Between:
Yanick Lindor
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Public Works and Government Services Canada
Respondent
Decision
File No.: T1465/1110
Member: Robert Malo
Date: April 9, 2014
Citation: 2014 CHRT 13
I. Background
[1] On January17, 2005, Ms. Yanick Lindor, the complainant in the case, filed a complaint with the Canadian Human Rights Commission (the Commission) pursuant to sections 7 and 14 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act), against the Department of Public Works and Government Services Canada, the respondent herein.
[2] On March 17, 2010, under section 44(3)(a) of the Act, the Commission referred the portion of the complaint that involved the complainant’s alleged disability to the Canadian Human Rights Tribunal (the Tribunal), and accordingly the Commission dismissed the portion of the complaint with respect to the prohibited grounds of discrimination as to age, colour and the complainant’s family status.
A. Complainant’s position
[3] At the very beginning of the hearing, counsel for the complainant indicated to the Tribunal that it had to first decide on liability and, based on the Tribunal’s decision, a second hearing with respect to damages might be required.
[4] In his argument, counsel for the complainant stated that he would call two witnesses: Yanick Lindor, the complainant and Isabelle Borré, a labour relations officer for the Canadian Association of Professional Employees.
[5] In summary, counsel for the complainant stated that there was a disability that would be proved at the hearing, that the complainant had been a victim of discrimination under section 7 of the Act, that the complainant had suffered differential treatment and that the respondent was aware of this. Lastly, he invoked the provisions of section 14 of the Act regarding harassment.
B. Respondent’s position
[6] In his presentation, the respondent’s representative indicated to the Tribunal that there was no prima facie evidence of discrimination based on a disability as alleged by the complainant.
[7] In addition, the respondent’s representative told the Tribunal that the complainant had not complied with the basic requirements of the program that she had agreed to and that there were always significant shortcomings in the complainant’s work.
[8] He indicated to the Tribunal that the decision to dismiss the complainant was made solely on the basis that the complainant could not meet the basic requirements of the program and was not motivated by the complainant’s alleged disability.
[9] He said that the respondent terminated the Learning Program, which the complainant had agreed to, solely because of her unsatisfactory performance, which was apparent throughout the relevant period and that therefore the respondent did not engage in a discriminatory practice.
[10] In terms of its evidence, the respondent called the following seven witnesses:
− Louise Caron, translator with the Translation Bureau, Criminology Unit, which is part of the Department of Public Works and Government Services Canada;
− Manon Boucher, the complainant’s supervisor;
− Céline Marchand, the complainant’s coach;
− Simon Audy, translator with the Translation Bureau, Criminology Unit;
− Micheline Audet, Case Manager for the complainant’s file;
− Geneviève Durocher, Labour Relations Officer in this case;
− Jocelyne Doyle-Rodrigue, Director of the Translation Bureau’s Multilingual and Regional Translation and National Security Branch.
II. Facts
A. Complainant’s evidence
- Yanick Lindor
[11] At the beginning of her testimony, the complainant indicated to the Tribunal that she had agreed on October 10, 2002, to take a translation course under the TR Learning Program (Socio‑economic, Political and Legal Translation/Criminology) in Ottawa. This agreement was further to an offer made by the respondent in a letter dated September 26, 2002, in which the complainant had been invited to receive training to become a translator under the TR Learning Program commencing November 18, 2002.
[12] In support of that letter was a summary of the conditions of employment, which set out the salary, probationary period and learning period. The learning period would enable the complainant to obtain a Standard of Competence (TR-02 level) within a maximum two‑year period, with the possibility of being appointed more quickly to the operational level, i.e. the TR‑02 level.
[13] As the summary of the conditions of employment shows, the objectives of the Learning Program would enable the complainant to obtain [translation] “training to achieve the Standard of Competence (TR-02 level)”, with the [translation] “establishment of a business culture within a public administration context” and the “development of a client service ethic” (Exhibit P-1, Tab A-3).
[14] The same summary referred to the ability to work under stressful conditions, [translation] “displaying qualities like flexibility and availability in a context of optimizing resources” (Exhibit P-1, Tab A-3 of the complainant’s documents).
[15] Accordingly, following the acceptance of the offer the respondent had made to her, a developmental plan was prepared in the complainant’s name for a two‑year period from November 18, 2002, to November 18, 2004.
[16] It is to be noted that, in the developmental plan submitted to the complainant, in general, it takes a recent graduate in translation two years to reach the desired working level, which means that:
• he or she fully meets the qualitative requirements of the employer, namely the ability to translate autonomously every type of text received by his or her unit or team, depending on the specific situation in the unit, regardless of level of difficulty and degree of urgency (autonomously means that the vast majority of the employee’s texts do not require revision);
• he or she fully meets the quantitative requirements of the employer, namely the ability to achieve the targeted production level, which is measured in terms of revenue generated.
(Exhibit P-1, Tab A-5)
[17] In the same plan, it is noted:
[I]t is reasonable to assume that an employee recruited at the TR-01 level through the Translation Bureau’s TR Learning Program will generally need two years of training before achieving professional autonomy and a performance level matching the revenue objective that has been set.
(Exhibit P-1, Tab A-5)
[18] In other words, this developmental plan provided for a two‑year training period, which would prove fateful for the complainant, as the evidence will show.
[19] Similarly, it is useful to point out that the same developmental plan noted the following:
However, the Translation Bureau is under no obligation to keep a TR-01 on staff for the entire two‑year period and can terminate his or her employment at any time during the course of the Program if it is clearly established that the employee will not achieve the required level of competence during the course of the Program, as demonstrated by the employee’s failure to fully achieve all the applicable objectives for a given phase of the Program. Exception: employees recruited from within the Public Service.
(Exhibit P-1, Tab A-5)
[20] In order to accomplish the objectives in this developmental plan, a coach was assigned to the complainant, Céline Marchand.
[21] Also, Manon Boucher was in charge of this unit at the time.
[22] Throughout the duration of the training, periods of assessment were to take place every three months.
