Docket: T-865-14
Citation:
2015 FC 1209
Ottawa, Ontario, October 26, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
|
BETWEEN:
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Applicant
|
|
and
|
|
LEVAN TURNER AND
CANADIAN HUMAN
RIGHTS COMMISSION
|
|
Respondents
|
JUDGMENT AND REASONS
I.
Overview
[1]
From 1998 to 2003, Mr Levan Turner worked on
term contracts as a Customs Inspector for the Canada Border Services Agency
(CBSA). He tried twice to secure a permanent position, first in Vancouver and
then in Victoria. He was turned down both times.
[2]
While Mr Turner’s performance evaluations had
always been positive, internal emails at CBSA revealed some concerns about his
work habits. The Victoria selection board that reviewed his application also
noted some shortcomings. After interviewing him, the Vancouver selection board
found that Mr Turner was actually ineligible for the position because he had
already been interviewed for a similar job in Victoria.
[3]
An investigation by the Public Service
Commission (PSC) concluded that the selection boards for both competitions had
acted unfairly.
[4]
Mr Turner then filed a complaint with the
Canadian Human Rights Commission alleging discrimination on the basis of race,
national or ethnic origin, age, and perceived disability (obesity). A tribunal
dismissed his complaint, and I later denied his application for judicial
review. The Federal Court of Appeal then set aside the tribunal’s decision and
referred the matter back for redetermination out of concern that the tribunal
had not explicitly considered the perceived disability aspect of Mr Turner’s
complaint.
[5]
On reconsideration, a second tribunal found in
Mr Turner’s favour. It concluded that Mr Turner had been the object of
stereotypical assumptions about older, obese, black males. With respect to the
Vancouver competition, the tribunal found that Mr Turner had been wrongly
disqualified.
[6]
The Attorney General of Canada (AGC) seeks
judicial review of the second tribunal’s decision. The AGC argues that the
tribunal should not have reviewed the selection processes for the two job competitions
because those had already been investigated by the Public Service Commission.
Further, the AGC maintains that the tribunal erred by basing its
redetermination on the previous record. Finally, the AGC contends that the
tribunal’s decision was unreasonable on the evidence. The AGC seeks to quash
the tribunal’s decision and requests me to order another tribunal to reconsider
Mr Turner’s complaint.
[7]
I agree with the AGC that the second tribunal’s
decision was unreasonable because its adverse credibility findings and ultimate
conclusion were unsupported by the evidence before it. I will therefore allow
this application for judicial review.
[8]
There are three issues:
1.
Did the tribunal err by reviewing the selection
processes?
2.
Did the tribunal err by basing its decision on
the previous record?
3.
Was the tribunal’s decision unreasonable?
[9]
The first issue involves a jurisdictional
question and is reviewable on the standard of correctness. The other issues
involve mixed questions of fact and law reviewable on a standard of
unreasonableness.
[10]
Because the findings of the second tribunal are
so starkly different from those of the second tribunal, I will briefly review both
tribunals’ decisions.
II.
The First Tribunal’s Decision
[11]
The tribunal reviewed the evidence to determine
if Mr Turner had made out a prima facie case of discrimination. It found
that there was no direct evidence to support Mr Turner’s complaints of
discrimination based on age, race, and national and ethnic origin. The tribunal
went on to consider whether an inference could be drawn from circumstantial
evidence. The tribunal considered Mr Turner’s positive job assessments, internal
emails, and the circumstances surrounding the Victoria and Vancouver
competitions.
[12]
The tribunal assumed that the evidence satisfied
a prima facie case of discrimination. It went on to consider whether
CBSA had provided a reasonable explanation for not offering Mr Turner an
indeterminate position as a customs inspector.
[13]
With respect to the Victoria competition, the
tribunal found that, while Mr Turner had received positive assessments of his
performance as a seasonal employee, this was not enough to qualify him for a
permanent position. His application and interview revealed certain shortcomings
in communication skills and teamwork. The tribunal found that the selection
board`s assessment was supported by the facts. The tribunal noted that the
members of the selection board followed up with Mr Turner encouraging him to
gain more enforcement experience in order to advance his career with CBSA. The
tribunal found that this conduct was inconsistent with a discriminatory
attitude toward Mr Turner.
[14]
With respect to the Vancouver competition, the
tribunal concluded that it contained a poorly drafted eligibility restriction. The
restriction stated that applicants who had interviewed for the position after
January 1, 2002 were ineligible to apply. It did not clarify that only unsuccessful
interviewees would be found ineligible.
