Date:
20130121
Docket:
T-372-12
Citation: 2013
FC 49
Ottawa, Ontario,
January 21, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
|
|
NORMAN MURRAY
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
Mr.
Murray asks the Court to quash a decision of the Public Service Staffing
Tribunal [PSST] dismissing his request to submit post-hearing evidence and
dismissing his complaint of discrimination in a staffing process undertaken by
the Immigration and Refugee Board [IRB] in 2006. The focus of this application
is the reasonableness of the decision of the PSST not to accept into evidence
the Public Service Commission of Canada report entitled Audit of the
Immigration and Refugee Board of Canada: A report by the Public Service
Commission of Canada, October 2009 [PSC Audit]. The PSST’s decision on the
merits of the complaint will stand or fall with this Court’s review of the
decision on admission of the post-hearing evidence.
[2]
This
is the second occasion that Mr. Murray has challenged a decision of the PSST
relating to his complaint of discrimination in the IRB staffing process in
2006. The first resulted in a judgment of this Court in his favour: Murray v Canada (Attorney General), 2011 FC 542 [Murray I]. The
facts giving rise to his complaint of discrimination are summarized at
paragraphs 3 to 5 of Murray I:
[3]
Norman Murray is an African-Canadian man who has been employed with the
Immigration and Refugee Board (IRB) in Toronto since 1989. Since commencing
his employment he has worked as a Case Officer (CO) at the PM-01 level, except
for a three-year acting assignment as a Refugee Protection Officer (RPO) at the
PM-04 level from 2002 to 2005.
[4]
In October 2006, the IRB announced plans to reorganize. Its goal was to avoid
layoffs that could have resulted from the lower caseload of the Refugee
Protection Division of the IRB after September 11, 2001. As part of the
reorganization, current RPO positions at the PM-04 level were to be replaced by
Tribunal Officer (TO) positions at the PM-05 level. RPOs who qualified for the
new TO position were appointed using a non-advertised appointment process.
Those who failed to qualify remained at the PM-04 level as Development Tribunal
Officers, and were provided with training with a view to becoming RPOs at the
PM-05 level. Mr. Murray did not qualify as his acting PM-04 appointment had
ended.
[5]
Mr. Murray filed a complaint with the PSST alleging that the non-advertised
appointment process used to appoint the TOs discriminated against him on the
basis of race and that the process constituted systemic discrimination and
created a job barrier for the visible minority employees in CO positions who
were clustered at the PM-01 level.
[3]
At
issue in Murray I was whether the PSST breached procedural
fairness by failing to address whether to admit the PSC Audit as evidence. It
was made public after the hearing and was submitted to the PSST and the IRB by
Mr. Murray in October 2009. This was roughly one year after the PSST heard Mr.
Murray’s complaint, but it was before a decision was rendered. The PSST did
not respond to Mr. Murray’s request to have the PSC Audit considered, nor, in
its reasons rejecting Mr. Murray’s complaint, did it make any reference to this
audit.
[4]
In
Murray I, the Court found the PSST’s failure to acknowledge or consider
the PSC Audit to be a breach of procedural fairness. The Court quashed the
PSST’s December 21, 2009, decision and remitted the matter for reconsideration
in accordance with instructions that the PSST hear submissions by the parties
on the relevance of the PSC Audit to the applicant’s complaint and, after
considering these submissions, rule on whether to receive the PSC Audit as
evidence.
[5]
Submissions
were made to the PSST regarding the relevance of the PSC Audit to Mr. Murray’s
complaint and whether it should be accepted into evidence by Mr. Murray, the
IRB and the PSC. By decision dated November 30, 2011, the PSST held that it
would not accept the PSC Audit into evidence and dismissed the complaint for
the reasons given in Murray I.
[6]
The
parties agreed that the three-part test summarized in Whyte v Canadian
National Railway, 2010 CHRT 6 [Whyte], which followed that used in Vermette
v Canadian Broadcasting Corporation, [1994] CHRD 14, should be used. The
test is the following:
1.
It must be shown the evidence could not have been obtained with reasonable
diligence for use at the trial;
2.
The evidence must be such that, if given, it would probably have an important
influence on the result of the case, although it need not be decisive; and
3.
The evidence must be such as presumably to be believed, or in other words, it
must be apparently credible, although it need not be incontrovertible.
[7]
The
parties and the PSST agreed that the first and third prongs of this test were
met. The issue for determination was whether the PSC Audit satisfied the
second prong: Would it probably have an important influence on
the result of the case?
