Docket: T-381-17
Citation: 2018 FC 112
[ENGLISH TRANSLATION]
Ottawa, Ontario, February 3, 2018
PRESENT: The Honourable Mr. Justice Diner
| BETWEEN:
|
| CONSEIL DES ABÉNAKIS D'ODANAK
|
| Applicant
|
| and
|
| NAHAME O’BOMSAWIN
|
| Respondent
|
JUDGMENT AND REASONS
I.
Nature of the case
[1]
The Conseil des Abénakis d’Odanak [the Conseil or the applicant] is seeking judicial review of a decision by the Canadian Human Rights Tribunal [the Tribunal] from February 17, 2017 (O’Bomsawin v Abenakis of Odanak Council, 2017 CHRT 4) [the decision]. By applying section 7 of the Canadian Human Rights Act, RSC (1985), c. H-6 [CHRA], the Tribunal dealt with the complaint from Nahame O’Bomsawin [respondent] for employment-related discrimination based on the prohibited ground of family status.
II.
Facts
[2]
The applicant is a band council within the meaning of the Indian Act, RSC (1985), c. I-5.
[3]
The respondent is a member of the Abenaki First Nation in the Odanak reserve. She is the daughter of Deny O’Bomsawin, Director of the Odanak Health Centre.
[4]
On July 9, 2012, the Conseil adopted a resolution requiring the Odanak Health Centre to begin an accreditation process with Health Canada, which has no particular requirement with respect to the project. Afterwards, Mr. O’Bomsawin wrote a competition notice for the contractual position of “Project Manager (Accreditation Coordinator)”. The competition was posted twice, bearing the competition closing date of July 26, 2012. The description of tasks and the requirements for the position remained unchanged for both notices and read as follows:
a)
University education completed in project management or management;
b)
Experience as a project manager;
c)
Interpersonal communication skills;
d)
Ability to work well under pressure;
e)
Excellent oral and written communication skills;
f)
Experience with government organizations;
g)
Local knowledge;
h)
Bilingual (French – English).
[5]
By the end of the application period, the chair of the Conseil designated Robert Saint-Ours and Daniel G. Nolett as members of the selection committee. This selection committee began an interview process and two candidates were shortlisted: the respondent and candidate M P, who ultimately received the position. A third candidate had applied for the position, but did not follow the process and withdrew from the competition.
[6]
It appears from the record that during the hiring process, the respondent had a Bachelor’s degree in communication and a diploma of specialized studies in management, and candidate M P had an attestation of college studies in office automation and accounting and a university certificate in administration and was in the process of getting a second university certificate in human resources.
[7]
The selection committee assessed the two candidates based on the following grid:
a)
Training – 25 points
b)
Project management experience – 20 points
c)
Quality of answers – 15 points
d)
Knowledge of programs – 10 points
e)
English – 10 points
f)
Overall evaluation – 10 points
g)
Maturity (enthusiasm, motivation and life experience) – 10 points
[8]
From the interviews, the respondent received a score of 78/100 from the first assessor and 83/100 from the second. Candidate M P received a score of 74/100 and 77/100 from the assessors.
[9]
For the “Training” component, both candidates received 25/25 and 23/25 from the two assessors. For the “Experience in project management” component, the respondent received 12/20 and 15/20, while candidate M P received 5/20 and 5/20. For the “Quality of answers” component, the respondent received 12/15 and 13/15, while candidate M P received 15/15 and 15/15. For the “Knowledge of programs” component, the respondent received 9/10 and 5/10, while candidate M P received 3/10 and 2/10. For the “English” component, both candidates received 10/10 from both assessors. For the “General assessment” component, both candidates finished on equal footing, with 8/10 and 10/10 from both assessors. For the “Maturity (enthusiasm, motivation, life experience)” component, the respondent received 4/10 and 5/10, while candidate M P received 10/10 from both assessors.
[10]
On October 29, 2012, the selection committee recommended that the Conseil hire candidate M P. The respondent was informed of the Conseil’s decision to confirm that recommendation on October 31, 2012, and she met with the selection committee on November 2, 2012, for a “post-mortem”
in order to understand the process and the reason why her application was not chosen.
