Date: 20011129
Docket: T-1168-00
Neutral citation: 2001 FCT 1324
Toronto, Ontario, Thursday, the 29th day of November, 2001
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
JANINA SOSNOWSKI
Applicant
- and -
MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
and ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The Applicant's employment with Public Works and Government Services Canada ("PWGSC") was discontinued in July 15, 1995, and, as a result, the Applicant made a complaint under the Canadian Human Rights Act ("the Act") that she was the victim of sex and age discrimination. Upon considering her complaint, the Canadian Human Rights Commission ("the Commission") exercised its discretion under
s.44(3)(b)(i) of the Act and dismissed her complaint. The Applicant seeks judicial review of that decision.
[2] In her complaint, the Applicant outlined a series of events during her employment as a mechanical engineer with PWGSC that led to her placement on surplus status and eventual forced acceptance of an early retirement package. She claimed she received adverse differential treatment in project assignments, in the Reverse Order of Merit (ROM) evaluation, assignment of surplus status, and access to alternative employment within the federal civil service. She alleged that this differential treatment was discriminatory based on her age, 56, and her sex, female.
[3] The Applicant's complaint was referred to conciliation and was not resolved. The Commission subsequently inquired into the complaint and commenced an investigation. It is well-established that neutrality and thoroughness for investigations conducted by the CHRC is required (Grover v.Canada (National Research Council), [2001] F.C.J. No. 1012 (QL) (F.C.T.D.); and Charlebois v. Canada (Canadian Human Rights Commission), [1998] F.C.J. No. 1335 (QL) (F.C.T.D.). The underlying principle is that "procedural fairness requires that the Commission have an adequate and fair basis upon which to evaluate whether there was sufficient evidence to warrant the appointment of a Tribunal"(Miller v.Canada (1996), 112 F.T.R. 195 (F.C.T.D.). Judicial review is warranted where unreasonable omissions or failure to investigate crucial evidence occurs (Slattery v.Canadian Human Rights Commission, [1994] 2 F.C. 574 (F.C.T.D.). The issue is whether the investigation in the present case meets the standard required.
[4] The Investigation Report before the Commission stated in part as follows:
4. The evidence does not support the complainant's allegation that the respondent refused to continue to employ her because of her age or sex. The ROM process was conducted for the purpose of reducing the Air Transportation Division from 7 EN-ENG-04 Project Managers to 2. The 2 successful candidates were very close in age to the complainant, one and four years younger respectively. Of the 5 Project Managers declared surplus, 3 were transferred to other positions within the organization. Project Manager B and E were offered permanent appointments to the positions they held prior to the ROM process. The complainant was not considered for the position offered to Project Manager G because it was located in Ottawa. Of the 2 Project Managers transferred to the Regional Office in October and November 1994, one was training for a position in Kingston, the other, a man and a woman 8 years younger than the complainant, was appointed to a civil engineering position in the Buildings Division. The successful candidate for the latter position was a civil engineer. The evidence shows that during a period of downsizing, the respondent hired 4 younger, mostly female architects, who were given permanent employment status. The duties of an Architect or Project Support Officer are not interchangeable with those of an EN-ENG-04 Project Manager.
...
The Reverse Order of Merit Process (ROM)
30. An examination of the ROM documentation and the PSC Case Report reveals that the complainant's Manager, with the assistance of a Human Resources Officer created a Statement of Qualifications, enumerating the skills a Project Manager needed given the future requirements of the organization. Project Managers were ranked in accordance with their ability to meet these needs. In order to conduct his assessment, the Manager used his personal knowledge of the employees, held discussions with clients, spoke to former supervisors and reviewed the previous performance appraisals. The Performance Appraisals of the 6 male Project Managers for the years 1988-1994 were all favourable with no significant weaknesses reported.
31. The Statement of Qualifications enumerated 14 points covering knowledge, skills and abilities and personal suitability, some points being given more weight than others. The highest rated qualification was the "Ability to consistently deliver a program of diverse and multi-disciplinary projects within specified parameters of scope, quality, time and cost". The complainant received the lowest score 4 (Weak/fair). All the other candidates received a 8 (very good). The Manager explained that all the incumbents demonstrated a consistent ability to deliver projects with the specified parameters with the exception of the complainant who frequently had over runs with project costs and schedules and had difficulty finalizing projects. This was also pointed out to the complainant in her performance appraisals from 1988/1989-1992/1993. The complainant also received the lowest mark (4) in other highly rated qualifications such as the ability to provide consistent and effective team leadership, the ability to deliver high standards of business performance by applying the principles of Market Based Charging, and the ability to maintain a consistently high level of client satisfaction.
