Garvey’s appeal from the decision of the Federal Court dismissing his application for judicial review of the dismissal of his human rights complaint by the Canadian Human Rights Commission was dismissed where the court found that Garvey had never requested accommodation from his employer for his alleged disability

27. December 2005 0

Administrative law – Human rights complaints – Discrimination – Disability – Duty to request accommodation – Decisions of administrative tribunals – Human Rights Commission – Judicial review – Standard of review – Reasonableness simpliciter

Garvey v. Meyers Transport Ltd., [2005] F.C.J. No. 1684, Federal Court of Appeal, October 13, 2005, Desjardins, Evans and Sharlow JJ.A.

Garvey was employed at Meyers Transport where he held the position of Terminal Manager. After approximately nine years of employment, he experienced sudden intense headaches, insomnia and other stress-related illnesses. Garvey saw a doctor and a specialist and took a three-week holiday. On his return, Garvey and his employer had a number of discussions, and Garvey was offered the position of Special Project Manager, which he refused because it involved a reduction in hours and a corresponding decrease in salary. A number of weeks later, Garvey received a letter of termination with four months’ working notice. The letter stated that his performance was substandard. Garvey then filed a complaint with the Commission alleging that Meyers Transport had discriminated against him during the course of his employment by treating him in an adverse, differential manner because of his disability, contrary to s. 7 of the Canadian Human Rights Act, R.S. 1985, c. H-6.

The investigator for the Commission filed a report on February 10, 2004 recommending the appointment of a conciliator. Both parties were given an opportunity to respond to the content of the investigator’s report. After considering the report and the responses, the Commission wrote to Garvey indicating that the Commission was dismissing the complaint because the evidence did not support that Meyers Transport had discriminated against him on the basis of disability. Garvey then applied for judicial review.

On judicial review, the application judge applied the standard of review of reasonableness simpliciter and determined that the Commission’s decision to dismiss the complaint was reasonable. Garvey then appealed the decision of the application judge to the Federal Court of Appeal.

The Federal Court of Appeal reviewed the investigator’s report and noted that no medical information was provided as to the exact nature of the complainant’s stress-related illness and what limitations, if any, it imposed on his ability to perform his job. The court further found that Garvey had never given his employer, at the time of his employment, a medical assessment evidencing a disability and never requested accommodation on account of this disability. If there had been any errors in the investigation, the court held that the effect of the failures were close to nil given that the employer was never made aware of any kind of disability which required accommodation.

In the result, Garvey’s appeal was dismissed.

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