Date: 20050503
Docket: A-588-03
Citation: 2005 FCA 154
EVANS J.A.
MALONE J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
ATTORNEY GENERAL OF CANADA
(REPRESENTING THE CANADIAN ARMED FORCES)
Respondent
Heard at Toronto, Ontario, on April 5, 2005.
Judgment delivered at Ottawa, Ontario, on May 3, 2005.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY J.A.
MALONE J.A.
Docket: A-588-03
Citation: 2005 FCA 154
CORAM: DÉCARY J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
ATTORNEY GENERAL OF CANADA
(REPRESENTING THE CANADIAN ARMED FORCES)
Respondent
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] This is an appeal by the Canadian Human Rights Commission, and a cross-appeal by the Attorney General, from an order of a Judge of the Federal Court, which is reported as Canada (Attorney General) v. Canadian Human Rights Commission, 2003 FC 1373.
[2] The Applications Judge allowed an application for judicial review by the Attorney General and set aside a decision by the Canadian Human Rights Tribunal, dated December 20, 2001, that the Canadian Armed Forces ("CAF") had discriminated against George A. Morris contrary to paragraph 7(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. The Tribunal found that age was a factor in the CAF's failure to promote Mr. Morris from the rank of Warrant Officer to Master Warrant Officer.
[3] The Applications Judge held that the Tribunal had erred in law by using the wrong legal test for determining whether the Commission had made out a prima facie case of age discrimination. However, she also decided that, if she was wrong on this point, the CAF had not satisfied her that the Tribunal's rejection of its explanation was unwarranted on the evidence. This latter conclusion is the subject of the Attorney General's cross-appeal.
[4] The appeals raise three issues. Did the Tribunal err in law in its selection of the test for a prima facie case? If not, did the Tribunal err in concluding that the Commission had adduced sufficient evidence to make out a prima facie case? Did the Tribunal err by drawing an adverse inference from the CAF's failure to support its explanation by reference to the test scores of the Warrant Officers competing for promotion to Master Warrant Officer who had been ranked higher than Mr. Morris?
[5] In my opinion, the Commission's appeal should be allowed and the Attorney General's cross-appeal dismissed.
B. FACTUAL BACKGROUND
[6] The facts are fully described in the comprehensive and careful reasons of the Tribunal, and can be stated quite briefly here. Mr. Morris served in the CAF from 1963, when he was 19 years old, until his mandatory retirement at age 55 in 1999. He had joined as a Private and won successive promotions to the ranks of Corporal, Master Corporal and Sergeant. He became a Warrant Officer in 1981 when he was 37 years old.
[7] In order to become eligible for promotion to Master Warrant Officer, Mr. Morris had, among other things, to complete a course, the 7th Qualification Level ("QL7"), which he did in 1990 when he was 46. Decisions on the promotion of eligible candidates were made by the National Merit Board on the basis of recommendations of their Commanding Officer, their Performance Evaluation Report ("PER") and an assessment of their potential. This information was used to rank candidates on the National Merit List.
[8] Mr. Morris was never ranked sufficiently high on the National Merit List to be promoted. The nub of his complaint is that, over the years, there was a discrepancy between, on the one hand, the very favourable recommendations that he received and his high scores on the PER, and, on the other, his lower scores for "potential", which steadily decreased. He says that, unlike the other bases of evaluation, the assessment of "potential" is very subjective and disadvantages older candidates.
C. TRIBUNAL'S DECISION
[9] On the first issue, namely, the legal test for a prima facie case of discrimination, the Tribunal relied (at para. 67) on Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at 558 ("O'Malley"), as authority for the following proposition.
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.
[10] O'Malley concerned a complaint of discrimination in an employment context. The Tribunal also considered Shakes v. Rex Pax Ltd. (1982), 3 C.H.H.R. D/1001 (Ont. Bd. Inq.), where it was said (at para. 8918) that, in employment cases, the Commission usually establishes a prima facie case by proving that: (a) the complainant was qualified for the particular employment; (b) the complainant was not hired; and (c) someone obtained the position who was no better qualified than the complainant, but lacked the attribute on which the complainant based their human rights complaint.
