Before: The Honourable Mr. Justice Meiklem

Reasons for Judgment

In Chambers

Counsel for the petitioner	T.F. Beasley
Counsel for the respondent Purves Ritchie	S. Tucker
Counsel for the respondent B.C. Human Rights Tribunal	D. Paluck
Date and Place of Trial/Hearing:	June 15 and 16, 2005
	Vancouver, B.C.

Introduction

[1] The petitioner, William Quackenbush, applies by way of judicial review to quash or set aside the January 29, 2004 decision of the respondent British Columbia Human Rights Tribunal (“Tribunal”), and seeks a declaration that the petitioner’s complaint against the respondent, Purves Ritchie Equipment Ltd. (“Purves Ritchie”), be returned to the Tribunal for a new hearing.

[2] The petition sets out the following grounds for review:

1. The lengthy delay in the processing of the petitioner’s complaint from the July 26, 1998 filing to the rendering of the decision on January 29, 2004 is a denial of natural justice, a breach of the rules of administrative fairness, and an abuse of process.

2. Alternatively, the delay from the conclusion of the Tribunal hearing on March 1, 2002 to the issuance of the decision on January 29, 2004 is a denial of natural justice, a breach of the rules of administrative fairness, and an abuse of process.

3. The Tribunal erred on a question of law or mixed question of fact and law in interpreting the third requirement of the test set out in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3, 176 D.L.R. (4^th) 1 (“Meiorin”), namely, the duty to accommodate without imposing undue hardship.

4. The Tribunal erred on a question of law in determining that the respondent Purves Ritchie does not have an obligation to create a new position, reorganize the workplace, or restructure jobs if an employee is reassigned for bona fide reasons.

5. The Tribunal erred on a question of law or mixed question of fact and law in determining the petitioner’s obligations under the duty to accommodate, including the finding that the petitioner acted unreasonably in not trying to perform tasks when he was unable to perform 90% of them.

6. The Tribunal erred on a question of law in not determining that the duty to accommodate required further and continuing efforts by Purves Ritchie to accommodate the petitioner following a walk-through on March 16, 1998.

7. The Tribunal erred in not giving sufficient weight to certain evidence.

8. The Tribunal erred on mixed questions of fact and law concerning the petitioner’s obligations with respect to the duty to accommodate and whether Purves Ritchie satisfied the duty to accommodate.

Background

[3] Mr. Quackenbush is 59 years old and has been employed by Purves Ritchie and its predecessors since 1972. His first five years of employment were in the capacity of a yard man/truck driver. In 1977 he was employed as a parts expediter and service manager assistant until he returned to the yard man/truck driver position due to economic slow-down in the early 1980’s. He remained in that position until approximately 1992, after which time he worked primarily as a parts expediter and rental expediter.

[4] In July 1997, the respondent combined the parts and rental sales counters in conjunction with a relocation of the branch to a new address. By this time, pursuant to a written agreement between the respondent and the International Union of Operating Engineers, Local 115, the counter duties in all branches of the respondent’s business were to be shared 50/50 between union and management. The petitioner worked exclusively at the counter performing parts and rental expediter duties. These duties were usually shared with a Mr. McEwen, the branch manager, or Mr. McEwen’s son.

[5] In mid-December 1997, Mr. McEwen and Mr. Wilby, the owner of the respondent at that time, following a series of discussions with Mr. Quackenbush and the Union, informed Mr. Quackenbush that his job functions would be split between parts and yard man/truck driver functions. The respondent’s concern was a decline in parts sales. Mr. Quackenbush took exception to this reassignment because he had been suffering from neck pain and arthritis for several years, and had been diagnosed with bilateral carpal tunnel syndrome in early 1997. Mr. Quackenbush provided a doctor’s note indicating that he was unable to do a physical labour job due to chronic neck and shoulder arthritis.

[6] Mr. Quackenbush filed a union grievance that was settled by a memorandum of agreement dated January 7, 1998, which included a provision that he would be “reinstated immediately to a full time position allocated between journeyman parts man and expediter paid at the corresponding rate”. Mr. Quackenbush’s version of events that unfolded upon his return to work on January 19, 1998 are set out at paras. 19-33 of the Tribunal’s decision, Quackenbush v. Purves Ritchie, 2004 BCHRT 10:

[19] However, when the Complainant returned from holidays on January 19, 1998, Mr. McEwen assigned him to work in the yard during the afternoon. Mr. McEwen told the Complainant that his duties would include driving of the truck, loading and unloading equipment, and cleaning, maintaining and storing the equipment. When the Complainant told Mr. McEwen that he was supposed to do expediter work in the afternoons, Mr. McEwen told the Complainant that he would be paid as an expediter, but he would not be working at the customer service counter. The Complainant said he told Mr. McEwen that he could not do yard work, and that he would be forced to leave work if Mr. McEwen insisted that he perform yard work. The Complainant stated that he reported the incident to the Union representative, Wendy Wenting, and left for the remainder of the afternoon.

