Labonté

T-2530-93

Between: Claude Labonté, Applicant and: Guy St-Hilaire, and Public Service Commission, and Deputy Head of the Employment and Immigration Commission, Respondents

Reasons for Order

Denault J.:

This applicant is seeking judicial review of a decision of the appeal board of the Public Service Commission dismissing his appeal, and thus upheld his employer's decision to release him for incompetence.

This applicant was first employed by the Employment and Immigration Commission in 1972, and remained with it until October 20, 1993, the effective date of his release. He initially held the position of enforcement and control officer, beginning in 1975, and then from 1981 to 1990 he held the position of national vice-president of the Employment and Immigration Union of Canada.

Since he returned to his position as an enforcement officer on September 24, 1990, the applicant has been incapable of achieving the level of production that was expected of him, and he was unable to perform the duties of his position between September 1990 and December 1992. The applicant's supervisor warned him on several occasions that the quality of his production was still inadequate.

The employer attempted to provide the applicant with any assistance he needed, and gave him all possible training, doing regular monitoring of the status of his work, facilitating access to the psychologist in the employee assistance program, studying the possibility of assigning him to other duties or transfer him to another department, and working with him to identify the cause of his inadequate performance. At no time was there any mention of the applicant suffering from depression.

The applicant was absent for a period starting on December 14, 1992 and ending on January 8, 1993. During that period, the applicant's supervisor recommended that he be released for incompetence. The employer also advised him that it did not want him to return to work and that he could stay at home while receiving his full salary, until further notice. On March 11, 1993, the deputy head recommended that the application be released for incompetence under section 31 of the PublicService Employment Act, R.S.C. 1985, c. P-33, now repealed. The applicant appealed that decision to the appeal board of the Public Service Commission. In June 1993, several days before his appeal was heard by the appeal board, counsel for the applicant sent a psychiatrist's report to counsel for the respondent, which report stated a finding of moderately severe major depression which might have gone back to 1990, and which was allegedly such as would affect his competence at work. The hearing of the appeal was delayed, to allow time for a psychiatrist designated by the respondent to see and ultimately confirm the opinion of the applicant's expert.

The appeal board which heard this matter in September 1993 did an exhaustive analysis of the evidence and concluded that the applicant's performance since September 1990 was no more than forty per cent of the minimum required, and that no one, not even the applicant, was aware that depression could cause such poor performance at work. It was not until June 1993, after the applicant had been notified of the release recommendation, that depression was identified as a probable cause of his poor performance at work. According to the board, the Department of Employment and Immigration was in no position to suspect or to foresee that this inadequacy could have been attributable to an illness or to depression, even though, according to the psychiatrists, symptoms related to depression had started in about the 1990s. The board found that the employer had been correct [translation] "to attribute this inadequacy to a certain degree of incompetence, a certain degree of intrinsic inaptitude, and to conclude that he was incompetent in performing the duties of the position he occupied" [p. 6 of the decision]. The appeal board therefore concluded that the employer's recommendation that the applicant be released for incompetence was well-founded, at the time it was made, and that there was no ground for concluding that the action taken at that time was unreasonable.

Counsel for the applicant first contended before this Court that the appeal board had erred in refusing to take into account the medical evidence establishing that his client had suffered from severe depression since 1990, this illness having been at the root of his inadequate performance at work. Counsel argued that even though the knowledge of this fact post-dated [June 1993] the release recommendation [March 1993], the board should have taken it into account because the actual existence of the illness, or at least the symptoms of the illness, pre-dated the release recommendation. He argued that the applicant was not able to understand what was happening to him in 1990 and that he therefore was unable to get assistance or to inform his employer of it. The applicant submitted, finally, that the release recommendation made on March 11, 1993 was made without the deputy head having full and complete knowledge of the relevant facts. On this point, relying on AHMAD ,counsel submitted that the appeal board erred in refusing to intervene, since there was "relevant material" establishing that the employer did not have all the facts on which it could have made an informed decision.

The appeal board refused to take this evidence, which post-dated to the decision to release the applicant, into account. Referring specifically to the decisions of this Court in LEMIEUX v. Public Service Commission of Canada [March 4, 1985, A-481-84], CLARE v. A.G. Canada, [1993] 1 F.C. 641, and more particularly in CANADA [Attorney General] v. STEWART et al. [1993], 152 N.R. 155 [F.C.A.], the chairman of the appeal board stated, citing Décary J.A. in STEWART:

[Translation]

... the appeal board reviews the decision of the deputy head, and in so doing it may take into account only the facts in existence at the time of that recommendation, since to do otherwise would be "to give the Appeal Board the benefit of hindsight when assessing the reasonableness of a recommendation".

I believe that the appeal board's decision not to take the expert evidence submitted after the recommendation to release the applicant into account is unassailable both in fact and in law. First, it is settled law now, since the decision in STEWART, that the role of the appeal board is to determine whether the employer's decision is reasonable and was made in good faith, taking into account the information it had at the time when it made its decision. Second, the circumstances of this case do not justify the contention, relying on AHMAD, that an appeal board may intervene if there is relevant material establishing that the employer did not have all the necessary facts on which it could have made an informed decision. In the case at bar, there was no relevant material, before the decision was made, on the basis of which the employer could have decided otherwise than it did. The psychiatrists' reports, which post-dated the release recommendation, cannot be characterized as material of which the deputy head was unaware. With respect to the criticism addressed to the employer by counsel for the applicant, that it did not detect its employee's illness, this argument also cannot be accepted: an employer whose good faith or efforts to assist its employee have not been questioned cannot be required to have known of the existence of an illness of which even the employee was unaware, after having been subject to tests and notices from his superiors for more than two years before being released.

Counsel for the applicant also argued that the deputy head's decision to recommend that the applicant be released, and the subsequent decision of the appeal board, are contrary to the Canadian Human Rights Act, since that Act provides that it is discriminatory to refuse to continue to employ an individual on the ground of disability, and that nervous depression constitutes a disability within the meaning of that Act [BOUCHER v. CANADA [Correctional Service], 9 C.H.R.R. Decision 766].

In the recent decision in MacNEILL , the Federal Court of Appeal had occasion to analyze section 31 of the Public Service Employment Act in relation to the Canadian Human Rights Act, R.S.C. 1985, c. H-6. The issue, specifically, was whether a public service appeal board established under section 31 of the Public Service Employment Act had the necessary jurisdiction to apply the provisions of the Canadian Human Rights Act pertaining to employment when deciding an appeal from arecommendation by a deputy head. In a majority decision, the Federal Court of Appeal allowed the Attorney General's appeal. Robertson J.A. held that the appeal board did not have the requisite jurisdiction to apply the Canadian Human Rights Act. He concurred, in the result, in the decision of Desjardins J.A. holding that section 31 of the Public Service Employment Act is not inconsistent with the Canadian Human Rights Act and has not been amended by that Act. I therefore find that this argument by counsel for the applicant cannot succeed.

For these reasons, the application for judicial review is dismissed.

Ottawa, December 22, 1994

Pierre Denault, J.F.C.C.

Certified true translation, Kathryn E. Barnard