Decision to Dismiss Discrimination Complaint of Employee was Unreasonable

In Dupuis v. Canada (Attorney General), the Federal Court granted the Application for Judicial Review of a Canadian Human Right’s decision to dismiss the employee’s complaint alleging discrimination on the basis of disability.

Mr. Dupuis was employed in the Public Service of Canada since 1988. For the first few years of his employment with Statistics Canada, Mr. Dupuis’ was at the SI-02 classification, his performance was satisfactory and he was fulfilling all his duties. In 2000, he was promoted to the position of Information Technology Officer at the SI-03 classification. In 2003, Mr. Dupuis was assigned a new supervisor who became concerned that Mr. Dupuis might be suffering from a disability that was affecting his performance.

In 2004, Mr. Dupuis was referred to Health Canada to assess whether there were any health related conditions or restrictions that were affecting his job performance. Health Canada determined that Mr. Dupuis suffered from Asperger’s Syndrome. In its report to the employer, Health Canada did not identify the employee’s disability by name, but stated that he suffered from a “chronic condition” that “could impact on his ability to carry out his duties in the areas of comprehension and task completion.”

Health Canada also stated that Mr. Dupuis was considered fit to work but stated that certain accommodative measures could improve his work performance such as having him in a position that did not involve social demands or time pressure. Mr. Dupuis did not agree with Health Canada’s Asperger’s diagnosis or that he suffered from a disability but his employer nevertheless took steps to accommodate his needs in accordance with Health Canada’s recommendations. Despite these accommodation measures, Mr. Dupuis continued to receive unsatisfactory performance reviews.

In 2005, in a follow-up report, Health Canada made additional recommendations which included that Mr. Dupuis may benefit from a consultant coming into the workplace to assist with his reintegration.

Between 2005 and 2008, Mr. Dupuis was assigned reduced tasks ranging from the SI-03 to SI-01 levels, as well as additional training and supervisory support, but no consultant was retained to assist him. During this period, his performance reviews continued to record his performance as being unsatisfactory. At this point, Mr. Dupuis was informed that he must improve his job performance within the next three months, or he would be demoted or terminated.

Beginning in August of 2008, Mr. Dupuis was slowly assigned duties at the CR-04 level, for which he was given satisfactory job performance reviews. As a result, he was demoted to the CR-04 level and was given these tasks to perform on a full-time basis. However, Mr. Dupuis did not report for work in his new position and went on medically-approved stress leave instead.

In 2011, he filed a complaint with the Canadian Human Rights Commission (CHRC), claiming that Statistics Canada had discriminated against him on the basis of his disability, and that it failed to properly accommodate him. Upon his return to work in 2012, Mr. Dupuis was assigned an occupational consultant with experience working with persons with Asperger’s to assist him in integrating into the workplace in his new position at the CR-04 level.

The CHRC dismissed Mr. Dupuis’ complaint as the evidence indicated that Statistics Canada had implemented the accommodation measures recommended by Health Canada, and had attempted to accommodate Mr. Dupuis in his SI-03 position for several years before moving him to a position that met his medical restrictions. The CHRC also noted that Statistics Canada had made a reasonable offer of settlement during the conciliation process.

The CHRC concluded as a result that no further inquiry into Mr. Dupuis’ human rights complaint was warranted.

The Federal Court stated that it was clear that Statistics Canada did not follow all of Health Canada’s recommendations and concluded that the CHRC’s decision lacked the justification, transparency and intelligibility necessary to be reasonable on the following basis:

1. Statistics Canada never hired an expert to assist it in accommodating Mr. Dupuis in his SI-03 position. Retaining the services of an expert would not have caused Statistic Canada undue hardship. The CHRC investigator never addressed Statistics Canada’s failure to hire a consultant to assist it in accommodating; he simply concluded that Statistics Canada had done everything that it could to try to accommodate Mr. Dupuis’ disability, without success, leaving it with no alternative but to demote him to a clerical position, three levels below his SI-03 position.
2. The CHRC investigator did not consider why Mr. Dupuis was unable to perform at the SI-02 level in a satisfactory manner when he had been able to do so some years before. Consequently, the Court was unable to determine whether the requirements of the job had changed, whether Mr. Dupuis’ condition had deteriorated, or whether there was some other impediment to his being able to meet the requirements of his job.

The decision dismissing Mr. Dupuis’ complaint was set aside and the matter remitted to the CHRC for further investigation.

This decision demonstrates that the Federal Court will intervene in cases where the CHRC has chosen not to proceed any further with a complaint where its decision does not address all the outstanding issues with respect to the accommodation measures sought by the employee and recommended by a physician (in this case, Health Canada).

It is important to note that the Court did not rule on whether the employer had failed to accommodate the employee but rather, remitted the decision back to the CHRC on the basis that its decision lacked transparency and justification. After another review of the evidence, the CHRC may come to the same conclusion, or choose to refer the matter to the Canadian Human Rights Tribunal for a hearing on the merits.

Bird Richard will keep readers apprised of developments in this matter.