Docket:
A-332-11
Citation:
2014 FCA 91
CORAM:
NOËL J.A.
PELLETIER J.A.
MAINVILLE J.A.
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BETWEEN:
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RAMAN AN THAMBIAH
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Appellant
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and
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MARITIME EMPLOYERS ASSOCIATION/L'ASSOCIATION DES EMPLOYEURS
MARITIMES
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Respondent
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and
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SYNDICAT DES DEBARDEURS DU PORT
DE MONTRÉAL
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Intervener
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REASONS
FOR JUDGMENT
PELLETIER J.A.
[1]
Mr. Thambiah appeals from a decision of the Federal Court, reported as Thambiah
v. Maritime Employer's Association, 2011 FC 727, which dismissed his
application for judicial review of a decision of a tribunal appointed pursuant
to Canadian Human Rights Act R.S.C 1985, c. H-6 (the Tribunal). The
Tribunal's decision is reported at 2010 CHRT 8.
[2]
Mr. Thambiah is a longshoreman in the Port of Montréal, employed by the
Maritime Employers Association (MEA). The longshoring workforce is divided into
3 groups: employees with job security, and employees in the first and second
reserves, with pay and benefits increasing as one rises from one level to the next.
Mr. Thambiah was in the second reserve when he was given the opportunity to
qualify for the first reserve. In order to do so, he needed to pass two tests:
one to demonstrate proficiency in the handling of a lift truck (OLIFT) and one
to demonstrate proficiency in the handling of a truck (OTUGM). He passed the
OLIFT test without incident. He failed the OTUGM test a first time and was allowed
to take it a second time. He failed it the second time. He asked to be allowed
to take the test a third time and was refused on the basis of the MEA’s policy
which limits applicants to two tries. Mr. Thambiah complained that he was aware
of individuals who had been allowed a third chance to take the test.
Nonetheless, he was refused another opportunity to take the test.
[3]
Mr. Thambiah' s union, the Syndicat des débardeurs du port de Montréal
(the Union), made inquiries of the employer's representative and decided not to
grieve the matter on Mr. Thambiah's behalf. Mr. Thambiah complained to the
Canada Industrial Relations Board (CIRB) that the Union had failed in its duty
of fair representation. The Union filed a reply to the complaint (Reply) in
which the following appeared:
Lors de la dernière
évaluation, monsieur Thambiah a accroché et trainé sur près de 10 pieds un
conteneur avec le camion.
On the last test, Mr. Thambiah struck
a container with the truck and dragged it for nearly 10 feet.
[Translation by the Court]
[4]
The CIRB decided Mr. Thambiah's complaint without an oral hearing,
relying on the record filed by the parties. According to Board's decision, Mr.
Thambiah acknowledged that he had failed the test but explained that it was due
to being distracted (Appeal Book, page 23). The CIRB dismissed Mr. Thambiah's
complaint on the basis that it was made out of time but went on to say that, in
any event, it would have dismissed the case on the merits as the Union had done
all that it was required to do in Mr. Thambiah's case. The CIRB made no comment
with respect to Mr. Thambiah's credibility.
[5]
Unsatisfied with this result, Mr. Thambiah complained to the Canadian
Human Rights Commission (the Commission) that he had been discriminated against
on the grounds of ethnicity, age and family status. The Commission referred the
matter to the Tribunal. Several days prior to the beginning of the hearing,
counsel for the MEA advised counsel for Mr. Thambiah that the allegation
contained in the Union's Reply to the effect that Mr. Thambiah had dragged a
container over a distance of 10 feet was incorrect and that no evidence would
be led to that effect. In the course of the hearing, counsel for the MEA
advised the Tribunal that it was not taking the position that Mr. Thambiah had
dragged a container it for 10 feet and, should that allegation appear in any
documents put before the Tribunal, the Tribunal should ignore it.
[6]
The Tribunal heard evidence over a period of 5 days, from January 11-15,
2010. The MEA's representative who administered the tests to Mr. Thambiah gave
evidence and was cross examined, but not with respect to the allegation
contained in the Union's Reply. No union representative testified. At the close
of evidence, counsel for Mr. Thambiah abandoned the allegations of
discrimination on the basis of ethnicity and age. As a result, the only issue
before the Tribunal was whether Mr. Thambiah was discriminated against on the
basis of family status due to nepotism. That issue arises only in the context
of the MEA's refusal to give Mr. Thambiah a third test.
[7]
Early in its reasons, the Tribunal addressed the question of Mr.
Thambiah's credibility. Since counsel for Mr. Thambiah made this the principal
question on appeal, it is worth quoting the Tribunal's reasons:
[45] We note a great
many contradictions in the Complainant's testimony and consider it useful to
reproduce some of the more significant ones here.
[46] At one point
the Complainant admitted that he had failed the two truck driving tests, at
another point he denied it, and finally he tried to justify his failure by
advancing unverified and unverifiable hypotheses that changed over time.
[47] Finding the
consequences of his failure so disproportionate to the error held against him,
he tried desperately to find a way out of this impasse.
[48] He gave the
impression of someone overwhelmed by the consequences of his failure, who was
trying desperately to understand what could possibly have happened to him.
During the hearing, he gave voice to his thoughts and advanced a number of
hypotheses.
[49] In his view,
discrimination and sabotage by the trainer and the evaluator partly explained
his two failed tests. Several outside factors also explained the failed tests.
