Articles of Interest
Update: Decision of the Federal Court in the Muldoon Case
by Martin Griffin, Legal Counsel
March 2004
On March 16, 2004, the Federal Court issued its decision in Muldoon v. Canada [2004]
FC 380, in which it granted Constable Denis Muldoon's application for
judicial review of the Commissioner's decision denying his Level II
grievance. The Muldoon case (G-267) was summarized in the Communiqué
of January-March 2002 (Committee's recommendation) and July-September
2002 (Commissioner's decision).
In the early 1990s, Constable Muldoon injured his back in a police car accident. His
condition deteriorated over time to the point that in 1996, he was no longer
able to work. Constable Muldoon was on medical leave as of that date and has
been unable to return to duty.
The Force examined whether Constable Muldoon should be medically discharged, and
determined that there were no available positions within the Force for which
he was sufficiently qualified. A medical board concluded that Constable
Muldoon would be unable to perform the vast majority of duties listed in the R.C.M.P.
General Duty Constable Integrated Task Bank. The Force issued a Notice of
Discharge, and Constable Muldoon grieved that decision.
The Grievance Advisory Board (GAB) concluded that the Force was not required to find
alternate employment for a member who, because of a disability, was no longer
able to meet the minimum medical requirements for general duty constables. The
Level I adjudicator accepted those reasons and denied the grievance.
The RCMP External Review Committee recommended that the grievance be allowed. The
Supreme Court of Canada's decision in Meoirin established that the
Force had the onus of presenting evidence to support the following three
conclusions:
-
that the employer adopted the standard for a purpose rationally connected to
the performance of the job;
-
that the employer adopted the particular standard in an honest and good faith
belief that it was necessary to the fulfilment of that legitimate work-related
purpose; and
- 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.
The Committee found that although the first and second conditions had been met in this
instance, the Force had not demonstrated that accommodating Constable Muldoon
would create an "undue hardship". The Committee also noted that the
obligations that the Force has imposed upon itself to assist disabled members
in securing alternate employment within the Force fell well short of what the Meiorin
decision requires.
The Commissioner agreed with the recommendations of the Committee concerning the
Force's duty to accommodate. The Commissioner therefore ordered a review of
current policies and the development of directives that are clearer about the
duty to accommodate and which cover the cases of members who cannot occupy
their front line position but who could occupy other existing or modified
positions within the Force.
However, the Commissioner dismissed the grievance, expressing the view that there was no
requirement to accommodate an employee who was unemployable in any way. In the
case under review, Constable Muldoon's medical profile was level 06, which
meant that he was not considered employable by the RCMP in any capacity.
Moreover, the medical board estimated that Constable Muldoon was unable to
perform most of the tasks required of a General Duty Constable. As a result,
the Commissioner concluded that:
Constable
Muldoon's medical condition is such that he cannot be depended upon to
perform any duties. An accommodation in any regular member or civilian member
position within the RCMP, even with an alteration of duties, equipment or work
conditions, would still require the RCMP to waive the requirement that
Constable Muldoon be available to perform his required duties.
In applying the Meiorin analysis, I find that such a waiver would constitute an
undue hardship upon the RCMP.
The Federal Court set aside the Commissioner's decision. The Court agreed with the
Committee's conclusion that although the first two requirements set out in Meiorin
had been met, the RCMP had not established that it was unable to accommodate
Constable Muldoon without experiencing undue hardship. The Court stated that:
In order to fulfill the onus placed upon the RCMP in the third part of the test,
it must establish that it cannot accommodate the Applicant and others
adversely affected by the standard without experiencing undue hardship. The
RCMP has not demonstrated this [..]
The Court also concluded that the Commissioner had failed to provide reasons for not
acting in accordance with the findings and recommendations of the Committee,
as is required by section 32(2) of the RCMP Act.
The matter was remitted back to the RCMP Commissioner for reconsideration and
redetermination in accordance with the Court's reasons.