Docket: T-133-06
Ottawa, Ontario, March 2, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
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.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-132-06
STYLE OF CAUSE: RAYMOND MACIEL
v.
CANADA REVENUE AGENCY
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 12, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: JUSTICE BARNES
DATED: March 2, 2007
APPEARANCES:
|
|
ON HIS OWN BEHALF
|
|
|
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada |
FOR THE RESPONDENT
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-133-06
STYLE OF CAUSE: RONDA SARGEANT
v.
CANADA REVENUE AGENCY
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 12, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: JUSTICE BARNES
DATED: March 2, 2007
APPEARANCES:
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Ms. Ronda Sargeant
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ON HER OWN BEHALF
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Ms. Victoria Yankou
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT
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