Docket: T-100-11
Citation:
2011 FC 1171
Ottawa, Ontario, October 17,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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CAM LINH TRAN
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Applicant
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and
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ATTORNEY GENERAL
OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
In
December 2003, Ms. Tran complained to the Canadian Human Rights Commission that
the Canadian Customs and Revenue Agency (CCRA) (later divided into the Canada
Revenue Agency and the Canada Border Services Agency) did not hire her despite
her superior qualifications. Her complaint was that she was not hired because
of her race, colour, national or ethnic origin (Chinese Canadian born in Vietnam) and/or her
family status as her brother-in-law, Chris Hughes, was a CCRA employee who was allegedly
a thorn in its side. If so, she was adversely discriminated against within the
meaning of the Canadian Human Rights Act.
[2]
Her
complaint related to three competitions; two for positions at the Vancouver
Island Tax Services Office and the other with Customs. The complaint was broken
down into six specific allegations. The investigator who was appointed issued a
report in 2005. He recommended that the Commission dismiss the complaint. It
did so. Ms. Tran did not apply to this Court for a judicial review of that
decision.
[3]
In
January 2010, she wrote to the Commission with the request that her complaint
be reopened. In her letter she said there had been no reason to seek a judicial
review as the report indicated that her marks were not high enough compared to
other candidates and it had been found that there had been no under
representation of visible minorities in Victoria which might have brought
“employment equity” into issue as a placement criteria.
[4]
However,
Ms. Tran also indicated that in her research into another complaint against
Canada Revenue Agency, she obtained information via the Privacy Act and
concluded that the Commission’s investigation report was incorrect based on
evidence provided by the CCRA. She said that some of the information had been “fabricated/falsified”.
[5]
In
December 2010, the Commission refused to reopen the matter. It acknowledged it had
the power to reconsider its decisions, a power that is to be used sparingly in
exceptional and rare circumstances (Merham v Royal Bank of Canada, 2009 FC
1127, 358 FTR 101, [2009] FCJ No 1410 (QL)). It was of the view that the
circumstances did not justify a reopening.
[6]
The
Commission noted that while there is no time limit on an application to reopen,
nevertheless that is a factor to take into account. The initial allegations
went back approximately ten years, and the Commission’s decision to dismiss the
complaint had been in place for some four years.
[7]
As
to “fabricated/falsified” evidence, Mr. Hughes, who later submitted material on
Ms. Tran’s behalf, alleged that a document was “accidentally or deliberately
switched”. This suggested to the Commission that even he had some doubt as to
whether there had been a deliberate attempt to falsify documents.
[8]
In
any event, the Commission was not persuaded that the outcome would have been
different in that she had qualified and had ultimately been offered employment.
[9]
It
is this refusal of the Commission to reconsider its earlier decision which is
the subject of this judicial review.
THE FEDERAL COURT HEARING
[10]
On
30 August, the hearing was set down to take place in Victoria on 6
October. A few days prior thereto, Ms. Tran wrote to the Court to say, among
other things, she had a newborn baby and would not be able to attend the
hearing, which she nevertheless asked to proceed. She would rely on her written
submissions.
[11]
Not
wishing to deprive Ms. Tran of the opportunity to make oral representations, if
she wanted , I invoked rule 32 of the Federal Courts Rules, which allows
for remote conferencing and directed that the hearing take place by
teleconference, with counsel for the respondent remaining in her office. The
direction specifically stated “Ms. Tran may, if she wishes, participate by
telephone.”
[12]
On
5 October, she again wrote to the Court to say that she would not attend the teleconference.
The parties also exchanged written representations with respect to costs.
[13]
The
hearing proceeded by teleconference as directed. Ms. Tran’s brother-in-law, Mr. Hughes,
was present, but simply as a member of the public.
THE DECISION
[14]
I
have decided to dismiss this application for judicial review.
[15]
The
circumstances are far from compelling. If an error had been made in switching
criteria, there is no evidence whatsoever to support Ms. Tran’s suspicions that
this switch was based on a prohibited ground of discrimination.
[16]
Although
there were a number of criteria which had to be satisfied to get into the pool
in the first place, actual job offers were based on two criteria: “ability to
research and apply information” and “effective interpersonal skills”. The most
qualified candidates were identified in order of their total scores. Some who
were offered jobs, declined.
[17]
According
to the investigator’s report, the first criteria, “ability to research,
interpret and apply information”, was based on 10. Sixteen candidates scored 10
out of 10. Ms. Tran scored 8. On the second criteria, “effective interpersonal
skills”, the marks were based on 30. The scores ranged from 20 to 29. Ms. Tran
had 23.
[18]
As
reported by the investigator, Ms. Tran provided a rating document she obtained
by an Access to Information Request. This showed she had 86 out of 100 for
“effective interpersonal skills”.
[19]
Right
there, she should have spotted a problem and taken it up when the
investigator’s report was circulated, and before the Commission made its
decision. Not only is 86 out of 100 better than 23 out of 30, but if the total
score was to be based on 110 (10 plus 100), rather than 40 (10 plus 30), her
overall mark would obviously have been better.
[20]
The
document she obtained via Access to Information in January 2010 is a
spreadsheet entitled “Report on Selection Board Findings”. There are ten
columns of access criteria. Handwritten abbreviations were added to all ten.
What appear to be at issue are columns 2, 6 and 8. It is common ground that
column 2 was “ability to research, interpret and apply information”, and was
based on 10. Column 8 bears the notation “EIS”, i.e. “effective
interpersonal skills”. It shows a range of scores from 20 to 29. Ms. Tran’s was
23.
[21]
However,
column 6, bearing the handwritten notation “initiative” shows scores running
from 42 to 99. Ms. Tran had 86. This report is dated 25 January 2001, while the
rating document which showed Ms. Tran to have 86 out of a 100 for “effective
interpersonal skills” is dated 11 December 2000. Ten years later, who is to say
which document is correct, Ms. Tran works the numbers, somewhat speculatively,
to show that her ranking would have improved. Even if that is so, it cannot be
said that she was discriminated against on a prohibited ground, as the other
candidates would also have been affected, some adversely and others perhaps to
their benefit.
[22]
Ms.
Tran was also unable to accept some job offers from the CCRA because she was then
attending school full-time in Vancouver.
[23]
Originally
Ms. Tran sought to have all her allegations reopened. However, in her letter of
1 October she withdrew her arguments of lack of fair treatment due to
being related to Mr. Hughes and the employment equity issue.
[24]
In
my opinion, it would be highly prejudicial to the CCRA, which no longer exists
as such, to revisit events which occurred ten years ago. The corporate memory
may well have been lost and witnesses may have retired or died. It would be a
hopeless task to establish that an error was made in titling the columns, and
that the error prejudiced Ms. Tran, much less prejudiced her on a prohibited
ground of discrimination.
COSTS
[25]
The
Court has considerable discretion when it comes to the award of costs. Ms. Tran
submitted that if her application were to be dismissed, no costs should be
awarded, or failing that, $250 lump sum as, to use her words, “the application
was very simple and not time consuming”. In my view the case was certainly time
consuming. The Attorney General submitted a draft bill of costs for fees $1,950
plus GST and disbursements of $632.28. Of the fees, $390 relate to a contested
motion, but one in which the Commission Counsel himself took the lead.
Disbursements include copying fees of $371.26, but no information was given as
to how that figure was calculated.
[26]
All
and all, I consider lump sum costs of $1,500, including GST, to be appropriate.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that
1.
This
application for judicial review is dismissed with lump sum costs in favour of
the respondent fixed at $1,500, all inclusive.
“Sean Harrington”
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