[1] Mr. Lincoln brings this application for judicial review from the decision of the Canadian Human Rights Tribunal ("Tribunal") which dismissed his complaint that Bay Ferries Ltd. ("Bay Ferries") discriminated against him contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 ("Act").

BACKGROUND FACTS

[2] At the time of the hearing before the Tribunal Mr. Lincoln was 39 years of age. Upon graduation from high school in 1979 Mr. Lincoln commenced working for Canadian National Marine (later Marine Atlantic Inc., and together referred to as "Marine Atlantic") as an engine room assistant on the ferry ship M.V. Princess of Acadia ("Acadia"). Mr. Lincoln progressed quickly through the ranks at Marine Atlantic. In 1993, he obtained his First Class Marine Engineering Certificate. In 1990, he began to work as a relief chief engineer on the Acadia, which he was entitled to do by virtue of then holding his Second Class Certificate. In total, Mr. Lincoln worked for approximately 17 years in the engine room on the Acadia, including three years as a junior engineer and almost seven years as a chief engineer.

[3] In 1996, Marine Atlantic decided to privatize the Acadia ferry service, as well as a seasonal ferry service which was serviced by the M.V. Bluenose ("Bluenose"). Bay Ferries Ltd. was the successful bidder for these operations. As a result of Bay Ferries acquiring those operations, employment of all Marine Atlantic employees who operated the two ferry services was to be terminated as of March 31, 1997. Bay Ferries would then hire the personnel it needed. A significant number of the personnel hired by Bay Ferries would be former Marine Atlantic employees.

[4] Mr. Lincoln applied for one of four chief engineer positions available for the Acadia and the Bluenose. Bay Ferries intended to implement significant cuts in staffing levels, so fewer positions were available than was the case when Marine Atlantic operated the two ferries.

[5] Bay Ferries hired an agency to do the initial screening of applicants. Mr. Lincoln was ranked fourth out of four by the agency for a chief engineer position on the Acadia. All of the qualified candidates for both ferries were then interviewed by representatives of Bay Ferries. After the interview process Mr. Lincoln was not offered a chief engineer position on the Acadia or the Bluenose. He was instead offered a position as a relief chief engineer on the Bluenose. Mr. Lincoln testified that he was told that there was a future for him with Bay Ferries, that he was wanted on the team, that Bay Ferries was planning to bring in a high-speed ferry service in about a year and a half, and that Mr. Lincoln would be given a chief engineer's position on that service. Bay Ferries, through its representatives, testified before the Tribunal that the relief chief position offered to Mr. Lincoln would give him wider experience working under an experienced engineer, on another type of vessel, and on a vessel which operated under international regulations where the intended high-speed ferry service would operate. This period would, in the view of Bay Ferries, provide additional seasoning for Mr. Lincoln.

[6] Mr. Lincoln rejected the offer of employment as a relief chief engineer. He felt he was overqualified, and that the offer was insulting. He then filed a complaint with the Canadian Human Rights Commission alleging that Bay Ferries discriminated against him by refusing to employ him because of his colour and race, contrary to section 7 of the Act. Mr. Lincoln is a person of colour who was born in Trinidad.

[7] It had initially been the plan of Bay Ferries to cut the number of chief engineers from 4 to 2 for each vessel, and to hire for each vessel one chief engineer from the ex-Marine Atlantic pool of candidates and one from outside Marine Atlantic. This was to signal "change at the top". After the initial interviews were held, Bay Ferries planned to hire Mark Lewis and Gary Smith (not former Marine Atlantic employees) as engineers for the Acadia, and Chris Kenney and Hans Hausgaard (both ex-Marine Atlantic) for the Bluenose. Hans Hausgaard was not seeking long-term employment, therefore he was to be hired for one season only, following which Mr. Lincoln would take his place.

[8] When Mr. Lincoln declined the offered employment on April 1, 1997, Bay Ferries had to move quickly as it was taking over the ferry service that day, and the Acadia had to run on April 4, 1997. Bay Ferries learned that Rob Hamilton, a person known to, and highly regarded by, the general manager of Bay Ferries was now interested in a chief engineer position on the Acadia. After interviewing Mr. Hamilton, Bay Ferries hired him. Bay Ferries then had Chris Kenney and Gary Smith on the Bluenose, and Mark Lewis and Rob Hamilton on the Acadia. Mr. Hausgaard was, in the end, not offered a position because he was never a long-term prospect.