[11]
On April 15, 2013, the respondent filed a complaint against the Conseil with the Canadian Human Rights Commission, alleging that she was subjected to discrimination on the basis of the prohibited ground of family status. She alleges that if she did not receive the position, it was because of the family bond between her and the director of the Health Centre.
III.
Decision
[12]
On February 17, 2017, following the hearing on December 20 and 21, 2016, the Tribunal found that the respondent’s complaint was substantiated.
[13]
The Tribunal first dealt with the facts surrounding the respondent’s complaint: the respondent’s qualifications, the advertised position, the selection committee, the candidate assessment process, and the Conseil’s decision.
[14]
The Tribunal stated the results obtained by both candidates during the interviews conducted by the selection committee. It noted that the candidates received the same score for their education, although only the respondent met the university education requirements of the advertised position, and that the respondent distinguished herself through her project management experience and through her knowledge of programs, but candidate M P surpassed the respondent in the quality of her answers and her motivation.
[15]
The Tribunal highlighted that the evaluation grids were not submitted to the Conseil when the selection committee made its hiring recommendation and the respondent was not chosen, despite having an overall higher result than candidate M P.
[16]
The Tribunal observed that:
[43] In the context of the present complaint, Ms. O’Bomsawin must show, according to section 7 of the CHRA, on a balance of probabilities, that: (1) she has a personal characteristic protected from discrimination; (2) that the Council refused to employ her; (3) that the protected characteristic was a factor in refusing to employ her (Moore v. British Columbia (Education), 2012 SCC 61, par. 33 (“Moore”); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39, par. 56 and 64 [“Bombardier”]).
[17]
The Tribunal then applied the law to the facts. It determined that the respondent had demonstrated prima facie discrimination as required in case law (Shakes v Rex Pak Ltd., (1981), CHRR D/1001, 1981 CarswellOnt 3407 (Ont. Bd. of Inquiry) [Shakes]; Moore). The respondent established that she was qualified for the position, yet she was not hired, while candidate M P was chosen, even though she was not more qualified and because there were no alleged prohibited grounds for discrimination (family status).
[18]
However, the Tribunal was careful to note that the test in Shakes serves only as a guide and should not be applied in a rigid or arbitrary manner. The circumstances must be examined in order to determine whether the application of any of these criteria is appropriate (Canadian Human Rights Commission v Canada (Attorney General), 2005 FCA 154 at para 25).
[19]
According to the Tribunal, it was demonstrated by a preponderance of evidence that the family status factor influenced the Conseil’s decision. The respondent had the university education required for the position as advertised, unlike the other candidate; she had more experience and she knew the programs due to her past work at the Health Centre.
[20]
The Tribunal considered the Conseil’s explanation to show that its actions were not discriminatory and that the hiring of the other candidate was instead due to her skills, but did not accept the Conseil’s arguments. Firstly, the Tribunal noted an inconsistency between the results on the candidates’ evaluation grids and the outcome of the interview process, since the committee proceeded subjectively by giving different weighting to the elements of its own grid, without having amended the requirements of the advertised position.
[21]
In addition, the Tribunal did not accept the Conseil’s argument that candidate M P was preferred over the respondent due to bona fide occupational requirements, which would be the skill of creating and maintaining interpersonal relationships, and that she was more “motivated”
. In fact, she had neither the university education nor the experience in project management that the respondent has. One of the members of the selection committee, Mr. St-Ours, even testified that she was “overqualified”
for the position. In addition, in her previous jobs, the respondent’s work never received any complaints, and the witnesses called before the Tribunal did not have any negative remarks regarding the quality of her past work.
[22]
The Tribunal found that candidate M P was chosen “solely on the basis of the motivation criterion and not on all of the criteria, as is apparent from the score grids and the results of the two candidates, which shows a higher overall score for Ms. O’Bomsawin than that of the candidate chosen, and this by the admission of the witnesses before the Tribunal”
.
[23]
The Tribunal also noted that it is not necessary that family status be the sole and unique factor for discrimination to occur; it is sufficient for it to have been one of the factors (Holden v Canadian National Railway Company, [1990] FCJ No. 419, 14 CHRR D/12 (FCA) [Holden]).