[8]
The
PSC Audit made the following observation at paragraph 19 regarding
representativeness, which concerns whether “appointment processes are conducted
without bias and do not create systemic barriers to help achieve a public
service that reflects the Canadian population it serves:”
We
found that the IRB put in place mandatory PSC appointment policies. We found
IRB-approved policies for area of selection, revocation and corrective action
and the criteria for choosing non-advertised processes. The IRB’s criteria on
the Use of Non-Advertised Appointment Processes and the Policy on Area of
Selection were not completely consistent with the PSC’s Appointment Policy on
the Choice of Appointment Process. The guiding value of representativeness
was not identified in these two policies. The IRB provided a revised draft
which addressed this issue, however it had yet to approve the policy changes. With
the exception of this omission, the policies met the PSC requirements.
[emphasis added]
[9]
In
other words, according to the PSC Audit, the IRB put in place the appointment
policies required by the PSC and these policies met PSC’s requirements, except
on the issue of representativeness, “which was not identified in these
policies.” Not surprisingly, given its omission from IRB’s relevant staffing policies,
the PSC Audit “found no rationales [among the IRB’s written rationales for the
non-advertised appointment processes it surveyed] that addressed [the] value
[of representativeness].”
[10]
The
PSC Audit also concluded that of the thirty-five appointments sampled in the
first sample – which was “selected arbitrarily to represent a cross-section of
the IRB’s regions and divisions, key occupational groups as well as collective
and non-collective processes” – merit was either not met or not demonstrated in
seven instances. Of these thirty-five appointment processes, fourteen were
“non-advertised,” as was the process complained of by Mr. Murray. Of the
fourteen non-advertised processes, merit was either not met or not demonstrated
in four cases. Of these four, two lacked any documentation as to whether merit
was met, and in one case merit was demonstrably not met. In other words, merit
was either not met or not demonstrated in 29% of the non-advertised processes
surveyed in the PSC Audit. For comparison, in the advertised processes
sampled, merit was either not met or not demonstrated in fewer cases – three
out of twenty-one, or in 17% of the time.
[11]
The
PSC Audit also continued with criticisms of higher-level staffing processes
(e.g. GIC appointments and executives), where “preferential treatment” was
identified as a problem, and other human resources issues of a more general
nature, such as planning, data gathering, monitoring, and not following the
advice of human resource advisors.
[12]
The
PSST held that the PSC Audit did not satisfy the second prong of the Whyte
test for the following reasons:
22
The result of the case in Murray 2009 was that the Tribunal found that
the complainant has not established a prima facie case of discrimination
in the respondent’s choice of a non-advertised process and, even if he had, the
respondent provided a reasonable non-discriminatory explanation for choosing
the non-advertised process. In other words, the result of the case was that
the complainant had not proven discrimination and, therefore, abuse of
authority in the choice of process.
23
The Tribunal thoroughly reviewed the PSC audit, and all the arguments put forth
by the parties to determined whether this evidence, if given, would probably
have an important influence, although not decisive, on the result of the case.
24
The Tribunal finds that no conclusions can possibly by drawn from the PSC audit
samples to support the complainant’s prima facie case. No relevant
generalizations can be made from the first sample, and the second sample
focused on former GIC and EX positions or equivalent. Moreover, the PSC audit
cannot be considered as evidence the respondent’s staffing actions through
non-advertised processes in general and, more importantly, the specific non-advertised
processes at issue in this complaint, lacked representativeness. The most
that can be drawn from this evidence is that the written rationales omitted to
explain how the staffing value of representativeness was met in these
processes.
25
The PSC audit reviewed staffing files and found some deficiencies in how some
appointment processes were documented. It did not conclude that the
appointments did not respect the PSC’s staffing value of representativeness.
Rather, the PSC audit found that in those staffing actions reviewed, the
document explaining the rationale for proceeding with a non-advertised process
did not address the value of representativeness (see page 15 of the PSC audit).
26
At the hearing of Mr. Murray’s complaint, the written rationale for the
specific non-advertised appointment process in question was entered into
evidence, and the parties had an opportunity to examine and cross-examine
witnesses on this document. While the written rationale did not explain how
the staffing values had been met in proceeding by way of non-advertised
processes, the Tribunal found that the respondent provided a reasonable
non-discriminatory explanation for its choice of process (see Murray
2009, at para.115). The finding of the PSC audit that no rationales addressed
the value of representativeness would have no influence on the result of this
case.
[emphasis
added]
[13]
Mr.
