Canada (Attorney General) v. Singh, docket T-2116-98

     Date: 20000404

     Docket: T-2116-98

BETWEEN:

     ATTORNEY GENERAL OF CANADA

     Applicant

     -and-

     SURENDAR SINGH and

     CANADIAN HUMAN RIGHTS COMMISSION

     Respondents

     REASONS FOR ORDER

TEITELBAUM, J:

[1]      This application, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, seeks to review a decision of a Canadian Human Rights Tribunal (tribunal) dated November 6, 1998 wherein the tribunal found that the respondent, Surendar Singh, was directly discriminated against on the basis of age with respect to the "1988 ES-01 competition". The tribunal dismissed the complaint with respect to all remaining events or incidents alleged on the ground of age, and dismissed the claim in its entirety on the ground of race.

[2]      The applicant seeks an order setting aside that portion of the decision of the tribunal wherein it found direct discrimination on the ground of age with respect to an event identified as the "1988 ES-01 competition".

[3]      The applicant also seeks an order referring the matter back to the tribunal with the direction that the complaint be dismissed or with the direction that the complaint be dealt with in a manner consistent with the reasons of this Court.

[4]      The grounds for this application are:

1. The tribunal erred in law in applying the wrong legal test to determine whether a prima facie case of discrimination existed and in concluding, therefore, that there was a prima facie case of discrimination.

2. The tribunal erred in law by misapplying, or alternatively failing to apply, the test for assessing credibility of the testimony of witnesses.

3. The tribunal based its decision on erroneous findings of facts made in a perverse or capricious manner or without regard for the material before it.

4. The tribunal committed a reviewable error in basing its finding of discrimination upon evidence of systemic discrimination when no such discrimination was alleged, and when, in any event, the evidence properly assessed did not support any finding of such discrimination.

5. Alternatively, the tribunal erred in concluding that the respondent Surendar Singh lost a position as opposed to an opportunity for a position; and, in awarding him compensation on this basis.

FACTUAL BACKGROUND

[5]      The respondent, Surendar Singh, was born in Delhi, India in 1945. He obtained an M.A. in English from Delhi University in 1969 and moved to Canada shortly thereafter.

[6]      In 1971, Mr. Singh was awarded a Graduate Diploma in Public Administration from Carleton University in Ottawa. He subsequently obtained a Bachelor of Arts degree with a major in economics in 1973 and a Bachelor of Commerce degree in 1977, both from Carleton University.

[7]      In 1981, Mr. Singh commenced working at Statistics Canada in a clerical position. He was first hired on a term position but became a permanent or indeterminate employee in 1982 when he occupied a clerical position in the Transportation Division of Statistics Canada at the CR-04 level in the government job classification system.

[8]      Commencing in 1985, Mr. Singh competed for a variety of jobs within Statistics Canada, primarily within the ES or Economist Classification. He also competed for at least one job in the SI or Statistical Officer group.

[9]      Mr. Singh entered a competition for an entry level ES-01 position at Statistics Canada in 1985 and placed second but did not receive an ES appointment. In 1988, he entered a competition for another ES-01 position (the 1988 ES-01 competition). This competition is the event giving rise to the tribunal"s finding of discrimination on the basis of age.

Facts Pertaining to the 1988 ES-01 Competition

[10]      The 1988 ES-01 competition was to fill a position in the ES category at the 01 level in the Labour Division.

[11]      The competition consisted of between eight and ten candidates being screened and completing an oral and written examination using a point grading system. The candidates in the competition were marked on knowledge, abilities and personal suitability.

[12]      Mr. Singh lost two points on personal suitability causing him to come second to Christine Cowan, by a difference of two marks. An eligibility list was issued containing only the name of the successful candidate, Christine Cowan.

[13]      Mr. Singh had a "post-board" interview with the manager in charge of the interview, Richard Vincent, at which time Mr. Vincent went over the grading system with Mr. Singh. At or around this time, Mr. Singh indicated to Mr. Vincent that he wished to be placed on the eligibility list.

