Docket: T-1725-14
Citation:
2015 FC 1302
Ottawa, Ontario, November 23, 2015
PRESENT: The
Honourable Madam Justice Gagné
|
BETWEEN:
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Applicant
|
|
and
|
|
CHRIS HUGHES,
|
|
CANADIAN HUMAN
RIGHTS COMISSION
|
|
Respondents
|
JUDGMENT AND REASONS
[1]
The Attorney General of Canada seeks judicial
review of a decision by the Canadian Human Rights Tribunal, whereby it upheld Mr.
Chris Hughes’ complaint that Transport Canada had discriminated against him on
the grounds of his mental disability, contrary to paragraph 7(a) of the Canadian
Human Rights Act, RSC 1985, c H-6 [Act]. The Tribunal found Mr. Hughes’
history of stress and depression was a factor in Transport Canada’s decision to
screen out his application from the marine security analyst competition, albeit
indirectly or unintentionally.
[2]
The applicant essentially argues that the Tribunal
erred: (i) by rigidly applying the Shakes test, thereby failing to
consider whether there was a connection between Mr. Hughes’ disability and his
treatment; (ii) in finding that the selection board had knowledge of Mr.
Hughes’ disability; and in the alternative, (iii) in unreasonably finding the
evidence before it met the Shakes test, and rejecting the explanation
provided by Transport Canada.
[3]
For the reasons discussed below, I am of the
view that the application should be granted on the basis that it was
unreasonable for the Tribunal to conclude, based on the record before it, that Mr.
Hughes had established a prima facie case of discrimination.
I.
Background
[4]
Mr. Hughes is a former federal government
employee. He served as a collection contact officer/compliance officer, as a
customs inspector, and finally as a business window agent, all PM-01 positions
for various, discontinuous periods of time.
[5]
While employed by the Canada Customs and Revenue
Agency [CCRA] (predecessor of the Canada Revenue Agency [CRA] and the Canada Border
Services Agency [CBSA]), he was forced to take two sick leaves as a result of
work-related stress and depression. Mr. Hughes asserts that the stress was
caused by an illegal act allegedly committed by the CCRA, which he had prevented
in 2000. He says that consequently, he was retaliated against and refused
several promotions. In early 2005, Mr. Hughes filed human rights complaints
against the CRA and the CBSA with respect to the alleged illegal act of the
then-CCRA, and also regarding alleged discrimination based on his age.
[6]
In addition, Mr. Hughes filed a civil suit
against the CRA and the CBSA, and in December 2005, he reached an out-of-court
settlement with the two agencies; he was awarded $51,000.00 in compensation.
[7]
Meanwhile, Mr. Hughes applied for the position
of marine security analyst (PM-04 position) and subsequently applied for three
other positions at Transport Canada. The first position is pertinent for the
present application. The selection board for that position was composed of Mr.
John Lavers, Ms. Sonya Wood and Mr. Ron Perkio.
[8]
Mr. Hughes passed the written exam and
participated in an interview with the selection board.
[9]
After the interview, Mr. Lavers contacted Mr.
Hughes to obtain references. On February 4, 2006, Mr. Hughes sent an email with
references, adding that if there were concerns, he could provide clarification and/or
additional documentation to confirm his work performance.
[10]
A few days later, Mr. Hughes wrote to Mr. Lavers
advising that he was having some problems with his old supervisor, Mr. Trevor
Baird, who was refusing to validate an event Mr. Hughes had referred to in his
interview. Mr. Hughes explained that Mr. Baird’s evasiveness was a result of
the out-of-court settlement, and that other references may be evasive for the
same reason. The same day, Mr. Lavers asked Ms. Wood for her thoughts on the
problems encountered with Mr. Hughes’ references and she responded by an email
to Mr. Lavers and Mr. Perkio, dated February 7, 2006, that it was not “an uncommon situation”. She added:
When/if a candidate’s Reference Contact
declines to provide a Reference check, there are other options/tools which the
Selection Board can (& should) utilize to assess Personal Suitability…e.g.