[15]
After reviewing the screening process, the
tribunal found that Mr Turner may have been the only person the selection board
followed up with and the only person screened out. Nonetheless, the tribunal
concluded that, in fact, he was the only candidate who was actually ineligible.
[16]
The tribunal accepted the testimony of Mr Ron
Tarnawski, who was one of the members of the selection board. Mr Tarnawski
stated that he recognized Mr Turner from a previous competition due to his
upbeat personality, and this caused him to follow up on the question of his eligibility.
[17]
The tribunal concluded that CBSA had provided a
reasonable explanation for the fact that Mr Turner had been found not to be
qualified in the Vancouver and Victoria competitions. It dismissed Mr Turner’s
complaint.
III.
The Second Tribunal’s Decision
[18]
The procedure the tribunal followed was agreed
on by the parties. The tribunal would review the record created before the
first tribunal; the parties would then have an opportunity to make further oral
submissions at a hearing.
[19]
In its lengthy reasons, the tribunal set out the
parts of the transcript and the other evidence on which it relied, and its credibility
findings. It also laid out the legal framework that should apply to claims of
discrimination, citing the leading cases of Shakes v Rex Pak Limited (1982),
3 CHRR D/1001; Basi v Canadian National Railway Company, [1988]
CHRD No 2; Radek v Henderson Development (Canada) Ltd., et al, 2005
BCHRT 302. This jurisprudence makes clear that the tribunal had to determine whether
the complainant had shown that he or she was qualified for the position in
question; that he or she was not hired; and that another person, who was no
better qualified but lacked the attributes underlying the complaint, was hired
instead.
[20]
The tribunal concluded that this test was met, meaning
that Mr Turner had made out a prima facie case of discrimination. The
staffing process for the two competitions, in the tribunal’s view, was
permeated with the “subtleness of discrimination”
based on the intersecting grounds (age, race and perceived disability)
identified in the complaint.
[21]
The tribunal then evaluated the employer’s
response to the prima facie case. It found that no explanation had been
given for singling out Mr Turner for the application of the eligibility
restriction that applied to the Vancouver competition. As a result, the
tribunal found that it was “inexorably drawn by the
probabilities surrounding this case to conclude that [the employer] negatively
stereotyped Mr Turner as an obese, older black man, likely to be lazy and untruthful,
and therefore unacceptable as a potential employee of the newly established
law-enforcement-oriented CBSA”. In fact, according to the tribunal, the
eligibility restriction amounted to an arbitrary and expedient pretext to
terminate Mr Turner’s candidacy.
[22]
In respect of the Victoria competition, the
tribunal found that the employer had not provided a valid explanation for the
selection board’s decision not to hire Mr Turner. In particular, the tribunal
found that it was “beyond comprehension”, “injudicious”, and “egregious”
for the selection board not to have weighed in Mr Turner’s favour his prior
positive performance evaluations. The tribunal concluded that it could
reasonably infer that the board had “negatively
stereotyped Mr Turner as a lazy, older, obese, black man, and decided to deny
him the opportunity to continue working for the CBSA as a uniformed Border
Services Officer”.
[23]
The tribunal concluded that the CBSA had
discriminated against Mr Turner contrary to ss 7 and 10 of the Canadian
Human Rights Act, RSC 1985 c H-6 (see Annex).
IV.
Issue One – Did the tribunal err by reviewing
the selection processes?
[24]
The AGC argues that the tribunal overstepped its
mandate when it reviewed the processes relating to the two competitions.
According to the AGC, only the PSC can perform that role. The AGC also
maintains that the tribunal should have been estopped from embarking on that
review given that the PSC had already conducted an investigation.
[25]
In my view, the tribunal did not overstep its
jurisdiction. It considered whether the selection boards engaged in a
discriminatory assessment of Mr Turner’s candidacy by exhibiting attitudes
based on stereotypes. This can be distinguished from the function of the PSC
whose role is to ensure that appointments to the public service are based on
merit. The PSC investigated the selection process through that particular lens
(Hughes v Canada (Human Resources and Skill Development), 2014 FC 278 at
para 49). I see nothing improper about the tribunal’s inquiry into the
possibility of discrimination in the selection process. That was well within
its mandate.
V.
Issue Two – Did the tribunal err by basing its
decision on the previous record?
[26]
Prior to the hearing, the parties had reached an
agreement on the process the tribunal would follow. The tribunal would review
the previous record and then receive submissions from the parties at an oral
hearing.
