The Applicant Davidson successfully applied for judicial review of the Respondent Commission’s decision to dismiss her human rights complaint at a preliminary stage. The matter was referred back to the Commission for reconsideration taking into account the reasons for judgment.

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Discrimination – Disability – Duty to accommodate – Investigations – Judicial review – Evidence – Compliance with legislation – Standard of review – Reasonableness simpliciter

Davidson v. Canada Post Corp., [2009] F.C.J. No. 987, Federal Court, July 9, 2009, O’Keefe J.

Davidson (the “Applicant”) applied for a position with the Respondent Canada Post Corporation. The Applicant’s parents were both employed with Canada Post. The Applicant had Asperger Syndrome and identified this on her job application. This disability typically involves underdeveloped social and communication skills. As part of the recruiting process, the Applicant was invited to write the Canada Post General Aptitude Test (GAT) and due to her disability, she requested (and was granted) additional time to complete the test. She passed the test.

The Applicant was next invited to participate in an oral job interview. Her father contacted one of the human resources employees to inquire about the nature of the job interview in order to assess the Applicant’s need for accommodation. The Applicant’s father did not request any specific form of accommodation but did indicate he was concerned about whether accommodation would be required for the Applicant to fairly compete with the other candidates.

The Applicant did not get a position and this was due to her performance in the job interview. The Respondent claimed that she simply failed the standardized interview process that was designed to assess the skills and competencies necessary for positions within the Respondent’s organization.

The Applicant made an internal complaint and a Canada Post investigator considered the matter and made several conclusions. The conclusions included the following: the Applicant did not request or suggest accommodation during the oral interview, she failed the interview because of her lack of work experience not because of her disability, and the Respondent’s recruitment process includes appropriate efforts to accommodate candidates. The Respondent did offer to re-interview the Applicant in a different manner but she refused.

The Applicant made a complaint to the Canada Human Rights Commission. An investigator was appointed (the “Investigator”) and the Investigator considered the complaint. The Investigator recommended that the Commission find that “an inquiry by the tribunal was not warranted.” The Investigator’s recommendation included similar findings to the Canada Post internal investigator but also included the finding that the Respondent suggested that they re-interview the Applicant but she refused because she feels that any measure of social skill assessment is discriminatory. The complaint was dismissed at this preliminary stage.

The Applicant sought judicial review of the Commission’s decision to dismiss her complaint at a preliminary stage. The issues for the Court to consider were whether the Commission erred in not referring the complaint to the tribunal, and whether the commission erred in not considering relevant evidence in its investigation.

The Court first considered the standard of review and concluded that the applicable standard was reasonableness. The Court relied in part on a previous decision in respect of decisions made by the Commission.

In respect of the first issue, the Applicant argued that the Commission, in making its decision, failed to identify what modifications were appropriate for an applicant with her disability. The Respondent argued that the Commission, when considering a complaint at the preliminary stage, is not required to determine if a complaint has been made out but rather it is only required to assess the sufficiency of the evidence. The Court concluded that the Commission failed to take all of the appropriate circumstances into account as it was required to do as part of its exercise of discretion. There were two primary omissions in that regard.

The Commission failed to consider that the Investigator did not demonstrate an appreciation of the Applicant’s disability and the specific forms of accommodation that may have been necessary to accommodate her. The Applicant’s father raised the issue of accommodation and, therefore, the Investigator came to an erroneous conclusion in finding that the Applicant had not asked for accommodation.

The Court was also critical about the Commission’s acceptance of Canada Post’s reliance upon union rules. Canada Post argued that, since employees could apply for other positions based on seniority, the Applicant needed to be assessed in respect of other potential positions that she may apply for once she gained seniority in the position applied for. The Investigator did not consider at all whether the union rules could be modified in this situation.

Finally, the Court further concluded that the Applicant could not be faulted for refusing the offers of alternative interview procedures. The Applicant maintained that the emphasis on social skills assessment was discriminatory in her case and Canada Post’s proposed accommodation did not appear to address that concern.

The Court briefly considered the merits of the Applicant’s complaint in order to assess the reasonableness of the Commission’s decision. The Court held that the Commission came to an unreasonable decision when it decided to dismiss the Complaint.

The Complaint was referred back to the Commission for re-consideration.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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