Date: 20060908
Docket: T-1247-05
Citation: 2006 FC 1067
Ottawa, Ontario, September 8, 2006
Present: The Honourable Mr. Justice
Beaudry
BETWEEN:
DANIEL KASONGO SADI
Applicant
and
CANADIAN
HUMAN RIGHTS COMMISSION
The Commission
and
FARM CREDIT CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review under section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7, of a decision dated June 21, 2005, by Michel Doucet,
member of the Canadian Human Rights Tribunal (the Tribunal). The Tribunal
dismissed the applicant’s complaints alleging discrimination in employment
based on his race, national or ethnic origin and family status, contrary to
section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the
Act). The applicant represented himself at the hearing.
I. Issues
[2]
The issues are as follows:
1.
Did the Tribunal make patently
unreasonable findings following its analysis of the four positions sought by
the applicant:
(a)
the position of French as a second
language teacher?
(b)
the position of diversity advisor?
(c)
the position of translator?
(d)
the position of bilingual
communications officer?
2.
Did the Tribunal breach the rules
of natural justice:
(a)
by appearing impatient or by
allowing the respondent more latitude than the applicant at the hearings?
3.
Did the Tribunal deny the
applicant procedural fairness by displaying bias in making its decision?
II. Factual
Context
[4]
The applicant is a Canadian
citizen, originally from the Democratic Republic of the Congo.
[5]
He arrived in Montréal on October
14, 1984, and studied at Concordia University. In 1990, he obtained a certificate
to teach French as a second language to adults. The following year, at the same
university, he successfully completed a BA in French Studies (with a
specialization in teaching French). In the autumn of 1991, he began a Master’s
of Linguistics at the Université du Québec à Montréal with a specialization in
teaching French. Although he did not complete his Master’s, the applicant
admits stating in the complaint form that he submitted to the Canadian Human
Rights Commission that he had a Masters of Linguistics with a specialization in
teaching French, which turned out to be inaccurate.
[6]
The applicant’s experience in
teaching French as a second language to adults in Quebec is as follows: first,
as a volunteer with the Catholic association, “Catholic Immigration Services”,
then teaching French as a second language to adults at the Commission des
Écoles catholiques de Montréal from 1991 to 1998.
[7]
After a trip to his native
country, the applicant settled in western Canada, in Regina, Saskatchewan, in
May 1998. He found his first job with the Conseil culturel fransaskois,
and soon after obtained a part-time job for the summer of 1998 at the Language
Institute at the University of Regina, teaching French as a second language to
adults. At the same time, he taught French as a second language to CBC
technicians.
[8]
In September 1998, he taught three
French courses at the Language Institute, and was hired by the Institute to
give French courses to public servants, a judge and a senior university
official. In 1999, he left the Institute for a full-time position with the CBC.
During the same time period, he also taught French as a second language to
adults at the RCMP Academy.
[9]
However, according to the
applicant, his employment plans in the West were impeded by racial discrimination.
In the complaint form he submitted to the Canadian Human Rights Commission, the
applicant alleges discrimination in employment from the end of July 1999
onwards by the Farm Credit Corporation, now Farm Credit Canada (the
respondent), based on his race, national or ethnic origin and family status
contrary to section 7 of the Act. The applicant maintains that he applied for
four positions with the respondent and was not hired for any of them.
III. Decision
under review
[11]
The Tribunal’s decision dated June
21, 2005, dismissed the applicant’s complaints.
IV. Relevant
Statutory Provisions
|
18.1 (1) An application for
judicial review may be made by the Attorney General of Canada or by anyone
directly affected by the matter in respect of which relief is sought.
. . .
|
18.1 (1) Une demande de
contrôle judiciaire peut être présentée par le procureur général du Canada ou
par quiconque
est directement touché par l’objet de la demande.
[…]
|
|
Powers of Federal Court
(3) On an application for
judicial review, the Federal Court may
|
Pouvoirs de la Cour
fédérale
(3) Sur présentation d’une
demande de contrôle judiciaire, la Cour fédérale peut:
|
|
(a) order a federal
board, commission or other tribunal to do any act or thing it has unlawfully
failed or refused to do or has unreasonably delayed in doing; or
|
a) ordonner à l’office fédéral en cause d’accomplir
tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a
retardé l’exécution de manière déraisonnable;
|
|
(b) declare invalid
or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
|
b) déclarer nul ou illégal, ou annuler, ou infirmer
et renvoyer pour jugement conformément aux instructions qu’elle estime
appropriées, ou prohiber ou encore restreindre toute décision, ordonnance,
procédure ou tout autre acte de l’office fédéral.
