Date: 20100927
Docket: T-771-09
Citation: 2010 FC 963
BETWEEN:
CHRIS
HUGHES
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
ORDER
HENEGHAN J.
[1]
By
Order issued on June 10, 2010, the within application for judicial review was
allowed, with reasons to follow. These are the reasons.
[2]
Mr.
Chris Hughes (the “Applicant”) seeks judicial review of the decision made by
the Canadian Human Rights Commission (the “CHRC” or “the Commission”) dated May
1, 2009. In that decision, the Commission dismissed his complaint filed
pursuant to sections 7 and 10 of the Canadian Human Rights Act, R.S.C.
1985, c. H-6, alleging discrimination by the Canada Border Services Agency (the
“CBSA”) in not employing the Applicant.
[3]
The
CBSA is represented in this proceeding by the Attorney General of Canada as the
Respondent (the “Respondent”), pursuant to the Federal Courts Rules,
SOR/98-106 (the “Rules”).
[4]
The
Applicant filed this complaint on January 19, 2005. The complaint was assigned file
number 20050026 by the Commission. In his complaint form, the Applicant alleged
that he was not hired by the CBSA on the basis of discriminatory hiring
practises dating back to 2001 with the Canada Customs and Revenue Agency (the
“CCRA”), the predecessor to the CBSA and the Canada Revenue Agency (the “CRA”).
[5]
The
Applicant had filed other complaints with the Commission relating to the CBSA
and the CRA which are the subject of applications for judicial review in this
Court. Cause T-19-09 seeks review of the refusal of the Commission, in
December 2008, to reopen or to reinstate the Applicant’s complaint number
20061563 relating to retaliation by the CBSA. Cause T-702-09 relates to the
Commission’s refusal, in March 2009, to amend the complaint to allow the
incorporation of complaint 20080634, to reopen complaint 20061563 and join it
to complaint 20050026, and, or alternatively to re-submit the retaliation
allegation that was part of complaint 20061563 and join it with complaint
20050026.
[6]
The
Applicant brought a motion in the present proceeding to consolidate all three
applications for judicial review. The motion was dismissed by Prothonotary
Lafrenière on July 31, 2009.
[7]
In
its decision of May 1, 2009, the Commission dismissed the Applicant’s complaint
on the basis of paragraph 44(3)(b), as follows:
|
(3)
On receipt of a report referred to in subsection (1), the Commission
…
(b)
shall dismiss the complaint to which the report relates if it is satisfied
(i)
that, having regard to all the circumstances of the complaint, an inquiry
into the complaint is not warranted, or
(ii)
that the complaint should be dismissed on any ground mentioned in paragraphs
41(c) to (e).
|
(3)
Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
…
b)
rejette la plainte, si elle est convaincue :
(i)
soit que, compte tenu des circonstances relatives à la plainte, l’examen de
celle-ci n’est pas justifié,
(ii)
soit que la plainte doit être rejetée pour l’un des motifs énoncés aux
alinéas 41c) à e).
|
Background
[8]
In
support of this application, dealing only with complaint 20050026, the
Applicant filed two affidavits. The first affidavit, affirmed on June 5, 2009,
sets out the history of the Applicant’s complaint. Fifty-four documentary
exhibits are attached to the affidavit. Some of these exhibits relate to
complaint 20050026, while other exhibits refer to complaint 20061563 and
complaint 20080634.
[9]
The
Applicant obtained leave to file a Supplementary Application Record by Order
dated September 14, 2009. He filed the Supplementary Record on November 5,
2009. That Record included a second affidavit of the Applicant affirmed on
September 4, 2009. Twenty-three documentary exhibits are attached to
this affidavit. The exhibits include copies of emails sent by the Applicant to
the Commission, email correspondence from the Commission and internal file
memos maintained by the Commission.
[10]
The
Respondent also filed an affidavit as part of his Application Record, that is
the affidavit of Wendy Andrews, a legal assistant employed with the Department
of Justice, Canada. A copy of the
Certified Tribunal Record was attached as the sole exhibit to her affidavit.
