Docket: T-71-15
Citation:
2016 FC 89
Ottawa, Ontario, January 25, 2016
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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JOSEPH BATE
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Applicant
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and
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CANADA REVENUE
AGENCY
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(ATTORNEY
GENERAL OF CANADA)
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to subparagraph 44(3)(b)(i) of the Canadian
Human Rights Act, RSC 1985, c H-6 [the Act or CHRA], the Canadian Human
Rights Commission [the CHRC or the Commission] decided on December 18, 2014
that the allegations of discrimination against Mr. Joseph Bate [the applicant]
by his former employer, the Canada Revenue Agency [CRA] were not supported. The
applicant filed for judicial review of this decision, which decision was
communicated to him on January 5, 2015. The applicant asks the Court for relief
in the form of: 1) full transparency and access to the Act audit done on CRA in
2003; 2) grant of the judicial review of the CHRC decision; 3) case law for the
claim; and 4) an explanation for the decision by CHRC.
I.
Background
[2]
The applicant is an able-bodied white man, who
worked at the CRA until he was deemed unfit to work on April 29, 2014. CRA
asked the applicant not to work following the applicant filing a medical note
supporting that the applicant was unfit for work. On April 10, 2014, the applicant
filed a complaint with the CHRC, alleging that the CRA was discriminating
against him on the basis of his gender, ethnicity and skin colour.
[3]
The CHRC rejected his claim on December 18,
2014. The applicant now appeals to this Court for judicial review of the
decision.
II.
Decision under Review
[4]
The CHRC rejected the applicant’s claim on
December 18, 2014, stating that the allegations of discrimination on the basis
of race, colour and sex are not supported. The Commission recommended in its assessment
report that the Commission should dismiss the complaint pursuant to subparagraph
44(3)(b)(i) of the CHRA.
[5]
The preliminary assessment was completed on
August 25, 2014.
III.
Assessment Report Summary
[6]
The assessment report is part of the record for
the CHRC decision. The assessment report summarizes the hiring process at the
CRA, including the selection, assessment and placement stages. The decision
also acknowledges that the applicant did not apply for a position posted in
September 2013, because it had “Employment Equity”
as one of the criteria on the job posting. The position was later filled by a
non-minority hire states the respondent.
[7]
The CHRC also notes the applicant’s argument
that the CRA has an over-representation of employees in the designated groups
and that the groups are merely self-identified, which undermines the legitimacy
of the composition of the groups. The applicant also argued that the employment
equity policy had an impact on him, as he was perhaps deprived of revenue “in the millions” as a consequence of employment
equity. The applicant also presented evidence of the 107 employees in his
Toronto office as evidence that the CRA had met its target for employment
equity and that this criteria should no longer be used where it has a negative
impact on non-minority group members.
[8]
The CHRC rejected this argument, stating that
the respondent had provided evidence of the statistics at regional and national
levels which indicated that some groups were still underrepresented. The CRA
also stated that the CHRC had concluded that the CRA met the requirements
related to its workforce analysis in its employment equity audit. Finally, the
CRA is an employer to which the Employment Equity Act, SC 1995, c 44 applies;
it must therefore apply employment equity, which is not illegal discrimination
as alleged by the applicant.
[9]
For all these reasons, the CHRC reported that
the allegations of discrimination are not supported.
IV.
Issues
[10]
The applicant raises issues with the CRA’s “reverse discrimination” policy and discusses it and
in hypotheticals, the ways in which CRA’s figures for minorities in its employ
are not representative of the overly-represented minority groups. The applicant
appeals to the Court for it to find that discrimination exists at the CRA.
[11]
The respondent presents the following issues:
A.
Should the applicant’s affidavit be struck?
B.
Is the material that was not before the
Commission when it made its decision properly before the Court?
C.
What is the standard of review for the decision
by the CHRC?
D.
Was the CHRC’s decision reasonable?
[12]
The respondent further submits that the applicant’s
position that the CHRA and the Employment Equity Act are discriminatory
against him is not properly the subject matter of a complaint made under the
CHRA.
[13]
In my view, the issues raised by the respondent
are the issues to be examined on judicial review.
V.
Applicant’s Written Submissions
[14]
The applicant submits that he was discriminated
against by his employer, the CRA and that the CHRC erred in finding that there
had not been any discrimination.
[15]
To support his claim, the applicant refers to
statistics he compiled for his office, which has 107 employees, located in the
Greater Toronto Area. Out of these, 102 fall into one of the four employment
equity designated groups. According to the applicant, the employment equity
criteria in job postings and used in all decisions related to hiring and
firing, is discriminatory as to white men. Moreover, special programs to
promote hiring and promotion of designated groups merely discriminates against
those not belonging to a designated group. Because the targets of special
programs have been reached, the programs are now discriminatory towards
non-designated group members.
