Docket: T-569-11
Citation: 2011 FC 1398
Ottawa, Ontario, December 1, 2011
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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TRACEY PATTERSON
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Applicant
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and
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CANADA REVENUE
AGENCY
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Applicant, Ms. Tracey Patterson, has been employed by
the Respondent, Canada Revenue Agency (CRA or the Agency) since 1989. On
November 12, 2010, she applied for two different positions within CRA. Each of
the positions required that the Applicant demonstrate experience of not less
than 24 months within the past five years. In each case, the Applicant was
screened out of the competition because she failed to meet the minimum
experience requirement for the job. In assessing her experience, the CRA
accommodated her two maternity leaves as “experience” but excluded her more
than three years of Leave without Pay for Family-Related Needs (Family Leave).
In this application for judicial review, the Applicant seeks to overturn the
two screening decisions.
[2]
The Applicant filed two applications for judicial review
(Court File No. T-569-11 and T‑570-11). By Order dated April 11, 2011,
the two applications were consolidated.
II. Issue
[3]
The key issue that arises on this judicial review is the
following:
Did the CRA err in failing to treat the Applicant’s Family Leave in the
same manner as her maternity leave, i.e. as a leave protected under the Canadian
Human Rights Act, RSC, 1985, c H-6 [CHRA or Act]. In
different words, did the CRA’s requirement of “recent and significant
experience” deprive the Applicant of an employment opportunity on the basis of
her family status or her sex?
[4]
For the reasons that follow, I have determined that this
application for judicial review should succeed.
III. Background
[5]
As noted above, the Applicant was unsuccessful in two
different job competitions; these competitions were referred to as Selection
Process 2010-9708-ONT-1263-3154 (MG-05 position) and 2010-9651-ONT-1263-3137
(SP-08 position). Although the job functions were different for each position,
both competitions required “recent and significant experience” defined as:
[T]he depth and
breadth of experience that would normally be associated with performance of
these functions as a major job function for a period of time not less than 24
months within the past 5 years.
[6]
The Applicant, pursuant to the Collective Agreement, had
taken maternity leave from May 4, 2005 to May 3, 2006 and then Family Leave
from May 2006 to October 2009. These absences meant that, in the five years
leading up to the competitions (November 2005 to November 2010), she did not
meet the 24-month experience requirement.
[7]
In e-mails dated November 25, 2010, for the MG-05 position,
and December 22, 2010, the Applicant was informed that she would not be
considered further in the selection process for each position on the basis that
she did not meet the experience requirement. In other words, the Applicant was
screened out of both competitions before any other qualifications were
assessed.
[8]
The CRA, as a separate employer within the public service,
has established a number of unique policies and directives. One of those – the
“Directive on Recourse for Assessment and Staffing – January 31, 2008”
(Staffing Directive) – establishes that the only recourse available to CRA
employees whose applications are rejected at the screening, or Pre‑requisite
Stage, is to request Individual Feedback.
[9]
Individual Feedback involves a discussion between the
candidate/employee and the person authorized to conduct the selection process.
Individual Feedback allows a candidate/employee to raise concerns regarding her
assessment or treatment in the internal selection process, and should provide
the candidate with information useful to her career development (Staffing
Directive, at 2).
[10]
The sole ground for recourse during Individual Feedback is
“whether the employee … was treated in an arbitrary way”. “Arbitrary” is
defined as:
In an unreasonable
manner, done capriciously; not done or acting according to reason or judgment;
not based on rationale or established policy; not the result of a reasoning
applied to relevant considerations; discriminatory, i.e., as listed as the
prohibited grounds of discrimination in the Canadian Human Rights Act.
[11]
In this case, the Applicant sought an Individual Feedback session
with respect to each of the positions for which she was screened out. In two
separate decisions, the screening decision was maintained. The details of the
process leading to the Feedback Session and the results are set out below for
each competition.
A. MG-05
[12]
In respect of the MG-05 position, the Applicant was asked
to provide more information on her leave periods. After receiving this
information, on November 18, 2010, a member of the Selection Board for the
MG-05 competition contacted CRA’s Resourcing Centre of Expertise for the
Ontario Region (CoE) to seek the following advice:
My understanding is
that since [the Applicant] had approved leave, I should ignore 4 years from May
4, 2005 to October 13, 2009 [the Family Leave] as well as June 16, 2003 to
October 12, 2004 [Maternity and sick leave] and extend her experience back to
2002 to compensate for this leave. Is this correct?