[27]
I see nothing wrong with the procedure adopted
by the tribunal, especially as it was agreed upon by the parties. The tribunal
had a discretion to proceed as it saw fit (Re: Sound v Fitness Industry
Council of Canada, 2014 FCA 48 at para 37). Further, reliance on
transcripts is not unfair if the parties are given an opportunity to make further
submissions to the decision-maker (Badal v Canada (Minister of Citizenship
and Immigration), [2003] FCJ 440 at paras 16-17).
[28]
Accordingly, the tribunal adopted an appropriate
methodology in the circumstances.
VI.
Issue Three – Was the tribunal’s decision
unreasonable?
[29]
The issue before the second tribunal was a relatively
narrow one – whether the evidence compiled by the first tribunal showed that Mr
Turner had been discriminated against as a result of perceived disability, or
as a result of that ground in combination with other grounds, such as race and
age. The second tribunal reviewed all possible grounds underlying Mr Turner’s
complaint and found that, indeed, he had been treated adversely as a result of
stereotypes about older, black, obese men.
[30]
Mr Turner argues that the tribunal made reasonable
findings of fact and arrived at a reasonable conclusion in his favour. With
regret, I disagree. The tribunal made numerous adverse credibility findings for
which I cannot find support in the evidence. Indeed, the tribunal went beyond
findings of credibility – it seriously impugned the character of witnesses and
ascribed to them blatantly prejudicial attitudes. I see no basis for those
accusations in the record.
[31]
The first tribunal made no adverse credibility
findings after hearing all of the witnesses in person having the benefit of
observing the witnesses` demeanor. By contrast, the second tribunal made a
number of seriously adverse credibility findings, based solely on a review of
the written record before the first tribunal. Four witnesses of the CBSA were
negatively assessed in the second decision.
A.
The Witnesses
(1)
Terry Klassen
[32]
Mr Terry Klassen was Mr Turner`s supervisor in
2003. He had authored an email in which he summarized a discussion with Mr
Turner about his job performance. In his discussion, he identified a couple of
areas for future improvement – for example, not shying away from difficult
tasks, and not leaving responsibility for cash reconciliations to others. During
his testimony, Mr Klassen provided an example of Mr Turner taking the easy way
out when faced with difficult tasks. He described an instance where Mr Turner approached
Mr Klassen to ask him if he could just let a traveller go without completing
some paperwork. Mr Klassen provided another example from first-hand observation
of Mr Turner. The tribunal found that his testimony was “hesitant and vague” and that he “stubbornly maintained” that this example showed that
Mr Turner had taken a shortcut even though it was contrary to what was
described in Mr Turner’s positive performance assessments. The tribunal found
that the emails disclosed a racist attitude on the part of the Victoria
superintendents.
[33]
The email was sent to all the superintendents to
ensure that whoever would be supervising Mr Turner the next year would follow
up on the feedback. However, since some of them were on the selection board, the
tribunal found that sending this email a week before the announcement of the
Victoria competition brought into question the board’s impartiality.
(2)
Trevor Baird
[34]
Mr Trevor Baird was Mr Turner`s supervisor in 2002.
He testified that Mr Turner was good at client relations but that enforcement was
“not a strong suit”. The tribunal described his
testimony as a “backhanded characterization”.
[35]
Mr Baird was asked to explain why the Victoria
selection board had noted that Mr Turner sometimes painted other workers in a
negative light. He gave an example from Mr Turner’s written submissions in
which he had described how he dealt with a difficult traveller while another
officer, Ms Nina Patel, stood back. The tribunal described his answer as
amounting to “unbridled and inarticulate prolixity”
and showing “subjective partiality”. Mr Baird stated
that he followed up with Ms Patel to hear her version of that incident because Mr
Turner’s account did not accord with his own knowledge of her work habits.
[36]
While Ms Patel’s description did not correspond
with Mr Turner’s submission, her version did not affect Mr Turner’s evaluation
in the job competition because that had already been completed. Mr Baird was
asked if he would have scored Mr Turner’s submission differently if Ms Patel
had corroborated his description. He said no. The tribunal characterized his
answer as “implausible” and his reliance during
the competition on personal knowledge of Ms Patel as “discreditable”.
The tribunal inferred from this evidence that Mr Baird had “prejudicially determined that Mr Turner would not be deemed
to have the competence to be a border service officer”. In addition, it
amounted to an “aggravating circumstance”
supporting the tribunal’s conclusion that the selection process was “a pretext to ensure that an older, obese, lazy black man, as
Mr Turner had been stereotyped, would not be employed” by CBSA.