(Emphasis added)
Conclusion and Recommendation
...
43. The evidence does not support the complainant's allegation that the respondent refused to continue to employ her because of her age or sex. Due to a proposed airport privatization scheme there was a lack of work and a need to reduce the number of Project Managers. A Reverse Order of Merit assessment was conducted for the purpose of reducing the Air Transportation Division from 7 EN-ENG-04 Project Managers to 2. The 2 successful candidates were very close in age to the complainant, one and four years younger respectively. Given that the complainant never revealed her exact age, it is difficult to attribute the complainant's significantly lower score to her age. Indeed, the third highest score was earned by the oldest candidate and the second lowest score was earned by the youngest candidate.
44. Of the five Project Managers declared surplus, three were transferred to other positions within the organization and the two oldest Project Managers were offered and accepted and ERI. Project Manager B and E were offered permanent appointments to the positions that they had been holding prior to the WFA process. As the incumbents, they were better qualified for these positions than the complainant. The evidence also shows that the complainant was not considered for the position given to Project Manager G, also a mechanical engineer, because it was not located in a geographical area acceptable to the complainant. Of the two Project Managers transferred to the Regional Office in October and November 1994, one was training for a position in Kingston, the other was appointed to a civil engineering position in the Buildings Division. Although the successful candidate for the later position was a man 8 years younger than the complainant, he was a civil engineer whereas the complainant is a mechanical engineer.
45. The evidence shows that during a period of downsizing, the respondent hired four younger, mostly female architects, and two male technologists, who were given permanent employment status. Although one of the Architects had some project management responsibilities, the duties of an Architect or Project Support Officer are not interchangeable with those of an EN-ENG-04 Project Manager. Although the complainant offered to accept a demotion, the respondent was not obliged to accept her offer. It appears that the complainant was under-qualified to manage the Quickstart Runway Project.
46. The only significant amount of overtime was reported by Project Manager B in his capacity as a member of the ADP planning team. The number and size of the complainant's projects, while roughly comparable to those of her male colleagues, probably had more to do with her area of specialization than her age or her sex.
48. I is recommended that the Commission dismiss the complaint because, based on the evidence, the complaint is unfounded.
(Applicant's Application Record, pp. 80-88.)
[5] With respect to the Investigation Report, in her written submission to the Commission, in part, the Applicant said:
I was purposely given the lowest ranking in Reverse Order of Merit, to justify the management's decision of putting me on the surplus list. ...As I mentioned earlier the ROM process was biased and unfair. As my manager told me (Mr. Bill Gillan), they gave a preference to civil engineers, that is why both mechanical engineers (Insoon Shin and myself) were given the lowest ratings, and as a result our positions were declared surplus. The two highest ranked candidates were close to my age. However, they were men.
(Ibid, pp. 90-91.)
[6] I find one example of evidence in support of the allegation of actual bias amounting to age and sex discrimination emphasised in the course of the hearing to be of particular importance. In paragraph 31 of the Investigation Report quoted above, there is a significant error in fact. Contrary to the statement reportedly made by the Manager who conducted the ROM assessment, and contrary to what is stated about the contents of the performance appraisals from 1988/1989-1992/1993, the performance appraisals of the Applicant produced during the course of the hearing of the present case were only positive (Ibid, Book III, Tab 16). The performance reviews contained the following comments:
April 1/92 - March 31/93:
A minor construction project (T2 Air Curtains) and several designs and cost estimates have been completed within established parameters of quality, cost and time, and two major projects (Power Plant Mods and T1-T2 Baggage Conveyor Mods) have been brought close to a successful conclusion under difficult circumstances generated by the client. ...Project reporting has been maintained at a consistently high level.
April 1/91 - March 31/92:
Janina has managed a difficult portfolio of projects during the past year. While several projects have encountered either schedule or financial problems, in most cases it has been for reasons beyond her control, such as changed client requirements. ...Effective management of Consultants. High standard of project reporting. Good project control.
April 1990 to March 1991:
All projects have been completed within budget and all were late for various reasons beyond Janina's control: ...In general client satisfaction has been good on all projects, with no significant incidents reported.
The quality of Janina's project reports has been consistently high. ...Janina has demonstrated a consistently high level of effort in the management of her program, in particular efforts to achieve client satisfaction.
In addition, her knowledge of mechanical engineering has contributed to problem resolution on other projects.
April 1989 to March 1990:
In general, project delivery has been completed in a fully satisfactory manner and Janina has responded well to the challenges of critical projects, such as completing design, and construction for the Security Operations Control Centre utilizing in-house resources, in accordance with a tight schedule. ...Her accomplishments have been recently recognized with a promotion to the EN-ENG-04 Project Manager level. ...Janina has consistently demanded a high standard of performance from Consultant and in-house resources. The client group has begun to recognize her capabilities as a Project Manager.