[14]      Mr. Singh subsequently appealed the result of the competition, but withdrew his appeal after a settlement had been reached with the employer by his union representative, Pierre Mulvihill of the Public Service Alliance of Canada.

[15]      To date, Mr. Singh has been unsuccessful in obtaining a promotion to a permanent position at a higher classification level.

[16]      On March 5, 1993, Mr. Singh filed a complaint with the Canadian Human Rights Commission (Commission) in which he alleged that his efforts towards advancement have been detrimentally affected by his age and by his national or ethnic origin, which he describes as East Indian.

[17]      Mr. Singh"s complaint to the Commission was a lengthy one, involving various competitions and different individuals within Statistics Canada. The portion of Mr. Singh"s complaint which is relevant to this application is the 1988 ES-01 competition which is numbered iii) in Part III and iv) in Part V of the tribunal"s decision.

[18]      In his testimony before the tribunal on the question of the 1988 ES-01 competition, Mr. Vincent denied discriminating against Mr. Singh on the basis of age or race, stating that these factors had no impact on the selection process and that the only factors which were considered were knowledge, abilities, and personal suitability.

[19]      Mr. Vincent elaborated on his reasons for not putting more names other than the name of the successful candidate on the eligibility list, as follows:

1) He asked his supervisor to canvass to see if there would be additional positions opening up and was told the answer was no for the foreseeable future.

2) It was common practice and normal procedure at the time to put only one name on an eligibility list.

3) If it were necessary to staff another position, a new eligibility list could be drawn up within a certain time period and that list could include the name of the next qualified candidate. Doing this would depend on there being a position to fill.

4) Putting a name on a list would raise expectations when there was no position to fill.

[20]      In 1989, just a few weeks after the 1988 ES-01 competition, Statistics Canada offered positions to 26 candidates under the ES Recruitment Program. Mr. Singh"s 1988 competition was not part of that program, however, candidates were required to have the same basic requirements in terms of education and knowledge.

[21]      In testifying before the tribunal, Mr. Dodds, Chair of the Recruitment Committee for the ES Recruitment Program indicated that if Mr. Singh had been on the eligibility list, he could have been picked up by a manager as an ES-01.

[22]      Mr. Dodds further testified that sometime in the spring or summer of 1989, managers at Statistics Canada were told to stop holding competitions for ES-01 candidates. However, they were still able to hire from existing eligibility lists. He further stated that because there had been a shortage of recruits in 1989, there was an incentive to hire from eligibility lists, subject to the requirements of the position being similar.

[23]      On the issue of age, Mr. Dodds testified that over a period of nine years, Statistics Canada hired 340 individuals and only one into the ES-01 level who was over 40 years old.

[24]      The statistical profile of the ES-01 population for the period from 1987 to 1992 shows that 97.7% were under the age of 40.

[25]      During the relevant time period, between 1988 and 1989, Mr. Singh was 43-44 years of age.

[26]      Although the tribunal found that Mr. Singh was not a credible witness, it found that he had established a prima facie case of discrimination on the basis of age.

[27]      The tribunal dismissed all of the other issues in Mr. Singh"s complaint.

[28]      On the issue of the tribunal"s finding with respect to the "1988 ES-01 competition", which is the subject of this application, the essence of the tribunal"s findings are contained in the following paragraphs, beginning at page 57 of its reasons:

Unlike Mr. Singh"s other complaints, our findings with respect to the failure to add Mr. Singh"s name to the eligibility list in question do not rest to any extent on Mr. Singh"s testimony. After careful consideration of all of the evidence before us, we have concluded that the explanation put forward by the respondent, while appearing at first to be reasonable, was in fact pretextual. We are satisfied that it can reasonably be inferred that the failure to put Mr. Singh"s name on the eligibility list was at least in part because, at 43 or 44, Mr. Singh did not fit the profile that Statistics Canada had in mind for the ES-01 level recruits. As we have found that Mr. Singh"s age was a factor in the respondent"s decision making, accordingly, we have concluded that in this regard, Statistics Canada discriminated directly against Mr. Singh, and this aspect of Mr. Singh"s complaint is sustained.