[13]
The e-mail response from the CoE was as follows:
Since maternity leave
is protected under the Canadian Human Rights Act, it cannot be treated the same
way as other leave when considering whether a candidate meets the experience
requirement. Managers/Boards have to disregard the period of maternity leave
and consider an alternate method to determine if the candidate meets the
experience. However, this does not apply to Care and Nurturing leave. So I
would consider this candidate’s 24 months of cumulative experience from 2003
onwards.
[14]
On November 25, 2010, the Applicant was advised that she
did not meet the experience prerequisites and that her application would not be
considered further.
[15]
The Applicant made a request for Individual Feedback on
December 1, 2010. On December 3, 2010, an Individual Feedback session was held
with the Applicant. In the Individual Feedback Summary, dated December 3, 2010,
the following statements were made:
Kandy explained
to Tracey that she had been screened out of the process because she did not
meet the experience criteria of this process. She further explained that the
Board had extended the 5 year period, in which she had to demonstrate the
prerequisite experience, for an additional year to account for the one year of
maternity leave taken by Tracey in 2003/2004 to 6 years.
Tracey asked about her
Care and [Nurturing] leave and Kandy said that HR had advised us that the Board could only make
accommodation for maternity leave in keeping with CRA practices regarding
maternity leave.
[16]
In reviewing the notes from the Individual Feedback session
together with the e-mail from the CoE, it is clear that the decision was made
to exclude the Applicant from the competition because she did not meet the
experience requirement. The reasons for this conclusion, as stated in the
e-mail from the CoE is that, while the CRA accommodated the period of her
maternity leave, no accommodation was made or credit given for her Family Leave
on the basis that Family Leave is not protected under the CHRA. The
completion of the Individual Feedback Summary made the decision to screen the
Applicant out of the process final and triggered the Applicant’s right to bring
this judicial review.
B. SP-08
[17]
The process for the SP-08 position was very similar.
However, in this case, the Applicant actually was allowed to sit the exam – which
she passed – apparently before the “problem” with her experience was
discovered. On November 18, 2010, a member of the Selection Board for the SP‑08
competition contacted the CoE to seek the following advice:
The candidate returned
to work in 2009 after taking extended leave (maternity and parental) and as a
result has less than 24 months experience within the last five years.
What should we do in
this scenario?
[18]
The e-mail response from the CoE was as follows:
Since maternity leave
is protected under the Canadian Human Rights Act, it cannot be treated the same
way as other leave when considering whether a candidate meets the experience
requirement. Managers/Boards have to disregard the period of maternity leave
and consider an alternate method to determine if the candidate meets the
experience. In this case, you can consider 24 months of experience within the
past 6 years.
[19]
In an e-mail dated December 22, 2010, the Applicant was
advised that she did not meet the experience prerequisites and that her application
would not be considered further.
[20]
The Applicant made a request for Individual Feedback on
December 22, 2010. On January 19, 2011, an Individual Feedback session was held
with the Applicant. In the Individual Feedback Summary, dated January 19, 2011,
the following statements were made:
She wanted to know why
she was allowed to write the exam even though she did not qualify[.]
We explained to her
that we were working with very tight deadlines. We gave her the benefit to
write the exam, while we verif[ied] her experience.
[21]
In reviewing the notes from the Individual Feedback session
together with the e-mail from the CoE, it is clear that the decision was made
to exclude the Applicant from the competition because she did not meet the
experience requirement. The reasons for this conclusion, as stated in the
e-mail from the CoE is that, while the CRA accommodated the period of her
maternity leave, no accommodation was made or credit given for her Family Leave
on the basis that Family Leave is not protected under the CHRA. The
completion of the Individual Feedback Summary made the decision to screen the
Applicant out of the process final and triggered her right to bring this
judicial review.
IV. Statutory Scheme
[22]
The question before me involves the application of certain
provisions of the CHRA. The full text of the relevant provisions is
included in the Appendix to these reasons.
[23]
Simply stated, s. 7(b) of the Act makes
it a discriminatory practice to differentiate adversely between individuals in
employment on the basis of a prohibited ground of discrimination. Section 10(a)
of the Act makes it a discriminatory practice to establish or pursue
policies or practices that deprive or tend to deprive an individual or class of
individuals of employment opportunities on the basis of a prohibited ground.
