether the Chambers judge erred in finding that the Tribunal had erred in
law in concluding that
"the only relevant information before the employer was the content of Dr. Vincent's
phone call and letter, and . . . by imposing upon the employer an obligation to
further assess Mr. Gordy after receipt of Dr. Vincent's letter."
[22] The application of the law regarding accommodation presents particular challenges where the disability is not a physical one but a mental one, and the "standard" (which, it bears emphasizing, was accepted by the Tribunal in this case) is not an objectively determinable "test" but is an unchallengeable sine qua non of the employer's activities — safety on the water. This is not a goal for which one strives but which one may fall short of in the ordinary course of events; OBM must ensure that its guests are not only "reasonably safe" but that any material risks of mishaps at sea are eliminated if at all possible. Of course, there is always the chance, where human beings are involved, of a heart attack, but these are truly unforeseeable and therefore differ from episodic disabilities such as bipolar disorder.
[23] However, the focus of the appellant's argument in this court was not so much on the appropriateness of the "standard" as on the chain of events or process which led to what the Tribunal found was OBM's refusal to rehire Mr. Gordy in mid-July 1995. Mr. Gordy's counsel argued strongly that OBM was required as part of its accommodation obligation to investigate Mr. Gordy's disorder, presumably by contacting medical experts of its own or following up with Mr. Gordy's doctors. In Mr. Farvolden's submission, had OBM done so, it would have found that Mr. Gordy could be accommodated — by which counsel means, I believe, that the information would have shown Mr. Gordy could be hired as a guide without any serious concern about a relapse of bipolar disorder, provided he remained on his medication. If I understand his submission, the "accommodation" would have taken the form of some investigation and the taking of some risk — a factor that counsel noted is "no longer at the forefront" of the BFOR analysis — that Mr. Gordy would have a relapse while on the water or again neglect to take his medication as prescribed. Having failed to do this, OBM was said to have made its decision on the basis of myths and stereotypes regarding persons afflicted with bipolar disorder. And, regardless of whether the decision turned out to be justified or not, the fact OBM had proceeded without more information was, in counsel's submission, itself a breach of Mr. Gordy's rights for which liability under the Code could be imposed.
[24] It is true that if, as the Tribunal found (and
we are bound to defer to its findings), OBM refused absolutely to rehire Mr. Gordy,
it made its decision on limited information. However, even according the Tribunal
the deference to which it is entitled, I am not persuaded the Chambers judge erred
in finding the Tribunal erred in law in dismissing as irrelevant the information
OBM did have — its direct experience of Mr. Gordy's behaviour in early June. This was clearly relevant evidence for
any employer entrusted with the physical safety of guests or customers as OBM
was. To suggest that OBM was required
to put this experience of Mr. Gordy out of its mind and that it only acted on
the basis of stereotyping is simply incorrect. Thus I find the Chambers judge correctly
ruled that the Tribunal's decision must be quashed. I would remit the complaint to the Tribunal
for rehearing, however, so that the issue of BFOR may be decided upon all relevant
evidence and on whatever facts may be found by the new adjudicator.
[25] The Tribunal also erred, in my opinion, in awarding to Mr. Gordy the gross amount he would have earned from OBM in the summer of 1995, without taking into account various expenses that Mr. Gordy would have incurred in earning such revenue. The evidence clearly indicates that his net earnings over the summer would have been in the range of $5,000. I see no merit in the argument, which was made on Mr. Gordy's behalf, that OBM should not have the "benefit" of a "credit" for Mr. Gordy's expenses. This approach runs contrary to the principle of compensation mandated by the wording of s. 37(2)(d)(ii) of the Code that a person discriminated against is to be compensated for his actual loss; and imposes an almost punitive measure not sanctioned by the Code or case law.
