Docket: A-538-15
Citation:
2016 FCA 271
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CORAM:
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TRUDEL J.A.
SCOTT J.A.
GLEASON J.A.
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BETWEEN:
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CHRIS HUGHES
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
and
CANADIAN HUMAN
RIGHTS COMMISSION
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
November 8, 2016).
GLEASON J.A.
[1]
Mr. Hughes appeals from the order of the Federal
Court in Canada (Attorney General) v. Hughes, 2015 FC 1302, 260 A.C.W.S.
(3d) 560 [Hughes FC], which allowed the Attorney General’s application
for judicial review of the decision of the Canadian Human Rights Tribunal in Hughes
v. Transport Canada, 2014 CHRT 19.
[2]
In that decision, the Tribunal determined that
Transport Canada discriminated against Mr. Hughes on the basis of disability
in a staffing process when the hiring panel decided to screen Mr. Hughes out of
the process. More specifically, the Tribunal held that Transport Canada had
committed indirect or unintentional discrimination when it declined to find that
the performance appraisals and other documents tendered by Mr. Hughes provided
sufficient proof of his meeting the hiring criterion of being detail-oriented.
[3]
Rather than accepting these documents as
establishing this criterion, the chair of the hiring panel wanted personal
references to validate that Mr. Hughes possessed the required ability to pay
attention to detail. However, Mr. Hughes told the chair of the panel that it
would be difficult for him to obtain references from his former employers
because he had been involved in litigation with them due to his having been a
whistle-blower and the subject of discrimination. He also indicated that he
suffered from a mental health disability that was occasioned by the
difficulties he had experienced with his former employers.
[4]
The other member of the staffing panel who
testified before the Tribunal indicated that she had reviewed the documents
that Mr. Hughes had tendered in support of his possessing the necessary ability
to pay attention to details, but was not satisfied that they demonstrated that
Mr. Hughes met the detail-oriented criterion. The Tribunal found her to
not be credible in respect of these points.
[5]
The Tribunal held that the documents tendered by
Mr. Hughes provided as much confirmation – if not more – of his ability to pay
attention to detail as was established by the verbal references obtained for
the other candidates. This, coupled with the selection panel’s knowledge of Mr.
Hughes disability, led the Tribunal to conclude that Mr. Hughes had made out a prima
facie case of discrimination. The Tribunal went on to conclude that
Transport Canada had not discharged its burden of disproving discrimination and
so upheld this portion of Mr. Hughes’ complaint.
[6]
In setting the Tribunal’s decision aside, the
Federal Court stated that it was conducting a reasonableness review, but, in
fact, it re-weighed the evidence that was before the Tribunal. The Court did
not agree with the Tribunal that it was problematic for the hiring panel to
penalize Mr. Hughes for his lack of references as there had been no change
in the hiring panel’s references policy after Mr. Hughes’ disclosed his disability
and thus there was no evidence of discriminatory conduct (Hughes FC at
para. 54). The Court also found that because Mr. Hughes’ documentation in lieu
of references did not “self-evidently”
illustrate that he met the attention-to-detail criterion, it was inappropriate
for the Tribunal to substitute its own conclusion for that of the hiring panel
on this point (Hughes FC at para. 53).
[7]
In this appeal, we are required to step into the
shoes of the Federal Court and determine whether it selected the appropriate
standard of review and whether it applied that standard correctly: Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras.
45-47, [2013] 2 S.C.R. 559. Here, while the Federal Court selected the
appropriate standard – namely reasonableness – it did not apply that standard
correctly.
[8]
In re-weighing and effectively re-deciding the
case, the Federal Court was much too interventionist. There was more than ample
evidence before the Tribunal to support its key conclusions; interference with
them under the reasonableness standard is therefore not warranted.
[9]
More specifically, the evidence demonstrated
that the decision on Mr. Hughes’ candidacy was not made until after Mr. Hughes
told the chair of the selection panel of his disability and the reasons for his
failure to obtain references. The evidence also showed that it was the chair
who was instrumental in giving Mr. Hughes a failing grade on the detail-oriented
criterion and that this assessment was not made until after the chair was aware
of Mr. Hughes’ disability. Moreover, there was evidence that a document
favorable to Mr. Hughes’ case had been altered by the employer and that the
chair of the hiring panel disregarded the advice of the human resources
representative on the hiring panel and continued to refuse to consider the
written documentation that Mr. Hughes supplied in support of his candidacy even
after the reasons why he was unable to obtain adequate verbal references were
made known to the chair. Finally, there was a basis in fact for the Tribunal to
have concluded that the written documents supplied by Mr. Hughes were as
adequate as the verbal references the successful candidates were able to
provide.
[10]
In light of this, the Tribunal’s finding that
Mr. Hughes had made out a prima facie case of discrimination is
reasonable. Likewise, its determination that the employer had failed to provide
an adequate explanation for its failure to consider the written documents
provided by Mr. Hughes cannot be challenged as it is grounded in large
part in the factual findings and credibility determinations made by the Tribunal.
Its decision is therefore reasonable and the Federal Court erred in concluding
otherwise.
[11]
It follows that this appeal will be allowed with
costs, the order of the Federal Court set aside, and, making the determination
that the Federal Court ought to have made, the judicial review application of
the respondent, the Attorney General of Canada, is dismissed, with costs. Based
on the parties’ agreement, costs in the Federal Court are fixed at $1,500.00
and in this Court at $1,500.00, in both cases all-inclusive of disbursements
and taxes.
“Mary J.L. Gleason”
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