[23] Shortly after the developmental plan began, just before the Christmas 2002 holiday period, her coach, Céline Marchand, asked to meet with her in the Translation Bureau’s boardroom without knowing exactly the reason for the meeting.
[24] At that time, Ms. Marchand informed the complainant that they did not want to keep her and that she should make a decision during the upcoming holiday period; according to Ms. Marchand, the complainant was told [translation] “I don’t see a future for you in the Bureau. ”
[25] Needless to say, the complainant was stunned. The complainant said that she was not expecting this type of comment. She was surprised, disappointed and lost. She told the Tribunal that her holidays were awful and, despite the fact that Ms. Marchand had asked her to make a decision about her future in the Translation Bureau, the complainant said that she made the decision to come back with the best of intentions, i.e. to translate faster with certain tools. Consequently, in January 2003, the complainant continued her Learning Program.
[26] Subsequently, the complainant referred to her first assessment dated March 4, 2003, which was given to her in the presence of her coach, Ms. Marchand and Ms. Boucher on March 4, 2003.
[27] According to the complainant, she indicated to the Tribunal that she [translation] “was coming along” and, in this regard, she was satisfied and saw that it was possible for her to progress within the Translation Bureau.
[28] Similarly, an assessment for phase two was prepared, dated June 12, 2003 (Exhibit P-1, Tab A-8).
[29] This report also referred to results [translation] “partially achieved”, and in other comments at the end of the report, the following was stated:
[translation]
Yanick is an employee who wants to learn and do well. The numerous recommendations in these assessments are related to the difficulties she is having in submitting her translations on time. By learning to organize her time better, applying herself to rendering the source text well, choosing the correct, relevant terms and carefully rereading the final product, Yannick will gradually become more self‑confident and will increase her pace of work.
(Exhibit P-1, Tab A-8)
[30] In her testimony, the complainant said that after this second assessment she was positive but that her supervisor, Ms. Boucher, told her that she was being transferred to another unit. She was very surprised and did not understand what was going on. According to the complainant, Ms. Boucher told her that a friend had asked her for help in another unit. Although she said she was upset by this news, the complainant indicated that she was not worried and continued to work very hard. However, she noted that Ms. Boucher was angry with her.
[31] Then came the third assessment dated September 16, 2003 (Exhibit P-1, Tab A-9).
[32] In the qualitative performance objectives, we note some partially met objectives as well as others that were fully met.
[33] In the [translation] “other comments” section, we note the following: [translation] “Yanick seems to have reached a plateau for the moment. It is true that there are numerous points that need to be corrected and that it is not easy to improve everything quickly, but these aspects are the essential components of a translator’s work.” (Exhibit P-1, Tab A‑9).
[34] It was at that point that the situation deteriorated rapidly, according to the complainant.
[35] She noted that her coach, Ms. Marchand, no longer had as much time to coach her. She was criticized, but the complainant stated that she redoubled her efforts; in addition, she told the Tribunal that there was too much stress. She spoke to Ms. Boucher about this, but it was too much. The complainant indicated that she felt too pressured and said that she had a hard time with Ms. Marchand. She went back to see Ms. Boucher, but almost every time she went to see Ms. Marchand, it was a panic situation. As well, she felt that everything she did was criticized, and Ms. Marchand told her that she no longer had time to work with her. The complainant said that she felt like she was on trial. She said that she trembled on several occasions without knowing what was really happening.
[36] In the face of such pressure, the complainant said that one morning she had a headache, an upset stomach, she was trembling, then lost consciousness, and it was her husband who picked her up. A visit to her doctor on September 26, 2003, led to a doctor’s note, which was filed as Exhibit P‑1, Tab A-10, stating that, because of a personal situation, the complainant would have to take some time off work and be assessed in three weeks.
[37] Subsequently, the complainant provided another medical prescription dated October 14. 2003, to her employer, which indicated a further period of leave until November 4, 2003 (Exhibit P-1, Tab A-11).
[38] In her testimony, the complainant stated that Ms. Boucher telephoned her almost every day for information about documents, passwords and the status of her work. The complainant said that at the very beginning she cooperated with Ms. Boucher and told her that she would work on certain documents at home and then return them to Ms. Boucher in due course. She felt that her home was being invaded. Also, the complainant indicated that she did not know that it was depression, but her doctor told her that. Her doctor told her not to do any work and to stop answering the phone, which she did.
[39] Similarly, the complainant stated that her doctor had not specified that she was suffering from a nervous breakdown but, according to her, that type of information is not disclosed. She did not discuss with her doctor whether that diagnosis was to be included in the various doctor’s notes that were provided to her employer. In response to the absences mentioned in the various doctor’s notes, Manon Boucher established an intervention plan with respect to the complainant. In a first email, which Ms. Boucher sent to the complainant on November 26, 2003 (Exhibit P‑1, Tab A-14), she said that the intervention plan was ready and that a meeting would be held on Wednesday, December 10, 2003, in the presence of the complainant’s representative, Isabelle Borré, and with Geneviève Durocher, Labour Relations Officer at Public Works and Government Services.
[40] It is to be noted that the various doctor’s notes submitted to the employer contemplated a gradual return to work by the complainant of two days, three days and later four days a week.
[41] At the hearing, the complainant described this meeting of December 10, 2003, with Geneviève Durocher, Isabelle Borré and Manon Boucher as stormy and said that during the meeting she needed to leave the room, wanted to disappear and found the atmosphere intolerable. In her testimony, the complainant also referred to a medical consultation report dated December 19, 2003, signed by her family doctor, Dr. Janet Seale, addressed to Michèle Delisle, the complainant’s consulting psychologist at that time. It stated that the diagnosis was depression and anxiety. The complainant told the Tribunal that she did not remember giving the report to her employer.
[42] Still regarding the doctor’s note of December 19, 2003. the complainant told the Tribunal that she had taken steps to meet with a psychiatrist and a psychologist with the assistance of her treating physician, hence the doctor’s note of December 19, 2003.