Board can ask the candidate to provide copies of any Letters of Reference or
Performance Evaluations….in the e-mails below Chris has included what seems to
be ‘quotes’ from Performance Evaluations Reports & prior Reference checks,
from his previous employment.
[11]
Therefore, at Mr. Lavers’ request, Mr. Hughes
mailed a package of documents referred to in the Tribunal’s decision as Exhibit
R-4 [Supplemental documentation] which included performance evaluations and past
references. From these documents, Mr. Lavers identified Ms. Kathryn Pringle and
Mr. Bill DiGuistini as potential references for Mr. Hughes.
[12]
On February 27, 2006, a teleconference took
place in the afternoon among the members of the selection board to discuss the
consensus ratings for all of the candidates’ personal suitability. The
Supplemental documentation was reviewed by the selection board and Ms. Wood
indicated in her notes taken during the teleconference that these documents
were deemed by the board to not have sufficient context or information or
relevance.
[13]
The same day, Mr. Lavers contacted Mr. Hughes at
4:45 pm asking if he could shed some light on why no one on the list he
provided was willing to provide a reference. Mr. Hughes asked if he could call
back later, which he did at 5:30 pm. It was during that telephone conversation
that Mr. Hughes disclosed his previous medical conditions.
[14]
The next day, Mr. Lavers contacted Ms. Pringle
and Mr. DiGuistini for references. Only Mr. DiGuistini agreed to act as a
reference; specific questions were asked and answered but Mr. DiGuistini was
unable to confirm whether or not Mr. Hughes was “detail-oriented”.
[15]
As a result, Mr. Hughes’ rating guide, signed by
Mr. Lavers and dated March 2, 2006, indicated a failing mark of 12/20 on the
“detail-oriented” criterion, under the required 14/20.
[16]
Mr. Hughes had also applied for three TI-06
positions that were all rejected. This aspect of his complaint for
discrimination based on his disability was dismissed by the Tribunal, which
found that he had not established prima facie cases of discrimination
with respect to those three competitions. Mr. Hughes did not seek judicial
review of these findings, nor did he contest the Tribunal’s finding that
section 14.1 of the Act, prohibiting retaliation against individuals who have
previously filed discrimination complaints, was not engaged.
II.
Impugned Decision
[17]
The Tribunal upheld Mr. Hughes’ complaint
that Transport Canada discriminated against him in the course of the competition
for the position of marine security analyst, contrary to section 7 of the Act.
Prima Facie Case
[18]
The Tribunal relied on Ontario (Human Rights
Commission) v Simpsons-Sears, [1985] 2 S.C.R. 536 at 558 [O’Malley] for
the proposition that the threshold required to establish a case of
discrimination is quite low:
[a] prima facie case …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.
[19]
The Tribunal also stated that the response by
the employer must be credible, and that in the absence of justification, relief
is owed to the complainant (Ontario (Human Rights Commission) v
Etobicoke, [1982] 1 S.C.R. 202 [Etobicoke]). Further, the complainant
need not show that discrimination was intentional (Bhinder v CN, [1985]
2 SCR 561). Once a prima facie case is established, the burden of proof
shifts on to the employer to prove on a balance of probabilities that the behaviour
was non-discriminatory or justified.
[20]
The Tribunal selected the legal test for a prima
facie case of discrimination as that of Shakes v Rex Pak Ltd (1981),
3 CHRR D/1001 (Ont Bd of Inquiry) [Shakes], as it was enunciated in Premakumar
v Air Canada (2002), 42 CHRR D/63 (CHRT) [Premakumar]:
[75] In the employment context, a prima facie case
has been described as requiring proof of the following elements:
a) that the
complainant was qualified for the particular employment;
b) that the
complainant was not hired; and
c) that someone no
better qualified but lacking the distinguishing feature which is the gravamen
of the human rights complaint (ie: race, colour etc.) subsequently obtained the
position [Shakes].
