Judgments

[1994] 3 .F.C. 261

A-404-93

Betty MacNeill (Respondent) (Applicant)

v.

Attorney General of Canada (Appellant) (Respondent)

Indexed as: MacNeill v. Canada (Attorney General) (C.A.)

Court of Appeal, Hugessen, Desjardins and Robertson JJ.A.—Ottawa, March 29 and May 3, 1994.

Human rights — PSC Appeal Board upholding deputy head’s recommendation to release Public Service employee incapable of performing duties due to job-related injury — Whether application of Public Service Employment Act, s. 31 “release” provisions discriminatory within meaning of Canadian Human Rights Act (CHRA) — Whether application of CHRA within Board’s jurisdiction.

Public Service — Jurisdiction — Deputy head recommending release of employee incapable of performing duties due to job-related injury — PSC Appeal Board upholding recommendation — Whether application of Canadian Human Rights Act (CHRA) within Board’s jurisdiction — Whether application of Public Service Employment Act, s. 31 “release” provisions discriminatory within meaning of CHRA.

The respondent MacNeill, a Public Service employee, became disabled as a result of a work-related injury. The deputy head of the department recommended her release pursuant to subsection 31(1) of the Public Service Employment Act (PSEA) because she was incapable of performing her duties. She appealed that recommendation to an Appeal Board, invoking the Canadian Human Rights Act (CHRA). It dismissed her appeal on the grounds that the release of an employee who is admittedly incapable of performing his or her duties cannot be discriminatory and that in any event the Board did not have jurisdiction to enter into the question as to whether the recommendation to release her was contrary to the CHRA. Her application for judicial review of that decision was allowed by the Trial Division. The Trial Judge found that an Appeal Board, in adjudicating an appeal under section 31 of the PSEA, was bound to apply the employment provisions of the CHRA. He also found that since there had been discrimination in refusing to continue to employ the respondent on the ground of her disability, the deputy head was duty bound to attempt bona fide to accommodate the applicant in keeping a job so as to avoid running afoul of section 7 of the CHRA and that it was incumbent upon the Appeal Board to examine whether the employer had done so. This was an appeal from that decision.

Held (Hugessen J.A. dissenting), the appeal should be allowed.

Per Desjardins J.A.: The issue was whether section 31 of the PSEA was inconsistent with the CHRA and whether it had been modified or repealed in any way by the CHRA. Section 7 of the CHRA prohibited discrimination on the grounds of disability. Disability and incapacity are interrelated, perhaps even synonymous. So section 31 of the PSEA, as applied herein, was a case of direct discrimination. However, as applied to this case, section 31 of the PSEA contained within itself the statement of a BFOR which was perfectly compatible with the CHRA. It prescribed that the physical capability be related to the performance of the duties of the position. It mirrored perfectly paragraph 15(a) of the CHRA with respect to a BFOR. There was, therefore, no duty to accommodate on the part of the employer. Section 31 was neither inconsistent nor incompatible with the CHRA, nor modified by it. The powers of the Appeal Board remained therefore unchanged.

Per Robertson J.A. (concurring in the result): The Appeal Board did not have the power to interpret and apply the employment-related provisions of the CHRA. The Appeal Board was a statutory body with no inherent jurisdiction. It could decide a matter only if Parliament has expressly or impliedly conferred on it power over the parties, the subject-matter and the remedy. The subject-matter before the Appeal Board here was the interpretation and application of the employment-related provisions of the CHRA when adjudicating on a deputy head’s recommendation formulated under section 31 of the PSEA. In cases of indirect discrimination, this would include a legal determination regarding the limits of accommodation and undue hardship. Unquestionably, such matters were beyond the express terms of the PSEA.

The deputy head’s recommendation to release may be appealed to the Appeal Board, which can either allow or dismiss the appeal. These two options exhaust the Appeal Board’s mandate. No PSEA provision expressly authorizes the Appeal Board to provide the accommodation remedy the respondent sought. Nor was there any provision in the PSEA which impliedly conferred jurisdiction on the Appeal Board to apply the CHRA.

The CHRA and its judicial interpretation did not constitute “legal directions” within the meaning of Ahmad v. Public Service Commission which the Appeal Board had to apply in order to fulfil its statutory mandate under section 31. The reasoning of this Court in Ahmad did not extend the jurisdiction of the Appeal Board beyond its legislated mandate.

The thrust of the respondent’s case was that the Appeal Board should have the power to apply the CHRA as a matter of policy. Pursuing the matter before the Human Rights Commission might cause lengthy delays. The inefficiency of the system cannot of itself confer jurisdiction upon a tribunal which is not expressly or impliedly authorized by Parliament. Furthermore, a Human Rights Tribunal has much broader powers to receive and call evidence than the Appeal Board.

Per Hugessen J.A. (dissenting): The main issue concerned the jurisdiction of the Appeal Board to entertain submissions and make inquiry regarding the deputy head’s recommendation for release in the light of the employer’s obligations under the CHRA.

The application of section 31 to a person who was incapable of performing the duties of his or her position by reason of disability was a classic case of indirect or “adverse effect” discrimination. It was no answer to a claim of adverse effect discrimination to say that the rule was being properly applied, for the rule itself was not in issue in such a case. The question under the CHRA was not whether the respondent was incapable but whether she was losing her employment by reason of her disability, and if so, whether the employer had fulfilled its duty to attempt to accommodate her.

Courts have often treated rules adopted under the authority of other statutes as having been implicitly modified or even repealed by Human Rights legislation. The Appeal Board’s jurisdiction to entertain submissions on the question of compliance with the CHRA did not imply or require an extension of its powers to grant remedies. In the case of Ahmad v. Public Service Commission, it was stated that the Appeal Board had the power to decide that a deputy head’s recommendation should not be acted upon where there was a “failure to apply properly some specific statutory or other legal direction.” Thus, an alleged breach by the employer of one of the provisions of the CHRA governing its relations with its employees constituted a failure to apply a statutory direction. Moreover, if such breach occurred as part of the process leading to a recommendation to release an employee, it was within the cognizance of an appeal board established under section 31. Therefore, the Appeal Board improperly declined to entertain the submissions based upon the employer’s alleged breach of the CHRA.

However, the Appeal Board’s power was limited to allowing or dismissing the appeal. It could grant no other remedy.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3, 7, 15(a), 25, 41, 50(2), 66.

Labour Relations Act, R.S.O. 1980, c. 228, ss. 106, 124.

Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 5(d), 10 (as am. by S.C. 1992, c. 54, s. 10), 12 (as am. idem, s. 11), 21 (as am. idem, s. 16), 31.

CASES JUDICIALLY CONSIDERED

CONSIDERED:

Ahmad v. Public Service Commission, [1974] 2 F.C. 644; (1974), 51 D.L.R. (3d) 470; 6 N.R. 287 (C.A.); Clare v. Canada (Attorney General), [1993] 1 F.C. 641; (1993), 100 D.L.R. (4th) 400; 93 CLLC 14,025; 149 N.R. 303 (C.A.); Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; (1990), 111 A.R. 241; 72 D.L.R. (4th) 417; [1990] 6 W.W.R. 193; 76 Alta. L.R. (2d) 97; 12 C.H.R.R. D/417; 90 CLLC 17,025; 113 N.R. 161; Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241; Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14; 82 CLLC 17,005; 40 N.R. 159; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790.