[43] The complainant also told the Tribunal that she participated in a skills review from January 26 to 30, 2004. She said that at that point she was in a period of progressive return for work purposes, two to three days a week following her doctor’s advice. Accordingly, she informed Ms. Boucher that she could not work more than three days a week. However, the complainant said that Ms. Boucher indicated that it was imperative that she participate in training on those dates. Next there was a fourth performance assessment as part of her Learning Program, dated January 12, 2004 (Exhibit P-1, Tab A-20).
[44] Once again, the complainant obtained results demonstrating that she had not completely met the objectives of the Learning Program. The report was again signed by Céline Marchand, coach, Manon Boucher, manager, and the complainant.
[45] Another doctor’s note dated February 4, 2004 (Exhibit P-1, Tab A-21), which was given to Manon Boucher, stated that the complainant was not 100% back to normal but that a progressive return of three days a week, with breaks, was indicated before her complete return to work.
[46] Then came the various assessments regarding the action plan that had been established because of the complainant’s health.
[47] An assessment dated January 2004 stated that the complainant was still regularly making distraction errors and writing initialisms that sometimes did not agree, cumbersome sentences that lacked clarity as well as passages that were misunderstood and illogical (see the report at Exhibit P-1, Tab A-22).
[48] The assessment also states: [translation] “after a year of work in our unit, Yanick should no longer be making these errors in her texts this often but should only need guidance in understanding our areas of work” (Exhibit P-1, Tab A-22, paragraph 4).
[49] Other reports also show the unenviable progress in the complainant’s performance. She also drew the Tribunal’s attention to other doctor’s notes that show an increase from three to four days in a work week (Exhibit P-1, Tab A-26 (doctor’s note dated April 1, 2004)).
[50] Another doctor’s note dated April 16, 2004, shows that clearly the complainant was affected by the condition that afflicted her at the time, that she was experiencing a great deal of stress, had difficulty sleeping and was suffering from headaches.
[51] Then came a doctor’s note dated April 16, 2004, which indicated a sick leave from April 19, 2004, to July 19, 2004 (Exhibit P-1, Tab A-28).
[52] During the same time period, a letter dated April 22, 2004, signed by Manon Boucher of the Translation Bureau (Criminology Unit) informed the complainant that her participation in the TR Learning Program was terminated as of April 6, 2004, i.e. the end of the work day indicated. This letter from Manon Boucher was accompanied by another letter signed by Jocelyne Doyle‑Rodrigue, Director, Multilingual Translation, Regions and National Security, which confirmed the following: [translation] “you did not demonstrate that you were able to reach the competency standards required for your position. Therefore, I am advising you that we are going to terminate your participation in the TR Learning Program on April 6, 2004, at the end of the day” (Exhibit P-1, Tab A-29).
[53] With these letters, an assessment for March 2004 with respect to the action plan that had already been established indicated that the complainant’s performance had declined and that, consequently, the quality of the complainant’s work did not really meet the Translation Bureau’s expectations.
[54] After receiving this letter from Ms. Boucher, together with the March 2004 assessment and the letter from Jocelyne Doyle-Rodrigue, the complainant told the Tribunal that [translation] “that was the end, the last nail in the coffin.”
[55] The complainant told the Tribunal that she felt shame, rejection, sadness, pain and even disgust. She confirmed to the Tribunal that that was the beginning of her major depression.
[56] The complainant also told the Tribunal that, on her doctor’s recommendations, she provided her employer, Manon Boucher, with information about her condition, which was sent based on the various doctor’s notes filed in the record.
[57] Lastly, the complainant referred to an email dated May 25, 2004, from Manon Boucher addressed to all staff members of the Translation Bureau (Exhibit P-1, Tab A-30). In that email, Ms. Boucher informed the staff that Yanick Lindor was leaving, even though the complainant was ill at home and not working. The complainant described this email as follows: [translation] “She had to destroy the animal.”
[58] On cross‑examination, the complainant confirmed that at the end of the summer of 2003, i.e. towards the end of July 2003, her situation at the Bureau began to deteriorate. She confirmed that Ms. Marchand was still coaching her but was asking her to stop repeating the same errors.
[59] Also, on September 16, 2003, at a meeting regarding her assessment with Céline Marchand and Manon Boucher, the relationship became very difficult.
[60] On cross‑examination, when respondent’s counsel asked her whether she remembered that Ms. Boucher was asking her to work more than the doctor was asking of her, the complainant stated that Ms. Boucher was asking for production that she was not able to reach.
[61] She also confirmed that she had no pressing financial problems that could make her ill. She indicated that her husband was also employed.
[62] In response to a question asked by counsel as to whether the complainant’s employer had accommodated her from November 2002 to January 2006 based on the medical certificates provided, the complainant confirmed positively that this was the case [translation] “if it were done appropriately.”
[63] Lastly, on cross‑examination, she confirmed that she had received an email from Manon Boucher dated June 1, 2004, apologizing about the fateful email dated May 25, 2004, that had been sent to all Translation Bureau employees.
[64] The complainant said that she was mortified by that email, which her son received and that even if the intentions were laudable, [translation] “killing” a person is not laudable in her view and that by sending it Manon Boucher slapped her family in the face.
- Isabelle Borré
[65] As part of her evidence, the complainant also called Isabelle Borré, Labour Relations Officer for the Canadian Association of Professional Employees.
[66] Ms. Borré confirmed that she assisted the complainant at various meetings that took place between management and the complainant in regards to monitoring the Learning Program and the action plan that was implemented as a result of the doctor’s notes that the complainant sent to the respondent’s representatives.
[67] Ms. Borré confirmed that the meetings with Ms. Lindor and the respondent’s representatives were not friendly, that the complainant was very affected, she cried and trembled and that the micromanagement was very difficult for the complainant. She noted that the complainant was clearly suffering from considerable stress.