[20] When the Complainant returned the next day, he was given a letter of reprimand from Mr. McEwen for leaving the premises without permission and for speaking loudly in the presence of others to Mr. McEwen and another employee, Colin Fulton. The letter also assigned the Complainant to general expediter duties in the morning, and working on parts orders in the afternoon. The letter specifically stated that his expediter duties would not include counterwork.

[21] The Complainant says he understood the letter to mean that he was being assigned to yardman/truckdriver duties. The Complainant testified that he spoke with Mr. McEwen and told him that he could not perform yardman/truckdriver duties. He then left the premises and walked to the Union Hall to speak with Ms. Wenting. The Complainant says he did not return that afternoon because he started having a colitis attack during his meeting with Ms. Wenting. The Complainant went home and left a message saying he was not returning to work that afternoon.

[22] The Complainant testified in cross-examination that he believed at the time that he had priority to work at the counter. In his view, if there was only one position available at the counter, because of Letter of Understanding #4, it should be a union position and not filled by management. He said he also believed the company had an obligation to let him work at the counter since the Complainant had more seniority than Gordie McEwen and because the Complainant was unable to do physical labour.

[23] The next day, on January 21, 1998, the Complainant went into work and found a second letter of reprimand for refusing to perform general duties as an expediter and for leaving the premises without permission. The two letters were subsequently removed from the Complainant’s file after he filed a grievance alleging the Respondent was violating the Settlement Agreement and engaging in unjust discipline.

[24] The Complainant was told to compile a list of his contacts for parts suppliers because Mr. Wilby wanted each branch to order parts directly from the suppliers, rather than ordering them through the Complainant. The Complainant worked the entire day and part of the next day compiling the list of suppliers.

[25] On January 22, 1998, after finishing the list of suppliers, the Complainant left work to attend a doctor’s appointment. For the weeks of January 22 and 29, the Complainant’s doctor provided him with notes advising him not to work for medical reasons.

[26] The Complainant did not return to work, and he filed a Wage Indemnity Claim with British Columbia Life and Casualty Company (“BC Life”) on February 5, 1998, stating that he was unable to work because of the stress caused by the conflict with Mr. McEwen. The Complainant was claiming wage indemnity for lost wages from January 22 until the Union resolved the conflict between Mr. McEwen and him.

[27] On March 16, 1998, the Complainant’s Wage Indemnity Claim was denied by BC Life on the grounds that a management-labour relationship conflict is not a medical problem covered by their policy. BC Life determined that neither the Complainant’s diabetes nor his ulcerative colitis was preventing him from performing the duties of his occupation.

[28] The Complainant applied for an internal review of BC Life’s decision on the grounds that he felt he was physically unable to perform the duties requested of him for medical reasons. On May 1, 1998, BC Life denied the Complainant’s claim a second time on the grounds that he was not disabled under their policy until he actually attempted to work and proved he was unable to perform the physical labour requested of him.

[29] In an attempt to identify the tasks he could perform, the Complainant, Mr. Wilby, Mr. McEwen and Ms. Wenting arranged a walk-through on March 16, 1998. They walked through the shop and the Complainant identified the duties he thought he was capable of performing. The Complainant testified that during the walk-through he told Mr. Wilby he could not perform 90% of the expected duties in the shop.

[30] Following the walk-through, the Complainant met with Ms. Wenting. However, he did not return to work until August. From March 16 until he returned to work, he attempted directly and through his legal counsel to have the Union support his position that he should have priority working at the customer service counter.

[31] Furthermore, the Complainant was unaware that, on March 4, 1998, Ms. Wenting filed another grievance on his behalf and wrote a letter to the Respondent threatening to withdraw Letter of Understanding #4. The Letter of Understanding was not withdrawn because, during settlement discussions, the grievance was resolved and the Respondent agreed to provide the Complainant with “suitable employment as agreed in settlement agreement dated January 7^th, 1998.” The Union’s position was that the Complainant was to perform those duties he is capable of and physically able to perform, in accordance with the Settlement Agreement of January 7^th.

[32] In August 1998, the Complainant was cleared by his doctor to return to work. When he returned, he worked from 7:30 a.m. to 9:00 a.m. and 2:30 p.m. to 4:00 p.m. as a partsman, paid at a partsman rate, and the balance of the day working doing general expediter work, paid at an expediter rate.

[33] After the Complainant returned to work, and as the parts department sales and expediter duties increased, the Complainant resumed working exclusively at the customer service counter. At the time of the hearing, the Complainant was still working exclusively at the customer service counter.

[7] Mr. Quackenbush filed a complaint with the B.C. Human Rights Commission (“Commission”) on July 27, 1998, alleging that Purves Ritchie discriminated against him regarding employment or any term or condition of employment because of his physical disability, contrary to s. 13 of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210.

[8] The Commission appointed an investigating officer on July 29, 1998, and the officer advised Purves Ritchie of a 30-day period to file a reply. Purves Ritchie filed a reply on August 19, 1998, which was forwarded to Mr. Quackenbush on August 19, 1998. On October 10, 1998, Mr. Quackenbush filed a submission in response to the reply.