According to the certificate signed by Lucie Veillette, secretary to the CHRC,
the documents listed in the certificate “constitute all the material that was
before the CHRC when it made its decision on April 22, 2009” concerning
complaint 2005-0026. The following materials were identified in the
certificate:
1.
Investigation Report, dated January 22, 2009 (pages 1-11);
2.
Complaint Summary (page 12);
3.
Complaint Form, dated January 19, 2005 (pages 13-16);
4. Complainant’s response to the
Investigation Report, dated
February 24, 2009 (pages 17-26);
5. Respondent’s response to the
Investigation Report, dated February
5, 2009 (page 27);
6. Amended Complaint Form, dated March
11, 2009 (pages 28-32);
7. Letter from Suzanne Best to Chris
Hughes, dated March 25, 2009
(page 33);
8. Respondent’s submissions in reply to
the Complainant’s response
to the Investigation Report, dated
April 8, 2009.
[11]
The
Applicant, in this application for judicial review, argues that the Commission
breached the duty of procedural fairness by erroneously opening a second
complaint that is complaint 20051563 and a third complaint, that is complaint
20080634, rather than permitting him to amend the first complaint, complaint
20050026.
[12]
He
argues that the Commission also breached the requirements of procedural
fairness by not allowing the Investigator to investigate the mental illness
disability ground since this complaint was known to the Commission in February
2005 and when he asked for the complaint files to be joined.
[13]
The
Applicant also alleges that the Investigator breached the requests of
procedural fairness by failing to investigate the complaint based on his
disability of mental illness, even though the complaint had not been formally
amended.
[14]
The
Applicant argues that the failure of the Investigator ignored crucial evidence,
including the ages of the candidates who had been hired by the CBSA. This
information was readily accessible and available.
[15]
Finally,
the Applicant submits that the Commission breached the requirements of
procedural fairness by failing to join the complaint with that of a similarly
situated complainant whose complaint, on similar grounds was referred to a
hearing before a tribunal.
[16]
The
Respondent argues that the content of procedural fairness is variable, in
relation to the context of each case. The subject of this application for
judicial review is not the result of an adjudication process but the result of
an investigation. The duty of fairness in this case required a fair
investigation, together with the opportunity for the complainant and the employer
to present their cases.
[17]
The
Respondent submits that the record shows that the Applicant had the opportunity
to adequately present his case and that he carried the onus of showing a prima
facie case of discrimination. He failed to do so.
[18]
As
for the Applicant’s arguments that the failure to join his complaints with that
of a similarly situated person, the Respondent argues that the other complaint
did not include an alleged breach of section 10 and did include an allegation
of race-based discrimination. Refusal of one complaint does not mean that the
Applicant’s complaint should be referred to a hearing nor that the two
complaints should be joined.
Facts
[19]
In
accordance with the discussion above, I have limited my summary of the facts to
those contained within complaint 20050026, and the events immediately
surrounding the making of the decision that is the subject of this application
for judicial review.
[20]
The
Applicant became an employee of the CCRA in 1995. In December 2003, the CCRA
was split into the CRA and the CBSA.
[21]
The
Applicant applied, performed the necessary testing, and was qualified into
pre-qualified pools (PQP) as a Customs Inspector in Victoria, British
Columbia in March 2001, March 2003 and March 2004. A PQP is a pool of persons
who have been found to be qualified for a specific type of employment. The
principle is that once a PQP is established, the hiring of persons into that
type of employment should be made from the existing PQP. These PQPs were used
to staff Border Services Officers after the separation of the CBSA from the CCRA.
[22]
In
spite of being in a valid PQP from 2001-2005, the Applicant was never hired
permanently by the CBSA. The Applicant alleges that this occurred because of
his age. He maintains that younger applicants, many who were not qualified,
were improperly hired before him. Further, he applied for the Vancouver PQP in
2003. Notwithstanding that he submitted his application for the same position for
which he had been pre-qualified in Victoria, he was found to be
unqualified for entry into the Vancouver PQP.
[23]
The
Applicant states that of 2000 candidates, only 23 were selected as qualified.
