Date: 20101223
Docket: T-172-10
[UNREVISED ENGLISH
CERTIFIED TRANSLATION] Citation: 2010 FC
1325
Ottawa,
Ontario, December 23, 2010
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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CONSEIL DES MONTAGNAIS DE NATASHQUAN
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Applicant
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AND
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ÉVELYNE
MALEC, SYLVIE MALEC, MARCELLINE KALTUSH, MONIQUE ISHPATAO, ANNE B. TETTAUT,
ANNA MALEC, ESTELLE KALTUSH
AND
CANADIAN HUMAN RIGHTS COMMISSION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
FACTS
[1]
This
is an application for judicial review of a decision of the Canadian Human
Rights Tribunal (the Tribunal), dated January 27, 2010, which allowed in part
the respondents’ complaint of discrimination in the course of employment on the
basis of their race, contrary to section 7 of the Canadian Human Rights Act,
R.S.C. 1985, c. H-6 (the Act).
[2]
The
respondents, Évelyne Malec, Sylvie Malec, Marcelline Kaltush, Monique Ishpatao,
Anne Bellefleur-Tettaut, Anna Malec and Estelle Kaltush, are Innu from the
Montagnais community of Natashquan. All of them work at Uautshitun School,
administered by the Conseil des Montagnais de Natashquan (the applicant). All
of them hold bachelor’s degrees, with the exception of Anne Bellefleur-Tettaut
and Sylvie Malec.
[3]
Évelyne
Malec has been a special education teacher since 2001, with the exception of
the 2003-2004 school year, during which she did not work at the school. Anne
Bellefleur-Tettaut has taught Innu at the elementary level since 1983, with the
exception of the 2003-2004 school year. Sylvie Malec has also taught Innu since
January 2003, with the exception of the 2003-2004 school year. Anna Malec has
taught at the preschool level since 1985, with the exception of the 2003-2004
school year. Monique Ishpatao has taught at the preschool and elementary level
since 1990, with the exception of the 2003-2004 school year. Marcelline Kaltush
has been teaching from 1994 to 2007, with the exception of the 2003-2004 school
year. Estelle Kaltush was vice-principal from 2003 to 2009. From January to
June 2007, she was acting principal.
[4]
Uautshitun
School is located
in the Innu community of Natashquan, on the north shore of the Gulf of St.
Lawrence, 376 km east of Sept-Iles, in the province of Quebec. The
community is home to about 1,000 people. It is not disputed that all of the
respondents lived within a 50-kilometre radius of Uautshitun School, in
the Innu community of Natashquan.
[5]
In
June 2005, the working conditions for employees at Uauitshitun School were set
out in a document entitled Entente intervenue entre le Conseil des
Montagnais de Nutashkuan et le personnel de l’École Uauitshitun de Nutashkuan ─
Convention réciproque de traitement du personnel de l’École Uauitshitun de
Nutashkuan [Agreement between the Montagnais de Nutashkuan Band Council and
Employees at the Uauitshitun School in Nutashkuan – Mutual Agreement on the
Treatment of Employees at the Uauitshitun School in Nutashkuan] (the 2005
agreement). This agreement provided for an isolated post allowance to be paid
to teaching staff and professional employees who had at least a bachelor’s
degree (article 6.5), three allowances for “annual outings for employees hired
outside a 50 km radius” (article 6.4) as well as a monthly housing allowance (article
8.6).
[6]
In
2007, the applicant adopted its Politique des ressources humaines ─ Personnel
de l’école Uauitshitun [Human Resources Policy—Employees at Uauitshitun School],
which replaced the 2005 agreement. This policy also provided for an isolated
post allowance for teaching staff and professional employees at the school, but
specified that it was for non-resident staff, i.e. whose ordinary and main
place of residence is located more than 50 kilometres from Natashquan. This policy
also provided for three allowances for annual outings and a monthly housing
allowance for non-resident employees.
[7]
On
April 21, 2007, the respondents filed a complaint with the Canadian Human
Rights Commission (the Commission) against their employer, the Conseil des
Montagnais de Natashquan, alleging employment discrimination on the basis of
their Aboriginal status, contrary to the Act. They claim the applicant’s policy
on isolated post allowances discriminates against Aboriginal teachers and
professional employees because they are not entitled to the same benefits as
non-Aboriginal teachers. This complaint was heard before the Tribunal and a
decision was rendered on January 27, 2010, allowing the application in part.
[8]
The
Tribunal determined that the respondents had established a prima facie
case that, until 2007, they were adversely differentiated against in the course
of employment based on their race because the applicant refused to pay them an
isolated post allowance when such an allowance was paid to all non-Aboriginal
teachers, whether they resided in the community or not. However, this prima
facie evidence was not established with regard to the allowances for annual
outings or the housing allowance.