His testimony therefore went in all directions. His hypotheses were sometimes
hard to imagine and even harder to verify.
[50] Lastly, the
Complainant advanced few substantive facts to support his position and mainly
hid behind conjecture or hearsay.
[51] By his
testimony, the Complainant clearly showed that he had difficulty distinguishing
between the facts of his case and hypotheses that might explain those facts.
[52] In the final
analysis, it is difficult to give much weight to the Complainant's version when
compared with that of a witness testifying about facts of which he or she has
personal knowledge.
[53] In short, in
our opinion, the Complainant's credibility is very low.
[8]
The Tribunal went on to examine the circumstances of the tests and
concluded that Mr. Thambiah struck a container and was unable to properly back
up a truck. The Tribunal found that Mr. Thambiah’s explanations for these
lapses were not persuasive. The question of a container being dragged for 10
feet did not arise. The Tribunal then turned to the "2 test maximum
rule" and concluded at paragraph 99 of its reasons that the 2 test maximum
rule was applied "regardless of the candidate's age, ethnicity and family
ties to members of the MEA". The Tribunal found that the rule was applied
to Mr. Thambiah without discrimination. Finally, the Tribunal examined all the
cases in which it was alleged that a candidate was offered a 3rd chance to take
a test. In each case, the Tribunal found that there was either evidence of
exceptional circumstances or that the allegation was based on misinformation.
The Tribunal concluded that there was no evidence of nepotism at the MEA:
paragraphs 140-144 of the Tribunal's reasons. As a result, Mr. Thambiah's
complaint was dismissed.
[9]
Unhappy with this result, Mr. Thambiah applied for judicial review of
the Tribunal's decision. The Federal Court, as noted above, dismissed his
application. In summary, the Court noted that the standard of review of the
Tribunal's decision was reasonableness and that, having regard to record before
it, including the Tribunal's assessment of Mr. Thambiah's credibility; it was
not its function to substitute its assessment of the evidence for the
Tribunal's. In the Court's view, the Tribunal's conclusion was supported by the
record before it and fell within the range of acceptable outcomes which are
defensible in respect of facts and law: Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190, at paragraph 47.
[10]
Mr. Thambiah now brings this appeal of the Federal Court's decision. The
only argument made on his behalf by counsel is that no deference is owed to the
Tribunal or to the Federal Court because their decisions were based upon
deliberate lies by the MEA’s representative or the Union or both. These lies
tainted Mr. Thambiah's credibility which, in turn, coloured the Tribunal and the
Court's view of his evidence. We are asked to allow the appeal and to set aside
the decision of the Tribunal.
[11]
This line of argument is singularly without merit. Mr. Thambiah's
counsel argues that the lies began with the Union's Reply in which it is said
that Mr. Thambiah struck and dragged a container for 10 feet. This statement,
now acknowledged to be incorrect, played no part in the CIRB's decision. The
CIRB proceeded on the basis that Mr. Thambiah acknowledged that he had failed
the tests: see Supplementary Appeal Book, at p. 17. Furthermore, the CIRB's
decision makes no comment whatsoever as to Mr. Thambiah's credibility.
[12]
The Union's Reply was not evidence before the Tribunal. Counsel for Mr.
Thambiah appeared to attribute the statements in the Union's reply to the MEA's
witness which is clearly wrong. In any event, that witness, who was repeatedly
called a liar in argument before us, was not cross-examined on the statement in
the Union's Reply or how it came to be made. It is patently unfair to assert, at
this stage, that he did not tell the truth when the opportunity to cross-examine
him on the relevant facts was available and was not taken.
[13]
The Tribunal's reasons for questioning Mr. Thambiah's credibility arose
entirely from Mr. Thambiah's own evidence. He contradicted himself as to
whether or not he had failed the tests. He offered explanations for his failure
which were "hard to imagine and even harder to verify". He was unable
to marshal any facts to support his version of events and resorted to
conjecture and hearsay. Perhaps the Tribunal's most telling comment was that
Mr. Thambiah “had difficulty distinguishing between the facts of his case and
hypotheses that might explain those facts”: Tribunal’s reasons at paragraphs
49, 51.
[14]
There was no basis in law for the Federal Court to interfere with the
Tribunal's decision. Nothing in the record and nothing which was said to us in
argument would justify any interference with the Federal Court’s decision.
[15]
In the course of the hearing of this appeal, Counsel for Mr. Thambiah
repeatedly and without any shadow of proof, called an MEA witness a liar, and suggested,
once again without any proof, that the witness was motivated by racism. This
type of pleading is totally unacceptable and deserves to be denounced by this
Court. If a witness’ integrity is to be challenged, the witness must be given
the chance to explain himself: see R v. Giroux, 2001 O.A.C. 50, [2006]
O.C.J. 1375 (C.A.) (Q.L.) at paragraphs 40-49, applying Browne v. Dunn, (1893), 6 R. 67 (H.L.) In this case, there was an opportunity to cross-examine the
witness at the tribunal on the testimony which counsel found objectionable, but
it was not taken. In those circumstances, it was improper for counsel to make
the attacks he did.
[16]
I would dismiss the appeal with costs to the respondent.
""J.D. Denis
Pelletier"
“I agree
Marc Noël J.A.”
“I agree
Robert M. Mainville J.A.”
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