All of the selected candidates were under 31 years of age. The age of
candidates can be determined because they are required to declare the year that
they finished high school, and they must provide identity documents that
clearly state age.
[24]
In
August 2004, Mr. Ross Fairweather, a CBSA official reportedly responsible for Vancouver Airport
hiring, is alleged to have said “If you are under 35 and want a career in
Customs, come to Vancouver.” This statement was reportedly made at a
career discussion with the Victoria Customs team that the Applicant attended.
[25]
In
2004, the CBSA offered the Applicant a term position in Stewart, British
Columbia.
As a term position, it did not include moving expenses or have employment
security. The Applicant declined the term position for that reason.
Subsequently, the CBSA hired a younger and unqualified person out of the
Vancouver PQP into a permanent position in Stewart.
[26]
Between
September 2005 and March 2006, as a result of a “significant staffing shortage”
in Whitehorse, the CBSA
“bridged” student employees to permanent positions without a competition. The CBSA
stated that it had exhausted all other possible staffing strategies, including
“importing staff from other Districts.”
[27]
The
Applicant informed the CBSA that he would work in the Yukon. He was not
offered any of the many permanent positions that were created. Instead student
employees were “bridged” into permanent positions; see p. 63 of the Applicant’s
Supplementary Record.
[28]
The
CBSA also hired five permanent employees from the Victoria PQP in December
2004-January 2005. All individuals were younger and are alleged to have had
less experience than the Applicant.
[29]
As
a result, the Applicant filed complaint 20050026, with the CHRC, on January
19, 2005, alleging discrimination under the Act on the basis of age, a
prohibited ground of discrimination pursuant to subsection 3(1) which provides
as follows:
3. (1) For all purposes of this Act, the prohibited
grounds of discrimination are race, national or ethnic origin, colour,
religion, age, sex, sexual orientation, marital status, family status,
disability and conviction for which a pardon has been granted.
[30]
In
complaint 20050026 the Applicant alleged that the refusal to hire him was on
the basis of his age and was a violation of s. 7 of the Act:
7. It is a discriminatory practice, directly
or indirectly,
(a) to refuse to employ or
continue to employ any individual, or
(b) in the course of employment, to
differentiate adversely in relation to an employee, on a prohibited ground of
discrimination.
[31]
The
Applicant further alleged that the CBSA was engaged in a discriminatory
practice or policy contrary to s. 10 of the Act:
10. It is a discriminatory practice for an
employer, employee organization or employer organization
(a) to establish or pursue a
policy or practice, or
(b) to enter into an agreement
affecting recruitment, referral, hiring, promotion, training, apprenticeship,
transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an
individual or class of individuals of any employment opportunities on a
prohibited ground of discrimination.
[32]
In
addition to the human rights complaint, the Applicant had also brought an
application for judicial review of the hiring process in Vancouver in 2003. He
also brought a complaint before the Public Service Commission (the “PSC”). The
PSC commenced an investigation of the Applicant’s complaints. Because the Applicant
had initiated these alternative remedies, the Commission declined to conduct an
investigation until those remedial processes were completed.
[33]
As
well, the Applicant filed a complaint alleging discrimination on the grounds of
disability, due
to his mental illness. Complaint 20050135 was submitted against the CRA on
February 7, 2005. The history of this complaint, and the CHRC’s refusal to join
it with 20050026, is the subject of the application for judicial review in file
T-702-09.
[34]
The
PSC investigation found that the CBSA had in fact engaged in a course of
improper hiring that was contrary to the applicable legislation, regulations
and policy. A number of the younger newly hired Border Services Officers were
found to have been unqualified and, or improperly hired. However, it was
another year until the corrective measures that would be required by the PSC
were determined. In December 2007 the CHRC investigation of complaint 20050026
was resumed.
[35]
The
complaint was investigated by Mr. Robert Cantin (the “Investigator”). The
investigation consisted of interviewing the Applicant, as complainant, and four
employees, or former employees, of the CBSA, the respondent to the complaint.
