Date: 20070302
Docket: T-132-06
Docket: T-133-06
Citation: 2007 FC 244
Ottawa, Ontario, March 2, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
RAYMOND
MACIEL
Applicant(s)
and
CANADA
REVENUE AGENCY
Respondent(s)
BETWEEN:
RONDA
SARGEANT
Applicant(s)
and
CANADA
REVENUE AGENCY
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
These
common proceedings are brought by Raymond Maciel and Ronda Sargeant challenging
the summary dismissal of their human rights complaints by the Canadian Human
Rights Commission (Commission) in the exercise of its discretion to screen out
complaints under s. 44(3)(b) of the Canadian Human Rights Act, R.S.C.
1985, c. H-6 (Act).
[2]
The
claims by Mr. Maciel and Ms. Sargeant have a common factual background and
raise virtually identical factual and legal issues. The two applications were
argued together and it is, therefore, appropriate to deal with both matters in
one decision.
Background
[3]
Mr.
Maciel and Ms. Sargeant claimed that their employer, Canada Customs and Revenue
Agency as it was then known (CCRA), through the agency of one of its managers,
Carl Gomes, had discriminated against each of them in the course of their
employment on the basis of their colour or their national and ethnic origins
contrary to s. 7 of the Act. Although in their complaints to the Commission
the Applicants raised several points of alleged differential treatment (eg.
scheduling and the distribution of cell phones), the primary focus of their
concern had to do with the denial of employment promotions following an
eligibility competition in 2000.
[4]
It
is common ground that, following testing, Mr. Maciel and Ms. Sargeant, along
with five other CCRA employees, were deemed qualified and placed on the
eligibility list for possible promotion within the Investigation Unit. It is
also clear that only Mr. Maciel and Ms. Sargeant were subsequently passed over
for promotion while the other five candidates were selected. Mr. Maciel and
Ms. Sargeant were the only visible minority candidates on the eligibility list
and they alleged that this was the reason they were denied advancement. The
employer maintained that it had legitimate reasons for its selection decisions
and it denied any discriminatory intent or conduct.
[5]
In
accordance with its practices, the Commission commenced an investigation into
the Applicants’ complaints. That investigation culminated in the preparation
of two lengthy reports which recommended that both complaints be dismissed on
the common ground that the evidence did not support a finding of adverse
differential treatment on any of the prohibited grounds. The Commission
accepted these recommendations and dismissed both complaints on the same basis,
that is because “the evidence does not support the allegation that the
complainant was treated in an adverse differential manner because of… race,
colour, ethnic and/or place of origin”.
The Positions of the
Parties and the Investigator’s Findings and Recommendations
[6]
It
is clear from the record that the Commission’s Investigator carried out a
comprehensive investigation of the two complaints. While there were some
differences between the two complaints, the central allegations made by Mr.
Maciel and Ms. Sargeant were the same and focussed on the employer’s handling
of the selection of candidates for promotion and its subsequent treatment of
the Applicants including the expiry of the eligibility list. In the result,
the Investigator’s key findings and analysis were almost identical for both
Applicants on these issues.
[7]
The
Applicants both complained that their requests for feedback from Mr. Gomes on
the outcome of the selection process were met with hostility and a threat that
he would allow the eligibility list to expire if they persisted in challenging
his selection decisions. Mr. Gomes’ apparently negative attitude was confirmed
in a memo from a union representative in which it was indicated that Mr. Gomes,
in the course of a meeting with the union representative, had said that he
might not use the eligibility list further if allegations of racism continued
to be made around the selection process. However, when the union
representative was interviewed by the Investigator, he said that he could not
recall the details of the racism remark and he was not sure how overt Mr.
Gomes’ threat had been. The employer maintained, as well, that the eventual
expiry of the eligibility list was in accordance with normal business practices
and in conformity with the duration stipulated when the list was created.
Perhaps not surprisingly, Mr. Gomes denied making any threatening statement in
connection with this issue.
[8]
The
Applicants also asserted that the employer continued to appoint employees to
the positions they were seeking despite earlier statements that funding was no
longer available. The employer took issue with this allegation and offered
explanations for all of the examples raised by Mr. Maciel and Ms. Sargeant.
The Investigator appears to have accepted the employer’s position on this issue.