REFERRED TO:

R. v. Larsen, [1981] 2 F.C. 199; (1980), 117 D.L.R. (3d) 377 (C.A.); Attorney General of Canada v. Loiselle, [1981] 2 F.C. 203 (C.A.); Winnipeg School Division No. 1 v. Craton et al., [1985] 2 S.C.R. 150; (1985), 21 D.L.R. (4th) 1; [1985] 6 W.W.R. 166; 38 Man. R. (2d) 1; 15 Admin. L.R. 177; 8 C.C.E.L. 105; 85 CLLC 17,020; 61 N.R. 241; Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; (1988), 53 D.L.R. (4th) 29; 23 C.C.E.L. 15; 9 C.H.R.R. D/5359; 88 CLLC 17,024; 88 N.R. 150 (C.A.); Niles v. Canadian National Railway Co. (1992), 94 D.L.R. (4th) 33; 92 CLLC 17,031; 142 N.R. 188 (F.C.A.); Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; (1988), 53 D.L.R. (4th) 609; 10 C.H.R.R. D/5515; 88 CLLC 17,031; Canada (Attorney General) v. Vincer, [1988] 1 F.C. 714; (1987), 46 D.L.R. (4th) 165; 82 N.R. 352 (C.A.); Canada (Attorney General) v. Viola, [1991] 1 F.C. 373; (1990), 123 N.R. 83 (C.A.); Pitawanakwat v. Canada (Canadian Human Rights Commission) (1987), 9 C.H.R.R. D/4825; 125 N.R. 237 (F.C.A.); Burke v. Canada (Canadian Human Rights Commission) (1987), 9 C.H.R.R. D/4824; 125 N.R. 239 (F.C.A.); Dansereau v. Canada (Public Service Appeal Board), [1991] 1 F.C. 444; (1990), 91 CLLC 14,010; 122 N.R. 122 (C.A.); Canada (Minister of National Defence) v. Mongrain, [1992] 1 F.C. 472; (1991), 135 N.R. 125 (C.A.); Wardair Canada Inc. v. Cremona and Canadian Human Rights Commission (1992), 146 N.R. 69 (F.C.A.); Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; (1982), 137 D.L.R. (3d) 219; [1983] 1 W.W.R. 137; 39 B.C.L.R. 145; 82 CLLC 17,014; [1982] I.L.R. 1-1555; 43 N.R. 168; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; (1992), 9 O.R. (3d) 224; 93 D.L.R. (4th) 346; 138 N.R. 1; 55 O.A.C. 81; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; [1992] 6 W.W.R. 193; (1992), 71 B.C.L.R. (2d) 145; 13 B.C.A.C. 245; 141 N.R. 185.

AUTHORS CITED

Robert, Paul. Dictionnaire alphabétique et analogique de la langue française (Le Petit Robert), Paris: Le Robert, 1987.

Shorter Oxford English Dictionary, Oxford: Clarendon Press, 1993.

APPEAL against a judgment of the Trial Division ([1993] 3 F.C. 575; (1993), 93 CLLC 17,021; 64 F.T.R. 41) allowing an application for judicial review of a decision of a Public Service Appeal Board (MacNeill v. Department of Veterans Affairs (1992), 12 ABD 279) dismissing an appeal, on the ground that it lacked jurisdiction to apply the employment-related provisions of the Canadian Human Rights Act in adjudicating an appeal against the recommendation of deputy head to release the respondent on the ground that she had become incapable of performing her duties even though this was the result of a work-related injury. Appeal allowed.

COUNSEL:

Brian J. Saunders for appellant (respondent).

Andrew J. Raven for respondent (applicant).

SOLICITORS:

Deputy Attorney General of Canada for appellant (respondent).

Raven, Jewitt & Allen, Ottawa, for respondent (applicant).

The following are the reasons for judgment rendered in English by

Hugessen J.A. (dissenting): This is an appeal against a judgment of the Trial Division [[1993] 3 F.C. 575] allowing an application for judicial review against a decision of an Appeal Board [(1992), 12 ABD 279] appointed pursuant to section 31 of the Public Service Employment Act.[1] At the relevant time that section read as follows:

31. (1) Where an employee, in the opinion of the deputy head, is incompetent in performing the duties of the position the employee occupies or is incapable of performing those duties and should be appointed to a position at a lower maximum rate of pay, or released, the deputy head may recommend to the Commission that the employee be so appointed or released, in which case the deputy head shall give notice in writing to the employee of the recommendation.

(2) Within such period after receiving a notice under subsection (1) as the Commission prescribes, the employee may appeal against the recommendation of the deputy head to a board established by the Commission to conduct an inquiry at which the employee and the deputy head, or their representatives, shall be given an opportunity to be heard.

(3) The Commission, on being notified of the decision of the board on the inquiry into a recommendation conducted pursuant to subsection (2), shall, in accordance with the decision,

(a) notify the deputy head concerned that the recommendation will not be acted on; or

(b) appoint the employee to a position at a lower maximum rate of pay, or release the employee.

(4) If no appeal is made against a recommendation of a deputy head under subsection (1), the Commission may take such action with regard to the recommendation as the Commission sees fit.

(5) The Commission may release an employee pursuant to a recommendation under this section and the employee thereupon ceases to be an employee.

The respondent, Betty MacNeill, is a long time member of the Public Service. As a result of a work-related injury, she became disabled. It is common ground that she is now incapable of performing the duties of the position to which she was appointed in the Public Service and that this incapacity flows from the above injury.

The deputy head recommended Ms. MacNeill’s release pursuant to subsection 31(1) because she was incapable of performing her duties. She appealed that recommendation to an Appeal Board established pursuant to subsection 31(2). It was her position before the Appeal Board that the employer was in fact proposing to refuse to continue to employ her on the ground of her physical disability contrary to section 7 and subsection 3(1) of the Canadian Human Rights Act (hereinafter CHRA).[2]

Accordingly, Ms. MacNeill maintained, the employer’s right to release her was subject to the “duty to accommodate” and it had failed in this duty.

The Appeal Board dismissed the appeal on the grounds that the release of an employee who is admittedly incapable of performing his or her duties cannot be discriminatory and that in any event the Board did not have the jurisdiction to enter into the question as to whether the recommendation to release her was contrary to the CHRA. The Board refused to inquire into whether the employer had any duty to accommodate and into what the content of such duty might be in the circumstances. It said [at pages 300-301]:

While I think there can be no doubt that the Canadian Human Rights Act is of a nature such as to give it status beyond that of ordinary legislation, that in itself does not lead me to the conclusion that I must temper my inherited understanding of section 31 of the Public Service Employment Act in the manner suggested to me.

Furthermore, and in any event, I am unable to find in the extensive evidence before me basis for holding that the Department has acted either in bad faith or in such a manner as to discriminate against the appellant (as discrimination would be understood within the context of the Canadian Human Rights Act) in arriving at its conclusion that Miss MacNeill is incapable of carrying out the duties of her position, and has been for some time and indeed continues to be. It seems to me that no charge of discrimination—with respect to the recommendation for release itself—can withstand scrutiny because both the appellant herself and her representative were in agreement that the fact of the matter was that Miss MacNeill is certainly unable to carry out the duties of the position to which she was earlier appointed and from which her release on the grounds of such incapacity was now being recommended.