[11] Although described as "relatively fixed in the case law", the Shakes test was modified by the Tribunal in Israeli v. Canadian Human Rights Commission (1983), 4 C.H.H.R. D/1616 at para. 13865, in order to deal with a situation where no appointment was made, but the employer continued to seek applicants after rejecting the complainant who was qualified for the position.
[12] It was argued before the Tribunal in the present case that the Commission had not established a prima facie case of discrimination because it had not adduced evidence on the qualifications or age of the Warrant Officers who were promoted in the years that Mr. Morris was passed over. The Tribunal rejected this argument. First, it distinguished (at para. 74) Shakes andIsraeli on the ground that this was a case where discrimination was alleged in respect of promotion, not hiring, and where decisions were made on the basis of a merit list compiled after a complex process.
[13] Second, the Tribunal said (at para. 75) that the Commission could establish a prima facie case without adducing comparative evidence of the kind identified in Shakes, if other
... evidence establishes that discrimination was a factor in denying the Complainant an employment opportunity, ...
Referring to Chander v. Canada (Department of National Health and Welfare), [1995] C.H.R.D. No. 16 (C.H.R.T.), the Tribunal held that, if the evidence established that discrimination was a factor in denying a complainant an employment opportunity, a prima facie case will have been made out, irrespective of the qualifications and characteristics of the successful candidates.
[14] After a meticulous examination of the evidence, the Tribunal concluded (at para. 144) that the Commission's evidence was sufficient to satisfy the O'Malley test of a prima facie case, in that the evidence adduced by the Commission was sufficient, if believed and not satisfactorily explained, for the complaint to be made out.
[15] Thus, having held that the Commission had shifted the evidential burden to the CAF by establishing a prima facie case of discrimination, the Tribunal considered the non age-related explanations offered by the CAF for Mr. Morris's low scores for potential. These included: the fact his extra-curricular activities were directed, not to the military, but to his career after the military; his weaknesses in communication, the French language, and leadership; his unwillingness to take up a new posting outside southwestern Ontario; his years of service outside the regiment; and his lack of deployment on operational missions.
[16] The Tribunal noted (at paras. 173-74) that, although it had directed the parties to disclose to each other all relevant documents in their possession for which privilege was not claimed, the CAF had not disclosed the PERs of the Warrant Officers who had been promoted, even though
... they constitute the only manner for determining if Mr. Morris's low scores on potential were due to the explanations provided with respect to the designated factors. Yet, this material was never disclosed. The Respondent's failure to adduce this evidence before the Tribunal serves to undermine all of its explanations for Mr. Morris's low score on potential. ...
Consequently, the Tribunal concluded, the CAF had not provided a reasonable explanation that rebutted the Commission's prima facie case of discrimination.
D. DECISION OF THE FEDERAL COURT
[17] The Applications Judge held (at para. 24) that the Tribunal erred in law when it relied on Chander as authority for the proposition that a prima facie case could be established in the absence of comparative evidence. Unlike the present case, the Judge said (at para. 25), there were no other candidates in Chander with whom to compare the complainant. Hence, the PERs were required in this case in order to establish a prima facie case of discrimination.
[18] However, after considering the evidence adduced by the Commission to establish a prima facie case, the Judge concluded (at para. 29) that, if comparative evidence had not been available, the evidence adduced by the Commission would have been sufficient to constitute prima facie proof of discrimination.
[19] As for the adequacy of the CAF's explanations, the Applications Judge stated that the CAF had the burden of proving that there were reasonable, non-discriminatory explanations for the fact that Mr. Morris was not promoted, even though he had completed the QL7 course, and had received excellent performance ratings and strong recommendations. She concluded that, if a prima facie case had been established, it was reasonable for the Tribunal not to accept the CAF's explanations in the absence of comparative data.
E. LEGISLATIVE FRAMEWORK
[20] Age is listed in subsection 3(1) of the Canadian Human Rights Act as a prohibited ground of discrimination. Section 4 provides that discriminatory practices described in sections 5 to 14.1 of the Act may be the subject of a complaint to the Commission and that a person found to have engaged in one or more of them may be the subject of an order by the Tribunal.
