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Federal Court - JR - Remedies. O’Grady v. Bell Canada
In O’Grady v. Bell Canada (Fed CA, 2026) the Federal Court of Appeal allowed an CHRA claimant's appeal, this brought against "the judgment of the Federal Court ... dismissing her application for judicial review of the decision of the Canadian Human Rights Tribunal", here concerning "whether terminating the employment of an employee in receipt of long-term disability benefits and thereby ceasing their disability benefit coverage, before they can commence a medically-recommended progressive return to work, raises a prima facie case of discrimination on the ground of disability ....".
The court considers the JR remedy of 'remittal', here in this Federal Court system context:[73] The ordinary remedy on judicial review is to remit the matter to the administrative decision-maker for reconsideration. As the Supreme Court explained in Vavilov, the choice of remedy generally must respect the legislature’s decision to entrust matters to specialized administrative decision-makers while also promoting the proper administration of justice, access to justice, and the efficient resolution of disputes. Accordingly, remittal will "“most often”" be the appropriate disposition: Vavilov at para. 141.
[74] The Supreme Court nevertheless recognized that remittal is not an inflexible rule. In an exceptional case, a reviewing court may substitute the appropriate disposition where remitting the matter "“would stymie the timely and effective resolution”" of the dispute or where "“a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose”": Vavilov at para. 142. As the Court emphasized, the legislature’s intention that an administrative decision-maker decide matters in the first instance "“cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations”": Vavilov at para. 142.
[75] Likewise, in D’Errico v. Canada (Attorney General), 2014 FCA 95 at paras. 15–18, this Court recognized that repeated remittals may undermine, rather than promote, the legislative objectives underlying administrative decision-making. Vavilov expressly endorsed those principles.
[76] This case exemplifies the concerns identified in these authorities. The appellant filed her complaint with the Commission in October 2010. Since then, the matter has proceeded before the Commission, the Tribunal, and the Federal Court on multiple occasions, and now this Court. More than fifteen years have elapsed without a final determination of the merits of her complaint. To remit the matter for reconsideration of whether a prima facie case of discrimination exists would perpetuate precisely the "“endless merry-go-round of judicial reviews and subsequent reconsiderations”" that Vavilov instructs reviewing courts to avoid.
[77] Moreover, in my view, the issue of prima facie discrimination admits of only one lawful outcome on this record. The relevant facts make it clear that Bell DMG accepted that it was appropriate for the appellant to participate in a graduated return to work under its Long-Term Disability Rehabilitation Program that both the IME and the appellant’s treating psychotherapist determined was required. It is also clear that the appellant required several weeks of progressive return to work before she would have been capable of returning to work on a full-time basis but was not afforded this opportunity. Instead, Bell terminated her employment, thereby ending both her participation in the rehabilitation process and her entitlement to disability-related benefits. Given her relapse, the denial of ongoing disability benefits adversely affected the appellant as she lost entitlement to ongoing disability coverage that was not offset by a few months of salary continuance. These facts establish that Bell treated the appellant as though she had recovered when she had not and still needed to be accommodated through the disability management process. Disability was therefore a factor in the adverse treatment the appellant received, and a prima facie case of discrimination has been established. As in Desormeaux, Bell applied criteria applicable to employees who were well and capable of work to the appellant, when she was not, and this gave rise to a prima facie case of adverse impact discrimination. Given this, I would find that no purpose would be served by requiring the Tribunal to determine the issue of whether the appellant established a prima facie case of discrimination anew.
[78] However, the same cannot be said of the remaining issues. Having concluded that no prima facie case existed, the Tribunal did not determine whether Bell’s conduct was justified as a bona fide occupational requirement, whether Bell satisfied its duty to accommodate to the point of undue hardship, or what remedies should follow. While it may be difficult to see how a bona fide occupational requirement defence may be made out on these facts, that is a matter that requires factual findings and evaluative judgments which Parliament has committed to the specialized expertise of the Tribunal. The same is true with respect to the appropriate remedy, in respect of which there may be more than one lawful outcome. These issues should therefore be remitted to the Tribunal for determination but should be placed before a different Tribunal panel, in part because the member who rendered the Tribunal Decision is no longer a member of the Tribunal.
VIII. Proposed Disposition
[79] I would accordingly allow this appeal with costs, consisting of the appellant’s disbursements both here and before the Federal Court, would set aside the Federal Court and Tribunal Decisions, and would substitute the conclusion that Ms. O’Grady has established a prima facie case of discrimination on the ground of disability contrary to the CHRA. I would also remit her complaint to a differently constituted panel of the Tribunal for the purpose of determining whether Bell has established a bona fide occupational requirement and accommodation to the point of undue hardship and, if not, to determine the appropriate remedies under the CHRA.
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