Both parties made written submissions and answered subsequent questions, either
by telephone or in writing. The Investigator also reviewed the notes disclosed
to the Applicant through a request under the Privacy Act, R.S.C. 1985, c. P-21, details on
the qualifications and experience of the newly hired Border Services Officers cited
by the Applicant, and the PSC Investigation Case Reports.
[36]
The
Investigator concluded that the Applicant was not offered employment for
reasons that were not related to age. He further concluded that the evidence
tended to indicate that persons were selected because they were better
qualified, or hired from a different pool, than the Applicant. He also noted
that the Applicant did not accept a term position in Stewart, British
Columbia and that the permanent position was later filled from a
different pool.
[37]
Concerning
the allegation that the CBSA was pursuing a discriminatory policy, the
Investigator concluded that the evidence indicates that the CBSA’s hiring
policy does not appear to discriminate based on age. There is information
requested during the hiring process that would make it possible for the CBSA to
determine the age of candidates. However, there was no evidence to indicate
that the CBSA relied upon the information; rather there is contrary information
that the average age of all similar employees is older than 35.
[38]
Both
parties were given an opportunity to respond to the investigation report,
before the Commission rendered its decision. The Applicant provided a
substantial written rebuttal to the report.
[39]
Throughout
the process the Applicant drew the Commission’s, and the Investigator’s,
attention to the related complaint filed by Mr. Levan Turner (the “Turner
complaint”). Mr. Turner was a co-worker of the Applicant and filed a complaint
on the basis of age and race discrimination. The Turner complaint included
evidence as to the exact age of all persons hired in the geographical region,
into permanent Border Services Officer positions. The Applicant was a witness
who was interviewed, by the CHRC Investigator, in the Turner complaint as to
the age discrimination suffered. Mr. Turner’s complaint was referred to the
Tribunal.
[40]
On
May 1, 2009, the Commission wrote to the Applicant and informed him of its
decision relative to complaint 20050026. The Commission noted that it had
reviewed the report and the submissions of both parties. However, it had decided
to dismiss the complaint pursuant to para. 44(3)(b) of the Act.
[41]
Paragraph
44(3)(b) of the Act provides:
44. (3) On receipt of a report referred to in
subsection (1), the Commission
…
(b) shall dismiss the complaint to
which the report relates if it is satisfied
(i) that, having regard to all the
circumstances of the complaint, an inquiry into the complaint is not warranted,
or
(ii) that the complaint should be
dismissed on any ground mentioned in paragraphs 41(c) to (e).
[42]
As
a result of the dismissal of complaint 20050026, the Applicant filed this
application for judicial review.
Discussion and Disposition
[43]
In Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190, the Supreme Court of Canada said that decisions made by
statutory decision-makers are reviewable on either reasonableness or
correctness. Issues of procedural fairness are to be reviewed on the standard
of correctness. Where prior jurisprudence has established the applicable
standard of review, that standard shall be adopted.
[44]
According
to the decision in Balogun v. Her Majesty the Queen (Minister of National
Defence), 2009 FC 407, 345 F.T.R. 67, a decision of the Commission not to
refer a matter to a hearing before a tribunal is reviewable on the standard of
reasonableness.
[45]
In
respect of a decision of the Commission not to refer a matter to a full
hearing, the standard of reasonableness is to be applied more critically,
following the direction of the Federal Court of Appeal in Sketchley v.
Canada (Attorney General), [2006]
3 F.C.R. 392 (F.C.A.) in para. 80 as follows:
when the Commission
decides to dismiss a complaint, its conclusion is "in a real sense
determinative of rights" (Latif v. Canadian Human Rights Commission,
[1980] 1 F.C. 687 at para. 24 (F.C.A.) (Latif)). Any legal assumptions
made by the Commission in the course of a dismissal decision will be final with
respect to its impact on the parties. Therefore, to the extent that the
Commission decides to dismiss a complaint on the basis of its conclusion
concerning a fundamental question of law, its decision should be subject to a
less deferential standard of review.
[46]
I
will first address the submissions respecting breach of procedural fairness.
[47]
In
my opinion, these allegations are not substantiated, insofar as they relate to
the Commission’s decision not to consolidate the Applicant’s complaint relative
to alleged discrimination on the basis of a disability, that is a mental
illness, with complaint 2005-0026, nor with respect to the Commission’s
administrative step in opening a new complaint.