[24]
The Tribunal highlighted that a “subtle scent of discrimination”
stood out from the testimonies at the hearing (Basi v Canadian National Railway, [1988] DCDP No. 2, 1988 CanLII 108 [Basi]). In addition, the witnesses noted the fact that the respondent had already been given contracts at the Health Centre without an interview and that it “caused a lot of talking”
in the community, and those comments were not linked to the respondent’s skills.
[25]
The Tribunal also noted that the hiring process for the position was unique because the respondent is the daughter of Mr. O’Bomsawin.
[26]
During the “post-mortem”
meeting on November 2, 2012, the selection committee (Mr. St-Ours and Mr. Nolett) did not tell the respondent that the factor of motivation had been decisive in their recommendation to the Conseil and its decision. On the contrary, the respondent wrote that “in that meeting, reference was made, in veiled terms, to the fact that Ms. O’Bomsawin’s being the daughter of the director of the Centre could have had an impact”
. Ms. O’Bomsawin learned from Mr. St-Ours that “sometimes the Council’s decisions can produce victims...”
, but she was not told that the motivation criterion had been decisive.
[27]
The Tribunal also did not accept the Conseil’s explanation that candidate M P had better skills and was more motivated. No change was made to the grid in order to reflect the higher importance of the motivation criterion. As the Conseil explained, if the grid was no longer important, it had the time and opportunity to change the posting for the position in order to reflect the actual requirements.
[28]
Lastly, the Tribunal then reviewed the Conseil’s argument that the refusal to hire the respondent rested on a bona fide occupational requirement that she did not meet, namely the skill for maintaining and developing interpersonal relationships. The Tribunal determined that the Conseil did not show any evidence to establish a bona fide occupational requirement and that the claimed requirement was only a “pretext”
.
[29]
As a result, the Tribunal found that the respondent’s complaint was substantiated and there was discrimination under paragraph 7(a) of the CHRA. It awarded the respondent relief for loss of wages ($20,654.43) and pain and suffering ($10,000), as well as special compensation for wilfully engaging in a discriminatory practice ($7,500) and interest (which was not calculated in the decision).
IV.
Positions of the parties
[30]
The Conseil disagrees with the following paragraphs from the decision:
[68] For those reasons, I find that the Complainant has established a prima facie case of discrimination under section 7 of the CHRA on the basis of family status.
[…]
[76] For all of these reasons, I find that the Council’s evidence is not convincing and is simply a pretext.
[77] On the balance of probabilities, I therefore find that the Council engaged in a discriminatory practice under section 7(a) of the CHRA, based on family status, by refusing the hire the complainant, Nahame O’Bomsawin.
[…]
[108] Nahame O’Bomsawin’s complaint is found substantiated and it is ordered that the Abenakis of Odanak Council:
-
Compensate the victim in the amount of $20,654.43 for the wages that the victim was deprived of.
-
Compensate the victim in the amount of $10,000 for the pain and suffering she experienced.
-
Compensate the victim in the amount of $7,500 for having engaged in the discriminatory practice wilfully.
-
Pay interest on the foregoing compensation amounts with the terms outlined in paragraph 107 of this decision.
[31]
The applicant argues that the Tribunal ignored determinative evidence. Firstly, it reproaches the Tribunal for not reviewing testimonies from Mr. Saint-Ours and Mr. Nolett, the highlights of which were that the respondent’s father tried to favour his daughter by awarding her the contract without an interview and that the Conseil therefore decided to create a transparent hiring process with interviews. Rather than finding that the administration of a hiring process by the Conseil had been made necessary due to the interference of the Health Centre’s director, the Tribunal allegedly found that the it was rare and unique that the Conseil had to choose the candidate for jobs of that type. In addition, the “uniqueness”
of that situation came from the fact that one of the candidates was the daughter of the Health Centre’s director. Thus, the Tribunal allegedly erred by finding that there was a wilfull discriminatory practice.