[9] The Human Rights Officer’s (HRO) report was completed on November 5, 1999, and comprised three and one-half pages, plus attachments. It recommended that the Commissioner of Investigation and Mediation refer all or part of the complaint to the Tribunal for a hearing. The HRO provided the parties with copies of his report on November 15, 1999, and gave them one month to file additional submissions. Mr. Quackenbush filed a further submission on December 2, 1999, which contained more than 60 exhibits and was approximately 100 pages in total. Counsel for Purves Ritchie filed its further submission on December 22, 1999.

[10] On February 7, 2000, the Commission’s Manager of Investigations and Mediation wrote to the parties, enclosing copies of their respective responses and inviting further responses by February 21, 2000.

[11] On April 27, 2000, a delegate of the Commissioner of Investigation and Mediation wrote to the parties to advise that he had determined that there was a reasonable basis in the evidence to proceed to a hearing before the Human Rights Tribunal. He advised the parties that they would be contacted by the Tribunal in the near future and provided them with contact telephone numbers.

[12] On May 2, 2000, counsel for Purves Ritchie wrote to the delegate of the Commissioner of Investigation and Mediation to advise that Mr. Quackenbush was now back at work with the successor to his former employer and queried whether a hearing was still desired, in light of the fact that Mr. Quackenbush had not been capable of returning to work any earlier than he had done.

[13] On November 15, 2000 a pre-hearing conference was held between the parties and a member/registrar of the Tribunal. Mr. Quackenbush’s counsel was directed to provide “will-say” statements for his eleven prospective witnesses no later than December 8, 2000, and a further pre-hearing conference was scheduled for January 8, 2001.

[14] The initial hearing date set by the Tribunal was February 5, 2001, but on January 22, 2001, counsel for Mr. Quackenbush informed the Tribunal that the respondent’s solicitor was requiring the personal attendance of Mr. Quackenbush’s physician and the physician was not available on the February 5, 2001 hearing date. The hearing was reset for September 17, 2001. In the intervening months counsel for the respective parties corresponded over the adequacy of the complainant’s “will-say” statements.

[15] The September 17, 2001 hearing was adjourned after counsel for Purves Ritchie advised that their instructing client and main witness, a United States resident, was unable to travel to Canada due to the September 11^th terrorist attacks on the World Trade Centre. Mr. Quackenbush’s counsel consented to the adjournment.

[16] A further pre-hearing conference was held on November 23 and the Tribunal hearing was rescheduled for January 16, 2002. In December 2001, the parties agreed to try to settle and mediation was scheduled for the hearing date of January 16, 2002, with an agreement that if mediation failed the hearing would start on February 25, 2002.

[17] Mediation was unsuccessful and the hearing before the Tribunal did proceed on February 15, 2002. The respondents raised the issue of the petitioner’s failure to provide adequate “will-say” statements but the Tribunal declined to deal with that failure as a preliminary issue.

[18] The dates of hearing were February 25 to 28 and March 1, 2002. The Tribunal’s issued its decision on January 29, 2004, approximately 23 months later.

The Delay Issue

[19] As set out in my introduction, Mr. Quackenbush first attacks the lengthy overall delay from the time of the complaint in July 1998 to the rendering of the decision in January 2004 as a denial of natural justice, a breach of the rules of administrative fairness, and an abuse of process, and the second ground for review focuses the same allegations on the period between the conclusion of the Tribunal’s hearing on March 1, 2002 and the January 29, 2004 decision.

[20] The chronology recited above provides the highlights of the 3½ years that elapsed between the time of the complaint and the hearing. There is little evidence that can be brought to bear or argument that can be made as to what gave rise to the lengthy delay in rendering the decision. The petitioner made inquiries of the Tribunal as to when the decision would be forthcoming after approximately 12 months and then again just prior to the release of the decision, but was simply advised that the Tribunal member was an independent adjudicator.

[21] Mr. Quackenbush relies on the principles set out in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44. The actual result in Blencoe was that a pre-hearing delay of 32 months on the facts of that case did not constitute an abuse of process or procedural unfairness. The Supreme Court of Canada upheld the decision of the chambers judge and overturned a stay of proceedings granted by the British Columbia Court of Appeal. In seeking to distinguish that result while nevertheless applying the analysis set out in Blencoe, the petitioner submits that the 5½ year delay in the present case is over twice the 32-month delay in Blencoe. This comparison fails to distinguish pre- and post-hearing delay.

Pre-Hearing Delay in This Case

[22] The actual pre-hearing delay in this case was 43 months. If the hearing had proceeded at the first scheduled date of February 5, 2001, that delay would have been approximately 30 months. This delay is less than the pre-hearing delay in Blencoe and less than the average of three years for obtaining a Tribunal hearing in British Columbia referred to in Blencoe at para. 129. The three adjournments occasioned by the respective parties that resulted in a further 13 months of delay cannot be attributed to the Tribunal. The duty of fairness required that the Tribunal grant adjournments that protracted the pre-hearing delay from 30 months to 43 months. There is no evidence that the rescheduled dates were anything other than the earliest possible dates that could be arranged, taking into account the commitments of counsel and the Tribunal.