THE DECISION OF THE TRIBUNAL

[9] The Tribunal observed that, as a matter of law, Mr. Lincoln must establish a prima facie case of discrimination, to which Bay Ferries may respond. The Tribunal applied the three-part test developed in Shakes v. Rex Pak Limited (1981), 3 C.H.R.R. D/1001 for determining whether a prima facie case of discrimination had been established by Mr. Lincoln.

[10] Applying the Shakes test, the Tribunal concluded that Mr. Lincoln's complaint depended on whether he was more qualified than the successful candidates. This led to the question of what Bay Ferries was looking for in a chief engineer. The Tribunal looked to the Bay Ferries' newspaper advertisement for engineers, the interview agenda, and the evidence of the criteria Bay Ferries used in selecting its engineers. Both Mr. Cormier and Mr. Stevenson, the representatives of the Bay Ferries responsible for interviewing the applicants, agreed that hands-on experience was an important factor in that a chief engineer had to have a strong technical background. However, this was not an overriding factor. Bay Ferries said that it also wanted chief engineers who would be able to handle an abrupt shift in management styles, and engineers who could work on any vessel operated by Bay Ferries.

[11] The Tribunal found that Bay Ferries, in order to achieve these goals, looked to candidates with broad experience on different kinds of vessels and who had experienced different management styles. Bay Ferries also looked for good communication skills and an ability to handle change.

[12] The Tribunal concluded that Mr. Lincoln, when comparing himself to the successful candidates, was too narrowly focussed on his experience on the Acadia. Mr. Lincoln had the most experience of all of the candidates on the Acadia, but he had no experience when it came to working on other vessels for other companies. Thus, his ability to adapt was unknown. The Tribunal found that Bay Ferries had a broader focus when it came to experience and education than did Mr. Lincoln. Bay Ferries had to do things differently to operate profitably, it required senior management to have broad experience and skills in order to bring or to adapt to change.

[13] The Tribunal then considered whether the selection criteria that Bay Ferries put forward as the rationale for its hiring decision were reasonable or, rather, were a pretext to cover up discriminatory conduct in not hiring Mr. Lincoln. The Tribunal found that Bay Ferries had been consistent in its evidence as to why it preferred the successful candidates over Mr. Lincoln. The Tribunal also found that Rob Hamilton, although recently employed by Marine Atlantic, had left its employ because he did not agree with Marine Atlantic's management policies. As such, he could be viewed as an outsider, and amenable to change.

[14] With respect to an interview question referring to the proper operation of watertight doors, the Tribunal found that another candidate, Mr. Lewis, gave an answer illustrating more flexibility, while Mr. Lincoln's answer indicated inflexibility.

[15] With respect to working as relief chief engineer on the Bluenose, the Tribunal found that a season of employment would give Mr. Lincoln experience on a different type of vessel, on an international route, with an experienced chief engineer who would give him an opportunity to observe a different way of doing things.

[16] The operational objectives of Bay Ferries were found to be legitimate and necessary to operate the two ferry services successfully. The selection criteria were also found to be necessary and reliable, and not a subterfuge for discriminatory conduct. Mr. Lincoln was found to be the least qualified of the successful candidates for the position of chief engineer. As a result, it was concluded that Mr. Lincoln had not raised a prima facie case of discrimination, or to have shown that the explanation given by Bay Ferries for the decision not to hire Mr. Lincoln was a subterfuge in order to hide discriminatory actions.

THE ERRORS ALLEGED

[17] On Mr. Lincoln's behalf it is alleged that the Tribunal erred in law and in fact. The error in law is said to be that the Tribunal applied the incorrect test in order to determine whether Mr. Lincoln had established a prima facie case of discrimination. The errors in fact are that the Tribunal found that:

1. Mr. Hamilton left Marine Atlantic in 1995, after working there for five years, because he did not like the Marine Atlantic management policy.

2. Mr. Stevenson felt that Mr. Lincoln's response on the watertight door interview question showed inflexibility, and perhaps resistance to change on a safety issue.