[9]
As
for the isolated post allowance, the Tribunal noted that until February 2007,
the policy made no distinction between teachers who lived in the Innu community
and those who lived outside but that the allowance was nonetheless paid only to
non-Aboriginal teachers, although it had once been paid to a teacher who had
acquired Aboriginal status under the Indian Act, R.S.C. 1985, c. I-5.
After 2007, the policy clearly distinguished between those employees living
outside of the community and those living within the community. The Tribunal
then determined that the applicant could not justify the existence of this
unfair treatment and therefore could not rebut the presumption that the
respondents had been discriminated against on this ground.
[10] However, the
evidence did not support the respondents’ allegations that the applicant had retaliated
against them following the filing of the complaint, contrary to section 14.1 of
the Act.
[11] The Tribunal
determined that, for the years leading up to 2007, the respondents were
entitled to the isolated post allowance, which the discriminatory practice had
deprived them of. The amount of compensation was determined according to each
respondent’s particular situation. The Tribunal also ordered that each
respondent be paid $500 in compensation for pain and suffering.
PARTIES’
POSITION
[12] The applicant
submits that the Tribunal erred in determining that the applicant was not able
to justify the purpose of the isolated post allowance and rebut the prima
facie evidence of discrimination when it is clear from the testimony that
the purpose of this policy was the need to recruit teaching staff from outside the
Natashquan region. The respondents had not been discriminated against based on
their race because evidence had been adduced showing that Geneviève T. Néashit
also received an isolated post allowance even though she had Aboriginal status.
[13] In addition,
it was unreasonable for the Tribunal to have awarded isolated post allowances
to Sylvie Malec and Anne B. Tettaut, who did not have bachelor’s degrees when,
under article 6.5 of the 2005 agreement, a bachelor’s degree was required in
order to receive this allowance. In a similar vein, Marcelline Kaltush was not
entitled to the isolated post allowance for employees with dependent children because
the children she was caring for were her niece and nephew, not her biological
children. Article 3.15 of the 2005 agreement states that the dependent child
must be the employee’s child.
[14] The Tribunal also
erred when it awarded the respondents over three years of retroactive isolated
post allowances. Article 2925 of the Civil Code of Québec sets a
three-year limitation period for any action to enforce a personal right or
movable real right. Under section 8.2 of the Interpretation Act, R.S.
(1985) c. I-21, this limitation period in the Civil Code applies to the
case at bar. It should have also considered the fact that all of the
respondents, except for Évelyne Malec and Marcelline Kaltush, were not working
at the school in 2003-2004.
[15] The
respondents submit that the Tribunal did not err in finding that there was discrimination
on the basis of race. Geneviève T. Néashit was a non-Aboriginal and had acquired
her status through marriage. Furthermore, the evidence showed that the
entire group of Aboriginal residents was not receiving this isolated post
allowance while non-Aboriginal residents were receiving it. The Tribunal reasonably
found that by refusing to pay the isolated post allowance to a clearly
identified group, the applicant was discriminating against that group.
[16] Nor did the
Tribunal err when it found that the applicant had not provided a bona fide
justification for its refusal to pay the respondents the isolated post
allowance. The isolated post allowance could not have been based on the need to
recruit teaching staff from outside the Natashquan region since
there is no mention of this in article 6.5 of the 2005 agreement. Moreover, as
the Tribunal noted in its decision, a new policy was adopted in 2007 in order
to add the ordinary and main residence criterion as a requirement for the
allowance, which confirms the fact that this criterion did not exist before
that date.
[17] The Tribunal
was also justified in awarding an isolated post allowance to Sylvie Malec and
Anne B. Tettaut, even though they did not have bachelor’s degrees. It
considered the fact that it is impossible to obtain a bachelor’s degree in Innu
because no universities offer this kind of degree program. It was therefore
reasonable for it to recognize the experience and equivalent qualifications of
these two teachers. In addition, there was no termination of the employment
relationship between the respondents and the applicant. The respondents had
signed releases indicating that they would all be reinstated in their teaching
positions at the start of the 2004 school year. Reinstatement presupposes regaining
all of their rights as teachers.
[18] For its part,
the Commission argues that the Tribunal did not err when it awarded the
respondents a 17-year retroactive isolated post allowance, pursuant to
paragraph 53(2)(b) of the Act. According to Robichaud v. Canada (Treasury Board),
[1987]
2 SCR 84, at para 13, remedies must be effective and consistent with the
“almost constitutional” nature of the rights protected.