[23] The Blencoe case did not, of course, approve of or condone the 32-month pre-hearing delay, but the court noted, at paras. 126-127, the significant distinction between the human rights complaint process and criminal proceedings for the purposes of considering the impact of delay:

The arguments advanced by the parties before us rely heavily on criminal judgments where delay was considered in the context of s. 11(b) or s. 7 of the Charter. It must be kept in mind, as mentioned in paras. 93-95, that the human rights process of receiving complaints, investigating them, determining whether they are substantial enough to investigate and report and then to refer the matter to the Tribunal for hearing is a very different process from the criminal process. The British Columbia human rights process is designed to protect respondents by ensuring that cases are not adjudicated unless there is some basis for the claims to go forward and unless the issue cannot be disposed of prior to adjudication. Pursuant to s. 27 of the Human Rights Code, the Commission may dismiss a complaint if, inter alia, it is brought too late, the acts alleged do not contravene the Code, there is no reasonable basis for referring the complaint to a hearing, if it does not appear to be in the interest of the group bringing the complaint, the complaint was filed for improper motives or if the complaint was made in bad faith. The Commission therefore performs a gatekeeping or screening function, preventing those cases that are trivial or insubstantial from proceeding. There is also the goal of settlement through mediation which is lacking in the criminal context. The human rights process thus takes a great deal more time prior to referring a complaint to the Tribunal for hearing.

The principles of natural justice also require that both sides be given an opportunity to participate in reviewing documents at various stages in the process and to review the investigation report. The parties therefore have a chance to make submissions before a referral is made to the Tribunal. These steps in the process take time. Indeed, the Commission was under a statutory obligation to proceed as it did. The process itself was not challenged in this case. True, the Commission took longer than is desirable to process these Complaints. I am not condoning that. Nevertheless, McEachern C.J.B.C. has exaggerated in stating that “a week at the outside would have sufficed” to investigate these Complaints (para. 51). While the case may not have been an extremely complicated one, these stages are necessary for the protection of the respondents in the context of the human rights complaints system.

[24] There is one period in the pre-hearing history of the Quackenbush complaint that seems inexplicably long to me. That is the approximately 12 to 13 months that elapsed between the completion of the submissions of the parties to the investigating Human Rights Officer in October 1998 and his November 15, 1999 report. His report is very brief and merely summarizes the positions of the parties and reports that the witnesses chose not to comment. The very brief analysis repeats the summary, comments that “the duties of the position compared to the ability of the Complainant to perform them needs further consideration”, and concludes “on the balance of probability it appears the new positions may not be considered light duties”. The report then recommends a referral to the Tribunal for a hearing.

[25] Perhaps this was a complaint that could have been reported on in summary fashion in “a week at the outside” after the submissions of the parties were received by the HRO. However, it is clear that Mr. Quackenbush did not express any concern over delay to the Commission. This is understandable, given that he was back at work within a week of filing the complaint, and the delay at that stage was well within the apparent common practice of the Commission.

[26] Mr. Quackenbush also did not express any dissatisfaction with the length of time the process was taking following the referral to the Tribunal for a hearing. His counsel had difficulty providing adequate “will-say” statements that were ordered at the November 15, 2000 pre-hearing conference and eventually produced only five of the eleven witnesses he originally proposed. It might be inferred that the interval between the April 27, 2000 referral to the Tribunal and the initial hearing date of February 5, 2001 was not unduly lengthy from Mr. Quackenbush’s perspective. I note also that he asked for the first adjournment.

[27] Blencoe sets out the test for determining whether delay is inordinate enough to constitute a breach of the duty of fairness at paras. 121-122:

To constitute a breach of the duty of fairness, the delay must have been unreasonable or inordinate (Brown and Evans, supra, at p. 9-68). There is no abuse of process by delay per se. The respondent must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings. While I am prepared to accept that the stress and stigma resulting from an inordinate delay may contribute to an abuse of process, I am not convinced that the delay in this case was “inordinate”.

The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay.

[28] I conclude that the pre-hearing delay in this case was not unreasonable or inordinate. I cannot find that the community’s sense of fairness would be offended by the pre-hearing delay in this case. In coming to this conclusion, I have considered the following factors: the nature of the specific complaint, the case-specific reasons for the adjournments, the opportunities for mediated settlement, the fact that the dispute related to Mr. Quackenbush’s claims for a finite period between January and August 1998, the fact that he had been re-employed on mutually acceptable terms since August 1998, and the acknowledgement in Blencoe that the average time to obtain a Tribunal hearing in British Columbia was 3 years, If anything, the extra delay occasioned by the adjournments had a positive effect on hearing fairness.

[29] The majority in Blencoe, at para. 115, recognized that unacceptable delay amounting to an abuse of process is not limited to delay that compromises the fairness of the hearing:

I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an “unacceptable delay” that amounts to an abuse of process.

For the purposes of this discussion, abuse of process is synonymous with a breach of natural justice and a breach of administrative or procedural fairness: Blencoe at para. 106.

[30] Mr. Quackenbush’s affidavit, sworn on August 11, 2004, sets out effects other than those affecting hearing fairness that he attributes to the delay in the human rights complaint process. Paragraph 49 of that affidavit states:

My disabilities were serious and remain serious. In 1998, I did not know the extent of the injuries to my neck and spine. I was told by Dr. Giovannetti and the evidence at the hearing was, that I could damage permanently my spine and therefore my mobility if I worked in the yard. Purves Ritchie’s failure in 1998 to accommodate my disabilities caused me considerable distress, mental anguish, hurt feelings, humiliation, pain and suffering (“distress”).

