Docket: T-1928-14
Citation:
2015 FC 644
Ottawa, Ontario, May 19, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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TOBY-LEE
SAUNDERS
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA and PUBLIC SERVICE COMMISSION
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Respondents
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JUDGMENT AND REASONS
[1]
The applicant, Toby-Lee Saunders, seeks judicial
review of a decision of the Public Service Staffing Tribunal (PSST) which
dismissed her complaint in which she alleged that her selection for lay-off
from employment with the Department of National Defence (DND) was tainted by
discrimination.
[2]
The applicant occupied a Dental Care Program
Clerk position when DND decided that two such positions would be reduced to
one. Accordingly, a process for the selection of employees for retention or
lay-off (SERLO) was conducted in which the applicant and one other employee
sought to be retained. The SERLO process involved the assessment, for each
employee, of a cover letter, a resume, two references, and an interview.
[3]
Following the SERLO process, the applicant was
advised that she had been selected for lay-off. She complained to the PSST on a
number of grounds, many of which are not challenged in the present application
for judicial review. What remains relevant is the applicant’s assertion that
the SERLO process was tainted by consideration of certain negative comments in
a reference provided by her supervisor, Master Warrant Officer Anna Aldrich
(MWO Aldrich). The applicant argues that those comments were coloured by a
strained relationship that existed between her and MWO Aldrich following the
applicant’s efforts to have her disabilities accommodated, and allegations by
the applicant that MWO Aldrich had resisted the implementation of certain
recommended accommodations, including the use of Voice Recognition Technology
(VRT) to address the applicant’s keyboarding limitations.
[4]
The PSST addressed this aspect of the
applicant’s complaint in the following two paragraphs of its decision:
76. The complainant contends that MWO
Aldrich’s negative comments in her reference, such as the complainant being
argumentative, could be due to the fact that she had complained several times
about her VRT, mainly regarding the need to update it.
77. There is no evidence, however, that MWO
Aldrich was disturbed or annoyed by the complainant’s requests or complaints
regarding her VRT, nor any other evidence that would in any way support the
complainant’s assertion.
[5]
The applicant challenges the PSST’s finding on
this issue on the basis that the tribunal failed to conduct an initial analysis
of whether the applicant had established a prima facie (first sight)
case of discrimination (assuming that the evidence on point were believed),
which analysis should have been followed (if a prima facie case had been
found) by a shifted onus on the respondent to explain its actions: Ont.
Human Rights Comm. v Simpson-Sears, [1985] 2 S.C.R. 536 at para 28 (Simpson-Sears);
Lincoln v Bay Ferries Ltd., 2004 FCA 204 at para 17.
[6]
The applicant also asserts that there was ample
evidence of friction between her and MWO Aldrich that would establish a prima
facie case of discrimination. The applicant argues that discrimination is
often covert and it may be impractical for a party alleging discrimination to
prove it through direct evidence: Basi v Canadian National Railway Company,
[1988] CHRD No 2 at page 9. The applicant argues that a tribunal therefore errs
when it looks only for such direct evidence. The applicant also argues that the
discrimination in question need not be the sole influence on the impugned
decision. It is sufficient that the discrimination be contributory to the
decision: Sinclair v London (City), 2008 HRTO 48 at para 53; Besner v
Canada (Deputy Minister of Human Resources and Skills Development), 2014
PSST 2 at para 17 (Besner).
[7]
In support of her argument of discrimination,
the applicant refers to her two references in the SERLO process (one from MWO
Aldrich and the other from a previous supervisor), and notes the important
differences between the two. Specifically, the applicant notes that the comments
of the previous supervisor were almost uniformly positive, whereas each
positive comment by MWO Aldrich was countered by a negative comment. The
applicant urges me to conclude that this is evidence of at least a prima
facie case that MWO Aldrich’s comments were the result of discrimination.
[8]
The parties are agreed that the applicable
standard of review is reasonableness. They appear to disagree only in the
amount of deference that should be shown to the PSST’s decision. In my view, it
is not necessary that I decide on the amount of deference that should be shown
to the PSST’s decision. Even applying only a limited amount of deference, I am
not inclined to interfere with the PSST’s conclusion that there is no evidence
that supports the allegation that MWO Aldrich’s negative comments about the
applicant were even partially the result of discrimination.
[9]
The applicant focuses on the PSST’s statement in
paragraph 77 about the absence of evidence that “MWO
Aldrich was disturbed or annoyed”, and argues that this is the wrong
test. However, that same paragraph goes on to note the absence of “any other evidence that would in any way support the
complainant’s assertion.”
[10]
It is important to bear in mind that the
applicant’s assertion in question is not that there had been friction between
the applicant and MWO Aldrich, nor even that MWO Aldrich was disturbed or
annoyed with the applicant, but rather that MWO Aldrich’s negative comments
about the applicant were the result, at least in part, of discrimination. The
evidence cited by the applicant does not go to this point.
[11]
I accept that the Court should be considerate of
the fact that evidence of discrimination is not always direct. I also accept
that it is not necessary to establish any intent to discriminate: Simpson-Sears
at para 14. However, I do not accept that the evidence cited by the applicant
in this case must necessarily lead a tribunal to conclude that a prima facie
case of discrimination has been established. The PSST’s conclusion that there
was no evidence in support of the applicant’s assertion was reasonable.
Moreover, I conclude that the PSST implicitly concluded that a prima facie
case of discrimination has not been established.
[12]
In my view, the decision of the Federal Court of
Appeal in Turner v Canada (Attorney General), 2012 FCA 159, is
distinguishable on this basis. There, the tribunal did not determine whether a prima
facie case of discrimination was established. Instead, it simply assumed
that a prima facie case was established, and continued its analysis accordingly.
The Court criticized this approach because several factual findings on key
issues were missing. In the present case, there was an implicit finding that no
prima facie case of discrimination was established. Therefore, no
further analysis was called for.
[13]
The Besner decision, which also concerned
allegations of discrimination in the context of a SERLO process, is
distinguishable on its facts. There, the complainant was able to establish a prima
facie case of discrimination by showing that her disabilities had given
rise to the issues that were the subject of negative comments which then were
relied on to decide that she would be laid off. The applicant in the present
case has not succeeded in establishing that link. The negative comments made by
MWO Aldrich are unrelated to the applicant’s disabilities.
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