[7] In my opinion, the allegation of actual bias made by the Applicant in her submission to the Commission was not adequately addressed in reaching the decision under review. Whether the allegation can be proved is not at issue in this judicial review, but I find it is certainly a matter to be fully considered on a thorough investigation which was not conducted.
[8] Apart from the actual age and sex bias argument, in my opinion, the Investigation Report is flawed in its handling of the general nature of age and sex discrimination, and how it manifests in the workplace. This type of investigation requires a critical analysis according to an understanding of what constitutes age and sex discrimination. For example, despite the series of incidents present in this case, the Investigation Report omitted a thorough analysis of a possible pattern of sex discrimination. Acts of discrimination need not be overt but can be inferred from a pattern of differential treatment (Canada (Canadian Human Rights Commission) v.Canada (Department of National Health and Welfare) (re Chopra) [1998] F.C.J. No. 432 (QL) (F.C.T.D.).
[9] The investigation in the present case considered each incident alleged by the Applicant in isolation, and in response often simply accepted PWGSC's assertions that sex was not a consideration. While it is possible that the differential treatment the Applicant alleged amounted to mere coincidence and not age or sex discrimination, this cannot be determined without a more thorough analysis.
[10] Arguably, the incidents about which the Applicant complains are related. For example, the Applicant alleges that her manager consistently refused to assign her to civil engineering projects when she indicated her availability and willingness. PWGSC responded that there were no available suitable civil engineering projects. In addition, in response to the Applicant's objections to her ROM evaluation, PWGSC states that she received the only 0 score in the civil engineering category because of her lack of exposure to civil engineering projects during her tenure. In contrast, a male colleague, who also was a mechanical engineer, had been assigned a civil engineering project and subsequently received a higher ROM score than the Applicant.
[11] Thus, a pattern possibly emerges which requires more in-depth evaluation, especially in light of Canadian Human Rights Tribunal decisions in which a difference of assignments that have an impact on a complainant's employment opportunities have been found discriminatory (O'Connell v. Canadian Broadcasting Corp. (1988), 9 C.H.R.R. D/5196, affd 12 C.H.R.R. D/69 (Can. Rev. Trib.), application for judicial review dismissed 20 C.H.R.R. D/369 (F.C.A.), and Roper v. Jace Holdings Ltd. (1993), 22 C.H.R.R. D/294 (B.C.C.H.R.)).
[12] While finding evidence of systemic discrimination is sometimes problematic, it may be proven by "the mere implausibility that a pattern of exclusion could be generated by anything other than discrimination" (Lasani v. Ontario (Ministry of Community and Social Services)(1993), 21 C.H.R.R. D/415 (Ont. Bd. Inq.), and Potocnik v. Thunder Bay (City) (1996), 29 C.H.R.R. D/333 (Ont. Bd. Inq.)). To determine whether this condition exists in the present case requires comparative analysis and statistical evidence.
[13] In the present case, the Investigator seems to conclude that the hiring of younger female architects is evidence of non-discriminatory practices. However, it is possible that this also could be evidence of a "glass ceiling"in the work environment. The Applicant was a senior female employee who, through of series of connected incidents, is no longer employed. This problem is not remedied by hiring women for junior positions.
[14] The Supreme Court of Canada has recognized that systemic discrimination is the most subtle form of discrimination (CN v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114). Where, as in the present case, a senior and sole female engineer in her professional group experiences such obstacles and subsequently finds herself unemployed, procedural fairness requires a thorough investigation of the possible existence of systemic age and sex discrimination.
ORDER
1. Accordingly, the Commission's decision is set aside and the complaint is referred back to the Commission for determination.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
November 29, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1168-00
STYLE OF CAUSE: JANINA SOSNOWSKI
Applicant
- and -
MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
and ATTORNEY GENERAL OF CANADA
Respondents
DATE OF HEARING: WEDNESDAY, NOVEMBER 28, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, NOVEMBER 29, 2001
APPEARANCES: Mr. Les Sosnowski
For the Applicant
Ms. Liz Tinker
For the Respondents
SOLICITORS OF RECORD: Les Sosnowski
Barrister & Solicitor
213-1425 Dundas Street East
Mississauga, Ontario
L4X 2W4
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondents
FEDERAL COURT OF CANADA
Date: 20011129
Docket: T-1168-00
Between:
JANINA SOSNOWSKI
Applicant
- and -
MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES CANADA
and ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
AND ORDER
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