I cannot then see the present recommendation as open to the characterization of discriminatory given the option available to the Department per section 31. It seems to me that a recommendation under this section cannot be perceived as discriminatory when all parties are in clear agreement that Miss MacNeill is unable to carry out the duties involved, particularly when it is borne in mind that the pervasive tenor of the Public Service Employment Act is appointment and promotion based upon merit.

An appeal board appointed in response to an appeal being brought, under section 31 of the Public Service Employment Act, against a recommendation for release such as the instant one has not the scope to entertain outcomes beyond either upholding or rejecting the recommendation following an inquiry into the matter. In judgements such as Weyer, The Queen v. St-Hilaire, Loiselle and Larsen (all cited above), the Federal Court of Appeal has been unequivocal on this issue. In other words, whether or not Miss MacNeill might—for instance—have reasonably been placed in another job, the duties of which she might better have been able to undertake, is not a possibility that I am free to consider in weighing whether or not the instant recommendation should be acted upon.

This leads me to the second thread of argument interwoven by Mr. MacDonald into his case fabric. Whether or not Miss MacNeill has been discriminated against as that discrimination would be understood under the auspices of the Canadian Human Rights Act is something not within my jurisdiction to consider. It may be, as Mr. MacDonald seems earnestly to believe, that the appellant has been—in some significant sense of the term—discriminated against by one or other of the Department’s actions. Whether that has in fact occurred is something for someone else to adjudge in another arena. An avenue might be that apparently travelled in the Boucher decision of a Canadian Human Rights Tribunal that Mr. MacDonald drew to my attention. I cannot, of course, presume to predict what such a tribunal might say faced with some or all of the present evidence, but I mention the matter simply to suggest that further avenues of redress may well be available to the appellant.

From the foregoing it is apparent that I cannot agree with Mr. MacDonald’s contention than an Appeal Board must intervene against what he would want me to perceive as discrimination in the application of section 31 of the Public Service Employment Act. While it may well be accurate to characterize the Canadian Human Rights Act as other than ordinary legislation, such characterization fails in my respectful opinion to lead me to the view that a recommendation brought under section 31—and one for which all parties involved would appear to agree with the underlying substantive rationale—must be rejected simply because aspects of the department’s behaviour might conceivably be tarred with the brush of discrimination as that might be understood in an action brought under the provisions of the Canadian Human Rights Act . [Emphasis added.]

Ms. MacNeill’s application for judicial review was, as I have indicated, accepted by the Trial Division. The Judge was of the view that the Appeal Board had the requisite jurisdiction. He said [at page 604]:

The function of the Board on appeal is to review the deputy head’s conduct leading to, and in, the recommendation to release the applicant, to determine whether it be lawful conduct in formulating a lawful proper recommendation. Had the Board member only assessed the evidence of what appears to be some effort by the deputy head to accommodate the physically incapable applicant pursuant to the CHRA’s requirements, then this Court would probably be dismissing this application. Instead, the Board rejected the applicant’s proper invitation to do that. In such rejection resides a reviewable error.

It seems that the respondent’s view is that the Act and the CHRA exist and operate in two hermetically sealed, water-tight compartments, as if two solitudes. What clearly connects their existence and operation are the fact that those who carry out the administration and functions of the Public Service Employment Act are bound, like their royal patron by the provisions—especially the employment provisions—of the Canadian Human Rights Act .

The principal question raised by this appeal has to do with the jurisdiction of the Appeal Board to entertain submissions and make inquiry regarding the deputy head’s recommendation for release in the light of the employer’s obligations under the CHRA.

While it is common ground that the employer is subject to the provisions of the CHRA, there is also an underlying disagreement between the parties as to whether the application of the “release” provisions of section 31 of the Public Service Employment Act, supra is in itself capable of constituting a discriminatory practice within the meaning of the CHRA. As indicated, the Board found it was not. Since a negative answer to that question would render the principal question moot, and since in any event an understanding of the nature of the alleged discrimination is helpful to a discussion of the powers of the Appeal Board, I think it is convenient to deal with that issue first.

In my view, the application of section 31 to a person who is incapable of performing the duties of their position by reason of disability is a classic case of indirect or “adverse effect” discrimination. That type of discrimination was described in the seminal case of Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al. (the O’Malley case)[3] by McIntyre J. as follows (at page 551):

A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, “No Catholics or no women or no blacks employed here.” There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code I am of the opinion that this Court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply. [Emphasis added.]

That definition was further refined by Wilson J. in Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (at pages 514-515):[4]

Where a rule discriminates on its face on a prohibited ground of discrimination, it follows that it must rely for its justification on the validity of its application to all members of the group affected by it. There can be no duty to accommodate individual members of that group within the justificatory test because, as McIntyre J. pointed out, that would undermine the rationale of the defence. Either it is valid to make a rule that generalizes about members of a group or it is not. By their very nature rules that discriminate directly impose a burden on all persons who fall within them. If they can be justified at all, they must be justified in their general application. That is why the rule must be struck down if the employer fails to establish the BFOQ. This is distinguishable from a rule that is neutral on its face but has an adverse effect on certain members of the group to whom it applies. In such a case the group of people who are adversely affected by it is always smaller than the group to which the rule applies. On the facts of many cases the “group” adversely affected may comprise a minority of one, namely the complainant. In these situations the rule is upheld so that it will apply to everyone except persons on whom it has a discriminatory impact, provided the employer can accommodate them without undue hardship. [Emphasis added.]

As I understand the distinction, a rule is said to be directly discriminatory if its application will always result in discrimination on a prohibited ground: everyone to whom the rule applies is in one of the categories which the law seeks to protect. A rule is indirectly discriminatory if only some of its applications produce a discriminatory adverse effect on a prohibited ground.

Section 31 is on its face entirely neutral. It embodies the simple common sense rule that an employee must be capable of performing at least the minimum requirements of his or her position. The employer may “release”, i.e. refuse to continue to employ, a person who is incapable of doing the duties for which they were hired. But incapacity is not synonymous with disability for it may have any number of causes unrelated to physical or mental conditions. The employee may be imprisoned or physically detained. He or she may have lost some professional license or qualification which is a prerequisite to the performance of the duties of the position (e.g. a truck driver being disqualified from driving, a lawyer failing to maintain membership at the Bar). So the rule does not discriminate directly. But where the cause of the employee’s incapacity itself constitutes a prohibited ground of discrimination, as it does in the case of disability, the rule will have a discriminatory adverse effect on the employee in question. The employer is refusing to continue to employ that person on the ground of that person’s disability.

Thus, in Canada (Minister of National Defence) v. Mongrain,[5] this Court had to deal with an apparently neutral rule which was very similar to that found in subsection 31(1): the employer required the employee to be available for work. However, the application of that apparently neutral and common sense rule to a pregnant employee who was otherwise entitled to unpaid maternity leave was found to result in adverse effect discrimination on the ground of sex.