[16]
The applicant in his submissions to the CHRC,
contends that the discrimination is based on his gender and ethnicity. In his
pleadings to this Court, he also contends that the discrimination is based on
his being able-bodied. Essentially, the applicant alleges discrimination on the
basis of not falling within one of the four designated groups for employment
equity.
[17]
The applicant submits in additional evidence to
this Court many emails and correspondence with politicians and CRA officers
who, according to the applicant, admit to discrimination.
[18]
The applicant submits that the CHRC would not accept
all the evidence he attempted to provide, as his submissions to the Commission
were limited to ten pages.
[19]
The applicant argues that the CRA has refused to
allow him access to documents which would prove his discrimination allegations.
[20]
The applicant claims that the CRA has achieved
targets according to labour-market availability for over a decade, but
continues to use employment equity in its hiring decisions. The applicant
argues that this practice is discriminatory as it has a negative impact on white
able-bodied men, who are the only people who do not fall within any of the four
minority groups identified in the Employment Equity Act. The applicant
alleges he suffered from this discrimination, possibly by losing revenue in the
millions.
VI.
Respondent’s Written Submissions
[21]
In its memorandum, the respondent submits that
the applicant’s affidavit should be stricken in whole or in part for being
argumentative. Moreover, the respondent submits that the applicant’s evidence
submitted on judicial review was not before the decision maker and therefore
should not be considered by this Court.
[22]
The respondent submits that the standard of
review to be applied to the CHRC decision is reasonableness.
[23]
The respondent states that the CHRC’s decision
was reasonable, without delving into the particular facts of the case. The respondent
provides some legislation which explains the legal responsibilities of the CRA
when developing a framework for employment equity in its workplace. This
responsibility includes periodic surveys of its workforce. The respondent also
claims that the employment equity policy operates at the agency-wide level and
that the applicant’s microscopic view is not representative of the agency as a
whole.
[24]
The respondent further states that the applicant
did not demonstrate any personal harm suffered by him from this alleged
discrimination.
[25]
Finally, the respondent asks that judicial
review be denied.
VII.
Analysis and Decision
A.
Should the applicant’s affidavit be struck?
[26]
The applicant’s affidavit was properly placed
before the Court, but the CRA argues that its content is not free of argument.
The CRA submits that the entire affidavit or in the alternative, paragraphs
outlined in the respondent’s memorandum should be struck.
[27]
In my view, the affidavit is not free of argument
as required by subsection 81(1) of the Federal Courts Rules, SOR/98-106.
I find paragraphs 2 and 7 are argumentative and as such, I would strike those
portions of the affidavit.
B.
Is the material that was not before the
Commission when it made its decision properly before the Court?
[28]
In this case, the Court has looked at the test
for new evidence, which it finds the affidavit and additional documentary
evidence to be. In Delios v Canada (Attorney General), 2015 FCA 117,
citing to Assn. of Universities and Colleges of Canada v Canadian Copyright
Licensing Agency, 2012 FCA 22 [Canadian Copyright]. In Canadian
Copyright, Mr. Justice Stratas writes for the Court that new evidence will
be admitted on judicial review if: 1) general background might be helpful to
the Court in its review; 2) an affidavit could bring forward a procedural
defect when it is not otherwise apparent; or 3) evidence could show the absence
of evidence on which the decision-maker made its finding.
[29]
The new evidence now placed before this Court
does not show that the CHRC did not have evidence before it; the applicant’s
record now only goes to building on arguments that were already before the
CHRC. Therefore, the applicant’s affidavit and material not before the CHRC
when it made its decision should not be considered by this Court on judicial
review.
[30]
The applicant states that the CHRC would not
consider submissions beyond ten pages and this is why so much evidence would be
new if allowed before this Court. Arguably, the applicant could introduce the
evidence as context for procedural unfairness before the CHRC. However, the applicant
does not argue this point.
[31]
In this case, I find the new evidence presented
by the applicant does not meet one of the listed exceptions.
C.
What is the standard of review for the decision
by the CHRC?
[32]
With respect to the standard of review to be
applied to the CHRC decision, the respondent submits, and I agree, that the
standard of review is reasonableness per Dunsmuir v New Brunswick, 2008
SCC 9 at paragraph 54, [2008] 1 S.C.R. 190. Per Dunsmuir, where the
jurisprudence has already determined the applicable standard of review to
apply, the Court does need to proceed with its own analysis. In this case, CHRC
decisions have been reviewed under a reasonableness standard: Alkoka v
Canada (Attorney General), 2013 FC 1102 at paragraph 39, Sketchley v
Canada (Attorney General), 2005 FCA 404 at paragraphs 53 to55.