Murray submits that the PSST erred at paragraph 24 of its reasons by holding
that no conclusions could be drawn from the samples in the PSC Audit to support
his prima facie case. He submits that the PSC Audit supports his prima
facie case in two ways:
Firstly,
the audit provides evidence of an organizational culture and/or employment
systems at the Immigration and Refugee Board (IRB) that supports a finding of
systemic discrimination as an indicator of a barrier to full participation and
promotion of employees within the IRB. Secondly, the PSC audit provides
evidence that is relevant to the allegation that the ghettoization or
"bottlenecking" of employees within the Applicant’s cohort is not
neutral and therefore represents circumstantial evidence of discrimination in
respect of the non-promotion and advancement of racialized visible minority
CMOs at the PM-01 level.
[14]
I
do not accept the submission of the respondent that it was reasonable for the
PSST to conclude that the PSC Audit could not have had an influence on the case
because that audit “does not provide any evidence to support a finding of
systemic racial discrimination.” In my view, the PSC Audit could
support a finding of systemic racial discrimination in staffing at the IRB for
the reasons given by the PSC at paragraphs 31 and 32 of its submissions to the
PSST:
It
is difficult to conclude that the Audit has no relevance whatsoever to whether
there was systemic discrimination in the respondent’s employment practices and
procedures, given that it does deal with an analysis of the respondent’s
employment systems during a time period parallel to the appointment process at
issue. It does conclude that there were serious deficiencies in merit and
values being met or demonstrated in a number of files and that there were
shortcomings in monitoring. It also found that two of the respondent’s
staffing policies did not expressly mention the value of representativeness (as
noted in para. 7, above), the latter which is required by PSC policy.
Case
law recognizes that where established staffing rules are applied less
rigorously, or not at all, this can leave room for more informal approaches
more susceptible to bias, and therefore to discrimination.
[15]
However,
although I agree with the applicant that the PSC Audit may have provided
relevant and perhaps important evidence of systemic discrimination at the IRB
with respect to staffing, that alone would not render the decision under review
unreasonable.
[16]
A
finding of systemic discrimination might provide evidence that Mr. Murray
suffered discrimination; however, it is circumstantial evidence: Tahmourpour
v Canada (Solicitor General), 2005 FCA 113, at para. 24. Therefore, even
if accepted, the PSST would have to determine whether to infer from the PSC
Audit that there was systemic discrimination and whether, coupled with the
other evidence offered by Mr. Murray, discrimination probably occurred in Mr.
Murray’s case. In Murray I, the PSST accurately captured this point:
The
evidence must establish first that systemic barriers exists, and, secondly that
there is a link between the evidence of systemic barriers and evidence of
individual discrimination against the compliant, based on his race. Both
evidentiary steps are necessary. Without both, there is no prima facie
case.
[17]
In
Murray I, and in the decision under review, the PSST held that this link
was not established because “the respondent provided a reasonable
non-discriminatory explanation for its choice of process.” That reasonable
non-discriminatory explanation was stated in Murray I at paragraph 115
as follows: “[P]roceeding by way of non-advertised processes eliminated the
requirement to declare employees who had been substantive RPOs surplus and,
therefore, ensured their ongoing employment.”
[18]
In
the decision under review, the PSST provided little reason why its assessment
of the respondent’s explanation might not have been altered by virtue of the
PSC Audit findings. However, the Court must, when assessing
whether a decision is reasonable (as described in Dunsmuir v. New Brunswick,
2008 SCC 9), ask whether the reasons allow it to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes: Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62. Examining the
record, including the PSC Audit, the findings made by the PSST in the decision
under review, and the reasons in Murray I, which were re-adopted, I
cannot find that the decision of the PSST that the PSC Audit “would not
probably have an important influence on the result of the case” is
unreasonable.
[19]
I reach this conclusion primarily for two reasons. First,
the PSC Audit does not find that the staffing processes in place at the IRB
constitute systemic discrimination. Accordingly, the PSST would still have had
to find systemic discrimination if it were to use that as a basis for finding
that Mr. Murray had presented a prima facie case. Such a finding based
on the PSC Audit is speculative, at best. Second, the explanation the IRB
offered as to why in the particular staffing process under review, a
non-advertised process was used, appears to the Court to have been a reasonable
and very likely explanation. There is no suggestion made by the applicant that
it was specious or fabricated. Thus, there is nothing to suggest that the
explanation offered was not credible or that the addition of the PSC Audit
would change that assessment. Thus, neither alone nor in combination with a
finding, had there been one made, of systemic discrimination, would the
tribunal’s acceptance of the offered rationale likely have changed.
[20]
Accordingly, this application must be dismissed.
[21]
I concur with the parties’ agreement that costs ought to be
fixed at $3,000.
JUDGMENT
THIS COURT’S
JUDGMENT is that
this application is dismissed with costs payable to the respondent, fixed in
the amount of $3,000.00, inclusive of fees, disbursement, and taxes.
"Russel W. Zinn"
Email this Content