[76] This multi-part test has been
modified to address situations where the complainant is not hired and the
respondent continues to look for suitable candidates. In such cases, the
establishment of a prima
facie case requires proof:
a) that the
complainant belongs to one of the groups which are subject to discrimination
under the Act, e.g. religious, handicapped or racial groups;
b) that the
complainant applied and was qualified for a job that the employer wished to
fill;
c) that, although
qualified, the complainant was rejected; and
d) that,
thereafter, the employer continued to seek applicants with the complainant's
qualifications. (Israeli v. Canadian Human Rights Commission and Public
Service Commission, (1983), 4 C.H.R.R. D/1616, at page 1618 [Israeli].)
[21]
The Tribunal also retained a few concepts from
the jurisprudence: (i) that the task was to consider all the circumstances to
determine if there was a “subtle scent of
discrimination” as discrimination is not a practice always overtly
displayed (Basi v Canadian National Railway Co (No 1) (1998), 9
CHRR D/5029 at para 38414 (CHRT) [Basi]; (ii) that discriminatory
considerations need not be the sole reason for the actions in issue (Holden
v Canadian National Railway (1990), 14 CHRR D/12 at D/15); (iii) that circumstantial
evidence may be submitted if “an inference of
discrimination may be drawn where the evidence offered in support of it renders
such an inference more probable than the other possible inferences or hypotheses”
(Basi at 11).
[22]
The Tribunal chose to focus its analysis on the question
as to whether Mr. Hughes was qualified for the marine security analyst position
and the issue of the “detail-oriented” criterion, for which Mr. Hughes did not
receive a passing grade from the selection board.
[23]
As regards the selection board’s knowledge of
his disabilities and history of conflicts with previous employer, the Tribunal
found:
− Mr. Hughes disclosed to Mr.
Lavers his previous disabilities in relation to his various employers, the CRA
and CBSAl;
− All board members were
subsequently aware of Mr. Hughes’ problems;
− Mr. Hughes also disclosed the
difficulties encountered in obtaining references in support of his application;
− Despite the fact that some of
the references previously agreed to act as references, they all systematically
refused to support his application, though none of them overtly admitted this.
[24]
The Tribunal concluded that it was doubtful Mr.
Hughes could not have obtained a passing grade and that the lack of positive
feedback in his case should have undoubtingly been offset by the amount of positive
documentation showing, on a balance of probabilities, that he met the “detail-oriented”
criterion. The Tribunal noted that the selection board was significantly
influenced by the lack of references and neutral comments of Mr. DiGuistini
about Mr. Hughes and that the Supplemental documentation should have been
considered to his benefit in respect of his abilities regarding the “detail-oriented”
criterion.
[25]
The Tribunal had difficulty understanding Mr.
Lavers’ preference to communicate with persons directly rather than to refer to
the Supplemental documentation in light of emails between him and Ms. Wood. In
fact, the Tribunal rejected Ms. Wood’s testimony that the documents provided
were insufficient and incomplete. A more liberal approach should have been
taken because of the abundance of the documentation and the particular
circumstances of Mr. Hughes.
[26]
The Tribunal then considered the other
candidates who applied for the same position and found they received positive
comments qualifying them for the “detail-oriented” criterion. However, a
careful review of their application indicates that the answers they provided at
their interview were no better than those of Mr. Hughes. The Tribunal had
difficulty understanding why Mr. Hughes’ application was not accepted in view
of a comparative analysis to the applications of other candidates.
[27]
Mr. Lavers explained that the references
provided by a candidate were instrumental in confirming a candidate’s interview
and to adequately score the “detail-oriented” criterion. As such, Mr. Lavers
said he considered the only reference available and that Mr. DiGuistini was the
basis for the final score of Mr. Hughes on that criterion, which was 12/20.