[48]
The
Commission is authorized to adopt appropriate administrative steps with respect
to its processes. In any event, the Applicant began judicial review proceedings
in connection with the alleged missteps by the Commission. He later
sought leave to proceed with the three applications for judicial review at the
same time. That motion was refused.
[49]
In
the result, the Applicant has suffered no prejudice nor breach of procedural
fairness since he still has the opportunity to challenge these aspects of the
Commission’s actions. He has the right to challenge any breaches of procedural
fairness resulting from the actions of the Commission or the Investigator.
[50]
I
will address the allegation that the investigation was insufficient and that
the Applicant’s claim should have been joined with the Turner complaint.
[51]
An
investigation under the Act is an initial screening to determine if there is
sufficient evidence to warrant convening a tribunal. It is not a final
determination on the merits of the claim. The Commission should dismiss a
complaint where there is insufficient evidence; see Canadian Broadcasting
Corp. v. Paul, [1999] 2 F.C. 3 at para.
62, overturned in part on other grounds ((2001), 198 D.L.R. (4th) 633 (F.C.A.)).
However, contrary to the submissions of the Respondent, procedural fairness
requires more than the simple provision to the Applicant of a copy of the
report and allowing him an opportunity to respond. The CHRC must have an
adequate and fair basis upon which to evaluate the sufficiency of evidence; see
Slattery v. Canada (Canadian Human Rights
Commission), [1994] 2 F.C. 574 at para. 48.
[52]
As
the Respondent argued, an investigation under the Act will be
recognized as fair and adequate when it meets two conditions: neutrality and
thoroughness. The test for the legally required degree of thoroughness was
established by Justice Nadon, in Slattery, at paras. 55-57:
55 In determining the
degree of thoroughness of investigation required to be in accordance with the
rules of procedural fairness, one must be mindful of the interests that are
being balanced: the complainant's and respondent's interests in procedural
fairness and the CHRC's interests in maintaining a workable and
administratively effective system. Indeed, the following words from Mr. Justice
Tarnopolsky's treatise Discrimination and the Law (Don Mills: De Boo, 1985), at
page 131 seem to be equally applicable with regard to the determination of the
requisite thoroughness of investigation:
With the crushing case loads facing
Commissions, and with the increasing complexity of the legal and factual issues
involved in many of the complaints, it would be an administrative nightmare to
hold a full oral hearing before dismissing any complaint which the
investigation has indicated is unfounded. On the other hand, Commission should
not be assessing credibility in making these decisions, and they must be
conscious of the simple fact that the dismissal of most complaints cuts off all
avenues of legal redress for the harm which the person alleges.
56 Deference must be given to
administrative decision-makers to assess the probative value of evidence and to
decide to further investigate or not to further investigate accordingly. It
should only be where unreasonable omissions are made, for example where an
investigator failed to investigate obviously crucial evidence, that
judicial review is warranted. Such an approach is consistent with the deference
allotted to fact-finding activities of the Canadian Human Rights Tribunal by
the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1
S.C.R. 554.
57 In contexts where parties have the
legal right to make submissions in response to an investigator's report, such
as in the case at bar, parties may be able to compensate for more minor
omissions by bringing such omissions to the attention of the decision-maker.
Therefore, it should be only where complainants are unable to rectify such
omissions that judicial review would be warranted. Although this is by no means
an exhaustive list, it would seem to me that circumstances where further
submissions cannot compensate for an investigator's omissions would include:
(1) where the omission is of such a fundamental nature that merely drawing the
decision-maker's attention to the omission cannot compensate for it; or (2)
where fundamental evidence is inaccessible to the decision-maker by virtue of
the protected nature of the information or where the decision-maker explicitly
disregards it.
(underlining added)
[53]
It is accepted that the onus lies on a claimant to
demonstrate a prima facie case of discrimination; see Sketchley at
para. 86. The Supreme Court of Canada in Ontario
(Human Rights Commission) v. Simpson Sears Ltd.,
[1985] 2 S.C.R. 536, at para. 28, said that this means that the claimant
must present a case which,
covers the
allegations made and which, if they are believed, is complete and sufficient to
justify a verdict in complainant's favour in the absence of an answer from the
respondent-employer.