[18] Mr. Lincoln states that there is no evidence to support either finding of fact. The significance of these factual errors is said to be that the Tribunal went on from those erroneous findings to conclude that the selection criteria put forward by Bay Ferries was not a pretext to cover its discriminatory conduct.

THE STANDARD OF REVIEW

[19] In International Longshore & Warehouse Union (Marine Section), Local 400 v. Oster, [2002] 2 F.C. 430 (T.D.) my colleague Mr. Justice Gibson carefully analysed the standard of review to be applied to decisions of the Tribunal. At paragraph 22 of his reasons he wrote:

Applying the guidance provided by the Supreme Court in Pushpanathan, and more recently in Baker v. Canada (Minister of Citizenship and Immigration) [[1999] 2 S.C.R. 817], I am satisfied that the standard of review of decisions of the Tribunal in this matter is correctness in respect of questions of law, reasonableness simpliciter in respect of questions of mixed law and fact, and patent unreasonableness in respect of "fact-finding and adjudication in a human rights context". On the facts of this matter, I find the standard of review of questions of law and questions of fact-finding and adjudication in a human rights context by the Tribunal not to have been modified by recent decisions of the Supreme Court of Canada or of the Federal Court Trial Division regarding the pragmatic and functional approach to the determination of standard of review.

[20] This standard was recently adopted by Madam Justice Layden-Stevenson in Canada (Attorney General) v. Canada (Canadian Human Rights Commission), [2003] F.C.J. No. 117 at paragraph 17. I too adopt the analysis and conclusion of Mr. Justice Gibson in Oster as to the appropriate standard of review.

ANALYSIS

(i) Did the Tribunal err in law by applying the wrong test for determining if Mr. Lincoln established a prima facie case of discrimination?

[21] Whether an administrative tribunal applies the proper test to a given set of facts is a question of law. I accept, therefore, that the selection of the appropriate test to determine the existence of a prima facie case is to be reviewed on the standard of correctness.

[22] There exist two tests which may be applied in order to determine whether a prima facie case of discrimination has been established. The first test was enunciated in Shakes, supra. There a Board of Inquiry operating under the Ontario Human Rights Code wrote, at paragraph 8918, that:

Proof of discrimination is almost invariably by circumstantial evidence. [...] the Commission usually establishes a prima facie case by providing (a) that the complainant was qualified for the particular employment; (b) that the complainant was not hired; and (c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint (i.e., race, colour, etc.) subsequently obtained the position. If these elements are proved, there is an evidentiary onus on the respondent to provide an explanation of events equally consistent with the conclusion that discrimination on the basis prohibited by the Code is not the correct explanation for what occurred.

[23] The second test was articulated by a Tribunal operating under the Act in Israeli v. Canadian Human Rights Commission and Public Service Commission, (1983) 4 C.H.R.R. D/1616 as follows at paragraph 13865:

The requirements for a prima facie case of discrimination also seems to be relatively fixed in the case law. The complainant must show: 1. that he belongs to one of the groups which are subject to discrimination under the Act eg. religious, handicapped or racial groups; 2. that he applied and was qualified for a job the employer wished to fill; 3. that although qualified he was rejected; and 4. that thereafter the employer continued to seek applicants with complainant's qualifications. See in this regard McDonnell Douglas supra at p. 802. See also Offierski v. Peterborough Board of Education supra at para. 269 and Ingram v. Natural Footwear supra at paras. 469 & 470.

[24] In Canada (Department of National Health and Welfare) v. Chander, [1997] F.C.J. No. 692 (F.C.T.D.) Mr. Justice Muldoon considered when each test applies. After setting out each test he wrote at paragraphs 35, 36 and 37:

35 Each applies to a different situation. Shakes applies to situations where someone other than the complainant is hired. Israeli applies when the employer does not hire the complainant and then continues to look for employees. The applicant submits that the two members erred because it found that there was no evidence led for the third part of the Shakes test and still found that a prima facie case had been made out.