[32]
Second, supported by the transcript, the applicant reproaches the Tribunal for making [translation] “an erroneous connection in the evidence between the remarks that spread around the Odanak Indigenous community and the decision made by the Conseil de bande”
.
[33]
Third, the applicant alleges that the Tribunal did not give importance to the testimony of Deny O’Bomsawin, who revealed that Health Canada did not set a minimum requirement for college training for the position.
[34]
Fourth, with respect to the Conseil’s explanation regarding the bona fide occupational requirement, the applicant argues that the Tribunal did not consider the arguments that it made, yet did not specify the nature of those apparently ignored arguments.
[35]
As for the respondent, she indicates that the Conseil did not report any palpable errors in fact or in law that would have made the Tribunal’s decision unreasonable and that it is only presenting the Court of judicial review a more forceful version of its arguments. The Tribunal would have rightly found contradictions between the selection committee’s evaluation grid and the outcome of the hiring process, among other valid reasons for finding that the decision not to hire the respondent was discriminatory. In summary, according to the respondent, the applicant did not identify any errors that tainted the Tribunal’s decision.
V.
Standard of review
[36]
The parties agree, as do I, that the standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). The crux of the litigation is, in reality, the assessment that the Tribunal made of the evidence and the testimony presented to it. It is trite law that the Tribunal’s decision is susceptible to review according to reasonableness with respect to assessing the evidence (Canadian National Railway Company v Seeley, 2014 FCA 111 at para 35; Canada (Attorney General) v Hughes, 2015 FC 1302 at para 33).
[37]
Reasonableness commands deference from the Court regarding the Tribunal’s decision. The intervention of this Court is only necessary if the Tribunal’s decision does not meet the requirements of transparency, justification and intelligibility and if it does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir at para 47; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16). Similarly, it is not open to a reviewing court to substitute its own view of a preferable outcome or to reweigh the evidence (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, 61 [Khosa]).
VI.
Analysis
[38]
Before weighing the arguments that were raised, here are the three key provisions in this matter.
[39]
First, section 7 of the CHRA prohibits discriminatory practices related to employment:
| 7 It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
|
7 Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d’employer ou de continuer d’employer un individu;
b) de le défavoriser en cours d’emploi.
|
[40]
Next, subsection 3(1) of the CHRA specifies the prohibited grounds of discrimination:
| 3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
|
3 (1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’identité ou l’expression de genre, l’état matrimonial, la situation de famille, les caractéristiques génétiques, l’état de personne graciée ou la déficience.
|
[41]
Lastly, paragraph 15(1)(a) and subsection 15(2) of the CHRA exclude refusal to hire from the discriminatory practices if it is based on a bona fide occupational requirement:
| 15 (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
|
15 (1) Ne constituent pas des actes discriminatoires :
a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l’employeur qui démontre qu’ils découlent d’exigences professionnelles justifiées;
|
| […]
|
[…]
|
| (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
|
(2) Les faits prévus à l’alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l’alinéa (1)g), s’il est démontré que les mesures destinées à répondre aux besoins d’une personne ou d’une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coûts, de santé et de sécurité.
|
[42]
After reading the transcript and the submitted evidence, I do not see any reason to set aside that decision, which I find to be well founded in fact and in law. It appears from the applicant’s arguments that it disagrees with the findings made by the Tribunal. The applicant essentially reiterates its arguments and is asking the Court to reweigh the evidence that was submitted to the Tribunal.
[43]
The test for establishing discrimination stated in Moore may also apply in this case:
[33] As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
[44]
First, it was not shown that the Tribunal erred by finding that there was prima facie evidence of discrimination. It is not up to the Court to give more or less weight to the testimony heard by the Tribunal.
[45]
The applicant reproaches the Tribunal for having not sufficiently considered three affirmations: first, the hiring process was made necessary by the interference of the Health Centre’s director, Mr. O’Bomsawin, in favour of the respondent (his daughter); second, the position did not require university training; and third, the Tribunal erred by giving importance to the remarks of third parties.
[46]
I cannot side with the applicant’s arguments. I find that if the alleged interference of the Health Centre’s director was such that the Conseil saw merit in appointing a hiring committee, that committee could have re-posted the position with an amended list of requirements, including those relating to required university training. Instead, the selection committee set aside the respondent’s application, despite receiving a higher evaluation that candidate M P.