Additional Comments
[26] In light of the extensive submissions we received,
I also wish to comment on two other aspects of Mr. Gordy's case — one directed at 'process' and one at the merits
of the Tribunal member's ultimate finding. First, it was said that even if OBM had
had extensive medical information regarding bipolar disorder prior to June 1995,
and even if that information had indicated that Mr. Gordy could not be rehired
without jeopardizing guests' safety, then without anything more OBM should still
be found liable under s. 13 of the Code by reason of "failure to investigate". I do not read any of the authorities to
which we were referred as going so far as to impose a "process" of investigation
on an already informed employer. If,
as McLachlin C.J.C. suggested in Grismer (at para. 43) and Meiorin (at 35-6), the question of accommodation
is to be approached with some "common sense", it seems to me that the employer's,
as well as the complainant's, circumstances would have to be considered carefully
in imposing such an obligation. What
is "possible" for one employer — e.g., a government with entire departments and
volumes of information available to it — may not be possible for a private company
that has to make a decision amid operational pressures posed by scheduling, customer
relations, profitability and legal liability. (Certainly the Tribunal member gave no
consideration to whether OBM would have been under a "duty to warn" its guests
of the risks posed by using Mr. Gordy's services.)
Similar considerations bear on the other aspects of accommodation —
whether the employer can in fact fit in a gradual return to work or place the
employee elsewhere, or can actively supervise him or her or "monitor" his or her
medications. These are more subtle
and difficult questions that were overshadowed in this case by the member's assumption
that direct experience could not be considered by OBM in making its decision.
[27] My
second obiter comment relates to the member's substantive conclusions regarding
bipolar disorder itself as illuminated by the medical evidence adduced before
her. The evidence of Mr. Gordy's doctors and the written information on which they
relied, indicated the following:
| 1. | Bipolar I disorder is a "recurrent disorder" which involves manic and/or depressive episodes which are often triggered by stress. Approximately 5-15 percent of individuals with Bipolar I disorder have four or more mood episodes in a given year. This rate of recurrence, Dr. Vincent testified, is cut in half for persons taking Lithium. | |
| 2. | According to the DSM-IV published
by the American Psychiatric Association, although most individuals with Bipolar
I disorder "return to a fully functional level between episodes, some (20%-30%)
continue to display mood lability and interpersonal or occupational difficulties.
Psychotic symptoms may develop after days or weeks in what was previously
a nonpsychotic Manic or Mixed Episode." | |
| 3. | Depressive states may be marked by poor concentration, indecisiveness, current thoughts of death and suicide, irritability, even delusions. Manic states involve inflated self-esteem, racing thoughts, eutonia (increased sense of physical fitness) and delusions of exceptional talent or ability. | |
| 4. | Bipolar disorder can generally be controlled by Lithium but (as Mr. Springer had experienced with a family member), reaching the treatment level that is right for the individual patient takes some time, and approximately one-fifth of Bipolar patients will require a drug other than Lithium. | |
| 5. | Manic or depressive states do not
develop suddenly; they usually develop over a matter of days, as had occurred
with Mr. Gordy in March 1996 when not even Dr. Stoval, who had seen him a few
days earlier, suspected a recurrence. As
well, as Dr. Vincent testified, one of the distinguishing characteristics of the
disorder, at least in the manic phase, is that the patient lacks insight into
the nature of his condition. Mr. Gordy agreed this was a feature of
his manic phases. | |
| 6. | Mr. Gordy had chosen to go off his
medication prior to the June episode and there was a risk he might do so again.
As earlier mentioned, Dr. Vincent advised Mr. Gordy's
insurer at sometime in mid-July Mr. Gordy had been "clearly unable to work due
to his manic episode, from the beginning of May to the current time when I last
saw him on | |
| 7. | Dr. Stoval advised Mr. Gordy's disability insurer on September 26, 1995 that his
patient was not even then able to return to full-time employment and that "Patients
with manic illness often take 6 to 12 months to recover to the point where they
are able to resume gainful employment." Further, the doctor wrote, "I suspect
that his illness will be quite well controlled within the next six months." Some months later, in January 1996, he
advised the insurer that Mr. Gordy was "not able to work currently". In August 1996, he advised that Mr. Gordy's
"current symptoms and restrictions significantly restrict the patient from performing
the duties of his regular occupation or any other occupation." |
[28] The
Tribunal member had all of this evidence before her and concluded that "none of
the evidence presented at the hearing cast any doubt on the soundness of Dr. Vincent's
July 19 letter to [OBM] that [Mr. Gordy] was fit to return to work." (para. 173) In my view, this conclusion, stated unqualifiedly
as it was, was unreasonable. The member suggested
elsewhere (para. 176) that there was not a "high risk" that Mr. Gordy
would relapse — apparently acknowledging there was some risk.
