Human Rights Commission previously tossed out multiple discrimination claims by worker as frivolous
The Federal Court of Appeal allowed a worker to partially appeal a decision by the Canadian Human Rights Commission on Friday, ruling that the CHRC misconstrued the worker’s claim that his employer discriminated against him after he refused to confirm his COVID-19 vaccination status.
The appellate court said that instead of addressing whether the employer’s conduct following the refusal amounted to discrimination, the CHRC misinterpreted the worker’s claim to mean that he had a disability that prevented him from receiving the vaccine.
The reasons adopted by the CHRC for its ruling against the worker indicate it “misconstrued and therefore did not consider Mr. Givogue’s perceived disability claim,” Justice Gerald Heckman wrote for the FCA. “This court cannot disregard the flawed basis for the commission’s decision and substitute its own justification.”
Heckman added, “I am also of the view that by effectively failing to consider Mr. Givogue’s perceived disability claim, the [CHRC] officer did not conduct a thorough investigation, as required by the jurisprudence of this court.”
Justices Richard Boivin and Mary Gleason concurred.
In his complaint to the CHRC, André Givogue alleged that his employer, Fisheries and Oceans Canada, discriminated against him based on genetic characteristics and a partial or perceived disability when it denied him workplace accommodations after he refused to disclose his vaccination status. Givogue also alleged that the vaccination disclosure requirement amounted to harassment.
The CHRC tossed out both discrimination claims for being frivolous. In his complaint, Givogue said he feared that his “genetic characteristics are being used and will be used to discriminate against me now and in the future.” Givogue noted that under the Canadian Human Rights Act, an act of discrimination “shall be deemed to be on the ground of genetic characteristics” in cases “where the ground of discrimination is refusal… to disclose… the results of a genetic test.”
However, the CHRC concluded that because “attesting to a vaccination status is not equivalent to revealing a genetic test,” Givogue did not offer any evidence to support his claim that he was treated differently based on his genetic characteristics.
The FCA dismissed Givogue’s argument that the CHRC erred in its reasoning.
However, the court said that by not dealing with his disability discrimination claim, the CHRC did “not exhibit the degree of justification, intelligibility and transparency required of a reasonable decision.” Givogue alleged that COVID-19 was a serious illness and could be perceived as a disability. Givogue argued that his employer’s decision to deny him workplace accommodations and put him on unpaid leave when he refused to disclose his vaccination status was, therefore, based on a perception of his increased risk to others and amounted to discrimination based on a perceived disability.
The CHRC instead interpreted his claim to mean that he had a disability that would exempt him from COVID-19 vaccination requirements.
The FCA noted that the “commission did not address a core plank supporting Mr. Givogue’s position.”
The appellate court agreed with the decisions of a lower court and the CHRC not to review Givogue’s harassment claim. The FCA returned the matter to the CHRC to reassess the disability discrimination allegation.
The Department of Justice did not respond to a request for comment. Givogue could not be reached for comment.