Date: 20051024
Docket: T-97-05
Citation: 2005 FC 1438
OTTAWA, Ontario, this 24th day of October, 2005
PRESENT: THE HONOURABLE PAUL ROULEAU
BETWEEN:
ANTONIO LAO
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for leave and judicial review, under s. 18.1 of the Federal Courts Act, R.S.C 1985 c. F-7, of the decision, dated December 29, 2004, in which the Canadian Human Rights Commission ("CHRC") determined not to entertain the applicant's complaint, relying on a recommendation pursued to paragraph 44(3)(b) of the Canada Human Rights Act submitted by an investigator who recommended that the CHRC dismiss the complaint.
[2] The applicant, Antonio Lao, has been employed by Citizenship and Immigration Canada ("CIC") Case Processing Center in Vegreville, Alberta, since October 19, 1999. He was hired at the CR-03 level, as a Support Services Agent.
[3] The applicant has applied for a number of competitions since 2001, at the PM-02, PM-03, and CR-05 levels. He has been unsuccessful in each of his applications.
[4] In November 2002, the applicant lodged a complaint with CHRC which was updated in June of 2003 in which he alleges that CIC treated him in an adverse differential manner in his employment because he is a Chinese immigrant from Peru who is 59 years old. He alleges that the discrimination took place between December 2001 and June 2003.
[5] The applicant submitted seven allegations where he was unsuccessful in various job competitions or openings at the CIC office in Vegreville.
[6] The CHRC appointed an investigator to conduct an investigation into the applicant's complaints. Both parties made submissions to the investigator. On October 28, 2004, the investigator recommended that the applicant's complaint should be dismissed by the CHRC, pursuant to s. 44(3)(b) of the Canadian Human Rights Act ("CHRA"), because the information gathered from the parties did not support the allegations. The investigator's report details each of the seven allegations advanced by the applicant.
[7] On December 29, 2004, the CHRC dismissed the applicant's complaint, pursuant to s. 44(3)(b) of the CHRA, because the information gathered did not support the allegations.
[8] The decision under review is the CHRC's decision to dismiss the applicant's complaint. The CHRC decision is based on the investigator's report, so I will briefly examine the report and the findings on each of the seven allegations.
[9] The first allegation relates to a PM-02 competition in December of 2001. The applicant was found not to meet the experience factors requiring significant experience in the interpretation and application of the statutes and regulations. He was also found to be lacking in substantial experience working with computer based systems. The respondent notes that the applicant had initially been screened out but points out that this competition was cancelled on May 7, 2002. The investigator concluded that the applicant was reasonably screened out, after a comparison with the selected candidate. The investigator concluded that the complaint does not support an allegation of adverse differential treatment based on race or national or ethnic origin.
[10] The second allegation relates to a CR-05 Service Delivery Agent ("SDA") competition of January 2002. The applicant alleged that there were less qualified people than him placed on the eligibility list, but did not specify who they were. The investigator notes that the applicant was screened out because he did not achieve the pass mark required on the knowledge qualification of the competition. The Appeal Board Chairperson reviewed the assessment of the applicant's answers, and found the assessment to be reasonable. The applicant was not placed on the twelve (12) person eligibility list for the competition. The investigator concluded that contrary to what had been suggested by the applicant, persons placed on the eligibility list included persons of visible minority groups. His allegation of deferential treatment on the basis of grounds specified could not be upheld.
[11] The third competition at issue was a PM-03 Career Progression Program Competition, in January 2002. The applicant was in the top 25 candidates after the General Competency Test, level 2, so he proceeded to an Identifying Middle Management Potential ("IMMP") Assessment. He placed 25th out of the 25 on the IMMP. Only the top ten from the IMMP were granted interviews, and three candidates were successful in the competition. The applicant, not being in the top 10 after the IMMP Assessment, was not granted an interview. The investigator concluded that the applicant's failure in the competition was not related to his age or to any assessment criteria related to age.
[12] The fourth allegation concerns a PM-02 competition from February 2002. The applicant passed the first component of the competition (the Knowledge Exam), but subsequently failed the Officer Simulation Test and was therefore eliminated from the competition. The investigator concluded that the applicant did not suffer from differential treatment because of his age, and noted that one of the successful candidates was 55 years old.