[9]
With
respect to the Applicants’ general concerns about racially motivated hiring
practices, the employer countered with evidence that it had a racially
diversified workforce and had continued to hire visible minority employees
during the time that Mr. Maciel and Ms. Sargeant claimed they were passed
over. Despite the apparent validity of the employer’s evidence in this regard,
Mr. Maciel and Ms. Sargeant asserted that the employer’s recent hirings of
visible minorities were a “smokescreen” to cover up its treatment of them. Ms.
Sargeant also stated that she had been warned that the CCRA Investigation Unit did
not hire blacks. Mr. Maciel told the Investigator that he had heard similar
“rumours”. When asked by the Investigator for names of witnesses who could
verify such discriminatory conduct, no names were provided and, in the result,
this allegation was clearly not substantiated.
[10]
Mr.
Maciel and Ms. Sargeant both complained that they were made to feel unwelcomed
as their terms of employment in the Investigation Unit wound down. They
attributed this hostility to retaliation but the employer disagreed. One
supervisor told the Investigator that Ms. Sargeant was “uncooperative”. In the
case of Mr. Maciel, the employer advised that he chose to leave the
Investigation Unit before his employment term there had ended. The
Investigator’s report, by implication at least, adopts the employer’s position
on this issue.
[11]
The
Applicants raised with the Investigator a number of concerns about the scoring
of the competition test results. The record does indicate that some
questionable methodology may have been used by the employer in ranking the
individuals for placement on the eligibility list. There is an email from a
staff member to Mr. Gomes dated April 26, 2001 indicating that she had
identified an unspecified marking error which was to be the subject of a later
discussion with Mr. Gomes. However, the Investigator interviewed the author of
this email and made the following finding with respect to the significance of
this purported marking error:
When interviewed, Ms. Jaksic states that
her concern with respect to competition scores relates to one item where she
noticed a difference in marking between candidates. This particular item
relates to one question where one section of the act was scored in one instance
and not scored in another where the subsection was added, for example section
231(a) instead of 231. She states that as a result, Ms. Sargeant’s score was
increased by half a point.
[12]
With
respect to Mr. Maciel’s complaint about inconsistent marking, the Investigator
made the following finding:
He believes that there was inconsistency
in the marking. It is noted that while there were subjective aspects to some
of the questions, for example, written communication, other parts of the tests
were objective, in that they were designed to test the candidates’ knowledge of
relevant legislation. While the Complainant attributes alleged discriminatory
conduct to Mr. Gomes, the investigation does not indicate that Mr. Gomes
participated in the testing and scoring of the candidates. The two-person
selection team did and their work was reviewed by Human Resources.
[13]
It
is apparent from the Investigator’s decision that she did not accept that any
problems with the test scoring were racially motivated. While there do appear
to be some problems associated with the scoring methodology and the ranking of
candidates in this competition, there was nothing adduced by the Applicants
beyond their own expressed concerns to suggest that these testing issues had
any discriminatory roots. Because these are issues which had already been
raised by the Applicants in the context of an internal grievance process, the
Investigator appears to have concluded that that was the appropriate forum for
their resolution.
[14]
Mr.
Maciel attributed a potentially disparaging remark to Mr. Gomes during one of
their meetings when Mr. Gomes is alleged to have referred to Mr. Maciel and Ms.
Sargeant as “you people”. Mr. Gomes denied making such a statement. Given the
obvious conflict in the two positions on this issue and, perhaps, because the
remark, if made, carried considerable ambiguity, the Investigator did not
choose to raise the issue in her report.
[15]
The
Investigator concluded her analysis of the two complaints with the following
findings:
a)
The
Applicants’ complaints about the distribution of cell phones were not timely
and, therefore, the employer was denied the opportunity to address the issue at
a point when it could have been rectified.
b)
Mr.
Maciel had failed to show that his complaint about work scheduling (compressed
work week) had a discriminatory basis.
c)
The
Applicants’ complaints about the competition test scoring were not warranted.
In the case of Mr. Maciel, the test scores were significantly lower than the
others on the eligibility list. In the case of Ms. Sargeant, her test scores
were consistent with the others and did not raise an inference of differential
treatment.
d)
While
the investigation revealed the existence of a conflict between the Applicants
and Mr. Gomes and some strain in the “climate”, there was no basis to conclude
that this was based on racial discrimination, having particular regard to the
employer’s hiring practices vis-à-vis other visible minority candidates.
e)
The
hiring anomalies identified by the Applicants’ were adequately explained by the
employer.
f)
In
the case of Ms. Sargeant, the use of a drivers licence criterion for excluding
her for a promotion was not shown to be discriminatory.
g)
Neither
of the Applicants was forced to leave the Investigation Unit before the end of
their respective employment terms.
h)
Although
the employer could have extended the eligibility list beyond its stated expiry
date, it chose not to do so and there was nothing to suggest that this was
unusual.
