Issue of damages under human rights legislation remitted to public sector employment board
The Federal Court of Appeal has allowed a judicial review application by a border services officer (BSO) relieved of his front-line enforcement duties relating to the question of damages for pain and suffering under the Canadian Human Rights Act, 1985.
In Matos v. Canada (Attorney General), 2025 FCA 109, the applicant worked as a BSO at the Canada Border Services Agency (CBSA) or its predecessors for around 35 years.
At the Ambassador Bridge border crossing, he performed work duties such as inspecting and verifying travelers and goods, deciding the appropriate action for non-compliance, and arresting or detaining individuals suspected of committing offences under various laws.
BSOs would exercise their front-line duties on the primary inspection line (PIL) for an hour at a time due to the intense focus involved, then perform their administrative tasks as part of their enforcement role in the back office for an hour.
In 2006, the CBSA began arming its BSOs in an effort to improve border security and allow them to defend themselves. The applicant completed the required firearms training and used the defensive tools without incident.
In 2009, the CBSA mandatorily required medical testing for its BSOs working on the PIL and its other employees holding enforcement roles. The applicant’s doctor found him unfit for control and defensive training and firearms training courses.
In July 2014, a supervisor took the applicant’s firearms and immediately assigned him to non-PIL work at the border crossing. When asked if he preferred an “accommodated post,” the applicant requested an assignment to the UPS and FedEx facility close to the border crossing.
For weeks, the applicant made multiple inquiries and considered options for accommodation and possible ways to return to his role entailing front-line enforcement duties and the use of firearms.
The applicant’s transfer to the courier facility took place in October 2014. His new duties involved no front-line enforcement duties or defensive tools. He retired from the CBSA in August 2016.
The applicant filed a grievance challenging the CBSA’s acts. He alleged that his employer discriminated against him and harassed him due to his physical disability and thus breached the no-discrimination clause in the collective agreement governing his employment terms.
The grievance failed at the first, second, and final levels. In 2023, upon a reference for its adjudication, the Federal Public Sector Labour Relations and Employment Board (FPSLREB) dismissed the grievance. The FPSLREB ruled that the applicant failed to show a prima facie case of discrimination and any adverse effects of the reassignment.
However, if the grievance had succeeded, the FPSLREB alternatively held that it would have rejected the CBSA’s justification argument since the CBSA failed to individually assess the applicant’s functional limitations before transferring him to an accommodated post.
If the grievance had pushed through, the FPSLREB said it would have awarded the applicant $1,000 in damages for any pain and suffering he experienced due to the CBSA’s discriminatory actions.
The Federal Court of Appeal remitted the matter to a different FPSLREB member, who would reassess the applicant’s entitlement to damages for pain and suffering under s. 53(2)(e) of the Canadian Human Rights Act.
The appeal court concluded that FPSLREB unreasonably determined that the applicant failed to establish a prima facie case of discrimination.
In reaching this conclusion, the appeal court considered the relevant legal restrictions, such as the language of the applicable statutory provisions, the collective agreement’s provisions, and the Supreme Court of Canada’s comments regarding the significance of work.
The appeal court also weighed the pertinent factual constraints in this case, including the applicant’s clear and uncontradicted evidence, which the FPSLREB accepted, regarding how the CBSA’s actions impacted him.
The appeal court ruled that the FPSLREB failed to appreciate the non-pecuniary harm that the transfer inflicted upon the applicant and failed to address the importance of his work to his dignity, self-worth, and self-fulfillment.
Based on the applicant’s testimony, the appeal court held that he loved his job on the PIL and felt devastated and disconnected from his workplace after the CBSA deprived him of these duties.
The appeal court noted that the applicant alleged that his PIL duties made him feel normal, and he requested a transfer to the courier facility to make himself useful because working in the back office at the border crossing would not make him feel that way.
Next, the appeal court rejected the CBSA’s argument that its actions did not adversely affect the applicant since it reasonably accommodated him by offering him a non-enforcement position.
The appeal court explained that the CBSA’s assertion conflated the test for a prima facie case of discrimination with the CBSA’s burden to justify its actions within the framework of exemptions under s. 15 of the Canadian Human Rights Act. One such exemption would arise if an employer reasonably accommodated an employee.
The appeal court said that a finding on whether an employer sufficiently accommodated an employee would not figure into a determination of whether the employee successfully established a prima facie case of discrimination. The appeal court added that the argument did not favour the CBSA since the FPSLREB found that the CBSA did not adequately accommodate the applicant.