Furthermore, it is no answer to a claim of adverse effect discrimination to say that the rule is being properly applied, for the rule itself is not in issue in such a case. By definition a neutral employment rule is capable of being applied to some employees without discriminatory effect. But when the proper application of the rule produces an adverse impact on certain persons or groups whom Parliament has deemed in need of special protection it will be judged discriminatory and will trigger a duty on the part of the employer to attempt to accommodate the protected person or group.[6]

Thus, Ms. MacNeill’s admission that she is incapable of performing the duties of her position does not, as the Appeal Board seems to have thought, prevent her from being a victim of a discriminatory refusal to continue to employ her. The question under the CHRA is not whether she is incapable but whether she is losing her employment by reason of her disability, and if so, whether the employer has fulfilled its duty to attempt to accommodate her. The law does not require that employers hire or continue to employ persons who are or have become disabled; it does, however, oblige them to examine whether an appropriate and not unduly burdensome change in the work environment would allow such persons to do, or to continue doing, their job. In the context of the present case one possible way of accommodating Ms. MacNeill might be by trying to find her alternative employment which she is capable of doing. As indicated, the Appeal Board refused even to look at the question.

This brings me to the principal question for decision outlined above. Does the Board have the jurisdiction to entertain a submission that the employer’s recommendation for release is made in contravention of its obligations under the CHRA?

At the outset, I would observe that examples are not wanting in recent case law of courts treating rules which have been adopted in or under the authority of other statutes as having being implicitly modified or even repealed by Human Rights legislation: see Insurance Corporation of British Columbia v. Heerspink et al.;[7] Canada (Attorney General) v. Druken;[8] Zurich Insurance Co. v. Ontario (Human Rights Commission).[9] This is hardly surprising given the acknowledged primacy of the Human Rights legislation and the stated intention of the CHRA to “extend” the laws of Canada in order to proscribe discriminatory practices. While that fact does not in itself enlarge the powers of appeal boards constituted under the Public Service Employment Act, it is an important part of the context within which that question must be studied.

I would further note that the question raised on this appeal is solely as to the Appeal Board’s jurisdiction to entertain submissions on the question of compliance with the CHRA. Such a jurisdiction does not imply or require an extension of the Appeal Board’s powers to grant remedies. The CHRA contains its own remedial mechanisms and there is nothing in the statute which suggests an expansion of the power of a purely domestic tribunal such as the Appeal Board so as to enable it to do the kinds of things that a Human Rights Tribunal is authorized to do.

The leading decision on the scope of an Appeal Board’s inquiry is the case of Ahmad v. Public Service Commission[10] where Jackett C.J. said (at pages 646-647):

Whether or not a person is competent or incompetent for a post is a matter of opinion, and, in the absence of any special legal direction, all that the law can imply with regard thereto is that it must be honestly formed, and that it must, in the first instance at least, be based upon the observation, by those under whom he works, of the manner in which the person whose competence is in question carries out his duties. In particular circumstances, rough and ready rules of thumb may be adopted by such persons as an aid to the formation of the required opinion; but, in my view, in the absence of

(a) some failure to apply properly some specific statutory or other legal direction, or

(b) proof of bad faith on the part of those whose observations and judgment are in question,

a board of review established under section 31 would not be justified in deciding that a deputy head’s recommendation should not be acted upon unless it had before it material that satisfied it, as a matter of fact, that the deputy head was wrong in forming the opinion that the person in question was “incompetent in performing the duties of the position he occupies.”

Ahmad was, of course, a case of release for incompetence rather than incapacity but, in my view, the reference to “failure to apply properly some specific statutory or other legal direction” is virtually determinative of the issue in this case. Clearly, the Appeal Board has the power to determine whether the Public Service Employment Act itself has been complied with. Indeed, one of the Board’s principal concerns (and this is the case with boards established under section 21 [as am. by S.C. 1992, c. 54, s. 16] as well) is respect for the merit principle enshrined in section 10 [as am. idem, s. 10]. As we have seen, however, the CHRA “extends” and implicitly amends the Public Service Employment Act. Thus, an alleged breach by the employer of one of the provisions of the CHRA governing its relations with its employees constitutes a failure to apply a statutory direction. Moreover, if such breach occurs as part of the process leading to a recommendation to release an employee, it is within the cognizance of an appeal board established under section 31.

The dispositions which an appeal board may make on an appeal under section 31 are restricted to allowing or dismissing the appeal. That was laid down by this Court in the decision in R. v. Larsen.[11] The following passage from the reasons of Pratte J.A., at pages 201-202, is taken from the French text (the original) since the English translation is at best ambiguous and at worst misleading*:

La dernière phrase du paragraphe 31(3) réfère de façon indirecte aux décisions qu’un Comité d’appel est habilité à prendre:

La Commission doit, après avoir été informée de la décision du comité par suite de l’enquête,

a) avertir le sous-chef en cause qu’il ne sera pas donné suite à sa recommandation, ou

b) nommer l’employé à un poste avec un traitement maximum inférieur ou le renvoyer,

selon ce qu’a décidé le comité.

En l’espèce, l’auteur de la décision attaquée a interprété ce texte comme lui conférant le pouvoir de rendre l’une ou l’autre de trois décisions:

1. ordonner qu’on ne donne pas suite à la recommandation,

2. ordonner qu’on nomme l’employé à un autre poste, ou

3. ordonner que l’employé soit renvoyé.

Cette interprétation ne doit pas, à mon avis, être retenue. La dernière phrase du paragraphe 31(3) ne décrit pas les décisions qu’un Comité peut rendre; elle prescrit plutôt ce que doit faire la Commission suite à la décision du Comité. Or, cette décision peut soit faire droit à l’appel, soit le rejeter. C’est à ces deux hypothèses que réfèrent les alinéas 31(3)a) et b). Si le Comité fait droit à l’appel, la Commission doit, suivant l’alinéa a), “avertir le sous-chef en cause qu’il ne sera pas donné suite à sa recommandation”; si le Comité rejette l’appel, la Commission doit alors, comme le dit l’alinéa b), donner suite à la recommandation faite par le sous-chef soit en renvoyant l’employé, soit en le nommant à un poste inférieur selon la nature de la recommandation. [Emphasis added.]

Accordingly, if an appeal board comes to the conclusion that to give effect to a recommendation for release would be contrary to the employer’s obligations under the CHRA, it has no option but to allow the appeal. It can grant no other remedy. In particular, it cannot order the employer to make specific changes in the work environment or to offer the employee a different job. In my view, however, and contrary to the opinion expressed by the Appeal Board in the present case, supra, the fact that it cannot “entertain outcomes beyond either upholding or rejecting the recommendation” does not restrict the scope of the inquiry which the Board is required to make. That inquiry, as indicated, extends to any alleged breach of the employer’s statutory employment obligations which may be relevant to the recommendation to release. If the Appeal Board finds such a breach to have occurred the recommendation should not be given effect to.

Such a result also seems to me to be consistent with the general scheme of the CHRA which clearly favours potential complainants exhausting whatever other remedies may be available to them:

41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of the complaint it appears to the Commission that

(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act.

This is particularly appropriate in the case of an appeal board constituted under section 31 of the Public Service Employment Act since its intervention necessarily occurs prior to any definitive action being taken on the part of the employer. Thus, if the board finds that a breach of the CHRA would occur if effect were given to the recommendation for release it will allow the appeal and no such breach will take place. However, if the appeal board should come to the opposite conclusion, that would still not forclose or prevent the employee from making a complaint to the Canadian Human Rights Commission and in due course bringing the matter before a Canadian Human Rights Tribunal. The appeal board has a limited jurisdiction and power of inquiry; it cannot, for example, subpoena witnesses. On the other hand, the procedure is simple and will, in many cases, be capable of providing adequate relief. Only where it fails to do so will it be necessary to have recourse to the more formal proceedings before a Tribunal whose powers of inquiry are far more vast and whose remedial dispositions are far more extensive.