36 The majority members made no such error. They applied the tests as follows (AR, vol. XIII: p. 2058):

The evidence is that there were no other candidates to compare to Drs. Joshi and Chander. Dr. Joshi and Dr. Chander competed in the closed or internal competition and were the only two candidates for positions in that competition. The complainants were qualified for the position sought and after notifying the complainants by letter dated the day of the interview that they were not qualified, the respondent went on to interview candidates with the same qualifications as the complainants in an open or external competition. Drs. Joshi and Chander were not compared with the open competition candidates.

The applicant's position is that whether the position was filled or not does not matter: "The real question is who was chosen to fill that position" (AR, vol. XVII: p. 2357). The applicant then states the elements for Shakes were not met. This begs the question. The tribunal found that the two respondents were not compared with the open competition candidates. Therefore the only relevant time for assessment is the closed competition. Ergo, the Israeli test applies.

37 As the above excerpt illustrates, the majority understood this distinction. In their conclusion, they applied the Israeli test: "We conclude that ample evidence was provided to establish a prima facie case of discrimination. Each complainant was qualified for the job but neither was hired. The respondent continued to seek applicants with the qualifications presented by the complainants." (AR, vol. XIII: p. 2059).

[25] This was subsequently followed by Mr. Justice Gibson in Oster, supra where at paragraph 33 Mr. Justice Gibson observed that the Shakes test applies where someone other than the complainant was hired.

[26] This conclusion is consistent with later decisions of the Tribunal in Premakumar v. Air Canada, [2002] C.H.R.D. No. 3 and Martin v. Saulteaux Band Government (2002), 43 C.H.R.R. D/12. In those cases the Tribunal referred to the test in Israeli as being a modification of the Shakes test in order to address situations where the complainant is not hired and the respondent continues to look for suitable candidates.

[27] In the present case, Mr. Lincoln argues that "the Israeli test is preferable, because the question should be asked why the employer resumed its search efforts when it already had somebody (the Complainant) who was qualified for the job". This submission, in my view, falls short of establishing that the wrong test was applied by the Tribunal.

[28] Here, interviews for the Acadia were held on March 14, 1997. Five applicants for chief engineer were interviewed at that time, being Mark Lewis, Keith Holt, Timothy Lincoln, Razi Zaidi and Edwin Millar. Messrs. Lewis, Lincoln and Zaidi were all former chief engineers on the Acadia. Originally, Robert Hamilton was scheduled to be interviewed, but he declined to be interviewed. Those interviewed for the Bluenose were Chris Kenney, Hans Hausgaard and Brian Warren, all former chief engineers on the Bluenose, and Gary Smith who at one time had worked on the Bluenose, but who had left Marine Atlantic in 1993. The interviews in respect of the Bluenose were held on March 20, 1997.

[29] Mr. Hamilton had been courted by Mr. Cormier from the beginning for a chief engineer position because Mr. Hamilton had worked for Mr. Cormier in the past. However, Mr. Hamilton did not apply for a position and, as noted, did not attend an interview scheduled for him. However, subsequently, during the process of checking a reference for another person applying for another position, an employee of Bay Ferries contacted Mr. Hamilton. The Tribunal found that during this conversation Mr. Hamilton learned of the nature of the transition from Marine Atlantic to Bay Ferries, and what Bay Ferries plans were. Mr. Hamilton then advised that he would be interested in coming in for an interview.

[30] Mr. Cormier and Mr. Stevenson interviewed Mr. Hamilton on April 3, 1997 and offered him a position of chief engineer on the Acadia. Mr. Hamilton accepted this offer. All of this was in the context of Bay Ferries having to hire a crew for the Acadia between April 1 and April 4, 1997 when Bay Ferries was required to operate the Acadia on her route.

[31] In this factual context it cannot be said that the employer did not hire Mr. Lincoln but rather went on to look for other suitable candidates. Bay Ferries was required to hire two chief engineers for the Acadia by April 4, 1997. It only did so following the interview process by hiring two individuals other than Mr. Lincoln for the Acadia, and two individuals for the Bluenose. Bay Ferries was interested in Mr. Hamilton from the outset, as evidenced by the fact an interview was scheduled for him which he did not attend. No final hearing decision was made with respect to any candidate until after Mr. Hamilton had been interviewed, as evidenced by the fact no offer was made to Mr. Hausgaard. The situation was not analogous to that in Chander where following a closed competition further candidates are interviewed. The Tribunal did not err by applying the Shakes test to determine if in the premises a prima facie of discrimination was made out on the basis that the four persons hired were no better qualified than Mr. Lincoln.