This paragraph does not address effects caused by delay, but rather attributes certain matters to the respondent’s alleged conduct in 1998.

[31] In paragraph 50 of the same affidavit, Mr. Quackenbush states:

The passage of time from the filing of the complaint to the rendering of the decision was approximately five and a half years. That has caused me further distress. I worried about what job I could perform, whether that job could and would affect my health including my mobility. The delay from the date of the hearing to the date of the Decision caused me even further distress. I worried about the outcome. I did not know how it would affect my job and my ability to continue working. The uncertainty was very troubling to me.

[32] I do not understand how Mr. Quackenbush’s worries about what job he could perform and whether the job could or would affect his health or mobility are related to delay in the human rights complaint proceedings. He returned to work on August 4, 1998, approximately one week after making the complaint, and one would naturally infer that those specific worries would be either appeased or exacerbated by what was occurring at work rather than what was occurring in the complaint proceeding. Further, while I understand Mr. Quackenbush to mean, in the latter part of this paragraph, that he was anxious about whether a decision favourable to him might affect his employer’s approach to his employment or treatment of him as an employee, I do not understand how this anxiety could be limited to the period between the date of the hearing and the date of the decision. Any such concerns would have been present from the initial filing of the complaint. It is not clear how either pre- or post-hearing delay can itself have directly caused Mr. Quackenbush’s distress. Protracted proceedings require any complainant or litigant to undergo the inherent anxieties and uncertainties for a longer period than might otherwise be the case, but that does not mean that delay has caused significant psychological harm.

[33] Mr. Quackenbush’s affidavit also states that the length of the process has strained the relationship with his family. Once again, these problems are inherent in the complaint process itself and not caused by delay. Direct causation could be made out in a case where distressing effects were initially absent but then became manifest when the delay became inordinate. This is not the case here.

[34] Finally, I note that Mr. Quackenbush was the complainant in this matter. While the Blencoe reasoning on delay is not limited to respondents, the party initiating a human rights complaint must be deemed to have voluntarily undertaken a formalized dispute resolution process with its attendant institutional constraints and procedural protections for respondents. A complainant must be deemed to be aware that anxiety and uncertainty, both as to timing and outcome, inevitably accompany such processes. The choice to see it through to the end, particularly where there are explicit mediation mechanisms, remains with the complainant.

[35] I conclude that there was no inordinate pre-hearing delay, and that any delay did not affect hearing fairness. If also find that there was no psychological harm directly caused by delay. The delay thus does not amount to an abuse of process.

Post-Hearing Delay

[36] Given my findings on pre-hearing delay, the question posed by the first ground for review merges with the second. In other words, the overall delay is only unreasonable or inordinate if the addition of the post-hearing delay of 23 months renders it so. While the Court in Blencoe did not address post-hearing delay, I think that it is logical to apply the same test.

[37] The post-hearing time period cannot be viewed in isolation because of course the pre-hearing delay, and the reasons for it, are contextual factors to be considered. One might expect a decision-maker to be more aware of a need for timeliness when a proceeding has already been unusually protracted or where some urgency is apparent. The evidence is that neither of the parties had made delay an issue prior to the hearing.

[38] Of the potential contextual factors discussed in Blencoe, the “nature of the various rights at stake in the proceedings” is a significant consideration in assessing post-hearing delay. While the case under review was, from the complainant’s perspective, primarily a fact-specific finite claim for damages in the form of past wage loss and general damages for pain and suffering, it was framed as employment discrimination. The decision could therefore have precedential influence. In other words, the rights at stake in this human rights complaint were important, not only to the parties, but potentially to many other employers and employees in analogous circumstances. After all, every employer’s work force is aging, and these types of disputes will likely become more common.

[39] There is no evidence to explain the 23-month delay in rendering the Tribunal’s decision. On its face it appears to be unnecessarily long and may indicate institutional inefficiency, but nothing is known about how many other cases this Tribunal member may have had under consideration or how these other cases may have compared in terms of level of difficulty, urgency, or the significance of the rights at stake. Speculation is inappropriate and inquiry is precluded by the customs surrounding the principle of judicial independence. There is a dearth of contextual factors to consider in determining whether the community’s sense of fairness would be offended by the post-hearing component of delay.

[40] The Tribunal member noted, at paras. 32-33 of the decision, that the complainant had been cleared by his doctor to return to work in August 1998 and had done so, working some of each day as a parts man and the remainder doing general expediter work. The Tribunal member noted that by the time of the hearing, available counter work had increased and the complainant was working exclusively at the customer service counter. One might reasonably infer that this factor influenced the Tribunal’s assessment of the relative significance and urgency of the decision, as there was less need to the ongoing employment relationship of the parties.

[41] I agree with the respondent’s argument that there is no evidence in this case to rebut the presumption of law that acts of an official nature are correctly and solemnly done.

