Date: 19980406
Docket: T-792-96
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
- and -
SHIV CHOPRA
Applicants
- and -
DEPARTMENT OF NATIONAL HEALTH AND WELFARE
Respondent
REASONS FOR ORDER
RICHARD J.:
BACKGROUND
[1] This is an application under section 18.1 of the Federal Court Act1, to review and set aside a decision of the Canadian Human Rights Tribunal (Tribunal), dated March 8, 1996, wherein the Tribunal dismissed Dr. Chopra's complaint alleging that the respondent was guilty of a discriminatory practice on the basis of race, colour, and/or national or ethnic origin, contrary to section 7 of the Canadian Human Rights Act (Act).
[2] Dr. Chopra filed the following complaint, dated September 16, 1992, with the Canadian Human Rights Commission:
| The Department of National Health and Welfare has discriminated against me by treating me in an adverse differential manner because of my race, colour and national or ethnic origin contrary to section 7 of the Canadian Human Rights Act. |
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[3] Pursuant to subsection 49(1) of the Act, the Tribunal was established to inquire into the complaint.
[4] According to subsection 50(1) of the Act, the mandate of the Tribunal is to inquire into the complaint in respect of which it was appointed and to give all the parties a full and ample opportunity to appear before the Tribunal, present evidence and make representations to it.
[5] The Tribunal defined the issues as follows:
| In order for the Complainant and/or the Commission to be successful in their claim, they must first establish a prima facie case of discrimination, that is, they must produce sufficient evidence to justify a finding in their favour, in the absence of contrary evidence by the Respondent.2 The Respondent chose not to call evidence beyond what was submitted in cross-examination, and it argued that a prima facie case had not been demonstrated by the Complainant and Commission. Accordingly, it is the task of this Tribunal to determine whether the evidence of the Department's treatment of Dr. Chopra over the years of his employment, together with the evidence of management's views of him, constitute a prima facie case of discrimination against Dr. Chopra contrary to s. 7 of the Canadian Human Rights Act. |
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| It is not enough to find that the Respondent treated the Complainant unfairly over a number of years: in order for a Tribunal to conclude that there was a breach of the Act and to grant a remedy, it must first find that a prohibited ground under the Act was a factor in the conduct of the Respondent. A prohibited ground under the Act need not be the sole or even primary motivation, but it must be of some significance3. |
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[6] The decision and order of the Tribunal reads as follows:
| As we have already observed, in terms of what is reasonable and fair treatment of employees generally, we would not hesitate to conclude on the balance of evidence that, at least until the late 1980s, Dr. Chopra was treated badly. The Department's inaction toward Dr. Chopra from the 1970s through the mid 1980s, increasingly discouraged him. As a result, by the time he applied for a transfer to the Bureau of Veterinary Drugs in 1987, he felt his opportunity for experience at entry-level management positions was thwarted; he had become bitter and suspicious. However, reviewing the facts with the objectivity that Dr. Chopra could not himself be reasonably expected to muster, we conclude that the equivocal and even contradictory conduct of management discloses insensitivity to employees generally and a failure to have a clear approach toward employee career development and that it is not the result of differential treatment prohibited by the Canadian Human Rights Act. |
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| We note that counsel for the Department claimed that the complaint was baseless, frivolous and vexatious and asked for solicitor-client costs against the Complainant and the Commission. We mention this matter only to reject it entirely: Dr. Chopra's feelings of mistreatment were not at all unreasonable, his pursuit of his complaint was understandable and he comported himself with dignity. The Canadian Human Rights Act contains no provisions for awarding costs, neither party-and-party costs nor solicitor-client costs. In any event, we would not award either type of costs even if the Act gave us the power to do so. |
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| Accordingly, and despite our concerns about the fairness of treatment of Dr. Chopra and his understandable fear of discrimination, this complaint is dismissed. |
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ISSUES
[7] The applicant, the Canadian Human Rights Commission, raised the following issues:
| 1) The Tribunal erred in failing to find that the applicants established a prima facie case. |
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| 2) The Tribunal erred in both fact and law when it failed to apply the correct test in determining whether cultural bias was a factor that influenced the Respondent's conduct. |
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| 3) The Tribunal erred in disallowing the Applicants from adducing general evidence of a systemic problem as circumstantial evidence to infer that discrimination probably occurred in this particular case as well. |
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| 4) The Tribunal erred when it adopted the decisions and reasons of the Public Service Commission Boards without reservation. |
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| 5) The Tribunal erred when it apparently blamed the Applicant Shiv Chopra for asserting his legal rights4. |
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STANDARD OF REVIEW
[8] The Trial Division may grant relief on an application for judicial review if it is satisfied, amongst other grounds, that the tribunal erred in law in making a decision or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[9] On questions of law, the standard to be applied when reviewing a decision of the Canadian Human Rights Tribunal is that of correctness. Reviewing courts will defer on fact finding5.