There is of course no guarantee that Mr. Singh would have been given an ES-01 position, had his name been put on the eligibility list following the Cowan competition. In the tribunal"s view, this is an issue that must be considered in the quantification of damages, and does not affect the liability of Statistics Canada.

[29]      The tribunal then made the following order at page 89 of its reasons:

For the foregoing reasons, the Tribunal declares that Mr. Singh"s rights under the Canadian Human Rights Act have been contravened by the respondent, and orders:

1) that Mr. Singh be provided, at the first reasonable opportunity, a position with Statistics Canada at the ES-01 level. Such position should be provided on the same terms and under the same conditions as are in place for Internal Statistics Canada candidates hired through the current Es Recruitment Program.

2) that Statistics Canada pay to Mr. Singh the difference between the salary actually received by him as a CR-04, and the salary that he would have received, had he become an ES-01 on August 2, 1989. Mr. Singh"s pension and other employment benefits are to be adjusted to take these payments into account;

3) that Statistics Canada pay to Mr. Singh an additional amount sufficient to cover the additional income tax liability that he will incur as a consequence of receiving the monies referred to above in this fashion;

4) that Statistics Canada pay to Mr. Singh the sum of $3,000 as special compensation; and

5) that simple interest be paid on the monies awarded pursuant to this decision:

             a) on lost wages from August 2, 1989; and

             b) on the special compensation from February 2, 1989

Interest should be calculated using the average Canada Savings Bond rate for each of the periods in question. In no case, however, should the total amount payable on account of special compensation, including interest, exceed $5,000.

STATUTORY PROVISIONS

Canadian Human Rights Act, R.S.C. 1985, c. H-6 as amended.

Purpose 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. 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, marital status, family status, disability and conviction for which a pardon has been granted. 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. 10. It is a discriminatory practice for an employer, employee organization or employer organization (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

Objet 2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant_: le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée. Motifs de distinction illicite 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'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience. Emploi 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. 10. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite et s'il est susceptible d'annihiler les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus, le fait, pour l'employeur, l'association patronale ou l'organisation syndicale_: a) de fixer ou d'appliquer des lignes de conduite; b) de conclure des ententes touchant le recrutement, les mises en rapport, l'engagement, les promotions, la formation, l'apprentissage, les mutations ou tout autre aspect d'un emploi présent ou éventuel.

ISSUES

[30]      The following issues are raised by this application:

(1) Did the tribunal err in law by applying the wrong legal test to determine whether a prima facie case of discrimination existed, and in concluding that there was a prima facie case of discrimination?

(2) Did the tribunal err in law by misapplying, or in the alternative failing to apply, the test for assessing the credibility of the testimony of witnesses?

(3) Did the tribunal commit a reviewable error in basing its finding of discrimination on evidence of systemic discrimination when no such discrimination was alleged and when the evidence did not support such a finding?

(4) In the alternative, did the tribunal err by awarding a remedy as if the complainant had failed to obtain a position rather than an opportunity to obtain a position?

SUBMISSIONS OF THE PARTIES

Applicant"s Submissions

[31]      The applicant submits that the tribunal erred by considering whether a prima facie case existed when it had already made findings negating the existence of a prima facie case. Further, it compounded this error by importing a standard of review for systemic discrimination which was inapplicable to the facts before it. In doing so, it misapplied the test, or applied the wrong test.

[32]      Secondly, the applicant argues that after having found as a fact that a list was created and that a list need include only sufficient names to meet anticipated needs, the only remaining issue was whether there was evidence of direct discrimination against the complainant on the grounds of race or age in making the eligibility list.