[54]
However, in my opinion, this onus does not
reduce the obligation on the Investigator, in accordance with procedural
fairness, to conduct a neutral and thorough investigation.
The role of the investigator was described by Madam Justice Tremblay-Lamer, of
the Federal Court, in Paul at para. 63:
In essence, the
investigator must collect the information which will provide an adequate and
fair basis for a particular case, and which will in turn allow the Commission
to balance all the interests at stake and decide on the next step. No relevant
fact should be left out. Omissions, particularly when the information is
damaging to the complainant's position, only result in casting serious doubts
on the neutrality of the investigator. I realize that this is a difficult task,
but it is only in achieving this high standard of fairness that the
investigator will help the Commission retain its credibility.
This holding was not
disturbed by the Federal Court of Appeal.
[55]
As
noted by the Federal Court of Appeal in Sketchley, at
para. 77, an investigator is essentially conducting a
fact-finding mission. There is “no obligation placed
upon the investigator to interview each and every person suggested by the
parties"; see Miller v. Canada
(Canadian Human Rights Commission) (1996), 112 F.T.R. 195,
at para 10. Likewise, no reviewable error arises where an “investigation report
dealt with all of the fundamental issues raised in the applicant's complaint
and therefore sufficient thoroughness exists”; see Bateman v. Canada (Attorney
General),
2008 FC 393, at para. 29.
[56]
If
the Investigator’s report is adopted by the Commission, it is considered the
reasons for that decision. This was discussed by Justice Russell in Balogun
at para. 50:
50 The
Investigator's report constitutes the Commission's reasons. Therefore, if the
report is flawed, the Commission's decision is equally flawed because the
Commission was not in possession of other relevant information upon which it
could properly exercise its discretion: Forster v. Canada
(Attorney General), 2006 FC 787 at paragraph 37 and Canada
(Attorney General) v. Grover, [2004] F.C.J. No. 865 (F.C.) at paragraph
25 (Grover).
[57]
In
my opinion, a review of the Investigator’s report raises concerns that it was
neither neutral nor thorough. I will first address neutrality.
[58]
First,
I perceive a problem in the way that the Investigator conducted his
investigation. The Applicant alleged both specific discrimination against him,
under s. 7 of the Act, and a general policy of discrimination, under s. 10 of
the Act. In conducting the investigation, the Investigator interviewed the
complainant and four employees, or former employees, of the CBSA. This suggests
to me an imbalanced investigation that favours the CBSA.
[59]
In
my view, this process was flawed as it did not adequately seek the perspective
of other similarly situated persons, for example, Mr. Turner, whose complaint
the Investigator knew was related and was also before the Commission. I question
whether a neutral investigation of alleged systemic discrimination can be
conducted by primarily interviewing the alleged discriminator, that is the
employer.
[60]
Further,
I note that the investigation report also appears to be less than neutral as it
fails to reference highly relevant issues that are harmful to the CBSA’s
response. I refer to the findings of the PSC that determined that the CBSA had
been hiring unqualified students through an improper process. When considered
with the Investigator’s conclusion that persons were selected over the Applicant
because they were better qualified, this omission is highly prejudicial and indicates
a lack of neutrality.
[61]
The
Investigator also accepted, at face value, the irrelevant statistics provided
to him by the CBSA with respect to the average age of PM-03 personnel, rather
then reviewing the data as to the age of newly hired Border Service Officers.
The average age of the group of existing employees does not address alleged
discrimination in hiring. This suggests to me that the Investigator was willing
to rely on the CBSA’s position to justify a recommendation to dismiss the
complaint.
[62]
Likewise
the Investigator’s acceptance of the CBSA explanation of the hiring process for
the Stewart position, raises questions about the neutrality of the
investigation. The Applicant was offered a term position from the
Victoria PQP to fill the Stewart position. However, the position was then
offered as a permanent position to a candidate in the Vancouver PQP.