[42] Mr. Quackenbush argues that the post-hearing delay has prejudiced his ability to pursue judicial review because he is no longer able to recall what evidence was given at the hearing and because no record of the proceedings was made by the Tribunal. I do not find this argument persuasive.

[43] Purves Ritchie points out that the Tribunal advised Mr. Quackenbush that it no longer records its proceedings. He declined the option of recording and transcribing the proceedings at his own expense. In any event, the petitioner seeking to challenge findings of fact made by a Tribunal can do so by filing affidavits dealing with the evidence placed before the Tribunal, which can be reconstituted by reference to counsel’s notes and copies of documents or exhibits relied upon. The Tribunal’s reasons for decision include apparently adequate detailed summaries of the evidence of the witnesses relevant to the findings of fact. While Mr. Quackenbush may not remember all the evidence that was given at the hearing, I assume that he testified according to his honest recollection of the significant relevant events in 1998. If he is unable to contradict the Tribunal’s summary of his testimony from his present recollection of those events, this would suggest either that the summary of his testimony is accurate and complete, or that the state of his present recollection is so poor that his proposed remedy of an expedited re-hearing is absurd.

[44] Lengthy and unfortunate as the 23-month post-hearing delay was, there is no evidence from which I can infer any more prejudice to the petitioner’s ability to pursue judicial review than a lesser delay would have created. The specific problem of the absence of a transcript is at the heart of the petitioner’s argument on this point, rather than the length of time between the close of the hearing and the issuance of the reasons.

[45] In summary, I do not accede to the petitioner’s arguments that either the overall delay or the post-hearing delay in this matter constitute a denial of natural justice, a breach of the rules of administrative fairness, or an abuse of process.

Errors on Questions of Law or Mixed Questions of Law and Fact

Standards of Review

[46] The parties agree on the three different standards of review that apply to the various grounds set out in the petition: questions of law are reviewable on the standard of correctness; questions of fact are reviewable on the standard of patent unreasonableness; and questions of mixed fact and law invoke the standard of reasonableness simpliciter. The standard of reasonableness simpliciter was described by the Supreme Court of Canada in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at paras. 56-60, 144 D.L.R. (4^th) 1; and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20 at paras. 48-56. This standard is distinguishable from patent unreasonableness by the immediacy or obviousness of the defect that is characteristic of the latter.

[47] The parties agreed that I should apply the common law standards of review rather than the standards set out in the Administrative Tribunals Act, S.B.C. 2004, c. 45, which came into force on October 15, 2004. I agree.

1. Did the tribunal err in interpreting the third requirement of the Meiorin test, namely the duty to accommodate without imposing undue hardship?

[48] An interesting aspect of this issue is that neither counsel at the Tribunal hearing argued the application of the Meiorin test. Paragraph 75 of the Tribunal’s decision states:

In this case, neither counsel argued the three requirements set out in Meiorin. Specifically, there was no argument whether a policy or standard applied by the Respondent was for a purpose rationally connected to the performance of the job, or whether the Respondent adopted a policy or standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate and work-related purpose. Although these requirements were not specifically argued, I have considered these factors in making my decision.

[49] The Tribunal member was undoubtedly influenced by the admonition of the Supreme Court of Canada in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, 181 D.L.R. (4^th) 385 (“Grismer”), para. 19 of which ends with the sentence:

While the Meiorin test was developed in the employment context, it applies to all claims for discrimination under the B.C. Human Rights Code.

[50] It is apparent that counsel at the Tribunal hearing had some difficulty in arguing their cases in the context of the wording of the Meiorin test. On this review counsel for both private parties (neither of whom were counsel before the Tribunal) seemed to take the view that the Meiorin test is applicable. Counsel for Mr. Quackenbush takes the view that it was an error of law for the Tribunal not to require counsel to argue on all three requirements of the test and suggests that that failure led to an insufficient examination of a mandatory test.

[51] Counsel for Purves Ritchie argues that in cases such as this, where the crux of the dispute between the parties is whether there is any or any sufficient work that can be performed by an employee within the individualized limitations of his particular disability, the first two requirements of the Meiorin test are commonly conceded, and where the sole issue is whether the duty to accommodate was adequately discharged, it is common for the issue to be framed by the parties without any express reference to the first two steps of the Meiorin analysis. Counsel before the Tribunal were agreed that the case turned not on the rationality or good faith adoption of a standard, but on the third step of the analysis, namely, whether on the specific facts of the case the duty to accommodate had been fulfilled by the employer.

[52] It seems to me that slavish adherence to a formal analysis using the precise language of the test set out in Meiorin creates conceptual difficulties in cases that do not, like Meiorin and Grismer, involve the adoption and application of qualification standards. For ease of reference I will set out the test from para. 54 of Meiorin:

Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR [bona fide occupational requirement]. An employer may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

(3) 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.

[53] The conceptual difficulty is highlighted in this case by each party’s efforts to describe what “standard” is involved as one strains to apply the specific language of Meiorin to the facts of this case. Mr. Quackenbush faults the Tribunal for not clearly identifying and articulating “the standard which is the subject matter of the BFOR” and goes on to presume that it is “the standard requiring Quackenbush to work as a yardman/truck driver”. I contrast this with Purves Ritchie’s submission “that there was no dispute as to the rationality or sincerity [of] the standard is hardly surprising, given that the “standard” was the basic proposition that employees are to perform the required duties of their positions”.