[68] Ms. Borré also informed the Tribunal that she noted that the complainant’s doctor wanted her to stop working, that the complainant was experiencing a great deal of anxiety, which became an illness and that it was obvious that [translation] “she was ill, had circles under her eyes and was exhausted.”
[69] She confirmed to the Tribunal that the sending of the May 25, 2004, email by Manon Boucher to all staff at the Translation Bureau did not impress her and that this did not excuse the action or the blackening of the complainant that appeared in that email.
[70] Ms. Borré also informed the Tribunal that the two‑year period indicated in the learning period was not a fixed deadline or a limit that could not be moved, according to her.
[71] On cross‑examination, Ms. Borré indicated that, with respect to the action plan established to enable Ms. Lindor to achieve the objectives of the TR Learning Program, the chances that the complainant could be rehabilitated were nil. She also noted that Ms. Lindor wished to continue working even though she was not certain that she was able to understand the extent of her own illness.
[72] Ms. Borré confirmed to the Tribunal that she was relieved when the complainant’s psychiatrist ordered her to stop work completely in a doctor’s note dated April 16, 2004. She also referred to her own notes dated April 7, 2004 (Exhibit P-1, Tab B-12), where she referred to the fact that the complainant’s doctor did not agree that she should continue to work four days a week.
[73] The same note mentions that the complainant needed money, which she confirmed at the hearing.
B. Respondent’s evidence
[74] In presenting its evidence, the respondent called the following seven witnesses:
− Louise Caron, translator since 1975 and at the time of this case, Director of the Legal and Economic Branch;
− Micheline Audet, Disability Management Advisor;
− Manon Boucher, chief, Criminology Unit of the Translation Bureau at the time of this case;
− Céline Marchand, translator with 31 years of experience at the Translation Bureau, Criminology Unit, and the complainant’s coach;
− Simon Audy, translator at the Translation Bureau and proofreader of the complainant’s texts;
− Geneviève Durocher, Labour Relations Advisor for the Translation Bureau;
− Jocelyne Doyle-Rodrigue; at the time of this case, Ms. Doyle‑Rodrigue was the Director of the Multilingual Translation, Regions and National Security Branch at the Translation Bureau.
- Louise Caron
[75] In her testimony, Louise Caron, who was Director of the Legal and Economic Branch at that time, informed the Tribunal that the Learning Program that the complainant was involved in and had been given an offer to participate in was based on the Translation Bureau’s needs and was in competition with the private sector at that time.
[76] As a result, the recruitment method that was in effect at that time enabled the Translation Bureau to replenish its workforce. It was therefore agreed that the TR program was to take two years and that this timeframe should enable a person to reach the objectives set for training new translators. This two‑year timeframe was consistent with the industry norm and has proven to be sufficient.
[77] Ms. Caron referred to the fact that the two‑year training was intended to be full‑time and that part‑time work was not accepted. Accordingly, translators had to work five days a week. If accommodations had to be made, the deadline could be deferred in light of a period of absence.
[78] She confirmed to the Tribunal that a coach’s work involved the work aspect more than the medical aspect. She also confirmed that each case is different and that a coach must speak to the manager about any problems. With respect to discipline and accommodations, labour relations were to take over at that point. The manager was ultimately responsible for the success or failure of the Learning Program for a candidate.
[79] She also confirmed that the two‑year timeline set out in the developmental plan could be the subject of an accommodation, for example for maternity or sick leaves.
- Micheline Audet
[80] During her testimony, Micheline Audet confirmed that she has been a disability management advisor since 2001 and facilitates the return to work of employees who have been ill. Each situation has to be assessed on a case‑by‑case basis.
[81] Ms. Audet explained that the receipt of a medical certificate was therefore crucial in this assessment. She confirmed to the Tribunal that she had received a call from Manon Boucher on September 26, 2003, during which Ms. Boucher informed her that Yanick Lindor had to stop working for three weeks. Ms. Audet confirmed that she saw the medical certificate filed as P-1, Tab A-10, which mentioned a personal situation with respect to the complainant’s medical condition. She did not ask the complainant’s doctor any questions with respect to this medical certificate.
- Manon Boucher
[82] The respondent then called Manon Boucher, the manager in Yanick Lindor’s case.
[83] Ms. Boucher confirmed that the complainant’s texts contained [translation] “oddities” as of the first assessment stage. She confirmed that there were unexpected things, commas, words used improperly and that this did not look like finished work. She told the Tribunal that the complainant’s performance appraisals contained annotations of objectives partially met and confirmed that Ms. Lindor began to experience problems at the beginning of the learning period.
[84] Ms. Boucher informed the Tribunal that at the September 16, 2003, assessment, i.e. the third step, the objectives had not been met and that there were many improvements but the same errors were always present, which were [translation] “basic things.”
[85] Accordingly, she considered preparing an action plan and identifying the improvements the complainant had to make.
[86] She confirmed to the Tribunal that the day after that meeting, i.e. September 17, 2003, the complainant began her sick leave. Subsequently, on September 26, 2003, a doctor’s note was provided (Exhibit P-1, Tab A‑10).
[87] The witness told the Tribunal that she thought that the complainant was reacting to the action plan that had been suggested to her. She thought that the complainant had a stress issue.
[88] Ms. Boucher confirmed that the complainant had given her the doctor’s note in person without providing any details about the nature of the complainant’s condition.
[89] Ms. Boucher confirmed that she and Céline Marchand had prepared the proposed action plan and that it was submitted at the meeting on December 10, 2013, in the presence of Geneviève Durocher, Isabelle Borré and the complainant. Contrary to what Ms. Lindor claimed, Ms. Boucher told the Tribunal that the meeting lasted between an hour and an hour and a half. There was no shouting and she did not see Ms. Lindor cry. She indicated to Ms. Lindor that, unfortunately, she had to work twice as hard. She also informed the Tribunal that Yanick Lindor’s medical condition was never disclosed to her, but she suspected it was stress. She told the Tribunal that, in her view, she did not have the right to ask about the exact nature of the complainant’s condition. She confirmed to the Tribunal that the situation at the Translation Bureau is very stressful and that this requires constant concentration.