[33]
The test to determine whether a decision was
reasonable was set out in Dunsmuir. The test is whether the CHRC’s decision,
when taken as a whole, was reasonable. This means that I should not intervene
if the decision is transparent, justifiable, intelligible and within the range
of possible, acceptable outcomes in light of the facts and the law (Dunsmuir
at paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at paragraph 59, [2009] 1 S.C.R. 339 [Khosa]).
D.
Was the CHRC’s decision reasonable?
[34]
I believe that it would be useful to state some
of the legislative provisions that have application to this matter. Section 10
of the Act states:
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10. It is a
discriminatory practice for an employer, employee organization or employer
organization
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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 :
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(a) to establish or pursue a policy or practice, or
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a) de fixer ou d’appliquer des lignes de conduite;
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(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.
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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.
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[35]
Subsection 16(1) of the Act reads:
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16. (1) It is not a discriminatory practice for a person to adopt
or carry out a special program, plan or arrangement designed to prevent
disadvantages that are likely to be suffered by, or to eliminate or reduce
disadvantages that are suffered by, any group of individuals when those
disadvantages would be based on or related to the prohibited grounds of
discrimination, by improving opportunities respecting goods, services, facilities,
accommodation or employment in relation to that group.
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16. (1) Ne constitue pas un acte discriminatoire le fait d’adopter
ou de mettre en oeuvre des programmes, des plans ou des arrangements spéciaux
destinés à supprimer, diminuer ou prévenir les désavantages que subit ou peut
vraisemblablement subir un groupe d’individus pour des motifs fondés,
directement ou indirectement, sur un motif de distinction illicite en
améliorant leurs chances d’emploi ou d’avancement ou en leur facilitant
l’accès à des biens, à des services, à des installations ou à des moyens
d’hébergement.
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[36]
Sections 2 and 9 of the Employment Equity Act
states:
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2 The
purpose of this Act is to achieve equality in the workplace so that no person
shall be denied employment opportunities or benefits for reasons unrelated to
ability and, in the fulfilment of that goal, to correct the conditions of
disadvantage in employment experienced by women, aboriginal peoples, persons
with disabilities and members of visible minorities by giving effect to the
principle that employment equity means more than treating persons in the same
way but also requires special measures and the accommodation of differences.
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2 La
présente loi a pour objet de réaliser l’égalité en milieu de travail de façon
que nul ne se voie refuser d’avantages ou de chances en matière d’emploi pour
des motifs étrangers à sa compétence et, à cette fin, de corriger les
désavantages subis, dans le domaine de l’emploi, par les femmes, les
autochtones, les personnes handicapées et les personnes qui font partie des
minorités visibles, conformément au principe selon lequel l’équité en matière
d’emploi requiert, outre un traitement identique des personnes, des mesures
spéciales et des aménagements adaptés aux différences.
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…
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…
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9 (1) For the purpose of implementing employment equity, every
employer shall
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9 (1) En vue de réaliser l’équité en matière d’emploi, il incombe
à l’employeur :
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(a) collect information and conduct an analysis of the employer’s
workforce, in accordance with the regulations, in order to determine the
degree of the underrepresentation of persons in designated groups in each
occupational group in that workforce; and
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a) conformément aux règlements, de recueillir des renseignements
sur son effectif et d’effectuer des analyses sur celui-ci afin de mesurer la
sous-représentation des membres des groupes désignés dans chaque catégorie
professionnelle;
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(b) conduct a review of the employer’s employment systems,
policies and practices, in accordance with the regulations, in order to
identify employment barriers against persons in designated groups that result
from those systems, policies and practices.
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b) d’étudier ses systèmes, règles et usages d’emploi, conformément
aux règlements, afin de déterminer les obstacles en résultant pour les membres
des groupes désignés.
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(2) Only those employees who identify themselves to an employer,
or agree to be identified by an employer, as aboriginal peoples, members of
visible minorities or persons with disabilities are to be counted as members
of those designated groups for the purposes of implementing employment
equity.
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(2) En vue de réaliser l’équité en matière d’emploi, seuls sont
pris en compte dans les groupes correspondants les salariés qui s’identifient
auprès de l’employeur, ou acceptent de l’être par lui, comme autochtones,
personnes handicapées ou faisant partie des minorités visibles.
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[37]
It is also important to note that on judicial
review, the role of the Court is to review the record that was before the Canadian
Human Rights Commission and determine whether the Commission’s decision was
reasonable. There are certain limited exceptions where evidence not before the
Commission may be considered but none apply in the present case. As stated by
Madam Justice Heneghan in Shaw v Royal Canadian Mounted Police, 2013 FC
711 at paragraph 42, the decision is reasonable if:
The decision of the Commission meets the
standard of reasonableness, that is one that “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”; see Dunsmuir,
supra, at para. 47.
[38]
It is against this background that I will assess
whether the Commission’s decision is reasonable.
