The applicant, the Canadian Human Rights Commission (the “Commission”), applied for judicial review of a decision of the Canadian Human Rights Tribunal (the “Tribunal”) in which it dismissed a complaint filed by the complainant, William G.M. Shmuir, against the respondent, Carnival Cruise Lines (“Carnival”) for violating the Canadian Human Rights Act

23. August 2011 0

Administrative law – Decisions of administrative tribunals – Canadian Human Rights Tribunal – Human rights complaints – Disability – Discrimination – Judicial review – Evidence – Legislative compliance

Canada (Canadian Human Rights Commission) v. Shmuir, [2011] F.C.J. No. 1040, 2011 FC 839, Federal Court, July 8, 2011, Simpson J.

The visually-impaired complainant had attended a job fair hosted by Carnival where it was alleged that he was discriminated against on the basis of his visual impairment. The complainant filed his complaint and following an investigation by the Commission and a four-day hearing, the Tribunal dismissed the complaint. The Commission applied for judicial review on the basis that the Tribunal’s decision may have been reached unreasonably.

The Court examined five specific questions in reaching its decision. First, it held that the Tribunal did not err in determining that the complainant had established a prima facie case of discrimination but that Carnival was not in breach of 7(a) of the Human Rights Act. The Court held that it was open to the Tribunal to accept the complainant’s uncontested evidence for the purpose of establishing a prima facie case, and then later reject that evidence if it was found to lack credibility.

The Court also held that, contrary to the Commission’s claim, the Tribunal’s speculative comments concerning Carnival’s intention and the possible ways it could have discriminated against the complainant were of no import. Further, the Tribunal did consider the issue of indirect discrimination despite the fact that the issue was not raised by the complainant. As a result, the Commission’s claim that the Tribunal had failed to do so could not succeed.

The Court further found that the Tribunal’s finding that Carnival did not fail to accommodate the complainant once the disability was disclosed was reasonable, and that Carnival was not under a duty to inform the complainant of the possibility of future potential workplace accommodations.

Based on the above the Tribunal’s decision was held to be reasonable.

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