[32] Moreover, I note that if the Tribunal had applied the Israeli test, Mr. Lincoln would have been required to establish that after rejecting Mr. Lincoln, Bay Ferries continued to seek applicants with his qualifications. The Tribunal found that Mr. Lincoln was the least qualified of the successful candidates and that Bay Ferries sought candidates with additional qualifications with respect to experience and adaptability. These findings were fatal to Mr. Lincoln's claim.

(ii) Did the Tribunal make the errors of fact asserted?

[33] Whether the tribunal erred in first finding that Mr. Stevenson concluded that Mr. Lincoln's answer to the watertight door question showed inflexibility and perhaps resistance to change, and also erred in finding that Mr. Hamilton left Marine Atlantic because he did not like its management policies, are both questions of fact. Those findings are therefore to be reviewed on the standard of patent unreasonableness.

(a) Mr. Stevenson's conclusion about the watertight door answer

[34] The Tribunal said the following with respect to the watertight door issue at paragraph 33:

Mr. Cormier and Mr. Stevenson were concerned about Mr. Lincoln's response on this question. In their opinion, the practice could not be justified. Mr. Stevenson went further and categorically stated that ventilation and cooling is not a reason for keeping the watertight doors open. This was a serious safety issue and for Mr. Stevenson, Mr. Lincoln's answer showed a lack of understanding of the purpose of watertight doors. He also thought that Mr. Lincoln took too strong a position of wanting to defend this practice. This indicated that Mr. Lincoln may not initially be receptive to change. This could be a problem because of the need facing Bay Ferries to manage a major change in operational practices.

[35] Mr. Lincoln says that there is no evidence to support the contention that Mr. Stevenson thought that Mr. Lincoln's answer to the watertight doors question showed he was inflexible and perhaps resistant to change. Mr. Lincoln says that, to the contrary, Mr. Stevenson testified that Mr. Lincoln was showing flexibility. Reliance is placed upon this portion of Mr. Stevenson's cross-examination:

Q. I understand. You obviously disagree with Mr. Lincoln, and I understand the basis of your disagreement, but don't mistake me. I am just looking at it and saying that Mr. Lincoln was looking at the same thing and coming to a different conclusion.

A. Yes.

Q. You disagree with the conclusion-

A. Yes.

Q. -but nevertheless, [he] clearly had a knowledge of the regulation and was just providing a point of view which you didn't agree with?

A. Absolutely.

Q. And unlike many people, he has a view. You challenged it. He defended it.

A. Yes.

Q. What's the matter with that?

A. Nothing.

Q. And at the end of the interview, he-as you heard Mr. Lincoln testify today that he said, "Well, I'm prepared to reconsider my view on the door." Can you say that he didn't say that?

A. I can't say that he did. I can't say that he didn't.

Q. Okay.

A. It's not my recollection.

Q. Okay.

A. Either way.

Q. Fair enough.

So, if we accept Mr. Lincoln's recollection then, we have him disagreeing with your view on something where it may have been open to some debate, and then showing flexibility at the end?

A. I suspect, yes. That would be reasonable to say. I don't think that's untrue.

[36] In response, Bay Ferries states that if any error occurred, it was that it was Mr. Cormier, not Mr. Stevenson, who made the statement that Mr. Lincoln's answer to the watertight door question showed inflexibility and possibly resistance to change.

[37] I am satisfied that this was Mr. Cormier's view. In his direct examination Mr. Cormier testified that:

But overall, Mr. Lincoln was a - had a decent interview. There was a lot of discussion regarding the - I guess the practice of leaving watertight doors open, which concerned us somewhat in that its practice that - it is in our opinion not justifiable. I certainly understand Tim's mind set that it was acceptable with the previous employer, but he took a position, a strong position, of wanting to defend that practice and, again, that - the fact that he was not receptive initially to a change of practice is a concern, was a concern, because we did need to manage a huge change.