[28]
The Tribunal stated (at para 239 of its
decision):
Based strictly on the information provided
in Exhibit R-4, in comparison with the other candidates’ applications and the
comments therein, the Tribunal finds that the complainant was discriminated
against.
[29]
Finally, the Tribunal noted additional
circumstantial evidence it found troubling: certain “VG” or “very good”
comments were erased from Mr. Hughes’s application without explanation from the
selection board.
Transport Canada’s Explanation
[30]
Based on the answers provided by the testimonies
of Ms. Wood and Mr. Lavers, the Tribunal concluded that the selection board
offered no credible response with respect to its decision to screen out Mr.
Hughes’ application:
−
Ms. Wood brushed aside all the documents
provided by Mr Hughes in R-4 with his various comments demonstrating aspects of
the detail-oriented criterion; she indicated that some passages were
interesting or assumed that he met the detail-oriented criterion (at paras 248
and 249 of the decision);
−
Mr. Lavers was not receptive to the
documentation in R-4 and at the time of the analysis of Mr. Hughes’ file he did
not conduct a comprehensive and careful analysis (at para 251 of the decision);
[31]
As such, the responses provided were not
sufficient and were a mere pretext. Given that a prima facie case had
been established by Mr. Hughes and given a lack of justification by Transport
Canada, Mr. Hughes was entitled to relief (Etobicoke, above at paras 202-208).
III.
Issues and Standard of Review
[32]
This application raises the following issues:
(1)
Did the Tribunal err in fact by finding the
selection board had knowledge of Mr. Hughes’ disability?
(2)
Did the Tribunal err in finding there was a
prima facie case of discrimination?
(3)
If answered in the affirmative, did the Tribunal
err in finding Transport Canada had not discharged its burden of demonstrating
discrimination was justified or did not occur?
[33]
I agree with the parties that the standard of
review applicable to the issues raised in this case is that of reasonableness (see
Canada (Canadian Human Rights Commission) v Canada (Attorney General),
2005 FCA 154 at para 33 [Morris]); Khiamal v Canada (Human Rights
Commission), 2009 FC 495 at para 52 [Khiamal]).
IV.
Analysis
Knowledge of Mr. Hughes’ disability by the selection board
[34]
The applicant submits that the Tribunal made key
factual errors with respect to the Board’s knowledge of Mr. Hughes’ disability.
On that point, the Tribunal stated:
[221] Indeed, the evidence showed that
first, when the complainant disclosed his references to John Lavers, he also
mentioned his previous disabilities in relation to his various employers (CRA
and CBSA), as well as the difficulties he encountered in obtaining references
in support of his application.
[35]
According to the applicant, this is an erroneous
finding. Based on the record, Mr. Hughes provided references on February 4,
2006 and made no mention of disability. On February 6, 2006, he mentioned to
Mr. Lavers he had an out-of-court settlement with CRA but did not disclose
having had a disability at the time. Only once most steps in the staffing
process were complete - by February 27, 2006 - was the disability disclosed.
Therefore, the Tribunal could not reasonably infer that knowledge of the out-of-court
settlement constituted knowledge of Mr. Hughes’ disability. In fact, the
evidence shows that Mr. Hughes did disclose his complaints against the CRA and
CBSA in relation to the issue of CCRA’s allegedly illegal act and age
discrimination, but neither these relate to his disability. As regards the
other members of the selection board, on direct examination Ms. Wood said she
did not find out about the disability until the human rights complaint was
filed. On cross-examination, when asked about whether she knew the reasons why
the selection board could not get references, she said she did not recall
exactly when she became privy to that information. Further, the record shows no
evidence that Mr. Lavers ever told Mr. Perkio of the disability.