I conclude, as did the Trial Judge, that the Appeal Board improperly declined to entertain the submissions based upon the employer’s alleged breach of the CHRA.

I would accordingly dismiss the appeal with costs.

* * *

The following are the reasons for judgment rendered in English by

Desjardins J.A.: This is an appeal from a judgment of the Trial Division where the key issue to be decided is whether a Public Service Appeal Board established under section 31 of the Public Service Employment Act[12] (PSEA) has jurisdiction to apply the employment related provisions of the Canadian Human Rights Act[13] (CHRA) when it is called upon to adjudicate the appeal of a recommendation made by a deputy head.

The respondent has become physically incapable of fulfilling the duties in her position as Payment Support Clerk (CR-03) in the Department of Veterans Affairs, Charlottetown, P.E.I. following a sprain to neck, upper back, shoulder and side while at work sometime in April 1989. After extended sick leave and unsuccessful reassignments to positions with lighter responsabilities, the employer and the respondent agreed in April 1992, that most if not all, positions in the Department requested the use of the same muscles as the position she was occupying.[14] In May of 1992, the respondent was informed of the fact that the Department was proceeding with a recommendation for her release under section 31 of the PSEA since it had been determined that she was unable of carrying out the duties of her position. The respondent, who had been employed by the same employer for a period of over seventeen years, appealed the recommendation.

On the basis of the admission made by the respondent that she was physically incapable of carrying out most, if not all, of the duties of her position, the Board upheld the recommendation. It was satisfied that, in recommending the release of the employee, the Department had not acted in bad faith and also that it had not acted in such a manner as to discriminate against the appellant (as discrimination would be understood within the context of the CHRA). The Board, however, made this clear statement with regard to its jurisdiction:[15]

Whether or not Miss MacNeill has been discriminated against as that discrimination would be understood under the auspices of the Canadian Human Rights Act is something not within my jurisdiction to consider. It may be, as Mr. MacDonald seems earnestly to believe, that the appellant has been—in some significant sense of the term—discriminated against by one or other of the Department’s actions. Whether that has in fact occurred is something for someone else to adjuge in another arena.

It is this very question of jurisdiction which, on judicial review, was seen by the Trial Judge to be an error on the part of the Board. He was of the view that the CHRA had modified the PSEA and that the Appeal Board was bound to apply it. He said the following:[16]

The function of the Board on appeal is to review the deputy head’s conduct leading to, and in, the recommendation to release the applicant, to determine whether it be lawful conduct in formulating a lawful proper recommendation. Had the Board member only assessed the evidence of what appears to be some effort by the deputy head to accommodate the physically incapable applicant pursuant to the CHRA’s requirements, then this Court would probably be dismissing this application. Instead, the Board rejected the applicant’s proper invitation to do that. In such rejection resides a reviewable error. [My emphasis.]

Being of the view that the physical capacities to do a job constituted a bona fide occupational requirement (BFOR), he concluded, after reviewing the case law [at pages 605-606]:

… the imposition on her of the non-patently-discriminatory job description or its essential physical activities must surely be seen to be a BFOR, while equally and simultaneously constituting adverse effect discrimination as defined. So, this is not a case of finding adverse effect discrimination where there is a BFOR. Here, the very BFOR is itself the adverse effect discrimination as defined by the Supreme Court of Canada. In light of this conundrum, this Court will extend the Act and the CHRA to accommodate the applicant’s right to an adjudication by the Public Service Appeal Board pursuant to the CHRA’s application to her deputy head as interpreted by the Supreme Court of Canada.

The appellant admits readily that the deputy head is bound to apply the CHRA since the Act is binding on Her Majesty.[17] He claims, however, that the Trial Judge erred in law considering the limited jurisdiction of the Appeal Board[18] and the fact that section 31 of the PSEA constitutes direct discrimination as a result of which there is no duty to accommodate on the part of the employer.

The respondent submits that the starting point, with regard to the Board’s jurisdiction, is the decision of this Court in Ahmad v. Public Service Commission[19] where it was established that:

… in the absence of

(a) some failure to apply properly some specific statutory or other legal direction, or

(b) proof of bad faith on the part of those whose observations and judgment are in question,

a board of review established under section 31 would not be justified in deciding that a deputy head’s recommendation should not be acted upon unless it had before it material that satisfied it, as a matter of fact, that the deputy head was wrong in forming the opinion that the person in question was “incompetent in performing the duties of the position he occupies.”

The respondent invites us to give a broad meaning to the words “some specific statutory or other legal direction”, bearing in mind that the CHRA has been elevated by Supreme Court of Canada’s decisions to the level of a legislation “not quite constitutional but certainly more than the ordinary”,[20] and that it governs where there is a conflict between it and other legislations unless specifically provided otherwise.[21] Therefore, when human rights legislation is enacted subsequent to inconsistent legislation, human rights legislation will, by implication, repeal other inconsistent legislation to the extent of the inconsistency.[22] The respondent argues that the rule of capacity to perform the duties of the position reflected in section 31 of the PSEA is neutral on its face and does not directly discriminate on a prohibited ground. It becomes, however, discriminatory when applied to those who, like the respondent, suffer from an incapacitating disability, at least in so far as their disability prevents them from satisfying the requirements of the rule. As this constitutes adverse effect discrimination, the employer has a duty to accommodate and the Trial Judge correctly so decided.

There is no difficulty with the general proposition that the PSEA is to be read in accordance with the CHRA In this regard, it should be noted that section 12 [as am. by S.C. 1992, c. 54, s. 11] of the PSEA which is found in Part II of the Act and which is entitled “Appointment” prohibits specifically the Commission from discriminating on grounds similar to those of the CHRA when it prescribes or applies selection standards. No reference to antidiscrimination measures is, however, to be found in Part III entitled “Employment” where section 31 of the PSEA appears. Nevertheless, it is undisputed that both Acts are to be read together.

This being said, I must consider whether section 31 of the PSEA is inconsistent with the CHRA and whether the CHRA has modified or repealed in any way section 31 of the PSEA.

Subsection 31(1) of the PSEA deals with two distinct concepts: “incompetence” and “incapacity”. It states:

31. (1) Where an employee, in the opinion of the deputy head, is incompetent in performing the duties of the position the employee occupies or is incapable of performing those duties and should be appointed to a position at a lower maximum rate of pay, or released, the deputy head may recommend to the Commission that the employee be so appointed or released, in which case the deputy head shall give notice in writing to the employee of the recommendation. [My emphasis.]

These two concepts are drafted in general terms and are related to a required level of job performance. In Clare, Robertson J.A. stated:[23]

Section 31 speaks of a person who is “incompetent in performing the duties of the position” or, alternatively, one who is “incapable of performing those duties” (see Snaauw v. Public Service Commission Appeal Board, [1980] 1 F.C. 78 (C.A.), at pages 82-83, where the distinction is raised). It does not speak necessarily in terms of a person who is incompetent or incapacitated in the sense attributed by the applicant. In my view, section 31 is directed at determining whether an employee has failed to meet the required level of job performance and not the reasons underlying the failure to meet the expected standard, as argued by the applicant. [My emphasis.]