[38] During cross-examination Mr. Cormier testified:

I guess some of the things in Tim's interview were indicative of some resistance. The water-tight door issue, I guess, and defending that practice, but we put those things into context and measured every candidate in terms of what they brought in terms of experience, skills, and how they best fit or suited our organization and that's how we came up with the job offers that we did.

[39] I accept the submission of Bay Ferries that what is significant is that this was the belief of one of the two representatives of Bay Ferries responsible for hiring. Any error in naming which of the two persons gave this testimony is not material, particularly where there is no evidence that the other individual responsible for hiring held the opposite view.

[40] With respect to Mr. Stevenson's answer set out above and relied upon by Mr. Lincoln, Mr. Stevenson testified that he could not recall Mr. Lincoln testifying that Mr. Lincoln was prepared to reconsider his view on the doors. His further answer, which Mr. Lincoln relies upon, is predicated upon the proposition that Mr. Stevenson accept that this was what Mr. Lincoln had said. This was a proposition Mr. Stevenson never accepted in his testimony.

(b) Mr. Hamilton and Marine Atlantic's management policies

[41] As noted above, the Tribunal found that Mr. Hamilton, while a recent Marine Atlantic employee, had not agreed with Marine Atlantic's management practices. Mr. Hamilton did not testify before the Tribunal and Mr. Lincoln says that there was no evidence that Mr. Hamilton did not agree with the management practices of Marine Atlantic. I agree that there was no direct evidence on this point.

[42] In response, Bay Ferries points to the following, which was in evidence:

1. Mr. Hamilton experienced various management styles in his employment history. He had worked for Atlantic Towing Inc., an Irving company, for 16 years. Atlantic Towing Inc., according to the evidence, was a no-nonsense corporate culture that Bay Ferries would probably try to emulate.

2. Mr. Hamilton left Marine Atlantic to work for the government of New Brunswick.

3. Mr. Hamilton was an attractive candidate to Mr. Cormier from the outset because the two had worked together before.

4. Even though Mr. Hamilton did not apply for a position, Mr. Cormier scheduled him into the interview schedule.

5. Bay Ferries' plans for operating the ferry service were significantly different from the way Marine Atlantic ran the service.

6. Mr. Hamilton was not interested in the job until a Bay Ferries' employee explained the transition plans to him. Mr. Hamilton then decided to apply for a position as chief engineer.

[43] On this evidence, I conclude that it was not patently unreasonable for the Tribunal to draw the inference that Mr. Hamilton did not agree with the manner in which Marine Atlantic ran the ferry service, and to then conclude that Mr. Hamilton was seen as someone who would favour a change in the management style and culture.

CONCLUSION AND COSTS

[44] I have found that the Tribunal did not err in fact or in law as alleged by Mr. Lincoln. It follows that the application for judicial review will be dismissed.

[45] Bay Ferries seeks costs, and I see no reason why costs should not follow the event. If not agreed, the costs are to be assessed at the low end of column III to Tariff B of the Federal Court Rules, 1998. The low end of column III best reflects, in my view, the complexity of the issues and the amount of work involved.

ORDER

[46] IT IS HEREBY ORDERED THAT:

1. The application for judicial review is dismissed.

2. The applicant shall pay to the respondent its cost of this proceeding. If not agreed to costs are to be assessed at the low end of column III to Tariff B of the Federal Court Rules, 1998.

"Eleanor R. Dawson"

Judge

FEDERAL COURT

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-489-02

STYLE OF CAUSE: Timothy Lincoln v. Bay Ferries Ltd.

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: August 26, 2003

SUPPLEMENTAL SUBMISSIONS

RECEIVED: September 5, 15 and 17, 2003

REASONS FOR ORDER AND ORDER BY

THE HONOURABLE MADAM JUSTICE DAWSON

DATED: October 6, 2003

APPEARANCES:

Colin D. Bryson APPLICANT

John K. Mitchell, Q.C. RESPONDENT

SOLICITORS OF RECORD:

Blois, Nickerson & Bryson

Halifax, Nova Scotia APPLICANT

Stewart McKelvey Stirling Scales

Charlottetown, P.E.I. RESPONDENT

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Lincoln v. Bay Ferries Ltd., 2003 FC 1156

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2003 FC 1156