[54] The simple truth is that the circumstances of this case do not involve discrimination related to adoption of a standard and nothing is gained by going through the futile mental gymnastics necessary to identify some sort of standard so as to rigidly apply the Meiorin test.

[55] Paragraphs 16 to 19 of Grismer must be read in full to place the final sentence in context. Those paragraphs clarify that the significant aspect of Meiorin was the Court’s rejection of the dual approach to direct discrimination and adverse affect discrimination, under which separate tests could result in inconsistent and unjust conclusions. The Court announced a unified approach to adjudicating discrimination claims that requires the accommodation of the characteristics of affected groups within adopted standards rather than maintaining discriminatory standards supplemented by accommodation. Grismer directs that this approach should apply to all claims of discrimination, but not necessarily the contextually-specific articulation set out in Meiorin, which dealt with the adoption of standards by employers. The specific wording of the test could be applied without modification in Grismer because that case also involved adoption of a specific standard. Where the circumstances involve an existing employment relationship, the duty to accommodate operates independently of the Meiorin test, as the authorities provided by the parties amply demonstrate.

[56] I do not accede to the petitioner’s argument that the Tribunal erred in law in not requiring argument on all three requirements of the Meiorin test.

[57] Mr. Quackenbush argues that there was evidence before the Tribunal of a lack of good faith on the part of McEwen and evidence that the “standard”, as he believes it should be defined, namely “moving Quackenbush to the yard”, was not done for a purpose rationally connected to the job. Mr. Quackenbush therefore argues that the Tribunal erred in law in considering the first and second requirements of the Meiorin analysis to have been met, which in turn affected the analysis of the third Meiorin requirement. It is clear, however, that the Tribunal accepted Mr. Wilby’s evidence that parts sales were down and were expected to decline further through the winter season to the point that a dedicated parts person was no longer justified. The Tribunal therefore implicitly rejected the notion that there was a lack of good faith or an ulterior purpose to the reassignment of Mr. Quackenbush.

2. Did the tribunal err on a question of law in determining that the respondent does not have an obligation to create a new position, reorganize the work place, or restructure jobs if an employee is reassigned for bona fide reasons?

[58] This ground of review relates to the findings set out in paras. 82-83 of the Tribunal’s decision:

[T]he duty to accommodate does not require [an] employer to create a new position, reorganize the workplace, or restructure existing jobs: Re Better Beef Ltd. and U.F.C.W,, Region 18 (1994), 42 L.A.C. (4^th) 244, Re Stelco Inc., Hilton Works and U.S.W.A. Local 1005 (1995), 50 L.A.C. (4^th) 301, and Re O.E.C.T.A. and O.P.E.I.U., (1996), 61 L.A.C. (4^th) 109.

I agree with the Respondent’s submission. If an employee is reassigned for bona fide reasons, the Respondent does not have an obligation to create a new position, reorganize the workplace, or restructure existing jobs. However, where, as in this case, an employee can be accommodated in another position, the Respondent still has an obligation to explore all options, to the point of undue hardship, before they will satisfy their duty to accommodate.

[59] While I note that this paragraph is not entirely free of ambiguity, I interpret the Tribunal as accepting the respondent’s submission on the arbitral case law but distinguishing those cases from the case before him on the basis that the respondent could accommodate the complainant in another existing position and therefore still had an obligation to explore all options to the point of undue hardship.

[60] If the member was agreeing with the respondent’s submissions that the authorities relied upon were the settled state of the arbitral law, then I agree with the petitioner’s submission that the Tribunal was wrong in law. Another ample line of cases both predating and postdating Better Beef holds that the duty to accommodate can require an employer to consider re-bundling job functions, creating new positions, and restructuring existing jobs if necessary. However, the Tribunal distinguished the present case and found that Mr. Quackenbush could be accommodated in another position. The Tribunal also found that, in this case, the employer’s proposal did involve a re-bundling of job functions. Thus, any error on the state of the law clearly played no role in the Tribunal’s ultimate conclusion.

3. Did the tribunal err in determining that Mr. Quackenbush acted unreasonably in not trying to perform tasks when he was unable to perform 90% of them?

[61] This ground arises from para. 84 of the Tribunal’s decision:

In this case, since there was no counter position to fill, at least in the short term, I find the Complainant had an obligation to work with [the] Respondent to take reasonable steps to facilitate finding an acceptable compromise. For his part, the Complainant refused to co-operate with the proposal because, in my view, he believed that he should have seniority working at the customer service counter. In my opinion, the only option that he would consider was his reassignment back to the customer service counter. Although the Complainant said that he was unable to perform 90% of the tasks that he was being asked to perform, even with accommodation, the fact is that he did not even try.

[62] The first sentence in this paragraph is an application of legal principles to the facts and is reviewable on the standard of reasonableness simpliciter. In my view the Tribunal’s statement is correct. The remainder of the paragraph involves a patently unreasonable standard of review. In applying that standard I do not find that the Tribunal erred.