Later, he offered elements of distinction between “incompetence” and “incapacity”:[24]

In my view, “incapable” is meant to cover situations where employees are unable to perform their duties and hence it is impossible to evaluate their performance in terms of incompetence, that is, a failure to meet an objective standard. The notion of “incapability” would be relevant in the case of an employee who is no longer physically able to perform his or her job functions. But irrespective of the reasons for the failure to perform, an employer would be entitled to release the employee. [My emphasis.]

Section 7 of the CHRA[25] refers generally to “a prohibited ground of discrimination” and must be read in light of section 3 which enumerates the prohibited grounds of discrimination among which “disability” constitutes one of such grounds. This term is further defined in section 25 of the CHRA in the following way:

25. …

“disability” means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.

Paragraph 15(a) of the CHRA provides the following exception:

15. It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement.

There is little distinction to be made between the words “incapable”, “incapacity”, “disable” and “disability”. They should, in my view, be considered interrelated, perhaps even synonymous.[26]

Incapacity refers to more than physical incapacity. It may refer to mental incapacity or even legal incapacity. Section 31 of the PSEA, as I read it, is not, on its face, “neutral”. What it says is that an employee “incompetent in performing the duties of the position” or “incapable of performing those duties” may be demoted or released. Section 31 of the PSEA discriminates on its face, but not always on a prohibited ground of discrimination. Legal inability or incapacity is not a prohibited ground of discrimination. So the issue does not arise in such cases. At one point, however, the meaning of incapacity (mental or physical) hits the prohibited ground of discrimination, namely “disability”. In essence, section 31 of the PSEA then reads: “Incompetent or incapable persons are not expected to remain in their position when competency or capability is required to fulfill the duties of the position.”

Does the rule so framed constitute a direct or adverse effect discrimination?

In the Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al. case,[27] McIntyre J. established the following criteria:

A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, “No Catholics or no women or no blacks employed here.” There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code I am of the opinion that this Court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.

In Central Alberta Dairy Pool v. Alberta (Human Rights Commission),[28] Wilson J. further explained:

The essence of direct discrimination in employment is the making of a rule that generalizes about a person’s ability to perform a job based on membership in a group sharing a common personal attribute such as age, sex, religion, etc.

In brief, a rule which says “No Catholics need apply” constitutes direct discrimination. A municipality’s anti-nepotism hiring policy which disqualifies spouses and relatives of full-time municipal employees and town councillors from employment with the town[29] is a case of direct discrimination.[30] A rule which says “mandatory attendance on Mondays except in case of illness or other emergencies, religious obligation not being included as an emergency for this purpose”,[31] or a rule which requires people to work Friday evenings and Saturdays as a condition of employment[32] constitutes adverse discrimination since both are neutral on their face, but may affect “adversely” someone whose religion requires observance on those days.

Section 31, as applied to this case, stands for the proposition that the deputy head may not continue to employ or may demote someone who is physically incapable of performing the duties of the position. Section 31 of the PSEA contains, therefore, on its face an element of discrimination, i.e. physical disability. It is a rule which the employer, for genuine business reasons, adopts which clearly is not neutral and which affects all employees the same way with the result that some are immediately disqualified. The discrimination is direct. This is not a neutral rule which in appearance is addressed to all, but which has an adverse effect on one employee or a group of employees in that it imposes, because of some special characteristics of the employee or group, obligations, penalties or restrictive activities not imposed to other members of the work force. The rule, as applied to this case, is the following: “No person physically incapable of performing the duties of the position may remain in his or her position.” If it were at the hiring process and not at the releasing process, the rule would be: “No person who cannot physically perform the duties of the position need apply.” The basic requirement is physical capability. Could it be said then that a deputy head, who requires in a secretarial position someone who can physically type, violates the CHRA by refusing to hire a candidate who would be incapable physically of typing? Or that a deputy head, looking for a fireman, could not legally refuse to hire someone who happens to be confined permanently to a wheelchair? Common sense dictates a negative answer to both questions.

The next question I must then consider is whether section 31 of the PSEA constitutes a BFOR which, under section 15 of the CHRA, is not a discriminatory practice.

In the case of Ontario Human Rights Commission et al. v. Borough of Etobicoke,[33] McIntyre J. explained what was meant by a BFOR (or BFOQ):[34]

To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

Wilson J. has explained further in Central Alberta Dairy Pool v. Alberta (Human Rights Commission) that when a BFOR exists, there is no duty to accommodate:[35]

Where a rule discriminates on its face on a prohibited ground of discrimination, it follows that it must rely for its justification on the validity of its application to all members of the group affected by it. There can be no duty to accommodate individual members of that group within the justificatory test because, as McIntyre J. pointed out, that would undermine the rationale of the defence. Either it is valid to make a rule that generalizes about members of a group or it is not. By their very nature rules that discriminate directly impose a burden on all persons who fall within them. If they can be justified at all, they must be justified in their general application. That is why the rule must be struck down if the employer fails to establish the BFOQ. This is distinguishable from a rule that is neutral on its face but has an adverse effect on certain members of the group to whom it applies. In such a case the group of people who are adversely affected by it is always smaller than the group to which the rule applies. On the facts of many cases the “group” adversely affected may comprise a minority of one, namely, the complainant. In these situations the rule is upheld so that it will apply to everyone except persons on whom it has a discriminatory impact, provided the employer can accommodate them without undue hardship. In O’Malley McIntyre J. clarifies the basis for the different consequences that follow a finding of direct discrimination as opposed to a finding of adverse effect discrimination. He states at p. 555:

The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer’s business and without undue expenses to the employer. Cases such as this raise a very different issue from those which rest on direct discrimination. Where direct discrimination is shown the employer must justify the rule, if such a step is possible under the enactment in question, or it is struck down. Where there is adverse effect discrimination on account of creed the offending order or rule will not necessarily be struck down. It will survive in most cases because its discriminatory effect is limited to one person or to one group, and it is the effect upon them rather than upon the general work force which must be considered. In such case there is no question of justification raised because the rule, if rationally connected to the employment, needs no justification: what is required is some measure of accommodation. The employer must take reasonable steps towards that end which may or may not result in full accommodation. Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment. [Emphasis added].

Later she said:[36]

The end result is that where a rule discriminates directly it can only be justified by a statutory equivalent of a BFOQ, i.e., a defence that considers the rule in its totality. (I note in passing that all human rights codes in Canada contain some form of BFOQ provision.) However, where a rule has an adverse discriminatory effect, the appropriate response is to uphold the rule in its general application and consider whether the employer could have accommodated the employee adversely affected without undue hardship.

Section 31 of the PSEA, as applied to this case, contains within itself the statement of a BFOR which is perfectly compatible with the CHRA. It prescribes that the physical capability be related to the performance of the duties of the position. Moreover, as interpreted in Ahmad, it requires that there be no bad faith on the part of the deputy head and that “specific statutory or other legal direction” be respected. Section 31 reflects both the objective and subjective tests of Etobicoke. It also mirrors perfectly paragraph 15(a) of the CHRA. There is, therefore, no duty to accommodate on the part of the employer.