[90] Finally, she noted that the expected objectives were not met and that, subsequently, Ms. Lindor spoke less and less, while being aware that there was more backsliding than progress in her situation.
[91] Ms. Boucher indicated to the Tribunal that, at the third assessment in March 2004, it was noted that there had been a setback in the complainant’s situation and that the assessment in question was not very positive. In light of this situation, she discussed it with Jocelyne Doyle-Rodrigue, her immediate boss, and that, in the end, since it was always the same stumbling blocks, it became apparent that continuing the Learning Program was not a good idea for the complainant. Accordingly, Jocelyne Doyle-Rodrigue wrote an official letter on April 6, 2004, to terminate the complainant’s Learning Program.
[92] With respect to the email that was sent on May 25, 2004, to all Translation Bureau employees, Ms. Boucher referred to a letter of apology that was subsequently provided (Exhibit I-1, Tab 3).
[93] On cross‑examination, Ms. Boucher confirmed that, in regards to the possibility of suspending the learning project for the complainant, this situation was not normal and that it had been done. Moreover, she confirmed that there was never a question of extending the suspension or extending it for another year. She also confirmed to the Tribunal that in Ms. Lindor’s specific circumstances, the maximum amount of resources and assistance was provided to the complainant.
[94] However, she observed that Ms. Lindor became increasingly silent and that it was difficult to have a discussion with her because she did not respond. Ms. Boucher also informed the Tribunal that Ms. Lindor was responsible for telling her if the situation was unsuitable for her. As to the possibility of further accommodation, she told the Tribunal that she had no information on Ms. Lindor’s health problems and that the medical certificates were those provided by the complainant herself.
- Céline Marchand
[95] In presenting its case, the respondent called Céline Marchand, who had over 31 years of service in the Criminology Unit. She became the complainant’s coach with respect to the facts of this case.
[96] In her testimony, Ms. Marchand referred to the fact that she noted that the complainant was having problems, which indicated that her work was not up to standard because there were many errors. She saw that there would be a big gap between the complainant’s work and the objectives she had to meet. She said the following to the Tribunal: [translation] “we were heading for a catastrophe.”
[97] She referred to a January 2004 assessment regarding the action plan that had been prepared following the problems noted and the complainant’s absences. She referred to mistakes regularly made as a result of distraction errors, writing initialisms that sometimes did not agree, cumbersome sentences that lacked clarity as well as passages that were misunderstood and illogical. She confirmed that uniformity was again a problem. She also stated that Simon Audy, who reviewed all of Ms. Marchand’s revisions, very often found typographical errors that, in spite of everything, had escaped Ms. Marchand’s attention.
[98] She confirmed that after a year of working at the Translation Bureau, the complainant should no longer have been making these types of errors in her texts but should only have needed to be guided in understanding the areas of work.
[99] She found it abnormal to always create a special environment around the complainant because of her difficulties.
[100] In December 2003, she indicated that [translation] “things were going badly.”
[101] She even found texts in the archives that repeated word for word a text that had been given to the complainant to translate.
[102] It was the same text taken by the complainant in another place in order to do this translation. She noted that Ms. Lindor took twice the time required to do a translation. With respect to the complainant’s first sick leave, on cross‑examination, Ms. Marchand indicated that, although she had never doubted the complainant’s medical condition, she had no idea what the condition was. She assumed that it was because of work.
[103] At the hearing, Ms. Marchand referred to a checklist from December 2002 to April 2004 (Exhibit I-1, Tab 22).
[104] It contains references to the effect that the complainant was not fast, was disorganized and that there was something else that could have been troubling her, but without further details.
[105] She noted clearly that the complainant’s work was not up to standard, without being told by the complainant what could be causing her problems. She indicated [translation] “it was silence the entire time, maybe after ten years she would have been able to meet her objectives, but the program was two years, I could not give her more.”
- Simon Audy
[106] As part of its evidence, the respondent also called Simon Audy, who is also a translator at the TR-02 level, but who was a translator at the TR-03 level at the time of this case.
[107] Mr. Audy told the Tribunal that the errors in the documents filed by the respondent as Exhibit I-2 were errors [translation] “that were surprising for a TR in training.”
[108] He noted that there were many quite serious errors in the complainant’s work and that normally, she should have been more advanced considering the time that had passed.
- Geneviève Durocher
[109] The respondent also called Geneviève Durocher, Labour Relations Advisor for the period in which the facts of this case occurred. Her work consisted of giving opinions and advice to management.
[110] Ms. Durocher participated in certain meetings, including the one on December 10, 2003, which led to the preparation of an action plan that was established to enable the complainant to correct shortcomings and reach the required steps in the Learning Program. According to her, the atmosphere was not tense but delicate and, to say the least, cordial.
[111] With respect to the complainant’s medical restrictions, she observed that there were only some notes on her progressive return, nothing more.
[112] On cross‑examination, with respect to the possibility of extending the Learning Program, Ms. Durocher told the Tribunal that this situation was raised when the complainant returned and that if a suspension of seven weeks in total had occurred, the end of the program would have had to be shifted. She confirmed that once the suspension was granted and taken, there was a recommencement but that it was necessary to stay within the two‑year period, which is provided for in the program. Ms. Durocher indicated to the Tribunal that the work had to be done based on the program and that the expectations remained the same but that the quantity of work and the deadlines were established on the basis of the number of hours of work allowed under the medical certificates. The workload was given according to the number of hours, considering the medical certificates.
- Jocelyne Doyle-Rodrigue
[113] Finally, the respondent called Jocelyne Doyle-Rodrigue as its last witness. As mentioned before, Ms. Doyle-Rodrigue was the Director of the Multilingual and Regional Translation and National Security Branch.
[114] She confirmed to the Tribunal that the end of the program could not be changed but that management had taken the complainant’s illness into account after an assessment of all the completed phases and, considering the difficulties that existed at that time and that could not be overcome, it was decided to terminate the program.