[24]
Section 3 of the CHRA establishes the prohibited grounds of
discrimination as 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.
[25]
Pursuant to s. 15, a bona fide occupational
requirement may be considered not to be discriminatory if it is established that “accommodation of the needs of an individual . . .
affected would impose undue hardship on the person who would have to
accommodate those needs, considering health, safety and cost”.
V. Standard of
Review
[26]
The parties disagree on the standard of review to be
applied to this judicial review. The Applicant asserts that the standard of
review is correctness, while the Respondent submits that the decision should be
reviewed on a standard of reasonableness.
[27]
The CRA’s submissions on the standard of review are
premised on its view that the issue before the staffing officers was merely
whether or not the Applicant met the prerequisites for the two CRA positions.
This is a question of fact, in the CRA’s view, that should be reviewed on a
standard of reasonableness, as it was in Anderson
v Canada (Customs and Revenue Agency),
2003 FCT 667, 234 FTR 227, aff’d 2004 FCA 126, 129 ACWS (3d) 1140 [Anderson],
and in Tran v Canada (Revenue Agency),
2011 FC 1010, [2011] FCJ No 1236 [Tran].
[28]
The problem with the CRA’s position is that it
mischaracterizes the issue before the Court in this judicial review. In both Anderson and Tran, the Court was dealing with
questions of fact – specifically, whether the applicants’ alleged experience
fulfilled the requirements set out in the job competitions. The disputes
centred on the qualitative assessment of the prior experience. That is not the
issue before me.
[29]
In this case, the Applicant’s rights depend on the
resolution of a question of law, namely whether Family Leave is protected under
the Act in the same way as maternity leave. In my view, this is a pure
question of law which requires the interpretation of provisions of the Act.
As has recently been stated by the Supreme Court of Canada in Canada
(Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53
at para 22, [2011] SCJ No 53:
[G]eneral questions of
law that are both of central importance to the legal system as a whole and
outside the adjudicator’s specialized area of expertise, must still be reviewed
on a standard of correctness, in order to safeguard a basic consistency in the
fundamental legal order of our country.
[30]
Interpretation of provisions of the CHRA that affect
all of the Canadian work force is surely of central importance to the legal
system. Moreover, a human resources specialist in the CRA is not acting within
his or her specialized area of expertise when she interprets and applies the Act.
[31]
I will apply a correctness standard of review.
VI. Family Status
[32]
The first ground upon which the Applicant claims
discrimination is that of “family status”. The question is whether the
Applicant has shown that she suffered discrimination on the basis of her family
status.
[33]
As noted above, the Applicant had taken three years and
four months of Family Leave to care for her pre-school child. Under the
relevant terms of the collective agreement, an employee “may be granted” up to
five years of leave without pay for “the personal long-term care of the
employee’s family”. This type of leave was, at one time, referred to as “Care
and Nurturing leave”. In some of the documents included in the materials before
me, that term is still used. As far as I can tell, there is no difference
between the two types of leave insofar as this application for judicial review
is concerned.
[34]
While “family status” is not defined in the Act, I
am of the view that the circumstances of a parent who cares for children (or
other family members) must be included in the term “family status”. It is only
because of the Applicant’s position as a parent that she was able to take
Family Leave. While there is little jurisprudence from the Courts on this
point, consistent decisions of labour arbitrators have concluded that, under
the Act, the concept of “family status” encompasses family and parental
obligations, including childcare (see, for example, Rajotte
v Canada Border Services Agency, 2009 PSST 25 at
para 27, 2009 LNCPSST 25; Johnstone v Canada Border Services, 2010 CHRT
20 at paras 211, 234, [2010] CHRD No 20). While I am obviously not
bound by those decisions, they present a substantial body of quasi-judicial
determinations to support the Applicant’s submission. Moreover, the CRA failed
to put forward even a single case that differed on its interpretation of the
scope of “family status”.
[35]
From this review, I conclude that “family status” includes
the obligations of one family member to care for other members of the family.
