Date: 20110620
Docket: T-749-10
Citation: 2011 FC 727
Ottawa, Ontario, June 20,
2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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RAMANAN THAMBIAH
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Applicant
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and
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MARITIME EMPLOYERS ASSOCIATION
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Respondent
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SYNDICAT DES DÉBARDEURS DU
PORT DE MONTRÉAL
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Intervenor
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act, RSC 1985, c F-7, of a decision of the Canadian Human Rights
Tribunal (the Tribunal), dated April 15, 2010, whereby the
Tribunal dismissed the applicant’s complaint that the respondent had
discriminated against him.
I. Background
of claim
[2]
At
the time of the alleged events, the applicant was working as a longshoreman in
the Port
of Montreal. In October
2005, he became eligible for a first reserve position, which could lead to job
security and better benefits. In order to be appointed as a member of the first
reserve, the applicant was required to pass a test to become qualified as a
“truck operator”. He made two attempts to pass the test, but failed on both
occasions. The Maritime Employers Association (the respondent) determined that
he had failed on the first occasion (January 25, 2006) because he hit a
container while driving the truck and on the second occasion (January 26, 2006)
because he was unable to perform requested manoeuvres.
[3]
Before
the Tribunal and before the Court, the applicant contended that during his
first attempt, the evaluator had distracted him and had sabotaged his performance.
On his second attempt, he argued that the sunlight had reflected in the truck’s
mirrors in such a way as to prevent him from performing certain manoeuvres. In
addition, he stated that the trailer’s brakes were faulty and that the
evaluator unfairly refused to allow him a third attempt to pass the test.
[4]
The
applicant filed a complaint with the Canadian Human Rights Commission
(the Commission) alleging that he had been a victim of discrimination
based on his “ethnicity”, his “age” and his “family status”. At the hearing
before the Tribunal, the applicant dropped his claim with respect to the first
two grounds of discrimination, i.e. “ethnicity” and “age”. The applicant
continued with the allegation that he had been discriminated against on the basis
of his “family status”. The applicant alleged nepotism. The argument was that
the respondent had rejected the applicant’s candidacy in favour of candidates
who had family ties to managers and employees of the respondent. The applicant
essentially asserted that, given his lack of family ties to a member of the
respondent, he was made to fail the first two driving tests and was not given a
third opportunity to pass the test; therefore, he received differential and
discriminatory treatment.
[5]
Prior
to filing a complaint with the Commission, the applicant had filed a complaint
against his union with the Canada Industrial Relations Board. The grounds for
his complaint were that his union had failed to provide him with adequate
representation by refusing to file a grievance to challenge the treatment that
the respondent had imposed on him during the promotion process. This complaint
was rejected for having been filed outside the time limit and for lack of merit
(File number: 2076-C).
II. The Tribunal’s decision
[6]
The
tribunal rejected the applicant’s complaint and concluded that he had not been the
victim of discrimination on the basis of his family status. The Tribunal’s
decision was based on several findings.
[7]
First,
the Tribunal found that the applicant’s credibility was “very low”. This
finding was based on several contradictions in the applicant’s testimony. The
Tribunal discussed its assessment of the applicant’s credibility in the
following manner:
[48] He gave the impression of
someone overwhelmed by the consequences of his failure, who was trying
desperately to understand what could possibly have happened to him. During the
hearing, he gave voice to his thoughts and advanced a number of hypotheses.
[49] In his view, discrimination and
sabotage by the trainer and the evaluator partly explained his two failed
tests. Several outside factors also explained the failed tests. His testimony
therefore went in all directions. His hypotheses were sometimes hard to imagine
and even harder to verify.
[50] Lastly, the Complainant
advanced few substantive facts to support his position and mainly hid behind
conjecture or hearsay.
[51] By his testimony, the
Complainant clearly showed that he had difficulty distinguishing between the
facts of his case and hypotheses that might explain those facts.
[52] In the final analysis, it is
difficult to give much weight to the Complainant’s version when compared with
that of a witness testifying about facts of which he or she has personal
knowledge.
[53] In short, in our opinion, the
Complainant’s credibility is very low.
[8]
Second,
the Tribunal’s assessment of the evidence, including a video, led it to make
the following findings:
a. The
complainant did hit a container during his first attempt to pass the test,
which is an automatic failure;
b. The condition
of the truck’s breaks cannot explain the applicant’s failure to pass the second
time and nothing in the evidence establishes that the respondent’s
representatives committed any deliberate act to cause his failure;
c. The two-test
maximum rule was in force prior to the applicant’s attempts to pass the test
and it was applied regardless of the candidates’ age, ethnicity and family ties
to members of the respondent;
d. The two-test
maximum rule was applied without discrimination against the applicant;
e. There is no
evidence of nepotism or favouritism in hiring practices. The explanations
regarding the special circumstances which led the respondent to offer a third
attempt to certain candidates were satisfactory and do not show any nepotism or
favouritism;
f.
The
Tribunal insisted that it “found no instance of a longshore worker obtaining
the truck operator classification because of family ties to members, managers
or shareholders of the MAE [the respondent]”.
III. Issues
[9]
The
applicant makes several allegations with regard to the Tribunal’s decision that
essentially raise the question of whether the Tribunal erred in its assessment
of the evidence, and more particularly, in its assessment of the applicant’s
credibility and of the video.
IV. Standard of review
[10]
All
the issues raised by the applicant relate to the Tribunal’s assessment of the
evidence and its appreciation of the applicant’s credibility. It is well
established that the Court owes deference to the administrative tribunal’s
assessment of the evidence and credibility and that the applicable standard of
review with regard to these findings is reasonableness (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339). The Court’s
role when reviewing a decision against the reasonableness standard was
described in the following manner in Dunsmuir, at para 47:
47 Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
V. Analysis
[11]
The
applicant contends that the Tribunal committed a number of errors in its
assessment of the evidence:
a. The applicant’s
credibility was corrupted by the Canada Industrial Relations Board’s decision
which, in turn, was based on “lies” from the Union;
b. The Tribunal
erred in its assessment of the evidence regarding the events that led to his
failure on his two attempts to pass the test;
c. The Tribunal
erred in its assessment of the evidence when it concluded that there was no
preferential treatment offered to another candidate during the evaluation;
d. The Tribunal
did not completely view the video nor did it understand it;
e. The Tribunal
erred in its assessment of the evidence regarding the two-test maximum rule and
its application to the complainant.
[12]
After
a thorough review of the file, of the video and of the Tribunal’s decision, I
am of the view that this application has no merit.
[13]
The
complainant’s contentions show that he strongly disagrees with the Tribunal’s
assessment of the evidence. This is not sufficient to warrant the Court’s
intervention. It is not for the Court to substitute its own assessment of the
evidence for that of the administrative tribunal or to reweigh the evidence. The
Court will only intervene where the tribunal’s conclusions are based on
erroneous findings of fact made in a perverse or capricious manner or without
regard to the evidence. Nothing leads me to conclude that the Tribunal assessed
the evidence in a perverse or capricious manner and its findings are supported
by the evidence and are reasonable. Furthermore, its reasoning is clear, the
conclusions are well explained and they fall within “the range of possible
outcomes which are defensible in respect of facts and the law” (Dunsmuir,
above, at paragraph 47). I see no reason for the Court to intervene. This
application is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that this
application for judicial review is dismissed with costs.
“Marie-Josée
Bédard”
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