III. Law
[115] At the hearing, counsel for the complainant told the Tribunal that he was relying on sections 7(b), 14 and 14.1 of the Canadian Human Rights Act and indicated that the respondent’s accommodation because of the complainant’s condition was inadequate.
[116] For a comprehensive understanding of this case, it is useful to review sections 7(b), 14 and 14.1, which read as follows:
Section 7: It is a discriminatory practice, directly or indirectly,
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
Section 14: (1) It is a discriminatory practice,
(a) in the provision of goods, services, facilities or accommodation customarily available to the general public,
(b) in the provision of commercial premises or residential accommodation, or
(c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination.
Marginal note: Sexual harassment
(2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination.
Section 14.1: It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.
[117] In this regard, counsel for the complainant referred to the fact that the complainant had been harassed by the various actions of the respondent’s employees.
[118] In reply, counsel for the respondent indicated to the Tribunal that only the complainant’s performance was considered in the decision to terminate the TR Learning Program.
[119] He also said that the Tribunal must in fact find that the disability was a ground for dismissal in applying the legal provisions noted above.
[120] The underlying legal principles in applying the Act are now well known.
[121] It is up to the complainant to establish, on a prima facie basis, a case of discrimination or at least one of the alleged bases. In that regard, the required threshold for establishing proof of discrimination is extremely low. As such, the Supreme Court of Canada stated the following: “A prima facie case . . . is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent‑employer” (Ontario Human Rights Commission and O’Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536, at page 558). The respondent’s response or explanation must be credible.
[122] Similarly, the response or explanation must be sufficient and not a pretext (Basi v. Canadian National Railway (no1), (1988) 9 C.H.R.R. D/5029 (C.H.R.T.), at paragraph 38474).
[123] Once the complainant has established a prima facie case of discrimination, the complainant is entitled to relief in the absence of justification by the respondent (Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202, at pages 202 to 208).
[124] It should be noted that the employer’s evidence may be established on balance of probabilities.
[125] Once a prima facie case has been established, the burden of proof shifts to the respondent to demonstrate that the alleged discrimination did not occur or that the conduct seems to not be discriminatory or justified.
[126] To establish a prima facie case of discrimination, the complainant must establish that she had suffered differential treatment based on her disability, contrary to section 7 of the Act. Furthermore, the complainant does not need to demonstrate that the discrimination was not intentional (see Bhinder v. CN, [1985] 2 S.C.R. 561, at page 57).
[127] In evidence, the respondent must demonstrate that the alleged discrimination did not occur or did not originate in conduct that was itself discriminatory. To do so, the respondent must demonstrate the following on a balance of probabilities:
[T]hat the employer adopted the standard for a purpose rationally connected to the performance of the job; . . . that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and . . . that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
(British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, at page 5)
[128] Once the legal principles have been established, the Tribunal must therefore answer the first question, that is, whether the complainant did discharge her burden of proof by establishing, in a prima facie manner, a case of discrimination or, at least, one of its basis.
[129] After attentively reviewing the evidence in the record and considering the testimony of the various witnesses and the exhibits submitted at the hearing, the Tribunal indeed finds that the complainant duly discharged her burden of proof.
[130] More specifically, the Tribunal did in fact note a medical condition that the respondent knew about, and even if that medical condition was not initially specified in the medical certificates submitted by the complainant, paragraph 7(b) of the Act appears to have been violated by the respondent.
[131] Finally, the Tribunal finds that the evidence is sufficient and was established preponderantly to effectively establish the conditions in paragraph 7(b) of the Act. The respondent was duly informed that the complainant had a disability, a definition of which can be found in section 25 of the Act.
[132] Moreover, even if the diagnosis was not established from the start and communicated to the respondent’s representatives, that is, Ms. Boucher and Ms. Marchand, at the first sign of the complainant’s condition, the testimony of Ms. Boucher and Ms. Marchand indicates that they strongly suspected that stress was the cause of the complainant’s said condition.
[133] Taking into account the existence of a condition, even if it was not specified to the respondent, the implementation of an action plan established by the employer for the benefit of the complainant and, subsequently, the dismissal or termination of the TR Learning Program that the complainant was part of, it appears to the Tribunal that all of the requirements have been met to establish, in a prima facie manner, the existence of conditions regarding the application of paragraph 7(b) of the Act.
[134] Considering the reversal of the burden of proof onto the respondent, did it discharge such a burden based on the criteria established by the case law?
[135] After giving much consideration to the evidence in the record, more specifically the testimony of the complainant, as well as that of Manon Boucher and Céline Marchand, the key witnesses in this case, the Tribunal finds that, indeed, the respondent discharged its burden of proof for the following reasons.
A. Complainant’s theory of the case
[136] In its analysis, the Tribunal was confronted with two theories. The first theory is that of the complainant and relies essentially on knowledge by the respondent of her having a medical condition or disability, knowledge which should have led the respondent to make inquiries regarding her health (Mackenzie v. Jace Holdings and another (No. 4), 2012 BCHRT 376; Wall v. Lippé Group, 2008 HRTO 50; Fendick v. Lakes District Maintenance (No2), 2005 BCHRT 573; Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37).
[137] Second, after a more in-depth analysis of the complainant’s health, the employer should have adopted an accommodation process with the complainant based on the more in-depth analysis of her health.
[138] The complainant’s representative believes that the accommodation process must be carried out up to the point of undue hardship as established in the case law and, more specifically, in the following decisions: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT 225; Machado v. Terrace Ford Lincoln Sales, 2011 HRTO 544 (CanLII); Conte v. Rogers Cablesystems Ltd., 1999 CanLII 1022 (CHRT); Grant v. Manitoba Telecom Services Inc., 2012 CHRT 10 (CanLII).
[139] In fact, the complainant alleges that the respondent [translation] “knew or should have known” that the complainant’s medical condition or disability had to result in further accommodation, which was not adopted by the respondent. Furthermore, the complainant directly criticizes Manon Boucher for not requesting an inquiry into her health by Health Canada and finds that the respondent had an obligation to do so and to make further inquiries into her disability.