[16]
On
the strength of the above findings the Investigator recommended that the
complaints be dismissed and the Commission agreed.
Issues
[17]
a. What
is the standard of review applicable to the Commission’s screening decisions in
connection with these complaints?
b. Did
the Commission make any reviewable errors in dismissing these complaints at the
screening stage?
Analysis
[18]
It
is clear from the authorities that the Commission’s fact-based screening
decisions are entitled to considerable judicial deference on applications such
as these. In Bell Canada v. Communications, Energy and
Paperworkers Union of Canada (1999), 167
D.L.R. (4th) 432, [1999] 1 F.C. 113 at para. 38, the Federal Court
of Appeal stated that “Parliament did not want the courts…to intervene lightly”
in the Commission’s screening decisions. In Sketchley v. Canada (Attorney
General), [2006] 3 F.C.R. 392, [2005] F.C.J. No. 2056, 2005 FCA 404, the
Federal Court of Appeal observed that the Commission is in a better position
than the Federal Court to assess whether any given complaint should go further
when it considers practical and monetary matters: see para. 76. The Court
went on to discuss the standard of review applicable to the Commission’s
screening decisions at para. 47:
47 Typically, a screening decision of
the Commission under section 44(3) of the Act involves a determination of a
question of fact or of mixed fact and law. In such cases, the heavily
fact-specific nature of the decision at issue creates little precedential
value. The standard of review of patent unreasonableness or reasonableness simpliciter
will, all else being equal, likely be the appropriate outcome of the
pragmatic and functional analysis in such cases. However, if as in this case,
the screening decision of the Commission engages a question of law with general
precedential value, and/or raises an issue of procedural fairness, the
appropriate standard of review might be correctness.
[19]
To
the same effect is the decision of Justice John O’Keefe in MacLean v. Marine
Atlantic Inc., [2003] F.C.J. No. 1854, 2003 FC 1459, where one of the
Commission’s screening decisions was the subject of review:
38 The issue in question is whether
to dismiss the applicant's complaint as not warranting any further inquiry,
having regard to all the circumstances. In Ross v. New Brunswick School
District No. 15, [1996] 1 S.C.R. 825, the Supreme Court of Canada stated at paragraph 29 that
"[a] finding of discrimination is impregnated with facts, facts which the
Board of Inquiry is in the best position to evaluate". In this case, the
same reasoning would apply with respect to the Commission's fact-finding in
screening complaints based on an investigation report. The Commission's greater
expertise in fact-finding and screening complaints favours greater deference on
judicial review.
…
41 The issue to be determined in this
case is whether the applicant's complaints warranted further inquiry. The
Commission dismissed the complaints as unfounded because, based on its
investigation, the Agreement between Marine Atlantic and CAW was not
discriminatory. Although this issue is fact-driven, it involves applying facts
to the statutory scheme, which is a question of mixed fact and law. The
discretionary nature of the complaint screening function and the fact-intensive
nature of the question call for greater deference to the Commission's decision.
[20]
At
a minimum, a decision by the Commission to dismiss a complaint under s. 44(3)
of the Act can only be successfully challenged if its reasons do not stand up
to a somewhat probing analysis: see Gardner v. Canada (Attorney General),
[2005] F.C.J. No. 1442, 2005 FCA 284 at para. 21. In simple terms, the Court
will not disturb a screening decision by the Commission simply because the
Court might have come to a different conclusion on the evidence adopted.
[21]
The
Applicants take issue with the Investigator’s report upon which the Commission
clearly based its decision to dismiss their respective complaints. In argument
to the Court, they described the Investigator’s work and her report as “shoddy”
and filled with obvious mistakes.
[22]
While
it is true that other inferences could have been draw by the Investigator from
the disputed evidence, it is not the role of this Court to second-guess such
findings on an application for judicial review. The Investigator had the
advantage of personal interviews with the available witnesses and the
opportunity to test that evidence against the documentary record. Such a
primary exposure to the evidence gives the Investigator a distinct advantage
over a reviewing Court. It is largely for that reason that the authorities
noted above clearly dictate that this Court does not have the authority to
overrule factual findings and evidence-based inferences made by a human rights
investigator simply because the Court might have made a different decision on
the same evidence.