[19] The
three-year limitation period set out in the Civil Code does not apply
here: human rights legislation does not create a common-law cause of action (Chopra
v Canada (Attorney
General),
2007 FCA 268, [2007] FCJ No 1134). It can also be inferred that this
legislation does not create a right to seek redress under civil law. Furthermore,
it is for the Tribunal to determine when the discriminatory practice began and
ended. Therefore, there is causal link between the discriminatory policy and
the losses incurred by the respondents that justifies the payment of
compensation for the entire employment period.
ISSUES
[20] The following
issues arise from this matter:
(1) Did the
Tribunal err by finding that the respondents had been discriminated against
based on their race?
(a) Did the Tribunal err by determining that the respondents
had established a prima facie case that they had been discriminated
against in the course of employment?
(b) Did the Tribunal err by finding that the applicant had
not provided a bona fide justification for refusing to pay the respondents the
isolated post allowance?
(2) Did the
Tribunal err by awarding the isolated post allowance to the respondents?
(a) Did the Tribunal err by awarding isolated post allowances
to the two respondents who did not have bachelor’s degrees and awarding
another respondent the isolated post allowance for employees with dependent
children?
(b) Did the Tribunal
err by awarding retroactive isolated post allowances to the respondents?
STANDARD OF REVIEW
[21] As this Court
noted in Sadi v Canada (Canadian Human Rights
Commission), 2006 FC 1067, [2006] FCJ No 1352 at para 14, the
Tribunal has experience and expertise in human rights. In this regard,
considerable deference is owed.
[22] The Court
must also show deference to an administrative tribunal when it makes a decision
on matters within its enabling statute, as is the case here (Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 147; Public Service Alliance of Canada v
Canadian Federal Pilots Association and Attorney General of Canada, 2009 FCA
223, [2009] FCJ No 822 at para 36). Therefore, all of the issues are reviewable
on a standard of reasonableness.
ANALYSIS
(1) Did the
Tribunal err by finding that the respondents had been discriminated against
based on their race?
[23] Under
paragraph 7(b) of the Act:
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Employment
7. It is a discriminatory practice, directly or
indirectly:
…
(b) in the course of employment, to
differentiate adversely in relation to an employee, on a prohibited ground of
discrimination.
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Emploi
7. Constitue un acte discriminatoire, s’il est
fondé sur un motif de distinction illicite, le fait,
par des moyens directs ou indirects :
…
b) de le défavoriser en cours d’emploi.
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[24] The Supreme
Court of Canada established that it was necessary to adopt a unified approach
to adjudicating human rights complaints. When there is a complaint of discrimination,
the plaintiff must establish prima facie evidence of discrimination.
Once this evidence is established, the onus shifts to the defendant to prove,
on a balance of probabilities, that the discriminatory practice has a bona fide
and reasonable justification (British Columbia (Superintendent of Motor
Vehicles) v British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [Grismer];
British Columbia (Public Service Employee Relations Commission) v
BCGSEU, [1999] 3 S.C.R. 3 [Meiorin].
(a)
Did the Tribunal err by determining that the respondents had established a prima
facie case that they had been discriminated against in the course of
employment?
[25] In Ontario
Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536, the Supreme
Court of Canada defined what constitutes prima facie evidence in
employment discrimination:
The complainant in proceedings before
human rights tribunals must show a prima facie case of discrimination. A
prima facie case in this context is one which covers the allegations
made and which, if they are believed, is complete and sufficient to justify a
verdict in the complainant’s favour in the absence of an answer from the
respondent-employer.
[26]
In
the case at bar, the Tribunal found that the respondents had established a prima
facie case that they had been discriminated against in the course of
employment on the basis that the applicant refused to pay them an isolated post
allowance. In coming to this conclusion, the Tribunal took into consideration
the fact that the 2005 agreement made no distinction between teachers living in
the community and those living outside the community and made no mention of the
allowance being used to recruit or facilitate the recruitment of teachers from
outside the community.
[27]
Only
the testimony of Geneviève Taschereau Neashit, whose Aboriginal status had been
acquired through marriage while the respondents are all Aboriginal by birth,
was not accepted by the Tribunal, which determined that the respondents were a
distinct group at risk of discrimination based on their race.
[28] The finding
that the respondents had established a prima facie case that they had
been victims of discrimination was based both on their testimony and on the
documentary evidence which showed that this isolated post allowance had not
been paid to them when it was being paid to non-Aboriginal teachers living in the
community.
[29] Thus, in the
absence of proof to the contrary and to the extent that the evidence is
credible, this evidence is complete and sufficient to justify a verdict in the
complainants’ favour in the absence of an answer from the employer. The Tribunal’s
finding was therefore reasonable and fell within a range of possible acceptable
outcomes, having regard to the facts and law.