|
|
Grounds of review
(4) The Federal Court may
grant relief under subsection (3) if it is satisfied that the federal
board, commission or other tribunal
. . .
|
Motifs
(4) Les mesures prévues au
paragraphe (3) sont prises si la Cour fédérale est convaincue que
l’office fédéral, selon le cas:
[…]
|
|
(d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
|
d) a rendu une décision ou une ordonnance fondée sur
une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans
tenir compte des éléments dont il dispose;
|
V. Analysis
Standard
of review
[12]
The first step is to establish the
standard of review applicable to this case. An analysis of the four factors set
out in Dr Q. v. College of Physicians and Surgeons of British Columbia,
[2003] 1 S.C.R. 226 determines the standard that this Court must use in similar
situations.
(i)
privative clause/right of
appeal
[13]
The Act lacks both a privative
clause and a right of appeal. Therefore, this factor is neutral.
(ii) expertise
of tribunal
[14]
The Act entrusts the hearing of
complaints of violations of human rights to specialized persons (subsections
48.1(1), (2), (3)). The special procedure at both the inquiry and mediation
levels requires experience and expertise in, and sensitivity to, human rights.
This factor calls for considerable deference.
(iii)
purpose of statute
[15]
The purpose of the Act is to
ensure that human rights are respected. The Tribunal entrusted with a complaint
or complaints must assess the evidence, i.e. the credibility of witnesses, and
apply recognized legal principles to determine whether there has been
discrimination in employment. This factor calls for less deference.
(iv)
nature of question
[16]
If the question is one of pure
fact, greater deference will be accorded to the disputed decision. If the
question is one of mixed law and fact, less deference will be shown. Last, if
the question is one of law, the Court dealing with an application for judicial
review will accord no deference.
[17]
Following a pragmatic and
functional analysis, the Court adopts the standard of review of patent
unreasonableness on the first issue, since it essentially deals with questions
of fact, assessing witnesses and determining credibility (Quigley v. Ocean
Construction Supplies Ltd., Marine Division, 2004 FC 631, [2004] F.C.J. No
786 (F.C.) (QL)).
[18]
Regarding the other two issues,
breaching the rules of natural justice and procedural fairness, it is not
necessary to carry out a pragmatic and functional analysis. According to the
case law, the Court must intervene where the applicant establishes that one of
these two principles has been breached (Ha v. Canada (Department of
Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195 (F.C.A.); Housen
v. Nikolaisen, [2002] 2 S.C.R. 235).
Did
the Tribunal make errors of fact regarding the four positions?
[19]
I will first review the complaint
regarding the position of French as a second language teacher, followed by the
complaints regarding the other three positions.
[20]
The Tribunal correctly identified
the legal principles that must be followed in order to establish a prima
facie case of discrimination in the employment context. The complainant
must prove that he was qualified for the particular employment, that he was not
hired and that someone no better qualified but lacking the distinguishing
feature that is the gravamen of the complaint (i.e. race, colour, etc.)
subsequently obtained the position (Shakes v. Rex Pak Limited (1982), 3
C.H.R.R. D/1001).
[21]
The Tribunal acknowledged that the
applicant had established a prima facie case of discrimination
regarding the position of French as a second language teacher. I agree with
this finding. The applicant had obtained the highest score on the written
examination. He and four other candidates were then invited for an interview.
However, he ranked equally with another candidate after the interview.
[22]
The Tribunal shifted the burden to
the respondent to provide a reasonable explanation for its decision to select
the other person for the position.
[23]
Citing the relevant case law, the
Tribunal examined the evidence to detect whether or not it carried “the subtle
scent of discrimination” (Premakumar v. Air Canada, D/03/02,
2002/02/04).
[24]
The Tribunal assessed the events
concerning the confusion surrounding a cover letter that accompanied the
applicant’s resumé. At paragraph 58 of its decision, the Tribunal states:
.
. . In light of these facts, I cannot conclude that the Respondent intended to
exclude the Complainant from the selection process at this stage. The
Respondent provided a reasonable explanation of the conduct complained of. In
fact, I find that the Complainant is largely, if not totally, responsible for
the imbroglio that followed the submission of his resumé for this position. If
he had followed the instructions that were clearly set out in the vacancy
announcement, and had filed his resumé with Ms. Kenny as requested, he would
have avoided a lot of frustration.
[25]
After a thorough analysis of the
respondent’s explanation as to why it give the position to someone other than
the applicant, the Tribunal found the explanation to be reasonable, and stated
that there was no evidence that the applicant’s race or ethnic origin was a
factor. In paragraph 66 of the decision, citing Folch v. Canadian Airlines
International (1992), 17 C.H.R.R. D/261, D/303), the Tribunal indicates:
However, I must point out that it is not the Tribunal's
role to review the merits of the Respondent's choice and determine whether it
was correct. There is a subjective element in every hiring process. The fact
that the Respondent used subjective criteria in assessing the candidates, and
that it may have erred in applying those criteria, does not in itself render
its decision subject to attack on the basis that it is discriminatory.
Did
the Tribunal make patently unreasonable errors regarding the other three
positions?
[27]
It is clear from the evidence that
the applicant did not have the necessary qualifications for the position of
bilingual communications officer. Although his English is acceptable, he failed
to establish that his English skills, while good, were at the level required
for the position. Again, the Tribunal assessed the evidence and correctly
applied the burden of proof, citing the relevant case law. As for the position
of diversity advisor, the respondent explained why it did not hire the
applicant, and he chose not to cross-examine the witness who had made that
decision. The Tribunal therefore found that the applicant did not have the academic
qualifications or the necessary experience required for the position. The same
finding was made regarding the position of translator.
[28]
The Court does not intend to
intervene because there is no evidence of patently unreasonable errors. The
Tribunal’s decisions concerning the four positions are well-reasoned, the
analysis is thorough and supported by the evidence.
Did
the Tribunal breach the rules of natural justice by appearing impatient or by
allowing the respondent more latitude than the applicant at the hearings?
[29]
The Court reviewed the transcript
of the hearings held from July 2 to 7, 2005, and notes that the Tribunal gave
the applicant every opportunity to present his evidence and to cross-examine
the witnesses. At the beginning of the hearing, the Tribunal explained to the
applicant the procedure to be followed. The Tribunal was patient and tolerant.
It even allowed the applicant to submit evidence of his claim concerning the
position of bilingual communications officer, even though this claim was not
mentioned in the applicant’s complaint. The Tribunal did intervene several
times during the hearings, but only to explain to the applicant the difference
between an argument and how he had to present his evidence; it explained both
the procedure and the law.
[30]
The Tribunal was careful to avoid
situations that could be detrimental to the applicant. It ensured that the
proceeding was fair and equitable for both parties, not just the applicant.
Therefore, the Court rejects the applicant’s allegations that the Tribunal
breached the rules of natural justice.
Did
the Tribunal deny the applicant procedural fairness by displaying bias in its
decision-making?
[31]
An allegation of bias is a serious
allegation (Arthur v. Canada (Attorney Genera) 2001 FCA 223, [2001]
F.C.J. No 1091 (F.C.A.) (QL). The Court of Appeal stated the following at
paragraph 8:
.
. . It challenges the integrity of the tribunal and of its members who
participated in the impugned decision. It cannot be done lightly. It cannot
rest on mere suspicion, pure conjecture, insinuations or mere impressions of an
applicant or his counsel.
[32]
In Bell Canada v. Canadian
Telephone Employees Association, [2003] 1 S.C.R. 884, the Supreme Court of
Canada stated the following about the requirements of independence and
impartiality:
. .
. Both are components of the rule against bias, nemo debet esse judex in
propria sua causa. Both seek to uphold public confidence in the fairness of
administrative agencies and their decision-making procedures. It follows that the
legal tests for independence and impartiality appeal to the perceptions of the
reasonable, well‑informed member of the public. Both tests require us to
ask: what would an informed person, viewing the matter realistically and
practically, and having thought the matter through, conclude?
(Emphasis
in the original)
[33]
After reviewing the applicant’s
allegations and the Tribunal’s decision, the Court finds that the applicant’s
allegations of bias are essentially a criticism of the Tribunal for not deciding
in his favour.
[34]
The Court is satisfied that an
informed person, viewing the decision and the transcripts realistically and
practically, would conclude that the allegations of bias are unfounded.
[35]
The Tribunal was faced with
contradictory evidence. The Tribunal performed its task well: it assessed the
credibility of the witnesses, applied the relevant case law and disposed of
each of the applicant’s complaints in a clear and precise manner.
JUDGMENT
THE
COURT ORDERS that the application for
judicial review be dismissed. In light of the circumstances, the respondent
shall have its costs, fixed at $2,000.
“Michel Beaudry”
Certified true translation
Mary Jo Egan, LLB
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