This result is inconsistent with the inability to hire from different
geographic pools, a justification which was simply repeated by the Investigator
without further investigation or analysis.
[63]
Similarly,
the reliance on the CBSA position that it was hiring better “qualified”
individuals over the Applicant is not supported by the evidence and further
indicates that the report was not neutral.
[64]
In
my opinion, the investigation does not meet the standard of thoroughness
because it did not address several critical aspects of the complaint.
[65]
First,
the Investigator did not adequately address the findings of the PSC
investigation. That investigation concluded that the hiring practices were
improper and unqualified personnel had been hired. Further, the Investigator
did not consider the Applicant’s status as a member of a PQP in the context of
the CBSA hiring practices and the PSC findings.
[66]
Second,
I accept the Applicant’s submissions that the report is flawed because it does
not reveal any investigation of student hiring practices or student bridging
programs. The Applicant raised these two issues with the Investigator.
[67]
I
agree with the Respondent that the Investigator does not “prosecute” the
complaint, after the Applicant had made a bald allegation. However, there was
documentary evidence, provided by the Applicant, which explained the
justification for using student bridging. That evidence was inconsistent with
the CBSA’s failure to hire the Applicant. The Investigator should have inquired
into the hiring of students into permanent positions. This was a critical issue
within the Applicant’s allegation of systematic discrimination in favour of
younger applicants. The report failed to deal with all fundamental issues in
the matter and was not sufficiently thorough.
[68]
The
Applicant has also submitted that the Investigator should have considered the
evidence in the related Turner case. I accept the Applicant’s position for the
following reasons.
[69]
This
evidence was in the possession of CHRC and the Investigator was aware of its
existence. It included a breakdown by age of all newly hired Border Services
Officers. It revealed a disproportionate number of newly hired under 35 year
old personnel. It rebuts the CBSA position, as accepted by the Investigator, as
to average ages and availability of such statistics. This evidence was
particularly relevant to the Applicant’s claim regarding age discrimination in
hiring. The failure by the Investigator to consider this evidence amounts to a
failure “to investigate obviously critical evidence.”
[70]
In
my opinion, this report is not neutral and thorough, as required by the duty of
fairness. As it constitutes the reasons for the Commission’s decision to
dismiss the Applicant’s complaint, I conclude that the decision should be
quashed as it did not have a “fair and adequate” basis.
[71]
With
respect to the Respondent’s argument that the Applicant has failed to make a prima
facie case, I note that the Investigator reported that the CBSA had access
to information through which age could be obtained. There were statements
reportedly made by senior CBSA personnel that they indicated that preferential
hiring was given to persons under 35 years of age. There was evidence that a
disproportionate number of persons under 35 years of age were hired in British
Columbia,
actually 100% for the position, time and geographic area in question.
[72]
Finally,
these younger persons were hired without regard for legislation, regulations
and policies. In my opinion that is a prima facie case and the
consideration of the Applicant’s burden of proof should not be determinative in
this matter.
[73]
Notwithstanding
my comments above regarding the failure to acknowledge the age evidence from
the related Turner proceeding, I am satisfied that no reviewable error arose
because the two matters were not joined. The Commission is the master of its
own process.
[74]
For
these reasons, an Order issued allowing the Applicant’s application for
judicial review.
Costs
[75]
The
Applicant seeks recovery of costs. He has succeeded in this application and an
award of costs is appropriate, in respect of reasonable disbursements and
costs, pursuant to the discretion set out in Rule 400(1). If the parties are
unable to agree on costs, including costs pursuant to the Order of Prothonotary
Lafrenière made on September 14, 2009, brief submissions not exceeding three
pages, can be made in accordance with the following schedule:
i.
the
Applicant’s submissions to be served and filed by October 7, 2010;
ii.
the
Respondent’s submissions to be served and filed by October 14, 2010;
iii.
any
reply submissions from the Applicant to be served and filed by October 20,
2010.
[76]
A
final order will then issue disposing of all matters in this application.
“E.
Heneghan”
St.
John’s,
Newfoundland and Labrador
September
27, 2010
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