(b) Did the Tribunal err by finding that the applicant had
not provided a bona fide justification for refusing to pay the respondents the
isolated post allowance?
[30] Once this prima
facie evidence is established, the onus shifts to the applicant to prove
that there was no discrimination against the respondents or that the
discriminatory practice or policy was justified. The test established by the
Supreme Court in Meiorin, above, at para. 54, applies to the case at bar:
Having considered the various
alternatives, I propose the following three-step test for determining whether a
prima facie discriminatory standard is a BFOR. An employer may justify
the impugned standard by establishing on the balance of probabilities:
1) that the employer
adopted the standard for a purpose rationally connected to the performance of
the job;
2) that the employer adopted
the particular standard in an honest and good faith belief that it was
necessary to the fulfillment of that legitimate work-related purpose; and
3) that the standard is
reasonably necessary to the accomplishment of that legitimate work-related
purpose. …
[31] In this
regard, the Tribunal determined that no evidence had been adduced by the
applicant to justify why this allowance had not been paid to the respondents:
The burden is now on the respondent to
show, on a balance of probabilities, that there was a bona fide justification
to deny the complainants the isolated post allowance. The respondent did not
submit any evidence to justify this unfair treatment. Moreover, the
respondent did not submit any evidence to show that the treatment was due to
the permanent residence of the recipients rather than their race/ethnic origin
or national origin. The so-called “admissions” by the complainants have no
probative value that would allow such a conclusion or practice. (Tribunal’s
decision, at para 45). [Emphasis added.]
[32] However, it
is not true that the employer failed to submit any evidence to justify the
isolated post allowance policy. The Tribunal failed to take into account
the testimony of André Leclerc, the former principal of Uauitshitun School. Mr. Leclerc
had also contributed to the writing of a report on that school entitled Rapport
d’évaluation des services éducatifs de l’école Uauitshitun de Nutashkuan
[Report on the Assessment of Educational Services at Uauitshitun School in
Nutashkuan]. He therefore has undeniable expertise in matters relating to the
school. During his testimony, when explaining the purpose of the isolated post
allowance, Mr. Leclerc stated:
[translation]
I … it is to bring in…it is to bring in
staff in the hope that they would stay, to avoid…To try and find competent
staff first, on the one hand, and to try and ensure some kind of continuity,
then to try and get them to stay with us.
[33] The Tribunal,
without a valid reason, also failed to assign any probative value to Ms. Malec’s
admission, during cross-examination, that her spouse, who was non-Aboriginal
but living in the community, had received an isolated post allowance because he
had been living outside the community at the time he was hired:
[translation]
Well, I’ll tell you why, because it’s
non-Aboriginal teaching. They hired him on (inaudible) it was in Quebec City, that’s why he got the
allowance.
[34] Nor did the
Tribunal examine the statement by Geneviève T. Néashit, an Aboriginal who
acquired her status through marriage, who explained that she received the
allowance because she lived outside the community:
[translation]
Q: Are you entitled to an allowance?
A: Yes.
Q: And what kind of allowance are you entitled to?
A: To that isolated post allowance, because I was not living at home… .
[35] The Tribunal
should have considered all of the testimony that explained that the purpose of
the isolated post allowance was to attract professional and teaching staff who
were from outside the community of Natashquan at the time of hiring, and then
to retain that staff.
[36] It is one
thing to say that a piece of evidence is insufficient to overturn a prima
facie case of discrimination, but it is quite another to completely ignore,
as is the case here, the evidence of bona fide justification that had been submitted.
The Tribunal should have taken the applicant’s explanations into account and
then decided whether, under the applicable case law and having considered the
totality of the evidence, these explanations were sufficient to overturn the prima
facie case of discrimination.
[37] The
Tribunal’s finding regarding the lack of bona fide justification is therefore
unreasonable and does not fall within the range of possible acceptable outcomes
which are defensible in respect of the facts and law. Therefore, there is no
need to assess the reasonableness of the compensation awarded by the Tribunal
to the respondents.
CONCLUSION
[38] For all these
reasons, the application for judicial review is allowed. The decision is set
aside and the matter referred back to a member or panel of the Canadian Human
Rights Tribunal for redetermination in accordance with these reasons.
JUDGMENT
THE COURT ORDERS
that
the application for judicial review be allowed, that
the decision be set aside and the matter be referred back to a member or panel
of the Canadian Human Rights Tribunal for redetermination in accordance with
these reasons. With costs.
“Danièle Tremblay-Lamer”
Judge
Certified
true translation
Sebastian
Desbarats, Translator
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