[21] The provision of the Act most relevant to this appeal is paragraph 7(b).
|
7. It is a discriminatory practice, directly or indirectly,
...
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
|
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_: ... b) de le défavoriser en cours d'emploi. |
E. ISSUES AND ANALYSIS
Issue 1: Standard of review
[22] In Lincoln v. Bay Ferries Ltd., (2004), 322 N.R. 50, 2004 FCA 204, the Court stated (at para. 16) that the parties agreed on the standards of review applicable to the different kinds of questions decided by a Tribunal under the Canadian Human Rights Act. Thus, questions of law decided by the Tribunal are reviewable on a standard of correctness; questions of mixed fact and law are reviewable on a standard of reasonableness simpliciter; and "fact-finding and adjudication in a human rights context" are reviewable for patent unreasonableness.
Issue 2: Did the Tribunal err in law in formulating the test of a prima facie case?
[23] The parties agree that whether the Tribunal selected the appropriate test of a prima facie case is a question of law and reviewable on a standard of correctness.
[24] Counsel for the Attorney General argued that, as a matter of law, a prima facie case of discrimination can normally only be established in employment cases if the Commission adduces comparative evidence in the form of information about the successful candidates. While there can be exceptions (as, for instance, where there were no other candidates or comparative information is not available), a Tribunal must apply Shakes. It is a question of law whether Shakes is applicable to the adjudication of any given employment discrimination complaint. Therefore, counsel said, because comparative information was available in this case, the Tribunal erred in law by not applying Shakes.
[25] I do not agree. The definition of a prima facie case in the adjudication of human rights complaints was considered in Lincoln v. Bay Ferries Ltd., which was decided after the decision under appeal in the present case was rendered. Writing for the Court, Stone J.A. said (at para. 18):
The decisions in Etobicoke, supra, and O'Malley, supra, provide the basic guidance for what is required of a complainant to establish a prima facie case of discrimination under the Canadian Human Rights Act. ... The tribunals' decisions in Shakes, supra, and Israeli, supra, are but illustrations of the application of that guidance. ... As was recently pointed out by the tribunal in Premakumar v. Air Canada, [2002] C.H.R.D. No. 3, at paragraph 77:
While both the Shakes and the Israeli tests serve as useful guides, neither test should be automatically applied in a rigid or arbitrary fashion in every hiring case: rather the circumstances of each case should be considered to determine if the application of either of the tests, in whole or in part, is appropriate. Ultimately, the question will be whether Mr. Premakumar has satisfied the O'Malley test, that is: if believed, is the evidence before me complete and sufficient to justify a verdict in Mr. Premakumar's favour, in the absence of an answer from the respondent?
[26] In my opinion, Lincoln is dispositive: O'Malley provides the legal test of a prima facie case of discrimination under the Canadian Human Rights Act. Shakes and Israeli merely illustrate what evidence, if believed and not satisfactorily explained by the respondent, will suffice for the complainant to succeed in some employment contexts.
[27] In other words, the legal definition of a prima facie case does not require the Commission to adduce any particular type of evidence to prove the facts necessary to establish that the complainant was the victim of a discriminatory practice as defined in the Act. Paragraph 7(b) requires only that a person was differentiated adversely on a prohibited ground in the course of employment. It is a question of mixed fact and law whether the evidence adduced in any given case is sufficient to prove adverse differentiation on a prohibited ground, if believed and not satisfactorily explained by the respondent.
[28] A flexible legal test of a prima facie case is better able than more precise tests to advance the broad purpose underlying the Canadian Human Rights Act, namely, the elimination in the federal legislative sphere of discrimination from employment, and from the provision of goods, services, facilities, and accommodation. Discrimination takes new and subtle forms. Moreover, as counsel for the Commission pointed out, it is now recognized that comparative evidence of discrimination comes in many more forms than the particular one identified in Shakes.
[29] To make the test of a prima facie case more precise and detailed in an attempt to cover different discriminatory practices would unduly "legalise" decision-making and delay the resolution of complaints by encouraging applications for judicial review. In my opinion, deciding what kind of evidence is necessary in any given context to establish a prima facie case is more within the province of the specialist Tribunal, than that of the Court.