ANALYSIS
[10] The burden of proof is on the complainant and the commission to establish the prima facie case of discrimination.
[11] It is sufficient to prove discrimination if that was one of the factors that influenced the respondent in refusing the applicant the position; it does not have to be the sole or primary reason for that decision.
[12] In the case of Basi v. Canadian National Railways Co. (1988), 9 C.H.R.R. D/5029 (H.R.T.), at paragraphs 38496, 38497 and 38498, the Tribunal states:
| Although I have reached the conclusion that Mr. Basi was discriminated against by the CNR, I am not able to say that this discrimination was the sole reason why he did not receive the position in question; nor, can I say that he would have received the position but for the discrimination. |
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| However, it is sufficient to reach a conclusion that discrimination was one of the factors that influenced the employer in refusing Mr. Basi the position; it is not incumbent on me to determine that it was the sole or primary reason for that decision [see Almeida v. Chubb Fire Security Division (1984), 5 C.H.R.R. D/2104 at para 17840-17841]: |
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| ... it is sufficent for a complainant to establish that the prohibited ground of discrimination constituted only one among a number of factors leading to the decisions which are the subject matter of the complaint.... |
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| although the prohibited ground of decision making must have some causal role or influence in the decision made, it need not be the exclusive cause of or influence on the decision. Indeed, as is suggested in Bushnell itself, it is not necessary to establish that the prohibited ground was the main reason for the decision in question. |
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| I cannot categorically say that Mr. Basi would have received the position but for the discrimination; however, I can say that the circumstantial evidence satisfies me that discrimination played a part in the employer's failure to offer it to him. |
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[13] The applicant, the Canadian Human Rights Commission attempted to lead circumstantial evidence to show that visible minorities are not represented according to their availability at certain levels. It was not presented to prove systemic discrimination under section 10 of the Act, but in support of an individual complaint.
[14] The Tribunal determined that the applicant was prohibited from adducing any evidence in an attempt to illustrate a pattern of systemic discrimination on the part of the respondent because:
| (i) it would have been prejudicial to the respondent; and |
| (ii) it would have allowed the applicant to advance a claim which he was prohibited from arguing. |
[15] There was no evidence of actual prejudice to the respondent.
[16] Counsel for the Commission explained that it was not seeking to amend the complaint to include another ground or another section of the Act.
[17] In respect of the claim of discrimination by Dr. Chopra, counsel relied on the text "Proving Discrimination in Canada" by Beatrice Vizkelety (Carswell, 1987). Dealing with Circumstantial evidence, the author states, at page 140:
| In cases such as these, where 3direct evidence3 of illegal behaviour is unavailable, discrimination may be established by way of inference, through the use of 3circumstantial evidence3. This latter type of evidence, which may be likened to a jigsaw puzzle, usually depends on a series of facts, each of which would by itself be insufficient to permit an inference of discrimination but when combined may justify it. |
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[18] The author states, at page 156:
| By contrast to evidence of specific conduct or misconduct on the part of the respondent at other times, a complainant may seek to introduce evidence pertaining to general personnel practices or to the overall composition of the employer's workforce, ... for the purposes of demonstrating that the respondent is engaging in a pattern or standard practice of discrimination. If proved, the fact finder will then be asked to infer from such general circumstances and other supporting evidence that discrimination probably occurred in the complainant's particular case as well. |
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[19] At page 160, the author refers to the Blake decision6 where the Board agreed to hear statistical evidence regarding the treatment of the applicants in general.
[20] The Board, in the Blake case, fully reviewed the law in respect of the introduction of statistical evidence in human rights cases. The Board noted, at paragraph 20094:
| Often discrimination is not overt. Rarely does an employer expressly state that it refused to hire a qualified applicant because she was a woman. Acts of discrimination and intent to discriminate are often proved by circumstantial evidence (Re: Windsor Board of Education and Federation of Women Teachers' Associations of Ontario (1982), 3 L.A.C. (3d) 426, at 430). "Statistical evidence is an important tool for placing seemingly inoffensive employment practices in their proper perspective" (Senter v. General Motors Corp., 532 F. 2d 511 (1976)) ... |
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[21] Under the heading "Circumstantial Evidence", the Board continued:
| ... Statistics show patterns of conduct rather than specific occurrences. Statistics represent a form of circumstantial evidence from which inferences of discriminatory conduct may be drawn (Davis v. Califano, 613 F. 2d 957 (1979) at 962). It is within the rubric of "circumstantial evidence" that statistical evidence in human rights cases should be considered. Like all circumstantial evidence, statistics are to be considered along with all surrounding facts and circumstances (International Brotherhood of Teamsters v. U.S., 97 S.Ct. 1843 (1977), at 1857). [Paragraph 20096] |
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| Statistical evidence may be used in a number of ways to buttress both complainants' and respondents' cases. Statistics may show racial or sexual disparities in decisions to hire, promote (Teamsters, supra; Croker v. Boeing Co. (Vertol Div.), 437 F. Supp. 1138 (1977); Rich v. Martin Marietta Corp., 467 F. supp. 587 (1979)) or dismiss (Ingram v. Natural Footwear Ltd. (1980), 1 C.H.R.R. D/59) employees. They may show disparities between the number of women employed in a particular job and the number of qualified women in the labour market (Offierski v. Peterborough Board of Education (1980), 1 C.H.R.R. D/33; Windsor, supra). They may show that subjective and discretionary decisions by employers are being made in a discriminatory manner ... [Paragraph 20097] |
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[22] The Tribunal erred in disallowing the applicants from adducing general evidence of a systemic problem as circumstantial evidence to infer that discrimination probably occurred in this particular case as well.
CONCLUSION
[23] Accordingly, the decision of the Tribunal is set aside.
[24] The matter is remitted to the Tribunal or, if not available, to a differently constituted Tribunal appointed by the President of the Human Rights Tribunal Panel, to be determined on the basis of the record before this Tribunal augmented by the statistical evidence sought to be introduced by the applicants and by any responding material introduced by the respondent, and following an opportunity to make further submissions.
__________________________
Judge
Ottawa, Ontario
April 6, 1998
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1 R.S.C. 1985, c. F-7.
2 Ontario Human Rights Commission v. O'Malley and Simpsons-Sears, [1985] 2 S.C.R. 536 at 558.
3 This requirement has been stated in a number of cases. See, for example, Balbir Basi v. Canadian National Railway Co. (1988) 9 C.H.R.R. D/5029, at para. 38479: ... However, it is sufficient to reach a conclusion that discrimination was one of the factors that influenced the employer in refusing Mr. Basi the position; it is not incumbent on me to determine that it was the sole or primary reason for that decision.
4 This last ground was not pursued by the applicant at the hearing.
5 Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554.
6 Blake v. Minister of Correctional Services (1984), 5 C.H.R.R. D/2417 (Ont.).
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