Applicant worked for respondent bank as assistant product manager. In July 2009 she commenced period of disability leave after she was diagnosed with anxiety and depression. No date was set for her return. In July 2010, bank permanently staffed applicant’s position with another employee. In August or September 2010 applicant was found to be medically fit to return to work without restriction, and informed bank. She returned to work on part-time basis, but in different role at different location. In June, 2011, bank notified applicant that her new position would be eliminated without cause due to corporate restructuring. Applicant’s employment with bank ended in August 2011. She filed complaint with Canadian Human Rights Commission alleging discrimination on grounds of disability. Commission adopted investigator’s report that there was insufficient evidence that bank’s decision to end applicant’ employment was related to her disability and dismissed complaint. Applicant applied for judicial review on basis that Commission failed to address her complaint that bank failed to accommodate her disability and that investigator had failed to obtain evidence from two key witnesses. Application allowed in part. There was nothing to indicate that applicant’s concerns regarding failure of investigator’s report to address bank’s duty to accommodate were considered by commission. Commission’s decision did not respond to applicant’s submissions and it appeared that they were simply ignored. That constituted breach of procedural fairness and matter must be remitted to commission for reconsideration. Investigator made reasonable efforts to establish why bank decided to permanently staff applicant’s position while she was on disability leave, and manner in which bank assisted applicant in finding another position within organization. Evidence of alleged key witnesses was not required.
Brosnan v. Bank of Montreal (Jul. 29, 2015, F.C., Simon Fothergill J., File No. T-1332-14) 256 A.C.W.S. (3d) 664.