[37]
Mr Baird testified that the selection board
decided not to rely on candidates’ past performance assessments to level the
playing field for internal and external candidates. He was asked if he was
concerned by the fact that the process screened out an applicant with positive
performance evaluations as a customs officer. He said no. The tribunal said his
answer was “not worthy of belief” and Mr Baird’s
decision not to consider past performance showed that he was “unscrupulous”, and that the process was an “absurdity”. The tribunal found that Mr Baird had a
preconceived idea that Mr Turner was not a suitable candidate because he was an
older, obese, black male.
[38]
Mr Baird testified that the contents of the
Klassen email were consistent with his own observations about Mr Turner.
However, he was not sure that he had actually read the email before. The Board
found that Mr Baird had “responded irrationally”
to questions on this point, and “deepened his
discredit” by stating that he was not sure whether he had read the email
before the Victoria competition. The tribunal described Mr Baird’s testimony as
“evasive and not worthy of belief”, and
concluded that “the improbability of Mr Baird’s
explanation swept aside the last vestiges of his credibility”. In the
tribunal’s view, Mr Baird was either negligent or had decided to resort to
evasion. Either way, according to the tribunal, Mr Baird’s conduct raised “a significant question as to the propriety of the Selection
Board process concerning Mr Turner’s application”.
(3)
Shalina Sharma
[39]
Ms Shalina Sharma was responsible for the
drafting and implementation of the eligibility restriction in the Vancouver
competition. She admitted that the eligibility restriction was drafted poorly. She
also explained that past performance assessments were not used in the Vancouver
competition because this was an external competition. The tribunal concluded
from her evidence that the staffing process was “the
opposite of rigorous”. It was “based on a
grandiose Portfolio of Competencies (a misnomer)”, “haphazard and subjective”, and “pretentiously determined whether a candidate was competent”.
In reality, according to the tribunal, becoming qualified or capable for a
particular position “requires learning on the job and
establishing a state of competence”, not
proof of competence ahead of time. Ms Sharma, according to the tribunal, was “openly partial”.
(4)
Ronald Tarnawski
[40]
Mr Tarnawski described the staffing process that
he helped develop at CBSA. He interviewed Mr Turner both for the Vancouver and
the Victoria competitions. His notes on the Victoria competition suggest that
Mr Turner, in describing his decision-making process, was prone to making
decisions based on assumptions. In his testimony before the tribunal, Mr Turner
was given a chance to elaborate on the decision-making process he had earlier
described during the competition. The tribunal found
that Mr Tarnawski had erred in finding that Mr Turner was relying on
assumptions because Mr Turner adequately explained in that testimony that the assumptions
were preliminary and would be followed by measured consideration of other
factors.
[41]
Mr Tarnawski also explained the intent of the
eligibility restriction for Vancouver. The employer wanted to avoid
interviewing the same unsuccessful candidates over and over again. He conceded
that its wording caused “nightmares”. He also
admitted that Mr Turner might have been the only candidate screened out based
on the restriction. At the same time, many candidates with no customs
experience were found to be eligible. The tribunal described the restriction as
“an irrational disqualification” which Mr
Tarnawski had “rashly applied”. It described Mr
Tarnawski’s evidence as “inconsistent and
argumentative” amounting to an “intractable and
incomprehensible application of the eligibility restriction”. It also
displayed his “intransigence” and his “vexatious” decision to disqualify Mr Turner.
[42]
Mr Tarnawski testified that he recognized Mr
Turner from the Victoria competition based on his voice, presence, and positive
attitude, not because he was a large black man. The tribunal questioned whether
Mr Tarnawski was “phobic” and had an “aversion” to saying that he remembered Mr Turner
because of his physical characteristics.
B.
The Tribunal’s Conclusions
[43]
The second tribunal found that Mr Turner’s
testimony established a prima facie case of discrimination. It also
found that the employer had not provided an adequate explanation for the
differential treatment that Mr Turner received.
[44]
In respect of the Vancouver competition, the
tribunal found that the evidence clearly established that there were other
candidates who should have been found ineligible but were not, and that those
candidates lacked the characteristics (age, race, and perceived disability)
underlying Mr Turner’s complaint. Further, the tribunal found that its
conclusion was reinforced by the fact that applicants with no previous
experience were found to be qualified, while Mr Turner was not.
[45]
Therefore, the tribunal was “inexorably drawn by the probabilities surrounding this case
to conclude that Mr Tarnawski negatively stereotyped Mr Turner as an obese,
older black man, likely to be lazy and untruthful, and therefore unacceptable as a potential employee of the newly established
law-enforcement-oriented CBSA”.