4. Did the Tribunal err in not determining the duty to accommodate required further and continuing efforts by Purves Ritchie to accommodate Mr. Quackenbush following the walk-through on March 16, 1998?

[63] I must confess to some difficulty in understanding this ground for review which is, in effect, alleging that a non-finding was an error. I fail to see how the content, nature, or duration of the employer’s duty to accommodate can be a question of law. That the employer has a duty to accommodate is a legal principle. What constitutes reasonable measures to discharge the duty is a question of fact that depends on the circumstances of the case: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 984, 95 D.L.R. (4^th) 577.

[64] The portion of the petitioner’s written argument that seems to pertain to this ground includes the assertion that “apart from the March 16, 1998 walk-through Purves Ritchie made no other efforts [to] accommodate Quackenbush’s disability”. This submission significantly understates the evidence of the respondent’s efforts to accommodate and the Tribunal’s finding of fact that the respondent’s proposal was reasonable. The Tribunal clearly accepted the evidence of Mr. Wilby at paras. 52-55 of its decision. The documents placed into evidence at the hearing, including a two-page memorandum to Mr. Quackenbush and the union representative detailing a customized employment program, show ongoing accommodation efforts by Purves Ritchie. Mr. Quackenbush rejected that proposal because it would have reduced his hours and earnings, but it was nevertheless an effort to accommodate. When Mr. Quackenbush returned to work in August 1998 he did so on the basis of the proposal that had been put forth in January. There was no evidence to suggest that it was not a reasonable accommodation.

[65] Ms. Wenting, business representative for Mr. Quackenbush’s union, was an integral part of several interactions between the parties. She testified that following Mr. Quackenbush’s meeting with her on January 20^,1998, when he expressed concern that Mr. McEwen was trying to make him do yard duties, she called Mr. Wilby. He assured her that Mr. Quackenbush was not asked to perform yard duties, and that he would not have to perform physical duties. The Tribunal, at para. 86 of its decision, accepted that Mr. Quackenbush was told that he did not have to perform any duty that he felt incapable of performing; nor was he asked to lift any heavy equipment that he was not comfortable lifting. At para. 80, the Tribunal expressly found Purves Ritchie’s proposal reasonable.

[66] In short, I do not feel the allegation of error under this heading is fairly stated and I find no error as alleged. In any event, I find it neither incorrect in law nor unreasonable for the Tribunal to have ended its determinations upon finding that Purves Ritchie’s proposal was reasonable.

5. Did the tribunal err in not giving sufficient weight to the medical evidence and the evidence of Mr. Quackenbush and Fred Kerwin?

[67] The Tribunal is entitled to the greatest degree of deference in this area of fact-finding, and the patently unreasonable standard of review applies. I can find no fault with the Tribunal’s weighing of evidence. At para. 72 of the decision, the Tribunal found that the complainant had established that his disability would have affected his ability to perform the new duties required by the respondent, and confirmed that his new duties may have required at least some lifting and handling of equipment. Clearly, the complainant’s evidence and the medical evidence were weighed. The Tribunal acknowledged, at para. 86, that there was some heavy equipment in the warehouse, but found that there were also enough light duties that Mr. Quackenbush could handle. There is absolutely no basis on the evidence before me that I can conclude that that was a patently unreasonable finding.

6. Did the tribunal err concerning Mr. Quackenbush’s obligations with respect to the duty to accommodate?

[68] Mr. Quackenbush itemizes the following factual findings of the Tribunal as errors under this ground for review: that there was appropriate work available to Mr. Quackenbush from January 1998; that Mr. Quackenbush refused to cooperate with Purves Ritchie’s proposal; that the only option Mr. Quackenbush would consider was his reassignment back to the customer service counter; that Mr. Quackenbush was unreasonable in his refusal and/or reluctance to attend the walkthroughs to identify the duties that he was able to perform with accommodation; and that he failed to work with Purves Ritchie to facilitate reasonable accommodation. These are all questions of fact.

[69] These findings clearly depend to a significant degree on the testimony of Ms. Wenting, the union representative, but equally clearly her evidence as summarized by the Tribunal at paras. 56-61 of the decision, taken together with Mr. Wilby’s evidence, summarized at paras. 52-55, provides support for those findings. I am not persuaded that they are unreasonable, let alone patently unreasonable, findings of fact. Mr. Quackenbush points out that the decision makes no specific mention of his participation in what he describes as a walk-through in January 1998, but of course there is no obligation on the Tribunal to recite all the evidence heard and no presumptions or necessary inferences flow from that omission.

Conclusion

[70] In conclusion, the petitioner has failed to establish any of the grounds for review set out in the petition and the petition is dismissed. The respondent, Purves Ritchie Equipment Ltd., is entitled to costs from the petitioner on Scale 3. The respondent, British Columbia Human Rights Tribunal, does not seek costs and there will be no order of costs in respect of the Tribunal’s appearance or participation in this proceeding.

“I.C. Meiklem, J.”
The Honourable Mr. Justice I.C. Meiklem

Citation:	*Quackenbush v. Purves Ritchie Equipment Ltd.,*
	2006 BCSC 246