[33]      It is submitted that the tribunal ignored or failed to consider the evidence directly relevant to the issue before it of whether a case of direct discrimination had been established. As such, it misapplied the test articulated in Ontario Human Rights Commission and O"Malley v. Simpsons-Sears [1985] 2 S.C.R. 536.

[34]      The applicant submits that the tribunal erred in holding that the systemic evidence in question was sufficient to establish a prima facie case in one form of denial after it found it was insufficient for another. Further, it failed to consider whether the evidence was complete and sufficient to cover the allegations made.

[35]      On the issue of credibility, the applicant argues that a decision-maker may not rest a decision on a finding that testimony is implausible or unreasonable without making specific findings, and to do so constitutes a reviewable error. It is argued that the only direct evidence on the decision not to put Mr. Singh"s name on the eligibility list came from Mr. Singh himself and from Mr. Vincent, the manager of the competition.

[36]      Given that the tribunal found the complainant not to be a credible witness, this left Mr. Vincent as the sole witness on the crucial issue of whether age had been a factor in the 1988 ES-01 competition. The applicant argues that it was incumbent on the tribunal, if it chose to disregard his evidence, to justify and explain that decision.

[37]      By failing to make any mention of Mr. Vincent"s evidence on this crucial point, on which he was neither cross-examined nor contradicted by any credible witness, the tribunal erred in law.

[38]      It is submitted by the applicant that the tribunal"s finding of fact that age was a factor in the ES-01 competition is contrary to evidence in three areas: the evidence of the manager who conducted the competition, the evidence as to the normal staffing process, and the evidence on age as a factor in ES recruitment and staffing.

[39]      It is further submitted that there is no statutory requirement that names of qualified candidates be placed on eligibility lists unless there are vacancies or anticipated vacancies. Therefore, there was no need to place the complainant"s name on the eligibility list.

[40]      On the issue of systemic discrimination, the applicant argues that the tribunal erred by basing its finding of discrimination in whole or in part on systemic discrimination when the evidence was weak and inconclusive.

[41]      It is further submitted that the reliance by the tribunal on the statistical evidence in respect of the age issue is inconsistent with both its finding that the evidence is of limited assistance and its finding that this evidence is not probative on the race issue.

[42]      With respect to the remedy ordered, the applicant argues that the tribunal"s finding that it was probable that the complainant would have obtained an ES-01 position is contrary to the evidence that existing persons on eligibility lists were considered less attractive candidates than recruits under the Recruits Program.

[43]      Lastly, it is submitted that the nature and scale of recovery ordered is disproportionate to the degree of liability found and fails to take sufficient account of the record before the tribunal.

Respondent"s Submissions

[44]      It is the submission of the respondent that the tribunal made no errors of law or fact in its decision of November 6, 1998 and accordingly, there is no basis for interference by this Court.

[45]      The respondent argues that the tribunal correctly applied the test for determining what constitutes a prima facie case of discrimination.

[46]      The respondent concedes that the tribunal may consider evidence of systemic discrimination as circumstantial evidence in its determination of an individual complaint.

[47]      It is submitted that the tribunal considered all of the evidence before concluding that the explanation put forward by the employer, while initially appearing reasonable, was in fact pre-textual.

[48]      Lastly, the respondent submits that the tribunal had ample evidence before it to determine that the failure to put Mr. Singh"s name on the eligibility list following the 1998 ES-01 competition was at least in part due to the fact that, at age 43 or 44, he did not fit the profile that Statistics Canada had compiled for the ES-01 level.

ANALYSIS

Standard of Review

[49]      Before embarking on an analysis into whether the tribunal committed a reviewable error, it is necessary to first set out the applicable standard of review to be applied to the decision of November 6, 1998.

[50]      The seminal case on the standard of review to be applied against decisions of human rights tribunals is Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 (S.C.C.). The Court held at page 585 that by reason of their expertise in the areas of fact-finding and adjudication of human rights complaints, human rights tribunals should be accorded considerable deference on questions of fact.