[36]
The issue in this case is whether there is indirect, or
adverse effect discrimination. This is because CRA’s requirement of “recent and
significant experience” is neutral on its face in that it does not distinguish
between men and women, or individuals with families and individuals without
families. However, the policy allegedly has an adverse effect on employees who
have families and on women. Ont Human Rights Comm v Simpsons-Sears,
[1985] 2 S.C.R. 536, 23 DLR (4th) 321 [O’Malley] is the seminal case on the distinction between direct discrimination and
adverse effect or constructive discrimination. The majority described the
distinction at paragraph 18:
A distinction must be made between what I would describe as
direct discrimination and the concept already referred to as adverse effect
discrimination in connection with employment. Direct discrimination occurs in
this connection where an employer adopts a practice or rule which on its face
discriminates on a prohibited ground. For example, “No Catholics or no women or
no blacks employed here.” [….] On the other hand, there is the concept of
adverse effect discrimination. It arises where an employer for genuine
business reasons adopts a rule or standard which is on its face neutral, and
which will apply equally to all employees, but which has a discriminatory
effect upon a prohibited ground on one employee or group of employees in that
it imposes, because of some special characteristic of the employee or group,
obligations, penalties, or restrictive conditions not imposed on other members
of the work force. [….] An employment rule honestly made for sound economic
or business reasons, equally applicable to all to whom it is intended to apply,
may yet be discriminatory if it affects a person or group of persons
differently from others to whom it may apply.
[Emphasis added]
[37]
The onus is on a complainant to establish a prima facie
case of discrimination. A prima facie case of discrimination is one that
covers the allegations made and which, if believed, is complete and sufficient
to justify a verdict in the complainant’s favour in the absence of an answer
from the respondent (O’Malley, above at para 28). In Morris v Canada
(Canadian Armed Forces), 2005 FCA 154 at para 27, 334 NR 316 [Morris], the Court of Appeal held that the legal definition of a prima facie
case does not require that any particular type of evidence be adduced
to prove the facts
necessary to establish that the complainant was the victim of a discriminatory
practice as defined in the Act. In that case, the Court of Appeal
explained at paragraph 27 that,
Paragraph 7(b) requires only that a person was differentiated
adversely on a prohibited ground in the course of employment. It is a
question of mixed fact and law whether the evidence adduced in any given case
is sufficient to prove adverse differentiation on a prohibited ground, if
believed and not satisfactorily explained by the respondent.
[Emphasis added]
[38]
Once a complainant has established a prima facie
case, the burden shifts to the respondent to provide a reasonable explanation
for the conduct in issue (British Columbia (Public Service Employee Relations
Commission) v BCGSEU, [1999] 3 S.C.R. 3 at para 19, [1999] SCJ No 46).
[39]
Has the Applicant established a prima facie case of
discrimination based on her family status? I believe that she has. Because the
Applicant took three years and four months of Family Leave, she was unable to
meet the experience requirements of the MG-05 and SP-08 positions. Stated
differently, she was denied an employment opportunity because she took leave to
care for her family. The Applicant has shown that the effect of the CRA’s
policy or practice is “to withhold or limit access to opportunities, benefits,
or advantages to one group that are made available to another” (Canada (Attorney General) v Walden, 2010 FC 490 at para 131, 368 FTR 85).
[40]
In response, the CRA argues that the collective agreement
provides differently for maternity leave than for Family Leave. I agree that
there are different contractual provisions for the two leaves. That, however,
does not change the fundamental character of both leaves as being related to
family status. Moreover, I am unaware of any jurisprudence that has permitted
an employer to contract out of a duty as fundamental as the prohibition on
discrimination imposed by the CHRA. As noted by Justice Deschamps in McGill
University Health Centre (Montreal General Hospital) v Syndicat des employés de
l’Hôpital général de Montréal, 2007 SCC 4 at para 21, [2007] 1 S.C.R. 161, “[i]t
has long been recognized that the parties to a contract cannot agree to limit a
person’s fundamental rights”.
[41]
The CRA, as acknowledged in the e-mails cited above,
accepts that maternity leave is “protected” under the Act. Pursuant to
s. 3(2) of the CHRA, discrimination on the basis of pregnancy or
child-birth is deemed to be discrimination on the ground of sex. Beyond the
Collective Agreement, the CRA provides no argument as to why Family Leave
should not also be protected. In my view, there is no principled reason why
Family Leave should be any differently treated under the CHRA than
maternity leave.