[47]
It is incorrect to claim that the Tribunal erred by considering remarks that were spread by third parties. Specifically, I do not share the applicant’s opinion in which the Tribunal made an erroneous connection between “talking in the community”
and the selection process. In fact, several witnesses reported that the Conseil’s decision to task a selection committee with filling that position was motivated by the fact that previous contracts had been awarded by the director of the Health Centre to his daughter, the respondent, without any particular hiring process. In my view, therefore, it was open to the Tribunal to draw inferences from the evidence as it did. No error was shown regarding the Tribunal’s findings on the discriminatory practices. As a result, there is no need to intervene on the determination of prima facie evidence of discrimination by the Tribunal.
[48]
Second, it did not show that the Tribunal would have committed an error by determining that the Conseil did not discharge its burden of proof to prove that the discrimination was justified. Furthermore, the applicant disagrees with the handling of its arguments by the Tribunal. Nevertheless, the applicant failed to indicate to the Court what those arguments are and how the Tribunal would have erred by rejecting them.
[49]
A reading of the entire transcript of the hearing affirms that the Tribunal was completely justified in its findings as to the absence of a satisfactory explanation from the Conseil in which it would have reversed the burden by justifying discriminatory conduct. The reasoning that the conduct could not be justified and the finding of a discriminatory practice were both completely reasonable.
[50]
The Tribunal’s reasons show the transparency and intelligibility of the decision-making process, and as a result, the decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. It is therefore not indicated here either that the Court must intervene in the Tribunal’s decision.
[51]
Third, the applicant is challenging the losses awarded to the respondent by the Tribunal under section 53 of the CHRA, particularly regarding the punitive compensation under subsection 53(3) and the pain and suffering according to paragraph 53(2)(e).
[52]
Once again, I find that the findings and underlying findings of fact are completely reasonable, given what stood out from the testimonies during the Tribunal hearing and what was thoroughly summarized in the closing address from counsel for the respondent. This discriminatory conduct includes: the unflattering remarks about the respondent from a member of the Conseil; the past contracts that “caused a lot of talking”
in the community; the fact that both members of the selection committee set aside the evaluation grids; the respondent’s profile and skills, including her education, professional training and relevant experience; the absence of complaints against the work done by the respondent at her past positions; her knowledge of the work environment and her interest in the position; the failure to notify the respondent of the alleged reason of her lack of motivation during the “post-mortem”
meeting; the letter of recommendation from Mr. Saint-Ours and his comments regarding her previous job.
[53]
The decisions cited by the applicant are distinct and none of them deal with a comparable situation. For example, in Bressette v Kettle and Stony Point First Nation Band Council, 2004 CHRT 40, the complainant did not have the qualifications for the position. Moreover, it was not a question of another candidate being chosen despite having a lower score, since none of the five candidates were ultimately selected. The tribunal did not find any indications of prima facie discrimination, like in this case. The other cases cited by the applicant did not help its cause either.
[54]
At the hearing before this Court, the parties were not able to submit precedents with analogous facts, in which during a selection process, evaluation grids were used that did not reflect the requirement of a determinative criterion (in this case, motivation). Consequently, I must rely on the statutory provision of the CHRA reproduced above (sections 7, 15, and 53) and decision that interpret the act, particularly Moore, Shakes, Holden, and Basi.
[55]
Lastly, I reviewed the evidence submitted to the Tribunal regarding the after-effects of the decision not to hire the respondent and the impact of that decision on her, including her psychological condition, her decision to leave the community and the necessity of finding another job that did not pay as well. In summary, I am of the view that the compensation set by the Tribunal, which was lower than the amounts sought by the respondent, representing a fair, equitable, and above all, reasonable compromise in light of the facts and law. Since the applicant did not identify a reviewable error, the Court’s intervention is not justified (Dunsmuir; Khosa).
VII.
Conclusion
[56]
There is no basis in law that warrants the Court setting aside the Tribunal’s decision. Consequently, I am dismissing the application for judicial review with costs.
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