[46]
With respect to the Victoria competition, the
tribunal found that it was “beyond comprehension”
that the selection board would “dogmatically exclude”
from consideration Mr Turner’s past performance assessments. The board followed
a “totally injudicious” process. Mr Baird’s
contact with Ms Patel amounted to an “amoral attempt”
to verify Mr Turner’s written submissions. Overall, Mr Baird displayed “egregious and injudicious behaviour” supporting an
inference that he had “negatively stereotyped Mr Turner
as a lazy, older, obese, black man, and decided to deny him the opportunity to
continue working for the CBSA”.
C.
The Tribunal’s Conclusions Were Unreasonable
[47]
A number of concerns lead me to the conclusion
that the second tribunal’s decision was unreasonable. First, the tribunal
obviously felt that the selection boards should have credited Mr Turner with
his positive performance assessments and, on that basis, place his candidacy
ahead of others who had little or no previous experience. As mentioned, the
tribunal was entitled to review the staffing process to determine whether it
was discriminatory. However, it should not have presumed that the process was
discriminatory simply because it disagreed with the criteria that were
employed. For both Vancouver and Victoria, the selection boards decided not to
consider past performance evaluations. The tribunal felt that this approach was
irrational and, therefore, that the selection boards’ reliance on it supported
Mr Turner’s claim of discrimination. In my view, the witnesses explained why
that approach was taken. The tribunal plainly disagreed with their point of
view, but that did not necessarily mean that the process was devised to screen
out persons with Mr Turner’s personal characteristics. Nor is there any
evidence that the board applied the process in a discriminatory manner.
[48]
Second, the tribunal wrongly found that there
were other candidates who should have been found ineligible for the Vancouver
competition. There was no evidence to support that conclusion. Again, the
tribunal drew an adverse inference from the fact that candidates who had less
experience that Mr Turner were found to be qualified in that competition. The
tribunal refused to accept the proposition that past experience and performance
appraisals should not form part of the selection board’s consideration. While
it was entitled to its opinion, that was not a sufficient basis on which to
conclude that the process was aimed at excluding Mr Turner.
[49]
Third, the tribunal second-guessed the
conclusions drawn by the Victoria selection board about Mr Turner’s
qualifications based on evidence before the tribunal that was not before the
board. In particular, the tribunal found that the board had wrongly concluded
that Mr Turner was inclined to make decisions on assumptions rather than
evidence. However, the tribunal was relying on Mr Turner’s testimony in the
hearing, not on what he said during the interview. This was not a proper basis
for impugning the selection board’s assessment.
[50]
Fourth, as described above, the tribunal applied
a plethora of pejorative adjectives to the testimony of the main witnesses for
the respondent. Of course, the tribunal was entitled to make credibility
findings. However, it had an obligation to explain them, which it did not.
Reviewing the tribunal’s decision and the record that was before it, I simply cannot
find any basis for the tribunal’s severely adverse findings. In the tribunal’s
decision, I see many references to the testimony recorded in the transcript and
the tribunal’s characterization of that evidence. But I do not see an
explanation for the tribunal’s consistently harsh assessment of it. Nor do I
see any basis for impugning the witnesses’ personal character or attributing to
them overtly racist tendencies.
[51]
Fifth, the tribunal erred by wrongly characterizing
the position of the employer as a concession that Mr Turner would have been
placed on a list of qualified employees if not for the eligibility criterion
that applied to the Vancouver competition. The record shows no such concession.
Counsel for the employer merely stated that Mr Turner was found to be
disqualified solely because of the applicable eligibility criterion. He did not
concede that Mr Turner was otherwise qualified for the position. At the
hearing, counsel for Mr Turner clearly understood the government’s position
stating “so he was disqualified because of eligibility
restriction only, but you’re saying there were other facts that the Board was
aware of that might have affected how they dealt with him”. The answer
from counsel for CBSA was “Correct”. Therefore, contrary
to the tribunal’s finding, it was not clear that Mr Turner would have been
found to be qualified for the Vancouver competition even if the ineligibility
restriction had not been applied to him. This led the tribunal to an
unreasonable application of the Shakes test.
[52]
Based on these issues, I find that the second
tribunal’s assessment of the evidence and its conclusion that Mr Turner had
made out a case of discrimination – by having been denied employment
opportunities because of his age, race, and a perceived disability of obesity –
was unreasonable.
VII.
Conclusion and Disposition
[53]
The tribunal’s findings are not supported by the
evidence that was before it. Therefore, its conclusion that Mr Turner had
established a case of discrimination did not fall within the range of
defensible outcomes based on the facts and the law. Accordingly, I must allow
this application for judicial review and order another tribunal to reconsider
the matter.
Email this Content