[140] Furthermore, the complainant criticizes the respondent for not considering extending the two-year period set out in the learning plan and states that there is no proof of undue hardship from an extension of the said TR Learning Program. The complainant alleges that the two-year period set out in the TR Learning Program is merely an internal limit for the respondent and, in that regard, finds that there was no evidence a contrario that the two‑year period or extending the two-year period could have resulted in undue hardship.
B. Respondent’s theory of the case
[141] The second theory is the respondent’s claim that the complainant was removed from the TR Learning Program based solely on her poor performance, and not her disability.
[142] Certainly, in the evidence, the Tribunal noted that there was no medical assessment or report describing the complainant’s disabilities with respect to her ability to carry out her work, not to mention that such an analysis could have perhaps made it possible to further analyze the accommodations required based on the complainant’s condition.
[143] The conduct of both the complainant and the respondent’s representatives must be analyzed with respect to this gap.
[144] In other words, does the failure to obtain such medical expertise rest solely on the employer, or, is there also a need to consider the complainant’s conduct in the disclosure of medical information under her control? That analysis must be done according to the criteria established in Renaud, where the Honourable Mr. Justice Sopinka stated the following:
The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. The inclusion of the complainant in the search for accommodation was recognized by this Court in O'Malley. At page 555, McIntyre J. stated:
Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.
To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.
(Renaud, above, at pages 994 and 995)
[145] In the evidence that was submitted in this file, the Tribunal finds that the complainant’s conduct has not been without reproach.
[146] In fact, in the evidence submitted, the Tribunal also noted a disability insurance information request that refers to a diagnosis of depression and anxiety (Exhibit P-1, Tab A-40). That request was signed by the doctor who treated the complainant, Dr. Janet Seale, who corrected the document dated October 17, 2003, and changed the date to October 24, 2003.
[147] In that regard, it is useful to note that the complainant’s symptoms related to her medical condition apparently started on September 17, 2003, the day after she met with those in charge of the TR Learning Program regarding her performance evaluation (see the section entitled [translation] “Employee information”, completed and signed by the complainant on October 21, 2003, document in Exhibit P-1, Tab A-40).
[148] Later, the document mentions various consultations with Dr. Seale starting on September 26, 2003 and Michèle Delisle, the complainant’s psychologist, on November 10, 2003.
[149] In the various meetings that followed, and more specifically in the one on December 10, 2003, during which an action plan was developed by Manon Boucher and Céline Marchand for the complainant considering her medical condition, the complainant did not, at any point, refer to that disability insurance request or to the diagnosis contained therein.
[150] Similarly, a doctor’s note dated December 19, 2003 (Exhibit P-1, Tab A‑16), addressed to Michèle Delisle, regarding the complainant’s medical condition, mentioned the same diagnosis of depression and anxiety. Again, that doctor’s note was never shown to the respondent.
[151] Oddly enough, the first doctor’s note addressed to the employer dated September 26, 2003 (Exhibit P-1, Tab A-10) refers to a [translation] “personal situation”, and contains no more information on the complainant’s medical condition.
[152] Subsequently, a second doctor’s note dated October 14, 2003, submitted to the respondent, again had no more information on the complainant’s disability. Similarly, a third doctor’s note dated November 12, 2003, addressed to the respondent, also contained no other information on the complainant’s medical condition. Finally, how should the fact that the fourth doctor’s note, which was dated December 19, 2003 (Exhibit P-1, Tab A-16), and referred to a diagnosis of depression and anxiety, was submitted to Michèle Delisle, the complainant’s consulting psychologist, and not to the respondent be interpreted?
[153] In fact, regarding the doctor’s note dated November 12, 2003 (Exhibit P-1, Tab A-13), which was submitted to the employer, how should the complainant’s testimony be interpreted when she said that her doctor never told her that she was having a nervous breakdown and rather that, according to her, [translation] “it’s the type of information that isn’t disclosed”?
[154] The Tribunal finds that the complainant’s failure to disclose some personal information undermines her credibility in this case.
[155] But there is more regarding the complainant’s attitude in this case. Indeed, on December 10, 2003, at a meeting with her representative and the respondent’s representatives, it was agreed that an action plan would be developed to enable the respondent to track the complainant’s progress (Exhibit P-1, Tab A-15).
[156] Note that the action plan, dated November 2003, states the following in its first paragraph:
[translation]
The employee had to take time off for five full weeks for medical reasons and returned to work for two days a week afterwards (upon the advice of her doctor, who deemed her able to work 15 hours a week); the program was interrupted. It should have resumed the week of November 3, but Ms. Lindor was allowed two additional weeks to help her return to her duties slowly. The program was therefore reactivated on November 17, 2003.
[157] The action plan is clearly an accommodation that was provided to the complainant. The complainant and her representative participated in meetings to establish such an action plan. To that effect, the complainant was therefore entitled to, considering her disability, which she knew about (even if not specified), intervene in the development of the action plan and be able to let the respondent know if such an action plan suited her.
[158] In fact, in developing the action plan, the complainant considered her availability, which her doctor reported, for progressive return to work of two, three or four days per week. She therefore participated in the remedies based on her medical condition that she herself disclosed with doctor’s notes from her own doctor.
[159] The evidence shows that despite the action plan and the doctor’s notes provided by the complainant regarding her progressive return to work, the complainant’s performance did not improve.
[160] As such, the Tribunal finds that the respondent cannot be criticized for making the necessary arrangements considering the medical condition, as disclosed by the complainant, in order to accommodate her.
[161] Considering the particular facts in this case, the Tribunal finds that the respondent’s obligation to investigate the complainant’s medical condition should not take precedence over the complainant’s obligation to adequately inform the employer of her medical condition, which she knew about or could have easily known about with more information on the exact nature of her medical condition.