Section 31 of the PSEA is a piece of legislation which is neither inconsistent nor incompatible with the CHRA. It is in no way modified by it. The powers of the Appeal Board remain therefore unchanged.

For these reasons, I would allow the appeal with costs, I would set aside the judgment of the Trial Division and I would dismiss the application for judicial review.

* * *

The following are the reasons for judgment rendered in English by

Robertson J.A. (concurring in the result): This appeal raises two issues. The first is whether an Appeal Board, established under paragraph 5(d) [now repealed by S.C. 1992, c. 54, s. 4] of the Public Service Employment Act, R.S.C., 1985, c. P-33 (the “PSEA”), has the jurisdiction to apply the provisions of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the “CHRA”). If it is established that the Board possesses the requisite jurisdiction, then we have been asked to determine whether the application of section 31 of the PSEA to a person who is incapable of performing the duties of their position by reason of a disability constitutes indirect or adverse effect discrimination, giving rise to a duty to accommodate on the part of the employer. I have had the distinct advantage of reading in draft form the reasons of both Hugessen J.A. and Desjardins J.A. While I agree with the disposition of this appeal as proposed by the latter, my reasoning pursues a different course. In my respectful opinion, the Appeal Board does not have the power to interpret and apply the employment-related provisions of the CHRA.

The Appeal Board, like all tribunals, is a statutory body with no inherent jurisdiction. It may decide a matter only if Parliament has expressly or impliedly conferred on it power over the parties, the subject-matter and the remedy. This general principle was clearly articulated by La Forest J. in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, at page 14:

It is essential to appreciate that s. 52(1) does not function as an independent source of an administrative tribunal’s jurisdiction to address constitutional issues. Section 52(1) affirms in explicit language the supremacy of the Constitution but is silent on the jurisdictional point per se. In other words, s. 52(1) does not specify which bodies may consider and rule on Charter questions, and cannot be said to confer jurisdiction on an administrative tribunal. Rather, jurisdiction must have expressly or impliedly been conferred on the tribunal by its enabling statute or otherwise. This fundamental principle holds true regardless of the nature of the issue before the administrative body. [Emphasis is mine.]

The fact that the Supreme Court was considering the jurisdiction of a labour board to rule on the constitutionality of its enabling statute does not undermine the application of the general rule to the facts of the case before this Court. Cuddy Chicks, supra, is only one in a long line of cases which directs us to determine whether a tribunal has jurisdiction over the whole of the matter before it: see also Canada (Attorney General) v. Vincer, [1988] 1 F.C. 714 (C.A.), per Stone J.A, at pages 728-730; and Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.).

In the case before us, there is no doubt that the Appeal Board has jurisdiction over the parties. The immediate question is whether it has jurisdiction over the subject-matter and remedy. The search for a dispositive answer begins with section 31 of the PSEA, which sets out the powers of the Appeal Board. The relevant provisions state:

31. (1) Where an employee, in the opinion of the deputy head, is incompetent in performing the duties of the position the employee occupies or is incapable of performing those duties and should be appointed to a position at a lower maximum rate of pay, or released, the deputy head may recommend to the Commission that the employee be so appointed or released, in which case the deputy head shall give notice in writing to the employee of the recommendation.

(2) Within such period after receiving a notice under subsection (1) as the Commission prescribes, the employee may appeal against the recommendation of the deputy head to a board established by the Commission to conduct an inquiry at which the employee and the deputy head, or their representatives, shall be given an opportunity to be heard.

(3) The Commission, on being notified of the decision of the board on the inquiry into a recommendation conducted pursuant to subsection (2), shall, in accordance with the decision,

(a) notify the deputy head concerned that the recommendation will not be acted on; or

(b) appoint the employee to a position at a lower maximum rate of pay, or release the employee.

A determination concerning an employee’s capability or competence falls squarely within the Appeal Board’s jurisdiction, even in cases where an employee claims that the deputy head’s recommendation to dismiss him or her is based on a discriminatory ground such as race. That type of issue can stand alone without the Appeal Board having to decide, save by implication, whether the employee is a victim of discrimination: see Pitawanakwat v. Canada (Canadian Human Rights Commission) (1987), 9 C.H.R.R. D/4825 (F.C.A.); and Burke v. Canada (Canadian Human Rights Commission) (1987), 9 C.H.R.R. D/4824 (F.C.A.). By contrast, the subject-matter before the Appeal Board here is the interpretation and application of the employment-related provisions of the CHRA when adjudicating on a deputy head’s recommendation formulated under section 31 of the PSEA. In cases of indirect discrimination, this would include a legal determination regarding the limits of accommodation and undue hardship. Unquestionably, such matters are beyond the express terms of the PSEA.

Similarly, the remedy effectively requested by the respondent—accommodation—requires the Appeal Board to venture beyond those outlined in section 31 of the PSEA. That section confers upon the deputy head of each public service department the power to recommend to the Public Service Commission an employee’s release or demotion (transfer to a position with a lower maximum salary) for reasons of incapacity or incompetence. In making a recommendation for release, the deputy head is not required by law to have regard to the possibility of demoting the employee; see Attorney General of Canada v. Loiselle, [1981] 2 F.C. 203 (C.A.), at pages 204-205. Once the recommendation for release is made to the Commission, the employee may appeal that recommendation to the Appeal Board, which can either allow or dismiss the appeal. These two options exhaust the Appeal Board’s mandate.

No provision in the PSEA expressly authorizes the Appeal Board to provide the accommodation remedy the respondent seeks. I reiterate that the Appeal Board may only allow or dismiss an appeal from a deputy head’s recommendation. It may not even substitute a decision to transfer an employee where release has been recommended; see R. v. Larsen, [1981] 2 F.C. 199 (C.A.), at pages 201-202. The reason for this limitation is practical. As the Commission cannot create new positions at its own initiative, the decision to transfer rather than release an employee could have the effect of retaining an incompetent employee in his or her position until a new position becomes available. Yet counsel for the respondent acknowledged in oral argument that the duty to accommodate could, in the circumstances before us, require the employer to create a new position for the respondent. (I assume that this line of argument was intended to counter the fact that the respondent was only released after three years of unsuccessful attempts to transfer her to positions with lighter duties.) This remedy is clearly beyond the Appeal Board’s powers.

The respondent’s argument would permit the Appeal Board to allow her appeal on the grounds that the employer had not demonstrated that it had accommodated her to the point of undue hardship. This would leave open the possibility of yet another recommendation for release if the respondent continued to be incapable of fulfilling her duties. Had Parliament intended the Appeal Board to consider the question of undue hardship, it is only reasonable that it would have conferred upon the Appeal Board commensurate powers to give direct effect to its determination on this issue. The indirect method of accommodation proposed by the respondent seems to me to greatly exceed Parliamentary intent on this issue. The remedy effectively sought by the respondent is an interlocutory injunction pending a determination by the Canadian Human Rights Commission regarding the appropriate resolution of this case. As there is no obligation upon the respondent to pursue the matter before the Commission, the respondent’s tenure would be almost unassailable.