[36]
The applicant also submits that while the board
was troubled by the Supplemental documentation and the handling of Mr. DiGustini’s
reference, there is no express statement about how the assessment of this
information was connected to Mr. Hughes’ disability. The applicant maintains
that the only reasonable conclusion based on the evidence is that Ms. Wood
reviewed the Supplemental documentation and the board had a teleconference to
discuss them before Mr. Hughes revealed his disability. In this regard, the
applicant states:
The evidence shows the Board reached a
consensus on the Supplemental Materials and that the meeting to perform this
assessment was to take place in the afternoon of February 27, 2006. Finally,
the evidence shows that Mr. Lavers first became aware of Mr. Hughes disability
during a conversation that started at 5:30 pm the evening of February 27, 2006.
[37]
As regards the “VG” comments erased, the
applicant argues that the record shows it is not at all uncommon for such
alterations to occur.
[38]
The respondents submit that there is ample
evidence that Mr. Lavers knew of Mr. Hughes’ disability for a long enough time
to affect the outcome of the competition. Mr. Lavers knew of Mr. Hughes’
disability by February 27, 2006 at the latest. Mr. Lavers contacted Mr.
DiGuistini for a reference on February 28, 2006, and waited until March 2, 2006
to note the reason Mr. Hughes failed the “detail-oriented” factor. As for Ms.
Wood, she learned of Mr. Hughes’ disability before he received the failing
score on March 2, 2006. While she testified that she was unable to remember
when she learned of the disability, she also testified she was in frequent
contact with Mr. Lavers and they would have discussed his disability after Mr.
Lavers’ phone call with Mr. Hughes on February 27, 2006. The brief notes of her
review of the Supplemental documentation are undated and she claimed not to
remember when they were written. Mr. Hughes submits that given the
circumstances it was not unreasonable for the Tribunal to infer that Ms. Wood did
discuss the disability before the failing score was finalized on April 2, 2006.
As for the “VG” comment next to the “detail-oriented” factor, it was erased
before it was disclosed to Mr. Hughes. As regards the “common practice”
mentioned by the applicant, the evidence shows there were no similar
alterations made to the other candidates’ rating guides.
[39]
I note that the Tribunal’s reasons - particularly
the portion dealing with a review of the evidence considered - do not
explicitly mention that Mr. Hughes disclosed his disability, but rather focus
on his effort to explain that the refusals to provide references were due to
the December 2005 out-of-court settlement with the CBSA and the CRA.
[40]
However, it is quite clear from the evidence
that on February 27, 2006, at the end of the day, Mr. Hughes did indicate to
Mr. Lavers that he had been on stress leave and that he had suffered from
depression. This then begs the question as to if and when the subject was
discussed between Mr. Lavers and the other members of the selection board.
[41]
In my view, it was reasonable for the Tribunal
to have found that the record reveals that Mr. Lavers more likely than not told
the selection board about Mr. Hughes’ medical conditions, sometime between
February 27 and March 2, 2006.
[42]
The record is unclear as to whether a final
decision was rendered at the teleconference held between the selection board
members during the afternoon of February 27, in light of: (i) the telephone discussions
between Mr. Lavers and Mr. Hughes at 4:45 pm and 5:30 pm on February 27, 2006;
(ii) the reference checks which took place on February 28, 2006; (iii) Ms.
Wood’s testimony that she could not recollect whether another meeting took
place between them; and (iv) the fact the rating guide was only signed on March
2, 2006. During his examination-in-chief, Mr. Lavers explains that the rating
guide of each candidate is put together over time (Certified Tribunal Record at
1827-1831). He adds that he put a note in Mr. Hughes’ rating guide on March 2,
2006 that said: “Reference check provided insufficient
cooperation while affecting the global score for this factor”.
[43]
I therefore find that while the reasons of the
Tribunal could have been more precise on its review of the evidence, the record
supports the Tribunal’s factual finding that, at the ultimate moment of
deciding whether to screen the respondent out, Mr. Lavers did have knowledge of
Mr. Hughes’ mental disability.
Prima facie case of discrimination
[44]
The question is now whether there was a factual
connection established between the selection board’s knowledge of Mr. Hughes’
disability and the decision to screen him out.