[30] Nor are more detailed legal tests of a prima facie case likely to bring greater certainty to the administration of the Act. As the jurisprudence illustrates, even within the single area of discrimination in employment, variations in fact patterns are infinite. Whether, as a question of law, Shakes would be found to apply in any given situation might be far from easy to predict. Increasing the number and specificity of legal rules does not necessarily enhance certainty in the administration of the law.
Issue 3: Was the evidence sufficient to establish a prima facie case of discrimination?
[31] As already noted, the Applications Judge held that, if she had not been of the view that the law required the Commission to produce comparative evidence in order to establish a prima facie case of discrimination, she would have concluded that the evidence adduced by the Commission was sufficient to shift the evidential burden to the CAF.
[32] I did not understand counsel for the Attorney General seriously to challenge this aspect of the Judge's reasons. Rather, her concern was to support the Judge's view that, as a matter of law, where, as here, comparative evidence exists about the qualifications and attributes of successful candidates for promotion, a prima facie case of discrimination cannot be established without it.
[33] Whether there was sufficient evidence before the Tribunal to constitute a prima facie case involves the application of a legal rule to facts, and is thus a question of mixed fact and law reviewable on a standard of unreasonableness simpliciter: Canada (Canadian Human Rights Commission) v. Canada (Canadian Armed Forces), [1999] 3 F.C. 653 (T.D.) at para. 28; Lincoln v. Bay Ferries Ltd. at paras. 16 and 23.
Issue 4: Did the Tribunal err in law by drawing an adverse inference from the respondent's non-disclosure of the successful candidates' PERs?
[34] On the cross-appeal, counsel for the CAF submitted that the Applications Judge erred in saying that the Tribunal was entitled to draw an adverse inference from the CAF's failure to produce the PERs of the officers with whom Mr. Morris was in competition for promotion. Counsel argued that the Attorney General should not have been penalised for the non-production of documents that it was believed did not have to be produced.
[35] Counsel submitted that the Attorney General was not under a broad duty to disclose all the PERs relating to other Warrant Officers. This is because: the Commission did not raise its claim that the Attorney General should have disclosed the PERs until its closing argument before the Tribunal; the Commission had not included the qualifications of other Warrant Officers in the statement of particulars; the Attorney General had adduced voluminous material concerning Mr. Morris and the merit board system; and, since the PERs contain confidential information about the Warrant Officers to whom they relate, their disclosure should only be ordered after the Warrant Officers' privacy interests have been taken into account.
[36] In my opinion, however, the passages from the Tribunal's reasons relied upon by the Attorney General, and set out in the reasons of the Applications Judge, do not, when read as a whole, draw an adverse inference from a breach of the Attorney General's duty to disclose. Rather, the Tribunal simply concluded that the CAF had the burden of rebutting the Commission's prima facie case of discrimination and that it had failed to do so. Without the PERs, the Tribunal could not determine whether the particular non age-related explanations offered by the CAF justified Mr. Morris's low scores for potential. The Tribunal was merely assessing the weight of the evidence before it, a largely factual exercise.
[37] As with the definition of a prima facie case, the Attorney General is seeking to elevate to the level of questions of law what are essentially questions of evidence. I agree with the Applications Judge's conclusion (at para. 33) that
... it was reasonable for the Tribunal to question the validity of the explanations for the Complainant's low score under the heading "potential" in the absence of Comparison Evidence.
F. CONCLUSIONS
[38] For these reasons, I would allow the appeal with costs, dismiss the cross-appeal with costs, set aside the order of the Federal Court, dismiss the application for judicial review, and restore the decision of the Tribunal.
"John M. Evans"
J.A.
"I agree
Robert Décary J.A."
"I agree
B. Malone J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-588-03
STYLE OF CAUSE: CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 7, 2005
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY J.A.
MALONE J.A.
DATED: MAY 3, 2005
APPEARANCES BY:
Leslie Reaume FOR THE APPELLANT
Liz Tinker FOR THE RESPONDENT
SOLICITORS OF RECORD:
Canadian Human Rights Commission FOR THE APPELLANT
Ottawa, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT