The Federal Court has allowed Canadian Nuclear Laboratories’ (CNL) application for judicial review, ruling that the Canadian Human Rights Commission’s decision to refer an employee’s discrimination complaint to the Canadian Human Rights Tribunal was unreasonable due to a misinterpretation of employment law.
Justice Fothergill found that the Commission’s decision lacked “the requisite degree of justification, intelligibility and transparency” because it was based on outdated jurisprudence that misrepresented the common law governing the employment relationship between CNL and the employee, L.A.
L.A. began working for CNL at the Whiteshell Laboratory Campus in Manitoba on Dec. 1, 2008. Whiteshell is a former nuclear research facility undergoing decommissioning since 2003. On April 29, 2019, CNL provided L.A. with eight weeks’ written notice of termination due to the ongoing decommissioning, with the expectation that she would continue to work and receive salary and benefits until June 21, 2019.
The following day, L.A. took medical leave and sought disability benefits. Her physician stated she was “clinically unable to work in any capacity.” On May 30, 2019, Morneau Shepell, CNL’s third-party disability management administrator, denied her eligibility for medical leave benefits based on the submitted documentation. L.A. appealed this decision.
On June 3, 2019, CNL informed L.A. that while their normal course would be to discuss a return to work, they would “not require [her] to work” and would consider her absence on sick leave as part of the working notice period, remunerating her as if she had continued to work. L.A. agreed to this arrangement on June 6, 2019.
Her employment ended on June 21, 2019. Approximately a year later, on May 25, 2020, L.A. filed a human rights complaint against CNL with the Canadian Human Rights Commission, alleging discrimination in employment.
A Human Rights Officer conducted a preliminary investigation and found no reasonable basis to conclude that CNL’s decision to lay off L.A. was linked to her disability or that denying her access to disability leave beyond the notice period was discriminatory. However, the officer noted that L.A.’s ability to search for new employment during the working notice was adversely affected by her disability. The officer stated that non-disabled employees “could search for alternate employment during their period of working notice,” whereas L.A. could not due to her disability.
The officer referred to case law cited by L.A., including McKay v Camco Inc. and Marinis v Third Generation Realty Ltd., suggesting that there are differing perspectives on whether an employer should suspend a notice period when a disabled employee cannot search for alternate employment. The officer concluded that this was “a legally complex issue that requires further inquiry by a Tribunal” and recommended that the Commission refer the complaint to the Tribunal.
The Commission accepted the officer’s findings and referred the complaint to the Tribunal after an unsuccessful conciliation attempt. CNL sought judicial review of this decision.
Justice Fothergill determined that the Commission’s decision was unreasonable because it was based on a misapprehension of the common law. The officer relied on outdated jurisprudence that had been overtaken by more recent decisions. Specifically, the officer’s understanding was derived from McKay and Marinis, which had been superseded by cases like White v Woolworth Co. and White v Viceroy Fluid Power International Inc. These later cases clarified that an employer is not obligated to suspend a notice period during an employee’s disability.
The court stated, “Given developments in the common law of dismissal subsequent to McKay and Marinis, this conclusion was not supported by the applicable jurisprudence.” The officer’s misinterpretation led to the finding that there was a reasonable basis to refer the complaint to the Tribunal, which the court found unreasonable.
Furthermore, Justice Fothergill noted inconsistencies in the officer’s conclusions. While the officer found no link between CNL’s actions and discrimination, she simultaneously suggested that L.A. may have been adversely treated compared to non-disabled employees. The court found that “the Officer’s conclusion that CNL did not discriminate against Ms. Adams when it refused to extend her disability benefits beyond her Termination Date cannot be reconciled with the finding that CNL’s failure to suspend her working notice period may have been discriminatory.”
The court emphasized that while the Commission’s role is to assess human rights complaints through the lens of human rights law, it cannot do so by misapplying the common law. Justice Fothergill cited Canada (Minister of Citizenship and Immigration) v Vavilov, stating that “Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide.”
As a result, the court allowed the application for judicial review and remitted the matter back to the Commission for redetermination.
Costs were awarded to CNL in the amount of $1,000. The court acknowledged that while L.A. stands to benefit if the complaint is upheld, proceedings before the court are distinct from those before the Commission or Tribunal, and costs are governed by the Federal Courts Rules.
For more information, see Canadian Nuclear Laboratories Ltd. v. Adams, 2024 FC 1697 (CanLII).