[51]      In Attorney General of Canada v. Public Service Alliance of Canada and Human Rights Commission (October 19, 1999: T-1698-98) (F.C.T.D.) Evans J. made the following comment on standard of review at page 30 of his reasons:

The standard of review to be applied to the Tribunal"s interpretation of its enabling legislation is not open for debate in this Court. The Supreme Court of Canada has firmly established that the doctrine of curial deference does not apply to tribunals" interpretation of human rights legislation, including the Canadian Human Rights Act , and that it is the function of the reviewing court to interpret for itself the provisions of the Act that are in dispute: Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. This means that, if the reviewing court"s interpretation differs from that of the Tribunal, then the Tribunal has erred in law and its decision is liable to be set aside.

Evans J. then stated at page 36 of his reasons:

A desire not to expand issues of interpretation so that they encroach on functions that fall within the sphere of expertise of human rights tribunals seems to have prompted Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 1017 to observe that

the precise degree of deference which should be accorded to human rights tribunals may still be open to question.

[52]      Therefore, on matters of fact, this Court will review the decision of the tribunal on a standard of reasonability. This principle was articulated by my colleague, Nadon J., in Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (F.C.T.D.) where he stated the following at page 609:

In the spirit of the Supreme Court of Canada in Mossop, deference must prevail over interventionism in so far as the CHRC deals with matters of fact-finding and adjudication, particularly with respect to matters over which the CRHC has been vested with such wide discretion...

[53]      In Lukian v. Canada National Railway Co. (1994) 80 F.T.R. 38, Jerome A.C.J., as he then was, stated the following at page 40 on the applicable standard of review:

Generally, when Courts are called upon to review the exercise of an administrative tribunal"s discretionary power, they will be reluctant to interfere since tribunals, by virtue of their training, experience, knowledge and expertise, are better suited than the judiciary to exercise those powers. Provided the Commission"s decision is within the discretion given to it, the Court will not interfere with the manner in which it was exercised, unless it can be shown the discretion was exercised contrary to law. What the law requires is the Commission to consider each individual case before it, to act in good faith, to have regard to all relevant considerations and not be swayed by irrelevant ones, and to refrain from acting for a purpose contrary to the spirit of its enabling legislation or in an arbitrary or capricious manner.

[54]      The respondent referred to the case of [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada [1982] 2 S.C.R. 2 in support of the rule that a Court should not interfere with the exercise of discretion by a statutory authority merely because the Court might have exercised the discretion in a different manner.

[55]      In that case, MacIntyre J. articulated that where the statutory discretion of a tribunal has been exercised in good faith, in accordance with the principles of natural justice, and without taking into consideration extraneous factors, the Court should not interfere with the decision.

[56]      Also raised at the hearing on March 22, 2000 was the case of Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1425 where Mr. Justice Evans reiterated at paragraph 14 that the Court should decline to interfere with the decision of a tribunal unless it is satisfied that the Board made a "palpably erroneous finding of material fact" and that "the finding was made without regard to the evidence".

[57]      In accordance with the above outlined principles, the applicable standard of review for findings of fact is reasonableness while findings of law will be reviewed on a correctness standard.

The 1988 ES-01 Competition

[58]      This proceeding concerns an allegation of direct discrimination on the basis of age. The distinction between direct and indirect discrimination was defined in the following terms in O"Malley, supra, as follows:

Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground... On the other hand, there is a concept of adverse affect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees, in that it imposes, because of some special characteristic of the employee or group, obligations, penalties or restrictive conditions not imposed on other members of the work force.

[59]      In the present case, the tribunal concluded that the complainant had established, with respect to the 1988 ES-01 competition a prima facie case of direct discrimination. The jurisprudence of this Court, particularly the decisions in Holden v. Canadian National Railway (1990), 112 N.R. 395 (F.C.A.), Canada (Attorney General) v. Martin et al. [1994] 2 F.C. 524 (F.C.T.D.) and Canadian Human Rights Commission v. Canada (1994), 76 F.T.R. 265 establish that once a prima facie case of discrimination has been made out, the burden of proof shifts to the party alleged of the discrimination to provide an explanation.