[42]
The decision of Justice Barnes in Johnstone v Canada
(Attorney General), 2007 FC 36, 306 FTR 271, aff’d 2008 FCA 101, 164 ACWS
(3d) 838 [Johnstone] is relevant in this regard. That case arose out of the Canada Border Services Agency’s (CBSA) requirement that
the applicant accept part-time employment in return for obtaining fixed shifts
to accommodate her childcare responsibilities. The applicant sought judicial
review of the decision of the Canadian Human Rights Commission (Commission) dismissing
her complaint. In rejecting the notion that a different test applies for
finding prima facie discrimination on the basis of family status, as
opposed to the other grounds of discrimination, Justice Barnes observed at para
29 that,
While family status cases can raise unique problems that
may not arise in other human rights contexts, there is no obvious justification
for relegating this type of discrimination to a secondary or less compelling
status: see ONA v. Orillia Soldiers Memorial Hospital
(1999), 169 D.L.R. (4th) 489,
42 O.R. (3d) 692, [1999] O.J. No. 44
(C.A.) at para. 44 and British Columbia
v. BCGSEU, above, at paras. 45 and 46.
[43]
The Court of Appeal declined to comment on the correct
legal test for finding prima facie discrimination, instead affirming Justice
Barnes’s decision only on the basis that the Commission’s reasons raised a serious question as to
what legal test it had applied (Johnstone v Canada (Attorney General), 2008 FCA 101 at para 2, 164 ACWS (3d) 838, aff’g 2007 FC 36, 306
FTR 271). However, I see no reason for distinguishing between discrimination on the
basis of sex (i.e. pregnancy) and discrimination on the basis of family status
in the manner suggested by the CRA.
[44]
I would also echo Justice Barnes’s observation in Johnstone,
above at para 33, that “[t]he law is not well settled with respect
to the balancing of competing workplace interests insofar as family status
accommodation is concerned”. It is for the CRA to attempt to balance these
competing interests. The Agency has made no attempt to do so in this case.
[45]
On this issue, I conclude that:
1.
The Applicant has made out a prima facie case of
discrimination on the basis of family status; and
2.
the CRA has failed to provide any explanation for the
conduct in question.
[46]
On this basis, the application for judicial review should
succeed.
VII. Discrimination on
the Basis of Sex
[47]
Given my conclusion that the policy is discriminatory on
the basis of family status, I do not need to consider the alternate ground of
discrimination on the basis of sex.
VIII. Duty to
Accommodate
[48]
Under s. 15 of the Act, once a complainant has
established a prima facie case of discrimination, the onus shifts to the
employer to demonstrate that the prima facie discriminatory standard is
a bona fide occupational requirement, and if so, to consider whether the
complainant can be accommodated to the point of undue hardship. In this case,
it is obvious that the CRA did not consider either bona fide
occupational requirements or undue hardship. The Agency did not do so for the
simple reason that it did not believe that its practice vis-à-vis the Applicant
was discriminatory.
[49]
It may be that the CRA has compelling reasons for requiring
experience as described in the competition posting. It may also be that the
lengthy periods of absence of the Applicant would create difficulties within
the organization that rise to the level of undue hardship. On the other hand,
if the CRA turns its mind to the job requirements and this individual, there
may be an alternative to the experience requirement, such as a specialized
written assessment examination. This Court would not presume to direct the CRA
in how these factors of bona fide occupational requirement and
accommodation should be assessed.
IX. Conclusion
[50]
The CRA’s refusal to accommodate the Applicant’s period of
Family Leave in the context of its experience requirement is prima facie
evidence of discrimination in the course of her employment contrary to ss. 7
and 10 of the Act. In effect, the Applicant suffered an adverse effect
due to her family status, a prohibited ground of discrimination. The CRA
provided no reasonable explanation for this discrimination.
[51]
The remedy, in this case, will be to return the matter to
the CRA. The CRA will be directed to accept that the practice of not accommodating
the Applicant’s Family Leave in its experience requirement was discriminatory. The
CRA must now consider the Applicant’s applications for the two positions in
accordance with s. 15 of the Act.
[52]
As acknowledged by both parties at the oral hearing, costs
in the amount of $3,500.00, inclusive of disbursements and HST, would be
appropriate.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is allowed and the decisions to
exclude the Applicant from the competitions for the MG-05 and SP-08 positions
are quashed;
2.
for each of the MG-05 and SP-08 selection processes, the matter will be
returned to the CRA to assess whether, in accordance with s. 15(2) of the Act,
the accommodation of the needs of the Applicant would impose undue hardship on
the CRA, considering health, safety and cost; and
3.
costs, fixed in the amount of $3,500.00, inclusive of disbursements and
HST, are awarded to the Applicant.
“Judith A. Snider”
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