I was not directed to any provision in the PSEA which impliedly confers jurisdiction on the Appeal Board to apply the CHRA. The legislation before us contrasts sharply with that considered in Cuddy Chicks, supra, which expressly empowered the Labour Relations Board to decide questions of law and to determine questions of law and fact relating to its own jurisdiction. Sections 106 and 124 of the Labour Relations Act, R.S.O. 1980, c. 228, provided:

106.—(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it , and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

…

124.—(1) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement between an employer or employers’ organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable , to the Board for final and binding determination. [Emphasis is mine.]

There are no equivalent provisions in the PSEA. The only other provision remotely relevant to our analysis is paragraph 5(d), which simply empowers the Public Service Commission to establish an appeal board. The PSEA does not even tell us whether this one-member appeal board must be an employee of the Public Service Commission.

There is one decision of this Court which I believe has direct application to the facts before us. In Viola, supra, the issue was whether an appeal board, established to consider whether a candidate satisfied the requirements of a Public Service position, had jurisdiction to consider whether those employment requirements violated the 1988 Official Languages Act [S.C. 1988, c. 38]. That Act, like the CHRA, is regarded as quasi-constitutional legislation.

In determining for the Court that the appeal board did not have jurisdiction under section 21 of the PSEA to determine whether employment requirements violated the 1988 Official Languages Act, Décary J.A. stated at pages 387-388:

The constitutional entrenchment of language rights and their quasi-constitutional extension, qualified by the appeal for caution made to the courts by the Supreme Court, do not however imply, in the absence of specific indications to this effect, an alteration of the powers of the courts which have to interpret and apply these rights. Just as the Canadian Charter of Rights and Freedoms is not in itself a source of new jurisdictions, so the 1988 Official Languages Act does not create new jurisdictions other than those, vested in the Commissioner of Official Languages and the Federal Court Trial Division, which it creates expressly. As in the case at bar, the fact that the Department might be subject to more specific legal duties than in the past when it comes time to determine the language requirements of a position does not mean that an appeal board thereby acquires a jurisdiction which was heretofore beyond it. Unless the Act itself contains some indication that Parliament intended to give an appeal board a new jurisdiction affecting the department’s managerial rights, the appeal board will have to resign itself to continuing to perform the function it has until now exercised, and to leave to other jurisdictions the responsibility for deciding whether a department has complied with the provisions of the 1988 Official Languages Act in a given case. [Emphasis is mine.]

The alleged basis of the Appeal Board’s implied jurisdiction to apply the CHRA is found in a decision of this Court, Ahmad v. Public Service Commission, [1974] 2 F.C. 644 (C.A.). At pages 646-647 of that case, Chief Justice Jackett stated:

Whether or not a person is competent or incompetent for a post is a matter of opinion, and, in the absence of any special legal direction, all that the law can imply with regard thereto is that it must be honestly formed, and that it must, in the first instance at least, be based upon the observation, by those under whom he works, of the manner in which the person whose competence is in question carries out his duties. In particular circumstances, rough and ready rules of thumb may be adopted by such persons as an aid to the formation of the required opinion; but, in my view, in the absence of

(a) some failure to apply properly some specific statutory or other legal direction, or

(b) proof of bad faith on the part of those whose observations and judgment are in question,

a board of review established under section 31 would not be justified in deciding that a deputy head’s recommendation should not be acted upon unless it had before it material that satisfied it, as a matter of fact, that the deputy head was wrong in forming the opinion that the person in question was “incompetent in performing the duties of the position he occupies.” [Emphasis is mine.]

It is argued that the CHRA and its judicial interpretation constitute “legal directions” which the Appeal Board must apply in order to fulfil its statutory mandate under section 31. With respect, I do not think that the reasoning of this Court in Ahmad, supra, extends the jurisdiction of the Appeal Board beyond its legislated mandate. The “legal directions” to which Ahmad refers correspond to simple rules of general application. For example, in Dansereau v. Canada (Public Service Appeal Board), [1991] 1 F.C. 444 (C.A.), this Court imposed a duty on employers to give sufficient notice of unsatisfactory performance to employees before recommending release. Similarly, in Clare v. Canada (Attorney General), [1993] 1 F.C. 641 (C.A.), it was held that an employer, which had implemented an employee counselling programme, is obligated to refer an employee to counselling services at the employee’s request before he or she is released. These rules are conditions precedent which must be satisfied before the deputy head recommends an employee’s release. They are true “legal directions” which the Appeal Board is required to apply to discharge its mandate under section 31 of the PSEA.

Interpretation and application of the CHRA is, by contrast, intricate. It does not lend itself to creating simple “legal directions” except, of course, those by which the deputy head is bound. For example, the deputy head is charged not to discriminate against an employee when making a recommendation to the Appeal Board. However, the determination of whether a certain practice constitutes direct or indirect discrimination is not a “legal direction.” The divergent opinions of this Court and the Supreme Court, regarding the definition and effects of direct and indirect discrimination, underlines the complexity and elusiveness of those concepts.

In effect, this Court is being asked to apply the provisions of the CHRA and declare the respondent a victim of adverse effect discrimination. Such a determination could easily be reformulated as a legal directive—a recommendation to release a disabled person pursuant to section 31 of the PSEA on the ground of incapacity constitutes adverse effect discrimination. This approach, in my respectful view, seriously contorts the intent of Ahmad, supra, and completely ignores the pivotal question before us of whether Parliament intended to confer upon the Appeal Board the jurisdiction to apply the CHRA. It is the role of Parliament, not the courts, to confer jurisdiction upon statutory tribunals.

The true thrust of the respondent’s case is that the Appeal Board should have the power to apply the CHRA as a matter of policy. Counsel for the respondent frankly admitted his reluctance to pursue the matter before the Canadian Human Rights Commission because of the lengthy delays in processing complaints. I understand the respondent’s frustration. It is arguable that, in such a case, justice delayed is truly justice denied. However, the inefficiency of that system cannot of itself confer jurisdiction upon a tribunal which is not expressly or impliedly authorized by Parliament. There are also practical reasons against extending the Appeal Board’s jurisdiction.

The Canadian Human Rights Tribunal has broad powers to receive and call evidence, including information or evidence which would not be acceptable in a court of law (see subsection 50(2) CHRA). This power is vital to ascertain the presence of nuanced discriminatory practices or policies. By contrast, the Appeal Board has no such power. This could lead to the anomalous result that allegations of discrimination brought before a human rights tribunal would have a greater chance of success than those investigated under section 31 of the PSEA. This fact undermines the argument that conferring jurisdiction upon the Appeal Board to apply the CHRA would eradicate the need for multiplicitous proceedings; on this point, see Pitawanakwat, supra, and Burke, supra.

For the above reasons, it is my view that the Appeal Board does not possess the jurisdiction to apply the CHRA. Parliament has not conferred upon the Appeal Board express jurisdiction to interpret any law, much less to consider the subject-matter or remedy before this Court. Its role is limited to making determinations of fact: Is the employee incompetent or incapable? Was the deputy head’s recommendation made in good faith? Were the conditions precedent to such a determination satisfied? Neither are there any overarching policy or practical reasons supporting the Appeal Board’s implied jurisdiction to consider the CHRA. As I have found that the Appeal Board does not possess the requisite jurisdiction, there is no need to address the other issue pursued by my colleagues.

For the reasons above, I would dispose of the appeal as proposed by my colleague Desjardins J.A.

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