[13] The fifth allegation concerns another PM-02 position, where the applicant was screened out because he failed to meet the requirement of significant experience in the interpretation and application of the Immigration Act and its Regulations. The investigator notes that two of the candidates who were screened into the competition shared the same ethnic background as the applicant. The investigator concluded that the applicant did not provide any link between his failure in the fifth competition, and one of his alleged grounds for differential treatment.
[14] The sixth allegation concerns another CR-05 SDA competition. The applicant claims that he was more qualified than the "Caucasians" who were successful in the competition. The applicant claims he provided the names of the "Caucasians" to whom he was referring in a letter dated May 29, 2004. The investigator reviewed the letter and could not discern who the applicant was referring to. It is noted that the applicant failed to pass the "Effective Interpersonal Relationships" Personal Suitability criteria, which was part of the interview attended by the applicant. The competition resulted in an eligibility list of 20 people, and did not include the applicant. The investigator concluded that the information regarding the sixth competition does not support an allegation of differential treatment.
[15] Finally, the seventh allegation refers to acting opportunities, where CR-03 people were acting in CR-05 positions. The applicant alleges that the acting opportunities occur traditionally in the summer, and the opportunities are based on seniority. He claims that the use of seniority for acting opportunities were suspended when he became the most senior CR-03 at CPC-Vegreville. CIC notes that the acting opportunities based on seniority ended in 2000 and that the applicant was still not the most senior CR-03 at CPC-Vegreville. CIC notes that acting opportunities are offered to persons who have previously qualified on a CR-05 competition eligibility list. The applicant had not qualified on a CR-05 competition to date. The investigator concluded that the applicant did not provide any information linking his failure to be considered for an acting opportunity to his race, national or ethnic origin, or age.
[16] The investigator concluded that the information and allegations surrounding the seven competitions did not support the applicant's allegations of treatment in an adverse differential manner because of age, ethnic or national origin, or race, which was the basis generally relied upon on filing a complaint. He recommended dismissal of the complaint. CHRC subsequently dismissed the complaint.
[17] The applicant argues that he was unfairly screened out or eliminated from the six competitions, and was discriminated against by not being offered an acting opportunity. It is trite law that it is not the mandate of this Court to re-weigh the factual evidence where the decision maker's decision is reasonable (see for example Tahmourpour v. Canada(Solicitor General) [2005] F.C.J. No. 543 (FCA) at para 6). I am of the opinion that the CHRC decision to dismiss the complaint is reasonable in the instant case.
[18] This Court requires that an investigator's report must be both neutral and thorough (Slattery v. Canada(Human Rights Commission) [1994] 2 F.C. 547; affirmed [1996] F.C.J. No. 385 (FCA)). In the present case, both the applicant and CIC were given the opportunity to make written submissions, and the report clearly explains that the investigator reviewed and considered the submissions put forth by both sides.
[19] In Syndicat des Employés de Production du Québec et de l'Acadie v. Canada(Human Rights Commission) [1989] 2 S.C.R. 879, Sopinka J. writing for the Supreme Court of Canada, noted the following at para 27:
It is not intended that this be a determination of whether the evidence is weighed as in a judicial proceeding, but rather the Commission must determine whether there is a reasonable basis for proceeding to the next stage.
[20] In my opinion, the CHRC's decision to dismiss the complaint was reasonable given the evidence, and there was no reasonable basis for proceeding to the next stage (a Board of Inquiry). The applicant's submissions are merely an attempt to have this court re-weigh the evidence that was reasonably assessed by the CHRC and the investigator.
[21] The applicant, in his submissions, has failed to prove that the investigator's conclusions were unreasonable, and has not linked any of the allegations to one of his specified grounds for adverse differential treatment. The CHRC's decision to dismiss the complaint under s. 44(3)(b) of the CHRA was reasonable. As a result, the application for judicial review of the CHRC decision must be dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. I make no order as to costs.
"Paul Rouleau"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-97-05
STYLE OF CAUSE: ANTONIO LAO
and
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 5, 2005
REASONS FOR REASONS: Honourable Paul Rouleau
DATED: October 24, 2005
APPEARANCES:
Mr. Lao FOR THE APPLICANT
Mr. Drummond FOR THE RESPONDENT
SOLICITORS OF RECORD:
None FOR THE APPLICANT
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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