[162] As stated by the Honourable Mr. Justice Sopinka in Renaud, the Tribunal finds that the complainant’s failure to adequately inform her employer of her medical situation, as well as to take reasonable action in this case, considering her medical condition, that she knew about or could have known about in this case, are also at the origin of the failure of the respondent’s proposal. Furthermore, the Tribunal notes, like in Renaud, that the complainant in this case cannot expect a perfect solution.
IV. Decision
[163] The complainant and her representative had the opportunity to present all of the possible solutions based on her medical condition and to ensure her accommodation by the employer, which did not refuse according to the evidence in the record.
[164] In its search for case precedents regarding this case, the Tribunal was able to identify Butler v. Nenqayni Treatment Centre Society, 2002 CanLII 12274 (CHRT), where the employment of the complainant, Butler, was terminated after several efforts to find other functions for the complainant, which were unsuccessful.
[165] In that decision by the Tribunal, which was presided over by Member Anne L. Mactavish (Butler v. Nenqayni Treatment Center Society), the following was stated in applying Meiorin (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3), and Grismer (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868): “[a]s has been previously noted, the search for accommodation is a two way street, with both the employer and the employee having certain responsibilities.”
[166] In another of the Tribunal’s decisions (Benoit v. Bell Canada (Québec), 2004 CHRT 32 (CanLII), Member Athanasios D. Hadjis also had to review the issue of the communication of medical information from a complainant to an employer.
[167] In that decision, where the complainant had an alcohol abuse problem, the complainant’s employment was terminated not only because of his alcoholism, but also because of his weak performance record when compared with the other managerial employees.
[168] Despite the differing facts in this case, in Benoit, the complainant, by his own admission, deliberately and successfully misled his supervising directors into sincerely believing that he was not an alcoholic.
[169] Member Hadjis, reiterating the comments of the Supreme Court of Canada in Renaud, also referred to the fact that there was a responsibility on the part of the employee to take matters into his own hands and ask for help.
[170] In that regard, he stated that the search for accommodation is a multi-party inquiry that commands “an active participation on the part of the complainant” (Benoit).
[171] In conclusion, Member Hadjis stated that, even though not convinced that the complainant’s alcoholism was a factor in the decision to terminate his employment, he found the explanation provided by the respondent reasonable and, as a result, the explanation was not pretextual.
[172] Finally, the Tribunal cites Graham v. Canada Post Corporation, 2007 CHRT 40 (CanLII), a decision presided over by Member J. Grant Sinclair.
[173] In the latter case, the complainant, Sandra Graham, who worked for the Canada Post Corporation (CPC), filed a complaint with the Canadian Human Rights Commission after asking a co-worker at CPC to intercede on her behalf with senior CPC management to try and resolve the difficulties she was having with her manager because of her absence.
[174] In that decision, the Tribunal found that the complainant indeed suffered from a disability during the period in which she was absent from work. Member Sinclair found that, despite the presence of a disability, the complainant did not establish a prima facie case of discrimination.
[175] Similarly, Member Sinclair applied Renaud of the Supreme Court of Canada and stated the following:
To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
(Renaud, above, paragraph g at page 994)
[176] Member Sinclair found that it was not possible for CPC to devise an appropriate accommodation for the complainant (paragraph 93 of the decision).
[177] Consequently, the complaint of discrimination by the complainant, Graham, against CPC was not substantiated and in the end her complaint was dismissed.
V. Conclusion
[178] Like in Butler, Benoit and Graham, above, I find that the complainant knew or should have known her medical situation and could easily have communicated it to the respondent based on the evidence submitted to the Tribunal.
[179] Similarly, the action plan that was implemented within the TR Learning Program, which the complainant was participating in, included sufficient accommodation elements to enable the complainant to find solutions with respect to her disability, and this was proven at the hearing.
[180] The Tribunal cannot assume that the complainant voluntarily hid and did not disclose her complete medical situation like in the above-mentioned Benoit, but certainly the failure to provide the respondent with the medical certificates or doctor’s notes that were provided to her insurer and her psychologist, Michèle Delisle, seriously affects the complainant’s credibility.
[181] Considering the information the complainant provided to her employer and the testimony of the various witnesses, including primarily the testimony of Manon Boucher and Céline Marchand, the Tribunal finds that the respondent did fulfil its duty to accommodate and that, if such accommodation was not successful in the complainant’s situation, she is largely responsible for the failure of the respondent’s proposal.
[182] Finally, in light of the evidence before it, the Tribunal notes that the complainant had a lot of difficulty complying with the TR Learning Program before September 16, 2003, the date of the initial assessment meeting to establish and correct the difficulties she was encountering.
[183] In doing so, the Tribunal seriously questioned the complainant’s ability to actually become a translator and tolerate all of the stress that can result from such a role.
[184] As a result, the Tribunal finds that even an extension beyond the two years provided, as set out in the TR Learning Program, might not have resulted in the complainant becoming a translator at the TR-02 level.
[185] Based on these findings, the Tribunal finds that considering further accommodation in the complainant’s specific situation would have certainly amounted to undue hardship on the respondent. It therefore appears to the Tribunal that further accommodation was not reasonable based on all of the circumstances in this case. As the Honourable Mr. Justice Sopinka pointed out in Renaud, the complainant cannot expect a perfect solution (Renaud, above, at page 995).
[186] The Tribunal therefore finds that the discrimination complaint made by the complainant, Yanick Lindor, against the respondent, Public Works and Government Services Canada, is not substantiated.
[187] Consequently, the complaint is therefore dismissed.
Signed by
Robert Malo
Tribunal Member
Ottawa, Ontario
April 9, 2014
Canadian Human Rights Tribunal
Parties of Record
Tribunal file: T1465/1110
Style of cause: Yanick Lindor v. Public Works and Government Services Canada
Decision of the Tribunal dated: April 9, 2014
Date and place of hearing: September 23 to 27, 2013, and October 21 to 23, 2013
Ottawa, Ontario
Appearances:
Jean-Michel Corbeil, for the complainant
Jonathan Bujeau, for the Canadian Human Rights Commission
Guy A. Blouin, for the respondent