The applicant, a prospective RCMP candidate, was successful on judicial review in setting aside a Human Rights Commission’s decision dismissing his complaint that the RCMP discriminated against him based on his medical condition. The court found the Commission failed to conduct a neutral investigation and breached its duty of fairness, and also failed to apply the correct legal test when assessing the complaint.

Administrative law – Decisions reviewed – Human Rights Commission – Discrimination – Disability – Judicial review – Procedural requirements and fairness – Test – Standard of review – Correctness – Professions – Police

Boychyn v. Canada (Royal Canadian Mounted Police), [2018] F.C.J. No. 1203, 2018 FC 1185, Ontario Federal Court, November 27, 2018, S.S. Ahmed J.

The applicant, Jamie Boychyn, began training in the RCMP’s Cadet Training Program in September 2014 in order to eventually become a constable. Near the end of his training, he was hospitalized for several days and was subsequently diagnosed with Type 1 diabetes. Mr. Boychyn completed the program and graduated on March 16, 2015. Despite completing the training program, Mr. Boychyn was not sworn in as a regular member of the RCMP and was not posted to his preferred detachment. Instead, he was told, based on a decision of the RCMP Health Services Officer (the “HSO”), that he could not be sworn in and that he would need to be re-assessed due to his health condition in three to six months. Ultimately, this never occurred.

In the interim, Mr. Boychyn was hired as a Temporary Casual Employee, but this only lasted for 90 days. In October, 2015, the HSO contacted him to re-assess his medical condition. By this point, Mr. Boychyn had moved to Ontario so was unsure about his future with the RCMP. The parties’ evidence differed as to exactly what happened next, but what is clear is that a medical assessment never took place. In December 2015, the applicant provided updated medical reports to the RCMP including from his treating physician. A month later, the HSO was still not satisfied that his diabetes was under control and found his condition did not meet the RCMP’s policing policy.

The applicant filed a complaint with the Human Rights Commission (the “Commission”) claiming that the RCMP discriminated against him on the basis of disability because of his diabetes. After obtaining the RCMP’s position, the Commission’s investigator commenced and ultimately completed her report of the complaint (the “Report”). The Investigator recommended that the applicant’s complaint be dismissed, which was adopted by the Commission. The applicant sought judicial review of the Commission’s decision.

There were two central issues before the court on judicial review: (1) did the Commission breach its duty of fairness by failing to conduct a thorough and neutral investigation; and (2) did the Commission fail to apply the correct legal test when screening out the applicant’s complaint. Both issues were assessed on the correctness standard of review.

The court held that the Investigator failed to consider whether the applicant’s medical condition met the RCMP requirements, whether the RCMP standard was bona fide and whether the standard was otherwise unclear. The court also found the Investigator failed to conduct any analysis about how the RCMP accommodates general duty constables living with diabetes. The Investigator’s logic for not considering this was because the applicant was never sworn in as a constable (his medical episode having occurred just days before this was to take place). However, the court said the distinction was “absurd” since the RCMP implied that it will accommodate a day after a candidate is sworn in, but not before, simply based on the timing of the medical episode. By “automatically adopting [this] artificial distinction”, the court held the Investigator failed to conduct an adequate investigation. Finally, the court said it was improper for the Investigator to not assess the correctness of the RCMP’s medical opinion regarding the applicant’s condition on the basis that she did not have the necessary expertise.

As for the second issue, the RCMP was required to demonstrate that it would face undue hardship if it were to accommodate the needs of the applicant and there were not alternatives available. While the Investigator found the RCMP standard/policy was rationally connected to policing duties and that it was adopted in good faith, the court found there was no analysis as to whether it was reasonably necessary. This, the court held, meant the Investigator applied the wrong test when screening the applicant’s complaint, which was adopted by the Commission.

For these reasons, the court remitted the matter back to the Commission for reconsideration.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.

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