[60]      The tribunal found that the complainant was directly discriminated against on the ground of age in that he qualified for an ES-01 position in the 1988 competition, he was not placed on the eligibility list, Statistics Canada was hiring ES-01 level at that time, there was an ongoing organizational need for ES-01 level employees, and just weeks after the establishment of the eligibility list in question, Statistics Canada offered positions to 26 candidates under the ES Recruitment Program.

[61]      Before concluding that the complainant had established a prima facie case of discrimination, the tribunal stated the following at page 58 of their reasons:

We do not have any evidence with respect to specific positions that were staffed around this time, or of the job requirements of those positions, nor do we have any evidence with respect to the identity, qualifications, age or ethnicity of the candidates who were hired. However, unlike his allegations with respect to the failure of Statistics Canada to place him in an ES-01 position during the currency of the eligibility list resulting from the 1985 competition, Mr. Singh"s allegation here is not that he did not get a job, but rather that he was denied access to the eligibility list system that could have resulted in him getting a job. As a consequence, the failure to adduce evidence on these points is not fatal to the establishment of a prima facie case with respect to this aspect of Mr. Singh"s complaint. Applying the test articulated in the O"Malley case, we find that the evidence before us as it relates to the age issue is sufficient to justify a verdict in Mr. Singh"s favour, in the absence of an answer from the respondent. Accordingly, we find that Mr. Singh has established a prima facie case of discrimination on the basis of age and that the burden shifts to the respondent to provide a reasonable explanation for its actions.

[62]      The tribunal went on to discuss the nature of the explanation offered by the employer, namely that of the manager in charge of the competition, Mr. Vincent, beginning at page 59 of its reasons as follows:

Statistics Canada"s explanation for the conduct of this particular competition rested almost entirely on the evidence of Mr. Vincent, who testified that he did not put Mr. Singh"s name on the eligibility list as there was only one position to fill. Mr. Vincent further explained that his supervisor (who was never identified) had advised him that it was not anticipated that any other positions would be opening up.

The explanation offered by Statistics Canada appears, on its face, to be reasonable. It remains to be determined whether the explanation provided by Statistics Canada is pretextual, and whether the motivation for the respondent"s actions related, at least in part, to Mr. Singh"s age.

Mr. Vincent professed to have little recollection of many of the events surrounding this competition, and his evidence was often lacking as a result. For example, he could not remember the number of candidates in the competition, who the other members of the Selection Board were, or what the grounds were for Mr. Singh"s appeal. On the other hand, Mr. Vincent was able to tell us that Mr. Singh had been given a 6.5 out of a possible 10 on a question relating to personal suitability, that Mr. Singh"s personal suitability score had been downgraded by approximately two points following a reference check, which represented the margin between Mr. Singh and Ms. Cowan, and that Mr. Singh"s appeal had been dropped on the day before it was to have been heard. As a consequence, we found Mr. Vincent"s powers of recall somewhat selective.

[...] Unlike Mr. Singh"s other complaints, our findings with respect to the failure to add Mr. Singh"s name to the eligibility list in question do not rest to any extent on Mr. Singh"s testimony. After careful consideration of all of the evidence before us, we have concluded that the explanation put forward by the respondent, while appearing at first to be reasonable, was in fact pretextual. We are satisfied that it can be reasonably inferred that the failure to put Mr. Singh"s name on the eligibility list was at least in part because, at 43 or 44, Mr. Singh did not fit the profile that Statistics Canada had in mind for ES-01 level recruits.

[63]      I am satisfied that it was reasonable for the tribunal to conclude, on the basis of all of the evidence before it on the issue of the 1988 ES-01 competition, that the complainant had established a prima facie case of discrimination on the basis of age.