[39]
At the hearing, the applicant re-stated the
arguments and evidence of discriminatory acts presented to the CHRC in greater
detail. In his affidavit, the applicant submits the CHRC made an incorrect
decision because the evidence supports that CRA does not need employment equity,
that disadvantaged groups have been overrepresented for over a decade, that CRA
is not taking into account the impact on non-disadvantaged group members and
that employees could be hired even though they are not qualified for a
position, as long as one was part of a designated group.
[40]
The respondent submits that the CHRC’s decision
was reasonable in light of the facts and the law. The respondent submits that
when the CHRC decision endorses the results of an assessment report, the
reasons therein are the reasons to be assessed for reasonableness. Where those
reasons are deficient, so will the decision by the CHRC.
[41]
I agree with these statements respecting the
assessment report. The respondent then outlined the Employment Equity Act
requirements and the legislation to which the CRA is subject.
[42]
Turning to the record, I am satisfied that the
CHRC considered the arguments presented by the applicant and by the respondent
and properly weighed the evidence before it in its screening role. Looking to
the applicant’s documented evidence for the alleged discrimination, I find that
the applicant selectively read the explanations that were provided to him to
answer his employment equity queries. For example, the applicant claims various
CRA or political officers admitted to the alleged discrimination, when the full
picture indicates otherwise. The CHRC takes this full picture into
consideration. For example, CHRC looks to the statistics provided by the CRA
and does not limit itself to the applicant’s survey of 107 employees in one
Toronto office for an agency with thousands of employees across the country.
[43]
There is no dispute that employment equity
criteria can be used in proper cases by the respondent in work force adjustment
situations.
[44]
For the purposes of this matter, it is not in
dispute that the respondent is using the Employment Equity Act to govern
its employment equity policies.
[45]
The CHRC’s assessment report noted at paragraphs
36 and 37:
36. The respondent agrees that for the
past ten years, representation for all four employment equity designated groups
at the “agency-wide level” remains above the respective labour market
availability rates. The word “agency wide” refers to a national level but, says
the respondent, under-representation still exists in some occupational
groups in specific regions.
37. Per its obligations under the Employment
Equity Act, the respondent develops and implements employment equity
through workforce plans and through integrated workforce planning. The
respondent’s employment equity plan and report identified regional gaps based
on regional workforce analysis and included an employment equity representation
analysis with strategies to reduce gaps where they exist. While the respondent
does not have statistics for every position, office or group, its public report
did identify gaps in the Ontario region’s supervisory/management group. The
Ontario region employment equity plan includes the mandatory use of employment
equity for all EE OG-05 – supervisor groups and for all MG managers group,
levels 1, 2 and 3. This objective remains in place to address
under-representation of the visible minority group in those categories.
[emphasis added]
[46]
In my view, this answers the applicant’s
assertion that his own office was over-represented and thus results in
discrimination for him.
[47]
On the issue of self-identification, only
employees who self-identify can be considered to be a member of a designated
group. Also, self-identification is voluntary (see section 9 of the Employment
Equity Act).
[48]
Moreover, the CHRC reasonably concludes that the
applicant does not set out a discrimination claim under the CHRA where all that
is alleged is that CRA is meeting its legal obligations under the Employment
Equity Act and the CHRA.
[49]
Although the applicant presents extensive email
correspondence with various CRA representatives and politicians, the evidence
as a whole reasonably supports the CHRC’s finding that a claim of discrimination
has not been set out by the applicant, where the CRA follows the law on
employment equity. This is not to say that the applicant does not raise a
policy issue for the legislator. However, this policy decision is not for this
Court to make on judicial review, especially in light of the applicant’s
failure to demonstrate that the policy is no longer needed for the entirety of
his employer, the CRA.
[50]
Finally and importantly, the employment equity
criteria which the applicant alleges constitutes discrimination may not
determine the outcome of a job posting. As explained by the respondent in its
submissions to the CHRC, CRA might be required to list employment equity as a
criterion, but CRA could nonetheless hire a non-designated individual, or seek
an exception to employment equity. This policy operates agency-wide with some
degree of discretion. The applicant’s case was very difficult to make where the
policy on its face and in fact does not readily support that discrimination for
his particular ethnicity and sex exists at the CRA.
[51]
In my opinion, the decision of the CHRC was
reasonable. The decision “falls within a range of
possible acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir at paragraph 47). The CHRC addressed the issues of
over-representation and failing to verify self-identification and came to
reasonable conclusions with respect to these issues.
[52]
In coming to my conclusion, I also considered
the oral arguments made by the parties at the hearing.
[53]
The respondent objected to the admissibility of
charts presented at the hearing by the applicant. Any material in the charts
that was not before the CHRC is not admissible.
[54]
As a result of my finding that the CHRC’s
decision was reasonable, the application for judicial review is dismissed.
There shall be no award of costs.
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