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The Federal Court has ordered the Canadian Human Rights Commission to investigate a complaint it had dismissed as “vexatious” from a former public servant forced to take medical retirement after being on leave for 18 years due to back pain.
The March 6 decision means that a Treasury Board policy on medical retirement could face scrutiny by the Canadian Human Rights Tribunal to determine if it discriminates against people with disabilities.
Cecilia Carroll was working for Service Canada in St. John’s, Nfld., in 1993 when she went on sick leave without pay. She took medical retirement “under duress” in December 2011 when her employer informed her she would be dismissed unless she returned to work or retired on medical grounds.
Carroll filed a complaint with the rights commission in September 2013 after her employer denied three grievances her union filed on her behalf.
In the complaint, she argued that Treasury Board’s directive on leave and special working arrangements was “discriminatory against people with disabilities.”
The 2009 directive applies to the 195,000 public servants working in the core public administration. Its objective is to ensure that departments manage paid and unpaid absences “in a sound, consistent and effective manner.”
The commission dismissed Carroll’s complaint last April. It said the allegations she raised were the same as those addressed in her final grievance, and the commission was obliged to respect “the finality of that decision.” As a result, it said, it was “plain and obvious” that Carroll’s complaint was vexatious.
Federal Court Judge Richard Mosley found that the commission’s decision was both procedurally unfair and unreasonable. He referred Carroll’s complaint back to the human rights commission for a full investigation and directed that it could not dismiss it as frivolous or beyond the commission’s jurisdiction.
Carroll’s lawyer, Amanda Nash, said the decision means the commission is obliged to consider her client’s complaint on its merits.
“I think it will be hard for the commission to say it doesn’t have any merit,” she said. If so, it would have no choice but to refer the complaint to the human rights tribunal for a hearing and adjudication, Nash said.
That means the tribunal will likely decide whether the Treasury Board policy is discriminatory, Nash said, a decision that would have far-reaching consequences.
“We believe the Treasury Board policy with respect to medical retirement is discriminatory,” she said. “I’m sure in the federal public sector there are many more people who this policy is applied to and may have a discriminatory effect.”
In his decision, Mosley said the commission “utterly ignored” Carroll’s arguments that the Treasury Board policy was discriminatory. In fact, the commission investigator who concluded that Carroll’s complaint was vexatious wrote that her allegation that the policy was discriminatory wasn’t part of her complaint.
Given that Carroll’s allegation appeared “in plain English” in the first paragraph of her complaint, Mosley said, “it is difficult to understand how this statement could be misunderstood. The investigator either did not read it or read it so carelessly that he did not understand it.”
Carroll submitted six pages of argument in reply, pointing to blatant errors in the investigator’s report. “This had no effect on the commission, which simply endorsed the report and dismissed the complaint,” Mosley tartly observed. “This flaw compounds the previous flaws and renders the decision untenable.”
dbutler@ottawacitizen.com
twitter.com/ButlerDon
查看原文...
The March 6 decision means that a Treasury Board policy on medical retirement could face scrutiny by the Canadian Human Rights Tribunal to determine if it discriminates against people with disabilities.
Cecilia Carroll was working for Service Canada in St. John’s, Nfld., in 1993 when she went on sick leave without pay. She took medical retirement “under duress” in December 2011 when her employer informed her she would be dismissed unless she returned to work or retired on medical grounds.
Carroll filed a complaint with the rights commission in September 2013 after her employer denied three grievances her union filed on her behalf.
In the complaint, she argued that Treasury Board’s directive on leave and special working arrangements was “discriminatory against people with disabilities.”
The 2009 directive applies to the 195,000 public servants working in the core public administration. Its objective is to ensure that departments manage paid and unpaid absences “in a sound, consistent and effective manner.”
The commission dismissed Carroll’s complaint last April. It said the allegations she raised were the same as those addressed in her final grievance, and the commission was obliged to respect “the finality of that decision.” As a result, it said, it was “plain and obvious” that Carroll’s complaint was vexatious.
Federal Court Judge Richard Mosley found that the commission’s decision was both procedurally unfair and unreasonable. He referred Carroll’s complaint back to the human rights commission for a full investigation and directed that it could not dismiss it as frivolous or beyond the commission’s jurisdiction.
Carroll’s lawyer, Amanda Nash, said the decision means the commission is obliged to consider her client’s complaint on its merits.
“I think it will be hard for the commission to say it doesn’t have any merit,” she said. If so, it would have no choice but to refer the complaint to the human rights tribunal for a hearing and adjudication, Nash said.
That means the tribunal will likely decide whether the Treasury Board policy is discriminatory, Nash said, a decision that would have far-reaching consequences.
“We believe the Treasury Board policy with respect to medical retirement is discriminatory,” she said. “I’m sure in the federal public sector there are many more people who this policy is applied to and may have a discriminatory effect.”
In his decision, Mosley said the commission “utterly ignored” Carroll’s arguments that the Treasury Board policy was discriminatory. In fact, the commission investigator who concluded that Carroll’s complaint was vexatious wrote that her allegation that the policy was discriminatory wasn’t part of her complaint.
Given that Carroll’s allegation appeared “in plain English” in the first paragraph of her complaint, Mosley said, “it is difficult to understand how this statement could be misunderstood. The investigator either did not read it or read it so carelessly that he did not understand it.”
Carroll submitted six pages of argument in reply, pointing to blatant errors in the investigator’s report. “This had no effect on the commission, which simply endorsed the report and dismissed the complaint,” Mosley tartly observed. “This flaw compounds the previous flaws and renders the decision untenable.”
dbutler@ottawacitizen.com
twitter.com/ButlerDon
查看原文...