The additional medical information bears out that
risk, and would have justified OBM's concern about rehiring
Mr. Gordy as a full-time fishing guide in mid-July 1995 in the waters around
[29] I would allow the appeal to the extent of remitting Mr. Gordy's complaint to the Tribunal for rehearing.
[30] Counsel have agreed among themselves that the parties are to bear their own costs of the appeal.
“The
Honourable Madam Justice Newbury”
Reasons for Judgment of the Honourable Madam Justice Saunders:
[31] I have had the privilege of reading the draft reasons for judgment of Madam Justice Newbury. I agree with her conclusion that the Human Rights Tribunal erred in failing to take into account the information that Oak Bay Marina Ltd. had concerning Mr. Gordy's behaviours prior to his hospitalization on June 6, 1995, in the context of its operational, and I would add, legal, requirements relating to safe scheduling and operation of vessels in these hazardous waters. It is simply unrealistic to say that Oak Bay Marina could not rely upon, and by implication should have disregarded, the direct information it had concerning Mr. Gordy's malady.
[32] I further agree with the comments of Madam Justice Newbury on the other issues, and would add that it appears that inadequate attention may have been given by the Tribunal to the substantial body of medical evidence adduced relating to risk.
[33] The Human Rights Code, R.S.B.C. 1996, c. 210 is, as my colleague observes, applicable to both public and private employers, large and small. Some employers have considerable internal resources and some have only the business and practical acumen acquired in a life time. Given the breadth of the legislation's application and its intimate effect upon the essential operations of the workplace, it is important, in my view, to acknowledge that the legislation does not require that issues be referred to professional experts, not always readily accessible in this vast province. Where, as here, a decision may be based upon personal observation and a general understanding of attendant risks, I would not preclude the decision maker from supporting its view of the risks with after-acquired knowledge, to the extent it may be able to do so. This necessarily means that mere failure to investigate is not, itself, a breach of the legislation, although clearly an employer who seeks more comprehensive knowledge when faced with a decision is less likely to base a decision upon unsupportable impressions.
[34] The value of human rights legislation is great and the courts accord more than usual deference to decisions of human rights tribunals. Human rights legislation, however, fits within the entire legal framework within which enterprises must function. That framework includes other standards that also reflect deep values of the community such as those established by workers' compensation legislation prohibiting an employer from placing an employee in a situation of undue risk, and the standards of the law of negligence, for example the standard that applies to Oak Bay Marina Ltd. for its clients. Even as full adherence must be given to the standards of human rights, a human rights tribunal must be mindful of the fuller legal framework regulating an enterprise when it assesses the occupational requirements asserted by that enterprise, and decide in a fashion harmonious with that framework in order not to force non-compliance with some legal obligations in exchange for compliance with the human rights legislation.
[35] As the Tribunal here, in my view, too narrowly circumscribed the evidence it considered, and perhaps failed to consider the fuller applicable legal framework in deciding whether Oak Bay Marina Ltd. had established a bona fide occupational requirement, I too would remit this matter to the Tribunal as proposed by my colleague.
“The
Honourable Madam Justice Saunders”
Reasons for Judgment of the Honourable Mr. Justice Hall:
[36] I have read in draft the Reasons of my colleagues, Madam Justice Newbury and Madam Justice Saunders, and I am in agreement with the Reasons of both. I too would remit this matter to the Tribunal as proposed by Madam Justice Newbury.
“The
Honourable Mr. Justice Hall”