Shifting of Burden to the Applicant

[64]      Despite the fact that there was no statutory obligation upon the applicant to place all qualified names on the eligibility list, the evidence is clear that there was a need for ES-01 level recruits, so much so that 26 new ES-01 candidates from the ES Recruitment Program were offered positions very soon after Mr. Singh"s competition.

[65]      This evidence goes directly in the face of the testimony of Mr. Vincent where he states that there was only one ES-01 position to fill and that it was not anticipated that any other positions would be opening up. No other explanation for the failure to put Mr. Singh"s name on the eligibility list was offered by the applicant.

[66]      The tribunal carefully reviewed the statistical evidence introduced by the applicant to establish that eligibility lists often only had one name on them, but concluded that in fact the majority of cases in the period between 1989-94 suggest that eligibility lists had more than one name on them.

[67]      Due to fundamental changes in the hiring process for ES-01 candidates brought about by the introduction of the ES Recruitment Program in 1988-89, the tribunal found that the statistical information offered by the applicant was of little assistance in assessing whether the complainant had been discriminated against.

[68]      Of critical significance to the tribunal"s inquiry was the fact that Mr. Singh was 43 or 44 years of age during the relevant time period and that his age "clearly did not meet the need that Statistics Canada had identified for recruitment into ES level positions" as stated at page 63 of its reasons.

[69]      The applicant indicated that the age of candidates, per se, was not a concern but that the individual"s propensity to retire was a factor. In my view, these considerations are one and the same. The propensity of a person to retire is directly related to his/her age and thus age is a concern in the selection of candidates.

[70]      On this issue, the tribunal stated at page 64 of its reasons:

In the tribunal"s view, the statistical evidence adduced by the respondent itself provided compelling circumstantial evidence of an organizational predisposition against promoting older internal candidates into ES positions. In particular, Exhibit R-36, Tab 52 demonstrates that over a nine year period, out of a total of 340 individuals hired, only five internal candidates over the age of 40 were hired into ES-01, 02, or 03 level positions, and only one into an ES-01 level position.

[71]      Just as the tribunal did, I find these statistics sufficient to establish the existence of systemic discrimination on the basis of age with respect to the selection of candidates for ES-01 level positions. Further, I am of the view that the applicant was unable to provide any reasonable explanation for this discrimination.

[72]      In her reply at the hearing on March 22, 2000, counsel for the applicant argued that the tribunal erred by considering the statistics which were before it but not looking at the participation rates for individuals over 40 years of age. It is the applicant"s submission to the Court that there was no way for the tribunal to know how many persons over 40 participated in the ES-01 competitions and what their success rate was.

[73]      The applicant argued that based on this lack of knowledge, the tribunal erred by looking at the evidence selectively and not looking at all of the relevant factors it needed in order to make the comparisons upon which it based its decision. Consequently, the tribunal"s findings were impressionistic.

[74]      Following this argument, the applicant reiterated the Attorney General"s core submission to the Court that the tribunal erred in finding that the actions of one manager, Mr. Vincent, in one competition, the 1988 ES-01 competition, were indicative that age was a factor in the hiring process.

[75]      With all due respect to the applicant, I am satisfied that the tribunal did not make any findings of fact in a perverse or capricious manner or without regard to the evidence submitted. The lengthy and articulate reasons of the tribunal illustrate that each component of Mr. Singh"s complaint was addressed with consideration being given to all the evidence.

The test in O"Malley

[76]      On the matter of the 1988 ES-01 competition, the tribunal correctly applied the test set out in O"Malley, supra at paragraph 28 which states that "a prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant"s favour in the absence of an answer from the respondent-employer."

[77]      The applicant argues that the respondent failed to cover the allegations in setting out a prima facie case of discrimination. After having reviewed the arguments and evidence before the tribunal, as well as the tribunal"s reasons, I cannot agree. I find that there was ample evidence submitted in support of the allegations made by the complainant with respect to the 1988 ES-01 competition.