[23]
Despite
the Applicants’ capable arguments, I do not accept that any of the findings
made here by the Investigator are unreasonable in the sense that that term is
used as a basis for setting aside decisions like these. In the result, it is
unnecessary for me to decide whether the standard of review is one of
reasonableness or one of patent unreasonableness. By either standard, the
Commission’s decisions stand up to scrutiny.
[24]
No
investigation such as this will ever be perfect. There is always another
question that could be asked or another witness who could be interviewed. The
same is true here; but this investigation was thorough and the Investigator’s
report adequately canvasses the evidence and arguments put forward by the
parties. The Investigator’s conclusion and recommendations are sound in the
sense that there was evidence to support them. The Applicants had the
opportunity to make their case to the Commission and to respond to the employer’s
contrary submissions. They were afforded due process. While there do appear
to be some flaws in the Investigator’s analysis of the employer’s testing
methods and results, the end result would not have changed given the ultimate
finding that that testing could not be challenged on human rights grounds. The
Applicants’ further complaint that Mr. Gomes reacted with hostility to their
expressed concerns about the selection process and, for that reason, allowed
the eligibility list to expire, did not receive much support from the witnesses
interviewed by the Investigator. It is also noteworthy that these allegations
were denied by Mr. Gomes and by the employer.
[25]
Notwithstanding
the indications in the record that the employer’s handling of this competition
had some deficiencies and may have been somewhat arbitrary, there was very
little evidence provided by Mr. Maciel and Ms. Sargeant to the Investigator to
establish that the employer had acted with discriminatory intent. The burden
of establishing a prima facie case of discrimination rested upon the
Applicants and, in the end, the Investigator reasonably concluded that that
burden had not been met and the Commission agreed. To the extent that Mr.
Maciel and Ms. Sargeant may have been the victims of a deficient selection
process for whatever reason, their concerns can and presumably will be
addressed through the outstanding grievance process.
[26]
Mr.
Maciel and Ms. Sargeant also raised concerns about late changes to the
selection criteria to screen candidates for promotion. Ms. Sargeant contends
that the employer narrowed the driver’s license criterion from mobility commensurate
with having a license to the single requirement that a candidate have a valid
driver’s license. She points to employment practices and policies which are
arguably inconsistent with the late imposition of an absolute requirement for a
license in her case. She also says that it was well known in the Investigation
Unit that she could not drive and she has an understandable suspicion that her
exclusion at the end of the process on the basis of this amended term was
arbitrary and intended to block her appointment. The employer contended that
the position sought by Ms. Sargeant required her to be mobile on short notice
and a driver’s license was, therefore, essential.
[27]
A
similar concern is expressed by Mr. Maciel about the employer’s use of the
“experience” factor in this selection process. Although work experience was
identified at the outset of the competition as a potential consideration for
the promotions, it was later excluded as a factor by Mr. Gomes. Mr. Maciel is
concerned that his job experience in the Investigation Unit was excluded, in
this case, from consideration but in another later competition, it was his lack
of experience that was used as the basis of exclusion. Mr. Gomes justified the
exclusion of work experience to Mr. Maciel by saying that it would introduce a
subjective element into the selection process that could lead to abuse. There
may be some merit to Mr. Gomes’ justification albeit that such a simplistic
approach to hiring undoubtedly carries the disadvantage of excluding
well-qualified candidates who might have been promoted had their experience been
fairly taken into consideration.
[28]
The
ability of management to adjust or exclude certain assessment criteria at the
end of the assessment process can also lead to manipulation, particularly if
the decision-maker is aware of the candidate’s ranking when the selection
criteria are chosen and applied. Needless to say, there is something to be
said for the adoption of a consistent approach to the use of assessment
criteria. Even if absolute consistency is not always possible or desirable
there should be little room for management to revise the criteria at the end of
the process if only to avoid situations like those experienced by Ms. Sargeant
and Mr. Maciel when the exclusionary considerations are added or modified at
the end of the process.
[29]
Notwithstanding
these concerns, the Commission was apparently not convinced that the employer’s
conduct in adjusting the selection criteria was discriminatory.
Conclusion
[30]
It
is not the mandate of the Court on judicial review to substitute its own views
where the Commission’s decision has a rational evidentiary foundation to
support it. In the result, the Commission’s refusal to pursue these complaints
has not been shown to be unreasonable and its decision must stand. These
applications are, therefore, dismissed, but, in the circumstances, without
costs.
JUDGMENT
THIS COURT
ADJUDGES that these applications are dismissed without costs.
"R.
L. Barnes"
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