[45]
In the applicant’s view, the Tribunal failed to
carefully determine, on an analytical basis, whether there was a connection
between the adverse treatment alleged and the complainant’s membership in a
protected group, when it rigidly relied on the Shakes test without
considering the broader circumstances or context as the case law and situation
requires. Relying on Morris, above at paras 25-30, the applicant
maintains that each case should be considered to determine if the application
of the test, in whole or in part, is appropriate. The conduct itself and the
context in which it occurred must be analysed and scrutinized. The applicant
points to paragraphs 280 and 288 of the Tribunal’s decision as an indicator
that the Tribunal concluded Mr. Hughes made a prima facie case merely by
being qualified for the position; there was no discussion or finding that his
depression played a role in the decision not to employ him.
[46]
In the alternative, the applicant submits that
there was not sufficient evidence to satisfy all the factors of the Shakes
test. Particularly, there is no evidence that the successful candidates in the
process do not possess the same distinguishing feature as Mr. Hughes. The
applicant adds that it was unreasonable for the Tribunal to conclude that the
references for other applicants are comparable or inferior to that provided by
Mr. DiGuistini when considering the “detail-oriented” aptitude.
[47]
Mr. Hughes argues that evidence of defects in
the selection process is highly relevant and that it was open for the tribunal to
draw an inference of discrimination based on irregularities in the employer’s
selection process (see Kasongo Sadi v Canada (Human Rights Commission),
2006 FC 1067 at paras 20-21, 24-25; Canada (Attorney General) v Brooks,
2006 FC 1244 at paras 4, 19, 21, 25-27, 30-32; Khiamal, above). In the
case at bar, the Tribunal did just that. Mr. Lavers used a neutral reference to
give Mr. Hughes a failing score and refused to consider additional information
instead of verbal references. The documents established that he met the detail-oriented
factor despite Ms. Wood’s attempt to discredit their relevance. The successful
candidates were no better qualified and the selection board was aware of Mr.
Hughes’ disability. In addition, there was circumstantial evidence leading to the
same conclusion.
[48]
As regards the Shakes test, Mr. Hughes
submits that other factors were considered in the analysis. He agrees that the
test ought not to be applied in a rigid or mechanical manner: i) the Tribunal
referenced the Israeli modification of the test that is used when an
employer continues to seek applicants after rejecting the complainant for the
position; ii) there is no strict requirement that each of the successful
candidates be a person with a disability; the O’Malley test, which is
the ultimate test, contains no such requirement.
[49]
At the outset, it is useful to reiterate that
there is neither a particular type of evidence nor a particular application of
the Shakes test which must be used in order to successfully establish a prima
facie case. In Morris, above at para 28, the Federal Court of Appeal
endorsed the view that “[d]iscrimination takes new and
subtle forms.” The Federal Court of Appeal also stated that “deciding what kind of evidence is necessary in any given
context to establish a prima facie case is more within the province of the
specialist Tribunal”(at para 29). At first instance, the Federal Court
had found that the law required comparative evidence in order to establish a prima
facie case of discrimination. The Federal Court of Appeal held that the
Federal Court erred in that respect, and endorsed the view that the definition
of a prima facie case must recognize the infinite fact patterns possible
in the circumstances of employment discrimination. Morris specifies how
a prima facie case is to be established [emphasis added]:
[25] The definition of a prima facie
case in the adjudication of human rights complaints was considered in Lincoln
v. Bay Ferries Ltd., which was decided after the decision under appeal in
the present case was rendered. Writing for the Court, Stone J.A. said (at para.