[78]      The case of C.N.R. v. Canada (Human Rights Commission) [1987] 1 S.C.R. 1114 was raised by counsel for the respondent at the hearing on March 22, 2000 as evidence that human rights legislation must be interpreted broadly and liberally.

[79]      On the issue of the correct approach to be given to human rights legislation, the Court stated the following at page 1134 of their decision:

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis , in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained.

[80]      It is my view that the tribunal applied a broad liberal interpretation to the relevant discrimination provisions. The tribunal correctly applied the O"Malley test and determined that, on this particular complaint and only this one, Mr. Singh had successfully established a prima facie case of discrimination to which the applicant was unable to provide an adequate explanation.

[81]      Thus, I find that the tribunal"s finding in the complainant"s favour on the issue of the 1988 ES-01 competition was wholly justified in light of the evidence.

[82]      Having regard to the jurisprudence and the evidence before this Court, I am unable to find that the tribunal erred in law or in fact. The evidence submitted by both parties on the failure of the applicant to put Mr. Singh on the eligibility list supports the tribunal"s determination that he was discriminated against on the basis of age. There is no basis for intervention by this Court in that finding.

The Credibility of Witnesses

[83]      The applicant submits that the tribunal misapplied, or failed to apply, the test for assessing the credibility of witnesses. More specifically, the applicant argues that the tribunal erred in its finding that Mr. Singh"s complaint with respect to the 1988 ES-01 competition was justified although it found that Mr. Singh was not credible.

[84]      It is important to emphasize that this application pertains only to the 1988 ES-01 competition. That is not in dispute. In its reasons, the tribunal discussed the issue of credibility, noting that on this particular complaint, its finding did not rest to any extent on the testimony of the complainant himself. The determination that Mr. Singh ought to have been put on the eligibility list was based on ample evidence put forth by Mr. Singh as well as that of the applicant.

[85]      In my opinion, the tribunal sufficiently addressed the credibility issue in its reasons and emphasized that while it was a significant factor in its assessment of other portions of the complaint, it had no bearing on the issue of the failure of the applicant to put Mr. Singh on the eligibility list following the 1988 ES-01 competition.

The Nature of the Order

[86]      The applicant submits that the tribunal incorrectly awarded compensation as if it had concluded that the complainant had lost a position rather than an award which reflected its finding that the complainant had lost the opportunity for a position by not being placed on the eligibility list for the 1988 ES-01 competition.

[87]      It is further submitted that the nature and scale of the recovery ordered is disproportionate to the degree of liability found and fails to take into account the record before the tribunal. The applicant argues that the Order that a position be provided ought to be rescinded and the amount ordered for lost wages ought to be discounted for contingencies on the record.

[88]      Given the finding of the tribunal that it was probable that Mr. Singh would have been given an ES-01 level position, although there is no guarantee, I am of the view that the order of the tribunal was entirely proper in the circumstances.

[89]      In particular, the fact that there was an obvious organizational need for ES-01 candidates, coupled with the fact that there was a shortage of recruits in the ES Recruitment Programs in the relevant time period, it is fitting that Mr. Singh be paid the difference in salary between his position as a CR-04 from the time of the order to the time he was put into an acting ES-01 level position.

[90]      Given that Mr. Singh has been in an acting position since April 1999, I will order that his position become permanent. It is my understanding that this will be done through an exclusion order pursuant to section 41 of the Public Service Employment Act made by the Governor in Council.

[91]      Further, Mr. Singh is entitled to the $3,000 in special compensation ordered by the tribunal and the interest on the above amount calculated using the average Canada Savings Bond rate for each of the periods.

[92]      Lastly, as was ordered by the tribunal, I find it appropriate that the applicant pay to Mr. Singh the amount sufficient to cover the additional income tax liability that he will incur as a consequence of receiving this award as a lump sum rather than as income earned as a monthly salary.

[93]      The application is dismissed with costs.

                             "Max M. Teitelbaum"

                    

                             J.F.C.C.

Ottawa, Ontario

April 4, 2000