18):
The decisions in Etobicoke, supra,
and O'Malley, supra, provide the basic guidance for what is
required of a complainant to establish a prima facie case of discrimination
under the Canadian Human Rights Act. ... The tribunals' decisions in Shakes,
supra, and Israeli, supra, are but illustrations of the
application of that guidance. ... As was recently pointed out by the
tribunal in Premakumar v. Air Canada, [2002] C.H.R.D. No. 3, at
paragraph 77:
While both the Shakes and the Israeli
tests serve as useful guides, neither test should be automatically applied in a
rigid or arbitrary fashion in every hiring case: rather the circumstances of
each case should be considered to determine if the application of either of the
tests, in whole or in part, is appropriate. Ultimately, the question will be
whether Mr. Premakumar has satisfied the O'Malley test, that is: if
believed, is the evidence before me complete and sufficient to justify a
verdict in Mr. Premakumar's favour, in the absence of an answer from the
respondent?
[26] In my opinion, Lincoln is dispositive: O'Malley
provides the legal test of a prima facie case of discrimination under
the Canadian Human Rights Act. Shakes and Israeli merely
illustrate what evidence, if believed and not satisfactorily explained by the
respondent, will suffice for the complainant to succeed in some employment
contexts.
[50]
In the case at bar, the Tribunal detailed the
evidence from which it concluded Mr. Hughes established a prima facie
case of discrimination. At that stage, however, the Tribunal should not have
accounted for the explanations provided for by Mr. Lavers and Ms. Wood (Lincoln
v Bay Ferries Ltd, 2004 FCA 204 at para 22). This would have been more
appropriate once the burden shifted; this overlap in the analysis is
questionable. With that said, I believe the Tribunal committed a reviewable
error when it concluded as follows (at para 239 of the decision):
Based strictly on the information provided
in Exhibit R-4, in comparison with the other candidates’ applications and the
comments therein, the Tribunal finds that the complainant was discriminated
against.
[51]
As discussed in the course of considering the
previous issue, the Supplemental documentation was reviewed by the selection
board prior to their knowledge of Mr. Hughes’ disability. It is therefore hard
to establish, on a prima facie basis, how Mr. Hughes’ disability could
have been a factor influencing their review of those materials. At that stage
of the analysis of the evidence, the Tribunal could not reproach the manner in
which Ms. Wood and Mr. Lavers treated the materials in the absence of their
knowledge of the mental disability. The reasons show that the Tribunal accorded
great weight to this evidence in determining whether a prima facie case
was established. In my view, it was unreasonable for the Tribunal to reproach
the selection board for failing to re-assess the materials on March 2, 2006 or
on February 28, 2006, for example, if it had already considered them of no
relevance at the teleconference.
[52]
In any event, I have reviewed the Supplemental documentation
and the neutral comments provided to Mr. Lavers on the phone by Mr. DiGuistini,
and have difficulty seeing how they could have changed the outcome of the assessment
of the “detail-oriented” criterion.
[53]
There is an abundance of documentation but it
is by no means easy to read through. The information contained therein is not
self-evident and it was fully within the selection board’s discretion to have
determined it to be irrelevant and to have not reconsidered it after the
selection board acquired knowledge of Mr. Hughes’ disability. The Tribunal
erred by expecting the selection board to revise its process for Mr. Hughes in
view of the DiGuistini reference. For all the candidates, the references were
expected to confirm the information obtained during the interviews and it is
logical that the absence of a reference confirming that Mr. Hughes was in fact “detail-oriented”
would have had a negative impact on the selection process.
[54]
Furthermore, the evidence does not show that
there was a change in the board member’s attitude toward Mr. Hughes’
application, after Mr. Lavers was made aware of Mr. Hughes’ disability. On the
contrary, Mr. Lavers emphasised the importance of obtaining references from the
beginning of the process and he persisted after his February 27 conversation
with Mr. Hughes. He was certainly consistent in that regard.
[55]
Therefore, I am of the opinion that the
Tribunal’s finding that there was a prima facie case of discrimination
against Mr. Hughes does not fall within the range of possible outcomes
defensible in regards of the facts and law.
V.
Conclusion
[56]
In light of the foregoing, I will quash the
impugned decision and remit the matter back for re-determination by a different
member of the Tribunal.
Email this Content